Issues

It is widely recognized that the American criminal system is in a state of crisis, but views about what has gone wrong and how it could be set right can seem chaotically divergent. This Essay argues that, within the welter of diverse views, one foundational, enormously important, and yet largely unrecognized line of disagreement can be seen. On one side are those who think the root of the present crisis is the outsized influence of a vengeful, poorly informed, or otherwise wrongheaded American public and the primary solution is to place control over the criminal system in the hands of officials and experts. On the other side are those who think the root of the crisis is a set of bureaucratic attitudes, structures, and incentives divorced from the American public’s concerns and sense of justice and the primary solution is to make criminal justice more community focused and responsive to lay influences. The former view reflects a norm of bureaucratic professionalization; the latter view reflects a norm of democratization. This Essay defines the two camps, specifies the concepts of bureaucracy and democracy underlying each one, and identifies some of the unifying ideas on the democratization side. This Essay thus attempts to bring conceptual order to the present cacophony of voices on criminal justice reform by specifying the conflict of visions at their center. As the opening piece of this Symposium Issue of the Northwestern University Law Review—a symposium not just about democratizing criminal justice but in defense of democratizing criminal justice—this Essay also paves the way for what will follow: a full-throated defense of the democratic criminal justice vision.

Many of our criminal justice woes can be traced to the loss of the community’s decisionmaking ability in adjudicating crime and punishment. American normative theories of democracy and democratic deliberation have always included the participation of the community as part of our system of criminal justice. This type of democratic localism is essential for the proper functioning of the criminal system because the criminal justice principles embodying substantive constitutional norms can only be defined through community interactions at the local level. Accordingly, returning the community to its proper role in deciding punishment for wrongdoers would both improve criminal process and return us to fundamental criminal justice ideals.

Most recognize that federal and state laws imposing high sentences and reducing judicial sentencing discretion have created America’s current plague of mass incarceration. Fewer realize that these draconian laws shift sentencing power to prosecutors: defendants fear the immense sentences they face if convicted at trial, and therefore actively engage in the plea-bargaining process. This allows prosecutors, rather than judges, to effectively determine the sentences imposed in most cases, which creates significant sentencing discrepancies that most often are unrecorded and cannot be measured. This Essay proposes a solution that would not require legislative change to be put into effect: to have prosecutors occasionally serve as defense counsel for indigent defendants so prosecutors realize the great power they possess. Unfortunately, I recognize that such change is unlikely to happen in the near future, leaving prosecutors in power in the criminal justice system.

Scholars have long studied the relationship of structural constitutional principles like checks and balances to democracy. But the relationship of such principles to democracy in criminal punishment has received less attention. This Essay examines that relationship and finds it fraught with both promise and peril for the project of democratic criminal justice. On the one hand, by blending a range of inputs into punishment determinations, the constitutional fragmentation of the punishment power can enhance different types of influence in an area in which perspective is of special concern. At the same time, the potentially positive aspects of fragmentation can backfire, encouraging tunnel vision, replicating power differentials, and making it easier for more well-resourced voices to drown out others. Thus, the same structure that generates valuable democratic benefits for punishment also falls prey and contributes to serious democratic deficits. But despite its drawbacks, we cannot and should not abandon the Constitution’s fragmented approach to crime and punishment. The more promising move is to look for ways to make different loci of influence and representation more meaningful within our existing framework, doing more to ensure that multiple voices are heard.

This Essay links criminal theory to democratic political theory, arguing that the view of criminal law and procedure known as “reconstructivism” shares a common root with certain culturally oriented forms of democratic theory. The common root is the valorization of a community’s ethical life and the belief that law and government should reflect the ethical life of the community living under that law and government. This Essay then specifies three principles that are entailed by the union of democracy and reconstructivism and that should therefore characterize a democracy’s approach to criminal justice: the “moral culture principle of criminalization,” the “principle of prosocial punishment,” and the “We the People principle of criminal procedure.” As the American criminal system routinely violates all three principles, this Essay closes by suggesting that the present crisis of American criminal justice stems in substantial part from criminal law and procedure’s bureaucratic and instrumental, rather than democratic and reconstructive, path of development. The three principles point to a better alternative and suggest a direction for criminal justice reform.

This Essay sketches an ideal of criminal law—of the kind of criminal law that we can call our own as citizens of a democratic republic. The elements of that ideal include a republican theory of liberal democracy, as the kind of polity in which we can aspire to live; an account of the role of criminal law in such a polity, as defining a set of public wrongs and providing an appropriate formal, public response to the commission of such wrongs through the criminal process of trial and punishment; and a discussion of how the citizens of such a polity will relate to their criminal law and of the various active roles that they will be ready to play in the law’s enterprise. This account does not aim to describe, or to justify, our existing systems of criminal law. Instead, it offers a normative ideal against which we can judge our existing institutions, and towards which we can strive to reform them.

Criminal justice seems an implausible vehicle for reviving democracy. Yet democracy is in trouble. It is embattled by money politics and populist tyrannies of majorities, of which penal populism is just one variant. These pathologies of democracy arise from democracy having become too remote from the people. A new democracy is needed that creates spaces for direct deliberative engagement and for spaces where children learn to become democratic. A major role for restorative justice is one way to revive the democratic spirit through creating such spaces.

Like the education system, the criminal justice system offers both formal, overt curricula—found in the Bill of Rights, and informal or “hidden” curricula—embodied in how people are treated in interactions with legal authorities in courtrooms and on the streets. The overt policing curriculum identifies police officers as “peace officers” tasked with public safety and concern for individual rights, but the hidden curriculum, fraught with racially targeted stop and frisks and unconstitutional exercises of force, teaches many that they are members of a special, dangerous, and undesirable class. The social psychology of how people understand the fairness of legal authorities—procedural justice—is one way to understand these practices and their effects, and to improve relationships between law enforcement and the public. Procedural justice posits that people are likely to comply with the law, cooperate with authorities, and engage with them when they are treated fairly, which the public tends to interpret through how they are treated as opposed to focusing on the outcomes of authorities’ decisions. Research suggests that the way police treat citizens impacts how people think of themselves, especially how they think of themselves as citizens. Positive changes in procedural justice may encourage more democratic participation in government.

Society would gain if the police moved away from the goal of harm reduction via crime reduction and toward promoting the economic, social, and political vitality of American communities. Research suggests that the police can contribute to this goal if they design and implement their policies and practices in ways that promote public trust. Such trust develops when the police exercise their authority in ways that people evaluate as being procedurally just.

There are good reasons to be initially hesitant about shaping criminal law rules to track the justice judgments of ordinary people. People seem to disagree about many criminal law issues. Their judgments, at least as reflected in many aspects of current law such as three strikes and high penalties for drug offenses, seem harsh to many. Effective crime control would seem to require the expertise of trained experts and scholars who understand the complexities of general deterrence and the identification and incapacitation of the dangerous.

But this brief Essay, which reviews some previous studies and analyses, argues that distributing criminal liability and punishment according to the shared judgments of the community—so-called “empirical desert”—does not have the failings that many assume, such as those described above, and indeed ought to be preferred by both moral philosophers and crime-control utilitarians. It represents the best practical approximation of deontological desert. And it offers the greatest potential for effective crime control because, by tracking community views, the criminal law can build its moral credibility with the community and thereby harness the potentially enormous powers of social influence and internalized norms.

The criminal justice system currently functions to exclude black people from full political participation. Myriad institutions, laws, and definitions within the criminal justice system subordinate and criminalize black people, thereby excluding them from electoral politics, and depriving them of material resources, social networks, family relationships, and legitimacy necessary for full political citizenship. Making criminal law democratic requires more than reform efforts to improve currently existing procedures and systems. Rather, it requires an abolitionist approach that will dismantle the criminal law’s anti-democratic aspects entirely and reconstitute the criminal justice system without them.

Collective forms of participation in criminal justice from members of marginalized groups—for example, when people gather together to engage in participatory defense, organized copwatching, community bail funds, or prison labor strikes—have a profound effect on everyday criminal justice. In this Essay I argue that these bottom-up forms of participation are not only powerful and important, but also crucial for democratic criminal justice. Collective mechanisms of resistance and contestation build agency, remedy power imbalances, bring aggregate structural harms into view, and shift deeply entrenched legal and constitutional meanings. Many of these forms of contestation display a faith in local democracy as a tool of responsive criminal justice, while simultaneously maintaining a healthy skepticism of the law and existing legal institutions that maintain the status quo. These forms of resistance and contestation are not antagonistic, but agonistic; not revolutionary, but devolutionary. Without facilitating critical resistance from below, well-meaning criminal justice reforms are in danger of reproducing the anti-democratic pathologies that plague our existing system. Indeed, it is from the voices of those who have been most harmed by the punitive nature of our criminal justice system that we can hear the most profound reimaginings of how the system might be truly responsive to local demands for justice and equality. This Essay concludes by sketching out the dual roles of the state in a criminal justice system that values contestation: to facilitate methods of participation that originate with and are led by non-elite actors from marginalized populations; and to create criminal justice institutions that transfer agency and control to people ordinarily left out of criminal justice decisionmaking.

For those struggling with criminal justice reform today, the long history of failed efforts to close the gap between the promise of legal equality and the practice of our police forces and prison systems can seem mysterious and frustrating. Progress has been made in establishing stronger rights for individuals in the investigatory and sanctioning stages of the criminal process; yet, the patterns of over-incarceration and police violence, which are especially concentrated on people of color, have actually gotten worse during the same period. Seen in terms of its deeper history however, the carceral state is no longer puzzling: it has always governed more by norms of controlling abnormality than enforcing laws and, in the United States, this construct of abnormality has for centuries been deeply raced. If this is the right time to be optimistic about criminal justice reform, it is at least in part because the irrepressible emphasis on race by the agents of the carceral state has become more visible and its clash with American legal values less ignorable.

The practical disappearance of the jury trial ranks among the most widely examined topics in American criminal justice. But, by focusing on trial scarcity, scholars have managed to tell only part of the story. The unexplored first-order question is whether juries even do their work well. And the answer to that question turns on the kinds of work jury members are typically required to do. Once upon a time, trials turned upon practical reasoning and general moral blameworthiness. Modern trials have come to focus upon legal reasoning and technical guilt accuracy. In turn, the jury has evolved from a flexible body to a rule-bound institution. But, of course, even as trials have changed, laypeople’s capacities have stayed largely the same. Laypeople remain more skilled at the art of equitable evaluation than the science of legal analysis.

It does not follow, however, that the criminal justice system should revert to equitable trial practices. The modern trial is professional and legalistic for good reason. The rule of law commands that criminal convictions be products of precisely drawn criminal codes and formal processes. Nevertheless, there are other procedural stages—arrest, charge, bail, bargain, and sentence—where equitable discretion is more appropriate. These are the stages at which criminal justice should concentrate lay efforts.

In this Symposium Essay, I describe the historical and constitutional trends that have entrenched popular participation in all the wrong places. And I propose redirecting jury practice from criminal trials to other adjudicatory sites. Finally, I make the case that my reforms are consistent with (and perhaps even integral to) the legality principle, properly considered.

While America’s criminal justice system is deeply rooted in the ideal of a popular morality play, it has long since drifted into becoming a bureaucratic plea bargaining machine. We cannot (and would not want to) return to the Colonial Era. Even so, there is much more we can do to reclaim our heritage and incorporate popular participation within our lawyer-run system. That requires pushing back against the relentless pressures toward efficiency and maximizing quantity, to ensure that criminal justice treats each criminal with justice, as a human and not just a number. The criminal justice system must narrow its ambitions and scope, counteract professionals’ tunnel vision, make punishment more productive, and make criminal procedure more transparent and participatory. This Essay ends by gesturing towards how the United States might start to tackle these kinds of reforms.

This white paper is the joint product of nineteen professors of criminal law and procedure who share a common conviction: that the path toward a more just, effective, and reasonable criminal system in the United States is to democratize American criminal justice. In the name of the movement to democratize criminal justice, we herein set forth thirty proposals for democratic criminal justice reform.