The Consensus Myth in Criminal Justice Reform

Benjamin Levin*

It has become popular to identify a “consensus” on criminal justice reform, but how deep is that consensus, actually? This Article argues that the purported consensus is much more limited than it initially appears. Despite shared reformist vocabulary, the consensus rests on distinct critiques that identify different flaws and justify distinct policy solutions. The underlying disagreements transcend traditional left/right political divides and speak to deeper disputes about the state and the role of criminal law in society.

The Article maps two prevailing, but fundamentally distinct, critiques of criminal law: (1) the quantitative approach (what I call the “over” frame); and (2) the qualitative approach (what I call the “mass” frame). The “over” frame grows from a belief that criminal law has an important and legitimate function, but that the law’s operations have exceeded that function. This critique assumes that there are optimal rates of incarceration and criminalization, but the current criminal system is suboptimal in that it has criminalized too much and incarcerated too many. In contrast, the “mass” frame focuses on criminal law as a sociocultural phenomenon. This reformist frame indicates that the issue is not a mere miscalculation; rather, reforms should address how the system marginalizes populations and exacerbates both power imbalances and distributional inequities.

To show how these frames differ, this Article applies the “over” and the “mass” critique, in turn, to the maligned phenomena of mass incarceration and overcriminalization. The existing literature on mass incarceration and overcriminalization displays an elision between these two frames. Some scholars and reformers have adopted one frame exclusively, while others use the two interchangeably. No matter how much scholars and critics bemoan the troubles of mass incarceration and overcriminalization, it is hard to believe that they can achieve meaningful reform if they are talking about fundamentally different problems.

While many scholars may adopt an “over” frame in an effort to attract a broader range of support or appeal to politicians, “over” policy proposals do not necessarily reach deeper “mass” concerns. Ultimately, this Article argues that a pragmatic turn to the “over” frame may have significant costs in legitimating deeper structural flaws and failing to address distributional issues of race, class, and power at the heart of the “mass” critique.

* Associate Professor, University of Colorado Law School. For helpful comments, thanks to Amna Akbar, Hadar Aviram, David Ball, Rachel Barkow, Monica Bell, Fred Bloom, Paul Butler, Jack Chin, Beth Colgan, Andrew Crespo, Seth Davis, Justin Desautels-Stein, Sharon Dolovich, Don Dripps, Jessica Eaglin, Dan Epps, Jeff Fagan, Dan Farbman, Thomas Frampton, Trevor Gardner, John Goldberg, Aya Gruber, Eve Hanan, Bernard Harcourt, Carissa Byrne Hessick, Sharon Jacobs, Irene Joe, Liz Kamali, Craig Konnoth, Sarah Krakoff, Alex Kreit, Corinna Lain, Maximo Langer, Adriaan Lanni, Leah Litman, Tracey Meares, Chris Muller, Erin Murphy, Shakeer Rahman, Carolyn Ramsey, Dan Richman, Alice Ristroph, Pierre Schlag, Jocelyn Simonson, Shirin Sinnar, Scott Skinner-Thompson, David Sklansky, Ji Seon Song, Carol Steiker, Jordan Steiker, Susannah Barton Tobin, Matthew Tokson, Ahmed White, and members of the Colorado Law Faculty Workshop, the 2018 Criminal Justice Roundtable at Harvard Law School, the Southwest Criminal Law Workshop, the Climenko Fellows Workshop, the Becoming a Law Professor Reading Group at Harvard Law School, and the 2017 Rocky Mountain Junior Scholars’ Forum. I am deeply indebted to my students at Harvard Law School and the University of Colorado Law School. The commitment to justice and abiding skepticism they brought to discussions of criminal law helped inspire this Article. Colin Reeves provided exceptional research assistance.

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