White Paper of Democratic Criminal Justice

By Kleinfeld, Joshua; Appleman, Laura I. et al. | Northwestern University Law Review, January 1, 2017 | Go to article overview

White Paper of Democratic Criminal Justice


Kleinfeld, Joshua, Appleman, Laura I., Bierschbach, Richard A., Bilz, Kenworthey, Bowers, Josh, Braithwaite, John, Burns, Robert P., Duff, R. A., Dzur, Albert W., Geraghty, Thomas F., Lanni, Adriaan, McLeod, Marah Stith, Nadler, Janice, O’Rourke, Anthony, Robinson, Paul H., Simon, Jonathan, Simonson, Jocelyn, Tyler, Tom R., Yankah, Ekow N., Northwestern University Law Review


Introduction

In order to act collectively on matters of criminal justice reform and to clarify what it means to democratize criminal justice, the nineteen members of the democratization movement listed above have authored the thirty policy proposals that follow.

Some background is in order about the broader vision underlying these proposals. Although many Americans have come to think that the country's criminal justice system is malfunctioning in ways that do profound damage to the country, views about why the system has unraveled and how it could be set right can seem chaotically varied and conflicting. Yet the views are not as chaotic as they might appear: within the welter of diverse arguments, two distinct perspectives can be seen. On one side are those who think the root of the present crisis is the outsized influence of the American public and the solution is to place control over criminal justice in the hands of officials and experts. On the other side are those who think the root of the crisis is a set of bureaucratic attitudes, structures, and incentives divorced from the American public's concerns and sense of justice, and the solution is to make criminal justice more community-focused and responsive to lay influences. In a word, the first group thinks the direction forward is bureaucratic professionalization, the second thinks it is democratization. Of course, the two positions are not always mutually exclusive, and the dichotomy simplifies the views on both sides to some extent, as any such dichotomy would. But the dichotomy captures a great deal of the relevant variation, and it has the benefit of bringing larger ideas to bear on what might otherwise be a cacophony of conflicting claims. The two views, democratization and bureaucratic professionalization, represent a conflict of visions.

On November 18 and 19, 2016, a group of democratizers assembled at the Northwestern University Pritzker School of Law in Chicago with four goals: to combine our diverse lines of research in order to establish democratic criminal justice as a school of thought; to identify and critically examine the ideas at the core of that school of thought; to project our ideas and awareness of our movement into the broader world of scholars, lawyers, judges, policymakers, activists, journalists, and the public; and to act publicly and collectively on matters of criminal justice reform. The Northwestern University Law Review agreed to publish a cross-section of the contributions to that conference in a Symposium Issue entitled Democratizing Criminal Justice. The Symposium begins with a Manifesto of Democratic Criminal Justice, which presents the above democratization/ bureaucratization distinction in depth, and continues with fourteen essays setting forth the case for democratic criminal justice on constitutional, philosophical, empirical, and racial justice grounds. For the most part, however, those fourteen essays and the Manifesto develop large themes, principles, and lines of evidence rather than particular suggestions for legal change or political action. This White Paper of Democratic Criminal Justice, which ends the Symposium, translates the larger ideas into specific policy proposals. In so doing, this White Paper aims both to clarify what democratic criminal justice means and to equip the democratization movement to have a practical impact on the world.

In order to produce these thirty policy proposals, each of the above authors was invited to submit a few policy proposals to the group, which discussed, negotiated, and rediscussed and renegotiated the proposals in an iterative drafting process. Many proposals did not survive the process; none survived without modification. The thirty policy proposals below are those that won general assent.

Inevitably, given this process, the policy proposals below do not reflect and should not be taken to reflect any individual author's views in full. No participant agrees in all particulars with all proposals on the list, and every participant had to leave proposals in which he or she does believe off the list. …

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