Is Criminal Justice Politically Feasible?

Abstract

On the assumption that criminal justice systems fail to live up to any of the established rationales for their existence, the paper asks after why this might be so and what, if anything, might reduce their resistance to the effects of systematic, reasoned discussion. The answer is developed in three sections. In the first, I describe a dynamic in policy-making that was first identified by nineteenth century studies of the rise of the administrative state - I call it the outrage dynamic - and I show how this force also operates in the case of crime. In the second, I look at the upshot of this dynamic for criminal sentencing policy, arguing that it makes it difficult for democratic politicians to enact or maintain any policies, no matter how well argued or successful, that routinely fall short of what by cultural standards are the maximal, acceptable sanctions. Finally, in the third section I identify one institutional arrangement - putting decisions at arm's length from elected politicians - that might make it politically feasible to shape the penal system by reasoned debate.