Criminal (In)Justice and Democracy in America

This essay responds to Nicola Lacey’s review of my recent book The Machinery of Criminal Justice (Oxford Univ. Press 2012). Lacey entirely overlooks the book’s fundamental distinction between making criminal justice policy wholesale and adjudicating deserved punishment at the retail level, in individual cases, which is quite consistent with keeping but tempering rules. She also undervalues America’s deep commitments to federalism, localism, and democratic self-government and overlooks the related problem of agency costs in criminal justice. Her top-down approach colors her desire to pursue equality judicially, to the exclusion of the political branches. Finally, Lacey denigrates the legitimate roles of emotion and retribution in criminal justice. A consideration of the recent outcry over a gang-rape-murder in India highlights the shortcomings of her clinical, therapeutic, overly professionalized approach to criminal justice

Pleas\u27 Progress

George Fisher\u27s new book, Plea Bargaining\u27s Triumph, is really three books in one. The first part is a careful, detailed explanation of how and why plea bargaining exploded in Middlesex County, Massachusetts in the nineteenth century. This part is the fruit of an impressive amount of original research in Massachusetts court records and newspaper archives. The second part of the book looks more broadly at other academic histories of plea bargaining in England, California, and New York. It explains how the forces that produced plea bargaining in Middlesex County likewise contributed to plea bargaining\u27s rise elsewhere. The final part applies the lessons of history to critique current criminal procedure. In particular, Fisher criticizes the U.S. Sentencing Guidelines for tilting the balance of power toward prosecutors. Academics have already written a number of histories of plea bargaining in Massachusetts and elsewhere, but this one is different. Fisher, a former Middlesex County prosecutor and now a professor at Stanford Law School, brings his prosecutorial perspective to bear in explaining the rise of plea bargaining. I will review Fisher\u27s book from this same perspective, as both of us are plea-bargaining scholars and former prosecutors rather than professional historians

Faith, Law, and Love: Peg Brinig\u27s Legacy

The central question in Peg Brinig’s work is how the law can help intimate associations to raise healthy kids. She pursues this theme through a variety of inquiries, ranging from parochial schools in big-city neighborhoods to covenant-marriage laws in Louisiana. Her answers depend on context, varying with how close each social actor or institution is to the process of raising children. But nearly all her recommendations seek to foster permanent, loving, involved social environments. Following Brinig’s lead, I’ll celebrate her work by highlighting some of the answers she offers in three different social contexts. In Part I, I’ll explore her treatment of the nuclear family. The family is the base of society, the foundation of love on which everything else rests. Part II then addresses other mediating associations, ranging from extended families to churches and schools. These build bridges, connecting people and cultivating love in community. And in Part III, I’ll turn to the backstop of society, the state’s relationship to the family. The government is no substitute for healthy, loving families, but it can at least avoid harming them and in some ways offer support. Finally, in Part IV, I’ll show how Brinig’s work adroitly puts disciplines into perspective, revealing their limits. Economics casts light on important human phenomena. But it is incomplete and sometimes loses sight of deeper human ends. Brinig’s Christian faith is an important corrective, warning us against the ideological sirens that tempt us to oversimplify family life. Families succeed when they promote not just adult freedom or choice, but rich human flourishing in community. Autonomy alone is not enough; we need relationships and strong communal bonds to live together in community and rear the next generation

Forgiveness in Criminal Procedure

Though forgiveness and mercy matter greatly in social life, they play fairly small roles in criminal procedure. Criminal procedure is dominated by the state, whose interests in deterring, incapacitating, and inflicting retribution leave little room for mercy. An alternative system, however, would focus more on the needs of human participants. Victim-offender mediation, sentencing discounts, and other mechanisms could encourage offenders to express remorse, victims to forgive, and communities to reintegrate and employ offenders. All of these actors could then better heal, reconcile, and get on with their lives. Forgiveness and mercy are not panaceas: not all offenders and victims would choose to take part, there are dangers of fakery and arbitrariness, and some forgiven offenders would reoffend. On the whole, however, this forgiving model offers a humane alternative to state-dominated criminal procedure