Capitalizing on Criminal Justice

By Jain, Elsha | Duke Law Journal, April 2018 | Go to article overview

Capitalizing on Criminal Justice


Jain, Elsha, Duke Law Journal


ABSTRACT

The U.S. criminal justice system "piles on." It punishes too many for too long. Much criminal law scholarship focuses on the problem of excessive punishment. Yet for the low-level offenses that dominate state court workloads, much of the harm caused by arrests and convictions arises outside the formal criminal sentence. It stems from spiraling hidden penalties and the impact of a criminal record. The key question is not just why the state over-punishes, but rather why so many different institutions--law enforcement institutions as well as civil regulatory agencies and private actors--find it valuable to do so. This Article argues that the reach of the criminal justice system is not just the product of overly punitive laws, but also the product of institutions capitalizing on criminal law decisions for their own ends. Criminal law is meant to serve a public purpose, but in practice, key institutions create, disseminate, and rely on low--level criminal records because they offer a source of revenue or provide a cost--effective way of achieving discrete administrative objectives. These incentives drive and expand the reach of the criminal justice system, even as they work in tension with the state's sentencing goals. This dynamic creates obvious harm. But it also benefits key actors, such as municipalities, privatized probation companies, background check providers, employers, and others who have incentives to maintain the system as it is. This Article identifies how organizational incentives lead a host of institutions to capitalize on criminal law decisions, and it argues that reform efforts must, as a central goal, recognize and respond to these incentives.

TABLE OF CONTENTS

Introduction
I. The Role of the State
      A. The Overcriminalization Framework
      B. The Missing Picture
II. Institutional Incentives and the Mark of a Criminal Record
      A. Institutional Structure
      B. Institutional Incentives
         1. Marking and Criminal Justice Decisions
         2. Marking Outside the Criminal Justice System
      C. Regulatory Oversight
III. Implications for Misdemeanor Reform
      A. Identifying Stakeholders
      B. Cost--Benefit Analysis
      C. Realigning Incentives
Conclusion

INTRODUCTION

The U.S. criminal justice system "pil[es] on." (1) Police over-arrest, and the state over-imprisons. Commentators denounce "the challenge of over-criminalization; of over-incarceration; and over-sentencing." (2) An ideologically diverse coalition views the criminal justice system as far too large. (3) The Heritage Foundation, the Koch Foundation, and the American Civil Liberties Union, among others, denounce the overcriminalization of America. (4) Commentators agree that the harms of excessive punishment reach well beyond prison walls. (5) Criminal penalties can trigger economic loss, break up families, damage communities, erode faith in the police, and lead to outcomes that appear arbitrary and procedurally unfair. (6) Those released from prison can face collateral consequences long after the sentence has been served. (7)

In the past fifty years, overcriminalization has become the dominant conceptual framework for understanding the reach of the U.S. criminal justice system. (8) Critics warn about the impact of overbroad criminal laws and their potential to suppress individual rights, (9) and about the devastating toll of mass incarceration and its potential to operate as a new form of "civil death" or as the "new Jim Crow." (10)

The overcriminalization framework is powerful. It draws attention to the problem of excessive punishment, well beyond what can be justified by the state's sentencing goals. Yet in focusing on excessive criminal penalties, this framework is also incomplete. It obscures how harm unfolds for the low-level offenses that consume the bulk of state criminal court caseloads. (11) For these offenses, the criminal penalty itself may not appear disproportionate, at least as an initial matter. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

Capitalizing on Criminal Justice
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.