Scholarship@WashULaw

Document Type

Article

Language

English (en)

Publication Date

2025

Publication Title

Iowa Law Review

Abstract

In this Article, I argue that the U.S. criminal system and debates about criminal justice reform reflect an elision of two largely distinct social functions: ensuring public safety and imposing accountability for harmful conduct. Despite deep disagreement about the specifics, most commentators seem to accept that these are both important social functions. Abolitionists claim that the criminal system doesn’t keep people safe and provide accountability. Instead, it harms—and perhaps is meant to harm—people from marginalized communities and protects the interest of socially dominant groups. Reformers contend that the criminal system can and should serve the safety and/or accountability interests, but it currently doesn’t. Meanwhile, defenders of the status quo claim that criminal legal institutions serve these two core state functions (and perhaps others).

I argue that it’s a mistake to imagine that the same institutions could or should fulfill both of those functions. I contend that the contemporary U.S. criminal system often relies on a foundational problem: entangling the safety function and the accountability function. Imposing some degree of stigma might be a desirable feature of an accountability-based system, but is it actually necessary in a system focused on public safety? Similarly, forms of surveillance and social control might be defensible features of a system focused on public safety, but are they actually necessary to ensure accountability? The answer to both of these questions should be no. But with criminal legal institutions understood as advancing both functions, we are left with a troubling, incoherent, and often-counterproductive amalgam of the problematic features of both. Ultimately, we all won’t agree on the best way to ensure public safety or to hold people accountable. But, taking seriously the distinction between those ends might help set the stage for more fruitful debates about what features of contemporary penal administration should be preserved, reformed, or abolished.

Keywords

Criminal Law, Criminal Procedure, Criminal Justice, Abolition, Criminal Justice Reform, Policing, Sentencing, Prisons, Collateral Consequences, Bail, Pretrial Detention, Legal Theory, Theories of Punishment, Expertise, Penal Welfare, Public Safety, Accountability

Publication Citation

Benjamin Levin, Disentangling Safety and Accountability in Criminal Justice Policy, 110 Iowa L. Rev. __ (forthcoming 2025)

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