The Second Coming of Dignity

In this chapter, Jonathan Simon argues that the modern criminal system should adopt the value of dignity as its governing ideal. The chapter argues that the legality principle—once a primary engine for strengthening the criminal system’s democratic legitimacy—has exhausted its sociological and jurisprudential power. Surveying 150 years of criminal legal commitments, this chapter shows how the legality principle rose to prominence as a vehicle for reform and accountability, and then fell under pressure from mass incarceration and institutional racism. Accordingly, the legality principle should be supplemented with a dignity principle, “an increasingly prominent value in legal systems internationally since the middle of the 20th century.” Simon traces the development of various forms of dignity in Supreme Court jurisprudence, from police procedure to prison conditions, determinate sentencing, and mental health. The chapter concludes that “the great banner reading ‘nulla poena sine lege’ must now be, not lowered, but joined by another banner of ‘no crime and no punishment without respect for human dignity.’”

Beyond Ferguson

In this chapter, Priscilla Ocen responds to Mona Lynch’s essay by applying Lynch’s social psychology model to recent events in Ferguson, Missouri, and to the problem of discretionary racism more generally. The chapter asks how a social psychology of criminal procedure might illuminate the situated and influential role of race on all the actors that make up the criminal justice drama, including not only police and prosecutors, but also local residents. Ocen argues that the “situated actor” model should take a page from Critical Race Theory (CRT) and include the historical and “macro-institutional dynamics” of race, because “individuals and institutions [in the criminal system] operate in particular political and historical contexts that are deeply racialized.” Ocen also points out that the subjects of the criminal system are themselves situated actors, whose interpretations and operationalization of criminal rules and norms should also be accounted for in empirically rich ways. Ultimately, the chapter makes the case that Lynch’s model and CRT would each gain much from thoughtful engagement with the insights of the other.

“Miserology”

In this chapter, Mariana Valverde offers a historical overview of the discourses underlying modern criminal theory. Modern criminology is rooted in a long tradition of “miserology,” the study of that “hybrid of moral degradation, physical ill health, spatial marginality, and collective despair . . . found among the new urban proletariat.” That history spans Engels’s focus on the “nameless misery” of British factory workers, great 19th-century novelists like Charles Dickens and Victor Hugo, Christian anti-poverty activism, modern welfare dependency discourse, and The Wire. Criminology, however, has lost touch with those deeply situated inquiries. Valverde points to the mid-20th century as a moment of schism between the professional study of crime and crime rates—what we now call criminology—and the study of housing, alcoholism, public health, mental health, and other poverty-related phenomena. But those early miserologists in many ways anticipated today’s resurgent interest in risk, race, social control, and the framing of crime, not as a stand-alone phenomenon, but as one aspect of social marginalization and disadvantage.

The Criminal Regulatory State

In this chapter, Rachel Barkow reconceptualizes the criminal process as an administrative bureaucracy. Prosecutors’ offices make decisions in ways that are better explained by bureaucratic pressures and institutional history than by crime rates or individualized concerns about culpability or proportionality. In fact, the explosion of the penal state and our current policies of mass incarceration can be explained at least in part by common principles of bureaucratic expansion and institutional self-interest, which in turn clarify why the penal system grew so radically even as crime rates fell. As Barkow puts it, in response to “the violence and unrest of the 1960s and 1970s . . . [t]he government created agencies and actors who have a vested stake in resisting any efforts to contract the system and who seek to maintain the rules that make those bureaucracies run most efficiently.”

Dignity Is the New Legitimacy

In this chapter, Jeffrey Fagan responds to Jonathan Simon’s essay by exploring the emotional dimensions of individual interactions with state actors. In a procedural justice vein, this chapter considers the dignitary implications of official maltreatment, focusing in particular on the dignity-injuring potential of unjustified, racially motivated, or otherwise abusive police stops. Such interactions not only personally humiliate, but they also deny the targeted individuals “basic and essential recognition” as social and political equals, instilling instead “a profound sense of loss.” Fagan calls for a jurisprudence that “recognizes the emotional highway between dignity and legitimacy.” This approach would “internalize[] the central role of dignity and respect to regulate the relations between citizens and criminal legal actors,” and condemn the “everyday indignities” inflicted even by officers whose conduct is “perfectly compliant with constitutional requirements.”

Taking the Constitution Seriously?

In this chapter, Hadar Aviram responds to Sharon Dolovich’s essay with three competing intellectual frameworks. The chapter argues that the classic “legal model,” which views constitutional interpretation as a vehicle for furthering core legal values, naively assumes the neutrality of legal institutions. Conversely, the “socio-empirical approach,” which treats courts as just one of many socio-political institutions that legitimate and reinforce existing structures of power and inequality, grapples inadequately with the nature of law and legal discourse. Aviram argues that Niklas Luhmann’s systems theory make the best sense of both the constitution’s functions and its limitations by conceptualizing law as a closed system of communication. Although it is open to evidence from other systems and seemingly able to assimilate that evidence, law is structurally incapable of getting beyond the limitations of its own reductive legal/illegal dichotomy. For this reason, judicial review is ultimately an ineffective vehicle for resolving the complex challenges that typically give rise to constitutional claims. Systems theory, concludes Aviram, “offers us a modicum of modesty when expecting great things from the courts.”

Canons of Evasion in Constitutional Criminal Law

In this chapter, Sharon Dolovich argues that the Supreme Court deploys three “canons of evasion” that undermine core constitutional principles: deference, presumption, and question substitution. The chapter shows how the Court on the one hand affirms basic constitutional principles—such as the right to counsel or the right against cruel and unusual punishment—that courts are to enforce against the state for the protection of individual penal subjects. Yet on the other hand, the doctrinal maneuvers of deference, presumption, and substitute question encourage judges in individual cases to affirm the constitutionality of state action even in the face of seemingly egregious facts. As a result, judicial review delivers almost automatic and uncritical validation of whatever state action produced the challenged conviction, sentence, or punishment. Dolovich identifies troubling questions raised by pervasive use of these canons for the legitimacy of the state’s penal power.

Linking Criminal Theory and Social Practice

In this chapter, Meda Chesney-Lind responds to Alexandra Natapoff’s essay. Chesney-Lind notes that the pyramid model resonates with longstanding concerns in criminology, particularly the attempt to measure the effects of race, class, and gender. The chapter offers concrete examples of the pyramid’s operation for women and girls in Honolulu’s court system. Chesney-Lind challenges criminology to do more to unearth these specific social dynamics.

The Penal Pyramid

In this chapter, Alexandra Natapoff conceptualizes the criminal system as a “pyramid” in order to capture how formal rules sometimes determine processes and outcomes while often social factors such as race and class are more influential. The top of the pyramid represents serious felonies, the federal system, wealthy defendants, and the relatively small class of cases governed by a reasonably functional rule of law. By contrast, further down the pyramid, cases get pettier, defendants poorer, and counsel more burdened. By the time we reach the massive bottom—the realm of petty offenses and assembly-line courts—race, class, police arrest policies, and prosecutorial plea-bargaining habits best explain criminal outcomes and procedures. The chapter traces this dynamic to concrete doctrinal and policy choices. As Natapoff writes, “the pyramid . . . illustrates a profound feature of the penal system: sometimes criminal convictions can fairly be justified as a product of law and evidence, while sometimes they are better understood as a product of institutional practices and inegalitarian social relations.”

Improve, Dynamite, or Dissolve the Criminal Regulatory State?

In this chapter, Stephanos Bibas responds to Rachel Barkow’s essay. He argues that the criminal law is supposed to be normatively distinctive, and contests Barkow’s primary conceptual move in which the penal apparatus loses its special status as an adjudicator of moral culpability and becomes just another agency like the Department of Health and Human Services. While acknowledging that the modern penal state has in practice lost much of its moral compass and connection to public values, this chapter argues that we should fight rather than embrace this trend, and attempt instead to “return [the system] to its roots as a popular morality play.” Bibas argues that we once had—and could have again—a more morally grounded, communitarian, and transparent model of criminal justice in which convictions are more tightly linked to individual culpability and community values.