The Pathological Politics of Criminal Law

Abstract

It has long been the conventional wisdom that American criminal is too broad and too harsh, that it criminalizes too much and punishes too severely. It has also long been the conventional wisdom that these problems flow directly out of electoral politics. This article argues that, while the first piece of conventional wisdom is right, the second is wrong. Criminal law's breadth and severity flow not from electoral politics but from institutional politics, from the interacting incentives of prosecutors, legislators, and judges. Prosecutorial discretion gives legislators a strong incentive to broaden liability rules, which in turn give prosecutors more discretion. Courts are thereby cut out of the lawmaking process. The result is that criminal law, as it expands, does less and less work - the real boundaries of criminal liability are defined by enforcers, not by the law. And ironically, the doctrines that aim to ensure the rule of law reinforce that result. The article goes on to explore, sketchily, some solutions to this problem of institutional design. The most promising solutions involve a substantial increase in judicial power over criminal - more precisely, a substantial degree of constitutionalization of criminal law. As that hardly seems likely anytime in the foreseeable future, the problems that afflict American criminal are likely to get worse before they get better.