Fragmentation and Democracy in the Constitutional Law of Punishment

Bierschbach, Richard A | August 1, 2017

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.