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Must Penal Law Be Insulated from Public Influence?


Punishment and democracy appear to exacerbate each other’s worst features. The institutions and moral intuitions used to punish those that break the law can hollow out civic participation, distort the electorate, and undermine core democratic values. Likewise, many have argued the decentralized character of democracy is a key, albeit indirect, cause of increasingly punitive public policies that are divorced from any reasonable penological purpose. Given the effects of electoral politics, many have called for the separation, or general insulation, of state punishment from public influence. However, recent empirical work on punitive attitudes and institutional design has begun to chip away at this common sense. This article contextualizes and qualifies the various mechanisms of policy feedback and public opinion formation thought by political theorists to undermine democratic participation in penal institutions and makes a normative case that insulating the public from penal law actively sustains injustice.

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  1. 1.

    Rachel Barkow, Prisoners of Politics: Breaking the cycle of mass incarceration (Cambridge, MA: Belknap Press of Harvard University Press, 2019).

  2. 2.

    John Braithwaite, Restorative Justice & Responsive Regulation, Studies in Crime and Public Policy (Oxford: Oxford University Press, 2002); Rachel Barkow, Prisoners of Politics.

  3. 3.

    Nicola Lacey, The Prisoners’ Dilemma (Cambridge, UK: Cambridge University Press, 2008).

  4. 4.

    For example, see John J. DiIulio, Governing Prisons: A Comparative Study of Correctional Management (New York: The Free Press, 1987) and Julian Roberts et al., Penal Populism and Public Opinion: Lessons from Five Countries (New York: Oxford University Press, 2003).

  5. 5.

    My primary concern here is state punishment. In line with others writing on the topic, I’ve left the scope of ‘penal law and practice’ deliberately open, with the idea that state punishment can be influenced by various means (criminal code, jury trial, sentencing policy, oversight councils, and so on). My aim here is to confront the insulationist claim where it is strongest; a broad definition is a hedge against the worry that I’ve gerrymandered the terms to overstate my case.

  6. 6.

    Albert Dzur, “Participatory Democracy and Criminal Justice,” Criminal Law and Philosophy 6, no. 2 (2012): 115–129. Other scholars use the term “exclusionary” in the place of “insulationist,” and contrast it with two other forms of public consultation: direct importation and qualified public input. See Jesper Ryberg and Julian Roberts, “Introduction: Exploring the Normative Significance of Public Opinion for State Punishment,” in Popular Punishment (Oxford: Oxford University Press, 2014): 4–5.

  7. 7.

    Working under the banner of "integrating" criminal law, scholars like Albert Dzur and Joshua Kleinfeld argue for integrating public participation with existing criminal justice institutions. They "see lay citizen involvement as an integral part of a framework that fosters the right kind of criminal justice dialog and essential for building a network of support for non-punitive programs." See Dzur, “Participatory Democracy and Criminal Justice”; Laura I. Appleman, Kleinfeld Joshua, and Thomas F. Geraghty, “White Paper of Democratic Criminal Justice,” Northwestern University Law Review 111 (2016): 1693. As I understand it, their core approach is similar to others that extend empirical and normative arguments for participatory democracy to the more particular context of welfare state institutions, e.g., Joe Soss, Unwanted Claims: The Politics of Participation in the US Welfare System (University of Michigan Press, 2002).

  8. 8.

    Arraying public involvement on a spectrum from direct, to indirect (or qualified), to insulated, is admittedly a crude simplification. However, one needs only a definition strong enough to assist the machinery of one’s analysis, which I believe it does here. This definition of public involvement avoids cabining potentially informative comparisons of arguments that share a similar shape and structure.

  9. 9.

    See Ryberg and Roberts, “Introduction: Exploring the Normative Significance of Public Opinion for State Punishment.”

  10. 10.

    There are other, more general lines of argument one might use to advocate insulationism – technical complexity creates a need for expertise, for example – that I do not address here.

  11. 11.

    E.g., Jason Brennan, Against Democracy (Princeton University Press, 2017).

  12. 12.

    For an example of a recuperative effort, see Dimitri Landa and Ryan Pevnick, “Defensible Epistocracy,” American Political Science Review, 2019. For an outstanding conceptual analysis, see Matthias Brinkman, "The Concept of Political Competence," Critical Review 30, no. 3–4 (2018): 163–193.

  13. 13.

    Jon Elster, “Norms of Revenge,” Ethics 100, no. 4 (1990): 862–885.

  14. 14.

    This approximation, as I’ll discuss below, is a poor one.

  15. 15.

    Julian Roberts et al., Penal Populism and Public Opinion: Lessons from Five Countries (New York: Oxford University Press, 2003).

  16. 16.

    Roberts et al., Penal Populism and Public Opinion, 94; Mike Hough and Julian Roberts, “The Oxford Handbook of Criminology,” ed. Alison Liebling, Shadd Maruna, and Lesley McAra (Oxford University Press, 2017): 239–259.

  17. 17.

    Lisa Miller, The Myth of Mob Rule: Violent Crime and Democratic Politics (Oxford: Oxford University Press, 2016).

  18. 18.

    Tracey L. Meares, “Charting Race and Class Differences in Attitudes Toward Drug Legalization and Law Enforcement: Lessons for Federal Criminal Law,” Buffalo Criminal Law Review 1, no. 1 (1997): 137–174; James Forman Jr., Locking up Our Own: Crime and Punishment in Black America (New York: Farrar, Straus, and Giroux, 2017).

  19. 19.

    James Fishkin, When the People Speak: Deliberative Democracy and Public Consultation (Oxford: Oxford University Press, 2009).

  20. 20.

    Though, as we'll see, the foundation of even this claim isn't particularly sturdy.

  21. 21.

    David D. Friedman, Law's Order: What Economics Has to Do with Law and Why It Matters (Princeton: Princeton University Press, 2000).

  22. 22.

    Elster, “Norms of Revenge.”

  23. 23.

    Katherine Beckett, Making Crime Pay: Law and Order in Contemporary American Politics, Studies in Crime and Public Policy (New York: Oxford University Press, 1997); Vesla Weaver, “Frontlash: Race and the Development of Punitive Crime Policy,” Studies in American Political Development 21, no. 2 (2007): 230–265.

  24. 24.

    Peter K Enns, Incarceration Nation (Cambridge University Press, 2016); Miller, The Myth of Mob Rule.

  25. 25.

    Specifically, he uses factor scales to measure punitiveness, rather than single question measures, and he focuses on the relationship between punitiveness and change in crime and change in incarceration.

  26. 26.

    Enns argues that crime reporting tends to focus on violent crime, uses “episodic” rather than “thematic” frames, and over-represents the proportion of law-breaking by those that are non-white – all of which support the prediction that more exposure to such news will lead to more punitive attitudes, but not that those attitudes are a one-to-one representation of actual crime trends. Enns, Incarceration Nation.

  27. 27.

    John Zaller, “A New Standard of News Quality: Burglar Alarms for the Monitorial Citizen,” Political Communication 20, no. 2 (2003): 109–130; but see W. Lance Bennett, “The Burglar Alarm That Just Keeps Ringing: A Response to Zaller,” Political Communication 20, no. 2 (2003): 131–138.

  28. 28.

    Stanley Cohen, Folk Devils and Moral Panics: The Creation of the Mods and Rockers (London: MacGibbon and Kee, 1972).

  29. 29.

    Jock Young, “Moral Panic: It’s origins in resistance, ressentiment and the translation of fantasy into reality,” British Journal of Criminology 49, no. 1: 4–16. The distinction between reason and emotion is particularly significant – it’s a theme I return to in the final pages of this article.

  30. 30.

    As an example of the former, see Chas Critcher, “Widening the Focus: Moral panics as moral regulation,” British Journal of Criminology 49, no. 1: 17–34. For an example of the latter, see Cass Sunstein, Laws of Fear: Beyond the Precautionary Principle (Cambridge, UK: Cambridge University Press, 2005): 89–108.

  31. 31.

    For a review, see Dan Kahan et al., “Fear of Democracy: A Cultural Evaluation of Sunstein on Risk,” Harvard Law Review 119 (2006): 1071. The shape and structure of the media environment also clearly matters -- see the discussion of "media frenzies" in Zaller, “A New Standard of News Quality.”

  32. 32.

    Roberts et al., Penal Populism and Public Opinion, 5.

  33. 33.

    Roberts et al., Penal Populism and Public Opinion, 5.

  34. 34.

    I don't mean to suggest this is the only way the problem can be construed.

  35. 35.

    Young, “Moral Panic: Its origins in resistance, ressentiment and the translation of fantasy into reality.” See also, Bernard Harcourt, “The Collapse of the Harm Principle,” Journal of Law and Criminology 90, no. 1: 109–194.

  36. 36.

    Roberts et al., Penal Populism and Public Opinion, p. 7.

  37. 37.

    Jan-Werner Müller, “What Is Populism?” (Philadelphia: University of Pennsylvania Press, 2016): 13.

  38. 38.

    Enns, Incarceration Nation, pp. 88–89.

  39. 39.

    This is true even for more traditional theories of moral panics. Jenkins notes a number of mediating conditions that limit a potential spark for a panic – child pornography, for instance – from turning into a roaring flame. Philip Jenkins, “Failure to Launch: Why do some issues fail to detonate moral panics?” British Journal of Criminology 49, no. 1: 45.

  40. 40.

    Fishkin, When the People Speak.

  41. 41.

    Enns, Incarceration Nation; e.g., Tali Mendelberg, The Race Card: Campaign Strategy, Implicit Messages, and the Norm of Equality (Princeton, NJ: Princeton University Press, 2001).

  42. 42.

    Travis Dixon, “Crime News and Racialized Beliefs: Understanding the Relationship Between Local News Viewing and Perceptions of African Americans and Crime,” Journal of Communication 58, no. 1 (2008): 106–125.

  43. 43.

    Worse, many diversion programs are funded at the county level, creating a perverse incentive for the county (particularly county prosecutors) to send defendants to prison when less-restrictive options are available. John Pfaff, Locked in: The True Causes of Mass Incarceration and How to Achieve Real Reform (New York: Basic Books, 2017); Christopher D. Berk, “Investment Talk: Comments on the Use of the Language of Investment in Prison Reform Advocacy,” Carceral Notebooks 6 (2011): 115–129.

  44. 44.

    For example, scholars have documented the staggering impact of mass incarceration on the millions of children in the US that have an incarcerated parent. See Christopher Wildeman, “Parental Imprisonment, the Prison Boom, and the Concentration of Childhood Disadvantage,” Demography 46, no. 2 (2009): 265–280.

  45. 45.

    Dzur, “Participatory Democracy and Criminal Justice.”

  46. 46.

    One relevant factor, for example, might be transparency. Haphazard involvement provides cover from both more rigorous public scrutiny and expert attention. To borrow an example from Khalil Muhammad, under the aegis of letting ‘the facts speak for themselves’, Progressive-era reformers were able to use the ostensibly neutral collection of statistics on race to bind together blackness and criminality. See Khalil Gibran Muhammad, The Condemnation of Blackness: Race, crime, and the making of modern urban America (Cambridge: Harvard University Press, 2010).

  47. 47.

    Elster, “Norms of Revenge.”

  48. 48.

    For example, see Jeffrie Murphy, “Two Cheers for Vindictiveness,” Punishment and Society 2, no. 3 (2000): 131–143. For a brief survey of emotion-based justifications for retributivism, see Antony Duff, Punishment, Communication, and Community (New York: Oxford University Press, 2003): 23–27.

  49. 49.

    She is not alone in making this claim. A number of philosophers, ranging from Jeremy Bentham to Robert Nozick, also insist on a similar distinction. For a review, see Leo Zaibert, “Punishment and Revenge,” Law and Philosophy 25, no. 1 (2006): 81–118.

  50. 50.

    Jean Hampton, “Correction Harms Versus Righting Wrongs: The Goal of Retribution,” UCLA L. Rev. 39 (1991): 1659.

  51. 51.

    Zaibert, “Punishment and Revenge,” p. 109ff. Zaibert addresses a number of other distinctions that supposedly mark off punishment from revenge: wrongs/harms, limited/unlimited response, impersonal/personal, general/particular, among others. To be clear, his concern is largely with the relationship between revenge and punishment simpliciter, not revenge and retributive punishment.

  52. 52.

    For a review, see Paul Robinson, “The Proper Role of Community in Determining Criminal Liability and Punishment,” in Popular Punishment (Oxford: Oxford University Press, 2014): 54–75.

  53. 53.

    Robinson, “The Proper Role of Community in Determining Criminal Liability and Punishment,” p. 62.

  54. 54.

    Robinson, “The Proper Role of Community in Determining Criminal Liability and Punishment,” pp. 55–59. This line of analysis is also consistent with research on “procedural justice.” See Tom Tyler, Why People Obey the Law (Princeton: Princeton University Press, 2006) and Andrew V. Papachristos, Tracey L. Meares, and Jeffrey Fagan, "Why do Criminals Obey the Law: The influence of legitimacy and social networks on active gun offenders," Journal of Criminal Law & Criminology 102, no. 2 (2012): 397–440.

  55. 55.

    David Hershenov, “Restitution and Revenge,” The Journal of Philosophy 96, no. 2 (1999): 79–94.

  56. 56.

    Elster, “Norms of Revenge.”

  57. 57.

    Jeffrie G. Murphy, “Forgiveness and Resentment,” in Mercy and Forgiveness (Cambridge, UK: Cambridge University Press, 1988); Murphy, “Two Cheers for Vindictiveness.”

  58. 58.

    Amia Srinivasan, “The Aptness of Anger,” Journal of Political Philosophy 26, no. 2 (2018): 129. Murphy, “Two Cheers for Vindictiveness.”

  59. 59.

    Srinivasan, “The Aptness of Anger.” She writes, "This conflict is not merely psychically painful; it is a genuine normative conflict, a conflict involving competing and significant goods that often feel incomparable."

  60. 60.

    Srinivasan, “The Aptness of Anger,” pp. 131–136.

  61. 61.

    Srinivasan, “The Aptness of Anger,” p. 140.

  62. 62.

    Albert Dzur arrives to a similar conclusion, but by other means. See Albert Dzur, “Repellent Institutions and the Absentee Public,” in Popular Punishment (Oxford: Oxford University Press, 2014): 205–206. He writes, “To be responsible – as opposed to wanton, careless, and unthinking – is to steer our public institutions rather than be steered by them and to own up to the kind of people that our institutions are helping shape.”

  63. 63.

    See Benjamin Page and Robert Shapiro, The Rational Voter: 50 years of trends in Americans’ policy preferences (Chicago: University of Chicago Press, 1992) and Archon Fung and Mark E. Warren, “The Participedia Project: An Introduction,” International Public Management Journal 14, no. 3 (2011): 341–362.

  64. 64.

    Restorative justice emphasizes "healing rather than hurting, moral learning, community participation and community caring, respectful dialog, forgiveness, responsibility, apology, and making amends." Braithwaite, Restorative Justice & Responsive Regulation. For a canonical take on this point, see Nils Christie, “Conflicts as Property,” The British Journal of Criminology 17, no. 1 (1977): 1–15.

  65. 65.

    Srinivasan, “The Aptness of Anger,” pp. 140–141.

  66. 66.

    Murphy, “Forgiveness and Resentment.”

  67. 67.

    I have in mind Beccaria on juries and Bentham on general institutional design.

  68. 68.

    Jonathan R Bruno, “Vigilance and Confidence: Jeremy Bentham, Publicity, and the Dialectic of Political Trust and Distrust,” American Political Science Review 111, no. 2 (2017): 295–307; Jon Elster, Securities Against Misrule: Juries, Assemblies, Elections (New York, NY: Cambridge University Press, 2013).

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Berk, C.D. Must Penal Law Be Insulated from Public Influence?. Law and Philos 40, 67–87 (2021).

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