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April 17, 2018

"The Consensus Myth in Criminal Justice Reform"

The title of this post is the title of this new paper now available via SSRN authored by Benjamin Levin.  Here is its abstract:

It has become popular to identify a “bipartisan consensus” on criminal justice reform, but how deep is that consensus, actually?  This Article argues that the purported consensus is largely illusory. 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 offers a typology of the two prevailing, but fundamentally distinct, critiques of the system:

(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 sub-optimal in that it has criminalized too much and incarcerated too many. In contrast, the “mass” frame focuses on the criminal system as a socio-cultural 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 reformers may adopt an “over” frame in an effort to attract a broader range of support or appeal to politicians, “over” policy proposals do not reach deeper “mass” concerns.  Ultimately, then, 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.

April 17, 2018 at 09:00 AM | Permalink


The article presents a false contrast because these two perspective are not competitive but complimentary with each other.

"Ultimately, then, 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"

Well yes it MAY. Life is full of risks. There is also a risk, however, in that in advancing a narrative of marginalization one throws oneself right onto the anarchical train. I see this article as more purity bullshit: "if you are not a black panther you are not serious about racial injustice!"

Please just go away.

Posted by: Daniel | Apr 17, 2018 10:49:08 AM

The over critique is actually multiple separate critiques that are not necessarily compatible with each other, much less the mass critique. The mass critique begins and ends with the assumption that the current law is designed for and being used to oppress people. The over critique emphasizes certain laws that the person making the critique believes are unduly harsh or inappropriate. What laws fit that definition depends upon who is doing the critique.

To use an example, one part of the over critique thinks that we are picking on big business and criminalizing behavior that otherwise would be good business practices. These people think that we should not be going after Big Pharma for its role in the opioid crisis. These same people, however, do not have a problem with us locking up people who sell their prescription medication to those hooked on opioids or forge prescriptions to get opioids. A different part of the over critique do not have a problem with tough laws regulating harmful business practices, but do think that our laws are too tough on addicts who should be treates as people with a disease rather than as criminals.

Posted by: tmm | Apr 18, 2018 2:30:01 PM

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