Some Reflections on Conservative Politics and the Limits of the Criminal Sanction
Charleston Law Review, Vol. 4, 2010
32 Pages Posted: 11 Apr 2010
Date Written: April 9, 2010
This Article, written for the Charleston School of Law’s recent symposium on Crime & Punishment, briefly addresses the significance of popular forces and conservative political thought in an American criminal justice regime that has become too broad in its scope and sometimes unnecessarily harsh in its treatment of certain offenders. Although conservatives can plausibly embrace some judicially-enforceable limits on the criminal law, a conservative view of structural constitutional considerations would still constrain the judiciary’s authority to undermine popular decision-making as to criminal law and punishment. This Article cites the Supreme Court’s disparate approach to capital and non-capital proportionality issues under the Cruel and Unusual Punishments Clause as an example. Those same structural considerations that would credit popular forces in constitutional adjudication, however, necessarily require popular forces to act as the chief definers of the criminal sanction and enforcers of its limits outside the realm of judicial review. If conservative politics is to lead a more sensible popular approach to crime and punishment, it cannot do so with unhelpful “soft on crime/tough on crime” rhetoric or mass appeals to popular sentiment about the criminal justice issue of the day. Rather, it must do so through a conservatism grounded in constitutional balance: an appreciation for the tension between the need for order and the claims of liberty, avoiding the vice of impotence in the face of socially harmful conduct but robustly affirming limits to ensure that the government controls itself as well as the people. Conservatives can adhere to their impulse for preserving civil order and controlling the governed through formal institutions and arrangements, yet also rely upon those same forms to limit the government’s prosecutorial and penal reach. Such an approach may require conflict between the political branches of government. But such conflict is actually a constitutional virtue, and its absence has helped to create many of the current distortions in crime policy. This Article therefore suggests a popular (i.e., non-judge-made) and constitutionalist - but not a populist - approach to creating a more limited and responsible crime and punishment regime.
Keywords: criminal law, death penalty, constitutional law
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