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Publication Date

10-10-2021

Abstract

American criminal justice is in crisis, and most scholars agree why: unduly severe laws, mass incarceration, and disproportionate effects on minority groups. But they don’t agree on a solution. One group of scholars—known as the “democratizers”—thinks the answer is to make the criminal justice system more democratic. According to democratizers, layperson participation and local democratic control will impart sensibility into criminal justice reform. In short, a transfer of power away from distant lawmakers and toward local communities, which would craft their own criminal codes and elect their own prosecutors. This argument assumes that more local means more democratic—but what if democratization actually threatens democracy?

Criminal law could be made at the statewide level, the neighborhood level, or somewhere in between. And that distinction matters. This Note analyzes democratization through the lens of democratic theory, finding that the degree to which the criminal lawmaking process is democratic depends heavily on the unit of government at which it operates. In other words, the critical variable is how local we go. Each level of government creates tradeoffs between democratic principles. If criminal law is too localized, it unfairly excludes voters from the political process and encourages localities to compete in protectionist arms races. On the other hand, if criminal law sweeps too broadly, then preferences vary too much among constituents for the law to adequately represent any one community’s views. This Note argues that “intermediate-level” institutions—counties or regions—are the most democratically sound institutions to make and enforce criminal law. These institutions, although imperfect, are best able to maximize representation while still protecting against the destructive incentives of microlocalism. Democratization can be more democratic, but only when it is calibrated at the right level.

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