Three Principles of Democratic Criminal Justice

Kleinfeld, Joshua | August 1, 2017

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.