Some Doubts About "Democratizing" Criminal Justice

• Published in: The University of Chicago law review Vol. 87; no. 3; pp. 711 - 814
• Main Author: Rappaport, John
• Format: Journal Article
• Language: English
• Published: Chicago University of Chicago Law Review 01.05.2020; University of Chicago, acting on behalf of the University of Chicago Law Review
• Subjects: Criminal justice; Criminal justice, Administration of; Decision making; Democracy; Democratization; Evidence, Expert; Experts; Imprisonment; Juries; Liability (Law); Machinery; Neighborhoods; Police; Social aspects; U.S. states; Wealth; UNITED STATES
• ISSN: 0041-9494; 1939-859X

The American criminal justice system's ills are by now so familiar as scarcely to bear repeating: unprecedented levels of incarceration, doled out disproportionately across racial groups, and police that seem to antagonize and hurt the now-distrustful communities they are tasked to serve and protect. Systemic social ailments like these seldom permit straightforward diagnoses, let alone simple cures. In this case, however, a large, diverse, and influential group of experts—the legal academy's "democratizers"—all identify the same disease: the retreat of local democratic control in favor of a bureaucratic "machinery" disconnected from public values and the people themselves. Neighborhood juries, for example, internalize the costs of punishing their own; neighborhood police, "of" and answerable to the community, think twice before drawing their weapons or stopping a local boy on a hunch. The experts and detached professionals who populate our dominant bureaucratic institutions, in contrast, are motivated by different, less salubrious, incentives. Across the gamut of criminal justice decision-making, the democratizers maintain, the influence of the local laity is a moderating, equalizing, and ultimately legitimating one. A generous dose of participatory democracy won't solve all our problems, but it's our best shot to get the criminal justice system back on its feet. This Article's warning is plain: don't take the medicine. "Democratization" wields undeniable rhetorical appeal but will not really fix what ails us—and may just make it worse. The democratization movement, this Article argues, rests on conceptually problematic and empirically dubious premises about the makeup, preferences, and independence of local "communities." It relies on the proudly counterintuitive claim that laypeople are largely lenient and egalitarian, contrary to a wealth of social scientific evidence. And ultimately, democratization's dual commitments are on a collision course. The democratizers simultaneously devote themselves to particular ends—amelioration of the biased and outsized carceral state—and to particular means—participatory democracy. What happens if, as this Article predicts, the means do not produce the ends? Which commitment prevails? Worse yet, venerating lay opinion distracts from alternative visions of "democratic" criminal justice that more credibly tackle the critical question of how best to blend public accountability with evidence and expertise.