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58 Am. Crim. L. Rev. 155 (2021)
Justice Undone

handle is hein.journals/amcrimlr58 and id is 160 raw text is: JUSTICE UNDONEt William S. Laufer* and Robert C. Hughes** ABSTRACT There is far more justice that is not served than served in our criminal justice system. Well more than half of all offending and victimization fails to make its way into the criminal justice system. An additional share of wrongdoing from ini- tial police contact to the end of the criminal process is diverted or exits. A host of additional personal, systemic, and societal factors constrain the administration of justice to respond to criminal wrongs. This Article introduces the idea of jus- tice remainders, or the omission of the state's response to crime. Justice remain- ders include both justified and unjustified failures to punish the guilty. The total of all justice remainders is the sum of justice undone. It is argued that the moral indignation and outrage over many types of justice remainders are simply and remarkably missing. Our collective response to sexual assaults, the most under- reported of all serious criminal offenses, reveals the importance of formal and informal recognition of victims, the community affected by the wrongdoing, and the state. This Article shows that theories of criminal law with significantly different assumptions and premises nevertheless support three conclusions about justice remainders. First, the state has a duty to address systematic justice remainders that involve either the failure to enforce an important criminal prohibition or a profound inequality in the effective protections of criminal law. Second, the state may be able to remedy some justice remainders with a commitment to effective and humane reforms to penal laws and practices. Finally, the state has a duty to provide public recognition of criminal wrongdoing when just punishment is impossible. This suggests the moral importance of an accounting for the sum of justice undone. INTRODUCTION ........... ............................................ 156 I. UNRIGHTED W RONGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163 t Our thanks to Lawrence Sherman, Claire Finkelstein, Paul H. Robinson, Richard Berk, Vic Khanna, Sally Simpson, Eric Orts, Amy Sepinwall, Charles Loeffler, Mihailis Diamantis, Will Thomas, Leigh Anenson, Amanda Shanor, Susana Aires de Sousa, Danielle M. Dorn, Mary Brewster, Nicola Selvaggi, Ruth Moyer, Matt Caulfield, Kyle Grigel, Yannig Luthra, and Craig Agule for comments on earlier versions of this Article. ( 2021, William S. Laufer and Robert C. Hughes. * Julian Aresty Professor, Professor of Legal Studies and Business Ethics, Sociology, and Criminology, The Wharton School, University of Pennsylvania. ** Assistant Professor, Legal Studies and Business Ethics, The Wharton School, University of Pennsylvania. 155

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