Abstract

http://ssrn.com/abstract=286392
 
 

Citations (19)



 
 

Footnotes (320)



 


 



The Pathological Politics of Criminal Law


William J. Stuntz


Harvard Law School


Michigan Law Review, Vol. 100, December 2001, Forthcoming

Abstract:     
It has long been the conventional wisdom that American criminal law is too broad and too harsh, that it criminalizes too much and punishes too severely. It has also long been the conventional wisdom that these problems flow directly out of electoral politics. This article argues that, while the first piece of conventional wisdom is right, the second is wrong. Criminal law's breadth and severity flow not from electoral politics but from institutional politics, from the interacting incentives of prosecutors, legislators, and judges. Prosecutorial discretion gives legislators a strong incentive to broaden liability rules, which in turn give prosecutors more discretion. Courts are thereby cut out of the lawmaking process. The result is that criminal law, as it expands, does less and less work - the real boundaries of criminal liability are defined by law enforcers, not by the law. And ironically, the doctrines that aim to ensure the "rule of law" reinforce that result.

The article goes on to explore, sketchily, some solutions to this problem of institutional design. The most promising solutions involve a substantial increase in judicial power over criminal law - more precisely, a substantial degree of constitutionalization of criminal law. As that hardly seems likely anytime in the foreseeable future, the problems that afflict American criminal law are likely to get worse before they get better.

Number of Pages in PDF File: 110

Accepted Paper Series





Download This Paper

Date posted: October 6, 2001  

Suggested Citation

Stuntz, William J., The Pathological Politics of Criminal Law. Michigan Law Review, Vol. 100, December 2001, Forthcoming. Available at SSRN: http://ssrn.com/abstract=286392 or http://dx.doi.org/10.2139/ssrn.286392

Contact Information

William J. Stuntz (Contact Author)
Harvard Law School ( email )
1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States
Feedback to SSRN


Paper statistics
Abstract Views: 3,895
Downloads: 924
Download Rank: 13,039
Citations:  19
Footnotes:  320

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo2 in 0.328 seconds