Some Doubts About Democratizing Criminal Justice

2020
The American criminal justice system's ills are by now so familiar as scarcely to bear repeating. unprecedented levels of incarceration, doled out disproportionately across racial groups, and police that seem to antagonize and hurt the now distrustful communities they are tasked to serve and protect. Systemic social ailments like these seldom permit straightforward diagnoses, let alone simple cures. In this case, however, a large, diverse, and influential group of experts the legal academy's democratizers-all identify the same disease: the retreat of local democratic control in favor of a bureaucratic machinery disconnected from public values and the people themselves. Neighborhood juries, for example, internalize the costs of punishing their own; neighborhood police, of and answerable to the community, think twice before drawing their weapons or stopping a local boy on a hunch. The experts and detached professionals who populate our dominant bureaucratic institutions, in contrast, are motivated by different, less salubrious, incentives. Across the gamut of criminal justice decision-making, the democratizers maintain, the influence of the local laity is a moderating, equalizing, and ultimately legitimating one. A generous dose of participatory democracy won't solve all our problems, but it's our best shot to get the criminal justice system back on its feet. This Article's warning is plain: don't take the medicine. Democratization wields undeniable rhetorical appeal but will not really fix what ails us and may just make it worse. The democratization movement, this Article argues, rests on conceptually problematic and empirically dubious premises about the makeup, preferences, and independence of local communities. It relies on the proudly counterintuitive claim that laypeople are largely lenient and egalitarian, contrary to a wealth of social scientific evidence. And ultimately, democratization's dual commitments are on a collision course. The democratizers simultaneously devote themselves to particular ends-amelioration of the biased and outsized carceral state-and to particular means participatory democracy. What happens if, as this Article predicts, the means do not produce the ends? Which commitment prevails? Worse yet, venerating lay opinion distracts from alternative visions of democratic criminal justice that more credibly tackle the critical question of how best to blend public accountability with evidence and expertise.
UNIVERSITY OF CHICAGO LAW REVIEW
页码:711-813|卷号:87|期号:3
ISSN:0041-9494
收录类型
SSCI
发表日期
2020
学科领域
循证法学
国家
美国
语种
英语
其他关键词
VICTIM IMPACT STATEMENTS; PROCEDURAL JUSTICE; DEATH-PENALTY; RACIAL BIAS; PUBLIC-OPINION; DECISION-MAKING; JURY SERVICE; JUDICIAL DISCRETION; PRETRIAL PUBLICITY; PUNITIVE ATTITUDES
资助机构
Darelyn A. and Richard C. Reed Memorial Fund
资助信息
Assistant Professor of Law and Ludwig and Hilde Research Scholar, University of Chicago Law School. I am indebted to Monica Bell, Merav Bennett, Stephanos Bibas, Andrew Crespo, Justin Driver, Roger Fairfax, Trevor Gardner, Bernard Harcourt, Emma Kaufman, Brian Leiter, Richard McAdams, Tracey Meares, Martha Nussbaum, Dan Richman, Jocelyn Simonson, Roseanna Sommers, and Fred Smith for terrific comments on drafts. Thanks as well to Will Baude, Genevieve Lakier, Lauren Ouziel, and participants at the Criminal Justice Roundtable, the Junior Criminal Justice Roundtable, the University of Chicago Works -in -Progress Workshop, and the University of Virginia Faculty Workshop for generative conversations. For research assistance, thanks to Merav Bennett, Dylan Demello, Morgan Gehrls, Alli Hugi, Kevin Kennedy, and especially Alex Song. The Darelyn A. and Richard C. Reed Memorial Fund furnished financial support.
被引频次(WOS)
19
被引更新日期
2022-01
来源机构
University of Chicago University of Chicago
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