Draft (4/15/18) – Please do not cite or circulate without permission

THE CONSENSUS MYTH IN CRIMINAL JUSTICE REFORM
Benjamin Levin*
(forthcoming Michigan Law Review)
It has become popular to identify a “consensus” on criminal justice reform, but how
deep is that consensus, actually? This Article argues that the purported consensus is much more
limited than it initially appears. Despite shared reformist vocabulary, the consensus rests on
distinct critiques that identify different flaws and justify distinct policy solutions. The underlying
disagreements transcend traditional left/right political divides and speak to deeper disputes about
the state and the role of criminal law in society.
The Article maps two prevailing, but fundamentally distinct, critiques of criminal law:
(1) the quantitative approach (what I call the “over” frame); and (2) the qualitative approach
(what I call the “mass” frame). The “over” frame grows from a belief that criminal law has an
important and legitimate function, but that the law’s operations have exceeded that function.
This critique assumes that there are optimal rates of incarceration and criminalization, but the
current criminal system is sub-optimal in that it has criminalized too much and incarcerated too
many. In contrast, the “mass” frame focuses on criminal law as a socio-cultural phenomenon.
This reformist frame indicates that the issue is not a mere miscalculation; rather, reforms should
address how the system marginalizes populations and exacerbates both power imbalances and
distributional inequities.
To show how these frames differ, this Article applies the “over” and the “mass”
critique, in turn, to the maligned phenomena of mass incarceration and overcriminalization.
The existing literature on mass incarceration and overcriminalization displays an elision between
these two frames. Some scholars and reformers have adopted one frame exclusively, while others
use the two interchangeably. No matter how much scholars and critics bemoan the troubles of
mass incarceration and overcriminalization, it is hard to believe that they can achieve meaningful
reform if they are talking about fundamentally different problems.
While many scholars may adopt an “over” frame in an effort to attract a broader
range of support or appeal to politicians, “over” policy proposals do not necessarily reach deeper
“mass” concerns. Ultimately, then, this Article argues that a pragmatic turn to the “over”
frame may have significant costs in legitimating deeper structural flaws and failing to address
distributional issues of race, class, and power at the heart of the “mass” critique.
Associate Professor, University of Colorado Law School. For helpful comments, thanks
to Hadar Aviram, David Ball, Monica Bell, Fred Bloom, Jack Chin, Beth Colgan, Andrew
Crespo, Seth Davis, Justin Desautels-Stein, Don Dripps, Dan Epps, Dan Farbman, Thomas
Frampton, Trevor Gardner, Aya Gruber, Eve Hanan, Carissa Hessick, Sharon Jacobs, Irene
Joh, Liz Kamali, Craig Konnoth, Sarah Krakoff, Alex Kreit, Adriaan Lanni, Leah Litman,
Chris Muller, Shakeer Rahman, Carolyn Ramsey, Pierre Schlag, Jocelyn Simonson, Shirin
Sinnar, Scott Skinner-Thompson, Ji Seon Song, Susannah Barton Tobin, Matthew Tokson,
Ahmed White, and members of the Colorado Law Faculty Workshop, the Southwest Criminal
Law Workshop, the Climenko Fellows Workshop, and the Rocky Mountain Junior Scholars’
Forum. I am deeply indebted to my students at Harvard Law School and the University of
Colorado Law School. The commitment to justice and abiding skepticism they brought to
discussions of criminal law helped inspire this Article. Colin Reeves provided exceptional
research assistance.
*

15-Apr-18]

Levin

1

Introduction .................................................................................. 1
I. Mapping Criminal Justice Critiques ...................................... 5
II. Incarceration ........................................................................... 14
A. Mass Incarceration .......................................................... 17
B. Over Incarceration .......................................................... 24
III. Criminalization ..................................................................... 30
A. Overcriminalization ........................................................ 32
B. Mass Criminalization ...................................................... 42
IV. The Stakes of the Distinction ............................................. 48
A. Over Limitations ............................................................. 49
B. Mass Pragmatism ............................................................ 55
V. Conclusion .............................................................................. 58
INTRODUCTION
We live in an era of mass incarceration. Since the early 1970s, the
criminal justice system has expanded rapidly, disproportionately affecting poor
people of color.1 A growing chorus of criminal law scholars, judges, policy
makers, and activists increasingly agree that “too many Americans go to too
many prisons for far too long.”2 We also live in an era of overcriminalization.
During this same time period, state and federal criminal codes have expanded
rapidly to the point where no one knows how many criminal laws actually are
on the books.3 Most adults have—knowingly or unknowingly—committed a
jailable offense.4
But what are “mass incarceration” and “overcriminalization”? They
undoubtedly are significant concepts in both policy and academic circles, not
to mention the popular imagination. Michelle Alexander’s The New Jim Crow:
1 See generally D EVAH P AGER , M ARKED : R ACE , C RIME , AND F INDING WORK IN AN
ERA OF MASS INCARCERATION (2007); WILLIAM J. STUNTZ, THE COLLAPSE OF AMERICAN
CRIMINAL JUSTICE (2011); BRUCE WESTERN, PUNISHMENT AND INEQUALITY IN AMERICA
(2007); Rachel Barkow, The Criminal Regulatory State, in THE NEW CRIMINAL JUSTICE
THINKING 33 (Sharon Dolovich & Alexandra Natapoff, eds. 2017).
2 Charlie Savage, Justice Dept. Seeks to Curtail Stiff Drug Sentences, N.Y. T IMES , Aug. 12, 2013
(quoting then-Attorney General Eric Holder). See generally United States v. Valdovinos, 760
F.3d 322 (4th Cir. 2014) (Davis, J., dissenting); United States v. Young, 766 F.3d 621 (6th Cir.
2014) (Stranch, J., dissenting); Jed S. Rakoff, Why Innocent People Plead Guilty, THE NEW Y ORK
REVIEW OF BOOKS, Nov. 14, 2015; Nat’l Research Council, The Growth of Incarceration in
the United States: Exploring Causes and Consequences (2014); Barack Obama, The President’s
Role in Advancing Criminal Justice Reform, 130 HARV. L. REV . 811 (2017).
3 See, e.g., D OUGLAS N. H USAK , O VERCRIMINALIZATION : T HE L IMITS OF THE
CRIMINAL LAW (2008); Andrew Ashworth, Conceptions of Overcriminalization, 5 OHIO ST. J.
CRIM. L. 407 (2008).
4 See generally H ARVEY A. S ILVERGLATE , T HREE F ELONIES A D AY : H OW THE F EDS
TARGET THE INNOCENT (2009).

2

The Consensus Myth in Criminal Justice Reform

[15-Apr-18

Mass Incarceration in the Age of Colorblindness,5 the critically acclaimed
documentary 13th,6 and a growing body of legal scholarship have popularized
“mass incarceration” as a description of the current structure and operation of
the criminal system.7 Similarly, overcriminalization as a concept has gained
traction. Congress has convened a task force on overcriminalization,8 and the
Heritage Foundation, the Association of Criminal Defense Attorneys, and
other groups have produced extensive reports diagnosing overcriminalization
as one of the primary pathologies afflicting the U.S. criminal system.9 Legal
scholars have organized numerous overcriminalization conferences, and the
phrase appears in law review articles written by academics of differing political
and methodological commitments.10
Yet, despite their prevalence in scholarly and policy discussions, these
two phenomena are ill-defined. In different debates, they appear to have very
different meanings. And, it is not uncommon for a single article to contain a
great deal of slippage in its treatment of what constitutes overcriminalization
or mass incarceration. While there are a plethora of definitions and
approaches, two stand out: (1) a quantitative approach focused on calibration
(i.e., there may be an optimal rate of incarceration or criminalization, but the
current rate is too high); and (2) a more qualitative or sociological approach (i.e.,
MICHELLE ALEXANDER , THE NEW JIM CROW: MASS INCARCERATION IN THE AGE
COLORBLINDNESS (2010).
6 13 TH (Kandoo Films 2016).
7 See, e.g., Devon W. Carbado, Predatory Policing, 85 UMKC L. R EV . 545, 549 (2017)
(“Today, mass incarceration rolls comfortably off the tongues of people of all ideological
stripes.”); James Forman, Jr., Racial Critiques of Mass Incarceration: Beyond the New Jim Crow, 87
N.Y.U. L. REV. 21 (2012) [hereinafter, “Racial Critiques”]; Ian F. Haney López, Post-Racial Racism:
Racial Stratification and Mass Incarceration in the Age of Obama, 98 CALIF . L. REV. 1023 (2010);
Dorothy E. Roberts, The Social and Moral Cost of Mass Incarceration in African American
Communities, 56 STAN . L. REV. 1271 (2004); Andrew E. Taslitz, The Criminal Republic: Democratic
Breakdown As A Cause of Mass Incarceration, 9 OHIO ST. J. CRIM. L. 133 (2011).
8 See Defining the Problem and Scope of Over-Criminalization and Over-Federalization: Hearing Before
the Over-Criminalization Task Force of 2013 of the H. Comm. on the Judiciary, 113th Cong. (2013).
9
Overcriminalization, NAT’L ASSOC. OF CRIMINAL DEFENSE LAWYERS,
http://www.nacdl.org/overcrim/ (last visited Jul. 6, 2017); Overcriminalization, THE
HERITAGE FOUNDATION, http://www.heritage.org/issues/legal/overcriminalization (last
visited
Jul.
6,
2017);
Overcriminalization,
RIGHT
ON
CRIME,
http://rightoncrime.com/category/priorityissues/overcriminalization/ (last visited Jul. 6,
2017);
Overcriminalization,
TEXAS
PUBLIC
POLICY
FOUNDATION,
http://old.texaspolicy.com/issues/overcriminalization (last visited Jul. 6, 2017); Task Force on
Overcriminalization,
ABA,
http://www.americanbar.org/groups/litigation/initiatives/overcriminalization.html
(last
visited Jul. 6, 2017).
10 See, e.g., Sara Sun Beale, The Many Faces of Overcriminalization: From Morals and Mattress Tags
to Overfederalization, 54 AM. U. L. REV. 747 (2005); Jennifer M. Chacón, Overcriminalizing
Immigration, 102 J. CRIM. L. & CRIMINOLOGY 613 (2012); Erik Luna, The Overcriminalization
Phenomenon, 54 AM. U. L. REV. 703 (2005); Glenn Harlan Reynolds, Ham Sandwich Nation: Due
Process When Everything Is a Crime, 113 COLUM. L. REV. SIDEBAR 102 (2013).
5

OF

15-Apr-18]

Levin

3

the phenomena reflect a flawed method of managing populations via criminal
law, resulting in significant social costs reflected across axes of class, gender,
sexuality, and race). This definitional inconsistency is not simply a matter of
theoretical or semantic imprecision. As descriptive terms (i.e., “mass
incarceration” and “overcriminalization”) that carry significant normative
weight, their definitions matter. Uncertainty as to the nature of the
phenomena poses significant real world problems—fixing either of these
problems requires an accurate understanding of the problem itself, and
definitional differences yield vastly different policy solutions.
This Article seeks to address the inconsistency by mapping the two
prevalent critiques or critical tendencies: (1) the quantitative approach (what I
will call the “over” frame); and (2) the qualitative approach (what I will call the
“mass” frame). The over frame takes many forms but—at its core—is rooted in
a belief that the criminal law has an important and legitimate function, but that
it has exceeded that function. There is an optimal rate of incarceration and an
optimal rate of criminalization, but the current criminal system is sub- (or,
perhaps extra-) optimal in that it has criminalized too much and incarcerated
too many. The mass frame, on the other hand, focuses on the criminal system
as a socio-cultural phenomenon.11 The issue is not a miscalibration;12 rather, it
is that criminal law is doing ill by marginalizing populations and exacerbating
troubling power dynamics and distributional inequities.13 Every incarcerated
person might have been guilty of the charged offense, and the critique would
still hold.
The existing literature on mass incarceration and overcriminalization
displays a troubling elision between these two frames. Some scholars and
reformers have adopted one frame exclusively, while others use the two
interchangeably. While it has become popular to identify the current moment
as one of “bipartisan consensus” on criminal justice reform,14 it is important to
recognize how tenuous this consensus is and how much it relies upon different
11 See Alexandra Natapoff, The Penal Pyramid, in T HE N EW C RIMINAL J USTICE
THINKING , supra note 1, at 71 (“[S]ocio-legal theories of power, social control, race, and
institutional structure better explain the criminal process and predict its outcomes.”).
12 See generally Paul Butler, The System Is Working the Way It Is Supposed to: The Limits of
Criminal Justice Reform, 104 GEO. L. J. 1419 (2016).
13 See Stephanos Bibas, Improve, Dynamite, or Dissolve the Criminal Regulatory State, in T HE
NEW CRIMINAL J USTICE THINKING , supra note 1, at 61, 64–65 (describing this view).
14 See, e.g., Alex Altman, Criminal Justice Reform is Becoming Washington’s Bipartisan Cause,
TIME (Feb. 19, 2015), http://time.com/3714876/criminal-justice-reform-is-becomingwashingtons-bipartisan-cause/; Jessica M. Eaglin, The Drug Court Paradigm, 53 AM. CRIM. L.
REV. 595, 640 n. 298 (2016); Eric Holder, Remarks at the National Press Club, 27 FED. SENT. R.
297, 299 (2015) (“[I]n the preliminary data we’ve seen—and the growing, bipartisan consensus
surrounding the work that's underway—they prove unequivocally that criminal justice reform
is an idea whose time has finally come.”); Carl Takei, From Mass Incarceration to Mass Control, and
Back Again: How Bipartisan Criminal Justice Reform May Lead to A For-Profit Nightmare, 20 U. PA.
J.L. & SOC. CHANGE 125, 126–27 (2017).

4

The Consensus Myth in Criminal Justice Reform

[15-Apr-18

frames and different goals.15 No matter how much scholars bemoan the
troubles of mass incarceration and overcriminalization, it is hard to believe that
meaningful reform can occur if they are talking about fundamentally different
problems.
To be clear, my claim is not that these two frames or approaches are
wholly distinct or incompatible. Indeed, the over approach might (and does)
add specificity and substance to the mass approach—data puts meat on the
bones of what might otherwise be a gestural skeleton.16 Likewise, the mass
approach might add theoretical backing to the over approach, helping to
illustrate the effects of an error in calculation.17 And, many scholars, articles,
and books may reflect sympathy or affinity for different tendencies when faced
with different issues or different audiences.
But just because the two approaches might be complementary does
not mean that they are consistent or congruent. Thinking in over terms means
constructing policy solutions designed to reach optimal rates. In turn, reaching
optimal rates requires a consensus on what an optimal rate is. Thinking in mass
terms, on the other hand, invites a more radical or totalizing critique of the
current system and its institutions. If criminal law inherently functions to
marginalize or subjugate poor people of color, it is not clear that imprisoning
fewer black men or increasing enforcement in affluent white neighborhoods—
for example—would remedy deeper structural inequalities in society. Instead,
the mass frame invites a deeper reckoning with questions of political economy
to address the levers of power and the distribution of resources in society.
Over solutions might help mass problems, but they need not.18 And,
importantly, the two critiques operate on different planes and invite solutions
of vastly different magnitudes.
In setting up the typology, this Article proceeds in four Parts. First,
Part I introduces the mass and over frames, situating them (and the typology
itself) within the growing critical literature on the criminal system. Next, Part
II describes scholarly critiques of the criminal system rooted in the language of
mass incarceration. This Part presents a brief genealogy of the phrase “mass
See generally MARIE GOTTSCHALK , CAUGHT: THE PRISON STATE AND THE
LOCKDOWN OF AMERICAN POLITICS (2014) (critiquing the consensus narrative and offering
a skeptical treatment of conservative reform movements).
16 See, e.g., Benjamin Levin, Values and Assumptions in Criminal Adjudication, 129 HARV. L.
REV. F. 379, 387 (2016); Tracey L. Meares & Bernard E. Harcourt, Foreword: Transparent
Adjudication and Social Science Research in Constitutional Criminal Procedure, 90 J. CRIM L. &
CRIMINOLOGY 733, 735 (2000).
17 Cf. Deborah Jones Merritt, Correspondence, Constitutional Fact and Theory: A Response to
Chief Judge Posner, 97 MICH. L. REV. 1287, 1287 (1999) (“[E]mpirical knowledge is most useful
in unmasking the theoretical assumptions that undergird constitutional law. . . .”). Further
mass critiques still rest on an empirical claim about the size and scope of the problem. See note
75, infra.
18 But, as this Article discusses, over solutions are not always responsive to mass concerns,
and may even exacerbate mass problems. See generally Part IV A., infra.
15

15-Apr-18]

Levin

5

incarceration” before teasing out the critiques that fall into the mass and over
frames. Part III employs a similar approach to overcriminalization. This Part
addresses economistic language and approach, while also noting the ways in
which moral philosophers and some theories-of-punishment scholars have
adopted a similar discourse on optimal rates of punishment. The literature on
overcriminalization (unsurprisingly) generally adopts the over frame, but I argue
that some of the overcriminalization literature can (or should) be read as
focusing not on overcriminalization, but on masscriminalization. In Part IV, I
argue that the over frame has gained ground, particularly in discussions of mass
incarceration. This Part examines the ways in which this mis-framing has led
to a flawed “standard story”19 of what is wrong with the criminal system.
Further, this Part contends that the over frame conceals hard and deeply
politicized questions about the role of the state and the proper function of
criminal law. The over frame intuitively may have a pragmatic appeal, but
ultimately, I argue that the turn to an over frame is not costless—it legitimates
deep structural flaws in the criminal system and misses the opportunity to
consider larger reform projects.20
I. MAPPING CRIMINAL JUSTICE CRITIQUES
The conventional account of criminal law scholarship is that it operates
as a sort of echo chamber: there is a consensus that the criminal system is
(with a few notable exceptions)21 too harsh and should be reformed. 22
See JOHN F. PFAFF , LOCKED IN: THE TRUE CAUSES OF MASS INCARCERATION
HOW TO ACHIEVE REAL REFORM (2017).
20 On the concept of “legitimation” in criminal law, see generally Paul D. Butler, Poor People
Lose: Gideon and the Critique of Rights, 122 YALE L.J. 2176, 2189 (2013); Carol S. Steiker &
Jordan M. Steiker, Sober Second Thoughts: Reflections on Two Decades of Constitutional Regulation of
Capital Punishment, 109 HARV. L. REV. 355, 429–32 (1995).
21 See William J. Stuntz, The Pathological Politics of Criminal Law, 100 M ICH . L. R EV . 505, 507
(2001) (noting the “important exception of sexual assault”). Notably, these exceptions tend to
be areas in which progressive or left-leaning scholars favor criminalization that they frame as
exceptional—notably, sexual assault, domestic violence, hate crimes, and environmental and
financial crimes. See, e.g., Susan Estrich, Rape, 95 YALE L.J. 1087 (1986); Mary Kreiner
Ramirez, Prioritizing Justice: Combating Corporate Crime from Task Force to Top Priority, 93 MARQ . L.
REV. 971 (2010) (criticizing “[i]nadequate law enforcement against corporate criminals”); Amy
J. Sepinwall, Guilty by Proxy: Expanding the Boundaries of Responsibility in the Face of Corporate Crime,
63 HASTINGS L.J. 411 (2012); Deborah Tuerkheimer, Underenforcement As Unequal Protection, 57
B.C. L. REV. 1287, 1289 (2016). In the context of each of these crimes, support tends to rest
on arguments that the victims are particularly powerless or marginalized by the legal system
and/or that criminal law is necessary to help advance desirable social ends. See, e.g., RANDALL
KENNEDY, RACE, CRIME AND THE LAW 19 (1997); Aya Gruber, The Feminist War on Crime,
92 IOWA L. REV . 741, 825 (2007); Tania Tetlow, Discriminatory Acquittal, 18 WM. & M ARY
BILL RTS. J. 75, 78 (2009).
22 Throughout the Article I refer to the structures of criminal law’s enforcement and
administration as a “system.” I do so mindful of the compelling critiques of systems theory in
19

AND

6

The Consensus Myth in Criminal Justice Reform

[15-Apr-18

Scholars focused on larger institutional questions tend to decry the current
regime as ineffective, racially disparate, and “broken.”23 This Article challenges
that conventional account. Many scholars undoubtedly begin from this critical
posture,24 but that baseline agreement belies deeper disagreements with real
consequences for criminal justice reform.25 Further, to the extent that other
scholars and commentators have questioned the “bipartisan consensus,” they
have done so along predictable left/right grounds.26 That is, this skeptical
literature tends to conclude that mapping disagreement boils down to
differences between political left and right.27 But that account is not quite
right. The mass and over critiques that this Article describes do not accord
neatly with U.S. political parties or conventional packages of views.28 Instead,
they reflect deeper beliefs about the role of the state and the proper function
this context. See, e.g., Bernard E. Harcourt, The Influence of Systems Analysis on Criminal Law and
Procedure: A Critique of a Style of Judicial Decision-Making (Columbia Public Law Research Paper
No. 14-562, 2017), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3062900 (tracing
the use of “criminal justice system” as a concept in legal and social thought); Benjamin Levin,
Review, Rethinking the Boundaries of “Criminal Justice,” __ OHIO ST. J. CRIM. L. __ (forthcoming
2018); Sara Mayeux, The Idea of the “Criminal Justice System”, __ AM. J. CRIM. L. __ (forthcoming
2018), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3050263 (same).
However, given that most of the literature and activism that I analyze adopts that formulation
and offers a “systemic” critique, I continue to use the terms “criminal system” or “criminal
justice system.”
23 See generally S TUNTZ , supra note 1.
24 There certainly are scholars and commentators active in criminal justice debates who do
not share these baseline critiques, or who do only very narrowly. See, e.g., William Otis,
Sentencing Reform: Let’s Keep What We Know Works and Avoid What We Know Fails, 28 FED. SENT.
R. 219 (2016); William G. Otis, The Case Against the Smarter Sentencing Act, 26 FED. SENT. R. 302
(2014); Hon. J. Harvie Wilkinson III, In Defense of American Criminal Justice, 67 VAND. L. REV.
1099 (2014).
25 See Nicola Lacey, Review, Humanizing The Criminal Justice Machine: Re-Animated Justice or
Frankenstein's Monster?, 126 HARV. L. REV. 1299 (2013) (“[T]he system is in urgent need of
reform marks the limit of scholarly consensus. As soon as one moves to specifics--to analysis
of the particular ways in which the system is defective or problematic; to interpretation of why
these defects or problems have arisen; and perhaps above all, to elaboration of possible
solutions and institutional reforms–one encounters not only the sort of variety that is to be
expected in any vibrant field of scholarship, but also fundamental differences of diagnosis and
prescription.”).
26 But see Joshua Kleinfeld, Reconstructivism: The Place of Criminal Law in Ethical Life,
129 HARV. L. REV. 1485, 1551 (2016) (arguing that differences among utiliatrians,
retributivists, and others complicate the consensus).
27 See, e.g., G OTTSCHALK supra note 15, at xv.
28 That said, as I discuss later, the mass frame tends to reflect some sort of left critique of
social and economic inequality (broadly conceived). See notes 57–58. It is conceivable to me
that there could be some right-leaning version of the mass critique (i.e., identifying a different
set of deep structural issues in U.S. political economy and criminal justice policy), but I have
been unable to identify such a critique in the literature. As discussed later, the over critique
transcends traditional political distinction and is as much the province of the rights-focused
libertarian and the technocratic, progressive consequentialist.

15-Apr-18]

Levin

7

of the criminal system that reject easy political categorization.
To tease out these points of disagreement, this Article examines two
phenomena that have received widespread scholarly and political criticism:
mass incarceration and overcriminalization. Both “mass incarceration” and
“overcriminalization” have become common buzzwords in criminal law
scholarship and in criminal justice policy circles,29 but neither phrase appears
to have a fixed meaning.30 Instead, each phrase has a fluid definition,
reflecting different critiques, concerns, and normative commitments in
different contexts. This Part introduces what I take to be the two dominant
approaches to these pathologies of the criminal system: over and mass. These
approaches, frames, or tendencies reflect two different ways of conceptualizing
what is wrong with the criminal system and how to address reform projects.
To be clear, there are many ways to criticize the system, and the two frames I
introduce here are not exhaustive and do not capture every critique. Further,
scholars and commentators who generally apply one frame may sometimes
apply another frame or may use different approaches for different audiences or
different desired results.31
Nevertheless, the typology offered here maps the two major
ideological frames through which scholars discuss the criminal justice system.
The typology is an attempt to understand an otherwise fluid literature and to
fix the commitments and approaches that currently dominate the field. To the
extent that “criminal justice reform” has become a catchall category for a range
of critiques, proposals, scholarship, and activism,32 it is critical that we
understand what exactly needs to be reformed and to what end.33
29 See, e.g., MARIE GOTTSCHALK, THE PRISON AND THE GALLOWS: THE POLITICS OF
MASS INCARCERATION IN AMERICA (2006); James Forman, Jr., Why Care About Mass
Incarceration?, 108 MICH. L. REV. 993 (2010); López, supra note 7, at 1028 n. 21; Taslitz, supra
note 7, at 133 (“That the last several decades have seen an explosion of Americans’ reliance on
imprisonment as a penal sanction is unquestioned. So vast has this expansion been that the
term ‘mass incarceration’ has entered scholarly vocabulary as a way of describing this
phenomenon.”);
30 See, e.g., PFAFF, supra note 19, at 8 (“Although widely used, [mass incarceration] has no
precise definition . . . .”); Todd Haugh, Overcriminalization’s New Harm Paradigm, 68 VAND. L.
REV. 1191, 1197 (2015) (“For a phenomenon that has received so much sustained attention by
legal scholars, identifying an accepted definition of overcriminalization is surprisingly
difficult.”); Mona Lynch, Mass Incarceration, Legal Change, and Locale, 10 CRIMINOLOGY &
PUBLIC POLICY 673, 673 n. 2 (2011) (“The concept of ‘mass incarceration,’ or ‘mass
imprisonment,’ is not fully defined in the literature. . . .”); Kimberly Thomas, Interpersonal Power
in the Criminal System, 50 AM. CRIM. L. REV. 247, 276 n. 120 (2013); Anne R. Traum, Mass
Incarceration at Sentencing, 64 HASTINGS L.J. 423, 427 (2013) (tracking scholarly debate regarding
the meaning and use of “mass incarceration”).
31 See generally Part IV, infra. And, as noted above, every criminal law scholar is not
necessarily critical of the system. See note 24, supra.
32 See generally Katherine Beckett et al., The End of an Era? Understanding the Contradictions of
Criminal Justice Reform, 664 ANNALS AM. ACAD. POL. & SOC. SCI. 238 (2016).
33 Cf. Sharon Dolovich & Alexandra Natapoff, Introduction: Mapping the New Criminal Justice

8

The Consensus Myth in Criminal Justice Reform

[15-Apr-18

Movements to alter sentencing policy, to address police violence, and
to re-write substantive criminal codes find support in declarations about
scholarly and bipartisan consensus.34 But how broad and real is that
consensus?35 Viewed from thirty thousand feet, one critique of criminal justice
policy looks very similar to the next. And, overstating nuance and difference
might have an effect of stymieing change or discouraging cooperation among
reformers and scholars with varying politics, methods, and commitments. But
glossing over real differences and ignoring nuance ultimately undercuts
cooperation and effective reform as well.36 Without a clear diagnosis of the
Thinking, in THE NEW CRIMINAL JUSTICE THINKING , supra note 1, at 1 (making a similar
argument regarding the definition of the criminal system’s scope); Harcourt, supra note 22, at
5–7 (same); Mayeux, supra note 22, at 5–7 (same).
34 See, e.g., Rachel Bade, Criminal Justice Reform Gains Bipartisan Momentum, POLITICO (July
15, 2015), http://www.politico.com/story/2015/07/criminal-justice-reform-gains-bipartisanmomentum-120125; Radley Balko, Here's What Presidential Candidates' Websites Say About
Criminal
Justice
Reform, WASH.
POST (Aug.
6,
2015),
https://www.washingtonpost.com/news/the-watch/wp/2015/08/06/heres-whatpresidential-candidates-websites-say-about-criminal-justice-reform/ (“Criminal justice reform
is the one issue that just about everyone seems to agree on right now.”); Samuel W. Buell, The
Upside of Overbreadth, 83 N.Y.U. L. REV. 1491, 1497–98 (2008); I. Bennett Capers, The UnderPoliced, 51 WAKE FOREST L. REV. 589, 590 (2016); Erin R. Collins, Status Courts, 105 GEO.
L.J. 1481, 1516 (2017); Andrew Manuel Crespo, Regaining Perspective: Constitutional Criminal
Adjudication in the U.S. Supreme Court, 100 MINN. L. REV. 1985, 1997 (2016); Mary D. Fan,
Beyond Budget-Cut Criminal Justice: The Future of Penal Law, 90 N.C. L. REV. 581, 648 (2012);
Kleinfeld, supra note 26, at 1550–51; Perry L. Moriearty, Implementing Proportionality, 50 U.C.
DAVIS
L.
REV. 961,
991
(2017)
(describing
“a
broadbased consensus that criminal justice reform is needed”); Obama, supra note 2, at 822;
Michelle S. Phelps, Possibilities and Contestation in Twenty-First-Century Us Criminal Justice
Downsizing, 12 ANN . REV. L. & SOC. SCI. 153, 154 (2016); Norman L. Reimer, Will A Summer
of Unease Halt the Momentum for Criminal Justice Reform?, CHAMPION 9, 10 (September/October
2016); Christine S. Scott-Hayward, Shadow Sentencing: The Imposition of Federal Supervised Release,
18 BERKELEY J. CRIM. L. 180, 228 (2013); Stuntz, supra note 21, at 507; Hon. J. Harvie
Wilkinson III, In Defense of American Criminal Justice, 67 VAND . L. REV. 1099, 1099–1100
(2014).
35 See, e.g., GOTTSCHALK, supra note 15; David Jaros, Flawed Coalitions and the Politics of
Crime, 99 IOWA L. REV. 1473, 1507 (2014); Scott-Hayward, supra note 34, at 228; Douglas A.
Berman, Is It Really True that “Conservatives and Liberals Are Increasingly United” on Criminal Justice
Reform?, SENTENCING LAW AND POLICY (Aug. 17, 2012, 10:07 AM), http://
sentencing.typepad.com/sentencing_law_and_policy/2012/08/is-it-really-true-thatconservatives-and-liberals-are-increasingly-united-on-criminal-justice-reform.html).
36 See, e.g., Allegra M. McLeod, Beyond the Carceral State, 95 TEX. L. REV. 651, 664 (2017);
Takei, supra note 14, at 127 (“The left and the right, however, each come to this alliance with
distinct and, ultimately, incompatible interests. Recently, the progressive advocacy community
has begun to seriously grapple with the limits of the left-right alliance. This includes
differences over whether and how to address policing practices and racial disparities in
prosecutions, suspicions that conservatives are using decarceration as a Trojan Horse to
protect white-collar criminals, and disagreement about whether decarceration should be
accompanied by increased societal investment in housing, employment opportunities, health
care, and other social services.”).

15-Apr-18]

Levin

9

disease, how can anyone propose a cure? And, without appreciating
differences in normative commitments and goals, how can we tell if a
proposed reform is making the problem worse or moving the system in the
right direction?
In response to these questions, this Article maps the critical literature
on the criminal system in terms of over and mass.37 The following chart
provides a rough description of the key properties that I associate with each
frame:
Over

Mass

Concerned about the culpability of the
defendant (i.e., that individuals who are
not morally blameworthy or who do not
pose a direct threat to public safety are
being punished).
Accepts policing, prosecution, and
punishment as parts of society, but
argues that the rates are sub-optimal
and/or the various actors’ incentives
require re-calibration.

Concerned about the culpability of the
state (i.e., that individuals are suffering
because of the mode of punishment and
policing and the effects of state
violence).
Fundamentally questions policing,
prosecution, and punishment, and asks
whether re-calibration is possible or
whether the system is inextricably tied to
flawed incentives and troubling
outcomes.

To put a finer point on it and to understand how the frames play out,
the following chart provides a rough overview of this typology as it applies to
several salient issues in criminal justice scholarship and criminal law reform:
Over
Criminalization The state has criminalized too

much conduct, leading to a
situation in which there are
too many substantive criminal
laws on the books.

Incarceration

Collateral
Consequences

The state incarcerates people
for longer than they need to
be incarcerated and locks up
people who pose little danger
to the public.
The state imposes too many
formal collateral
consequences that fail to

Mass
The state has used the
criminal system selectively to
address social problems,
leading to a situation in which
certain individuals and
communities are (or perceive
that they are) criminalized.
The state uses jails and prisons
to manage populations,
effectively increasing
marginalization across lines of
gender, race, and class.
By imposing formal collateral
consequences, the state treats
individuals as though they are

To be clear, for some readers, over and mass as terms may carry the baggage of their
association with other literatures. Nevertheless, in the analysis that follows, I use both terms
advisedly to describe broader trends in or approaches to criminal justice critique.
37

10

Policing

The Consensus Myth in Criminal Justice Reform
distinguish between truly
dangerous individuals with
criminal records and
individuals who are no longer
a public safety threat.
The state “over polices” a
neighborhood or community
when police aggressively stop
individuals who have not
committed crimes or where
police activity reflects
prejudice or assumptions,
rather than the crime rate.

[15-Apr-18

branded and cannot change;
and collateral consequences
extend the effects of
punishment.
The state “over polices” a
neighborhood or community
when aggressive or intrusive
police tactics systematically
inconvenience or marginalize
certain members of the
community.

I will return to this chart later when I examine the potential policy proposals
that respond to each frame. And I will address questions of incarceration and
criminalization at much greater length and in much greater detail in Parts II
and III. But, for the time being, the chart is meant to illustrate that these
frames may identify closely related problems but identify the core evil or the
desired intervention in very different terms.
The over frame treats criminal justice problems as a matter of degree
that can be remedied by re-calibrating the way that the system sorts among
defendants, categorizes conduct, and punishes wrong-doing.38 The core
problem to be addressed is one of scope. This line of critique emphasizes
scope over structure. Former Attorney General Eric Holder’s claim that “too
many Americans go to too many prisons for far too long”39 provides perhaps
the most pithy encapsulation of the critique.40 Similarly the mantra of
conservative criminal justice reform activists—that the state should be “right
on crime”, not “tough on crime”—speaks to a preference for “right sizing”
the criminal system.41 The state has criminalized more conduct than traditional
38 See Stephen F. Smith, Overcoming Overcriminalization, 102 J. CRIM. L. & CRIMINOLOGY
537, 539 (2012) (describing and critiquing this “quantitative” view of overcriminalization);
39 Charlie Savage, Justice Dept. Seeks to Curtail Stiff Drug Sentences, N.Y. T IMES , Aug. 12,
2013 (quoting then-Attorney General Eric Holder); see also Shon Hopwood, Clarity in Criminal
Law, 54 AM. CRIM. L. REV. 695, 702 (2017) (describing “Congress’s penchant for passing too
many criminal laws carrying sentences that are too long”).
40 See also Todd R. Clear, The Effects of High Imprisonment Rates on Communities, 37 CRIME &
JUST. 97, 125 (2008) (“The problem of mass incarceration is entirely produced by the simple
mathematics of two pressure points – how many people enter prison and how long they stay
there.”).
41 See, e.g., McLeod, supra note 36, at 668; Vikrant P. Reddy & Marc A. Levin, Right on
Crime: A Return to First Principles for American Conservatives, 18 TEX. REV. L. & POL. 231 (2014);
Ellen S. Podgor, Introduction Overcriminalization: New Approaches to A Growing Problem, 102 J.
CRIM. L. & CRIMINOLOGY 529, 534 (2012); Statement of Principles, Right on Crime (last
visited
July
5,
2017),
http://www.rightoncrime.com/the-conservative-case-forreform/statement-of-principles/.

15-Apr-18]

Levin

11

justifications for punishment warrant, so the problem might be remedied by
criminalizing less conduct.42 An ideal legislature would adopt the proper
theory of punishment and abolish all criminal statutes that do not serve that
theory or justification. For example, if society were to adopt the harm
principle, then the legislature would be correct to criminalize conduct that
caused harm, regardless of the harm to the defendant caused by punishment.43
Similarly, the state incarcerates for too long because the desired benefits of
incarceration could be obtained more quickly or without such an extreme
degree of punishment.44 Therefore, the state should re-calibrate punishment
to achieve the desired effect while reducing inefficient or unjustified
incarceration.45
Perhaps the easiest way to appreciate and understand the over frame is
to consider its poster child: the “non-violent”46 drug offender.47 Viewed
See, e.g., HUSAK , supra note 3, at 3–4; Sanford H. Kadish, The Crisis of Overcriminalization,
374 ANNALS AM. ACAD. POL. & SOC. SCI. 157 (1967); Paul J. Larkin, Jr., Regulation,
Prohibition, and Overcriminalization: The Proper and Improper Uses of the Criminal Law, 42 HOFSTRA L.
REV. 745, 745 (2014); Luna, supra note 10, at 712–713.
43 Cf. Michal Buchhandler-Raphael, Drugs, Dignity, and Danger: Human Dignity As A
Constitutional Constraint to Limit Overcriminalization, 80 TENN. L. REV. 291, 294–95 (2013)
(advocating for decriminalization of “victimless” crimes). As Bernard Harcourt has shown,
however, applying such a principle is easier said than done. See Bernard E. Harcourt, The
Collapse of the Harm Principle, 90 J. CRIM. L. & CRIMINOLOGY 109, 194 (1999); see also Harmelin
v. Michigan, 501 U.S. 957, 1002 (1991) (Kennedy, J., concurring in the judgment); Eugene
Volokh, Crime Severity and Constitutional Line-Drawing, 90 VA. L. REV. 1957, 1969 (2004).
44 See, e.g., Frank O. Bowman, III, Beyond Band-AIDS: A Proposal for Reconfiguring Federal
Sentencing After Booker, 2005 U. CHI. LEGAL F. 149, 164 (2005); Congressman John Conyers, Jr.,
The Incarceration Explosion, 31 YALE L. & POL’Y REV. 377, 378 (2013) (“This mass incarceration
is overincarceration. . . .[A] criminal justice system based on mass incarceration, in which we
lock up more and more people, and particularly more people of color, with no crime reduction
impact, and at a tremendous financial cost to our federal and state budgets, accomplishes none
of those goals.”); Chad Flanders, Can Retributivism Be Progressive?: A Reply to Professor Gray and
Jonathan Huber, 70 MD. L. REV. 166, 170 (2010); Timothy W. Floyd, Steven’s Choice, 10 OHIO ST.
J. CRIM. L. 203, 203 (2012) (“Although prisons are a necessary evil, we imprison far too many
people in our society, and for far too long.”); Jennifer Seltzer Stitt, Worth Fighting For: Keeping
the Promise of Sentencing Reform, 23 FED. SENT. REP. 126, 128 (2010).
45 See Clear, supra note 40, at 125–26 (“If the problem of mass incarceration is the large
number of people who go into prison and how long they stay there, then the solution is for
fewer to go in and for shorter stays. In other words, the solution is not programmatic. . . .”).
46 While such a discussion falls largely outside the scope of this Article, the distinction
between violent and nonviolent crimes (and defendants) remains far from certain. See generally
Alice Ristroph, Criminal Law in the Shadow of Violence, 62 ALA. L. REV. 571, 621 (2011).
Therefore, even though categorizing a certain crime as “violent” and attaching severe
punishment and collateral consequences may have some intuitive appeal, it is not clear that
courts and legislators have been successful in drawing these lines. See generally id.; Benjamin
Levin, It’s Time To Rethink “Violent” Crime: How Mislabeling Misconduct Contributes To Our Bloated
Criminal
Justice
System,
SALON ,
June
19,
2016,
http://www.salon.com/2016/06/19/its_time_to_rethink_violent_crime_how_mislabeling_m
isconduct_contributes_to_our_bloated_criminal_justice_system/. Indeed, the Supreme Court
42

12

The Consensus Myth in Criminal Justice Reform

[15-Apr-18

through this frame, the individual serving an extended prison sentence for a
drug offense represents the apotheosis of the criminal system’s ills. She is
being punished for conduct that is not necessarily morally blameworthy and
does not necessarily have a victim (contra “violent” crime).48 Her conduct has
been overcriminalized (because it could be regulated effectively non-criminally)
and she has been overincarcerated (because she does not deserve the
punishment).49
The mass frame, on the other hand, is less concerned with the
culpability of the individual defendant.50 Instead, this frame is rooted in an
inherent skepticism about the operation and goals of the criminal system as
embedded in a larger model of governance.51 Where the over frame emphasizes
scope, the mass frame prioritizes structure. The mass critique asks why criminal
law has replaced other regulatory models and what the consequences of
criminal regulation are (e.g., arrest, conviction, and collateral consequences of
both).52 In this respect, mass accounts are largely phenomenological. This line
of critique focuses on the ways in which the criminal system marginalizes both
individual defendants, but also communities that bear the brunt of
criminalization.53 The mass frame would also lead to a critique of the
continues to grapple with what constitutes a “crime of violence” for purpose of “career
offender” statutes. See, e.g., Beckles v. United States, 137 S. Ct. 886 (2017); Welch v. United
States, 136 S. Ct. 1257 (2016); Johnson v. United States, 135 S. Ct. 2551 (2015).
47 See GOTTSCHALK, supra note 15, at 165–69 (criticizing reformers’ focus on those who
have committed “nonviolent, nonserious, nonsex crimes”); JAMES FORMAN, JR., LOCKING UP
OUR OWN: CRIME AND PUNISHMENT IN BLACK AMERICA 221–22 (2017) [hereinafter
“LOCKING UP OUR OWN”] (critiquing the “non-violent only” approach to criminal justice
reform).
48 See, e.g., Buchhandler-Raphael, supra note 43, at 294–95; Floyd, supra note 44, at 203;
Stuart P. Green, Vice Crimes and Preventive Justice, 9 CRIM. L. & PHIL. 561, 562 (2015); Susan L.
Pilcher, Ignorance, Discretion and the Fairness of Notice: Confronting “Apparent Innocence” in the Criminal
Law, 33 AM. CRIM . L. REV. 1, 35 (1995)
49 See Stuart P. Green, Why It’s A Crime to Tear the Tag Off A Mattress: Overcriminalization and
the Moral Content of Regulatory Offenses, 46 EMORY L.J. 1533, 1536 (1997).
50 See, e.g., David Garland, Introduction: The Meaning of Mass Imprisonment, in M ASS
IMPRISONMENT: SOCIAL CAUSES AND CONSEQUENCES 1, 2 (David Garland ed., 2001);
Traum, supra note 30, at 427.
51 See, e.g., ALEXANDER, supra note 5, at 8 (“I came to see that mass incarceration in the
United States had, in fact, emerged as a stunningly comprehensive and well-disguised system
of racialized social control that functions in a manner strikingly similar to Jim Crow.”); Marsha
Weissman, Aspiring to the Impracticable: Alternatives to Incarceration in the Era of Mass Incarceration, 33
N.Y.U. REV. L. & SOC. CHANGE 235, 237 (2009) (“Mass incarceration is a symptom of grave
structural problems in the United States. . . . The reliance on incarceration for social control is
. . . due to . . . larger socio-economic issues and structural racism that have marginalized a large
percentage of the U.S. population.”).
52 See, e.g., Kaaryn Gustafson, The Criminalization of Poverty, 99 J. CRIM. L. & CRIMINOLOGY
643, 716 (2009); Eisha Jain, Arrests As Regulation, 67 STAN. L. REV. 809 (2015).
53 See, e.g., Jonathan Simon, Wechsler’s Century and Ours: Reforming Criminal Law in A Time of
Shifting Rationalities of Government, 7 BUFF. CRIM. L. REV. 247, 265 (2003) (“Mass imprisonment

15-Apr-18]

Levin

13

nonviolent drug offender’s treatment, but it would not rest on the offender’s
lack of culpability.54 Indeed, this frame also can encompass (or invite) critiques
of criminalizing violent conduct.55 That is, this critical tendency transcends a
focus on “nonviolent” offenders or “nonserious” offenses. Generally, this
frame stresses the ways in which the criminal system contributes to and is a
part of greater structural inequalities in society.56 In this respect, the mass
frame is less a critique of the criminal system as such than it is a critique of
legal, social, economic, and racial injustice that uses the criminal system as an
example or a point of entry.57
Ultimately, then, the mass frame is more (or at least more explicitly) an
ideological critique. In contrast, the over frame is more ideologically
indeterminate—the fiscal conservative, the libertarian, and the
liberal/progressive egalitarian all might adopt it. The project of recalibrating
or “right sizing” might (and does) bring together groups whose normative
commitments and vision of the optimal rate of criminalization or incarceration
varies. In contrast, the mass frame—at least in its strong form—is rooted in a
particular (left) ideological critique of neoliberalism, capitalism, and structures
of governance. Of course, there are different flavors of “left”, and mass
critiques and critics have different political valences and endorse different
policy solutions. Some critics adopting a mass frame might embrace what
Allegra McLeod describes as a “prison abolitionist ethic,”58 while others might
abandons the individual as a target of penal power in favor of dangerous classes. The careful
calibration of the social interest in sanctioning certain behaviors is replaced by a zero tolerance
model in which those designated as dangerous are subjected to long-term containment on the
model of waste management. Imprisonment remains a plausible if unpredictable strategy to
deal with serious crime, but mass imprisonment promotes something different, the
indiscriminate use of imprisonment as a response to even modest levels of criminality when
they are associated with feared or despised groups.”).
54 See, e.g., FORMAN, LOCKING UP OUR OWN, supra note 47, at 221–22.
55 See, e.g., FORMAN, LOCKING UP OUR OWN, supra note 47, at 221–22; Ristroph, supra
note 46, at 621 (“The criminal law is a necessary feature of any society of vulnerable embodied
persons. We must punish violence. Or so it seems, until we discover that we are not always
sure what counts as violence, and the criminal law doesn’t always punish what seems to be
violence, and in fact, the greatest source of violence might be the criminal law itself.”).
56 See ALEXANDER, supra note 5, at 185 (describing mass incarceration as a “set of
structural arrangements that locks a racially distinct group into a subordinate political, social,
and economic position”); López, supra note 7, at 1028.
57 See, e.g., Emily Hughes, Investigating Gideon’s Legacy in the U.S. Courts of Appeals, 122
YALE L.J. 2376, 2386 (2013) (conceptualizing “mass incarceration as a social justice or civil
rights issue and not simply a criminal justice issue”).
58 Allegra M. McLeod, Prison Abolition and Grounded Justice, 62 UCLA L. REV. 1156, 1156
(2015); see also Amna A. Akbar, Toward a Radical Imagination of Law, 93 NYU L. REV.
(forthcoming
2018),
available
at
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3061917;
Dorothy
E.
Roberts, Democratizing Criminal Law As an Abolitionist Project, 111 NW. U. L. REV. 1597, 1604–
05 (2017) (“My criminal law scholarship has not claimed that criminalizing pregnant black
women, loitering laws, order-maintenance policing, mass incarceration, capital punishment,

14

The Consensus Myth in Criminal Justice Reform

[15-Apr-18

hold less radical views and be more open to prisons, police, and prosecutors
who served different socio-political ends or who were directly responsible to
marginalized communities. Regardless, these critiques seem to retain a certain
affinity (broadly defined) and a certain commitment to critique or a more
radical reimagining of the state and the criminal system.59
This Part has offered only a rough sketch of two complicated, nuanced
visions of the criminal system’s flaws. In doing this, I am not suggesting that
either frame is monolithic. At times, in this Part and in this Article, the strong
form of either frame may appear unfamiliar or extreme, but—to be clear—I
am not suggesting that each author or article cited would endorse that strong
form. Nor am I suggesting that a given author or article adopts only one
approach. Instead, my hope is to use this strong form of the typology to map
the prevailing critiques of the criminal system and to emphasize the ways in
which very different legal, political, and institutional reforms might flow from
different frames. In the next two Parts, I explain the two frames using as
examples the lively scholarly debates about mass incarceration and
overcriminalization.
II. INCARCERATION
While the first law journal article to use the term “mass incarceration”
appeared in 1938,60 the use of the phrase to denote a distinct phenomenon did
not gain significant traction for over half a century. In the intervening
decades, the phrase appeared occasionally in passing, mostly in reference to
the imprisonment of Japanese Americans during World War II.61 Notably,
and police terror enforce a democratic system in a discriminatory manner. Rather, I have
argued that these institutions enforce an undemocratic racial caste system originating in
slavery. Making criminal law democratic, then, requires something far *1605 more radical than
reducing bias or increasing inclusion in this antidemocratic system. Democratizing criminal law
requires dismantling its anti-democratic aspects altogether and reconstituting the criminal
justice system without them. I therefore have joined calls for an abolitionist approach.”).
59 Because of its phenomenological orientation, the mass frame encompasses not only
normative critiques of prison and the carceral state, but also descriptive and theoretical work
in a range of disciplines from history to political science and criminology. See generally Levin,
Rethinking the Boundaries of “Criminal Justice,” supra note 22 (describing the shifting and
overlapping terms of interdisciplinary “criminal justice” scholarship).
60 See Joseph Ullman, A National Program to Develop Probation and Parole, 29 J OUR . OF C RIM .
LAW AND CRIMINOLOGY 517, 524–25 (1938) (“[I]f a prison term is imposed the young
criminal goes to a reformatory or a prison in which the mass incarceration of hundreds or
even thousands of inmates makes almost impossible any effective work of rehabilitation.”).
61 See, e.g., Roger Daniels, American Historians and East Asian Immigrants, 43 P ACIFIC
HISTORICAL REV. 449, 465 (1974); Walter F. Murphy, Civil Liberties and the Japanese American
Cases: A Study in the Uses of Stare Decisis, 11 WESTERN POLITICAL QUARTERLY 3, 6, 12 (1958);
Philip Tajitsu Nash, And Justice for All: An Oral History of the Japanese American Detention Camps by
John Tateishi, 94 YALE L. J. 743, 744, 753 (1985); William L. Richter, “The Revolver Rules the
Day!”: Colonel DeWitt C. Brown and the Freedmen’s Bureau in Paris, Texas, 1867-1868, 93

15-Apr-18]

Levin

15

“mass incarceration” in these articles appears to reflect the state’s focus on
using incarceration to target a discrete racial or ethnic group.62 The
phrase/concept crops up—with a similar connotation—in the early 1980s.63
But its use appears to take off in the 1990s,64 led by the work of David
Garland.65
Twenty years, later, “mass incarceration” has become a commonplace
phrase (or concept)66 used by academics,67 judges,68 and politicians alike.69 The
SOUTHWESTERN HISTORICAL QUARTERLY 303 (1990).
62 See, e.g., Roger Daniels, The Japanese American Cases, 1942-2004: A Social History, 68 L AW
AND C ONTEMP . P ROBS . 159, 163–64 (2005); Nash, supra note 61, at 753
63 See, e.g., Francis Cullen & John Wozniak, Fighting the Appeal of Repression, 18 C RIME &
SOCIAL JUSTICE 23, 23 (1982) (“It is not too much to assert that Americans have long felt
comfortable with the notion that the best solution to the crime problem is to put criminals in
jail. While our role in founding the modern penitentiary is often overstated, it is nevertheless
true that we were the first people to embrace the practice of mass incarceration and to
proselytize others to the merits of this crime control strategy.”); Richard Rubenstein, Moral
Outrage as False Consciousness, 9 THEORY & SOCIETY 745, 746 (1980) (arguing that “institutions
of mass incarceration and enslavement” helped define twentieth century politics); Peter H.
Schuck, The Transformation of Immigration Law, 84 C OLUMBIA L. REV. 1 (1984) (“[M]ass asylum
claims have encouraged the INS to adopt an explicit policy of mass incarceration of
undocumented aliens . . .”).
64 See, e.g., D AVID C OLE , N O EQUAL J USTICE : R ACE AND C LASS IN THE A MERICAN
CRIMINAL JUSTICE SYSTEM (1998); Tracey L. Meares & Dan M. Kahan, Law and (Norms of)
Order in the Inner City, 32 LAW & SOC’Y REV. 805, 813 (1998); Louis Michael Seidman, Akhil
Amar and the (Premature?) Demise of Criminal Procedure Liberalism the Constitution and Criminal
Procedure, 107 Yale L.J. 2281, 2323 (1998).
65 See David Garland, The Limits of the Sovereign State: Strategies of Crime Control in Contemporary
Society, 36 BRIT. J OUR. OF CRIMINOLOGY 445, 461 (1996) (““In a society which manifests
deep social and racial divisions, which experiences high crime rates and levels of insecurity,
where welfare solutions have been politically discredited, and in which a developing
commercial sector encourages and facilitates the expansion of imprisonment—in other words
in societies such as the USA or the UK—a punitive political and legal culture soon gives rise
to mass incarceration, with all of its social and financial consequences.”).
66 As this Part – and this Article, generally – suggests, it is not clear that the phrase always
has a clear theoretical content. Or, to the extent that it does, it is not clear that “mass
incarceration” is a single concept or phenomenon, rather than a catchall for a range of
critiques or pathologies.
67 See, e.g., Vincent Chiao, Mass Incarceration and the Theory of Punishment, C RIM . L. & P HIL .
4–5 (2015); Jonathan Simon, Consuming Obsessions: Housing, Homicide, and Mass Incarceration Since
1950, 2010 U. CHI . LEGAL F. 165 (2010); David Cole, Turning the Corner on Mass Incarceration?,
9 OHIO ST. J. CRIM . L. 27 (2011); Bernard E. Harcourt, Reducing Mass Incarceration: Lessons from
the Deinstitutionalization of Mental Hospitals in the 1960s, 9 OHIO ST. J. CRIM. L. 53 (2011); Mona
Lynch, Mass Incarceration, Legal Change, and Locale, 10 CRIMINOLOGY & PUBLIC POLICY 637
(2011); Alexander Shalom, Bail Reform as a Mass Incarceration Reduction Technique, 66 RUTGERS L.
REV. 921 (2014); Michael Tonry, Remodeling American Sentencing: A Ten-Step Blueprint for Moving
Past Mass Incarceration, 13 CRIMINOLOGY & PUB. POL’Y 503 (2014).
68 See, e.g., United States v. Anglin, 846 F.3d 954, 967 (7th Cir. 2017) (“Citing Professor
Alexander’s seminal work on mass incarceration, the judge assured Anglin that he ‘does not
approach sentencing blindly or without due regard for the consequences of substantial

16

The Consensus Myth in Criminal Justice Reform

[15-Apr-18

following chart constructed from Google Ngram data reflects the spike in use
of “mass incarceration” and “mass imprisonment” during the 1990s and
2000s.70

Of course, this chart hardly paints a complete picture.71 The data only runs
through 2008, so it fails to capture the Obama years and the spike in criminal
justice reform literature following the release of The New Jim Crow.72 And,
critically, it includes books, rather than law review articles. But it does help
illustrate just how important the “mass incarceration” critique is. But what is
that critique?73 This Part argues that there is both an over and a mass iteration
incarceration, particularly in a case like this with a young man age 25.’”); United States v.
Black, 750 F.3d 1053, 1057 (9th Cir. 2014) (Reinhardt, J., dissenting) (“In this era of mass
incarceration, in which we already lock up more of our population than any other nation on
Earth, it is especially curious that the government feels compelled to invent fake crimes and
imprison people for long periods of time. . . .”); United States v. Valdovinos, 760 F.3d 322,
339 (4th Cir. 2014) (Davis, J., dissenting); United States v. Young, 960 F. Supp. 2d 881, 903
(N.D. Iowa 2013 (describing “the nation’s mass incarceration problem”); United States v.
Bannister, 786 F. Supp. 2d 617, 649–51 (E.D.N.Y. 2011); United States v. Haynes, 557 F.
Supp. 2d 200, 202–203 (D.Mass. 2008).
69 See, e.g., Conyers, supra note 44; Juleyka Latingua-Williams, Cory Booker Takes Justice
Reform
Personally,
THE
ATLANTIC ,
May
22,
2016,
https://www.theatlantic.com/politics/archive/2016/05/what-cory-booker-criminalreform/483794/; Obama, supra note 2; Press Release, Leahy: Congress Must Address The
Nation’s
Exploding
Prison
Population
This
Year,
Jul.
22,
2015,
https://www.leahy.senate.gov/press/leahy-congress-must-address-the-nations-explodingprison-population-this-year.
70 Data available at: http://bit.ly/2t2qSXJ.
71 While the Google Ngram viewer remains a helpful way of tracking usage across time, its
limitations are well-documented. See, e.g., Eitan Adam Pechenick, et al., Characterizing the Google
Books Corpus: Strong Limits to Inferences of Socio-Cultural and Linguistic Evolution 10 PLOS ONE 10
(2015); Sarah Zhang, The Pitfalls of Using Google Ngram to Study Language, WIRED , Oct. 12, 2015,
https://www.wired.com/2015/10/pitfalls-of-studying-language-with-google-ngram/.
72 A Westlaw search indicates that The New Jim Crow has been cited by 904 law review
articles since its publication. (Search conducted on April 4, 2018 using search term: “The New
Jim Crow: Mass Incarceration in the Age of Colorblindness”).
73 Cf. Robert Weisberg, Reality-Challenged Philosophies of Punishment, 95 M ARQ . L. R EV . 1203,

15-Apr-18]

Levin

17

of the mass incarceration critique, and that these two critiques have very
different focal points, suggesting very different possible solutions.
A. Mass Incarceration
As noted above, the early uses of the phrase to characterize Japanese
incarceration appear to reflect a mass frame—the focus is the social function or
imprisonment, more so than the sheer number of Japanese Americans who
suffered. But Garland—in what might be the clearest and most cited
definition of the phenomenon74—offers a precise statement of the mass frame:
What are the defining features of mass imprisonment? There
are, I think, two that are essential. One is sheer numbers.
Mass imprisonment implies a rate of imprisonment and a size
of prison population that is markedly above the historical and
comparative norm for societies of this type. The US prison
system clearly meets these criteria. The other feature is the
social concentration of imprisonment’s effects. Imprisonment
becomes mass imprisonment when it ceases to be the
incarceration of individual offenders and becomes the
systematic imprisonment of whole groups of the population.
In the case of the USA, the group concerned is, of course,
young black males in large urban centres. For these sections
of the population, imprisonment has become normalized. It
has come to be a regular, predictable part of experience,
rather than a rare and infrequent event.75
This two-part definition first provides a quantitative statement that—taken
alone—might serve as the basis for the over frame. But, critically, Garland
pairs that concern (i.e., too many people in prison) with a deeper critique of
incarceration’s social function.
From a mass perspective, perhaps the most important word in
Garland’s definition in “systemic.” That is, the critique is not about one-off
interactions between individuals and the legal system; rather, the phenomenon
is a phenomenon because of the structural or systemic dimensions. 76 The
1203–04 (2012) (“Over the past decade, the humanities and social sciences have yielded
substantial literature examining the rise of mass incarceration from various perspectives,
ranging from econometric analyses of contributory factors to cultural critiques of American
exceptionalism in penal policy.”).
74 See Forman, Racial Critiques, supra note 7, at n. 6. (“David Garland is credited with
coining ‘mass imprisonment.’”).
75 Garland, supra note 50, at 5–6. While Garland uses the phrase “mass imprisonment,”
“[t]he terms ‘mass incarceration’ and ‘mass imprisonment’ are used synonymously in the
criminal justice literature.” Forman, Racial Critiques, supra note 7, at n. 6.
76 See also Simon, supra note 53, at 256. But see United States v. Tarango, No. CR 07-2443,
2015 WL 10401775, at *22 (D.N.M. Oct. 29, 2015) (“While many criticize the federal courts

18

The Consensus Myth in Criminal Justice Reform

[15-Apr-18

quantitative critique or element is a means of understanding the larger
structural point—that the criminal system is a form of social control that
creates and exacerbates societal inequalities. It is this element of Garland’s
definition that helps explain the mass definition and how it differs from a
purely quantitative account of mass incarceration.
Critiques applying a mass frame (and even those critical and agnostic
about it) tend to characterize mass incarceration much like Garland does.77
Such critiques have stressed that punishment and marginalization operate
collectively, rather than simply on an individual basis.78 Jonathan Simon has
described mass incarceration as a set of structures that imposes “systemic
inhumanity and racialized violence.”79 Similarly, in The New Jim Crow, Michelle
Alexander argues that mass incarceration has operated as a “stunningly
comprehensive and well-disguised system of racialized social control.”80
Much as Garland’s definition is essential to understanding the mass
critique, so too is The New Jim Crow (and the critical response to it). The New
Jim Crow delivers a searing critique of the criminal system as a model of
marginalizing and subjugating people of color, particularly black men.81 And
the book helped herald a growing public awareness of the criminal system’s
flaws.82 As James Forman, Jr. puts it, Alexander’s book “played a crucial role
for ‘mass incarceration,’ surely this phrase is a hyperbole, or at least a poor shorthand for the
problem being addressed; there is no ‘mass incarceration’—each defendant was separately
convicted and sentenced, one at a time.”).
77 See Nicole P. Dyszlewski, et al., Mass Incarceration: An Annotated Bibliography, 21 R OGER
WILLIAMS U. L. REV. 471, 476–77 (2016) (“Among mass incarceration scholars, David
Garland is the father of mass incarceration.”).
78 See, e.g., Traum, supra note 30, at 427 (identifying mass incarceration as “a group and
systemic problem, not merely an individual problem”); Bruce Western & Christopher Muller,
Mass Incarceration, Macrosociology, and the Poor, 647 THE ANNALS OF THE AMERICAN ACADEMY
OF P OLITICAL AND S OCIAL SCIENCE 166, 168 (2013) (“incarceration must be so extensive
and concentrated that it imprisons not just the individual but the group”).
79 Jonathan Simon, Amnesty Now! Ending Prison Overcrowding Through A Categorical Use of the
Pardon Power, 70 U. MIAMI L. REV. 444, 475 (2016); see also Jonathan Simon, The Return of the
Medical Model: Disease and the Meaning of Imprisonment from John Howard to Brown v. Plata, 48 Harv.
C.R.-C.L. L. REV . 217, 220 (2013).
80 A LEXANDER , supra note 5, at 8; see also Kimberlé W. Crenshaw, From Private Violence to
Mass Incarceration: Thinking Intersectionally About Women, Race, and Social Control, 59 UCLA L.
REV. 1418, 1446 (2012) (“[T]he current crisis that we call mass incarceration or punishment
comprises multiple intersections – not just of identity and power but of systemic dynamics
that themselves do the work of subordination.”).
81 See generally ALEXANDER , supra note 5.
82 See, e.g., G OTTSCHALK , supra note 15, at 3 (“[T]he contributions of Alexander’s The New
Jim Crow cannot be underestimated. No other book has been so vital in making the problem
of the carceral state starkly visible to the wider public and in rallying members of
disadvantaged communities and other groups to take on the project of dismantling it.”);
Richard Delgado & Jean Stefancic, Critical Perspectives on Police, Policing, and Mass Incarceration, 104
GEO. L. J. 1531, 1534–37 (2016) (describing the book as “a modern classic” and observing
that “The New Jim Crow makes a notable contribution to public discourse, shedding light on

15-Apr-18]

Levin

19

in providing advocates with a framework for understanding, and a rhetoric for
criticizing, the War on Drugs. Published in 2010, the book quickly became
required reading for anyone concerned about mass incarceration.”83 Forman
recounts how the D.C. City Council’s 2014 decision to decriminalize marijuana
possession rested—at least in part—on the resonance of the book: “various
witnesses [at hearings] cit[ed] The New Jim Crow and one city council member
explain[ed] that the book had ‘compelled me to be heavily engaged in the
conversation.’”84
In this respect, The New Jim Crow operates as one of the most
recognizable critiques of mass incarceration. But that doesn’t mean that its
approach or arguments have been embraced by other academic critics of mass
incarceration. Scholars have leveled a number of criticisms at The New Jim
Crow:85 the book overstates the role of the War on Drugs and understates the
role of violent crime;86 the book overemphasizes the federal system when, in
fact, states incarcerate vastly more individuals than the federal government;87
the book paints race in the United States as black and white, understating the
criminal system’s impact on Latinos and other racial and ethnic groups;88 the
book focuses on the role of white conservatives and understates the role of
liberals and black lawyers, lawmakers, and activists in constructing the
apparatus of mass incarceration;89 and, the book stretches the historical
analogy to Jim Crow.90 These critiques certainly have some merit and add
important and much-needed nuance to the discussion of the criminal system’s
flaws. But some of the critiques of The New Jim Crow appear to be rooted less
in any problem with Alexander’s arguments than in a difference of frame or
perhaps even a fundamental disagreement as to what mass incarceration is.
Granted, some scholars’ criticisms operate as internal critiques—mass
how society became trapped in the current web of overzealous punishment and then pointing
the way out.”).
83 FORMAN, LOCKING UP OUR OWN, supra note 47, at 220.
84 Id.
85 This list is not meant to be exhaustive. Cf. generally Jonathan Wood, Note, The Old Boss
the Same As the New Boss?: Critiques and Plaudits of Michelle Alexander’s New Jim Crow Metaphor, 7
GEO. J.L. & MOD . CRITICAL RACE PERSP. 175 (2015) (collecting critiques).
86 See, e.g., P FAFF , supra note 19, at 5–6, 21; G OTTSCHALK , supra note 15, at 138; Forman,
Racial Critiques, supra note 7, at 23; Benjamin Levin, Guns and Drugs, 84 FORDHAM L. REV.
2173, 2194 (2016); Anders Walker, The New Jim Crow? Recovering the Progressive Origins of Mass
Incarceration, 41 HASTINGS CONST. L.Q. 845, 846 (2014).
87 See generally P FAFF , supra note 19; see also German Lopez, Why You Can’t Blame Mass
Incarceration on The War on Drugs, VOX, May 30, 2017, https://www.vox.com/policy-andpolitics/2017/5/30/15591700/mass-incarceration-john-pfaff-locked-in.
88 See, e.g., Forman, Racial Critiques, supra note 7, at 60.
89 See, e.g., FORMAN, LOCKING UP OUR OWN, supra note 47; M ICHAEL J AVEN F ORTNER ,
BLACK SILENT MAJORITY: THE ROCKEFELLER DRUG LAWS AND THE POLITICS OF
PUNISHMENT (2015); NAOMI MURAKAWA, THE FIRST CIVIL RIGHT: HOW LIBERALS
BUILT PRISON AMERICA (2014); Forman, Racial Critiques, supra note 7, at 23;
90 See, e.g., Forman, Racial Critiques, supra note 7, at 23; Walker, supra note 86, at 848–55.

20

The Consensus Myth in Criminal Justice Reform

[15-Apr-18

concerns that Alexander might have overstated, understated, or missed. But
from an over perspective, the critique is essentially empirical; for example, the
laws that Alexander blames (primarily drug crimes) actually account for a
comparatively small portion of all prosecutions, arrests, and convictions.91
Instead, jails and prisons are filled disproportionately with people who have
committed violent crimes.92
This critique serves as the backbone for John Pfaff’s well-received
book Locked In: The True Causes of Mass Incarceration and How to Achieve Real
Reform.93 To Pfaff, The New Jim Crow has helped popularize a flawed “standard
story” of mass incarceration.94 The standard story is misleading, according to
Pfaff, as it presents the War on Drugs as the true enemy and convinces
reformers and scholars that re-thinking drug prohibition would reverse or end
mass incarceration.95
This critique of the drug-centric narrative is right as far as it goes. To
the extent that The New Jim Crow’s contribution is the argument that drug
arrests and prosecutions directly caused the spike in U.S. prison populations,
then Pfaff (and others) are spot on and have done an important service by
offering such a corrective.96 Reading The New Jim Crow through an over frame
renders some of its core claims contestable at best and dramatically reduces its
effect. But, despite its importance, Pfaff’s critique assumes only one mode of
critique—an over mode. Mass critiques of the book identify other issues, but
recognize that Alexander’s critique is about more than arrest numbers; it also
operates as a mass account of the criminal system.97
In other words, we might read the book as more of a sociological or
cultural claim—the War on Drugs (as a component of the broader War on
Crime) served to marginalize generations of people of color, particularly young
black men. This marginalization occurs via formal legal structures—collateral
consequences in the labor market, in housing, and in voting rights98—and also
via social and legal estrangement.99 So, the impact of the War on Drugs
transcends any data that we could track using the Bureau of Justice Statistics.
In so far as the criminal system serves a function of social control, of public
See, e.g., PFAFF , supra note 19, at 5–6, 21.
See id.
93 See generally P FAFF , supra note 19, at 21–51.
94 See id. at 5.
95 See generally id. at 21–51.
96 I will return to Pfaff’s account (and definition) of mass incarceration in Part I.B., infra.
97 In a sense, The New Jim Crow demonstrates how mass and over approaches can coexist in
the same work. The book rests on both an empirical claim and a cultural claim.
98 See ALEXANDER , supra note 5, at 143, 158, 187, 193. Cf. D EVAH P AGER , M ARKED :
RACE, CRIME, AND FINDING WORK IN AN ERA OF MASS INCARCERATION 28–41 (2007);
BRUCE WESTERN, PUNISHMENT AND INEQUALITY IN AMERICA 6 (2007) (describing the
process of social exclusion).
99 Cf. Monica C. Bell, Police Reform and the Dismantling of Legal Estrangement, 126 Y ALE L. J.
2054, 2083 (2017) (describing the social construction of “legal estrangement”).
91
92

15-Apr-18]

Levin

21

education, and of constructing social meaning,100 the War on Drugs and
aggressive policing of poor people of color sends a critical message—a
message of second-class citizenship and othering.101 Borrowing Garland’s
formulation, “[P]enal exclusion has been layered on top of economic and racial
exclusion,” . . . ensuring that social divisions are deepened . . . and that a
criminalized underclass is brought into existence and systematically
perpetuated.”102
Viewed through the mass frame, then, mass incarceration comprises a
system of making and enforcing criminal law, as much as much as it consists
of individual case outcomes or numbers of people incarcerated.103 Paul Butler
describes “[m]ass incarceration’s process of control” as “the social and legal
apparatus by which poor people [and black people] become losers in criminal
justice.”104 Butler identifies “five steps” that make up the process of exclusion:
(1) The spaces that poor people, especially poor African
Americans, live in receive more law enforcement in the form
of police stops and arrests.
(2) The criminal law deliberately ignores the social conditions
that breed some forms of law-breaking. Deprivations
associated with poverty are usually not “defenses” to criminal
liability, although they may be factors considered in
sentencing.
(3) African Americans, who are disproportionately poor, are
the target of explicit and implicit bias by key actors in the
criminal justice system, including police, prosecutors, and
100 See, e.g., ÉMILE D URKHEIM , T HE D IVISION OF L ABOR IN S OCIETY 102 (W.D. Halls
trans., 2014) (1893); MICHEL FOUCAULT, DISCIPLINE & PUNISH 138 (Alan Sheridan trans.,
2d ed. 1995); Benjamin Levin, Inmates for Rent, Sovereignty for Sale: The Global Prison Market, 23 S.
CAL. INTERDISC . L.J. 509, 554 n. 90 (2014). Cf. RAYMOND GEUSS, THE IDEA OF A
CRITICAL THEORY : HABERMAS AND THE FRANKFURT SCHOOL 59 (1981) (“To say that the
members of the society take a basic social institution to be ‘legitimate’ is to say that they take it
to ‘follow’ from a system of norms they all accept[[,] ... a set of general beliefs (normative
beliefs and other kinds of beliefs) which are organized into a world-picture which they assume
all members of the society hold. So a social institution is considered legitimate if it can be
shown to stand in the right relation to the basic world-picture of the group.”)); DUNCAN
KENNEDY, THE RISE AND FALL OF CLASSICAL LEGAL THOUGHT 347 (1998) (“[T]he legal
system creates as well as reflects consensus (this is true both of legislation and of adjudication).
Its institutional mechanism ‘legitimates,’ in the sense of exercising normative force on the
citizenry.”)
101 See Bell, supra note 99, at 2083.
102 Garland, supra note 50, at 2; see also Jonathan Simon & Richard Sparks, Punishment and
Society: The Emergence of an Academic Field, in THE SAGE HANDBOOK OF PUNISHMENT AND
SOCIETY 11 (Jonathan Simon & Richard Sparks, eds. 2013).
103 See generally D EAN S PADE , N ORMAL L IFE : A DMINISTRATIVE V IOLENCE , C RITICAL
TRANS POLITICS AND THE LIMITS OF LAW 11 (2011).
104 Paul D. Butler, Poor People Lose: Gideon and the Critique of Rights, 122 YALE L.J. 2176,
2183 (2013).

22

The Consensus Myth in Criminal Justice Reform

[15-Apr-18

judges.
(4) Once any person is arrested, she becomes part of a crime
control system of criminal justice, in which guilt is presumed.
Prosecutors, using the legal apparatus of expansive criminal
liability, recidivist statutes, and mandatory minimums, coerce
guilty pleas by threatening defendants with vastly
disproportionate punishment if they go to trial.
(5) Repeat the cycle. A criminal caste is created. Two-thirds
of freed prisoners are rearrested, and half return to prison,
within three years of their release.105
Butler’s account does not foreground guilt or innocence. Rather, his
description is a structural critique of how institutions operate to strip power
and agency from the already-marginalized. The system fails not because it
mistakes the innocent for the guilty, but because it creates a “criminal caste.”106
As Butler’s critique illustrates, the mass frame suggests that mass
incarceration is not just about incarceration as such. Instead, it is a critique of
a mode or method of doing criminal law—of lawmaking, of enforcement, and
of regulating court-involved individuals. Mass incarceration encompasses
modes of policing, interactions between civilians and criminal justice officials,
and a host of causes, effects, and features of the carceral state. For example,
Jack Chin has argued that the term “mass incarceration” “obscures the reality”
of the criminal system.107 According to Chin, “mass conviction” would make a
more appropriate label—it is not incarceration that does much of the harm to
court-involved individuals; instead, conviction (even if unaccompanied by
incarceration) triggers a vast web of collateral consequences and a social status
akin to “civil death.”108 Indeed, mass conviction still would be under-inclusive
or would fail to capture the breadth of the criminal system. Arrest or simply
contact with police officers can be enough to catapult an individual into the
Kafkaesque realm of collateral consequence, fines, and fees.109 That realm,
that web of laws, of social structures, and of formal and informal
Id.
See id.
107 Gabriel J. Chin, The New Civil Death: Rethinking Punishment in the Era of Mass Conviction,
160 U. PA. L. REV. 1789, 1804 (2012).
108 See id.; see also Issa Kohler-Hausmann, Managerial Justice and Mass Misdemeanors, 66 S TAN .
L. REV. 611, 693 (2014) (“The era of mass incarceration might more accurately be called the
era of mass conviction and correctional supervision, as parole and probation populations have
grown at an even faster rate than the incarcerated population.”).
109 See, e.g., Delgado & Stefancic, supra note 82, at 1537; Rachel A. Harmon, Why Arrest?,
115 MICH. L. REV. 307, 314 (2016); Aziz Z. Huq, The Consequences of Disparate Policing:
Evaluating Stop and Frisk As A Modality of Urban Policing, 101 M INN. L. REV. 2397, 2431 (2017);
Jain, supra note 52; Alexandra Natapoff, Misdemeanors, 11 ANN. REV. L. & SOC. SCI . 255, 258
(2015); Alexandra Natapoff, Misdemeanor Decriminalization, 68 VAND . L. REV. 1055, 1079
(2015) [hereinafter “Misdemeanor Decriminalization”].
105
106

15-Apr-18]

Levin

23

consequences comprises the target of critique.110
Taking the broadest or strongest form of the critique, then, leads us to
a deeper critique of the state and broader structures of governance.111 Marie
Gottschalk describes the U.S. structures of governmentality as “the carceral
state.”112 Likewise, Bernard Harcourt describes the post-1970 approach to
criminal justice policy as “neoliberal penality”—the state has adopted a “deregulatory” or free market approach to the economy, but has grown
significantly as an institution of punishment.113 In this vein, a range of mass
critiques emphasize the ways in which a deterioration of the New Deal or
Great Society welfare state has led to a new vision of governance in which the
government replaces provision of benefits with provision of punishment and
where the model of addressing poverty and social problems is via the criminal
system.114 Sharon Dolovich and Alexandra Natapoff argue that “[e]ven as our
See, e.g., Tamar R. Birckhead & Katie Rose Guest Pryal, Introduction, 93 N.C. L. REV .
1211, 1221 (2015) (“Whether it is solitary confinement, the prosecution of minors for
prostitution, racial profiling, criminalizing the mentally ill, or sexually abusing children in
custody, the common denominator is that these practices are all by-products of the systemic
problems that continue to plague our criminal justice system.”); Dorothy E. Roberts,
Privatization and Punishment in the New Age of Reprogenetics, 54 EMORY L. J. 1343, 1350–51 (2005)
(“Mounting social science studies on the community-level impact of mass incarceration reveal
that prison has become a systemic aspect of community members’ family affairs, economic
prospects, political engagement, social norms, and childhood expectations for the future.”).
111 See Akbar, supra note 58, at 20 (describing radical interventions as “expand[ing] the
frame beyond police violence and even criminal justice institutions to the interlocking set of
current and historical systems that propel and draw from anti-Black racism”).
112 See generally Gottschalk, supra note 15; Marie Gottschalk, Dismantling the Carceral State:
The Future of Penal Policy Reform, 84 TEX. L. REV. 1693 (2006) (“Three features distinguish the
U.S. carceral state: the sheer size of its prison and jail population; its reliance on harsh,
degrading sanctions; and the persistence and centrality of the death penalty.”). Cf. Michael
Meranze, Pathology of the Carceral State, L.A. REVIEW OF BOOKS, Feb. 4, 2015,
https://lareviewofbooks.org/article/pathology-carceral-state/
(tying
Gottschalk’s
characterization and critique of the carceral state to Michel Foucault’s conception of the
“carceral archipelago”).
113 See B ERNARD E. H ARCOURT , T HE ILLUSION OF F REE M ARKETS : P UNISHMENT
AND THE MYTH OF NATURAL O RDER 40–44 (2011) (“Neoliberal penality facilitates passing
new criminal statutes and wielding the penal sanction more liberally because that is where
government is necessary, that is where the state can legitimately act, that is the proper and
competent sphere of politics. By creating and reinforcing this categorical division between a
space of free self-regulation and an arena where coercion is necessary, appropriate, and
effective, neoliberal penality has fertilized the growth of the penal domain.”); Bernard E.
Harcourt, On the American Paradox of Laissez Faire and Mass Incarceration, 125 HARV . L. REV . F.
54 (2012); see also Aziza Ahmed, Adjudicating Risk: AIDS, Crime, and Culpability, 2016 WIS. L.
REV. 627, 630 (2016); Allegra M. McLeod, Regulating Sexual Harm: Strangers, Intimates, and Social
Institutional Reform, 102 CALIF . L. REV. 1553, 1581 (2014); Frank Pasquale, Grand Bargains for
Big Data: The Emerging Law of Health Information, 72 MD. L. REV. 682, 765 (2013) (“As Bernard
Harcourt and Loïc Wacquant have shown, neoliberal penality has been a hallmark of U.S.
politics since the 1970s”).
114 See, e.g., N ICOLA L ACEY , T HE P RISONERS ’ D ILEMMA 170–73 (2008); L OÏC
110

24

The Consensus Myth in Criminal Justice Reform

[15-Apr-18

welfare institutions route the disadvantaged into the criminal system, the
criminal process itself functions as a powerful engine of social inequality.” 115
Likewise, Aya Gruber contends that “[t]he tough-on-crime philosophy that
overtook America was not a singular phenomenon, divorced from a larger
political and economic program, but a distinct part of a neoliberal paradigm of
rampant individualism, minimization of government services, and
unconstrained capitalism.”116 That is, mass incarceration reflects a political
system in which the state is “governing through crime.”117
B. Over Incarceration
The over frame shares many similar concerns with the mass frame and
relies on much of the same data, but the underlying definition of the
phenomenon differs, and the breadth of the critique is significantly narrower.
In the introduction to Locked In, Pfaff observes the challenge in defining mass
incarceration.118 Pfaff cites to Garland’s definition in an endnote, observing
that “the second part [of the definition] might do some real work.”119
Nevertheless, Pfaff concludes that “[t]he criticisms over ‘mass incarceration’
essentially boil down to claims that we have too many people in prison . . . and
that we should reduce that number. . . .”120 Race is a part of Pfaff’s critique
(and his reading of others’ critiques), but generally not in the totalizing, caste

WACQUANT, PUNISHING THE POOR 1–3 (2009); Angelina Snodgrass Godoy, Converging on the
Poles: Contemporary Punishment and Democracy in Hemispheric Perspective, 30 LAW & SOC . INQUIRY
515, 517 (2005); RUTH WILSON GILMORE, GOLDEN GULAG: PRISONS, SURPLUS , CRISIS,
AND O PPOSITION IN GLOBALIZING C ALIFORNIA 85–86 (2007); Aya Gruber, Murder,
Minority Victims, and Mercy, 85 U. COLO . L. REV. 129, 171 (2014); Aya Gruber, A Provocative
Defense, 103 CALIF . L. REV. 273, 331 (2015); Gustafson, supra note 52, at 646 n. 12 (“A
number of sociologists use the term criminalization of poverty to describe an element of
neoliberalism that involves the mass incarceration of poor people of color.”); McLeod, supra
note 36, at 667; Eric J. Miller, Drugs, Courts, and the New Penology, 20 STAN . L. & P OL’Y REV.
417, 438 (2009).
115 Sharon Dolovich & Alexandra Natapoff, Introduction: Mapping the New Criminal Justice
Thinking, in THE NEW CRIMINAL JUSTICE THINKING , supra note 1, at 1, 14.
116 Aya Gruber, Rape, Feminism, and the War on Crime, 84 WASH . L. R EV . 581, 618–19
(2009) (footnotes omitted).
117 See JONATHAN SIMON, GOVERNING THROUGH CRIME: HOW THE WAR ON CRIME
TRANSFORMED AMERICAN DEMOCRACY AND CREATED A CULTURE OF FEAR 17 (2007)
(“When we govern through crime, we make crime and the forms of knowledge historically
associated with it—criminal law, popular crime narrative, and criminology—available outside
their limited original subject domains as powerful tools with which to interpret and frame all
forms of social action as a problem for governance.”).
118 See P FAFF , supra note 19, at 8.
119 Id. at 241 n. 13. Pfaff continues that “the first part [i.e., the quantitative portion of the
definition] provides little guidance about when ‘high’ becomes ‘mass.’” Id.
120 Id. at 8.

15-Apr-18]

Levin

25

sense that the mass frame indicates.121 Instead, viewed through an over lens, the
issue is whether too many people of color are incarcerated, as compared to
either an optimal rate or the rate at which white people are incarcerated.122
Pfaff’s book serves as an instructive point of entry into the over frame
for mass incarceration both: (1) because it provides a compelling version of
the account; and (2) it expresses skepticism about the over incarceration frame
and suggested policy solutions.123 To the first point, Pfaff’s account of mass
incarceration, its causes, and its cures rests almost exclusively on quantitative
analysis. Trained as an economist (as well as a lawyer), Pfaff provides a datadriven story of growing prison populations that rejects the primacy of the War
on Drugs, emphasizes the role of prosecutors, and stresses the importance of
states and localities, rather than the federal government.124 In this respect,
Locked In operates as a direct response to The New Jim Crow—using the over
frame, Pfaff sets out to debunk empirical errors and overstatements that he
views as undermining the “standard story” of mass incarceration.125
While different scholars articulate the over critique differently, as a way
of understanding mass incarceration, it rests on a concern about too much.126
Taken in its extreme form, we can imagine mass incarceration represented by
an equation:127
High Rate of Incarceration + 1 = Mass Incarceration
Or:
High Prison Population + 1 = Mass Incarceration
The assumption is that there is an optimal (or acceptable) rate of punishment,
and at some point, society crosses a line, and we get mass incarceration.
Through this frame, “[t]he problem of mass incarceration is entirely produced
by the simple mathematics of two pressure points—how many people enter
121 But see id. at 49 (“It is also essential to address the structural barriers that limit access to
the primary job market in the first place—to focus on making sure people have first chances
before trying to help them get second ones. Yet this is not something that the criminal justice
system is equipped to do, which points to very real limits on what reforms that focus on the
criminal justice system by itself can accomplish.” (footnotes omitted)).
122 See id. at 44–49.
123 Pfaff has articulated similar critiques and arguments elsewhere. See, e.g., John F. Pfaff,
The Complicated Economics of Prison Reform, 114 MICH. L. REV. 951 (2016); The Empirics of Prison
Growth: A Critical Review and Path Forward, 98 J. CRIM. L. & CRIMINOLOGY 547 (2008); Federal
Sentencing in the States: Some Thoughts on Federal Grants and State Imprisonment, 66 HASTINGS L.J.
1567, 1568 (2015); The War on Drugs and Prison Growth: Limited Importance, Limited Legislative
Options, 52 HARV. J. ON LEGIS. 173 (2015); Waylaid by A Metaphor: A Deeply Problematic Account
of Prison Growth, 111 MICH. L. REV. 1087 (2013).
124 See generally P FAFF , supra note 19.
125 See id.
126 See, e.g., H USAK , supra note 3, at 4 (identifying the criminal system’s flaws as boiling
down to “too many crimes” and “too much punishment”); Conyers, supra note 44, at 378
(“This mass incarceration is overincarceration.”).
127 Cf. P FAFF , supra note 19, at 241 n. 13 (expressing frustration about the lack of clarity as
to when “high” incarceration becomes “mass” incarceration).

26

The Consensus Myth in Criminal Justice Reform

[15-Apr-18

prison and how long they stay there.”128 And, by that logic, “[i]f the problem
of mass incarceration is the large number of people who go into prison and
how long they stay there, then the solution is for fewer to go in and for shorter
stays.”129
Mass critiques also may rely on prison, arrest, and conviction data
(reflecting Garland’s first element).130 But those accounts remain focused on
the social control element—the numbers are an illustration of just how
extreme the marginalization is.131 Over critiques, on the other hand, tend to
focus on the data not only as evidence of the problem, but as the problem
itself.132
While Pfaff largely adopts the over frame, he also articulates
compellingly one of the key challenges with such an approach: the lack of a
shared understanding of the optimal or acceptable rate of punishment.133
“Part of the problem,” he explains,
is that no one has provided a metric for determining how
many people in prison is “too many” (except perhaps prison
abolitionists, for whom it is any number much greater than
zero). Should we rely on some sort of strict cost-benefit
analysis – and if so, what sorts of costs and benefits should
we include? Does harm to the inmate count, for example, or
harm to the inmate’s family? And are there other moral
values, such as retributivism or mercy, that argue for more or
fewer people in prison, independent of any effect on crime or
safety or budgets?134
For a model that at first appears to offer greater clarity than the mass frame,135
this question of optimal rates, metrics, and theories of punishment quickly
complicates matters.
Clear, supra note 40, at 125; see also John J. Donohue, III, Economic Models of Crime and
Punishment, 74 SOC . RES. 379, 384 (2007) (identifying mass incarceration as operating through
“more frequent and longer impositions of terms of imprisonment as well as through the war
on drugs”).
129 Clear, supra note 40, at 125–26.
130 See Garland, supra note 50, at 5–6; see also Katherine Beckett & Bruce Western,
Governing Social Marginality: Welfare, Incarceration, and the Transformation of State Policy, in Garland,
supra note 50, at 35–50; Bernard E. Harcourt, An Institutionalization Effect: The Impact of Mental
Hospitalization and Imprisonment on Homicide in the United States, 1934-2001, 40 J. LEGAL STUD.
39, 62 (2011); Dorothy E. Roberts, The Social and Moral Cost of Mass Incarceration in African
American Communities, 56 STAN . L. REV. 1271, 1274 (2004) (“The first feature of mass
incarceration is simply the sheer numbers of African Americans behind bars.”).
131 See generally Beckett & Western, supra note 130.
132 See, e.g., Clear, supra note 40, at 125–26; P FAFF , supra note 19, at 8.
133 See P FAFF , supra note 19, at 8.
134 Id.
135 Cf. Western & Muller, supra note 78, at 168 (describing the second part of Garland’s
two-part definition as “more elliptical” than the first part).
128

15-Apr-18]

Levin

27

Indeed, surveying over critiques of mass incarceration reveals a range of
metrics, cost-benefit analyses, and theories of punishment driving the
designation of “mass.” Some scholars and critics do not necessarily identify
their metric or their theory of socially acceptable incarceration—the current
amount is too much, and it is greater than the amount earlier in U.S. history,
but there is no articulated standard for what the rates should be.136 On the other
hand, some scholars frame mass incarceration as a failure or problem because
it flies in the face of some other value. For a range of critics, the problem is
one based on cost and efficiency: the state should be punishing, but the
current system costs too much, given the limited returns in terms of increasing
public safety.137 This critique has been a staple of the advocacy from
conservative and libertarian criminal justice reformers.138 But an efficiencymaximizing approach also has gained ground with judges, scholars, activists,
and politicians with other political commitments.139
See, e.g., Rachel Barkow & Mark Osler, Restructuring Clemency: The Cost of Ignoring Clemency
and a Plan for Renewal, 82 UNIV. OF CHI. L. REV. 1 (2015); Roger A. Fairfax, Jr., Searching for
Solutions to the Indigent Defense Crisis in the Broader Criminal Justice Reform Agenda, 122 YALE L.J.
2316, 2328 (2013); Michael M. O’Hear, Mass Incarceration in Three Midwestern States: Origins and
Trends, 47 VAL. U. L. REV. 709, 709 (2013); Alexander Shalom, Bail Reform As A Mass
Incarceration Reduction Technique, 66 RUTGERS L. REV. 921, 923 (2014); Taslitz, supra note 7, at
133.
137 See e.g., Cecelia Klingele, The Promises and Perils of Evidence-Based Corrections, 91 N OTRE
DAME L. REV. 537, 551 (2015); Marc Levin, Testimony for House Judiciary Committee
Overcriminalization Task Force (2014), available at http://rightoncrime.com/2014/05/marclevin-testimony-at-house-judiciary-committee-overcriminalization-task-force/; Wayne
A.
Logan, Informal Collateral Consequences, 88 WASH. L. REV. 1103 (2013) (“Driven by a number of
factors, not the least of which is the enormous human and financial cost of mass incarceration,
policy makers are now shrinking prison and jail populations and pursuing cheaper non-brickand-mortar social control options.” (footnotes omitted)); Suzanne Valdez, A Policy Paper on
What Can Be Done About Low-Level, Non-Violent Female Drug Offenders in Kansas, 25 KAN. J.L. &
PUB. POL’Y 131, 133 (2015).
138 See, e.g., Newt Gingrich & Pat Nolan, Op-Ed., Prison Reform: A Smart Way for States To
Save Money and Lives, W ASH. POST, Jan. 7, 2011, http:// www.washingtonpost.com/wpdyn/content/article/2011/01/06/AR2011010604386.html; Reddy & Levin, supra note 41;
Michael Tonry, Making American Sentencing Just, Humane, and Effective, 46 CRIME & JUST. 441,
449 (2017).
139 See, e.g., United States v. Leitch, No. 11-CR-00039 JG, 2013 WL 753445, at *12
(E.D.N.Y. Feb. 28, 2013); United States v. Diaz, No. 11-CR-00821-2 JG, 2013 WL 322243, at
*10 (E.D.N.Y. Jan. 28, 2013) (“[M]ass incarceration comes at great cost; prison is expensive.
The annual cost of housing a prisoner is $21,006 for a minimum-security facility; $25,378 for a
low-security facility; $26,247 for a medium-security facility; and $33,930 for a high-security
facility. The President’s Fiscal Year 2013 budget request for BOP is over $6.9 billion dollars,
an increase of $278 million or 4.2% from the Fiscal Year 2012 budget. The BOP budget
request accounts for about 25% of DOJ’s overall budget request. We will spend almost
exactly as much on federal prisons alone as we do on the entire federal judiciary.” (footnotes
omitted)); Mirko Bagaric, From Arbitrariness to Coherency in Sentencing: Reducing the Rate of
Imprisonment and Crime While Saving Billions of Taxpayer Dollars, 19 MICH. J. RACE & L. 349
(2014); Barkow, supra note 1, at 45; Jessica M. Eaglin, Against Neorehabilitation, 66 SMU L. REV.
136

28

The Consensus Myth in Criminal Justice Reform

[15-Apr-18

Aside from pure economic efficiency, a range of scholars and
commentators embrace an over critique relying on a preferred theory of
punishment. If punishment should be designed for optimal deterrence, the
critique goes, the current rate of punishment is excessive.140 The deterrence
could be achieved by incarcerating fewer individuals for less time. 141 From a
retributive standpoint, the critique sounds in the language of moral desert: an
individual who commits a crime deserves to be punished, but the current
degree of punishment is too great and is not morally required.142
Incapacitationist critics focused on public safety note that the current system
does a bad job sorting out the truly dangerous defendant from the one who
might pose less of a social threat.143 As a result (similarly to the efficiency
critique), the state is incarcerating people who do not (or cease to) pose a
danger to society.144 Finally, some over accounts take up the expressive or
democratic-legitimacy-based concern about “rule of law” and respect for
institutions: how can the criminal system embody community norms and serve
a public educational function when so many people are incarcerated and when
the public perceives the system as unjust or punishment as excessive?145 While
189, 212 (2013) (“Bipartisan calls for reform in particular emphasize evidence that
rehabilitation is cheaper than incarceration.”); Mary D. Fan, Beyond Budget-Cut Criminal Justice:
The Future of Penal Law, 90 N.C. L. REV. 581, 634 (2012); Heather Schoenfeld, The War on
Drugs, the Politics of Crime, and Mass Incarceration in the United States, 15 J. GENDER RACE & JUST.
315, 316 (2012).
140 See, e.g., Mirko Bagaric et. al., Bringing Sentencing into the 21st Century: Closing the Gap
Between Practice and Knowledge by Introducing Expertise into Sentencing Law, 45 HOFSTRA L. REV .
785, 789 (2017)
141 See Robert Weisberg, Empirical Criminal Law Scholarship and the Shift to Institutions, 65
STAN . L. REV. 1371, 1378 (2013).
142 See, e.g., Mirko Bagaric & Sandeep Gopalan, Saving the United States from Lurching to
Another Sentencing Crisis: Taking Proportionality Seriously and Implementing Fair Fixed Penalties, 60 ST.
LOUIS U. L.J. 169, 190 (2016); Joshua Kleinfeld, Two Cultures of Punishment, 68 STAN . L. REV.
933, 1036 (2016); Mark Osler & Judge Mark W. Bennett, A “Holocaust in Slow Motion?”
America’s Mass Incarceration and the Role of Discretion, 7 DEPAUL J. FOR SOC. JUST. 117, 157
(2014) (“[T]here are too many people, especially people of color, in too many prisons, serving
sentences that are far too long, and that this mass incarceration serves no legitimate penal or
law enforcement rationale.”).
143 See, e.g., Guyora Binder & Ben Notterman, Penal Incapacitation: A Situationist Critique, 54
AM. CRIM. L. REV. 1, 3 (2017); Andrew Guthrie Ferguson, Predictive Prosecution, 51 WAKE
FOREST L. REV. 705, 729 (2016).
144 See United States v. Moore, 851 F.3d 666, 676 (7th Cir. 2017) (Posner, J., dissenting
(“Many violent offenders, moreover, age out of crime, often as early as their mid- to latetwenties—‘by the time a person in his 30s has generated a long criminal history suggesting that
he poses a continuing risk, he is likely to have started ‘aging out’ of crime, violent behavior in
particular. . . . A long prison sentence also undermines someone’s ability to find the stabilizing
influence of a job or a spouse, thus increasing the long-run risk that he will reoffend.’”
(quoting Pfaff)).
145 See, e.g., United States v. Spears, 469 F.3d 1166, 1190 (8th Cir. 2006) (Bye, J.,
dissenting), cert. granted, judgment vacated, 552 U.S. 1090 (2008), and opinion vacated in part, reinstated

15-Apr-18]

Levin

29

these critiques might not speak in utilitarian or consequentialist terms (e.g.,
“optimal punishment”), they present an account based on a belief that
justifiable punishment has overflowed its banks.
Of course, these critiques vary dramatically. And, just because a
scholar articulates a preferred theory of punishment or metric does not mean
that Pfaff’s observation lacks merit—how do we know when punishment is
too expensive or what punishment matches the exact degree of a defendant’s
culpability?146 Nevertheless, these over accounts retain a baseline assumption
that some degree of punishment is necessary, and the core functions and
structures of the criminal system are legitimate, but that the current regime
misses the mark in advancing legitimate ends. That is, despite their normative
differences, each of these accounts focuses on the first prong of Garland’s
definition.
But, what about the second element of Garland’s definition? Is it fair
to say that over critiques focus exclusively on element one? I think not.147
Although race plays a different role in these critiques than the mass accounts,
racial disparities remain a major focus of many over critiques.148 Indeed, race
receives significant attention in many over critiques and is often used as a way
to frame what makes over punishment so objectionable.149 Yet, unlike mass
critiques, over characterizations do not purport to reimagine racial hierarchies in
society or to provide a broader account of the relationship among race, law,
and, power. Rather, the over critique of mass incarceration’s racial dimensions
focuses on a narrower form (or forms) of inequality: per capita arrest and
conviction rates; sentence duration; prosecutorial charging decisions; etc. That
is, the over critique targets specific instances of racial inequality reflected in the
in part on reh’g, 533 F.3d 715 (8th Cir. 2008) (“Perceived improper racial disparity fosters
disrespect for the law and lack of confidence in the criminal justice system. . . .”); Lissa Griffin
& Ellen Yaroshefsky, Ministers of Justice and Mass Incarceration, 30 GEO. J. LEGAL ETHICS 301,
321 (2017); Tracey L. Meares, Place and Crime, 73 CHI.-KENT L. REV. 669, 680–84 (1998).
146 See P FAFF , supra note 19, at 8. Indeed, Pfaff’s trenchant critiques of (the empirical
aspects of) the “Standard Story” rest on places where critics’ metrics are not clear or appear to
clash with their critiques or proposed police solutions. For example, Pfaff (like a number of
critics who generally adopt a mass frame), emphasizes the failure to address violent crime.
Many accounts of mass incarceration focus only on “non-violent” crime, despite the majority
of people incarcerated are serving time for “violent” offenses. That is, confronting the
question of violent crime requires a reckoning with who should be incarcerated and for how
long. I take the central thrust of Pfaff’s argument to be that if critics claim that they are
focused on numbers exclusively (i.e., the movement to cut the prison population in half), then
the stories that they are telling of prisons full of non-violent, non-repeat, non-serious
offenders are misleading.
147 Certainly, some over accounts may pay little attention to race or may mention race only
in passing.
148 See, e.g., Spears, 469 F.3d at 1190 (Bye, J., dissenting); S TUNTZ , supra note 1; Osler &
Bennett, supra note 142, at 157.
149 See, e.g., Barkow & Osler, supra note 136; Conyers, supra note 44, at 378

30

The Consensus Myth in Criminal Justice Reform

[15-Apr-18

available data on the criminal system as specific instances in need of a fix.150
For example, take critiques of drug possession enforcement. The over
frame focuses on whether black defendants who used illegal drugs were as
likely to be arrested and serve time as white defendants engaged in the same
conduct.151 Certainly, the mass critic might share these concerns; but the over
critics’ concerns would (at least ostensibly) be addressed if these rates were
equalized, even if that meant leveling up punishment, such that more white
defendants were arrested and charged. As a practical matter, it might well be
that critics adopting an over critique of racialized drug enforcement would balk
if the state actually began enforcing drug laws universally in an effort to
equalize disparities. Nevertheless, the critiques themselves sound as though
such a policy would be responsive.
In short, comparing the mass critique to the over critique reveals some
shared set of basic concerns. But the scope and nature of the critiques appear
to be quite different. The next Part takes the literature on overcriminalization
as a space that reveals a similar divide.
III. CRIMINALIZATION
By all accounts, “overcriminalization” entered the scholarly lexicon in
the 1960s through the work of Sanford Kadish.152 Writing in 1967, Kadish
lamented that “American criminal law . . . has extended the criminal sanction
well beyond . . . fundamental offenses to include very different kinds of
behavior, kinds which threaten far less serious harms, or else highly intangible
ones about which there is no genuine consensus, or even no harms at all.”153
Kadish defines the phenomenon as a pressing one in the criminal justice
system generally, but concludes that it is cause for particular concern in
“situations in which the criminal law is used: (1) to declare or enforce public
standards of private morality, (2) as a means of providing social services in
default of other public agencies, and (3) as a disingenuous means of permitting
police to do indirectly what the law forbids them to do directly.”154
While its definition changed (and the number of crimes on the books
See, e.g., Sonja B. Starr & M. Marit Rehavi, Mandatory Sentencing and Racial Disparity:
Assessing the Role of Prosecutors and the Effects of Booker, 123 YALE L.J. 2, 30 (2013);
151 See, e.g., People v. Price, No. 121557, 2017 WL 598695 (Ill. Jan. 25, 2017) (“Much has
been written recently about whether the mass incarceration of black men for minor drug
offenses through lengthy sentences is an abuse of the justice system’s discretion. I believe that
it is.” (citation omitted)); Kane v. Winn, 319 F. Supp. 2d 162, 179 n.27 (D. Mass. 2004).
152 See Erik Luna, Prosecutorial Decriminalization, 102 J. C RIM . L. & C RIMINOLOGY 785
(2012) (citing Sanford H. Kadish, Legal Norm and Discretion in the Police and Sentencing Processes, 75
HARV. L. REV. 904, 909 (1962)) (“As far as I can tell, Sanford Kadish coined the term
“overcriminalization” in a 1962 article in the Harvard Law Review. . . .”).
153 Kadish, supra note 42, at 17.
154 Id. at 19.
150

15-Apr-18]

Levin

31

increased),155 overcriminalization has remained a staple of criminal law
literature in the ensuing decades.156
Like “mass incarceration,”
“overcriminalization” has seen varied usage over time.157

And, as recurring law review articles illustrate, it remains a topic of continuing
interest to legal academics.158 “Those most closely studying the phenomenon
regard it as a vexing problem of the criminal justice system; some say it is the
most pressing problem in criminal law today.”159 At the same time, the
See, e.g., Am. Bar Ass’n, The Federalization of Criminal Law 7 (1998); Smith, supra note
38, at 538 (“Federal criminal law has been growing at a breakneck pace for generations.
According to a 1998 American Bar Association report, an incredible 40% of the thousands of
federal criminal laws passed since the Civil War were enacted after 1970. . . . On average,
Congress created fifty-seven new crimes every year between 2000 and 2007, roughly the same
rate of criminalization from the two prior decades, resulting today in some 4,500 federal laws
that carry criminal penalties.” (footnotes omitted)).
156 See, e.g., H ERBERT P ACKER , T HE L IMITS OF THE C RIMINAL S ANCTION 249-364
(1968); DAVID A. J. RICHARDS, SEX, DRUGS, DEATH, AND THE LAW: AN ESSAY ON
HUMAN RIGHTS AND OVERCRIMINALIZATION (1982); Darryl K. Brown, Democracy and
Decriminalization, 86 TEX. L. R EV. 223, 224 (2007); John C. Coffee, Jr., Does “Unlawful” Mean
“Criminal”?: Reflections on the Disappearing Tort/crime Distinction in American Law, 71 B.U. L. REV.
193, 197 (1991); John C. Coffee, Jr., Hush!: The Criminal Status of Confidential Information After
McNally and Carpenter and the Enduring Problem of Overcriminalization, 26 AM. CRIM. L. REV. 121
(1988); Cynthia Kwei Yung Lee, Prosecutorial Discretion, Substantial Assistance, and the Federal
Sentencing Guidelines, 42 UCLA L. REV. 105, 159 (1994); Susan L. Pilcher, Ignorance, Discretion and
the Fairness of Notice: Confronting “Apparent Innocence” in the Criminal Law, 33 AM. CRIM . L. REV.
1, 31 (1995)
157 Data available at: http://bit.ly/2vb2Sht. Of course, the same caveats regarding the
limitations of Ngram apply here as they did in the context of mass incarceration. It is worth
noting that, much as the mass incarceration data misses post-New Jim Crow usage, so too does
the ovecriminalization data precede the publication of Douglas Husak’s widely cited
Overcriminalization: The Limits of Criminal Law. See HUSAK , supra note 3.
158 See, e.g., Ellen S. Podgor, Foreward, 7 J.L. E CON . & P OL ’ Y 565 (2011) (describing the
“Overcriminaization 2.0” symposium); Ellen S. Podgor, Overcriminalization: The Politics of Crime,
54 AM. U. L. REV . 541, 541 (2005) [hereinafter “The Politics of Crime”]; Symposium,
Overcriminalization: The Politics of Crime, 54 AM. U. L. REV . 541 (2005); Zach Dillonns, Symposium
on Overcriminalization Foreword, 102 J. CRIM. L. & CRIMINOLOGY 525 (2012).
159 Haugh, supra note 30, at 1194.
155

32

The Consensus Myth in Criminal Justice Reform

[15-Apr-18

phenomenon also has captured the imagination of judges, politicians,
advocates, and policy organizations.160 In 2013, the House Judiciary
Committee unanimously created a taskforce on overcriminalization that met
ten times over the following year.161
Also, much like mass incarceration, overcriminalization is a
phenomenon that has been criticized roundly from a range of political and
ideological perspectives. Notably, for example, the Heritage Foundation and
the National Association of Criminal Defense Lawyers have frequently joined
forces to advocate for solutions to the problem of overcriminalization and
encourage further scholarship on the topic.162 However, as with mass
incarceration, this ostensible consensus belies deeper disagreements rooted in
different conceptions of the phenomenon and the criminal system, itself.
Therefore, as in Part II, this Part teases out those differences by addressing the
phenomenon through both an over and a mass frame.
A. Overcriminalization
Like “mass incarceration”, “overcriminalization” lacks a universally
accepted definition.163 But, unlike the literature on mass incarceration, the
See, e.g., United States v. Young, 766 F.3d 621, 634 (6th Cir. 2014) (“Congress is well
aware of the problem of over-criminalization . . . .”); BRIAN W. WALSH & TIFFANY M.
JOSLYN , HERITAGE FOUND . & NAT’L ASS’N OF CRIMINAL DEF. LAWYERS, WITHOUT
INTENT: HOW C ONGRESS IS ERODING THE CRIMINAL INTENT REQUIREMENT IN
FEDERAL LAW (2010).
161 See Congressional Task Force on Overcriminalization, National Association of
Criminal Defense Attorneys, https://www.nacdl.org/overcrimtaskforce/. The problem of
overcriminalization had been a topic of interest to the Committee prior to the Task Force’s
inception. See Reining in Overcriminalization: Assessing the Problem, Proposing Solutions:
Hearing Before the Subcomm. on Crime, Terrorism, and Homeland Sec. of the H. Comm. on
the Judiciary, 111th Cong. (2010); Over-Criminalization of Conduct/Over-Federalization of
Criminal Law: Hearing Before the Subcomm. on Crime, Terrorism, and Homeland Sec. of the
H. Comm. on the Judiciary, 111th Cong. (2009); Paul J. Larkin, Jr, Public Choice Theory and
Overcriminalization, 36 H ARV. J.L. & PUB. POL’Y 715, 721 (2013).
162 See, e.g., Dillons, supra note 158, at 525 (“Overcriminalization is one of those rare topics
where both the political right and political left come together. The Heritage Foundation and
the American Civil Liberties Union joined forces to cosponsor our live Symposium and send
the unified message that whether you are liberal, moderate, or conservative,
overcriminalization is an issue that can no longer be ignored. Yet, despite this bipartisan
support, the tendency to overcriminalize continues to grow stronger.”); Podgor, The Politics of
Crime, supra note 158, at 541 (“The Heritage Foundation and the National Association of
Criminal Defense Lawyers (NACDL), two groups with very distinct missions, joined together
with the American University Law Review to examine the topic of overcriminalization. Despite
standing at different points on the philosophical spectrum, the two groups recognized the
grave implications of a criminal justice system that fails to consider increased federalization,
the diminished recognition of a mens rea element in criminal statutes, and a growing
prosecution of conduct that could be addressed via civil sanctions.”).
163 See Hopwood, supra note 39, at 703.
160

15-Apr-18]

Levin

33

literature on overcriminalization is chock full of attempts to define the
phenomenon.164 And, also unlike the mass incarceration literature, most of the
overcriminalization literature adopts a decidedly over frame. Put simply,
“‘overcriminalization’ posits that there are too many criminal laws on the
books today,”165 and “overcriminalization is a problem because “we have . . .
too many crimes in the United States.”166
In this respect, overcriminalization invites (or is embedded in) an over
frame for the criminal system—criminal law and punishment have their place,
but the current system of criminalization has run amok. In defining the
phenomenon, most scholars adopt a critique along the lines of Kadish’s, but
they tend to provide a set of descriptive elements or features, rather than a
formal definition.
For example, Sara Sun Beale contends that
overcriminalization is characterized by “(1) excessive unchecked discretion in
enforcement authorities, (2) inevitable disparity among similarly situated
persons, (3) potential for abuse by enforcement authorities, (4) potential to
undermine other significant values and evade significant procedural
protections, and (5) misdirection of scarce resources (opportunity costs).” 167
In explaining how overcriminalization works in practice, Beale emphasizes two
particular classes of crimes that exhibit the properties: (1) crimes that regulate
morals; and (2) federal crimes that stretch the boundaries of federalism.168
Likewise, Erik Luna asserts that “[T]he overcriminalization phenomenon
consists of: (1) untenable offenses; (2) superfluous statutes; (3) doctrines that
overextend culpability; (4) crimes without jurisdictional authority; (5) grossly
disproportionate punishments; and (6) excessive or pretextual enforcement of
petty violations.”169 That is, the over frame indicates that overcriminalization is
as much a phenomenon (i.e., the passage of too many criminal statutes) as a
means of classifying certain laws (i.e., criminal statutes that are objectionable,
unnecessarily, or illegitimate).
Just as the over critique of mass incarceration begged the question of
baselines or metrics,170 so too does this way of thinking about
164 See, e.g., Chacón, supra note 10, at 648 n. 182; Haugh, supra note 30, at 1194; Dmitriy
Kamensky, American Peanuts v. Ukrainian Cigarettes: Dangers of White-Collar Overcriminalization and
Undercriminalization, 35 MISS . C. L. REV. 148, 151 (2016); Larkin, supra note 42, at 745; Smith,
supra note 38, at 539; Luna, supra note 10, at 713–17; Stephen F. Smith, Yates v. United States:
A Case Study in Overcriminalization, 163 U. PA. L. REV. ONLINE 147 (2014)(defining
overcriminalization as “the existence of multitudinous, often overlapping criminal laws that are
so poorly defined that they sweep within their ambit conduct far afield from their intended
target”); Geraldine Szott Moohr, Defining Overcriminalization Through Cost-Benefit Analysis: The
Example of Criminal Copyright Laws, 54 AM. U. L. REV. 783, 806 (2005).
165 Smith, supra note 38, at 538.
166 H USAK , supra note 3, at 3–4.
167 Beale, supra note 10, at 749.
168 See generally id.
169 Luna, supra note 10, at 717.
170 See notes 133–136, supra, and accompanying text.

34

The Consensus Myth in Criminal Justice Reform

[15-Apr-18

overcriminalization.171 As Stephen Smith observes,
It is, of course, difficult to make such claims without a
normative baseline—an idea of what constitutes the “right”
number of criminal laws—and such a baseline is elusive at best.
Still, history and crime rates provide relevant benchmarks, and
they suggest that the criminal sanction is being seriously
overused, particularly at the federal level, where
overcriminalization has resulted in nothing less than the
federalization of crime.172
Much like Pfaff’s over critiques of mass incarceration, Smith’s account rightly
notes the problem of metrics, but then assumes that the problem is, in some
sense, obvious: just as there are too many people in prison, there are too many
crimes on the books.173
As with the mass incarceration literature, however, a survey of the
overcriminalization literature indicates that while many commentators agree
that there is a problem, identifying just what constitutes overcriminalization
can be a trickier proposition because the metrics applied vary. Indeed, the
wide political spectrum of voices opposing overcriminalization makes the
question of baselines and normative commitments even more difficult to
answer.
To the civil libertarian critic, overcriminalization represents a triumph
of the authoritarian state and a vitiation of individual rights.174 Whether it is
using criminal law to impose a certain vision of morality, or whether it is
empowering police and prosecutors unduly, overcriminalization poses a danger
to individual rights or liberties.175 Through this lens, those rights and liberties
might be endangered by any criminal laws or law enforcement, but the
See Smith, supra note 38, at 538.
Id.
173 While I share Pfaff’s belief that there are too many people in prison and Smith’s belief
that there are too many criminal laws on the books, I do not think either conclusion is obvious
without some normative baseline, metric, or set of commitments. In this case, the appeal to
history does not strike me as terribly convincing. Society and the legal system have changed
dramatically over time. That the criminal code does not resemble criminal codes from the
Early Republic need not be a problem. (Unless, of course, one’s normative commitment was
that any departure from eighteenth century social, legal, and political orderings would be
objectionable.) Indeed, a central purpose of this Article is to highlight how nonobvious these
critiques of the criminal system are. Even if it were obvious (regardless of one’s normative
commitments) that the state criminalizes and incarcerates too much, that would tell us that
there is a serious problem with the criminal system. But it would tell us very little about how
to solve that problem because we still would lack a baseline against which to compare results,
making it difficult to judge success and failure or to determine what solutions were desirable
and which might be off the table.
174 See, e.g., S ILVERGLATE , supra note 4; Gerard E. Lynch, The Role of Criminal Law in
Policing Corporate Misconduct, 60 LAW & CONTEMP . PROBS. 23, 34 (1997); Jordan Blair Woods,
Decriminalization, Police Authority, and Routine Traffic Stops, 62 UCLA L. REV. 672, 736 (2015).
175 See generally S ILVERGLATE , supra note 4; Kadish, supra note 42.
171
172

15-Apr-18]

Levin

35

presence of constitutional protections and a belief that some conduct might
(or should) be criminalized keeps this from becoming an anarchic or
abolitionist critique.176 Instead, this critique focuses on a range of criminal
laws that often run counter to left political interests (e.g., criminalization of
abortion) or those that appear to go too far in empowering law enforcement.177
A range of conservative and right libertarian critics shares some
common ground with the left civil libertarian (e.g., fear of an oppressive state;
concern about arbitrary enforcement; underlying faith or belief in
constitutional constraints and a non-authoritarian criminal justice system).178
But, unlike the civil libertarian critic, the libertarian critic views
overcriminalization alongside the administrative state and aspects of the
welfare state as a marker of unacceptable “big government.”179 The libertarian
critique, then, often takes on a fundamentally deregulatory tone—there is too
much criminal regulation, but there is also too much civil regulation.180 As a
result, the libertarian critique tends to emphasize regulatory crimes, particularly
financial and environmental crimes that may harm industry.181
Some critiques from left and right (and center) prioritize concerns for
“rule of law” and legitimacy.182 Part of this critique rests on concerns of
selective enforcement and prosecutorial discretion—as William Stuntz and
others have stressed, too many criminal statutes and/or criminal statutes that
are too broad grant too much discretion to prosecutors.183 If people commit
176 Were the critique so totalizing, it would cease to be an over critique as there would be
no baseline or optimal/acceptable rate of criminalization.
177 See, e.g., Kadish, supra note 42, at 23–24; Herbert L. Packer, The Aims of the Criminal Law
Revisited: A Plea for a New Look at “Substantive Due Process,” 44 S. CAL. L. REV. 490, 490,493
(1971).
178 See generally G O D IRECTLY TO J AIL : T HE C RIMINALIZATION OF A LMOST
EVERYTHING (Gene Healy ed., 2004).
179 See Donald A. Dripps, Why Gideon Failed: Politics and Feedback Loops in the Reform of
Criminal Justice, 70 W ASH. & 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.”).
180 See Grover Norquist, Opinion, Conservatives Must Police Bottom Line on Criminal Justice,
ORANGE COUNTY REG. (Feb. 18, 2011), http://www.ocregister.com/articles/prison-288870government-criminal.html (“Today’s criminal justice system is big government on steroids, and
the responsibility for taming its excesses falls to those committed to smaller government:
conservatives.”).
181 See, e.g., Marc A. Levin, At the State Level, So-Called Crimes Are Here, There, Everywhere, 28
CRIM. JUST. 4, 5 (2013) (“Excessive criminalization not only leads to injustice and unfairness,
it also deters and even reduces productive activity. The Sarbanes-Oxley legislation and the
labyrinth of rules it has spawned impose criminal penalties for accounting errors, and has
saddled US businesses with an estimated $100 million in compliance and opportunity costs.”);
George F. Will, Eric Garner, Criminalized to Death, WASH . POST , Dec. 10, 2014.
182 See, e.g., C. Jarrett Dieterle, Note, The Lacey Act: A Case Study in the Mechanics of
Overcriminalization, 102 GEO . L. J. 1279, 1281 (2014)
183 See, e.g., Josh Bowers, Legal Guilt, Normative Innocence, and the Equitable Decision Not to
Prosecute, 110 C OLUM . L. REV . 1655, 1665 (2010) (“[S]ubstantive overcriminalization increases

36

The Consensus Myth in Criminal Justice Reform

[15-Apr-18

crimes all the time (knowingly or unknowingly), then people are constantly at
the mercy of prosecutors, allowing for pretextual and political prosecutions. 184
Under this view, that discretion renders criminal law un-lawlike or, at least,
highly contingent. As Stuntz claims, “[c]riminal law is . . . not law at all, but a
veil that hides a system that allocates criminal punishment discretionarily.”185
More broadly, this critique feeds into a belief that overcriminalization
undermines the importance and legitimacy of the criminal system. As Judge
Gerard Lynch argues, “[b]oth in justice to those so labeled [as criminals], and
to preserve the always-threatened moral capital of the criminal law from
dilution, conviction of crime must ordinarily be reserved for those who violate
deeply held and broadly agreed social norms.”186 Indeed, this claim is part of
what makes these over critiques emblematic of an over frame—they depend on
strong claims about the existence of a baseline that makes the criminal justice
system inherently legitimate.187
Returning to the lists of elements that Beale and Luna provide, it is
worth noting that most of these over critiques focus on examples of
overcriminalization, rather than generally discussing that baseline. That in and
of itself is not remarkable—certainly, a commentator identifying a
phenomenon should be able to provide specific, concrete examples. But it is
fascinating how much of the scholarship and policy work on
overcriminalization relies on individual statutes or individual prosecutions.
Unquestionably, the stories of individuals ensnared in the criminal system are a
critical component of public fascination with crime policy and are a significant
driver of the criminal justice reform movement.188 Whether it is the
not only the need for equitable discretion, but also the risk of its misuse or abuse.”); J. Richard
Broughton, Congressional Inquiry and the Federal Criminal Law, 46 U. RICH. L. REV. 457, 477–78
(2012); Richard E. Myers II, Responding to the Time-Based Failures of the Criminal Law Through A
Criminal Sunset Amendment, 49 B.C. L. REV. 1327, 1354 (2008); William J. Stuntz, O.J. Simpson,
Bill Clinton, and the Transsubstantive Fourth Amendment, 114 HARV. L. REV. 842 (2001); William J.
Stuntz, The Uneasy Relationship Between Criminal Procedure and Criminal Law, 107 YALE L. J. 1, 4
(1997)
184 See generally Daniel C. Richman & William J. Stuntz, Al Capone’s Revenge: An Essay on the
Political Economy of Pretextual Prosecution, 105 COLUM . L. REV . 583 (2005).
185 Stuntz, supra note 21, at 599.
186 Lynch, supra note 174, at 47.
187 See John G. Malcolm, Criminal Justice Reform at the Crossroads, 20 T EX . R EV . L. & P OL .
249, 281 (2016) (“There are, of course, certain kinds of crimes such as murder, rape, arson,
robbery, and fraud . . . that are clearly morally opprobrious. It is completely appropriate and
necessary in such cases to bring the moral force of the government in the form of a criminal
prosecution in order to maintain order and respect for the rule of law.”).
188
See
Mission
Statement,
The
Marshall
Project,
https://www.themarshallproject.org/about#.vdaFEZxjl (last visited Jul. 25, 2017) (“The
Marshall Project is a nonpartisan, nonprofit news organization that seeks to create and sustain
a sense of national urgency about the U.S. criminal justice system. . . . In all of our work we
strive to educate and enlarge the audience of people who care about the state of criminal
justice.”).

15-Apr-18]

Levin

37

proliferation of statutes named after crime victims,189 the rise of the Black
Lives Matter movement,190 or the success of the Innocence Project,191 personal
stories and publicized cases shape public perception and help define the
politics of crime. Or, as Rachel Barkow puts it, “in criminal law, stories, not
data, drive the policy analysis.”192 Yet, the overcriminalization literature’s
foregrounding of anecdotes presents a fascinating tension: on the one hand,
most commentators suggest that overcriminalization is a sweeping
phenomenon; on the other hand, they identify one-off cases that do not
necessarily appear to be representative.
A laundry list of cases and statutes recur in overcriminalization
literature as illustrations of criminal law’s absurd breadth. For example, a
number of commentators cite to U.S. v. McNab,193 occasionally referred to
simply as “the Honduran lobster case.”194 In McNab, the defendant was
convicted under the Lacey Act195 and sentenced to eight years in prison for
importing spiny rock lobsters in violation of a Honduran regulation (which the
government of Honduras subsequently disavowed).196 A pair of recent
Supreme Court cases also have drawn significant attention as illustrations of
overcriminalization: in Yates v. United States,197 a fisherman was charged with
three felonies— “destroying property to prevent a federal seizure in violation
of 18 U.S.C. § 2232(a); destroying the undersized fish—an alleged ‘tangible
object’ under Sarbanes-Oxley—to impede an investigation in violation of 18
U.S.C. § 1519; and making a false statement to a federal officer in violation of
18 U.S.C. § 1001(a)(2).”198 And, in Bond v. United States,199 a woman was
189

(2014).

See Rachel E. Barkow, Criminal Law As Regulation, 8 NYU J.L. & LIBERTY 316, 322

190 See generally Amna A. Akbar, Law’s Exposure: The Movement and the Legal Academy, 65 J.
LEGAL EDUC . 352 (2015).
191 See Daniel S. Medwed, Innocentrism, 2008 U. I LL. L. R EV . 1549, 1551 (2008).
192 Barkow, supra note 189, at 322.
193 331 F.3d 1228, 1232 (11th Cir. 2003), as amended (May 29, 2003).
194 See Panelists: Hon. Mary Beth Buchanan, John G. Malcolm, Hon. George J. &
Terwilliger III, Adam Liptak, Panel: Criminal Law at the Federal Level, 18 TEX. REV. L. & POL .
97, 108 (2013).
195 16 U.S.C. §§ 1701, 3371–3372 (2006).
196 See Buchanan, et al., supra note 194, at 108; Larkin, supra note 161, at 744 n. 125. For
additional discussion of the case in the context of overcriminalization, see, e.g., Paul J. Larkin
Jr., A Mistake of Law Defense As A Remedy for Overcriminalization, 28 CRIM. JUST. 10, 12 (2013);
Luna, supra note 10, at 711; Edwin Meese III & Paul J. Larkin Jr., Reconsidering the Mistake of
Law Defense, 102 J. OF CRIM. L. & CRIMINOLOGY 725, 777–82 (2012); Matthew S. White,
Note, Overcriminalization Based on Foreign Law: How the Lacey Act Incorporates Foreign Law to
Overcriminalize Importers and Users of Timber Products, 12 WASH. U. GLOBAL STUD. L. REV. 381,
388 (2013)
197 135 S. Ct. 1074 (2015).
198 Todd Haugh, The Criminalization of Compliance, 92 N OTRE D AME L. R EV . 1215, 1236
(2017) see also Cynthia Godsoe, Recasting Vagueness: The Case of Teen Sex Statutes, 74 W ASH. &
LEE L. REV. 173, 237–39 (2017); Stephen F. Smith, Yates v. United States: A Case Study in

38

The Consensus Myth in Criminal Justice Reform

[15-Apr-18

charged under a chemical weapons treaty for attempting to poison a romantic
rival.200
While neither of these cases explicitly addresses the
overcriminalization phenomenon, both include critiques of prosecutorial
discretion and the over breadth and overly broad application of criminal
statutes.201
The focus on statutes’ absurd application or on criminal prohibitions
that do not pass the “laugh test” similarly are a staple in the over literature.202
One scholar suggests that “[T]he most ‘famously innocuous federal crimes’ are
the ‘Woodsy Owl’ statute, which prohibits the unauthorized use of the
character ‘Woodsy Owl,’ the name ‘Woodsy Owl,’ and the associated slogan,
‘Give a Hoot, Don’t Pollute,’ and the federal prohibition against tearing the tag
off a mattress. . . .”203 Another commentator provides a list of statutes that
criminalize conduct including: “transport[ing] water hyacinths, alligator grass,
or water chestnut plants [,] . . . writ[ing] a check for an amount less than $1 [,
and] . . . install[ing] a toilet that uses too much water per flush.”204 And, a
Twitter feed with over fifty thousand followers, “A Crime A Day,” posts a
new federal criminal law each day, highlighting esoteric laws or applications.205
To be clear, none of these accounts suggests that prisons are full of
people who have violated the “Woodsy Owl” statute, transported garden
plants improperly, or installed high-flow toilets. Put differently, the over
critique of overcriminalization generally does not foreground systemic
punishment or enforcement.206 That is, the potential enforcement of statutes is
a problem, as are some specific examples of particularly egregious
enforcement, but the claim generally is distinct from claims regarding over
punishment or over enforcement.207 Instead, the focus appears to be on
Overcriminalization, 163 U. PA. L. REV. ONLINE 147 (2014).
199 134 S. Ct. 2077 (2014).
200 See generally id.
201 See Michael Pierce, The Court and Overcriminalization, 68 S TAN . L. R EV . O NLINE 50, 50–
51 (2015).
202 Luna, supra note 10, at 716.
203 Mila Sohoni, The Idea of “Too Much Law”, 80 F ORDHAM L. R EV . 1585, 1632 n. 118
(2012).
204 Malcolm, supra note 187.
205 See A Crime a Day (@CrimeADay), https://twitter.com/CrimeADay.
206 But see Broughton, supra note 183, at 167 (“Still others fear the problem of punishment
severity and mass incarceration, which are incident to the growth of federal criminal law and
the resulting increase in prosecutions, convictions (and therefore more prisoners), and strained
budgets and resources at a time of outrageous deficits and slow economic growth.”).
207 Husak’s work is an outlier in this respect, as it explicitly argues that it is over
punishment and massive prison populations that drive his critique and make
overcriminalization a moral and political crisis. See H USAK , supra note 3, at 3 (“I argue that
overcriminalization is objectionable mainly because it produces too much punishment.”). In
this respect, Husak’s over account of overcriminalization is inextricably tied to his over critique
of mass incarceration. While both critiques adopt an over frame (i.e., predicated on a
retributivist’s views about deserved punishment and respect for rule of law), Husak’s move to

15-Apr-18]

Levin

39

preserving rule of law values (i.e., if we all break the criminal law, how can we
respect it), reducing prosecutorial power, and perhaps preventing any chilling
effects.
Many of these over critiques are designed to highlight the absurdity or
outrageousness of the criminal code’s breadth. Critically, though, there is an
implicit assumption in many of these critiques about what should and should
not be criminalized and who should and should not be subject to criminal
penalties. For example, maybe Woodsy Owl is an easy case, but what about
hunting on certain public lands or failure to comply with food safety laws? It
is fair to argue that criminal law is not the best way to address the concerns
that those statutes advance. (And, a critic adopting a mass frame might well
agree.) But that does not mean that they are easy cases. Indeed, one of the
challenges for the overcriminalization literature and the bipartisan over critique
in this area is the question of civil versus criminal regulation. If a libertarian
critic believed that it were wrong or absurd for the state to regulate civilly how
a slaughterhouse employee processed meat, then the critic necessarily would
believe that criminal regulations were even worse. That is, regulation is the evil
to be stopped. Overcriminalization is but a particularly pernicious form of
that evil. But what about a critic (left or otherwise) who believes that the state
can and should regulate meat processing civilly or administratively? 208 Such a
critic would need to have a theory of criminalization, or at least a way of
understanding the world in which she could tease out the different strands of
regulation and make sense of what punishments (civil or criminal) matched a
given misdeed.209 The specter of state violence might be more immediate and
ominous in the criminal regulatory context, but that doesn’t mean state
violence (or threat thereof) is somehow lacking in the civil regulatory context.
Proposed solutions reflecting an over critique tend to center deregulatory concerns, rather than a focus on prison populations or widespread
tie the two critiques makes his account more closely aligned with what I describe as mass
critiques of overcriminalization (i.e., accounts fundamentally concerned with enforcement). See
generally Part III.B. Donald Dripps similarly argues that too much punishment is a part of the
overcriminalization phenomenon, but articulates his critique even more explicitly is over terms
by emphasizing that “all agree” incarceration is appropriate in some cases. See Donald A.
Dripps, Terror and Tolerance: Criminal Justice for the New Age of Anxiety, 1 OHIO ST. J. C RIM. L. 9,
12 (2003) (“Not only are many harmless or trivially harmful acts made crimes, but harmful
wrongdoing that all agree should be criminal is made punishable by draconian prison terms.”
(footnotes omitted)).
208 Cf. Douglas N. Husak, Guns and Drugs: Case Studies on the Principled Limits of the Criminal
Sanction, 23 L. & PHIL. 437, 445 n. 28 (2004) (noting that libertarians “have the virtue of
consistency” on some questions of criminalization).
209 See generally Douglas Husak, Reservations About Overcriminalization, 14 N EW C RIM . L.
REV. 97 (2011). Of course, despite her ostensibly more consistent approach, the libertarian
critic would need to do a similar sort of justifying in order to explain why it is wrong for the
state to regulate in many or most cases, but why the state still can use violence against some
people who commit certain crimes.

40

The Consensus Myth in Criminal Justice Reform

[15-Apr-18

enforcement. For example, former Attorney General Edwin Meese has
proposed four fixes that Congress can employ to address overcriminalization:
(1) consolidating most federal crimes into Title 18 of the U.S. Code; (2)
repealing or consolidating “redundant, superfluous, and unnecessary” criminal
statutes; (3) preventing administrative agencies from defining criminal
offenses; and (4) imposing heightened mens rea requirements to limit or
eliminate strict liability crimes.210 Certainly, Meese comes from a staunchly
conservative viewpoint and might disagree with a range of other over critics,
but some of his proposals have found significant backing and reflect some
version of the over critique. Therefore, it is worth considering the practical
consequences of the proposals.
First and foremost, the emphasis here (and throughout the
overcriminalization literature) is on the federal system.211 As others have
noted,212 the focus on the federal is misplaced, given that states do most of the
policing, prosecuting, and imprisoning.213 Certainly scholars particularly
concerned about federalism might want to address the problem of “over
federalization,”214 but it is not clear that a state’s decision to pass many of the
objectionable statutes would be less troubling than the federal government’s.215
Even aside from that concern, though, there is real reason to be skeptical
about the practical impact of Meese’s proposals.
Three of the four (excluding the agency one) speak to concerns about
notice. Notice may be a critically important component of constitutional law
and due process values,216 but it is not clear who actually would benefit from
the calls to consolidate. That is, most people probably don’t own a bound
copy of Title 18 and probably are not knowledgeable about the law (whether
civil or criminal). Indeed, that observation drives much of the criticism of
210 Principles for Revising the Criminal Code, Hearing Before the Subcommittee On Crime, Terrorism
& Homeland Secretary of the House Commission on the Judiciary, 112th Cong. 3 (2011) (statement of
Hon. Edwin Meese III, Chairman, Center for Legal & Judicial Studies, Heritage Foundation).
211 See, e.g., Brown, supra note 156, at 231; Julie R. O’Sullivan, The Federal Criminal “Code” Is
A Disgrace: Obstruction Statutes As Case Study, 96 J. CRIM. L. & CRIMINOLOGY 643, 654 (2006);
Stephen F. Smith, Proportionality and Federalization, 91 VA. L. REV. 879, 908 (2005); Jeff Welty,
Overcriminalization in North Carolina, 92 N.C. L. REV . 1935, 1937 (2014) (“Virtually all the
discussion of overcriminalization has focused on the federal government.”).
212 See P FAFF , supra note 19, at 13.
213 See, e.g., P FAFF , supra note 19, at 13–14; Welty, supra note 211, at 1937 n. 7.
214 See, e.g., Kathleen F. Brickey, Criminal Mischief: The Federalization of American Criminal
Law, 46 HASTINGS L.J. 1135 (1995); William H. Pryor Jr.misde, Commentary, Federalism and
Sentencing Reform in the Post-Blakely/Booker Era, 8 OHIO ST. J. CRIM. L. 515, 517 (2011).
215 That is, unless the critique is rooted distinctly in the Commerce Clause, it is not clear
why concerns associated with overcriminalization would or should be lessened if state
legislatures, rather than the federal one were passing the laws. The same concerns about the
moral justifications and the economic costs would persist in either case.
216 See, e.g., Carissa Byrne Hessick, Vagueness Principles, 48 A RIZ . S T . L.J. 1137, 1139–40
(2016); Paul H. Robinson, Fair Notice and Fair Adjudication: Two Kinds of Legality, 154 U. PA. L.
REV. 335, 364 (2005).

15-Apr-18]

Levin

41

overcriminalization and that has led to greater calls for an expanded “mistake
of law” defense.217 To the extent that a cleaner federal code might make it
easier to be on notice, I think it is fair to wonder about the distributive effects
of that notice. That is, it may be that the better educated will be more likely to
stay apprised of what the criminal code has to say. Perhaps more pointedly,
notice probably would be more meaningful to a business, corporation, or
wealthy individual who retained a lawyer or had a team dedicated to
compliance. My claim is not that the wealthy should be unable to comply with
the law, or even that I would not support Meese’s proposal, but rather that the
proposal appears to speak only to a narrow segment of the population—a
segment of the population that looks very different from the millions of
Americans caught up in the criminal system.218
The recommendation regarding agency authority has a similar flavor
and appears to jibe with conservative and libertarian deregulatory takes on
overcriminalization.219 How many defendants or prosecutions would be
affected remains an empirical question, but, based on available Bureau of
Justice Statistics data, it seems unlikely that regulatory offenses (i.e., crimes
defined by agency, rather than legislature) account for a large percentage of
prison admissions.220
Finally, mens rea reform has been both one of the most popular reform
proposals and also one of the most contentious.221 It has been supported by
both conservative activists and criminal defense attorneys but opposed by
politicians and commentators on the left who believe that it would operate as a
shield against prosecutions for financial and environmental crime.222 It is
possible that mens rea reform might cut more broadly than other proposals and
217 See Paul J. Larkin, Jr., Taking Mistakes Seriously, 28 BYU J. P UB . L. 71, 115 (2013). Cf.
ILYA SOMIN , DEMOCRACY AND POLITICAL IGNORANCE : WHY SMALLER GOVERNMENT
IS SMARTER (2013) (examining the concept of political ignorance and voters’ lack of
understanding of the political system).
218 By way of comparison, consider Alexandra Natapoff’s description of the “penal
pyramid”. See generally Natapoff, supra note 11. According to Natapoff, the role of formal legal
rules in the criminal system reflects a stratified society: at the top of the pyramid, the wealthy
tend to live in a world that can be described by legal rules and some concept of “rule of law”.
See id. at 73. As we move down the pyramid, legal doctrine becomes increasingly less useful as
a means of predicting outcomes or explaining individuals’ interactions with the criminal
system. See id.
219 See notes 178–181, supra.
220 See E. Ann Carson, Prisoners in 2013, Bureau of Justice Statistics, Sept. 30, 2014, p.17,
available at http://www.bjs.gov/content/pub/pdf/p13.pdf.
221 See, e.g., Peter J. Henning, Making Sure “The Buck Stops Here”: Barring Executives for
Corporate Violations, 2012 U. C HI. LEGAL F. 91, 109 (2012); Harvey Silverglate, Remarks on
Restoring the Mens Rea Requirement, 7 J.L. ECON. & POL’Y 711 (2011); Sarah N. Welling,
Reviving the Federal Crime of Gratuities, 55 ARIZ. L. REV. 417, 446 (2013).
222 See Alex Sarch, How to Solve the Biggest Issue Holding Up Criminal Justice Reform, P OLITICO ,
May, 16, 2016, http://www.politico.com/agenda/story/2016/05/criminal-justice-reformmens-rea-middle-ground-000120.

42

The Consensus Myth in Criminal Justice Reform

[15-Apr-18

implicate a range of crimes and help a range of less privileged defendants.
And, even if it primarily benefited people charged with corporate crime, it
might have a broader impact on the way in which criminal statutes were
drafted, or perhaps even the general approach to criminal punishment that has
embraced strict liability.
Once again, that these proposals might benefit business or more
affluent people does not mean that they are not worthy changes. But the
proposals help illuminate the scope of the over critiques and their distance from
the mass critiques. Indeed, each of these proposals, like the critiques from
which they flow, depends on the belief that criminalization has run amok, but
that the state does need tools to prosecute and incarcerate some class of
individuals—individuals who do not need to be shielded from
overcriminalization’s reach. And, as I will discuss in Part IV, opposition to
mens rea reform from the left indicates how tenuous and contingent the over
critique may be: even among criminal justice reform proponents and critics of
criminal law’s reach, the political drive to use criminal law to address social
problems (e.g., economic inequality or environmental degradation) remains
high.
B. Mass Criminalization
While the majority of the literature on overcriminalization employs the
over frame, a certain strand (or strands) of critical writing appears to address
questions of overcriminalization through a mass frame. To be clear (and unlike
in the context of mass incarceration), much of the literature discussed in this
Section is not explicitly framed in terms of overcriminalization as such. That
is, the literature addresses problems and pathologies that I think it is fair to
classify as “overcriminalization,” but the authors do not necessarily invoke
seminal overcriminalization literature or frame their critiques in similar terms.
Nevertheless, scholars, activists, and commentators have adopted a set of
critiques that sound in concerns about overcriminalization, but through a very
different lens—a mass lens, prioritizing a concern for social control, the role of
the state, and criminal law’s function as a tool of social marginalization.
As a preliminary matter, it is worth noting that a limited amount of
criminal law scholarship actually does use the phrase “mass criminalization.”223
A certain amount of this literature appears to use “mass criminalization”
interchangeably with a traditional, over characterization of overcriminalization,
often citing to over accounts or definitions.224 Other authors appear to use
223 A Westlaw search of all law reviews and journals conducted on July 26, 2017 yielded
sixty-six articles that used the phrase.
224 See, e.g., Andrea L. Dennis, Criminal Law As Family Law, 33 G A . S T . U. L. R EV . 285,
308 (2017); Brian M. Murray, A New Era for Expungement Law Reform? Recent Developments at the
State and Federal Levels, 10 H ARV. L. & POL ’Y REV. 361, 383 (2016) (“Mass criminalization

15-Apr-18]

Levin

43

“mass criminalization” as interchangeable with “mass incarceration.”225
Using a more explicitly mass frame, though, other scholars use “mass
criminalization” to refer to overcriminalization as a means of social control.
For example, Jenny Roberts critiques overcriminalization through the frame of
criminal records and collateral consequences for previously incarcerated
individuals.226 Roberts’s claim is not that the wrong people have criminal
records or that the system is failing to sort among people who are morally
culpable and those who are not. Instead, her claim is that the effects of a
criminal conviction have rendered a growing population of adults incapable of
participating in society.227
Although mass incarceration is perhaps the most serious and
pressing problem with the criminal justice system in the
United States, most criminal cases are misdemeanors and
often do not result in jail or prison time. The problem is thus
better characterized as one of mass criminalization. Mass
criminalization over the past 40 years means that about one in
three people in the United States has some type of criminal
record. Law enforcement agencies have made more than a
quarter of a billion arrests, and the FBI adds between 10,000
and 12,000 new names to its database each day. The result is
that “the FBI currently has 77.7 million individuals on file in
its master criminal database.”228
In this respect, Roberts’s characterization of “mass criminalization” sounds a
great deal like Jack Chin’s characterization of mass conviction.229 The criminal
system’s impact on communities and individuals transcends incarceration and
implicates a range of stages in the process—from the earliest court

refers to the incredible expansion and enforcement of the criminal code at the state and
federal level. For a detailed analysis supplemented with real world anecdotes, see generally
HARVEY SILVERGLATE , THREE FELONIES A DAY: HOW THE FEDS TARGET THE
INNOCENT (2011)); Jonathan Oberman & Kendea Johnson, Broken Windows: Restoring Social
Order or Damaging and Depleting New York’s Poor Communities of Color?, 37 CARDOZO L. REV. 931,
947 (2016) (citing to Luna for the claim that “we live in an era of mass criminalization”)
225 See, e.g., Ann Cammett, Confronting Race and Collateral Consequences in Public Housing, 39
SEATTLE U. L. REV. 1123, 1136 (2016); Ann Cammett, Deadbeat Dads & Welfare Queens: How
Metaphor Shapes Poverty Law, 34 B.C.J.L. & S OC. JUST. 233, 236 (2014); Ann Cammett, Shadow
Citizens: Felony Disenfranchisement and the Criminalization of Debt, 117 PENN ST. L. REV. 349, 352–
53 (2012)
226 See Jenny Roberts, Expunging America’s Rap Sheet in the Information Age, 2015 WIS . L.
REV. 321, 340 (2015).
227 See generally id.; see also Benjamin Levin, Criminal Employment Law, 39 C ARDOZO L AW
REVIEW __ (2018) (forthcoming) (examining the exclusion of people with criminal records
from formal labor markets).
228 Id. at 325–26.
229 See notes 107–109, supra, and accompanying text.

44

The Consensus Myth in Criminal Justice Reform

[15-Apr-18

involvement through collateral consequences.230
Another strand of mass-inflected scholarship uses “mass
criminalization” to describe over-style incarceration, but with a distinct focus on
race, gender, immigration status, and sometimes sexuality.231 This approach is
embodied perhaps most clearly in the work of critical race theorist Devon
Carbado. Carbado cites to Sara Sun Beale’s work in describing mass
criminalization,232 but the definition he offers goes beyond the traditional over
approach. He argues that mass criminalization is not only “the criminalization
of relatively nonserious behavior or activities,” but also “the multiple ways in
which criminal justice actors, norms, and strategies shape welfare state
processes and policies.”233 In this respect, he claims that mass criminalization
empowers police to confront black civilians “through the diffusion of criminal
justice officials, norms, and strategies into the structure and organization of the
welfare state.”234
Carbado’s account, coupled with Roberts’s, fits alongside the mass
accounts of mass incarceration that described a sprawling web of criminal
regulation and situated it alongside (or as a part of) a mode of governance that
marginalizes and controls populations. This vision of “mass criminalization”
is a totalizing form of control that “incorporates punitive responses to poverty,
employment rights, and even young children’s behavior.”235
Like the over critiques, the mass critiques address the growing universe
230 See also Joel Rogers, Foreword: Federalism Bound, 10 H ARV . L. & P OL’ Y R EV . 281, 294
(2016) (“‘[M]ass criminalization’ is different, and affects even more people, than the more
familiar phenomenon of ‘mass incarceration’. . . .”).
231 See, e.g., Devon W. Carbado, Blue-on-Black Violence: A Provisional Model of Some of the
Causes, 104 GEO. L.J. 1479, 1487 (2016) [hereinafter “Blue-on-Black Violence”]; Devon W.
Carbado, Predatory Policing, 85 UMKC L. REV. 545, 549 (2017); Angélica Cházaro, Challenging
the “Criminal Alien” Paradigm, 63 UCLA L. REV. 594, 610 (2016); Ingrid V. Eagly, Criminal
Justice in an Era of Mass Deportation: Reforms from California, 20 NEW CRIM. L. REV. 12, 37–38
(2017); Ingrid V. Eagly, Immigrant Protective Policies in Criminal Justice, 95 TEX. L. REV . 245, 311
(2016); Justin Hansford, The First Amendment Freedom of Assembly As A Racial Project, 127 YALE
L.J. FORUM 685, 700 (2018); K. Babe Howell, From Page to Practice and Back Again: Broken
Windows Policing and the Real Costs to Law-Abiding New Yorkers of Color, 34 N.Y.U. REV. L. &
SOC. CHANGE 439 (2010) (“The mass criminalization of people resulting from Zero
Tolerance Policing and ‘quality of life’ initiatives adopted in the mid-1990s has made it nearly
impossible for a young man of color in our city to avoid arrest or harassment. . . .”); George
Lipsitz, ‘In an Avalanche Every Snowflake Pleads Not Guilty’: The Collateral Consequences of Mass
Incarceration and Impediments to Women’s Fair Housing Rights, 59 UCLA L. REV. 1746, 1770 (2012);
Alexandra Natapoff, Misdemeanors, 85 S. CAL. L. REV. 1313, 1317–18 (2012); Charles F. Sabel
& William H. Simon, The Duty of Responsible Administration and the Problem of Police Accountability,
33 YALE J. ON REG. 165, 203–04 (2016) (describing “the masscriminalization of young
minority men through aggressive minor-offense enforcement”).
232 See Carbado, Blue-on-Black Violence, supra note 231, at 1487.
233 Id. at 1489.
234 Id. at 1490.
235 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).

15-Apr-18]

Levin

45

of substantive criminal law, but they do so with an eye to enforcement and
punishment, rather than with a focus on the laws themselves. That is, where
the over critiques were often conjectural or rooted in a concern about the
theoretical or legitimacy-based costs of overcriminalization,236 the mass critics
focus on enforcement and application.237 For Carbado and others focused on
racial marginalization, the expansion of the criminal code matters because of
the ways in which urban policing enforces those statutes against people of
color.238 For Roberts and others focused on collateral consequences and
widespread social marginalization, overcriminalization matters because it
expands the criminal system’s reach and exposes more people to the
marginalization and social stigma that accompanies court involvement.239
Taking either approach, one way of understanding the mass critique of
overcriminalization is through Jonathan Simon’s concept of “governing
through crime.”240 In Simon’s account, starting in the latter half of the
twentieth century and in the years following the attacks of September 11, 2001,
the model of government regulation became to focus on problems in terms of
threats to security and use the criminal law to address them.241 This mode of
governance through criminalization takes many forms.242 For example, Simon
and others have addressed the ways in which schools (or their students) have
been criminalized.243 Problems with academic achievement, concerns about
discipline, and worry about gangs or drugs received significant attention, but
only through a system that empowers law enforcement—placing police in
schools, ramping up “zero tolerance” policies, and shifting the space of the
school from a place of academic discipline to a place of pure discipline based
on the exercise of state violence.244 Via the so-called “school to prison
See generally notes 206-208, supra, and accompanying text.
See, e.g., Ann Cammett, Reflections on the Challenge of Inez Moore: Family Integrity in the Wake
of Mass Incarceration, 85 FORDHAM L. REV. 2579, 2580–81 (2017); Devon W. Carbado &
Patrick Rock, What Exposes African Americans to Police Violence?, 51 HARV . C.R.-C.L. L. REV.
159, 163 (2016).
238 See, e.g., Carbado, supra note 237, at 163; Cházaro, supra note 231, at 610.
239 See, e.g., Roberts, supra note 226, at 325–26; Rogers, supra note 230, at 294.
240 See generally S IMON , supra note 117.
241 See generally id. In this respect, Simon’s account draw’s from Foucault’s focus on the
inherent links between governance and “security” as a means of the state asserting and
consolidating its power.
See generally MICHEL FOUCAULT, SECURITY, TERRITORY ,
POPULATION : LECTURES AT THE COLLÈGE DE FRANCE 1977-78 (Graham Burchell trans.,
2007). Cf. Levin, supra note 100, at 554 (arguing that this conception of the state or
“governmentality” helps explain the political economy of modern carceral policy).
242 See generally S IMON , supra note 117.
243 See, e.g., S IMON , supra note 117, at 207–232; Tamar R. Birckhead, Toward A Theory of
Procedural Justice for Juveniles, 57 BUFF. L. REV. 1447, 1496 (2009) Kristin Henning, Criminalizing
Normal Adolescent Behavior in Communities of Color: The Role of Prosecutors in Juvenile Justice Reform, 98
CORNELL L. REV. 383, 386 (2013)
244 See, e.g., Henning, supra note 243, at 386; Catherine Y. Kim, Policing School Discipline, 77
BROOK . L. REV. 861, 862 (2012).
236
237

46

The Consensus Myth in Criminal Justice Reform

[15-Apr-18

pipeline,” poor children of color are effectively criminalized—shuttled from
underachieving and underfunded schools to carceral or detention facilities.245
To put a finer point on it, this critique differs from the over critique in that it is
not concerned with whether a given law is justified or whether students have
done bad things; rather, this account is focused on how the criminal system
effectively replaces (or at least coexists with) the educational system as a way
of managing poor children.
This style of mass critique recurs elsewhere,246 but as a final example,
consider the highly fraught realms of intimate partner violence and sexual
assault. These are not areas of criminal law that appear in the over
overcriminalization literature. To the extent that the malum in se/malum
prohibitum distinction is meaningful,247 both clearly are malum in se crimes (i.e.,
the conduct is inherently culpable). In other words, we’re a long way from
Woodsy Owl. But a number of mass critiques have focused on these crimes as
areas in which some form of overcriminalization is at work.
The critiques take two forms. First, some critics argue that the
criminal system fails to protect women of color, queer people, and other
socially marginalized victims, and—in its attempts to protect them—further
marginalizes and victimizes them.248 That is, the criminal system focuses on
punishment, rather than prioritizing the needs and wants of the victim.249 This
critique often sounds in the same language as the racialized “mass
criminalization” critiques.250 The concern is not one of innocence (i.e., the
See, e.g., MARTHA MINOW, IN BROWN ’S WAKE: LEGACIES OF AMERICA’S
EDUCATIONAL L ANDMARK 28 (2010); Katayoon Majd, Students of the Mass Incarceration Nation,
54 HOW. L.J. 343, 347 (2011); Janet E. Mosher, Lessons in Acess to Justice: Racialized Youths and
Ontario’s Safe Schools, 46 O SGOODE HALL L.J. 807, 827 (2008).
246 See, e.g., J OEY L. M OGUL , ET AL ., Q UEER ( IN ) JUSTICE : T HE C RIMINALIZATION OF
LGBT PEOPLE IN THE UNITED STATES (2011); Annette R. Appell, Protecting Children or
Punishing Mothers: Gender, Race, and Class in the Child Protection System an Essay, 48 S.C. L. REV.
577, 584 (1997); Khiara M. Bridges, Privacy Rights and Public Families, 34 HARV. J. L. &
GENDER 113, 132 (2011); Kaaryn Gustafson, Degradation Ceremonies and the Criminalization of
Low-Income Women, 3 UC IRVINE L. REV. 297 (2013); Dorothy E. Roberts, Criminal Justice and
Black Families: The Collateral Damage of over-Enforcement, 34 U.C. DAVIS L. REV. 1005, 1020–27
(2001).
247 See Benjamin Levin, American Gangsters: RICO, Criminal Syndicates, and Conspiracy Law As
Market Control, 48 H ARV. C.R.-C.L. L. REV. 105, 154–57 (2013) (critiquing the distinction).
248 See, e.g., Crenshaw, supra note 80; Kimberé Crenshaw, Mapping the Margins:
Intersectionality, Identity Politics, and Violence Against Women of Color, 43 STAN . L. REV . 1241
(1991); Jesse Krohn & Jamie Gullen, Mothers in the Margins: Addressing the Consequences of Criminal
Records for Young Mothers of Color, 46 U. BALT. L. REV. 237, 241 (2017).
249 See, e.g., J EANNIE S UK , A T H OME IN THE L AW : H OW THE D OMESTIC V IOLENCE
REVOLUTION IS TRANSFORMING PRIVACY (2009); Crenshaw, supra note 80; Francine T.
Sherman & Annie Balck, Gender Injustice: System-Level Juvenile Justice Reform for Girls, The National
Crittenton Foundation and the National Women’s Law Center (2015),
http://nationalcrittenton.org/wp-content/uploads/2015/09/Gender_Injustice_Report.pdf.
250 See generally Crenshaw, supra note 80.
245

15-Apr-18]

Levin

47

defendant did not commit the crime), ignorance (i.e., the defendant did not
know it was a crime), or culpability (i.e., the defendant committed the crime,
but is not morally culpable). Instead, the concern is that marginalized
communities being criminalized—whether victims or alleged abusers—are
being subjected to intrusive policing and state intrusion.251
A related strand of criticism focuses on “governance feminism” or
“carceral feminism.”252 Janet Halley describes “governance feminism,” as a
mode of governance in which feminists have assumed the reins of power (or at
least access the halls of power) and have used this power to pursue feminist
ends.253 According to Halley and her co-authors, governance feminist law
reform projects often invoke state violence via the criminal law and
sound like fairly simple social-control projects. Method:
define a wrong happening to women; then either criminalize
it with the goal of eliminating it, or decriminalize women's
participation in the underlying exchange with the goal of
liberating them in it. The highly contingent and complex
relationship between law in the books and law in action—and
the multitudinous ways in which the legal system can be
designed to shape but cannot control this relationship—seem
to fall outside the scope of feminist concern.254
Through this critical lens, criminalization projects—even if well intentioned—
cannot escape the flawed politics and structures of the state and the criminal
system. Goals of equality or redistribution are easily “subsum[ed]. . . into the
state’s goal of managing undesirables.”255
251 The case of Bresha Meadows has attracted significant criticism from activists focused
on domestic violence who are skeptical or critical of criminal system as the ideal mechanism
for addressing these problems. See generally #FreeBresha, https://freebresha.wordpress.com/
(last visited Jul. 27, 2017). Meadows, a fourteen-year-old black girl who allegedly sustained
significant, ongoing abuse from her father, ultimately killed him. See id. Activists rallied
around her and pointed to her case as one that demonstrated the criminal system’s failures and
failures to serve the interests of black girls and women. See generally id.
252 See, e.g., J ANET H ALLEY , S PLIT D ECISIONS : H OW AND W HY T O T AKE A B REAK
FROM F EMINISM 20–22 (2006); Aziza Ahmed, When Men Are Harmed: Feminism, Queer Theory,
and Torture at Abu Ghraib, 11 UCLA J. ISLAMIC & NEAR E. L. 1, 5 (2012) (describing carceral
feminism as “a move towards market-based (neoliberal) and punitive rather than redistributive
solutions to contemporary social problems”); Gruber, supra note 116, at 604; Janet Halley, et
al., From the International to the Local in Feminist Legal Responses to Rape, Prostitution/sex Work, and
Sex Trafficking: Four Studies in Contemporary Governance Feminism, 29 HARV. J. L. & GENDER 335,
340 (2006); Jeannie Suk, Criminal Law Comes Home, 116 YALE L.J. 2, 70 (2006).
253 See Halley, et al., supra note 252, at 340–41.
254 Id. at 420. But cf. Carolyn B. Ramsey, The Exit Myth: Family Law, Gender Roles, and
Changing Attitudes Toward Female Victims of Domestic Violence, 20 MICH. J. GENDER & L. 1 (2013)
(complicating the history of criminal law responses to domestic violence).
255 Gruber, supra note 21, at 825. I have used the sexual violence examples as a case study,
but this same line of critique could apply to other instances in which progressive causes
ultimately join hands with (or are subsumed by) conservative or tough-on-crime politics.

48

The Consensus Myth in Criminal Justice Reform

[15-Apr-18

All of these critiques reflect the mass frame’s general preoccupation
with criminal law as a mode of governance. Because “criminal law historically
enforced and entrenched racial, gender, and socio-economic hierarchies,”256
the turn to criminal law as a regulatory regime or as a means of solving social
problems carries with it those hierarchies and forms of structural oppression.
And, the critiques of gender-based and sexualized violence demonstrate that
—unlike the over critique—mass concerns apply even when the social problems
or the criminalized conduct are themselves violent or oppressive. Whether the
operative description is “governing through crime”, “neoliberal penality”,
“carceral feminism”, or “mass criminalization”, the core concerns relate to
deep-seated structural and political flaws that have allowed for punitive
responses to crowd out redistributive ones.
In his over account of overcriminalization, Douglas Husak asserts that
“a comprehensive theory of criminalization requires nothing less than a theory
of the state.”257 While the mass critiques do not necessarily offer a positive
theory of the state, their descriptive project appears to center more on a
critique or critical account of the state than simply on the profusion of
objectionable criminal laws.
IV. THE STAKES OF THE DISTINCTION
The previous Parts have shown the ways in which the two different
modes of critique play out and how they shed different light on generally
accepted criminal justice system flaws. But why does the distinction matter?
The frames are not simply different languages for describing the same
problem. They are different ways of understanding what is wrong that identify
flaws of different magnitudes and at different levels in the legal and political
system. Therefore, adopting one frame, accepting a critique through one
frame, or using one frame to reach policy solutions might mean alternate
outcomes and approaches.
As a result, understanding the ways that the two critiques differ is—in
and of itself—important to understanding the literature and policy debates
swirling in the contemporary moment of criminal justice reform. Appreciating
the limits or tenuous nature of the critical consensus should be a key
component of conversations about how to fix the “broken” system. But this
Part aims to go a step further by identifying the ways in which the two
critiques might interact and the potential costs of a turn to the over critique to
address mass concerns or serve mass ends.

Gruber, supra note 252, at 605.
HUSAK , supra note 3, at 120. Husak notes that such a theory is lacking in most
accounts and, for pragmatic reasons, focuses his work on the theory of criminalization, rather
than delving into the broader theory of the state. See id.
256
257

15-Apr-18]

Levin

49

A. Over Limitations
This Article proceeds from the premise that a significant amount of
criminal law scholarship and reform work adopts the over frame.258 For
scholars seeking to communicate with policy makers, prosecutors, and judges,
the over frame probably has significant appeal. By framing the criminal
system’s problems explicitly in terms of an optimal and a sub-optimal, this
approach tees up policy solutions more easily. That is, even if many scholars
adopting this frame do not articulate clearly just what the optimal rate of
criminalization or incarceration is,259 their critiques make it easier for
policymakers, judges, and prosecutors to identify or remedy problems: the
100:1 crack/powder sentencing disparity is too great and needs be reduced;260
the criminalization of marijuana possession is indefensible and should be
abolished;261 the resources used to prosecute and incarcerate “non-violent
offenders” are better spent on other prosecutions or other corners of the
criminal system.262
In that respect, the over frame avoids the pragmatic concerns that the
mass frame might introduce. The optimal and sub-optimal (even if framed in
more philosophical terms by retributivists, expressivists, or incapacitationists)
sound in the canon of policy arguments.263 They help make the over frame—
whatever its operative normative motivation—the recognizable province of or
discourse for the liberal reformist project.264 Even when leveling stinging
Cf. I. Bennett Capers, The Under-Policed, 51 WAKE FOREST L. REV. 589, 591 (2016)
(“Certainly, much of this conversation is attributable to the numbers. We live in a country that,
between 1970 and 2005, increased its prison population by 628%, where one in every one
hundred persons is behind bars, and where our prisons and jails now hold about 2.2 million
individuals.”)
259 See generally supra notes 133–136, 170–173, and accompanying text.
260 See, e.g., David A. Sklansky, Cocaine, Race, and Equal Protection, 47 S TAN . L. R EV . 1283
(1995); William Spade, Jr., Beyond the 100:1 Ratio: Towards A Rational Cocaine Sentencing Policy, 38
ARIZ. L. REV. 1233, 1254–56 (1996).
261 See, e.g., D OUGLAS N. H USAK , L EGALIZE T HIS !: T HE C ASE FOR D ECRIMINALIZING
DRUGS (2002); Buchhandler-Raphael, supra note 43, at 336 (collecting sources).
262 See, e.g., Bruce L. Benson, Escalating the War on Drugs: Causes and Unintended Consequences,
20 STAN . L. & POL’Y REV. 293, 351 (2009); William W. Berry III, Eighth Amendment
Presumptions A Constitutional Framework for Curbing Mass Incarceration, 89 S. CAL. L. REV. 67, 96
(2015).
263 See generally Duncan Kennedy, The Disenchantment of Logically Formal Legal Rationality, or
Max Weber’s Sociology in the Genealogy of the Contemporary Mode of Western Legal Thought, 55
HASTINGS L.J. 1031, 1075 (2004).
264 I use “liberal” here in the sense of “liberal legalism”, rather than in the sense of “liberal
Democrat.” See generally Karl Klare, Law-Making as Praxis, 40 TELOS 123, 132 n.28 (1979) (“I
mean by ‘liberal legalism’ the particular historical incarnation of legalism . . . which
characteristically serves as the institutional and philosophical foundation of the legitimacy of
the legal order in capitalist societies. Its essential features are the commitment to general
‘democratically’ promulgated rules, the equal treatment of all citizens before the law, and the
258

50

The Consensus Myth in Criminal Justice Reform

[15-Apr-18

critiques at the criminal system, the over critic need not reject the system as a
whole: by decrying a “broken” system, the over approach still retains a “good
government” valence.265 If only we could tweak the rules and the actors’
incentive, the over critique tells us, we could start to right the ship. There may
be many major problems to address, and there may be a long way to go in
order to fix them, but the fundamental project of the U.S. criminal system and
its core tools (prisons, state violence, etc.) are not up for debate.266 We can
tackle fundamental criminal justice policies without addressing underlying
structures of power (e.g., voting rights, economic inequality, or the long
hangover of segregation in jobs, housing, and schools).
Agree or disagree, that line of critique and that approach sound like the
ways a scholar might speak convincingly to a legislator considering a piece of
criminal justice reform legislation.267 Even if the ask is a big one (e.g., reduce
sentences dramatically for a broad range of defendants; decriminalize
previously criminal conduct), it is framed in manageable or recognizable terms.
The mass frame, on the other hand, sounds in a very different
discourse. Foregrounding questions of political economy, race, class, and
power, the mass frame (at least potentially) raises questions about all aspects of
the criminal system and the political economy in which it is embedded. It
sounds not in the language of small-bore solutions or narrow, pragmatic fixes,
but in terms of sweeping systemic critique. Rather than telling a judge that she
should re-think some sentencing determinations or telling a legislator that she
should resist the impulse to draft another criminal statute, the mass scholar
speaks a radical language of deep social ills and social injury. As discussed
above and in the next Section, this not to say that the mass frame does not
provide or invite policy solutions—it certainly does. It is to say that the
critique itself sounds in an academic or ideological discourse that is at best
skeptical about capitalism and the fundamental structures of the criminal
system. In that respect, it is no surprise that the mass frame originated (and
appears to retain significant purchase) in sociological and criminological
literatures where first principles questions of political economy and distributive
radical separation of morals, politics and personality from judicial action. Liberal legalism also
consists of a complex of social practices and institutions that complement and elaborate on its
underlying jurisprudence. With respect to its modern Anglo-American form these include
adherence to precedent, separation of the legislative (prospective) and judicial (retrospective)
functions, the obligation to formulate legal rules on a general basis (the notion of ration
decidendi), adherence to complex procedural formalities, and the search for specialized methods
of analysis (‘legal reasoning’). . . .”); see also Ahmed A. White, Victims’ Rights, Rule of Law, and the
Threat to Liberal Jurisprudence, 87 KY. L. J. 357, 358 (1999).
265 Cf. generally Klare, supra note 264 (explaining this mode of rationale legal reasoning).
266 Cf. Kennedy, supra note 263 (“In policy argument, a major question is whether the rule
proposed will be adequately calculable. . . .”)
267 For a critical take on this approach, see generally Pierre Schlag, Normative and Nowhere to
Go, 43 STAN . L. REV. 167, 179 (1990).

15-Apr-18]

Levin

51

consequences are more prevalent.268 Where the law review article as a general
matter includes a final policy proposal,269 articles in these and other allied fields
in the humanities and social sciences need not contain such an explicit
endorsement, making this mode of critique more easily recognizable and
acceptable. Similarly, the law’s, legal academics’, and legal scholarship’s
relationship to judges, practitioners, and policymakers complicates a turn to
such a critical frame—if the lawyer-scholar’s comparative advantage comes
from her grounding in the practical aspects of the law and legal practice, 270
then does she give ground by adopting a less quantifiable or more heavily
theoretical frame?271
All of this is to say that the over turn that much contemporary legal
scholarship and commentary reflects is neither surprising nor illogical. Indeed,
it makes a lot of sense, and it is an invaluable part of both the criminal justice
reform literature and movement. But I think that this turn is not costless.
That is, the pragmatism it reflects masks pragmatic concerns about its
adoption. Or, put simply, different characterizations of a problem invite
different solutions. Framing mass problems as over problems means advocating
for or endorsing over solutions, not mass solutions.
By way of example, consider marijuana legalization (or, at least,
decriminalization). As described above, the criminalization of marijuana
possession is a frequent target of the overcriminalization literature.272 Similarly,
over critiques of mass incarceration frequently focus on marijuana possession
(and other “nonviolent” drug crimes) as indicative of unduly harsh sentencing
policy and the existence of a prison population that does not necessarily
deserve to be incarcerated. Put simply, then, legalizing marijuana would be a
big win and a big step forward in addressing over critiques.
But what about mass critiques? Presumably, many scholars and
See generally Part II A, supra.
Cf. Stuntz, supra note 21, at 507 (“Consider two defining features of criminal law’s large
literature. First, it is relentlessly normative. Almost all writing about American criminal law
argues that some set of criminal liability rules is morally wrong or socially destructive, and that
a different (usually narrower) set of rules would be better.”).
270 See id. Cf. Klare, supra note 264, at 132 n.28 (“The rise and elaboration of the ideology,
practices and institutions of liberal legalism have been accompanied by the growth of a
specialized, professional caste of experts trained in manipulating ‘legal reasoning’ and the legal
process.”).
271 See, e.g., Harry T. Edwards, Another Look at Professor Rodell’s Goodbye to Law Reviews, 100
VA. L. REV. 1483, 1484 (2014); The Growing Disjunction Between Legal Education and the Legal
Profession, 91 MICH. L. REV. 34 (1992). But see Pierre Schlag, Writing for Judges, 63 U. COLO. L.
REV. 419, 422 (1992) (“[T]he academic practice of writing for judges increasingly appears as a
degraded art-form used to communicate with personas who are not listening in order to
achieve nothing very much whatsoever.”).
272 See, e.g., Darryl K. Brown, Can Criminal Law Be Controlled?, 108 M ICH . L. R EV . 971,
981–82 (2010); Buchhandler-Raphael, supra note 43, at 336; Ekow N. Yankah, A Paradox in
Overcriminalization, 14 NEW CRIM. L. REV. 1 (2011).
268
269

52

The Consensus Myth in Criminal Justice Reform

[15-Apr-18

advocates who embrace mass critiques would support marijuana
legalization273—it would be a small step towards getting the state out of the
business of regulating criminally; it would eliminate a class of crimes that lead
to many police stops and that are disproportionately enforced against poor
people of color; and it would reduce, in small part, the number of people
exposed to the criminal system and subjected to the universe of formal and
informal collateral consequences of conviction and arrest. Yet, the mass
critique speaks to deeper flaws than a single statute (or set of statutes) might
address.274 If the concern is with the state governing through crime, then why
should we think that police and prosecutors wouldn’t use other criminal
provisions to adopt a similar approach to regulating the underclass(es)? 275 If
the concern is with how prisons and police function, then it is not clear that
removing one crime—even an indefensible crime—from the books would get
at the real problem. Decriminalizing marijuana would be a victory in battle,
not a seminal win to end the war.
Or, think back to the case of the “non-violent” offender.276 At this
point, it should go without saying that most of the literature on the criminal
system would support a gentler approach to such a defendant. But, from a
mass perspective, a reform agenda that emphasizes the non-violent offender
has a couple of serious problems.
First, this approach would have little to say about the majority of
people currently serving time.277 Therefore, a reform movement, ethos, or
package of proposals based on saving the “non-violent” individuals has serious
limitations.278 Not only would it have a low ceiling in terms of its potential for
reducing prison populations, but it would also risk significant backlash. For
example, consider President Obama’s clemency grants for “non-violent drug
offenders.”279
In commuting a number of sentences, the Obama
administration stressed that the recipients of executive mercy were deserving
in part because they had not committed “violent” crimes and, therefore, were

273 See, e.g., Michelle Alexander, In Legalizing Marijuana, End the Racial Bias, N.Y. T IMES ,
May 22, 2013, https://www.nytimes.com/roomfordebate/2013/05/22/how-can-marijuanabe-sold-safely/in-legalizing-marijuana-end-the-racial-bias.
274 See FORMAN, LOCKING UP OUR OWN, supra note 47, at, 220.
275 Cf. Natapoff, Misdemeanor Decriminalization, supra note 109 (examining the hidden costs
of decriminalization).
276 See supra notes 47–50, and accompanying text.
277 See PFAFF, supra note 19, at 31; FORMAN, LOCKING UP OUR OWN, supra note 47, at,
220.
278 See G OTTSCHALK , supra note 15, at 116.
279 See Department of Justice, Commutations Granted by President Barack Obama,
https://www.justice.gov/pardon/obama-commutations; Charlie Savage, Obama Commutes
Sentences for 8 in Crack Cocaine Cases, N.Y. TIMES, Dec. 19, 2013,
http://www.nytimes.com/2013/12/20/us/obama-commuting-sentences-in-crack-cocainecases.html.

15-Apr-18]

Levin

53

not dangerous.280 When news circulated that some of the individuals to be
released had been convicted of possessory gun charges, some conservative
politicians and commentators grew outraged.281 Focusing on the “non-violent
offenders” might have seemed like the least risky move politically,282 but the
line between violent and non-violent is fuzzy,283 and predicating reform on
only the “most deserving” has serious drawbacks because of the difficulty of
finding anyone (incarcerated or otherwise) who can stand up to heavy scrutiny
and be found blameless.
Second, this approach serves to legitimate the system and its treatment
of “violent” offenders. As Pfaff explains, “the rhetoric and tactics used to
push through reforms for lower-level offenses often explicitly involve
imposing even harsher punishments on those convicted of violent crimes.”284
For example, even in criticizing the criminal system and announcing plans to
The Administration sought clemency petitions and explained that they would prioritize
petitions that met the following criteria:
(1) the inmate is currently serving a federal sentence in prison and has served at
least 10 years of her/his sentence; (2) the inmate likely would have received a
substantially lower sentence if convicted of the same offense(s) under the
guidelines in effect today; (3) the inmate is a non-violent, low-level offender
without significant ties to large scale criminal organizations, gangs or cartels and
without a significant criminal history; and (4) the inmate has demonstrated good
conduct in prison and has no history of violence prior to or during the current term
of imprisonment.
Sanjay K. Chhablani, Legitimate Justice: Using Clemency to Address Mass Incarceration, 16 U. MD. L.J.
RACE, RELIGION , GENDER & CLASS 48, 51 (2016).
281 See, e.g., Heather Mac Donald, Obama Continues His Crusade against a Criminal-Justice
System
He
Derides
as
Racist,
NATIONAL
REVIEW,
Aug.
4,
2016,
http://www.nationalreview.com/article/438698/obama-releases-prisoners-guilty-gun-crimes
(“That so many of recipients of Obama’s clemency were armed and dangerous shows how
distorted the dominant narrative about “mass incarceration” is.”); Bill Otis, When the Mask
Drops,
CRIME
AND
CONSEQUENCES
(Dec.
26,
2016,
9:14
PM),
http://www.crimeandconsequences.com/crimblog/2016/12/when-the-mask-drops.html
(“When pro-criminal groups thought (or fooled themselves into thinking) that they had a
chance for federal sentencing ‘reform,’ what they said they envisioned was sentencing
reduction for ‘low level, non-violent’ offenders. If you've read that phrase once, you’ve read it
a million times. Now that these groups understand they have no chance at such ‘reform’ for
the foreseeable future, they let us in on what the plan actually was. The stuff about ‘low level,
non-violent’ offenders was a head fake.”); David Sherfinski & Stephen Dinan, Obama’s
Forgiveness of Gun Crimes Amid Push for Controls ‘Incredible Hypocrisy’, WASHINGTON TIMES, Aug.
9, 2016, http://www.washingtontimes.com/news/2016/aug/9/obamas-forgiveness-of-guncrimes-amid-push-for-con/.
282 See FORMAN, LOCKING UP OUR OWN, supra note 47, at, 229 (“Defenders of the
nonviolent-offenders-only approach suggest it is just a start. Reform must begin with the
nonviolent offenders, they say, but others might benefit later.”). Cf. PFAFF, supra note 19, at
31 (describing drug sentences as “low-hanging fruit” in the quest to reform the criminal
system).
283 See supra note 46.
284 PFAFF, supra note 19, at 31.
280

54

The Consensus Myth in Criminal Justice Reform

[15-Apr-18

assist “nonviolent offenders,” President Obama explicitly stated that “violent
criminals . . . need to be in jail” and that he “tend[ed] not to have a lot of
sympathy for violent criminals.”285 One way of making “nonviolent
offenders” appear more sympathetic is to provide them with a foil—those
“violent” criminals who are not in need of mercy, compassion, or at least
greater thought and consideration. This approach “effectively mark[s] this
larger group of violent offenders as permanently out-of-bounds.”286
That is, by adopting an over frame to target the most glaring problems,
mass critics risk playing into a dynamic by which “criminal justice reform’s first
step—relief for nonviolent drug offenders—could easily become its last.”287
Over grants politicians political cover, but that cover comes with risks.288
By way of analogy, Carol and Jordan Steiker—staunch opponents of
capital punishment—have argued that anti-death penalty advocacy strategies
that focused on methods of execution, rather than execution itself, may have had
an unintended legitimating effect. While the advocacy strategy made sense in
light of Supreme Court politics and precedent, it also effectively conceded the
death penalty’s legitimacy—the arguments advanced indicated that the death
penalty itself was not unconstitutional; rather, using a given drug or execution
method made the death penalty unconstitutional.289 Importantly, their claim is
not that advocates should not have made these arguments or used the line of
legal argument available to them. Instead, they worry about the unintended
consequences of such a move.290
Ultimately, part of what makes Pfaff’s critique of the “standard story”
so important is the way in which it shows the limitations of the over frame.
That is, while Pfaff himself adopts an over frame (defining mass incarceration
in over terms and thinking largely quantitatively about the problem),291 his
FORMAN, LOCKING UP OUR OWN, supra note 47, at, 221 (quoting Obama).
Id. at 230. Cf. Levin, supra note 247, at 151–64 (examining the role of criminal law in
drawing lines between excusable and inexcusable wrongdoing).
287 FORMAN, LOCKING UP OUR OWN, supra note 47, at 230.
288 See generally Steiker & Steiker, supra note 20; cf. Gary Peller, Race Consciousness, 1990
DUKE L.J. 758, 775 (1990) (making a similar claim with regard to anti-discrimination law). See
generally id.
289
See generally Steiker & Steiker, supra note 20.
290
Cf. Jeannie Suk, The Trajectory of Trauma: Bodies and Minds of Abortion Discourse, 110
COLUM. L. REV. 1193 (2010) (examining the unintended consequences of feminist advocates’
use of trauma discourse); Jennifer S. Hendricks, Converging Trajectories: Interest Convergence, Justice
Kennedy, and Jeannie Suk’s “The Trajectory of Trauma”, 110 COLUM. L. REV. SIDEBAR 63 (2010)
(arguing that consideration of unintended consequences should not disregard the sorts of
constraints that shape advocates’ strategies and decision making). It is worth noting that many
of the critiques that this Article describes come from academics, not just advocates. Without
veering into deeper questions of advocacy strategies (whether before courts, legislators, or
others), then, we should recognize that academics may be, and often are, not similarly situated
to movement lawyers in terms of their constraints, audiences, etc.
291 See supra notes 118–127, and accompanying text.
285
286

15-Apr-18]

Levin

55

account highlights how the over frame often has gotten it wrong. By looking at
problems in over terms—particularly by overstating the role of nonviolent
crime and the federal system—critics have arrived at critiques that invite illfitting solutions.
It may be that decriminalizing marijuana, ending
prosecutions of a range of low-level “nonviolent” conduct, etc., would have
significant positive results in society. But, if the claim is that such moves will
cut the prison population in half, then Pfaff shows that such approaches are
off base. Much like Meese’s proposals to fix overcriminalization,292 these
solutions are solutions to one problem; it just is not clear whether it is the
same problem that the critics claim to be addressing.
B. Mass Pragmatism
To be clear, though, this Article is meant neither to be a call for
ideological purity nor a critique of incrementalism. To that end, the over/mass
distinction is not intended to be a stand-in (or disguise) for the
incremental/radical distinction.293
Indeed, while the mass critique is
fundamentally radical and sweeping, that does not mean that the critique is
incompatible with pragmatism or incremental reforms.294 Existing mass
critiques—both inside and outside of the academy—often do include concrete
steps or policy solutions designed to redistribute political, social, and economic
power.295
Putting aside, for a moment, a range of over-style policy solutions that
would address mass concerns (e.g., drug decriminalization; ending mandatory
minimum sentencing), it is important to recognize that many of the most vital
criminal justice reform efforts on the ground reflect a mass approach.296 For
example, consider the movements to end cash bail and the push to reduce
fines and fees in the criminal system.
In recent years, scholars and activists have focused on the problem of
See supra notes 210–222, and accompanying text.
But cf. Bibas, supra note 13, at 61 (describing the difference between a “radical” and a
“meliorist” approach to criminal justice reform and describing the “radical” approach as
“condemn[ing] lesser reforms as papering over injustice”).
294 Cf. Susan R. Klein & Jordan M. Steiker, Foreword, 84 T EX . L. R EV . 1687, 1688 (2006)
(“Marie Gottschalk’s article takes aim at the present carceral state and analyzes the political
prospects for major reform. Gottschalk is not interested in tinkering with the machinery of the
carceral state, but seeks a wholesale dismantling with the goal of reducing state and federal
imprisonment rates by more than 75%. Her article offers a pragmatic assessment of the
plausible sources of such ambitious reform, including fiscal conservatives, civil rights groups,
international advocates, professional organizations (e.g. the ABA), and the judiciary.”). But see
id. (“That radical approach is impractical.”).
295 See Akbar, supra note 58, at 20; see also Movement for Black Lives, Platform, A V ISION
FOR BLACK L IVES , https://policy.m4bl.org/platform/.
296 See Akbar, supra note 58, at 7–8 (arguing for a more serious scholarly and legal
engagement with radical activism by heavily policed and incarcerated communities).
292
293

56

The Consensus Myth in Criminal Justice Reform

[15-Apr-18

cash bail: people who cannot afford bail must languish in jail as they await trial
or resolution of their case.297 The movement to address cash bail gained steam
following the suicide of Kalief Browder, a young man who spent three years
incarcerated at Riker’s Island awaiting trial for allegedly stealing a backpack. 298
The over response to the problem focuses on whether the right people are
being detained—i.e., courts should use algorithms to determine if a given
defendant poses a societal danger; if so, she should remain in custody
pretrial.299 That response addresses over concerns—i.e., more people are being
detained than necessary. That said, mass responses reflecting different
concerns and priorities have attracted significant attention and backing.
Perhaps most notable has been the rise of the community bail fund—a fund
established by community members to pay bail for people awaiting trial.300
The idea being that the court is detaining defendants in the name of the
community, but the community does not believe that the court represents its
voice(s).301 This mass approach to the problem does not focus on optimizing
detention; rather, its goal is to resituate power and voice in the criminal
system.302 By providing bail money to defendants, community members are
able to override official decisions that might have disparate impacts or that
might not accurately reflect popular will.303 As a part of a broader political
project of community empowerment and a less punitive criminal system, the
bail fund represents an incremental solution.
See, e.g., Thomas B. Harvey, Jailing the Poor, 42 HUM. RTS. 16 (2017); Paul Heaton, et el.,
The Downstream Consequences of Misdemeanor Pretrial Detention, 69 STAN . L. REV. 711, 777 (2017);
Margaret Talbot, The Case Against Cash Bail, NEW YORKER, Aug. 25, 2015,
http://www.newyorker.com/news/news-desk/the-case-against-cash-bail; Candace McCoy,
Caleb Was Right: Pretrial Decisions Determine Mostly Everything, 12 BERKELEY J. CRIM. L. 135, 141
(2007); Oberman & Johnson, supra note 224, at 933 n. 8 (collecting sources); Liana M. Goff,
Note, Pricing Justice the Wasteful Enterprise of America’s Bail System, 82 BROOK . L. REV . 881, 883
(2017).
298 See generally Jennifer Gonnerman, Before the Law, N EW YORKER , Oct. 6, 2014,
http://www.newyorker.com/magazine/2014/10/06/before-the-law; Kalief Browder, 1993–
2015, NEW Y ORKER , June 7, 2015, http://www.newyorker.com/news/news-desk/kaliefbrowder-1993-2015.
299 See generally Shima Baradaran & Frank L. McIntyre, Predicting Violence, 90 T EX . L. R EV .
497, 556 (2012) (collecting sources).
300 See generally Jocelyn Simonson, Bail Nullification, 115 M ICH . L. R EV . 585 (2017).
301 See id. at 633. Cf. Jenny Carroll, The Jury As Democracy, 66 A LA . L. R EV . 825, 870 (2015)
(arguing that “jury composition should be reimagined as a forum to embrace the citizen’s fluid
identity and to promote diverse perspectives within democracy’).
302 See Simonson, supra note 300.
303 Cf. Akbar, supra note 58; Eric J. Miller, Challenging Police Discretion, 58 H OW . L.J. 521,
545 (2015) (discussing the role of community participation in overriding police policy); Jocelyn
Simonson, Copwatching, 104 CALIF . L. REV. 391, 392 (2016) (arguing that filming police
empowers otherwise marginalized communities in the criminal system); Jocelyn Simonson, The
Criminal Court Audience in A Post-Trial World, 127 HARV . L. REV. 2173, 2174 (2014) (making a
similar claim in the context of court observation).
297

15-Apr-18]

Levin

57

Relatedly, media coverage has helped shed light on the problem of
fines and fees in the criminal system, and a range of scholars and activists have
taken up the cause.304 Like the cash bail issue, this is a problem deeply rooted
in issues of economic and racial justice.305 Poor arrestees and defendants often
wind up deep in debt, re-arrested, or incarcerated because they are unable to
pay fines or fees that courts and police departments impose.306 The critique of
this practice is fundamentally a mass one, rather than an over one: the issue is
not that the fines should be lower, that the wrong class of defendants is being
fined, or even that the fines or fees are sometimes levied against people who
have not been convicted. Rather, the concern is that the criminal system is
driving people further into poverty and helping to drive a cycle in which
people remain court-involved after their case is resolved. In some cases, the
state and law enforcement entities are enriching themselves on the backs of
poor and marginalized defendants. This line of criticism and law reform, then,
explicitly confronts the place of the criminal system as a driver of inequality
and as inextricably linked to distributive justice. A growing body of
scholarship addresses these issues, and advocates are working to end these
practices via impact litigation and legislative activism.307
While these are only two examples, they both demonstrate the capacity
of mass critiques to translate into on-the-ground legal and policy solutions.
That is, while the critique itself maybe sweeping and may be less appealing as a
304 See generally A LEXES H ARRIS , A P OUND OF F LESH : M ONETARY S ANCTIONS AS
PUNISHMENT FOR THE POOR (2016); Laura I Appleman, Nickel and Dimed into Incarceration:
Cash-Register Justice in the Criminal System, 57 B.C. L. REV. 1483 (2016); Neil L. Sobol, Fighting
Fines & Fees: Borrowing from Consumer Law to Combat Criminal Justice Debt Abuses, 88 U. COLO. L.
REV. 841, 844 (2017); Note, State Bans on Debtors’ Prisons and Criminal Justice Debt, 129 HARV. L.
REV. 1024 (2016).
305 See, e.g., Tamar R. Birckhead, The New Peonage, 72 W ASH . & L EE L. R EV . 1595, 1659
(2015); Olivia C. Jerjian, The Debtors’ Prison Scheme: Yet Another Bar in the Birdcage of Mass
Incarceration of Communities of Color, 41 N.Y.U. REV. L. & S OC. CHANGE 235 (2017); Larry
Sshwartzol, The Role of Courts in Eliminating the Racial Impact of Criminal Justice Debt, National
Center for State Courts, Trends in State Courts: Fines, Fees, and Bail Practices: Challenges and
Opportunities
(2017),
available
at
http://www.ncsc.org/~/media/Microsites/Files/Trends%202017/Eliminating-RacialImpact-Trends-2017.ashx; Note, Chapter One Policing and Profit, 128 HARV. L. REV. 1723, 1724
(2015).
306 See generally Torie Atkinson, Note, A Fine Scheme: How Municipal Fines Become Crushing
Debt in the Shadow of the New Debtors’ Prisons, 51 HARV. C.R.-C.L. L. REV. 189 (2016)
307 See, e.g., O’Donnell v. Harris Cty., Texas, No. CV H-16-1414, 2017 WL 1735456, at *68
(S.D. Tex. Apr. 28, 2017); Cain v. City of New Orleans, 184 F. Supp. 3d 349, 350 (E.D. La.
2016) (Fourteenth Amendment claim based on method of collecting fines and fees from
defendants); Beth A. Colgan, Reviving the Excessive Fines Clause, 102 CALIF. L. REV. 277 (2014);
Sarah Geraghty, How the Criminalization of Poverty Has Become Normalized in American Culture and
Why You Should Care, 21 MICH. J. RACE & L. 195 (2016); Criminal Justice Policy Program,
“Confronting Criminal Justice Debt: A Guide for Policy Reform”, Report, Harvard Law
School,
September
6,
2016,
available
at
http://cjpp.law.harvard.edu/publications/confrontingcjdebt.

58

The Consensus Myth in Criminal Justice Reform

[15-Apr-18

way to frame legal or policy arguments, it is important to recognize that the
mass critique can yield mass reform movements and interventions that are
pragmatic and incremental in scope.308 It might be that these movements find
support among some critics adopting an over frame, just as it may well be that
mass critiques support over-inflected solutions. But recognizing the different
motivations, priorities, frames, and goals should be an important component
of our understanding of the criminal justice reform movement as a collection
of—at times complementary, and at times contradictory—movements.
V. CONCLUSION
In his powerful account of race and criminal justice in Washington,
DC, Forman argues that mass incarceration is the product of “a series of small
decisions, made over time, by a disparate group of actors.”309 Therefore,
“mass incarceration will have to be undone the same way.”310 I agree with
Forman that fixing the criminal system will require many different decisions,
interventions, and solutions. Indeed, as in many contexts, the perfect may be
the enemy of the good, and recognizing the promises of a range of criminal
justice reforms and reformers is and will be critical to the movement’s success.
But, in order to reform a system, we need to know what is wrong with it, and
what “reform” means. Ultimately, this Article argues that the literature on
criminal justice reform reflects two distinct ways of understanding the system
and its flaws. While cooperation and compromise will be essential to
addressing the broken and unjust system, glossing over disagreement and
nuance risks losing the power of the critiques that got us to this moment of
possibility in the first place.

308 Cf. Akbar, supra note 58, at 22-30 (describing the policy “demands” adopted by the
Movement for Black Lives).
309 FORMAN, LOCKING UP OUR OWN, supra note 47, at, 229.
310 Id.