ISSN 1062-7421
Vol. 9 No. 12 (December 1999) pp. 570-573

CRUEL AND USUAL: OUR CRIMINAL INJUSTICE SYSTEM by Rudolph J. Gerber. Westport: Praeger Publishers, 1999. 225 pp. Cloth $59.95. ISBN 0-275-96475-2.

Reviewed by Willard M. Oliver, Social Science Division (Criminal Justice), Glenville State College.

It would seem that as the 20th century draws to a close, a topic of considerable attention in a variety of academic disciplines, including sociology, criminal justice, and of course, political science, has been the discussion of the failings of the United States' criminal justice system. As many of the recent titles allude, such as THE POLITICS OF INJUSTICE (Beckett and Sasson 2000), THE POLITICS OF PRISON EXPANSION (Davey 1998), MALIGN NEGLECT: RACE, CRIME, AND PUNISHMENT IN AMERICA (Tonry 2000), and POLITICS, PUNISHMENT AND POPULISM (Windlesham 1998), there are a number of socio-political problems within the amalgam of police, courts, and correctional institutions that we categorize as the "criminal justice SYSTEM." All of these books present a critical analysis, each from a slightly different perspective, of the current problems within our justice system. Beckett and Sasson look at the problems from a sociological perspective. Davey explores the political rhetoric of! "law and order" espoused by state governors. Tonry looks at the punishment orientation of our criminal justice system and how it has targeted minorities. Finally, Windlesham looks at much of the academic research in the fields of criminal justice, law, and courts. He then argues, and rightly so, that politicians have ignored what works for the sake of votes.

Enter Judge Rudolph J. Gerber and his latest publication, CRUEL AND USUAL: OUR CRIMINAL INJUSTICE SYSTEM. Once again we hear within the title the same tune that so many other books have sung, adding one more publication that provides a laundry list all of the problems within our criminal justice system. As with the books cited above, and there are more, each of these books presents the problems from a different perspective. In Gerber's case it is from the perspective of a Judge who serves on Division One of the Arizona Court of Appeals. In addition, Judge Gerber has also served as an assistant professor at Notre Dame University and St. Louis University and holds not only the J.D. from the University of Notre Dame and the LL.M. from the University of Virginia, but also a Ph.D. from the Universite de Louvian, Belgium.

The books opens with a Foreword by Associate Professor Patrick Brennan of the Arizona State University College of Law that seems to go far beyond a typical "Foreword." It establishes the main reason for the book, the theoretical construct behind the pages to come, and then it outlines the book much like an introduction rather than a foreword. What then follows are several pages of discussion that seemingly fades into an apologetic defense of the book, leaving the reader wondering
about the quality of what is to come. Judge Gerber opens his book with an

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"Introduction" that finds itself no longer than the "Foreword" written by Brennan. He states that, "well-intentioned judges do harm," and then he provides a laundry list of examples with no evidentiary support. One is left hoping that is provided later. This is then followed by a weak discussion of the "politicization of crime." It
provides a little story that is interesting but that hardly establishes any theoretical basis for what is to follow. Gerber than proceeds, in one sentence, to explain how he wrote the book, but he does not delineate why he wrote it nor does he illuminate the reader as to who was his intended audience. Thus, begins Gerber's book with seemingly no theory, purpose, or intent.

Chapter one, which opens the section entitled "Ignoring Principle" and details "Criminal sentencing policy and politics" begins well, provides a solid overview of the issues of criminal sentencing policy, such as state sentencing commission, federal sentencing guidelines, and mandatory sentencing. Gerber provides several examples from his experience in Arizona On face, it appears to be a better start then the preceding introduction. I could not, however, get the notion out of my mind that I had read much of this material before. In reviewing Gerber's citations, I was struck by the fact that he had cited Michael Tonry's SENTENCING MATTERS (1996) twenty-one times in fifty-four endnotes. In addition, approximately 12 of the endnotes were seemingly lifted from the Tonry's material with similar citations. Although the academic admiration of Tonry is justified, the chapter presents little of Gerber's ideas and is mostly a condensed version of Tonry's work. The reader would be better served by reading Tonry's original work.

In chapter two, Judge Gerber strikes a better cord. Plea bargaining and all of the benefits and costs of its use are reviewed with a Judge's insight. However, where he has gone overboard on citing Tonry in chapter one, chapter two lacks attention too much of the academic research on plea bargaining. This does not necessarily detract from the content of the chapter, but it once again leaves the reader questioning what format Gerber has selected for writing his book. A compromise is apparently reached in the discussion of the death penalty in chapter 3. Here Gerber presents a solid overview of the issues of the death penalty, incorporates a "judicial view" into the discussion, and he concludes in short order.

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.