De-Naturalizing Criminal Law: Of Public Perceptions and Procedural Protections

By Levin, Benjamin | Albany Law Review, Spring 2013 | Go to article overview
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De-Naturalizing Criminal Law: Of Public Perceptions and Procedural Protections

Levin, Benjamin, Albany Law Review

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.

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De-Naturalizing Criminal Law: Of Public Perceptions and Procedural Protections


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