Democratizing Criminal Law: Feasibility, Utility, and the Challenge of Social Change

There are good reasons to be initially hesitant about shaping criminal law rules to track the justice judgments of ordinary people. People seem to disagree about many criminal law issues. Their judgments, at least as reflected in many aspects of current law such as three strikes and high penalties for drug offenses, seem harsh to many. Effective crime control would seem to require the expertise of trained experts and scholars who understand the complexities of general deterrence and the identification and incapacitation of the dangerous.

But this brief Essay, which reviews some previous studies and analyses, argues that distributing criminal liability and punishment according to the shared judgments of the community—so-called “empirical desert”—does not have the failings that many assume, such as those described above, and indeed ought to be preferred by both moral philosophers and crime-control utilitarians. It represents the best practical approximation of deontological desert. And it offers the greatest potential for effective crime control because, by tracking community views, the criminal law can build its moral credibility with the community and thereby harness the potentially enormous powers of social influence and internalized norms.