Three Principles of Democratic Criminal Justice

IntroductionThe object of this Essay is to link a theory of criminal law and procedure I've developed in prior work, "reconstructivism,"1 to the theory and practice of democracy. on the theoretical side, the claim is this: a decent community's ethical life-by which I mean the moral culture disclosed by a community's public deliberations or implicit in its social practices and institutions, provided those deliberations, practices, and institutions reflect or were formed in reasonably non-oppressive conditions-should command a measure of political authority in democratic societies because part of what collective self-determination means is that a political community can see its norms reflected in its laws. Ethical life should likewise command authority on a reconstructive approach to criminal law and procedure because reconstructivism holds that criminal justice's distinctive social function is to protect and repair the social norms on which community solidarity depends in the wake of acts that attack those norms. Reconstructivism as a theory of criminal justice and democracy as a theory of government are thus linked by what they mutually treasure-by the fact that both valorize a decent community's ability to build a distinctive form of life infused with values that are the community's own.On the practical side, this Essay specifies three principles that follow from the democracy/reconstructivism union and should therefore characterize a democratic society's approach to criminal justice. Briefly stated, the "moral culture principle of criminalization" holds that, barring special conditions, only those acts that violate and attack the values on which social life is based, and can therefore truly be characterized as "antisocial," should be legally designated crimes. The "principle of prosocial punishment" holds that punishment's first purpose and justification is to provide a prosocial response to an antisocial act, restitching the social fabric that crime tears (assuming "crime" is defined according to the moral culture principle). Finally, the "We the People principle of criminal procedure" holds that the administration and enforcement of criminal law should be so structured that lay citizens take part in it and see their sense of justice at work in it, rather than left wholly to officials and experts acting on the instrumental reasons characteristic of bureaucratic control.What is most striking about these three principles in light of American criminal justice today is how routinely they are violated: we criminalize for instrumental reasons unconnected to or inconsistent with our culture, we punish in ways that are nearly as antisocial as crime itself, and we administer and enforce criminal law through procedures that crowd lay voices out of the system and undermine social solidarity rather than building it. We have, in short, drifted away from what might be termed democratic-reconstructive forms of order in criminal justice and toward bureaucratic-instrumental ones, and this Essay's final suggestion is that much of our present dysfunction traces back to this drift. So the three principles have something to teach us about the way out of the crisis. They do not by any means address all of the complex questions of law, practice, and policy the crisis presents, but I submit that these three principles illuminate the appropriate direction of change. They show us where the gap is between criminal law as it is and criminal law as it should be.As this is an exceedingly short essay for goals so ambitious, a caveat is in order. The arguments here are designed to show how a set of ideas developed in prior work and planned future work hang together, not to explain and defend those ideas in full. Each of the pieces- reconstructivism, democracy, the three principles, the diagnosis of the present, the prescription for the future-is complicated and subject to reasonable objections that merit careful responses, which this Essay is not meant to provide. …