Exporting U.S. Criminal Justice

Abstract

This Article explores how and why, in the Cold War’s wake, the U.S. government began to export U.S.-style criminal law and procedure models to developing and politically transitioning states. U.S. criminal law and development consultants now work in countries across the globe. This Article reveals how U.S. initiatives have shaped state and non-state actors’ responses to a range of global challenges, even as this approach suffers from a deep democratic deficit. Further, this Article argues that U.S. programs perpetuate U.S.-style legal institutional idolatry (which is often tied to systemic dysfunction both in the United States and abroad), and in so doing impoverish our collective capacity to imagine more effective and humane alternatives. For example, while U.S. consultants have promoted adversarial criminal procedure reforms (jury trials, transformed roles for judges and lawyers), along with the criminalization of intellectual property infringement in El Salvador, Guatemala, and Honduras, interpersonal violence has become ever more prevalent and the transformed procedures have failed to operate as intended, requiring, as in the U.S. context, extensive reliance on plea-bargaining and exacerbating system backlogs. The Article concludes by considering what criminal rule of law alternatives might entail, including ongoing alternative development initiatives spearheaded by the United Nations, which subsidize alternative livelihoods for persons engaged in criminalized conduct until the licit alternatives become self-sustaining.

Keywords: legal transplants, global governance, crime-governance, U.S. criminal justice, comparative law, criminal law and procedure, rule of law promotion