Chapter four concludes the section entitled "Ignoring Principles" and is entitled "Principle
and the Felony-Murder rule." This is clearly the most successful chapter of this section. It deals effectively
with a topic that is often not discussed and is overshadowed by discussions of the death penalty. Hence, reviewing
the death penalty in chapter three and then moving to a discussion of the moral injustice of the felony-murder
rule is an excellent transition, and it leaves the reader wondering if Gerber had finally found a method, or perhaps
purpose, for his book. In fact, he has.
Chapters five through eight all fall under the second part of his book entitled "Ignoring Data." It
is in these five chapters that Judge Gerber has finally found a format for relaying a mixture of current topics
that are rife with problems in the criminal justice system. He does so through an agreeable mixture of academic
research with a judicial perspective and he concludes each chapter with a strong analysis of the "injustice"
of
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the criminal JUSTICE system. In chapter five, he reviews the issue of marijuana, isolated from all other drugs,
which he compares to current legal drugs: alcohol and tobacco. In chapter six he expands his discussion to all
drugs in regards to the "war on drugs," and he highlights the injustice that our current public policies
have wrought on so many people. A nice transition occurs from the chapters on marijuana and drugs (two causes)
to chapter seven on "prisons and counterproductivity" (the effect). Judge Gerber clearly points out
how our current fascination with the "prison-industrial complex" has led our nation toward a system that
imprisons more and more nonviolent offenders at not only a cost marked in dollars but at a cost marked in morality.
Finally, in chapter eight, Gerber provides the answer "why?"
The reason, Gerber explains, in chapter eight, is that crime has become a politicized issue and that politicians,
at both the national and state level, have been more concerned with appearing "tough-on-crime" in order
to secure electoral votes, than with responding to academic research on crime and its failed policies. This creates
a vicious and amoral cycle of politicians talking tough and passing draconian laws to lock-up more criminals.
We then move to arrest more and more people, who, it turns out, are not the violent offenders that the politicians
talk about locking up, but rather are nonviolent offenders. However, locking more nonviolent offenders requires
more prison space and the politicians respond by talking tough and assuring their electorates that they will lock
up more "violent criminals."
Judge Gerber then concludes his book with a chapter titled "In Search of Principled Justice" which finally
provides the theoretical construct of his book. In pages 181 to 185, Gerber delineates two opposing viewpoints
of our criminal justice system, the positivist and the magisterial. Gerber explains the positivist viewpoint by
six propositions and provides the theoretical background to each by neatly affixing a philosophers' name to the
propositions. The positivist view commences with the statement that "the citizenry serves the law,"
as with Hobbes, and then proceeds to explain that the system derives its control from greater government power,
that all criminals make choices. Therefore, punishment is the solution. The positivist viewpoint is representative
of our current criminal justice system.
Gerber then proposes a "magisterial" approach, which he does not adequately define. He apparently seeks
an official entrusted with the administration of law whose sole purpose is having the characteristic of a "master"
or "teacher." Gerber posits six propositions of his approach, each juxtaposed against the propositions
of the positivist viewpoint. Such is his first statement that "the law serves the citizenry," which
he associates with Aristotle. He then describes how the law is dependent upon moral authority, that criminals
do not calculate their crimes, and that the law should teach. He then explains how the magisterial view would
reflect and greatly incorporate much of the social science research available on crime control policies.
Judge Gerber walks the reader through each of the issues raised throughout the book: sentencing, plea bargaining,
the death penalty, felony murder, marijuana, hard drugs, prisons, and political rhetoric and explains how the magisterial
approach would change the injustices wrought by the current positivist approach. One cannot help but be drawn
into the conclusions of Judge Gerber and perceive his views as a sort of utopian criminal justice system. Although
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his answers to the current "injustice" system, through an application of the magisterial approach, is
clearly of value, one wonders how we would take our current system and move it from the positivist to the magisterial
and what sort of obstacle might lay in waiting as we move to these drastically different policies.
In conclusion, Judge Gerber's book commences with a number of problems, such as a lack of structure, format, and
theory that he apparently works out by the end of his book. In light of this fact, I would recommend that the
reader begin with the "Foreword" in place of the "Introduction," then read pages 181-185 to
understand the theoretical construct of Gerber's argument, and finally, moving on to chapter one, unless one has
previously read Tonry's book SENTENCING MATTERS, in which case they may proceed to chapter two. If one were interested
only in the theory and solutions, a good read of the conclusion would suffice.
These final comments do, however, illustrate the one drawback to a recommendation of this book. The greatest deficiency
in Gerber's book lays not in the formatting problems, but rather in the fact that his theoretical construct is
not provided until the conclusion and it is only five pages long. A greater development of his theory, the magisterial
view, would have greatly enhanced this publication and would have better served the reader and Judge Gerber. As
a result, this book would be beneficial primarily for students interested in grasping basic concepts of the politics
of law, the judicial process, and the criminal justice system. Although the theoretical construct of a "magisterial"
approach to the justice system was of interest, the fact that it was not fully developed leaves the book falling
short of a significant contribution to the study of the judicial process.
REFERENCES:
Beckett, Katherine and Theodore Sasson. 2000. THE POLITICS OF INJUSTICE. Thousand Oaks: Pine Forge Press.
Davey, Joseph Dillon. 1998. THE POLITICS OF PRISON EXPANSION. Westport: Praeger Publishers.
Tonry, Michael. 2000. MALIGN NEGLECT: RACE, CRIME AND PUNISHMENT. New York: Oxford University Press.
Tonry, Michael. 1996. SENTENCING MATTERS. New York: Oxford University Press.
Windlesham, Lord. 1998. POLITICS, PUNISHMENT, AND POPULISM. New York: Oxford University Press.
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Copyright 1999 by the author.