How Can Democracy and Criminal Justice Reform Coexist?

Ending mass incarceration in America isn’t just a matter of reforming a few aspects of the courts, prisons, and police. It requires understanding and changing the institutions of a country that currently imprisons about 2.2 million people. Elected officials, bureaucrats, media outlets, and the broader public have—in their chaotic, disunified way—all played their parts in producing our penal system. Criminal justice reform must be framed within these systems of power and authority—rather than as an isolated policy area. Such a framing reveals reform efforts as involving not just a puzzle about crime, but about democracy. The question is whether our country’s democratic politics, after creating a sprawling patchwork of different systems of policing and incarceration, can reform those systems while fundamentally reinventing how America understands and employs punishment.

A toxic mixture of inadequate institutions and pathological ideologies about race, class, and crime is what generates and sustains mass incarceration. In moving the criminal justice system away from the status quo, policymakers may face tough decisions about whether to limit public control for the sake of better policies, or preserve it while allowing unjust policies to persist.

Many academic disciplines are now examining how American politics creates obstacles to a just, democratically legitimate system of punishment. Some, like New York University law professor Rachel Barkow, focus on finding ways to put policy experts in charge of reform; she cautions against approaches that emphasize public control. In addition to proposing a host of reforms, Barkow catalogs the ongoing failures of American criminal justice policy, suggesting that many of its flaws originate in politicization that empowers biased, nonexpert influences on the system. And that system, reveals sociologist Heather Schoenfeld, has often developed in extremely haphazard ways. She argues that, at crucial points, the growth of Florida’s enormous prison system was fueled by bipartisan collaboration, alongside factors like racism and conservative political ideology.

Both Barkow and Schoenfeld raise important questions about how punishment could be made compatible with justice and political equality for all. And yet, neither fully addresses the question of what the purpose of punishment in a democracy should be.

By applying a philosophical framework grounded in democratic equality to criminal justice reform, legal theorist and philosopher Vincent Chiao begins to fill in this gap in the conversation about mass incarceration. His theory helps justify deprioritizing punitive policies and instead placing greater emphasis on education, regulation, and restorative justice initiatives. These options support individuals’ ability to live as equals much more effectively than caging millions of people.

Foregrounding democratic equality also brings out the need for deliberation that reshapes the way the American public thinks about the purposes of criminal law and its enforcement. This sort of approach underscores the importance of retaining strong commitments to expanding democratic equality even while ending mass incarceration.

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Barkow’s crisply written, thorough book, Prisoners of Politics, examines what she sees as the pathological relationship between American politics and American criminal law. The book’s ethos is summed up by her suggestion that “One of the reasons we have so many ill-functioning criminal justice policies is lack of attention to detail.” Such intellectual carelessness, coupled with various institutional failures, poses a serious obstacle to a better system.

Along with being ignorant, Barkow argues, the American public is irrational, emotion-driven, and punitive. Even when good penal policies get going, a single bad event can derail reform by triggering a popular outcry. Politicians recognize this dynamic and cynically take advantage of it.¹ Such “penal populism,” where politicians utilize public support for harsh, retributive criminal justice policies in order to get elected, is a persistent difficulty for reformers. The public only focuses on the most shocking stories and ignores the data and evidence about which policies effectively reduce crime.

Compounding this feedback loop between voters and politicians are the often-elected prosecutors who wield tremendous power in the criminal justice system. Their authority has expanded over the last half-century or so. Shifts in sentencing legislation and policy, in conjunction with Supreme Court decisions allowing plea bargaining to supplant jury trials, mean that legislatures and judges have ceded a great deal of control to prosecutors. Prosecutors’ offices, Barkow argues, have become unchecked administrative agencies for penal policymaking at the local level.

We have a goal—keeping people safe—yet we cling to an expensive slate of policies that manifestly make that goal harder to achieve.

She compares the situation to regulatory capture, where an industry undermines the agencies tasked with regulating it. In the same way that banks hold problematic sway over the SEC, for example, prosecutors have the power to resist attempts by legislators, executive agencies, or other political forces to hem them in.

If the system weren’t so dysfunctional, prosecutorial power would raise fewer concerns. Barkow paints a damning picture, though, laying out the voluminous evidence that mass incarceration is cruel and self-defeating. Prosecutors push for long prison sentences, pretrial detention, and denial of parole, which not only fail to deter crime, but can actually increase it by making reentry more difficult and creating hardships for incarcerated individuals’ families and communities.

Looking at the costs and benefits of this punitive approach, Barkow convincingly shows that it has not made the American public safer. The word she keeps coming back to is “irrational.” We have a goal—keeping people safe—yet we cling to an expensive slate of policies that manifestly make that goal harder to achieve. It is as if we’ve decided it’s better to overpunish millions than to let one person go underpunished.²

Given the problems Barkow finds with the public, politicians, and prosecutors, she largely emphasizes administrative and judicial fixes to the criminal justice system. Unlike prosecutors who work in particular localities and make case-by-case decisions, expert-led institutions are better able to coordinate across regions and to draw on data in criminal justice policymaking. Barkow, who served on the US Sentencing Commission, spells out sentencing commissions’ promise, as well as their pitfalls. These administrative bodies, which set out what criminal sentence should correspond to each crime, exist at the federal level, as well as in many states. If they are stocked with diverse groups of experts, incentivized to focus on data about cost-effectiveness, and insulated from political pressure, she thinks they can have an impact. Barkow’s general idea—also reflected in her support for more judicial interventions to improve criminal procedures—is to put knowledgeable people in charge of public safety while building institutional structures that enable them to deliberate about and influence policy.

Lurking behind her arguments and proposals is a difficult issue that she only sporadically addresses: the goal of punishment. She acknowledges that her argument is strongest if we accept that criminal law should focus on public safety, rather than retribution. If we want a safer society or more effective rehabilitation of offenders, looking to experts for assistance in achieving our intentions makes sense. If our goal is to give people the punishment they deserve, then experts’ role becomes less clear.

The rationalistic, expertise-centered approach favored by Barkow is explicitly an anti-politics, geared towards neutral, deliberative adjudication by knowers. While not quite imagining a world free of disagreement, Prisoners of Politics promotes an enlightenment ideal where knowledge tames power. In particular, its arguments express the hope that political authority be guided by instrumentally rational, data-backed judgments—rigorous weighing of costs and benefits, rather than wild, ignorant mob rule. Useful as aspects of this ideal might be, it can, if unchecked, lapse into condescension or ignore important values. While Barkow is sensitive to these issues, there is only so far a technocratically inclined approach can go.

Determining punishment’s role in a democratic society depends on more than just social scientific evidence; it implicates matters of cultural narrative, value conflict, and political commitment. Part of the work of a democratic public sphere is to hash these matters out. Experts certainly have an important role to play in pursuing social goals, but the citizenry has to determine what those social goals ought to be.

So much of what Barkow proposes depends on a receptive democratic public that will support and preserve the kinds of institutions she aims for. Even at a moment of potential criminal justice reform, it isn’t clear the public is open to such changes or—if Americans wanted them—that our overall political system is capable of delivering the reforms Barkow defends.

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While Barkow provides careful legal and empirical analysis of a general American problem, Schoenfeld’s Building the Prison State offers a rich sociological and historical picture of the state of Florida’s inability to construct a healthy politics of criminal justice. Attending to one state is illuminating, given that penal policy largely takes shape at the state and local level, due to the disaggregation of authority in the criminal justice system. Schoenfeld’s book traces a messy, highly contingent history where decisions often have unintended consequences that constrain the future pathways political actors can take.

Schoenfeld considers the political machinations that have driven mass incarceration in Florida, emphasizing the ways creating greater capacity to punish has reshaped decision-making about penal policy. While mass incarceration is often blamed on right-wing politicians, racism, private prisons, and punitive ideologies, Schoenfeld lays out a history where building up “carceral capacity” is a decisive factor, too. That is, forces like race and conservative politics are very much present in Florida’s case, but decisions to increase the state’s ability to lock people up crucially shaped the state’s path. The transition from Jim Crow to a modernized, wealthier, more expansive state did not secure racial equality; instead, it meant a bigger and more professionalized system of punishment.

Determining punishment’s role in a democratic society depends on more than just social scientific evidence; it implicates matters of cultural narrative, value conflict, and political commitment.

Schoenfeld explains how civil rights advocates’ attempts to use the courts to reform underfunded, overcrowded prisons inadvertently led to more prisons being built, rather than to lower rates of incarceration. When lawsuits over unconstitutional prison conditions seemed to present a choice between releasing prisoners or increasing the number of prison beds, policymakers repeatedly made the latter choice, often while still maintaining inadequate facilities. Mass incarceration in Florida didn’t originate with a philosophical shift to retribution or a simple shift in political power. Greater carceral capacity helped put punishment into the realm of state politics, which created new political incentives, ideologies, and interest groups that supported mass incarceration.

In primarily considering mass incarceration as a political phenomenon, fundamentally tied to the form state institutions take, Schoenfeld’s discussion nicely dovetails with Barkow’s. While Barkow’s response to that feature of the problem is to defend increasing the role of experts in order to avoid popular politics, Schoenfeld calls for a new social ethos, including greater social equality and democratic participation.

This call to reconsider our values—with an eye toward transforming the social, economic, and political institutions that produce mass incarceration—demands new, empirically informed philosophies of punishment. Unfortunately, much traditional philosophizing about punishment has little to say about political institutions, or the facts on the ground, more generally. Instead, traditional approaches leave behind the reality of mass incarceration to focus on abstract, pre-institutional issues like responsibility, blame, and desert.

Such theories adopt a more individualistic focus, trying to decide whether punishment should promote retribution, crime deterrence, or rehabilitation. This misguided approach offers little assistance in constructing the ethos Schoenfeld proposes: a new conception of punishment that addresses democracy, race, and social inequality.

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Chiao’s Criminal Law in the Age of the Administrative State moves beyond traditional approaches, arguing instead that penal policy needs to be guided by the ideal of democratic equality. His theory both provides useful philosophical foundations for addressing many of the issues Schoenfeld raises and offers potential challenges to Barkow’s political approach.

Criminal law’s function, argues Chiao, is to sustain social cooperation through institutions that protect individuals’ abilities “to live as a peer among peers.” The idea of such “anti-deference”—an idea he draws from contemporary political philosophy—rejects any social status relations that involve dominating others, including through systems of punishment. This ideal, explains Chiao, calls for people to have equal influence over the criminal law and its enforcement. It is necessary, he argues, that “each person has real, substantively equal opportunity for weighing in on the [criminal] laws and policies that affect him or her.” Unaccountable authorities—even expert ones—cannot take decisions out of everyone else’s hands. And even when the law’s content is good, Chiao might argue to Barkow, it will be a dominating imposition if the public has insufficient say over it.

Chiao’s approach entails a much more restricted use of criminal punishment than is characteristic of the current US system, but it also hints at potential issues with the apolitical, expert approach that Barkow takes. The massive scale of incarceration in America conflicts with Chiao’s ideal of anti-deference by imposing costs that unnecessarily undermine people’s ability to live as peers. As noted above, Chiao believes that education and regulation, among other things, are in many cases better ways of preventing crime and promoting justice.

While Barkow promotes similar reforms, she wants to achieve them through expert-driven administration. Chiao’s promotion of democratic equality does not, by any means, preclude a role for experts in administering criminal law, but it does insist on public accountability in ways that get less emphasis in Barkow’s work. Without public accountability and equal influence—realized in some way by our institutions—those who follow the law will be forced to defer to those who make it. Even if policymakers are more knowledgeable and just than the general public, Chiao’s arguments lead us to consider whether that justifies sacrificing equal public influence.

Navigating between populism and technocratic governance is a challenge for every complex policy area in a democracy. Even if populism in criminal justice contexts can be extremely harmful, there are good reasons to worry about giving up democratic control over these areas of public life to experts. Such a technocratic move would merely be an attempt to maneuver around—rather than permanently transform—the popular ideological underpinnings of American penal policy.

 

This article was commissioned by Ben Platt.