Redistributing Justice

Abstract

This Article surfaces an obstacle to decarceration hiding in plain sight: progressives’ continued support for the carceral system. Despite increasingly prevalent critiques of criminal law from progressives, there hardly is a consensus on the left in opposition to the carceral state. Many left-leaning academics and activists who may critique the criminal system writ large remain enthusiastic about criminal law in certain areas—often areas where defendants are imagined as powerful and victims as particularly vulnerable.

In this Article, we offer a novel theory for what animates the seemingly conflicted attitude among progressives toward criminal punishment—the hope that the criminal system can be used to redistribute power and privilege. We examine this redistributive theory of punishment via a series of case studies: police violence, economic crimes, hate crimes, and crimes of gender subordination. It is tempting to view these cases as one-off exceptions to a general opposition to criminal punishment. Instead, we argue that they reflect a vision of criminal law as a tool of redistribution—a vehicle for redistributing power from privileged defendants to marginalized victims.

Ultimately, we critique this redistributive model of criminal law. We argue that the criminal system can’t redistribute in the egalitarian ways that some commentators imagine. Even if criminal law somehow could advance some of the redistributive ends that proponents suggest, though, our criminal system would remain objectionable. The oppressive and inhumane aspects of the carceral state still would be oppressive and inhumane even if the identity of the defendants or the politics associated with the institutions shifted.

Keywords: criminal law, criminal procedure, criminal justice, policing, criminal justice reform, abolition, legal theory, theories of punishment, hate crimes, economic crime, wage theft, police misconduct, police violence, gender-based violence, race and crime, progressivism

JEL Classification: K14, K42, P16, I30