Benjamin Levin

Criminal Law Exceptionalism

For over half a century, U.S. prison populations have ballooned, and criminal codes have expanded. In recent years, a growing awareness of mass incarceration and the harms of criminal law across lines of race and class has led to a backlash of anti-carceral commentary and social movement energy. Academics and activists have adopted a critical posture, offering not only small-bore reforms, but full-fledged arguments for the abolition of prisons, police, and criminal legal institutions. Where criminal law was once embraced by commentators as a catchall solution to social problems, increasingly it is being rejected, or at least questioned. Instead of a space of moral clarity, the “criminal justice system” is frequently identified by critical scholars and activists as a space of racial subordination, widespread inequality, and rampant institutional violence.

In this Article, I applaud that critical turn. But, I argue that, when taken seriously, contemporary critiques of the criminal system raise foundational questions about power and governance—issues that should transcend the civil/criminal divide and, in some cases, even the distinction between state and private action. What if the problem with the criminal system isn’t exclusively its criminal-ness, but rather is the way in which it is embedded in and reflective of a set of problematic beliefs about how society should be structured and how people should be governed? What if the problems with criminal law are illustrative rather than exceptional? Ultimately, I argue that the current moment should invite a de-exceptionalization of criminal law and a broader reckoning with the distributive consequences and punitive impulses that define the criminal system’s functioning—and, in turn, define so many other features of U.S. political economy beyond criminal law and its administration.

Introduction

When I teach criminal law to first-year students, we continually return to the same question: Why is the problem that we are discussing one that requires a criminal legal solution? We read cases in which people have done great harm or subjected others to grave danger. There are clearly problems. And, regardless of politics or ideological commitments, my students generally agree that these are problems in need of solutions. Criminal law casebooks (like judges and politicians) often ask how severely each defendant should be punished for causing harm or creating risk, or how blameworthy the conduct in question is, but those questions gloss over the threshold decision: Why is the problem at issue one that requires a criminal legal solution rather than some other sort of political, institutional, or regulatory response?1 1.See generally Alice Ristroph, The Curriculum of the Carceral State, 120 Colum. L. Rev. 1631 (2020) [hereinafter Ristroph, Carceral State] (characterizing substantive criminal law classes as reflecting an uncritical, formalist vision of criminal law).Show More The failure to ask that question has helped drive decades of ballooning criminal codes and helped ensure that police, cages, and surveillance have become the dominant solutions to social problems.2 2.See, e.g., Jeffrie G. Murphy, “In the Penal Colony” and Why I Am Now Reluctant to Teach Criminal Law, 33 Crim. Just. Ethics 72, 76 (2014); Shaun Ossei-Owusu, Kangaroo Courts, 134 Harv. L. Rev. F. 200, 211 (2021); Ristroph, Carceral State, supra note 1.Show More

Recent years have seen a deep reckoning with this question as more scholars and activists have adopted a critical stance towards the very foundations of criminal law and punishment.3 3.See, e.g., End the War on Black People, The Movement for Black Lives, http://web.archive.org/web/20200316230511/https://policy.m4bl.org/end-war-on-Black-peo​ple/ [https://perma.cc/U455-Y35M] (last visited Aug. 5, 2022) (“Until we achieve a world where cages are no longer used against our people we demand an immediate change in conditions and an end to all jails, detention centers, youth facilities and prisons as we know them.”); 1 The Red Nation, The Red Deal: Indigenous Action to Save Our Earth 12 (2020), http://therednation.org/wp-content/uploads/2020/04/Red-Deal_Part-I_End-The-Occupation-1.pdf [https://perma.cc/62AR-83YE] (“What Creates Crisis Cannot Solve It . . . . We draw from Black abolitionist traditions to call for divestment away from the caging, criminalizing, and harming of human beings . . . .”); Amna A. Akbar, An Abolitionist Horizon for (Police) Reform, 108 Calif. L. Rev. 1781 (2020) [hereinafter Akbar, Abolitionist Horizon]; Aya Gruber, Policing and “Bluelining”, 58 Hous. L. Rev. 867, 933 (2021) [hereinafter Gruber, “Bluelining”] (“[A]bolitionist ideology . . . is currently experiencing a renaissance in progressive scholarly circles.”); César Cuauhtémoc García Hernández, Abolishing Immigration Prisons, 97 B.U. L. Rev. 245 (2017); Douglas Husak, The Price of Criminal Law Skepticism: Ten Functions of the Criminal Law, 23 New Crim. L. Rev. 27 (2020) (identifying and critiquing a trend of “criminal law skepticism”); Patrisse Cullors, Abolition and Reparations: Histories of Resistance, Transformative Justice, and Accountability, 132 Harv. L. Rev. 1684 (2019); Thomas Ward Frampton, The Dangerous Few: Taking Seriously Prison Abolition and Its Skeptics, 135 Harv. L. Rev. 2010 (2022); Kate Levine, Police Prosecutions and Punitive Instincts, 98 Wash. U. L. Rev. 997 (2021); Allegra M. McLeod, Envisioning Abolition Democracy, 132 Harv. L. Rev. 1613, 1622 (2019) [hereinafter McLeod, Abolition Democracy]; Dorothy E. Roberts, Democratizing Criminal Law as an Abolitionist Project, 111 Nw. U. L. Rev. 1597, 1604–05 (2017).Show More Critiques of mass incarceration have gained ground across the political spectrum,4 4.How much agreement there actually is on what is wrong with the system, though, remains an open question. See generally Benjamin Levin, The Consensus Myth in Criminal Justice Reform, 117 Mich. L. Rev. 259 (2018) [hereinafter Levin, Consensus Myth] (arguing that the “consensus” on “criminal justice reform” is largely illusory). See also infra Section III.D (examining these critiques).Show More and the language of abolition has entered the mainstream.5 5.See infra Section I.B.Show More In short, the embrace of criminal law as the solution to social problems is becoming much less reflexive.6 6.To be clear, this turn is hardly unprecedented, and fundamental structural critiques of criminalization and the criminal system certainly are not new. See, e.g., Angela Y. Davis, Are Prisons Obsolete? (2003); Eugene V. Debs, Walls & Bars (Charles H. Kerr & Co. 1973) (1927); Thomas Mathiesen, The Politics of Abolition Revisited, at xv-xvi (2015) (explaining the need to republish the 1974 abolitionist text in light of contemporary trends in penal policy and activism); Máximo Langer, Penal Abolitionism and Criminal Law Minimalism: Here and There, Now and Then, 134 Harv. L. Rev. F. 42 (2020) (tracking diverse strands of abolitionist thought internationally).Show More But such a development invites its own threshold question—the question that follows every classroom or political discussion of cases involving great harm or risk of harm: If not criminal law, what else?7 7.There are numerous accounts of what might constitute that “something else.” See, e.g., R.A. Duff, The Realm of Criminal Law 280–92 (2018); Fay Honey Knopp et al., Instead of Prisons: A Handbook for Abolitionists (1976).Show More

Of course, that’s the million-dollar question. And, in this Article, I don’t purport to answer it.8 8.And there’s no reason to think that there is a single answer—one way of understanding the metastasization of criminal law and punishment is the allure of a one-size-fits-all regulatory response. See Ruth Wilson Gilmore, Golden Gulag: Prisons, Surplus, Crisis, and Opposition in Globalizing California 2 (2007) (describing a dominant model of governance in which “criminalization and cages [function] as catchall solutions to social problems”).Show More From abolitionist activists to scholars of restorative justice and regulatory compliance, others strive to imagine alternative responses to risk, harm, and wrongdoing. The development of alternative state regulatory regimes, community-based interventions, and other different approaches are increasingly receiving much-needed attention in the literature and in practice.

In this Article, I ask a different question—one that is implicated by this search for alternatives: What makes criminal law distinct from the alternatives? At first blush, the answer may appear obvious, and the question not worth asking—criminal law stands as the most apparent and unrestrained form of state violence, so of course it is not only different, but also worse than all other alternatives.9 9.See infra Section I.A; see also F. Andrew Hessick & Carissa Byrne Hessick, Nondelegation and Criminal Law, 107 Va. L. Rev. 281, 300 (2021) (collecting sources); Donald Dripps, The Exclusivity of the Criminal Law: Toward a “Regulatory Model” of, or “Pathological Perspective” on, the Civil-Criminal Distinction, 7 J. Contemp. Legal Issues 199, 204 (1996) (arguing that criminal law is distinct from other areas of law in that it “connects the power of inflicting pain with the authority of moral judgment”).Show More Criminalization exposes people to the violence and indignities of policing, the prospect of imprisonment and the loss of liberty, and even the death penalty. The most basic freedoms are at stake. But I wonder whether the assumption that criminal law is clearly different from, and unambiguously worse than, other institutional responses to harm and risk implicitly rests on another assumption: that the violence, social control, selective enforcement, and subordination that define the carceral state are exclusive to (or dramatically worse in the context of) the criminal system.10 10.Cf. Sandra G. Mayson, The Concept of Criminal Law, 14 Crim. L. & Phil. 447, 448 (2020) (“[N]otwithstanding the centrality of the question, there appears to be no clear consensus among either scholars or reformers about what differentiates criminal law from every other kind of law.”).Show More

Put differently, what if the problem with the criminal system is not exclusively its criminal-ness, but rather is the way in which it is embedded in and reflective of a set of problematic beliefs about how society should be structured and how people should be governed?11 11.See Jamelia Morgan, Lawyering for Abolitionist Movements, 53 Conn. L. Rev. 605, 609 (2021) (“It would be an understatement to say that abolition is an ambitious and long-term project. Leading abolitionist theorist Ruth Wilson Gilmore captures this ambition in her famous quote, which, to paraphrase, is that to create an abolitionist society, abolitionists have to change one thing: everything.”).Show More What if the problem is the state itself or, at least, a set of power relations that define the U.S. political economy? What if criminal law is illustrative rather than exceptional?12 12.Cf. Jonathan Simon, Rise of the Carceral State, 74 Soc. Rsch. 471, 482–96 (2007) [hereinafter Carceral State] (arguing that prisons historically have operated as reflections of dominant governance models).Show More

In this Article, I contend that increasingly widespread critiques of mass incarceration and mass criminalization appear to reflect significant concerns about social control, punitiveness, and distributive injustice. I argue that, when taken seriously, those concerns in turn speak to overarching issues of power and governance—issues that should transcend the civil/criminal divide and, in some cases, even the distinction between state and private action.13 13.See Mariame Kaba, We Do This ’Til We Free Us: Abolitionist Organizing and Transforming Justice 5 (Tamara K. Nopper ed., 2021) (“The [prison industrial complex] is linked in its logics and operation with all other systems . . . .”).Show More If, as contemporary critical accounts increasingly suggest, the problems of criminal law are not simply the long-recognized flaws of its administration (brutal conditions of confinement, weak protections for defendants’ rights, the violence of policing, etc.) but instead are problems of power relations, domination, hierarchy, and deep-seated societal punitiveness, then I am skeptical that it makes sense to understand criminal law and its pathologies as clearly distinguishable from any imagined alternatives.14 14.Cf. Mayson, supra note 10, at 461 (“A regulatory regime of coercive prevention would have an equally disparate impact on marginalized groups . . . .”).Show More

This Article, then, contributes to a growing literature that frames the “criminal system” and its injustices as implicating legal, political, and institutional dynamics beyond the boundaries of substantive criminal codes and rules of criminal procedure.15 15.See, e.g., Sharon Dolovich & Alexandra Natapoff, Introduction: Mapping the New Criminal Justice Thinking, in The New Criminal Justice Thinking 1, 1 (Sharon Dolovich & Alexandra Natapoff eds., 2017) (“If we are to fix the current criminal system . . . we need a complete and nuanced understanding of what exactly this system is: What social and political institutions, what laws and policies, does it encompass?”); Kaba, supra note 13, at 5; Dorothy Roberts, Torn Apart: How the Child Welfare System Destroys Black Families–and How Abolition Can Build a Safer World 25–26 (2022) [hereinafter Roberts, Torn Apart]; Devon W. Carbado, Blue-on-Black Violence: A Provisional Model of Some of the Causes, 104 Geo. L.J. 1479, 1490 (2016) (“Mass criminalization also enables police contact with African-Americans through the diffusion of criminal justice officials, norms, and strategies into the structure and organization of the welfare state.”); Barbara A. Fedders, The End of School Policing, 109 Calif. L. Rev. 1443 (2021); Eisha Jain, Understanding Immigrant Protective Policies in Criminal Justice, 95 Tex. L. Rev. 161 (2017); see also Jamelia N. Morgan, Policing Marginality in Public Space, 81 Ohio St. L.J. 1045, 1046 (2020) (examining the harms that stem from “managing access to public space using criminal laws”); Dorothy Roberts, Opinion, Abolishing Policing Also Means Abolishing Family Regulation, Imprint (June 16, 2020, 5:26 AM), https://imprintnews.org/child-welfare-2/abolishing-policing-also-means-abolishing-fa​mily-regulation/44480 [https://perma.cc/7CLU-TWH3] (“[P]roposals [to defund the police] ignore how the misnamed ‘child welfare’ system, like the misnamed ‘criminal justice’ system, is designed to regulate and punish black and other marginalized people.”); Heather Schoenfeld, A Research Agenda on Reform: Penal Policy and Politics Across the States, 664 Annals Am. Acad. Pol. & Soc. Sci. 155, 157–58 (2016) (describing the current model of criminalized governance as “incorporat[ing] punitive responses to poverty, employment rights, and even young children’s behavior”); Noah D. Zatz, A New Peonage?: Pay, Work, or Go to Jail in Contemporary Child Support Enforcement and Beyond, 39 Seattle U. L. Rev. 927, 929 (2016) (calling for an examination into the connection between the modern practice of offering work as an alternative to incarceration and peonage as used in the Jim Crow South).Increasingly prevalent arguments that the administration of criminal law can’t or shouldn’t be thought of as a “system” reflect this hesitancy about seeing a bounded, unified set of actors and institutions. See, e.g., Monica Bell, Stephanie Garlock & Alexander Nabavi-Noori, Toward A Demosprudence of Poverty, 69 Duke L.J. 1473, 1475–76 n.7 (2020) [hereinafter Bell et al., Demosprudence of Poverty]; Trevor George Gardner, Immigrant Sanctuary as the “Old Normal”: A Brief History of Police Federalism, 119 Colum. L. Rev. 1, 15 n.44 (2019); Bernard E. Harcourt, The Systems Fallacy: A Genealogy and Critique of Public Policy and Cost-Benefit Analysis, 47 J. Legal Stud. 419, 421–22 (2018); Sara Mayeux, The Idea of “The Criminal Justice System”, 45 Am. J. Crim. L. 55, 65 (2018); John F. Pfaff, Waylaid by a Metaphor: A Deeply Problematic Account of Prison Growth, 111 Mich. L. Rev. 1087, 1089 (2013).Show More This literature seeks to move past a focus only on “mass incarceration,” the “carceral state,” and the most egregious forms of state violence and degrading punishment to examine more pervasive punitive logics and institutions of subordination and control.16 16.Indeed, some commentators question whether the language of “mass incarceration” or the “carceral state” is misleading in its under-inclusivity. See, e.g., Gabriel J. Chin, The New Civil Death: Rethinking Punishment in the Era of Mass Conviction, 160 U. Pa. L. Rev. 1789, 1804 (2012) (“[F]ocusing exclusively on ‘mass incarceration’ obscures the reality that most convicted persons are not sentenced to prison.” (footnote omitted)); Jenny Roberts, Expunging America’s Rap Sheet in the Information Age, 2015 Wis. L. Rev. 321, 325 (arguing that the problem of “mass incarceration” is “better characterized as one of mass criminalization”).Show More

The move to see punitive logics embedded in a host of U.S. institutions, from housing policy to employment law, strikes me as important in and of itself.17 17.Cf. Michel Foucault, Discipline and Punish 297 (Alan Sheridan trans., Vintage Books 2d ed. 1995) (1977) (arguing that society contains a host of ostensibly non-penal institutions, “which, well beyond the frontiers of criminal law, constitute[] what one might call the carceral archipelago”).Show More And, part of my intention here is to advance that move.18 18.See infra note 114 and accompanying text.Show More But, I also hope to highlight a tension that complicates many left and progressive critiques of the criminal system and the carceral state: a skepticism about the state and sources of authority when it comes to criminal institutions, but a faith in or enthusiasm for the state and sources of authority when they are acting in civil, regulatory, or non-criminal capacities.19 19.In this Article, I use “criminal system” or “criminal legal system” advisedly, mindful of increasingly prevalent academic arguments that the administration of criminal law hardly constitutes a “system.” See supra note 15 (collecting sources).Show More In this Article, I ask whether such faith is justified and how left critics of the penal state can reconcile their concerns with arguments for an expanded welfare state, greater corporate social responsibility, and non-criminal disciplinary structures.20 20.Here and throughout, I am aware that “the left” contains multitudes and that there always is a risk of potentially mis-ascribing positions or flattening out nuance when referring to such a large (and ill-defined) political category. Indeed, one of my goals in this Article is to help tease out different strands in the left anti-carceral coalition to highlight the way in which different postures toward institutions of criminal law might reveal different postures towards the state, and vice versa.Show More In this respect, this Article is also a piece of my larger project of interrogating the fraught relationship between progressivism—in both its contemporary and historical incarnations—and carceral politics.21 21.See Benjamin Levin, Imagining the Progressive Prosecutor, 105 Minn. L. Rev. 1415 (2021); Benjamin Levin, Mens Rea Reform and Its Discontents, 109 J. Crim. L. & Criminology 491 (2019); Benjamin Levin, Wage Theft Criminalization, 54 U.C. Davis L. Rev. 1429 (2021).Show More

One way of understanding many libertarian critiques of overcriminalization and arguments for criminal justice reform is that they reflect a basic hostility to state power—criminalization is objectionable because government regulation is objectionable; incarceration is objectionable because it represents an extremely wasteful government spending program.22 22.See, e.g., George F. Will, Opinion, Eric Garner, Criminalized to Death, Wash. Post (Dec. 10, 2014), https://www.washingtonpost.com/opinions/george-will-eric-garner-criminalized-to-death/2014/12/10/9ac70090-7fd4-11e4-9f38-95a187e4c1f7_story.html [https://perma.cc/​TY73-3PPQ]; Donald A. Dripps, Why Gideon Failed: Politics and Feedback Loops in the Reform of Criminal Justice, 70 Wash. & Lee L. Rev. 883, 919 (2013) (“An important strand of contemporary conservative thought indeed sees the modern criminal justice system as big government with its usual defects.”); Jonathan Simon, Law’s Violence, the Strong State, and the Crisis of Mass Imprisonment (for Stuart Hall), 49 Wake Forest L. Rev. 649, 670 (2014) [hereinafter Simon, Law’s Violence] (“The carceral state, it turns out, can also be criticized as a form of big government.”).Show More But, for left critics (myself included), how do we reconcile claims about the state and U.S. political economy as engines of subordination and oppression with calls for more civil regulatory regimes and more government programs?23 23.In focusing on left critics of the carceral state, I don’t mean to suggest that there aren’t significant tensions and contradictions on the right when it comes to criminal policies. Indeed, the support for criminal law among purportedly “anti-regulatory” commentators and lawmakers has been a hallmark of U.S. neoliberalism. See, e.g., Bernard E. Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order 40–41 (2011) [hereinafter Harcourt, Illusion of Free Markets]. And right-leaning anti-criminalization politics have received much-deserved skeptical treatments. See, e.g., Marie Gottschalk, Caught: The Prison State and the Lockdown of American Politics 7–8 (2015); Levin, Consensus Myth, supra note 4.Show More And how do critics of capitalism and structural inequality reconcile those deep-seated commitments with support (tenuous as it may be at times) for schools, employers, and other powerful non-state actors who operate as disciplinary authorities and might ensure “accountability” for harm and wrongdoing?

I worry about the possible risk of embracing criminal law exceptionalism—an acceptance of oppressive state and private institutions as long as they appear to be far enough removed from police, cages, and the ostentatious cruelty of the criminal system.24 24.On different possible understandings of “criminal law exceptionalism,” see generally Alice Ristroph, The Wages of Criminal Law Exceptionalism, Crim. L. & Phil. (Oct. 12, 2021) [hereinafter Ristroph, Wages of Criminal Law Exceptionalism], https://link.springer.com/artic​le/10.1007/s11572-021-09613-5 [https://perma.cc/7T3H-VY4K]. This Article owes a great debt to Ristroph’s characterization and critiques of traditional criminal law exceptionalism. See infra Section I.A.Show More And, I worry that “far enough” may at times rest on overly formalist distinctions between civil and criminal or between public and private, rather than the animating principles and ideologies of punishment, control, and exclusion.25 25.At the very least, I think it’s important to flesh out how we should go about assessing “far enough.”Show More

Ultimately, then, I argue that the current moment should invite a de-exceptionalization of criminal law and a broader reckoning with the distributive consequences and punitive impulses that define the criminal system’s functioning—and, in turn, define so many other features of U.S. political economy beyond criminal law and its administration. To be clear, that’s a reckoning that is underway in some corners.26 26.See infra Section III.D.Show More I take contemporary critical scholarship and activist accounts as an invitation to ask how to avoid replicating the evils of the criminal system in other models of regulation and governance.27 27.See infra Section III.D.Show More To the extent that commentators wish to retain the criminal/civil distinction or some version of criminal law exceptionalism, though, I ask how we might rationalize such a move. What makes criminal law and its attendant institutions different, and how robust are those distinctions as a basis for further advocacy, scholarship, and policymaking?

In addressing these questions and the challenging terrain of the civil/criminal distinction, my argument proceeds in three Parts. In Part I, I address the concepts of criminal law exceptionalism and criminal law skepticism. I examine the long-standing treatment of criminal law as exceptional before introducing the increasingly skeptical literature on the desirability of criminal legal institutions as a response to social problems. I situate this literature alongside arguments for a “positive” abolitionist project and for more forms of non-criminal governance and authority. In Part II, I offer three specific case studies of criminal law exceptionalism—areas where some critics of the criminal system have embraced non-criminal alternatives that, I argue, might risk replicating or reinforcing some of the objectionable features of criminal law and its administration: (1) the continued enthusiasm for state civil and administrative approaches to social problems; (2) critiques of delegation to administrative “experts” in the criminal law realm from commentators who remain supportive of such delegations in non-criminal contexts; and (3) calls for employers, schools, and other non-criminal institutions to exercise disciplinary authority as a means of remedying harm and ensuring “accountability.” Finally, in Part III, I pivot to ask whether and to what extent the exceptions drawn in the previous Part are defensible or desirable. What vision of the state and the criminal system’s ills allows for such an exceptionalist project? And how sweeping or radical a project would one need to embrace in order to reject criminal law exceptionalism and to reject non-criminal forms of discipline and punishment?

  1. See generally Alice Ristroph, The Curriculum of the Carceral State, 120 Colum. L. Rev. 1631 (2020) [hereinafter Ristroph, Carceral State] (characterizing substantive criminal law classes as reflecting an uncritical, formalist vision of criminal law). ↑
  2. See, e.g., Jeffrie G. Murphy, “In the Penal Colony” and Why I Am Now Reluctant to Teach Criminal Law, 33 Crim. Just. Ethics 72, 76 (2014); Shaun Ossei-Owusu, Kangaroo Courts, 134 Harv. L. Rev. F. 200, 211 (2021); Ristroph, Carceral State, supra note 1. ↑
  3.  See, e.g., End the War on Black People, The Movement for Black Lives, http://web.archive.org/web/20200316230511/https://policy.m4bl.org/end-war-on-Black-peo​ple/ [https://perma.cc/U455-Y35M] (last visited Aug. 5, 2022) (“Until we achieve a world where cages are no longer used against our people we demand an immediate change in conditions and an end to all jails, detention centers, youth facilities and prisons as we know them.”); 1 The Red Nation, The Red Deal: Indigenous Action to Save Our Earth 12 (2020), http://therednation.org/wp-content/uploads/2020/04/Red-Deal_Part-I_End-The-Occupation-1.pdf [https://perma.cc/62AR-83YE] (“What Creates Crisis Cannot Solve It . . . . We draw from Black abolitionist traditions to call for divestment away from the caging, criminalizing, and harming of human beings . . . .”); Amna A. Akbar, An Abolitionist Horizon for (Police) Reform, 108 Calif. L. Rev. 1781 (2020) [hereinafter Akbar, Abolitionist Horizon]; Aya Gruber, Policing and “Bluelining”, 58 Hous. L. Rev. 867, 933 (2021) [hereinafter Gruber, “Bluelining”] (“[A]bolitionist ideology . . . is currently experiencing a renaissance in progressive scholarly circles.”); César Cuauhtémoc García Hernández, Abolishing Immigration Prisons, 97 B.U. L. Rev. 245 (2017); Douglas Husak, The Price of Criminal Law Skepticism: Ten Functions of the Criminal Law, 23 New Crim. L. Rev. 27 (2020) (identifying and critiquing a trend of “criminal law skepticism”); Patrisse Cullors, Abolition and Reparations: Histories of Resistance, Transformative Justice, and Accountability, 132 Harv. L. Rev. 1684 (2019); Thomas Ward Frampton, The Dangerous Few: Taking Seriously Prison Abolition and Its Skeptics, 135 Harv. L. Rev. 2010 (2022); Kate Levine, Police Prosecutions and Punitive Instincts, 98 Wash. U. L. Rev. 997 (2021); Allegra M. McLeod, Envisioning Abolition Democracy, 132 Harv. L. Rev. 1613, 1622 (2019) [hereinafter McLeod, Abolition Democracy]; Dorothy E. Roberts, Democratizing Criminal Law as an Abolitionist Project, 111 Nw. U. L. Rev. 1597, 1604–05 (2017). ↑
  4. How much agreement there actually is on what is wrong with the system, though, remains an open question. See generally Benjamin Levin, The Consensus Myth in Criminal Justice Reform, 117 Mich. L. Rev. 259 (2018) [hereinafter Levin, Consensus Myth] (arguing that the “consensus” on “criminal justice reform” is largely illusory). See also infra Section III.D (examining these critiques). ↑
  5. See infra Section I.B. ↑
  6. To be clear, this turn is hardly unprecedented, and fundamental structural critiques of criminalization and the criminal system certainly are not new. See, e.g., Angela Y. Davis, Are Prisons Obsolete? (2003); Eugene V. Debs, Walls & Bars (Charles H. Kerr & Co. 1973) (1927); Thomas Mathiesen, The Politics of Abolition Revisited, at xv-xvi (2015) (explaining the need to republish the 1974 abolitionist text in light of contemporary trends in penal policy and activism); Máximo Langer, Penal Abolitionism and Criminal Law Minimalism: Here and There, Now and Then, 134 Harv. L. Rev. F. 42 (2020) (tracking diverse strands of abolitionist thought internationally). ↑
  7. There are numerous accounts of what might constitute that “something else.” See, e.g., R.A. Duff, The Realm of Criminal Law 280–92 (2018); Fay Honey Knopp et al., Instead of Prisons: A Handbook for Abolitionists (1976). ↑
  8. And there’s no reason to think that there is a single answer—one way of understanding the metastasization of criminal law and punishment is the allure of a one-size-fits-all regulatory response. See Ruth Wilson Gilmore, Golden Gulag: Prisons, Surplus, Crisis, and Opposition in Globalizing California 2 (2007) (describing a dominant model of governance in which “criminalization and cages [function] as catchall solutions to social problems”). ↑
  9. See infra Section I.A; see also F. Andrew Hessick & Carissa Byrne Hessick, Nondelegation and Criminal Law, 107 Va. L. Rev. 281, 300 (2021) (collecting sources); Donald Dripps, The Exclusivity of the Criminal Law: Toward a “Regulatory Model” of, or “Pathological Perspective” on, the Civil-Criminal Distinction, 7 J. Contemp. Legal Issues 199, 204 (1996) (arguing that criminal law is distinct from other areas of law in that it “connects the power of inflicting pain with the authority of moral judgment”). ↑
  10. Cf. Sandra G. Mayson, The Concept of Criminal Law, 14 Crim. L. & Phil. 447, 448 (2020) (“[N]otwithstanding the centrality of the question, there appears to be no clear consensus among either scholars or reformers about what differentiates criminal law from every other kind of law.”). ↑
  11. See Jamelia Morgan, Lawyering for Abolitionist Movements, 53 Conn. L. Rev. 605, 609 (2021) (“It would be an understatement to say that abolition is an ambitious and long-term project. Leading abolitionist theorist Ruth Wilson Gilmore captures this ambition in her famous quote, which, to paraphrase, is that to create an abolitionist society, abolitionists have to change one thing: everything.”). ↑
  12. Cf. Jonathan Simon, Rise of the Carceral State, 74 Soc. Rsch. 471, 482–96 (2007) [hereinafter Carceral State] (arguing that prisons historically have operated as reflections of dominant governance models). ↑
  13. See Mariame Kaba, We Do This ’Til We Free Us: Abolitionist Organizing and Transforming Justice 5 (Tamara K. Nopper ed., 2021) (“The [prison industrial complex] is linked in its logics and operation with all other systems . . . .”). ↑
  14. Cf. Mayson, supra note 10, at 461 (“A regulatory regime of coercive prevention would have an equally disparate impact on marginalized groups . . . .”). ↑
  15. See, e.g., Sharon Dolovich & Alexandra Natapoff, Introduction: Mapping the New Criminal Justice Thinking, in The New Criminal Justice Thinking 1, 1 (Sharon Dolovich & Alexandra Natapoff eds., 2017) (“If we are to fix the current criminal system . . . we need a complete and nuanced understanding of what exactly this system is: What social and political institutions, what laws and policies, does it encompass?”); Kaba, supra note 13, at 5; Dorothy Roberts, Torn Apart: How the Child Welfare System Destroys Black Families–and How Abolition Can Build a Safer World 25–26 (2022) [hereinafter Roberts, Torn Apart]; Devon W. Carbado, Blue-on-Black Violence: A Provisional Model of Some of the Causes, 104 Geo. L.J. 1479, 1490 (2016) (“Mass criminalization also enables police contact with African-Americans through the diffusion of criminal justice officials, norms, and strategies into the structure and organization of the welfare state.”); Barbara A. Fedders, The End of School Policing, 109 Calif. L. Rev. 1443 (2021); Eisha Jain, Understanding Immigrant Protective Policies in Criminal Justice, 95 Tex. L. Rev. 161 (2017); see also Jamelia N. Morgan, Policing Marginality in Public Space, 81 Ohio St. L.J. 1045, 1046 (2020) (examining the harms that stem from “managing access to public space using criminal laws”); Dorothy Roberts, Opinion, Abolishing Policing Also Means Abolishing Family Regulation, Imprint (June 16, 2020, 5:26 AM), https://imprintnews.org/child-welfare-2/abolishing-policing-also-means-abolishing-fa​mily-regulation/44480 [https://perma.cc/7CLU-TWH3] (“[P]roposals [to defund the police] ignore how the misnamed ‘child welfare’ system, like the misnamed ‘criminal justice’ system, is designed to regulate and punish black and other marginalized people.”); Heather Schoenfeld, A Research Agenda on Reform: Penal Policy and Politics Across the States, 664 Annals Am. Acad. Pol. & Soc. Sci. 155, 157–58 (2016) (describing the current model of criminalized governance as “incorporat[ing] punitive responses to poverty, employment rights, and even young children’s behavior”); Noah D. Zatz, A New Peonage?: Pay, Work, or Go to Jail in Contemporary Child Support Enforcement and Beyond, 39 Seattle U. L. Rev. 927, 929 (2016) (calling for an examination into the connection between the modern practice of offering work as an alternative to incarceration and peonage as used in the Jim Crow South).Increasingly prevalent arguments that the administration of criminal law can’t or shouldn’t be thought of as a “system” reflect this hesitancy about seeing a bounded, unified set of actors and institutions. See, e.g., Monica Bell, Stephanie Garlock & Alexander Nabavi-Noori, Toward A Demosprudence of Poverty, 69 Duke L.J. 1473, 1475–76 n.7 (2020) [hereinafter Bell et al., Demosprudence of Poverty]; Trevor George Gardner, Immigrant Sanctuary as the “Old Normal”: A Brief History of Police Federalism, 119 Colum. L. Rev. 1, 15 n.44 (2019); Bernard E. Harcourt, The Systems Fallacy: A Genealogy and Critique of Public Policy and Cost-Benefit Analysis, 47 J. Legal Stud. 419, 421–22 (2018); Sara Mayeux, The Idea of “The Criminal Justice System”, 45 Am. J. Crim. L. 55, 65 (2018); John F. Pfaff, Waylaid by a Metaphor: A Deeply Problematic Account of Prison Growth, 111 Mich. L. Rev. 1087, 1089 (2013). ↑
  16. Indeed, some commentators question whether the language of “mass incarceration” or the “carceral state” is misleading in its under-inclusivity. See, e.g., Gabriel J. Chin, The New Civil Death: Rethinking Punishment in the Era of Mass Conviction, 160 U. Pa. L. Rev. 1789, 1804 (2012) (“[F]ocusing exclusively on ‘mass incarceration’ obscures the reality that most convicted persons are not sentenced to prison.” (footnote omitted)); Jenny Roberts, Expunging America’s Rap Sheet in the Information Age, 2015 Wis. L. Rev. 321, 325 (arguing that the problem of “mass incarceration” is “better characterized as one of mass criminalization”). ↑
  17. Cf. Michel Foucault, Discipline and Punish 297 (Alan Sheridan trans., Vintage Books 2d ed. 1995) (1977) (arguing that society contains a host of ostensibly non-penal institutions, “which, well beyond the frontiers of criminal law, constitute[] what one might call the carceral archipelago”). ↑
  18. See infra note 114 and accompanying text. ↑
  19. In this Article, I use “criminal system” or “criminal legal system” advisedly, mindful of increasingly prevalent academic arguments that the administration of criminal law hardly constitutes a “system.” See supra note 15 (collecting sources). ↑
  20. Here and throughout, I am aware that “the left” contains multitudes and that there always is a risk of potentially mis-ascribing positions or flattening out nuance when referring to such a large (and ill-defined) political category. Indeed, one of my goals in this Article is to help tease out different strands in the left anti-carceral coalition to highlight the way in which different postures toward institutions of criminal law might reveal different postures towards the state, and vice versa. ↑
  21. See Benjamin Levin, Imagining the Progressive Prosecutor, 105 Minn. L. Rev. 1415 (2021); Benjamin Levin, Mens Rea Reform and Its Discontents, 109 J. Crim. L. & Criminology 491 (2019); Benjamin Levin, Wage Theft Criminalization, 54 U.C. Davis L. Rev. 1429 (2021). ↑
  22. See, e.g., George F. Will, Opinion, Eric Garner, Criminalized to Death, Wash. Post (Dec. 10, 2014), https://www.washingtonpost.com/opinions/george-will-eric-garner-criminalized-to-death/2014/12/10/9ac70090-7fd4-11e4-9f38-95a187e4c1f7_story.html [https://perma.cc/​TY73-3PPQ]; Donald A. Dripps, Why Gideon Failed: Politics and Feedback Loops in the Reform of Criminal Justice, 70 Wash. & Lee L. Rev. 883, 919 (2013) (“An important strand of contemporary conservative thought indeed sees the modern criminal justice system as big government with its usual defects.”); Jonathan Simon, Law’s Violence, the Strong State, and the Crisis of Mass Imprisonment (for Stuart Hall), 49 Wake Forest L. Rev. 649, 670 (2014) [hereinafter Simon, Law’s Violence] (“The carceral state, it turns out, can also be criticized as a form of big government.”). ↑
  23. In focusing on left critics of the carceral state, I don’t mean to suggest that there aren’t significant tensions and contradictions on the right when it comes to criminal policies. Indeed, the support for criminal law among purportedly “anti-regulatory” commentators and lawmakers has been a hallmark of U.S. neoliberalism. See, e.g., Bernard E. Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order 40–41 (2011) [hereinafter Harcourt, Illusion of Free Markets]. And right-leaning anti-criminalization politics have received much-deserved skeptical treatments. See, e.g., Marie Gottschalk, Caught: The Prison State and the Lockdown of American Politics 7–8 (2015); Levin, Consensus Myth, supra note 4. ↑
  24. On different possible understandings of “criminal law exceptionalism,” see generally Alice Ristroph, The Wages of Criminal Law Exceptionalism, Crim. L. & Phil. (Oct. 12, 2021) [hereinafter Ristroph, Wages of Criminal Law Exceptionalism], https://link.springer.com/artic​le/10.1007/s11572-021-09613-5 [https://perma.cc/7T3H-VY4K]. This Article owes a great debt to Ristroph’s characterization and critiques of traditional criminal law exceptionalism. See infra Section I.A. ↑
  25. At the very least, I think it’s important to flesh out how we should go about assessing “far enough.” ↑
  26. See infra Section III.D. ↑

  27. See infra Section III.D. ↑

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