Sunday, June 7, 2020
Kay Levine (Emory University School of Law) has posted The External Evolution of Criminal Law (Emory Law Journal, Forthcoming) on SSRN. Here is the abstract:
Scholars have long lamented the failure of the substantive criminal law to place any meaningful limits on the ways in which penal statutes are enforced in modem American society. In addition to criticizing the vast amounts of discretion held by law enforcement agents, observers point to design flaws intrinsic to those institutions of government that control criminal justice policy. The institutional design argument highlights imbalances in the criminal justice system that favor prosecutorial and legislative preferences for breadth at the expense of judicial interest in precision, thereby limiting the ability of micro-procedural reforms to make a difference and enabling prosecutors to exploit the power gap at every opportunity. The result is abusive or unprincipled enforcement of laws that should otherwise reflect widely held norms of social control, causing a troublesome gulf to develop between the laws as written and the laws as lived by the populations subject to their control.