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Criminal Justice John Rappaport† Some Doubts About “Democratizing” Criminal Justice John Rappaport† The American criminal justice system’s ills are by now so familiar as scarcely to bear repeating: unprecedented levels of incarceration, doled out disproportion- ately across racial groups, and police that seem to antagonize and hurt the now- distrustful communities they are tasked to serve and protect. Systemic social ail- ments like these seldom permit straightforward diagnoses, let alone simple cures. In this case, however, a large, diverse, and influential group of experts—the legal acad- emy’s “democratizers”—all identify the same disease: the retreat of local democratic control in favor of a bureaucratic “machinery” disconnected from public values and the people themselves. Neighborhood juries, for example, internalize the costs of pun- ishing their own; neighborhood police, “of” and answerable to the community, think twice before drawing their weapons or stopping a local boy on a hunch. The experts and detached professionals who populate our dominant bureaucratic institutions, in contrast, are motivated by different, less salubrious, incentives. Across the gamut of criminal justice decision-making, the democratizers maintain, the influence of the local laity is a moderating, equalizing, and ultimately legitimating one. A generous dose of participatory democracy won’t solve all our problems, but it’s our best shot to get the criminal justice system back on its feet. This Article’s warning is plain: don’t take the medicine. “Democratization” wields undeniable rhetorical appeal but will not really fix what ails us—and may just make it worse. The democratization movement, this Article argues, rests on con- ceptually problematic and empirically dubious premises about the makeup, prefer- ences, and independence of local “communities.” It relies on the proudly counterin- tuitive claim that laypeople are largely lenient and egalitarian, contrary to a wealth of social scientific evidence. And ultimately, democratization’s dual commitments are on a collision course. The democratizers simultaneously devote themselves to particular ends—amelioration of the biased and outsized carceral state—and to par- ticular means—participatory democracy. What happens if, as this Article predicts, † Assistant Professor of Law and Ludwig and Hilde Wolf Research Scholar, Univer- sity of Chicago Law School. I am indebted to Monica Bell, Merav Bennett, Stephanos Bibas, Andrew Crespo, Justin Driver, Roger Fairfax, Trevor Gardner, Bernard Harcourt, Emma Kaufman, Brian Leiter, Richard McAdams, Tracey Meares, Martha Nussbaum, Dan Richman, Jocelyn Simonson, Roseanna Sommers, and Fred Smith for terrific com- ments on drafts. Thanks as well to Will Baude, Genevieve Lakier, Lauren Ouziel, and participants at the Criminal Justice Roundtable, the Junior Criminal Justice Roundtable, the University of Chicago Works-in-Progress Workshop, and the University of Virginia Faculty Workshop for generative conversations. For research assistance, thanks to Merav Bennett, Dylan Demello, Morgan Gehrls, Alli Hugi, Kevin Kennedy, and especially Alex Song. The Darelyn A. and Richard C. Reed Memorial Fund furnished financial support. 711 712 The University of Chicago Law Review [87:711 the means do not produce the ends? Which commitment prevails? Worse yet, vener- ating lay opinion distracts from alternative visions of “democratic” criminal justice that more credibly tackle the critical question of how best to blend public accounta- bility with evidence and expertise. INTRODUCTION ................................................................................................713 I. THE CASE FOR DEMOCRATIZATION .............................................................721 A. Principles .........................................................................................722 B. Purposes ..........................................................................................724 C. Proposals .........................................................................................726 D. Premises ..........................................................................................729 1. Community. ..............................................................................729 2. Lay leniency. .............................................................................732 3. Bureaucratic severity. ...............................................................734 4. Equality. ...................................................................................736 5. Compliance. ..............................................................................737 II. CHALLENGING THE PREMISES ....................................................................739 A. Community ......................................................................................739 1. Heterogeneity............................................................................739 2. Apathy and alienation...............................................................750 3. Externalities. ............................................................................757 B. Lay Leniency ...................................................................................759 1. Wholesale leniency. ...................................................................759 2. Retail leniency. .........................................................................766 C. Bureaucratic Severity ......................................................................774 1. The comparative case. ...............................................................775 2. Electoral incentives. ..................................................................781 3. Repeat play. ..............................................................................783 4. Mercy. .......................................................................................784 D. Equality ...........................................................................................786 1. “Black neighborhoods.” .............................................................787 2. Mixed neighborhoods. ...............................................................795 3. Judges vs. juries. .......................................................................799 E. Compliance ......................................................................................801 1. Procedural justice. ....................................................................801 2. Empirical desert........................................................................806 F. The Collision Course ........................................................................807 III. CONCLUSION: ALTERNATIVE VISIONS OF “DEMOCRATIC” CRIMINAL JUSTICE 809 2020] Some Doubts About “Democratizing” Criminal Justice 713 INTRODUCTION For the uninitiated, a brief rehearsal of the facts of the mat- ter: The United States presently incarcerates over two million in- dividuals, with another four million under other forms of correc- tional supervision.1 The nation’s imprisonment rate is the highest in the world,2 while its crime rates are about average.3 One-third of American inmates are black.4 One in three black males in the United States will be incarcerated before he dies.5 Figures like these are far out of line with national population demographics and do not simply reflect differential rates of offending across ra- cial groups.6 These “twin problems”—“overall severity” and “dis- parate treatment of African-Americans”7—plague American po- licing as well. American law enforcement officers killed over 1,100 individuals in 2017, more than 300 of them black.8 From 2004 to 2012 in New York City alone, police conducted 4.4 million pedes- trian stops, targeting black individuals more than half the time.9 1 Danielle Kaeble and Mary Cowhig, Correctional Populations in the United States, 2016 *2 (US Department of Justice, Apr 2018), archived at https://perma.cc/GT2Z-LJKA. 2 Roy Walmsley, World Prison Population List *2 (Institute for Criminal Policy Re- search 12th ed 2018), archived at https://perma.cc/Q4XU-3DZW. 3 See Sara Sun Beale, What’s Law Got to Do with It? The Political, Social, Psycho- logical and Other Non-Legal Factors Influencing the Development of (Federal) Criminal Law, 1 Buff Crim L Rev 23, 37–38 (1997). The US homicide rate, for example, is below the world average. See Global Study on Homicide 2019 *11, 27 (UN Office on Drugs and Crime, Apr 2019), archived at https://perma.cc/BR3S-F5JQ. 4 See E. Ann Carson, Prisoners in 2016 *5 tbl 3 (US Department of Justice, Jan 2018), archived at https://perma.cc/3DYA-DQYR. 5 Thomas P. Bonczar, Prevalence of Imprisonment in the US Population, 1974–2001 *1 (US Department of Justice, Aug 2003), archived at https://perma.cc/3X7D-TSAG. The one-in-three statistic has been criticized as stale, though a conservative updated estimate still puts it at one in four. See Glenn Kessler, The Stale Statistic That One in Three Black Males ‘Born Today’ Will End Up in Jail (Wash Post, June 16, 2015), online at https://www.washingtonpost.com/news/fact-checker/wp/2015/06/16/the-stale-statistic -that-one-in-three-black-males-has-a-chance-of-ending-up-in-jail/ (visited Feb 19, 2020) (Perma archive unavailable). 6 See Nazgol Ghandnoosh, Race and Punishment: Racial Perceptions of Crime and Support for Punitive Policies *20–22 (The Sentencing Project, Sept 2014), archived at https://perma.cc/UB68-WHCB. 7 John Paul Stevens, Book Review, Our ‘Broken System’ of Criminal Justice (NY Rev Books, Nov 10, 2011),
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