scholarly journals The Consensus Myth in Criminal Justice Reform

2018 ◽  
pp. 259
Author(s):  
Benjamin Levin
Keyword(s):  
Criminal Justice ◽  
Criminal Law ◽  
Mass Incarceration ◽  
Criminal Justice Reform ◽  
The Troubles ◽  
Mass Frame ◽  
Pragmatic Turn ◽  
Policy Proposals ◽  
Policy Solutions

It has become popular to identify a “consensus” on criminal justice reform, but how deep is that consensus, actually? This Article argues that the purported consensus is much more limited than it initially appears. Despite shared reformist vocabulary, the consensus rests on distinct critiques that identify different flaws and justify distinct policy solutions. The underlying disagreements transcend traditional left/right political divides and speak to deeper disputes about the state and the role of criminal law in society. The Article maps two prevailing, but fundamentally distinct, critiques of criminal law: (1) the quantitative approach (what I call the “over” frame); and (2) the qualitative approach (what I call the “mass” frame). The “over” frame grows from a belief that criminal law has an important and legitimate function, but that the law’s operations have exceeded that function. This critique assumes that there are optimal rates of incarceration and criminalization, but the current criminal system is suboptimal in that it has criminalized too much and incarcerated too many. In contrast, the “mass” frame focuses on criminal law as a sociocultural phenomenon. This reformist frame indicates that the issue is not a mere miscalculation; rather, reforms should address how the system marginalizes populations and exacerbates both power imbalances and distributional inequities. To show how these frames differ, this Article applies the “over” and the “mass” critique, in turn, to the maligned phenomena of mass incarceration and overcriminalization. The existing literature on mass incarceration and overcriminalization displays an elision between these two frames. Some scholars and reformers have adopted one frame exclusively, while others use the two interchangeably. No matter how much scholars and critics bemoan the troubles of mass incarceration and overcriminalization, it is hard to believe that they can achieve meaningful reform if they are talking about fundamentally different problems. While many scholars may adopt an “over” frame in an effort to attract a broader range of support or appeal to politicians, “over” policy proposals do not necessarily reach deeper “mass” concerns. Ultimately, this Article argues that a pragmatic turn to the “over” frame may have significant costs in legitimating deeper structural flaws and failing to address distributional issues of race, class, and power at the heart of the “mass” critique.

Beyond Bias

2020 ◽  
pp. 736-753
Author(s):  
Chelsea Barabas
Keyword(s):  
Best Practices ◽  
Criminal Law ◽  
Criminal Justice Reform ◽  
Trade Offs ◽  
System P ◽  
Accuracy Measures ◽  
Criminal Legal System ◽  
And Function ◽  
Role And Function

This chapter discusses contemporary debates regarding the use of artificial intelligence as a vehicle for criminal justice reform. It closely examines two general approaches to what has been widely branded as “algorithmic fairness” in criminal law: the development of formal fairness criteria and accuracy measures that illustrate the trade-offs of different algorithmic interventions; and the development of “best practices” and managerialist standards for maintaining a baseline of accuracy, transparency, and validity in these systems. Attempts to render AI-branded tools more accurate by addressing narrow notions of bias miss the deeper methodological and epistemological issues regarding the fairness of these tools. The key question is whether predictive tools reflect and reinforce punitive practices that drive disparate outcomes, and how data regimes interact with the penal ideology to naturalize these practices. The chapter then calls for a radically different understanding of the role and function of the carceral state, as a starting place for re-imagining the role of “AI” as a transformative force in the criminal legal system.

The Conventional Problem with Corporate Sentencing (and One Unconventional Solution)

2021 ◽  
Vol 24 (3) ◽  
pp. 397-432
Author(s):  
W. Robert Thomas
Keyword(s):  
Criminal Justice ◽  
Criminal Law ◽  
Unique Form ◽  
Criminal Justice Reform ◽  
Common Response ◽  
Corporate Punishment ◽  
Hard Treatment

A recent wave of expressive accounts of corporate criminal law operate on the promise that corporate punishment can express a unique form of condemnation not capturable through civil enforcement. Unfortunately, the realities of corporate sentencing have thus far failed to make good on this expressive promise. Viewed in light of existing conventions that imbue meaning into our practices of punishment, corporate sentences rarely impose hard treatment in a manner or degree that these conventions seem to require. Accordingly, standard corporate sanctions turn out to be ill-suited to deliver—and, often, will likely undermine—the stigmatic punch upon which expressive defenses of corporate criminal law depend. A common response to this conventional problem with corporate sentencing has been to propose more, and harsher, corporate punishments. However, this approach overlooks the extent to which corporate punishment derives its stigmatic force from preexisting norms and conventions concerning individual punishment. If trying to improve corporate punishment, then, expressivists might instead seek either to leverage or to dismantle the underlying conventions that give existing sanctions meaning. An example of the former strategy would be to revitalize long-neglected proposals for corporate shaming by adopting a criminal convention currently absent from the corporate space—namely, the pervasive, stigmatic application of epithets like “thief” or “felon.” An example of the latter would be to join criminal justice reformers in targeting conventions that, in recent decades, have enabled increasingly draconian sentencing practices. On this view, dissolving corporate sentencing’s conventional problem may represent a further, incidental benefit of systemic criminal justice reform.

scholarly journals Conflicted conservatives, punitive views, and anti-Black racial bias 1974–2014

2017 ◽  
Vol 21 (1) ◽  
pp. 3-27 ◽  
Author(s):  
Elizabeth K Brown ◽  
Kelly M Socia ◽  
Jasmine R Silver
Keyword(s):  
Criminal Justice ◽  
Death Penalty ◽  
Violent Crime ◽  
Racial Bias ◽  
White Americans ◽  
Penal Policy ◽  
Policy Issues ◽  
Criminal Justice Reform ◽  
Swing Voters

Research suggests that the views of “conflicted conservatives,” Americans who self-identify as conservative but express support for liberal governmental policies and spending, are particularly important in policymaking and politics because they are politically engaged and often act as swing voters. We examine punitive views among conflicted conservatives and other political subgroups in three distinct periods in the politics of punishment in America between 1974 and 2014. In particular, we consider the punitive views of conflicted conservatives relative to consistent conservatives, moderates, and liberals. Given the barrier that racialized typifications of violent crime may pose to current criminal justice reform efforts, we also explore the role of anti-Black bias in predicting punitive views among White Americans across political subgroups. Our overall findings indicate that conflicted conservatives are like moderates in their support for the death penalty and like consistent conservatives on beliefs about court harshness. These findings, and supplemental analyses on punitive views and voting behaviors across political subgroups, call into question whether conflicted conservatives have acted as critical scorekeepers on penal policy issues. We also find that anti-Black racism was significantly related to punitive views across political subgroups and among liberals in particular.

Victimhood, Dignity, and the Criminal Justice System: A Comment

2011 ◽  
Vol 44 (1-2) ◽  
pp. 301-313 ◽  
Author(s):  
Leslie Sebba
Keyword(s):  
Comparative Analysis ◽  
Criminal Justice ◽  
Criminal Justice System ◽  
Restorative Justice ◽  
Criminal Law ◽  
Justice System ◽  
System A ◽  
Meaningful Role ◽  
Alternative Remedies

While this comment primarily addresses the article by Anat Horovitz and Thomas Weigend on human dignity and victims' rights in the German and Israeli criminal process, it begins with a consideration of the role of the victim in other component parts of the criminal justice system, and in particular the substantive criminal law—a topic addressed in other articles included in this issue. There follows a review of the comparative analysis of the victim's role in Germany and Israel put forward by Horovitz and Weigend and a critique of the issues they raise, particularly as to the salience of the victim's procedural role. It is argued here that the victim should have a somewhat more meaningful role than that envisaged by these authors. The comment concludes with a brief consideration of the potential for the advancement of alternative remedies currently neglected by both systems, such as restorative justice.

scholarly journals The Challenge of the Bad Man

2013 ◽  
Vol 58 (2) ◽  
pp. 451-480 ◽  
Author(s):  
Michael Plaxton
Keyword(s):  
Criminal Justice ◽  
Rule Of Law ◽  
Criminal Law ◽  
Legal Order ◽  
Recent Discussion ◽  
The Rule Of Law ◽  
Criminal Justice Systems ◽  
Moral Problems ◽  
Douglas Husak

H.L.A. Hart’s insight, that some people may be guided by an offence provision because they take it as authoritative and not merely to avoid sanctions, has had an enormous influence upon criminal law theory. Hart, however, did not claim that any person in any actual legal order in fact thinks like the “puzzled man”, and there is lingering doubt as to the extent to which we should place him at the center of our analysis as we try to make sense of moral problems in the criminal law. Instead, we might find that our understanding of at least some issues in criminal law theory is advanced when we look through the eyes of Holmes’ “bad man”. This becomes clear when we consider the respective works by Hart and Douglas Husak on overcriminalization, James Chalmers and Fiona Leverick’s recent discussion of fair labeling, and Meir Dan-Cohen’s classic analysis of acoustic separation. These works also suggest, in different ways, that an emphasis on the bad man can expose the role of discretion in criminal justice systems, and the rule of law problems it generates.

Children and the Expanding Role of the Criminal Law

1999 ◽  
Vol 4 (2) ◽  
pp. 85-90 ◽  
Author(s):  
Sue Bandalli
Keyword(s):  
Criminal Justice ◽  
Criminal Law ◽  
Justice System ◽  
Civil Law ◽  
Foreseeable Future ◽  
Criminal Courts ◽  
Justice Practice ◽  
Looking Back ◽  
Public Demand

Looking back, the 1980s was a decade of enlightenment and success in juvenile justice practice in this country; diverting youngsters away from the criminal courts and reducing the severity of response towards those who were prosecuted did not result in crime waves or public demand to stop this lenient treatment of the young. In the 1990s, the whole criminal justice system took a significant turn towards retribution and punishment. The movement may have been aimed initially at certain groups of criminals, particularly the persistent and serious, but swept all in its wake, including children aged 10–14 who were neither. There is little apparent appreciation of the damaging consequences of this trend, not only for individual children but also for the whole concept of childhood. There is now a wide discrepancy between the approach taken by the criminal and civil law towards children which current criminal justice policies indicate is to continue into the foreseeable future.

For a Human Rights Approach to Reforming the American Penal State

2019 ◽  
Vol 11 (2) ◽  
pp. 346-356
Author(s):  
Jonathan Simon
Keyword(s):  
Human Rights ◽  
Criminal Justice ◽  
Death Penalty ◽  
Mass Incarceration ◽  
The Political ◽  
Reform Agenda ◽  
Criminal Justice Reform ◽  
Institutional Frameworks ◽  
Penal State ◽  
Promising Avenue

Abstract Economic arguments seem to be the most promising avenue for driving reform of America’s bloated penal state in the aftermath of mass incarceration. Raising human rights concerns has limited appeal beyond cultural elites and, on occasion, courts, but today reform is coming from elected branches. Talk of human rights for criminals, or human dignity for prisoners, can risk backlash as happened around the death penalty in the 1970s. This essay challenges this conventional account in three ways. First, I argue that historical conditions make the potential for backlash limited. Second, that economic arguments will always be limited by the political and institutional frameworks that define the current meanings of criminal justice; only a human rights approach can drive a truly abolitionist reform agenda, one aimed at rethinking the institutions themselves, not just their budgets. Third, human rights campaigns can, if properly conceived, expand the constituency for deep criminal justice reform.

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