Cruel and Usual

Judges and courts do a considerable amount of harm in applying some criminal laws and policies, such as the felony murder rule, mandatory sentences, and the drug war. These and other positivist policies do not lessen crime, but instead, teach criminogenic messages contrary to what a magisterial criminal policy would teach. American judges apply criminal laws and policies that teach wrong lessons to users of the justice system, including criminals themselves. The source of this lies both in judicial passivity and legislative indifference. Judge Gerber expresses his confidence that a justice-oriented system can be achieved when politicians surrender control of the justice system to professionals in the field.

American judges apply criminal laws and policies that teach wrong lessons to users of the justice system, including the criminals themselves. These wrong lessons include mathematical and mandatory sentencing, plea bargaining, the death penalty, the felony murder rule, marijuana prohibitions, the drug war, and the penchant for solving crime by building more and bigger prisons. The source of these harms lies both in judicial passivity and legislative indifference to the costs and shortcomings of anti-crime policies, usually because of nothing but electoral concerns. The result is a system of laws and policies that really have little to do with lessening crime but much to do with politics. The book contrasts this positivist criminal justice system with a justice-oriented magisterial system which Judge Gerber believes, can be achieved if politicians surrender control of the justice system to professionals and experts in that field. This book has applications for academic as well as professional use and will also be of interest to some general readers who are interested in the legal system.

RUDOLPH J. GERBER is a Judge of the Arizona Court of Appeals.