The External Evolution of Criminal Law

63 Pages Posted: 3 Oct 2007 Last revised: 9 Jun 2020

See all articles by Kay L. Levine

Kay L. Levine

Emory University School of Law

Date Written: October 2, 2007

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.

Suggested Citation

Levine, Kay L., The External Evolution of Criminal Law (October 2, 2007). American Criminal Law Review, Vol. 45, No. 1039, 2008, Emory Public Law Research Paper No. 07-17, Available at SSRN: https://ssrn.com/abstract=1018679 or http://dx.doi.org/10.2139/ssrn.1018679

Kay L. Levine (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

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