A Commentary on Three Recent Publications: Part 1 of 3

Well the season of law school finals is almost here…and that means I can’t devote as much attention as I’d like to all of the exciting things happening in criminal law as of late.  However, I did want to take a portion of time to discuss three noteworthy publications.  I think the best method will be to discuss them in three separate posts.

I will dedicate this article to laying the framework of criminal justice reform, then I will discuss a pseudo-study released by the Sentencing Project that acts as a nice companion/response piece to this article.  Finally, I’ll approach recent Gallup data regarding how we as Americans are perceiving crime rates.


The first matter I wanted to comment on briefly is a rather overarching paper by Klingele and colleagues from the University of Wisconsin Law School.  The paper is entitled Reimagining Criminal Justice and is forthcoming in the University of Wisconsin Law Review.  You can find the draft here (you can also find it on SSRN).  Like most law review articles, it’s not very short.  However, I’ll do my best to quickly summarize the arguments.

The article examines the aims of criminal justice from three points of view: efficiency, efficacy, and equity.  All of these possible goals are advanced in the name of public safety, which the authors suggest would be much more frequently achieved if we were to focus on prevention instead of reaction.  Perhaps the points most important to take away are cited theories from earlier work…work which propose that any crime has the following three impetuses: a motivated offender, a suitable target or victim, and an environment lacking capable guardianship.  Thus, the theory is that if you take away any of those three components it becomes impossible for crime to occur.  The authors suggest that there are three ways of taking away the aforementioned elements: (1) make crimes harder to commit, (2) increase the chance of detection, and (3) reduce the benefits derived from criminal activity.

As a whole, the article pushes for a much more participatory as opposed to authoritarian approach to criminal justice.  I like that but I suspect, based on my past psychological research, that there would be a significant divide between liberals and conservatives about the correct approach.  After all, these are essentially societal vs. personal accountability arguments at their heart.

Now, to my chagrin, the article spends no real time talking about the role of criminal defense attorneys in the process, instead considering the police, prosecutors, judges, and corrections officers.  I think it is a rather fatal flaw to not, at the least, acknowledge the profound role that public defenders and private defense attorneys play in shaping criminal justice.  But, c’est la vie.

The authors readily admit their arguments are heavily policy laden, and further admit that their point is more to encourage implementation of methods and tactics that research shows are working to great effect.  I do not disagree with their main goals but I do think their article may be a bit misleading.  Their aim is not actually to reimagine criminal justice but rather to redesign how we perceive and work to ensure public safety.  Given the significance of inchoate and victimless crimes in our current system, there is a lot more to criminal law than just public safety.  Whether or not criminal law should be about more than public safety is an entirely different consideration that I will not presently undertake.

Overall this law review article is definitely worth a read.  It offers some valuable points and, at the very least, a nice compilation of various data sources you might want to check out if you’re looking for information about the state of the criminal justice system (broadly defined).

In my next post, I’ll consider a recent paper that seeks to answer which is more effective: increasing the harshness of sentencing or the likelihood of being incarcerated?  Stay tuned; it’s coming in the next day or two!

-Zachary Cloud


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