"Equality in Multi-Door Criminal Justice"

The title of this post is the title of this notable essay authored by Richard Bierschbach now available via SSRN. Here is its abstract:

As contemporary criminal justice practices have grown more varied, the equality concerns they raise have grown more nuanced and complex.  This essay, written for a symposium on multi-door criminal justice, explores the interplay between equality in criminal justice and the mix of punitive and non-punitive mechanisms that have proliferated in parallel in the criminal justice systems of many post-industrial societies in the last thirty years. 

Multi-door criminal justice does not fare well under the dominant conception of equality in American criminal law, which seeks to stamp out disparities in punishment and ensure roughly equal outcomes for roughly similar offenders.  But we need not view that as fatal to multi-door criminal justice.  Tension between a multi-door system and our reigning approach to equality might suggest reasons to question the latter more than it does the former. Alternative, more flexible, more process-oriented conceptions of equality might exist that could better accommodate a multi-door world while still protecting and advancing egalitarian norms and ideals.  At the same time, shifting our perspective on equality will not eliminate all equality concerns that flow from multi-door criminal justice, and it likely will reveal new ones.  The question then becomes not whether multi-door criminal justice is unequal in some absolute sense. The question is whether it is less unequal — or unequal in more palatable ways — than what we have now.