De-Naturalizing Criminal Law: Of Public Perceptions and Procedural Protections
Harvard Law School
June 11, 2013
Albany Law Review, Vol. 76, No. 3, p. 1777 (2012/13)
In this essay, I examine and challenge the rhetorical trope of the guilty going free by emphasizing the institutional and political intricacies that comprise the criminal justice system and necessarily under-gird a determination of “guilt”. My goal, at its essence, is to de-naturalize the criminal law and discussions of the criminal justice system in the context of this symposium. I aim to emphasize that a guilty verdict is the result of a series of (politically-inflected) decisions about how to draft criminal statutes, how to structure a trial, and how to select a jury. De-naturalizing criminal law is, of course, a massive project and is in many ways at the core of much work being done by criminologists and others approaching criminal law from interdisciplinary perspectives, not to mention those generally concerned with the lessons of American legal realism and later post-realist critical methodologies. Ultimately, in this essay, I argue that our expanding police state and culture of criminalization are rooted in a misguided view of the criminal law — a view that ignores the political economy and institutional dynamics of the criminal justice system and instead imagines a space of moral clarity and emotional vindication where guilt and innocence exist independently of legislative compromise and where criminality exists independent of state, politics, or law.
Keywords: criminal law, guilt, innocence, victims' rights, overcriminalization, law and order, cultural discourse
JEL Classification: K14, K42, P16
Date posted: May 30, 2013 ; Last revised: August 29, 2013