Rethinking Crime Legislation: History and Harshness

TLDR: The criminal law is produced by legislators, rather than the experts as mentioned in this paper, and it is time to put contempt aside and begin the process of understanding the history and the institutional dynamics of our nation's crime legislation.

Abstract: There is a truth about the criminal law that scholars evade as much as they criticize: the criminal law is produced by legislators (rather than the experts). The author states she does not know of any way to make law in a democracy other than through the voters' representatives. And, yet, it is the standard pose of the criminal law scholar to denigrate legislatures and politicians as vindictive, hysterical, or stupid. All of these things may be true but name-calling is a poor substitute for analysis. As in constitutional law, so too in criminal law, it is time to put contempt aside and begin the process of understanding the history and the institutional dynamics of our nation's crime legislation.This is not a claim that the process is wise or rational; in fact, the author’s present hunch is that the legislative process is subject to regular, cycling malfunction. Her point is that we need to consider deeper questions-we need to ask whether legislative malfunctions are built into the political system. In other words, we need to turn to history, and specifically the history of crime legislation in the United States, to get a sense of its patterns over time. Here, the author offers preliminary support for the claim that wars on crime -- at least as political and legislative phenomena -- are not new, nor post-World War II, phenomena as they are conventionally viewed. At a minimum, this evidence should prompt us to ask whether the crime problem in America is at least in part a reflection of the structure of American "crime politics."