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March 16, 2023

"After the Criminal Justice System"

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

Since the 1960s, the “criminal justice system” has operated as the common label for a vast web of actors and institutions.  But, as critiques of mass incarceration have entered the mainstream, academics, activists, and advocates increasingly have stopped referring to the “criminal justice system.”  Instead, they have opted for critical labels — the criminal legal system, the criminal punishment system, the prison industrial complex, etc.  What does this re-labeling accomplish?  Does this change in language matter to broader efforts at criminal justice reform or abolition?  Or, does an emphasis on labels and language distract from substantive engagement with the injustices of contemporary criminal law?

In this Article, I examine that move to abandon the “criminal justice system” as a means of describing U.S. institutions of criminal law and its enforcement.  I identify three alternative labels that are gaining traction in academic and activist circles: the criminal legal system, the criminal punishment system, and the prison industrial complex.  I argue that each reflects not only a different vision of U.S. criminal law but also a different vision of what is wrong with it.  My goal in this Article is not to advocate for a correct new label.  Rather, it is to explain how the different names provide a window into different ways of understanding how the United States punishes and controls individuals and communities.  Identifying an alternate label (or opting to retain the criminal justice system) should force much-needed reflection about what makes criminal institutions distinct from other institutions of governance.  And, such clarity should be essential to any project of reform or abolition.

This Article contributes to three literatures.  First, it is a part of a larger project of unpacking how we as a society (and particularly as legal elites) talk about and understand criminal law. Second, this Article contributes to a literature that examines the boundaries of criminal law and the ways in which criminal legal institutions interact with ostensibly non-criminal ones.  Third, and relatedly, this Article contributes to a critical literature on siloing in scholarship and activism.  By emphasizing the fuzzy boundaries of the “criminal justice system,”  I hope to stress that studying and mobilizing against the injustices of the U.S. criminal legal apparatus requires grappling with a host of diverse legal doctrines and sociopolitical forces.

March 16, 2023 at 11:01 PM | Permalink


Good piece. A lot of the argument is, do we use aspirational labels or descriptive ones? “Justice,” besides having myriad definitions depending on one’s experience and perspective, is aspirational. Ask a dozen people to define justice or whether our current system delivers it, and you’ll get as many different answers. While “legal” is descriptive and more easily defined.
I know in the realm of “bail reform” we’ve been fighting against the misunderstanding that bail means money. It does not. Bail means release. Money, or a financial release condition, is just one (very ineffective) option in the release decision. But good luck changing decades of incorrect usage of “bail.”

Posted by: Spike Bradford | Mar 17, 2023 10:26:32 AM

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