Public Law & Legal Theory
In The Pathological Politics of Criminal Law, Bill Stuntz provides a powerful critique of the modern American criminal justice system. Other commentators have criticized legislatures for constantly adding to an already overbroad set of criminal prohibitions. Stuntz explains the political dynamic that makes this outcome inevitable. The ultimate result is that the modern prosecutor defines what is criminal by her selection of cases to charge, while criminal legislation is a mere “side-show.” Stuntz concludes that this state of affairs is “lawless” and pathological. As a solution, he proposes that courts resurrect or expand certain constitutional doctrines to reclaim some of the power now wielded by prosecutors. In this core text, I summarize and comment on Stuntz’s argument.
Richard H. McAdams, "The Political Economy of Criminal Law and Procedure: The Pessimists' View," University of Chicago Public Law & Legal Theory Working Paper, No. 243 (2008).