What is and is Not Pathological in Criminal Law

Abstract

This article responds to William J. Stuntz’s 2001 article, The Pathological Politics of Criminal Law. Stuntz describes the shift of power over sentencing from judges to prosecutors as “pathological.” I argue that the shift is part of a more general shift in governmental powers toward the executive branch, and that the shift serves the legitimate function of making criminal law more responsive to legitimate expectations of the public. Legal judgments about crimes and criminals must match the public’s moral judgments, and prosecutorial discretion serves this decidedly non-pathological function.