Criminal (In)Justice and Democracy in America

12 Pages Posted: 5 Jun 2013

See all articles by Stephanos Bibas

Stephanos Bibas

University of Pennsylvania Law School

Date Written: 2013


This essay responds to Nicola Lacey’s review of my recent book The Machinery of Criminal Justice (Oxford Univ. Press 2012). Lacey entirely overlooks the book’s fundamental distinction between making criminal justice policy wholesale and adjudicating deserved punishment at the retail level, in individual cases, which is quite consistent with keeping but tempering rules. She also undervalues America’s deep commitments to federalism, localism, and democratic self-government and overlooks the related problem of agency costs in criminal justice. Her top-down approach colors her desire to pursue equality judicially, to the exclusion of the political branches. Finally, Lacey denigrates the legitimate roles of emotion and retribution in criminal justice. A consideration of the recent outcry over a gang-rape-murder in India highlights the shortcomings of her clinical, therapeutic, overly professionalized approach to criminal justice.

Keywords: criminal law and procedure, equity in punishment, sentencing guidelines, democracy, localism, equality, professionalization, agency costs, public opinion, lay participation in criminal justice, community policing and prosecution, Nicola Lacey

Suggested Citation

Bibas, Stephanos, Criminal (In)Justice and Democracy in America (2013). Harvard Law Review Forum, Vol. 122, p. 134, 2013, U of Penn Law School, Public Law Research Paper No. 13-15, Available at SSRN:

Stephanos Bibas (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
215-746-2297 (Phone)


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