Document Type
Article
Publication Date
2024
ISSN
0043-0862
Publisher
Washington University School of Law
Language
en-US
Abstract
American criminal law is facing a crisis of meaning. On one hand, the “traditional school” invokes the archetype of the violent criminal—a murderer, rapist, or thief—who must be prosecuted and punished. On the other hand, the “critical school” invokes the archetype of the low-level drug offender, sentenced to a draconian prison term for mere possession of low levels of marijuana. On this account, the criminal legal system is itself systemically pathological, perhaps even warranting abolition. Like ships passing in the night, the two schools appear irreconcilable. This Article helps break this impasse and builds toward a justification for criminal law minimalism. It shows that, in fact, both schools share a hidden consensus: redressing wrongs. For the traditional camp, the wrong is harmful human conduct. For the critical camp, the wrong is the criminal legal system.
Furthermore, such consensus extends to deep, shared values in American society. It includes fair elections, public integrity, and law enforcement equity—counterintuitively, evident in polarized debates about prosecution of January 6th insurrectionists, Congressman George Santos and Senator Robert Menendez, and Officer Derek Chauvin. Thus, criminal law is not and should not be confined to the archetypes of the murderer or low-level drug offender—it also concerns itself with the election insurrectionist, corrupt politician, and deadly police officer. Finally and prescriptively, this Article will show that this hidden consensus is both a sword and shield for the existing system, guiding us toward a justification for criminal law minimalism.
Recommended Citation
Steven A. Koh,
Criminal Law's Hidden Consensus
,
in
101
Washington University Law Review
1805
(2024).
Available at:
https://scholarship.law.bu.edu/faculty_scholarship/3874
Included in
Criminal Law Commons, Criminal Procedure Commons, Law and Philosophy Commons, Law and Politics Commons, Law Enforcement and Corrections Commons, Legal Writing and Research Commons
