concepts. Compared to the visual, personalized fear of Horton, the American public vividly remembered that a convicted black man brutally raped a white female, and attacked her fiance while out on furlough, not that the circumstances were unusual, and specifically chosen. B. The Function of Heavier Sentencing If this line of reasoning is right, then the outrage dynamic ensures in the areas where it can get a grip that heavier sentencing is the only stable equilibrium. Let there be a departure from that level of sentencing and, sooner or later, it will tend to be reversed. Heavier sentencing will be like an attractor that drags sentencing policy in its direction—at least with crimes that attract 7. Amos Tversky & Daniel Kahneman, Judgments of and by Representativeness, in Judgment Under Uncertainty: Heuristics and Bias 84 (Daniel Kahneman et al. eds., 1982). 8. See 1988: The Issueless Wonder, available at http://www.kennesaw.edu/pols/3380/pres/1988.html (last visited May 24, 2002). This content downloaded from 157.55.39.235 on Fri, 07 Oct 2016 05:49:16 UTC All use subject to http://about.jstor.org/terms PETTITMACRO 6/4/2002 2:08 PM 2002] CRIMINAL JUSTICE FEASIBLE? 439 media attention—and that does so, even in face of an intention on the part of policy-makers to shape sentencing to a systematically justified rationale. The language of equilibria is common in economics and is naturally available here to characterize the explanatory power of the outrage dynamic. But it is worth mentioning that where the dynamic is at work, we can also describe what is happening in the language of functionalist sociology. This is worth mentioning, because of the tradition in sociology, probably initiated by Durkheim, of arguing that the punishment of crime serves an important social function in expressing the collective disapproval of the society and that its serving this function gives it a certain inertial, policy-resistant profile. Functionalist explanation invokes the fact that an institution has a certain effect—purportedly a certain socially functional effect—to explain why the institution is there: if not why it emerged, at least why it remains. But a standard criticism of the approach is that there is no mechanism to make sense of why the functionality of an institution in that sense should explain its presence. There is no designer in evidence, of course, but neither is there a plausible story about the selection of functional systems in a history that would parallel the history of natural selection. Arguably, however, this criticism rests on a mistake about the proper intent of functionalist explanation. For the work of functionalists like Durkheim, Malinowski, Parsons, and others suggests that what primarily interested them was the task of identifying those institutions that played a function which would make them more or less indispensable—and so difficult to dislodge— even if it did not play a role in their historical selection. The idea was to look for the core features of a society and to 9. See Steven Lukes, Emile Durkheim, His Life and Work: A Historical and Critical Study (1973). 10. See Jon Elster, Ulysses and the Sirens (1979). 11. Philip Pettit, Functional Explanation and Virtual Selection, 47 Brit. J. Phil. Sci. 291 (1996). This content downloaded from 157.55.39.235 on Fri, 07 Oct 2016 05:49:16 UTC All use subject to http://about.jstor.org/terms PETTITMACRO 6/4/2002 2:08 PM 440 BUFFALO CRIMINAL LAW REVIEW [Vol. 5:427 distinguish them from the marginal and the peripheral. Functionalist method is cast throughout the tradition as a means of providing “a basis—albeit an assumptive basis— for sorting out ‘important’ from unimportant social processes.” If we understand functionalist explanation on these lines, as an attempt to discern functional, relevantly resilient features in a society, then we can give our story about sentencing a functionalist gloss. What we have seen in our discussion of the outrage dynamic is that a more or less punitive criminal justice system—a system that supports heavier sentencing—has a function of a kind that makes it more or less indispensable, at least under current political arrangements. It has an effect, that of assuaging public outrage, which can broadly be described as functional or useful. And its having that effect ensures that it will survive a variety of hostile forces, in particular the forces of rationalizing policy-makers. Montesquieu famously described the pursuit of criminal justice as being in danger of representing a “tyranny of the avengers.” If what I have just argued is correct, then this is not just a danger; it connects, at least under current institutions, with a function served by heavier sentencing. The pursuit of criminal justice has an inbuilt resistance to policy-making reform, even reform of the kind that Montesquieu called for over two hundred years ago.