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What is the metric by which to measure a well-functioning criminal justice system ? If a modern state is going to measu re performance by cou nting something--and a modern state will always count something--what, in the criminal justice context, should it count? Remarkably, there is at present no widely accepted metric of success or failure in criminal justice. Those there are--like arrest rates, conviction rates, and crime rates--are deeply flawed. And the search for a better metric is complicated by the cacophony of different goals that theorists, policymakers, and the public bring to the criminal justice system, including crime control, racial justice, retributive justice, and social solidarity. This Article proposes a metric based on the concept of social trust. The measure of a well- or poorly functioning criminal system is its marginal effects on (1) the level of trust a polity's members have toward the institutions, officials, laws, and actions that comprise, the criminal justice system; (2) the level of trust a polity's members have, in virtue of the criminal system's operations, toward government generally (beyond the criminal justice system); and (3) the level of trust a polity's members have toward one another following incidents of crime and responses to crime. Social trust, we argue, both speaks to an issue at the philosophical core of crime and punishment and selves as a locus of agreement among the many goals people bring to the criminal justice system. The concept can thus be a site of overlapping consensus, performing the vital function of enabling liberal societies to make policy despite disagreement about first principles., INTRODUCTION 816 I. THE PROBLEM 828 A. A Critique of Existing Metrics 828 1. Crime Rates 828 2. Conviction, Arrest, and Clearance Rates 832 3. Recidivism Rates 835 4. Cost [...]

The article explores the value of mens rea in U.S. criminal law based on reconstructivism. It explains the reconstructivist perspective on crime as a form of expressive action. Also cited is the potential of reconstructive punishment to underwrite cruelty. It describes mens rea as the implication of the internal logic of reconstructivism and a constraint on reconstructivism imposed by individual justice.

For many criminal justice reformers, the Holy Grail of change would be a criminal system that ends the war on drugs; punishes minor property and public order offenses without incarceration (or does not handle them criminally at all); and reserves prison mainly for violent offenders. What few appreciate is that California over the last nine years has done exactly that, and the results are breathtaking in their magnitude and suddenness: from 2011 to 2019, California released 55,000 people convicted mostly of nonviolent offenses (a quarter to a third of all California prisoners) and has been declining imprisonment--which often means declining arrest and prosecution altogether--for tens of thousands more who likely would have been imprisoned a decade ago. The changes happened piecemeal; this Article is the first to put the whole picture together. But we are now in a position to describe and evaluate the whole. We come to three conclusions. First, California criminal justice reform reduced incarceration without increasing violence, but in so doing increased property crime, public drug use, street-level disorder, and likely homelessness to such an extent as to change the texture of everyday life in some California cities, including Los Angeles and San Francisco. Second, these changes alter the relationship between individual and state substantially enough to constitute a new social contract: California has gone farther than any other American state toward a society based on John Stuart Mill's harm principle. Third, this array of costs and benefits is complex and nuanced enough that it is not irrational or otherwise normatively illegitimate for someone to think them either justice-enhancing or -diminishing, good for human welfare or bad for it. But what unequivocally redeems California's new policies for California are their democratic credentials: they were accomplished through a series of elections over multiple years at multiple levels of government with a high degree of public deliberation. Criminal justice democratizers and strong proponents of federalism should endorse what California has done as a matter of political self-determination. But they might rationally not want the same thing for their own states. [ABSTRACT FROM AUTHOR]

Abraham Lincoln cherished the Union. When he swore in his presidential oath to `take care that the laws be faithfully executed', he vowed to make the American experiment in democracy [...]

This white paper is the joint product of nineteen professors of criminal law and procedure who share a common conviction: that the path toward a more just, effective, and reasonable criminal system in the United States is to democratize American criminal justice. In the name of the movement to democratize criminal justice, we herein set forth thirty proposals for democratic criminal justice reform. [ABSTRACT FROM AUTHOR]

This Essay links criminal theory to democratic political theory, arguing that the view of criminal law and procedure known as "reconstructivism" shares a common root with certain culturally oriented forms of democratic theory. The common root is the valorization of a community's ethical life and the belief that law and government should reflect the ethical life of the community living under that law and government. This Essay then specifies three principles that are entailed by the union of democracy and reconstructivism and that should therefore characterize a democracy's approach to criminal justice: the "moral culture principle of criminalization," the "principle of prosocial punishment," and the "We the People principle of criminal procedure." As the American criminal system routinely violates all three principles, this Essay closes by suggesting that the present crisis of American criminal justice stems in substantial part from criminal law and procedure's bureaucratic and instrumental, rather than democratic and reconstructive, path of development. The three principles point to a better alternative and suggest a direction for criminal justice reform. [ABSTRACT FROM AUTHOR]

It is widely recognized that the American criminal system is in a state of crisis, but views about what has gone wrong and how it could be set right can seem chaotically divergent. This Essay argues that, within the welter of diverse views, one foundational, enormously important, and yet largely unrecognized line of disagreement can be seen. On one side are those who think the root of the present crisis is the outsized influence of a vengeful, poorly informed, or otherwise wrongheaded American public and the primary solution is to place control over the criminal system 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 primary solution is to make criminal justice more community focused and responsive to lay influences. The former view reflects a norm of bureaucratic professionalization; the latter view reflects a norm of democratization. This Essay defines the two camps, specifies the concepts of bureaucracy and democracy underlying each one, and identifies some of the unifying ideas on the democratization side. This Essay thus attempts to bring conceptual order to the present cacophony of voices on criminal justice reform by specifying the conflict of visions at their center. As the opening piece of this Symposium Issue of the Northwestern University Law Review--a symposium not just about democratizing criminal justice but in defense of democratizing criminal justice--this Essay also paves the way for what will follow: a full-throated defense of the democratic criminal justice vision. [ABSTRACT FROM AUTHOR]