"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 think Eben's argument was meant to do two things: (1) take the prescriptive step of suggesting to us that the criminal law system is broken and that it might well be wise to sack it entirely, and (2) take the preliminary step of shifting the burden of proof in the debate. Sandor, I think you're right that any "conclusive" argument on point (1) would require more than a few statistics and anecdotes.

But I think Eben was successful in shifting the burden of proof. Statistics and anecdotes help shock us out of our complacency and force us to consider, as Holmes suggested, that the fact that the criminal law exists in its present form is no reason to suppose that it is effective. There is a presumption that the burden is on the individual seeking to change a 1000-year institition to conclusively show that it doesn't work. Actually, the fact that the criminal law has been around for 1000, 2000, 5000 years shouldn't give it a privileged position at all. Anyone seeking to justify the criminal law bears as high a burden as does anyone seeking to tear it down and start up again. The costs of social revolution in this context, while high, are not obviously higher than the social costs of the current system. If a proponent of the system thinks otherwise, the burden is on her to show it.

Privileging the current state of the system has too much of the "I know my teddy bear keeps ghosts away from my bed, because I've never seen a ghost near my bed." Trying alternatives is essential to validating current systems.

-- MichaelBerkovits - 26 Jan 2008