The Political Constitution of Criminal Justice

IF 3.5 2区社会学 Q1 LAW

Harvard Law Review Pub Date : 2005-12-01 DOI:10.2139/SSRN.783565

William J. Stuntz

引用次数: 57

Abstract

The politics of crime is widely seen as punitive, racist, and inattentive to the interests of criminal suspects and defendants. Constitutional law is widely seen as a (partial) remedy for those ills. But the cure may be causing the disease. At the margin, constitutional law pushes legislative attention - and budget dollars - away from policing and criminal adjudication and toward punishment. The law also widens the gap between the cost of investigating and prosecuting poor defendants and the cost of pursuing rich ones. Overcriminalization, overpunishment, discriminatory policing and prosecution, overfunding of prison construction and underfunding of everything else - these familiar political problems are more the consequences of constitutional regulation than justifications for it. Solving these problems requires radical constitutional reform. The article explains why, and then offers brief sketches of what that reform might look like in five areas: policing, crime definition, adjudication, punishment, and federalism. It closes by explaining how reform could happen, and why it probably won't.

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刑事司法的政治构成

犯罪政治被广泛认为是惩罚性的、种族主义的、对犯罪嫌疑人和被告的利益漠不关心的。宪法被广泛认为是对这些弊病的(部分)补救。但治疗方法可能会导致疾病。在边际上，宪法把立法的注意力——和预算资金——从治安和刑事审判上推到了惩罚上。该法还扩大了调查和起诉贫穷被告的成本与追捕富人被告的成本之间的差距。过度定罪、过度惩罚、歧视性警务和起诉、监狱建设资金过剩和其他一切资金不足——这些熟悉的政治问题更多是宪法监管的后果，而不是为其辩护。解决这些问题需要彻底的宪法改革。这篇文章解释了原因，然后简要介绍了改革可能在五个方面的内容:警务、犯罪定义、裁决、惩罚和联邦制。最后，它解释了改革如何可能发生，以及为什么可能不会发生。

本文章由计算机程序翻译，如有差异，请以英文原文为准。

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来源期刊

Harvard Law Review LAW-

CiteScore

2.90

自引率

11.80%

发文量

期刊介绍： The Harvard Law Review is a student-run organization whose primary purpose is to publish a journal of legal scholarship. The Review comes out monthly from November through June and has roughly 2,500 pages per volume. The organization is formally independent of the Harvard Law School. Student editors make all editorial and organizational decisions and, together with a professional business staff of three, carry out day-to-day operations. Aside from serving as an important academic forum for legal scholarship, the Review has two other goals. First, the journal is designed to be an effective research tool for practicing lawyers and students of the law. Second, it provides opportunities for Review members to develop their own editing and writing skills. Accordingly, each issue contains pieces by student editors as well as outside authors. The Review publishes articles by professors, judges, and practitioners and solicits reviews of important recent books from recognized experts. All articles — even those by the most respected authorities — are subjected to a rigorous editorial process designed to sharpen and strengthen substance and tone.