Criminal Law and the Pursuit of Equality

Abstract:     
This Article argues that, to make their vision of justice a reality, egalitarians need to change both their focus and their tactics with respect to criminal law. The tragedy of contemporary criminal justice is not that individual rights are too narrowly construed, but that those living in disadvantaged communities are injured both by crime and counter-productive law enforcement. The remedies that egalitarians have historically looked to - remedies articulated within the framework of individual rights - are poorly suited to address the systematic reproduction of inequality that results.

First, egalitarians will need to shift their focus from the racially motivated harms directed at individual criminal offenders and defendants to the collateral and often unintentional harms borne by non-criminals in their communities. Second, as a matter of pragmatic reform, egalitarians should shift their focus from the doctrine of individual liberties to more modest policy reforms aimed at increasing the influence that citizens in disadvantaged communities exercise over the form of justice itself. For too long, these communities have been asked to choose between expansive readings of criminal rights or oppressively harsh criminal sanctions - either choice making them a party to their own subordination.

As a remedy, I argue for an approach coordinated across the political branches, an approach that seeks to make both criminals and the criminal justice system more responsive to the practical concerns of the citizenry. I review empirical data indicating that the public is eager for reforms that do both, and I outline a modest reform to leverage this popular preference, a form of jury polling that elicits greater information about the popular preferences as a regular part of criminal jury trials. This kind of reform, I argue systematically (and respectfully) elicits greater information about and draws attention to the complex needs of those living in our nation's most vulnerable neighborhoods.

Number of Pages in PDF File: 37

Keywords: criminal law, criminal procedure, equal protection, juries, second reconstruction

JEL Classification: K14, D63, K40, K42, I31

Accepted Paper Series