TY - JOUR
T1 - Three principles of democratic criminal justice
AU - Kleinfeld, Joshua
N1 - Publisher Copyright:
© 2017 by Joshua Kleinfeld.
PY - 2017
Y1 - 2017
N2 - 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.
AB - 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.
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M3 - Article
AN - SCOPUS:85028448158
VL - 111
SP - 1455
EP - 1490
JO - Northwestern University Law Review
JF - Northwestern University Law Review
SN - 0029-3571
IS - 6
ER -