Three principles of democratic criminal justice

Joshua Seth Kleinfeld*

*Corresponding author for this work

    Research output: Contribution to journalArticlepeer-review

    5 Scopus citations

    Abstract

    This Essay links criminal theory to democratic political theory, arguing that the view of criminal law and procedure known as “reconstructivism” shares a common root with certain culturally oriented forms of democratic theory. The common root is the valorization of a community’s ethical life and the belief that law and government should reflect the ethical life of the community living under that law and government. This Essay then specifies three principles that are entailed by the union of democracy and reconstructivism and that should therefore characterize a democracy’s approach to criminal justice: the “moral culture principle of criminalization,” the “principle of prosocial punishment,” and the “We the People principle of criminal procedure.” As the American criminal system routinely violates all three principles, this Essay closes by suggesting that the present crisis of American criminal justice stems in substantial part from criminal law and procedure’s bureaucratic and instrumental, rather than democratic and reconstructive, path of development. The three principles point to a better alternative and suggest a direction for criminal justice reform.

    Original languageEnglish (US)
    Pages (from-to)1455-1490
    Number of pages36
    JournalNorthwestern University law review
    Volume111
    Issue number6
    StatePublished - Jan 1 2017

    ASJC Scopus subject areas

    • Law

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