The Political Economy of Criminal Law and Procedure: The Pessimists' View

CRIMINAL LAW CONVERSATIONS, P.H. Robson, K. Ferzan and S. Garvey, eds., Oxford University Press, 2009

U of Chicago, Public Law Working Paper No. 243

12 Pages Posted: 23 Oct 2008

Date Written: October 22, 2008

Abstract

In The Pathological Politics of Criminal Law, Bill Stuntz provides a powerful critique of the modern American criminal justice system. Other commentators have criticized legislatures for constantly adding to an already overbroad set of criminal prohibitions. Stuntz explains the political dynamic that makes this outcome inevitable. The ultimate result is that the modern prosecutor defines what is criminal by her selection of cases to charge, while criminal legislation is a mere "side-show." Stuntz concludes that this state of affairs is "lawless" and pathological. As a solution, he proposes that courts resurrect or expand certain constitutional doctrines to reclaim some of the power now wielded by prosecutors. In this core text, I summarize and comment on Stuntz's argument.

Suggested Citation

McAdams, Richard H., The Political Economy of Criminal Law and Procedure: The Pessimists' View (October 22, 2008). CRIMINAL LAW CONVERSATIONS, P.H. Robson, K. Ferzan and S. Garvey, eds., Oxford University Press, 2009, U of Chicago, Public Law Working Paper No. 243, Available at SSRN: https://ssrn.com/abstract=1288158 or http://dx.doi.org/10.2139/ssrn.1288158

Richard H. McAdams (Contact Author)

University of Chicago Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States
773-834-2520 (Phone)

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