Hofstra Law Review


Jerome Hall


That crime and punishment are perennial problems is plain; indeed, from ancient Greek drama to Shakespeare, Goethe, Dostoyevski and onwards into the present, they have raised the most subtle questions about "the human situation." The relevant legal problems have recently become so complicated that even scholars who have spent many years studying them are puzzled and discouraged. It is not so much the clash of competent opinions that is disturbing as it is the tide of history moved by global, uncontrollable forces, wide-spread tragedy, and the advance of psychiatry that engenders compassion for those who "fall by the wayside" and troubles our best efforts to cope with crime. If we are not to succumb to skepticism or futility regarding the volume of crime in this country, we must take careful stock of what we are doing and what should be done to improve our situation.

The commonly prescribed remedy is empirical research. If only we knew whether this or that penalty deterred potential offenders; if only we knew the effect of various types of peno-correctional treatment on rehabilitation, and so on. Since we know so little, the need seems obvious-increase our knowledge by sociological, psychiatric and other empirical research. But the mills of intensive empirical research have been grinding out voluminous "findings" these many years, and still we lack the required answers; we remain very much in the dark. There must be something wrong with what we are doing, not least with the call for more empirical research.

Without disparaging sound social research, it is submitted that our principal problem is-what exactly is the problem? More fully, the most urgent need is to scrutinize the terms we employ and make them clear and precise, discover guiding lines and theories that make the study of criminal law and empirical research significant, and adopt a sound peno-correctional policy.

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