Oppositional Politics in Criminal Law and Procedure

There is a democracy deficit at the intersection of crime, race, and poverty. The causes and consequences of hyperincarceration disproportionately affect those least likely to mount an effective oppositional politics: poor people and people of color. This Article breaks new ground by arguing that the democracy deficit calls for a democracyenhancing theory of criminal law and procedure that modifies traditional justifications of retributivism, deterrence, and rehabilitation by prioritizing self-governance. Part I contextualizes the argument within cyclical retrenchments across movements for racial and economic justice. Part II sketches the contours of a democracy-enhancing theory. Part III turns that theoretical lens on a single jurisdiction to map a previously unnoticed constellation of cutting-edge criminal justice reforms. Part IV explains why those reforms were improbable and identifies some conditions that allowed them to occur and occasionally survive counterattack. The Article concludes that those conditions privilege grasstops over grassroots advocacy, and highlights examples of direct action by low-income people and people of color as a vital component of a more broadly democratic foundation for criminal law and procedure. Copyright © 2012 by Janet Moore † Assistant Professor of Law, University of Cincinnati College of Law. J.D./M.A (Philosophy), Duke University; M.A. (Divinity), University of Chicago. E-mail: janet.moore@uc.edu. I thank the American Association of Law Schools’ Criminal Justice Section for selecting a draft of this article for the 2012 Junior Scholar award, and the Harold C. Schott Foundation for funding this research. For invaluable criticism I thank Lou Bilionis, Dan Richman, Ron Wright, Catherine Grosso, Lisa Kern Griffin, Ron Allen, Mark Godsey, Michael Mannheimer, Sandra Sperino, Stephanie McMahon, Felix Chang, Paul Caron, Joe Tomain, Brad Mank, Verna Williams, Emily Houh, and workshop colleagues at Michigan State University, the Central States Law Schools Association, and the annual Institute cosponsored by the International Society for the Reform of Criminal Law and the Criminal Justice Sections of the American Association of Law Schools and the American Bar Association. Emily Homel, Anthony Robertson, and Krista Johnson Umanos provided excellent research assistance. Any errors are my own. SUBMISSION DRAFT 2/11/2013 7:46:00 AM