De-naturalizing criminal law: of public perceptions and procedural protections.

Author:Levin, Benjamin

Innocence, it turns out, is a complex concept. Yet the Innocence Movement has drawn power from the simplicity of the wrong-person story of innocence, as told most effectively by the DNA cases. The purity of that story continues to have power, but that story alone cannot sustain the Innocence Movement. It is too narrow. It fails to accommodate the vast majority of innocent people in our justice system. It fails to embrace innocence in its full complexity.... [I]n the end, for virtually all purposes, innocence must be understood under the objective rules that have long governed the criminal justice system.... Without proof of guilt determined by a court, the presumption of innocence defines innocence. (1)


    "The American people are tired of watching hoodlums walk," declared President George H.W. Bush, in a radio address before the 1992 presidential election. (2) The people are disgusted, he claimed, with "seeing criminals mock our justice system with endless technicalities." (3) The message of a nation enraged by excessive leniency and sharply aware of the threat posed by criminal elements was compelling for many listeners and voters. Not only had this theme been forged over the course of a decades-long war on crime that had progressively ratcheted up the rhetorical ferocity of attacks on criminality as a major foe of modern society, (4) but it had also been a primary component of President Bush's successful campaign three years earlier. (5)

    In the months leading up to the 1988 presidential election, then Vice President Bush, his strategists, and supporters focused on the crime issue, eventually using it to overpower the Democratic challenger, Governor Michael Dukakis. (6) While he was governor of Massachusetts, Dukakis had defended the practice of furloughing inmates--even those convicted of violent felonies. (7) During one of these furloughs, Willie Horton, a convicted murderer broke into the suburban home of a young couple, attacked the man, and raped the woman. (8) Republican strategists, the Bush campaign team, and Dukakis's opponents hammered the candidate on the Horton story, branding him as "soft on crime" and presenting the election's choice as being between law and order on the one hand and outrageous lenience on the other. (9) Perhaps most notably, this distinction was highlighted in a television advertisement that presented the two candidates' contrasting views on crime, emphasizing Bush's support for the death penalty as a counterpoint to Dukakis's support of "weekend passes" for criminals like Horton, and featured an image of Horton, glaring, bearded, and disheveled. (10)

    Bush won the election convincingly, (11) and the public humiliation of Dukakis helped to solidify--at least according to conventional wisdom--the unviability of running a national campaign that was not "tough on crime." The years that followed saw a shift, with Democratic presidential candidates moving away from skeptical attitudes towards police and policing; for example, Bill Clinton and Barack Obama emphasized their support for the death penalty while shying away from the sort of rehabilitationist model that had defined post-1960s liberalism. (12) Indeed, by the time the 2012 election rolled around, crime had ceased to be a major issue--not necessarily because the streets of U.S. cities were safer, but because both major political parties had at least ostensibly achieved a consensus on the importance of criminal law enforcement and harsh criminal punishment. (13)

    This is not an essay about Willie Horton or the 1988 presidential election. The story of the rise of "law and order" politics in the latter half of the twentieth century is one that has been told compellingly by historians, criminologists, political scientists, and legal scholars. (14) The transition from the socio-political climate in which Barry Goldwater's call to arms against urban criminality and "soft-on-crime" policies (15) to the contemporary one, in which few major-party politicians speak out against mass incarceration or injustices in the criminal justice system, (16) however, serves as a fitting point of departure.

    In the decades following the highly-publicized crime waves of the late 1960s, the politics of law and order have taken on a critical role in American social, cultural, and legal discourse. (17) Particularly in the wake of the 1988 presidential election, U.S. criminal policies have grown progressively stricter, embracing a culture of mass incarceration and increasing police powers. (18) Key to these developments, I argue, is the same concern that animates this issue--the fear that the guilty will go free, that the procedural protections implemented by the Warren Court, or the socio-legal preoccupation with rehabilitation or root causes of crime will hamstring prosecutions, preventing justice from being meted out and ultimately jeopardizing public safety.

    In this essay, I examine this fundamental concern and challenge the rhetorical trope of the guilty going free by emphasizing the institutional and political intricacies that comprise the criminal justice system and necessarily undergird a determination of "guilt." My goal, at its essence, is to de-naturalize the criminal law and discussions of the criminal justice system in the context of this book. I aim to emphasize that a guilty verdict is the result of a series of (politically-inflected) decisions about how to draft criminal statutes, how to structure a trial, and how to select a jury. De-naturalizing criminal law is, of course, a massive project and is in many ways at the core of much work being done by criminologists and others approaching criminal law from interdisciplinary perspectives, (19) not to mention those generally concerned with the lessons of American legal realism and later post-realist critical methodologies. (20)

    Ultimately, I argue that our expanding police state and culture of criminalization are rooted in a misguided view of the criminal law--a view that ignores the political economy and institutional dynamics of the criminal justice system and instead imagines a space of moral clarity and emotional vindication where guilt and innocence exist independently of legislative compromise and where criminality exists independent of state, politics, or law.

    This essay will proceed in three Parts. The first Part will outline what I mean by "naturalizing" criminal law and how it may serve as a useful frame through which to consider this book's underlying theme. Situating this project within a broader criminological discourse as well as a broader critical treatment of the "natural," this Part will examine how the image of a naturalized criminal justice system pervades mass culture, how it underpins legal rules and law-making, and how it has come to shape our basic legal institutions.

    The second Part will address the potential costs of the naturalizing move. Exploring this phenomenon is not purely a rhetorical exercise; the stakes of an inquiry into the social preoccupation with the "natural" are all too real. This Part will examine how this method of framing questions of criminal policy and institutional design have helped to create not only an unsustainable, carceral state, but also an increasingly schizophrenic relationship to law and legality, to the police, and to the state.

    Finally, this article will conclude by suggesting the potential benefits that might be achieved by rejecting the reductive and dangerous yet (often) intuitive or appealing view of the "naturalized" criminal law. In closing in this way, I hope to offer at least a glimpse of the potential normative or prescriptive payoffs of a de-naturalizing project. I also offer a warning that is the necessary refrain of this descriptive work in the context of this book: in addressing real and pressing concerns about public safety, we must not lose sight of the unintended consequences of would-be reforms and of the consequences of uncritically embracing criminal law as a tool of social structuring. We must be willing to address honestly the assumptions that underlie societal decisions about what to criminalize and whom to incarcerate.


    If the project at hand is to de-naturalize criminal law in order to challenge the premise of a reform movement to stop the guilty from going free, the first question we must ask is: how is criminal law currently naturalized?

    1. Imagining the Criminal Justice System

      In popular discourse, as well as in the realm of legal argument, criminal law is commonly tied to the language of morality. (21) That is, the imagined space of criminal law is one of sharply-delineated moral binaries. Where other doctrinal areas may be more easily suited to economic analysis or to other normative metrics, the discursive realm of criminal law is one that draws stark contrasts between good guys and bad guys, cops and robbers, the forces of civilized society and those threatening to undermine its very existence. (22)

      Indeed, in the United States, the "State," the "People," or even the "United States" stand opposite a criminal defendant. Former federal prosecutor turned law professor and critic of the criminal justice system, Paul Butler, describes his own experience at the defendant's table:

      it's how all federal criminal cases are styled: the U.S. against the defendant. It's just that I never before had a reason to ponder how bizarre it sounds--you know, the most powerful nation in the history of the world against you. I think I could handle Rhode Island or North Dakota, maybe even the District of Columbia versus Paul, but the frigging United States of America! I felt a little overpowered. (23) The criminal prosecution represents--or at least purports to represent--the fulfillment of collective self-defense. (24) Through its framing, the criminal prosecution embodies public hostility, condemnation, and fear by performing the confrontation of polity versus...

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