What is Penal Minimalism?

Abstract

This article provides an account of penal minimalism. It argues that penal minimalism presents four core features. First, criminal law and the criminal legal system have a role to play in addressing culpable wrongful harm and other culpable wrongs. Second, minimalism embraces human rights and liberal criminal law and criminal procedure rights and principles. Third, minimalism requires that every person that is involved in or affected by the commission of culpable wrongful harm or culpable wrongs is treated as a fellow human being whose interests and well-being must be considered in deciding whether and how the criminal legal system should be used. Fourth, minimalism embraces the last resort principle (or variations of it), which requires that criminal law and the criminal legal system should only be used as a last resort when no other social responses or public measures would suffice to adequately advance a legitimate goal, such as addressing harmful behavior.

The article also makes clear that these four features do not exhaust minimalist accounts and discussions. Minimalist accounts can embrace a range of theories of punishment, policing, investigation, prosecution, adjudication, sentencing, and post-sentencing—though many theories about these issues are incompatible with minimalism. Minimalist accounts can also include other principles besides the four core features this article identifies, such as what this article calls the bidirectional accountability principle. Minimalism can be combined with bureaucratic, communitarian, democratic, liberal, non-extreme versions of penal abolitionist, racial justice, reconstructivist, republican, and other accounts of criminal punishment, criminal law, and the criminal legal system. Minimalism can also be combined with various theories of the state and of justice. In this regard, there is not a single penal minimalism. Rather, there are penal minimalisms. And each and all of them have insights to contribute to discussions about how to make and strive for a fair penal system and a just society in the United States and beyond.

Keywords: minimalism, minimal criminal law, penal minimalism, criminal justice minimalism, criminal law minimalism

JEL Classification: K14, K40, K41, K42