"should it turn out that the effect of the criminal law is to increase crime and the harms resulting from crime, which anyone of sound and independent mind is at least likely to entertain as a possibility, then--regardless of the various other "systems" into which offenders might be distributed--the purposeful justification of this system in Holmesian terms would be insuperably difficult."

1) Making a conclusive argument that the criminal justice system makes crime worse requires more than merely citing a few statistics, telling an anecdote and then stating the conclusion. I am happy to entertain that position, but would need to be exposed to a great deal more data to reach that conclusion. Whether one agrees with Eben's point or not, it seems to me that the focus in the discussion is what the effect of the criminal justice system is... which is exactly what Holmes would want us to explore.

2) Andrew's point concerning inputs and outputs seems to be the real issue, doesn't it? That is to say, it seems as though we should be investing resources in preventing people from turning to crime to begin with. It is unclear to me why one should not separate the problem of how to stop adolescents from turning to crime to begin with and what to do with criminals after they commit crimes. I concede the issues are connected, but that does not mean one cannot consider independent solutions. An interesting book that is tangentially related is Richard Rhodes' "Why They Kill"... which I am sure others have read. Mr. Rhodes' suggests that violent offenders are rational actors who have learned to use violence as a tool to solve problems. Further, that once learned, it is very difficult to get someone to unlearn. Which leads me to my next point.

3) What if this system is the best option? What if any other system would create even MORE harm? I am not saying this is a fact, merely that one would need to entertain that concern as well... which, if true, would then provide a Holmesian explanation for keeping the current system in place. If violent offenders are highly unlikely to be rehabilitated regardless of the where put them/how we handle them is not society best off by keeping them off of the streets?

4) "When you are trapped in a hole, one might say about matters general and particular, the best first step is to stop digging."

True. Of course, one characteristic I have noticed about holes is that if I leave them alone, they won't rob my house for drug money when I am away.

-- SandorMarton - 26 Jan 2008