Confronting Criminal Law's Violence: The Possibilities of Unfinished Alternatives

Abstract

Confronting criminal law’s violence calls for an openness to unfinished alternatives — a willingness to engage in partial, in process, incomplete reformist efforts that seek to displace conventional criminal law administration as a primary mechanism for social order maintenance. But despite all indications that the status quo in U.S. criminal law administration is profoundly dysfunctional — an institutional manifestation of the deepest pathologies in our society — contemporary criminal law reform efforts and scholarship focus almost exclusively on relatively limited modifications to the status quo. These modifications may well render criminal law administration more humane, but fail to substitute alternative institutions or approaches to realize social order maintenance goals. In particular, these reformist efforts continue to rely on conventional criminal regulatory approaches to a wide array of social concerns, with all of their associated violence: on criminalization, policing, arrest, prosecution, incarceration, probation, and parole. Thus, even as these reformist approaches may offer substantial benefits, they remain wed to institutions that perpetrate criminal law’s violence and to limited temporal and imaginative horizons. By contrast, this essay explores a series of criminal law reform alternatives that offer more fundamental substitutes for criminal law administration. More specifically, this essay focuses on the possibilities of alternatives to criminal case processing that substitute for the order-maintaining functions currently attempted through criminal law enforcement. These alternatives hold the potential to draw into service separate institutions and mechanisms from those typically associated with criminal law administration. Further, these alternatives enlist on more equal footing and invite feedback and input from persons subject to criminal law enforcement. Importantly, this latter subset of reform alternatives is decidedly unfinished, partial, in process. I will argue that this unfinished quality ought not to be denied as an embarrassment or flaw, but instead should be embraced as a source of critical strength and possibility. In this dimension, this essay is a preliminary call for more attention on the part of legal scholars and criminal law reform advocates to unfinished partial substitutes for the order-maintaining work performed by criminal law administration — a call to attend further to as yet incomplete reformist alternatives that may portend less violent and more self-determined ways of achieving some measure of social order and collective peace. I begin to develop this argument by drawing, in particular, on the work of the Norwegian social theorist and prison abolitionist Thomas Mathiesen.