When Theory Met Practice: Distributional Analysis in Critical Criminal Law Theorizing

Focusing on criminal law and procedure in particular, this Article seeks to expose various tensions in critical race theorizing and progressive theorizing more broadly, offer some suggestions for a unifying methodology of critical criminal law analysis, and discuss where empirical study might fit into this new program. Progressive (critical race and feminist) theorizing on criminal law is not only subject to the competing frames of critique and formalism, it also exists within an overarching American criminal law culture that can eclipse both concerns over rights violations and structural injustice. The U.S. penal system has become a “peculiar institution” and a defining governance structure of the American state. It boasts specific features, such as being driven by spectacular publicized criminal acts, its massive size, its strong racial skew, and its unrelenting political popularity.

Criminal law theorizing in the United States is also peculiar. Much of criminal law discourse, it seems, is subject to a type of ideological capture in which it is natural and typical to assume that criminalization is a valid, if not preferred, solution to social dysfunction. Thus, while there are a diversity of theories about just criminal liability and punishment, most U.S. criminal legal scholarship is about identifying what is and is not a wrong and proposing ways to address those wrongs through punitive measures.