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September 14, 2017

"Fragmentation and Democracy in the Constitutional Law of Punishment"

The title of this post is the title of this recently published paper that I recently noticed authored by Richard Bierschbach.  Here is its abstract:

Scholars have long studied the relationship of structural constitutional principles like checks and balances to democracy.  But the relationship of such principles to democracy in criminal punishment has received less attention.  This Essay examines that relationship and finds it fraught with both promise and peril for the project of democratic criminal justice.  On the one hand, by blending a range of inputs into punishment determinations, the constitutional fragmentation of the punishment power can enhance different types of influence in an area in which perspective is of special concern.  At the same time, the potentially positive aspects of fragmentation can backfire, encouraging tunnel vision, replicating power differentials, and making it easier for more well-resourced voices to drown out others.  Thus, the same structure that generates valuable democratic benefits for punishment also falls prey and contributes to serious democratic deficits.  But despite its drawbacks, we cannot and should not abandon the Constitution’s fragmented approach to crime and punishment.  The more promising move is to look for ways to make different loci of influence and representation more meaningful within our existing framework, doing more to ensure that multiple voices are heard.

September 14, 2017 at 11:29 AM | Permalink


To solve this problem, start enforcement of the Rules of Conduct by a licensing board, and not by a Supreme Court with irremediable conflict of interest.

Then, actually sanction rogue prosecutors, as promised by these Rules.

Pass a constitutional amendment to allow tort claims against prosecutors, police, and prison authorities. If such a claim is to harass, the cost should come from the assets of the lawyer.

If judges will not be sued for deviations from professionals standards of due care, then impeach them for faulty decisions.

If exonerated, compensation for lost wages, minus prison costs, should be a matter of course.

Posted by: David Behar | Sep 14, 2017 6:36:27 PM

Thou Shalt Not Kill.
That phrase is the Sixth Commandment. The Framers were not really Christians. They permit "The Y'all Can Exception" and no court prohibits the killing of humans by the states or federal government.

Posted by: Al Jackson | Sep 15, 2017 9:42:44 AM

Al. The original Hebrew stated Thou Shall Not Murder. They killed people by the bunch on the Bible, down to the cats of a conquered nation. Murder is unlawful homicide. Lawful homicide is permissible in the 10 Commandments.

Posted by: David Behar | Sep 15, 2017 12:45:54 PM

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