Saturday, December 31, 2011
Andrew E. Taslitz (Howard University - School of Law) has posted The Criminal Republic: Democratic Breakdown as a Cause of Mass Incarceration (Ohio State Journal of Criminal Law, Vol. 9, p. 133, 2011) on SSRN. Here is the abstract:
This article argues that a failure to embrace a particular form of governance, "populist deliberative democracy" (PDD), likely contributes to the rise and persistence of mass incarceration in the United States. The article relies on varied converging sources of data. First, the article examines international data, comparing degrees of PDD to incarceration rates in a variety of countries. Second, the article explores interstate data, finding that states with greater PDD have lower incarceration rates. Third, the article examines intrastate data, concluding that city councils in racially-diverse localities have higher PDD and less of a commitment to mass incarceration than do less racially-diverse state and federal legislatures. Fourth, the piece reviews "democratic social science" showing that higher PDD reduces individuals' and groups' willingness to embrace mass incarceration. Finally, the article explores happiness studies, suggesting that PDD raises happiness, which in turn raises empathy for those different from us; reduces an embrace of retributive, incarceration-prone justice; and increases the allure of therapeutic justice. Happiness should also contribute to lower crime rates. The article concludes that, though society-wide American commitment to PDD is likely to remain weak, even smaller, more modest PDD-like reforms within the criminal justice arena might make at least some small contribution to reducing mass incarceration as the ruling paradigm.