The Yale Law Journal

November 2019

The Politics of Decarceration

Criminal LawPrisons and Jails

abstract. In Prisoners of Politics, Rachel Barkow convincingly argues that the criminal-justice system is deeply broken: the United States’s incarceration rate is the highest in the world, and there is little evidence that this system, with all its devastating human and monetary costs, is contributing to improved public safety. Prisoners of Politics argues that at the root of this broken system is electoral politics, and that elected officials (legislators, prosecutors, and judges) will tend toward punitiveness. The book proposes a range of reforms, most notably the use of expert criminal-justice policymakers who would be insulated from the electoral process and devoted to ensuring that the system promotes public safety and avoids arbitrariness. The introduction of expertise can certainly help make the criminal-justice system less punitive, and policymakers should heed the book’s detailed policy recommendations.

However, this Review argues that electoral politics are more likely than the book suggests to help bring about criminal-justice reform. There is nothing inherent about electoral participation’s punitive influence. To the contrary, we might be at the dawn of a new era of electorally motivated criminal-justice reform. In the past decade, reform has become orthodoxy in the Democratic Party and has been embraced by significant parts of the Republican Party. Recent grassroots mobilization and subnational elections provide hope that criminal-justice reformers can achieve significant gains through the electoral process. Additionally, original public-opinion analysis shows that younger Americans are less punitive than their older counterparts, and evidence suggests that tomorrow’s electorate might be less punitive than the electorate of the late twentieth century. For those reasons, this Review argues that electoral politics can offer a path forward for those who seek to end mass incarceration.

author. Assistant Professor of Law (Jurisprudence and Social Policy Program), University of California, Berkeley School of Law. For helpful comments and conversations, my thanks to Rachel Barkow, Erwin Chemerinsky, Jonathan Gould, John Rappaport, and Jonathan Simon.