Over at Volokh Conspiracy, Penn prawf Jeffrey Robinson promotes his new book, Confronting Failures of Justice: Getting Away With Murder and Rape. What is he talking about when he speaks of “failures of justice”?

Most murderers and rapists escape justice, a horrifying fact that has gone largely unexamined until now. This groundbreaking book tours nearly the entire criminal justice system, examining the rules and practices that regularly produce failures of justice in serious criminal cases. Each chapter outlines the nature and extent of justice failures in present practice, describing the interests at stake, and providing real-world examples.

In a system when more than 95% of all defendants are convicted, do “most murderers and rapists escape justice”? That would probably come as a surprise to those in prison in the country that incarcerates more people than any other nation on earth, but not to Robinson. There are, obviously, examples where a guilty person walks because of these nasty technicalities we call constitutional rights, although they are offset by the magnitude of convictions where defendants are either innocent or overcharged, wrongfully convicted or coerced into pleas.

But after making his case that Blackstone’s ratio got it backwards, and justice prefers that ten innocent men be convicted lest one guilty man go free, Robinson offers his fixes to the system.

• Abolish the Statutes of Limitation for Serious Felonies, and for Other Felonies Restart the Limitation Clock after Any New Felony
• Adopt a Fair Import Test in Place of a Strict Construction Test, after Adopting a Modern Criminal Code Format
• Adopt a Desert-based Distributive Principle, as per the Model Penal Code
• Establish a National Experts Group to Set Best Investigative Practices and to Help Gain Funding to Meet Them
• Enlarge Investigative Databases and Capabilities but Establish Limitations on Their Use
• Replace the Exclusionary Rule with Direct Sanctioning of Offending Officers
• Use Consolidated Offense Drafting with Particularized Offense Grading to Reduce the Justice-Frustrating Costs of Plea Bargaining
• Adopt Comprehensive Sentencing Guidelines, as per the Federal System
• Abolish Early Release on Parole, as per the Federal System
• Create a Police-Community Oversight Commission Designed to Build Trust with Both the Community and the Police

Robinson provides explanations for each of these proposals, and it’s worthwhile reading them as they’re too long (hey, without verbosity, how would you even know he was an academic?) to repeat here. And despite his hubris of laying claim to being the Angel of Justice, he conceded that there might be reasonable disagreement with some of his nuts and bolts.

Reasonable people can and will disagree on some of our reform proposals, just as they may disagree on how society should balance certain interests. But what reasonable people should agree on is that failures of justice are a serious problem and one that society must not ignore. The lack of serious study of the problem is also an indictment against modern legal academia, which is so obsessed with getting criminals out of prison that it forgets how few crimes ever lead to punishment in the first place.

If you feared we incarcerated too many before, consider that the crux of Robinson’s “reform” is to end the injustice of not incarcerating nearly enough criminals. Granted, legal academia is obsessed with “getting criminals out of prison” by manufacturing rationalizations to excuse their crimes, but that does not inexorably lead to the polar opposite assumption, that “few crimes ever lead to punishment in the first place.”

The tragic irony of the American justice system is that so little justice is done by it. Change begins with awareness, however, and this book has attempted to investigate the reasons why justice fails so frequently and suggest ways to make it succeed more often.

Two fundamental, and facially nonsensical assumptions, belie Robinson’s approach. The first is that “justice” means more people prosecuted and more people imprisoned. The second is that the cost of Robinson’s “justice” of prosecuting the innocent, overcharging the marginally guilty and imprisoning for life plus cancer based upon whatever carceral “vibes” dominate at any given moment is a fair price to be for “justice.” Blackstone wasn’t merely wrong with his “n guilty men,” but responsible for this vast injustice of criminals running wild.

We’re at a weird inflection point in law, where legal academics are arguing that the First Amendment goes too far and that criminal law lets criminals run rampant, but this polemic reflects a stunning naivete and cluesslessness about how the system functions. Robinson makes such absurd assertions as the “careful drafting”and “defined terms” of model penal codes make it no longer necessary to strictly construe what constitutes a crime, and we should instead go with whatever feels criminalish.

Robinson rejects the premises that incarceration should reflect legitimate purposes, not to mention parsimony, and instead be replaced with a retributive model where defendants get the punishment they “deserve,” as if there was some magical way to figure out what that might be.

While it may seem likely that wild academic theories like this can’t possibly gain traction in the academy, or worse, in the halls of Congress, we’ve seen a backlash to the woke calls for simplistic and untenable reforms, and indulgences in laws and definitions of dubious constitutional efficacy, get momentum because they appear to produce desired results, providing cover for “getting” the people they want gotten and freeing the people they want freed.

What most of these academic theories lack is any serious grasp of reality. Get out of the ivory tower and spend some time in the trenches. Defend a few people. Try a few cases. Learn about the good and the bad that people do, from defendants to cops, prosecutors to judges, victims’ children to the defendants’ children. Then let us know how easy it is for criminals to walk and how “justice” is undermined by the handful of rules that give the defendants the most remote fighting chance possible.

I’m not so arrogant as to believe that I know justice. But I’m pretty sure that locking up (or executing) the innocent isn’t it.