Scholarship@WashULaw

Document Type

Article

Language

English (en)

Publication Date

2024

Publication Title

Washington University Law Review

Abstract

What is criminal law minimalism? At first blush, it appears to be the sober and sensible cousin of abolition. Where the language of abolition is radical and absolute, the language of minimalism speaks to moderation, pragmatism, and nuance. While I appreciate calls for nuance, I’m not sure that minimalism offers the clarity it promises or answers the hard questions about how to address the ills of the U.S. criminal system.

As a theory or label, minimalism raises two major questions: (1) a question of scope; and (2) a question of scale. On the question of scope, what exactly should be minimized? The number of criminal laws? The severity of criminal punishment? The extent of policing? The presence of criminal and quasi-criminal institutions of social control? The prevalence of punitive cultural impulses? Something else? On the question of scale, what does minimalism mean? Arguing that society should use criminal law and punishment as little as possible raises the important question of how we know what the minimally acceptable amount of criminal law is. Without a shared understanding of what criminal law is supposed to do, how do we know what properly functioning minimalism looks like? Depending on one’s normative vision for criminal law, minimalism could involve a radical project of decarceration, decriminalization, and de-policing. Or, it could involve a slight recalibration of the status quo.

In this Essay, I raise these questions as they pertain to the minimalist project. If “criminal law minimalism” is to be taken seriously as a theoretical alternative to both abolition and conventional reform, it is necessary to understand what minimalism entails or what it offers us. And, that means answering—or at least grappling with—these fundamental questions of scope and scale.

Keywords

Criminal Law, Criminal Justice, Criminal Justice Reform, Criminal Law Minimalism, Penal Minimalism, Abolition, Policing, Overcriminalization, Penal Theory, Theories of Punishment, Social Control, Carceral State, Penal State

Publication Citation

Benjamin Levin, Criminal Law Minimalisms, 101 Wash. U. L. Rev. 1771 (2024)

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