THE CONSENSUS MYTH IN CRIMINAL JUSTICE REFORM.

• Author: Levin, Benjamin

It has become popular to identify a "consensus" on criminal justice reform, but how deep is that consensus, actually? This Article argues that the purported consensus is much more limited than it initially appears. Despite shared reformist vocabulary, the consensus rests on distinct critiques that identify different flaws and justify distinct policy solutions. The underlying disagreements transcend traditional left/right political divides and speak to deeper disputes about the state and the role of criminal law in society.

The Article maps two prevailing, but fundamentally distinct, critiques of criminal law: (1) the quantitative approach (what I call the "over" frame); and (2) the qualitative approach (what I call the "mass" frame). The "over" frame grows from a belief that criminal law has an important and legitimate function, but that the law's operations have exceeded that function. This critique assumes that there are optimal rates of incarceration and criminalization, but the current criminal system is suboptimal in that it has criminalized too much and incarcerated too many. In contrast, the "mass" frame focuses on criminal law as a sociocultural phenomenon. This reformist frame indicates that the issue is not a mere miscalculation; rather, reforms should address how the system marginalizes populations and exacerbates both power imbalances and distributional inequities.

To show how these frames differ, this Article applies the "over" and the "mass" critique, in turn, to the maligned phenomena of mass incarceration and overcriminalization. The existing literature on mass incarceration and overcriminalization displays an elision between these two frames. Some scholars and reformers have adopted one frame exclusively, while others use the two interchangeably. No matter how much scholars and critics bemoan the troubles of mass incarceration and overcriminalization, it is hard to believe that they can achieve meaningful reform if they are talking about fundamentally different problems.

While many scholars may adopt an "over" frame in an effort to attract a broader range of support or appeal to politicians, "over" policy proposals do not necessarily reach deeper "mass" concerns. Ultimately, this Article argues that a pragmatic turn to the "over" frame may have significant costs in legitimating deeper structural flaws and failing to address distributional issues of race, class, and power at the heart of the "mass" critique.

TABLE OF CONTENTS INTRODUCTION I. MAPPING CRIMINAL JUSTICE CRITIQUES II. INCARCERATION A. Mass Incarceration B. Over Incarceration III. CRIMINALIZATION A. Overcriminalization B. Mass Criminalization IV. THE STAKES OF THE DISTINCTION A. Over Limitations B. Mass Pragmatism CONCLUSION INTRODUCTION

We live in an era of mass incarceration. Since the early 1970s, the criminal justice system has expanded rapidly, disproportionately affecting poor people of color. (1) A growing chorus of criminal law scholars, judges, policy-makers, and activists increasingly agree that "too many Americans go to too many prisons for far too long." (2) We also live in an era of overcriminalization. During this same time period, state and federal criminal codes have expanded rapidly to the point where no one knows how many criminal laws actually are on the books. (3) Most adults have--knowingly or unknowingly--committed a jailable offense. (4)

But what are "mass incarceration" and "overcriminalization"? They undoubtedly are significant concepts in both policy and academic circles, not to mention in the popular imagination. Michelle Alexander's The New Jim Crow: Mass Incarceration in the Age of Colorblindness, (5) the critically acclaimed documentary 13th, (6) and a growing body of legal scholarship have popularized "mass incarceration" as a description of the current structure and operation of the criminal system. (7) Similarly, overcriminalization as a concept has gained traction. Congress has convened a task force on overcriminalization, (8) and the Heritage Foundation, the Association of Criminal Defense Attorneys, and other groups have produced extensive reports diagnosing overcriminalization as one of the primary pathologies afflicting the U.S. criminal system. (9) Legal scholars have organized numerous overcriminalization conferences, (10) and the phrase appears in law review articles written by academics of differing political and methodological commitments. (11)

Yet, despite their prevalence in scholarly and policy discussions, these two phenomena are ill-defined. In different debates they appear to have very different meanings. And it is not uncommon for a single article to contain a great deal of slippage in its treatment of what constitutes overcriminalization or mass incarceration. While there are a plethora of definitions and approaches, two stand out: (1) a quantitative approach focused on calibration (i.e., there may be an optimal rate of incarceration or criminalization, but the current rate is too high); and (2) a more qualitative or sociological approach (i.e., the phenomena reflect a flawed method of managing populations via criminal law, resulting in significant social costs reflected across axes of class, gender, sexuality, and race). This definitional inconsistency is not simply a matter of theoretical or semantic imprecision. As descriptive terms (i.e., "mass incarceration" and "overcriminalization") that carry significant normative weight, their definitions matter. Uncertainty as to the nature of the phenomena poses significant real-world problems--fixing either of these problems requires an accurate understanding of the problem itself, and definitional differences yield vastly different policy solutions.

This Article seeks to address the inconsistency by mapping the two prevalent critiques or critical tendencies: (I) the quantitative approach (what I will call the "over" frame); and (2) the qualitative approach (what I will call the "mass" frame). The over frame takes many forms but--at its core--is rooted in a belief that the criminal law has an important and legitimate function, but that it has exceeded that function. There is an optimal rate of incarceration and an optimal rate of criminalization, but the current criminal system is sub- (or, perhaps extra-) optimal in that it has criminalized too much and incarcerated too many. The mass frame, on the other hand, focuses on the criminal system as a sociocultural phenomenon. (12) The issue is not a miscalibration; (13) rather, it is that criminal law is doing ill by marginalizing populations and exacerbating troubling power dynamics and distributional inequities. (14) Every incarcerated person might have been guilty of the charged offense, and the critique would still hold.

The existing literature on mass incarceration and overcriminalization displays a troubling elision between these two frames. Some scholars and reformers have adopted one frame exclusively, while others use the two interchangeably. While it has become popular to identify the current moment as one of "bipartisan consensus" on criminal justice reform, (15) it is important to recognize how tenuous this consensus is and how much it relies upon different frames and different goals. (16) No matter how much scholars bemoan the troubles of mass incarceration and overcriminalization, it is hard to believe that meaningful reform can occur if they are talking about fundamentally different problems.

To be clear, my claim is not that these two frames or approaches are wholly distinct or incompatible. Indeed, the over approach might (and does) add specificity and substance to the mass approach--data puts meat on the bones of what might otherwise be a gestural skeleton. (17) Likewise, the mass approach might add theoretical backing to the over approach, helping to illustrate the effects of an error in calculation. (18) And many scholars, articles, and books may reflect sympathy or affinity for different tendencies when faced with different issues or different audiences.

But just because the two approaches might be complementary does not mean that they are consistent or congruent. Thinking in over terms means constructing policy solutions designed to reach optimal rates. In turn, reaching optimal rates requires a consensus on what an optimal rate is. Thinking in mass terms, on the other hand, invites a more radical or totalizing critique of the current system and its institutions. If criminal law inherently functions to marginalize or subjugate poor people of color, it is not clear that imprisoning fewer black men or increasing enforcement in affluent white neighborhoods, for example, would remedy deeper structural inequalities in society. Instead, the mass frame invites a deeper reckoning with questions of political economy to address the levers of power and the distribution of resources in society. Over solutions might help mass problems, but they need not. (19) And, importantly, the two critiques operate on different planes and invite solutions of vastly different magnitudes.

In setting up the typology, this Article proceeds in four Parts. First, Part I introduces the mass and over frames, situating them (and the typology itself) within the growing critical literature on the criminal system. Next, Part II describes scholarly critiques of the criminal system rooted in the language of mass incarceration. This Part presents a brief genealogy of the phrase "mass incarceration" before teasing out the critiques that fall into the mass and over frames. Part III employs a similar approach to overcriminalization. This Part addresses economistic language and approach, while also noting the ways in which moral philosophers and some theories-of-punishment scholars have adopted a similar discourse on optimal rates of punishment. The literature on overcriminalization (unsurprisingly) generally adopts the over frame, but I argue that some of the overcriminalization literature can (or...