In Criminal Justice in Divided America, David Sklansky argues that populist democracy has been a significant cause of our criminal justice problems and that those problems, in turn, are largely responsible for the continued degradation of American democracy. But he also contends that, if properly defined and implemented, democracy can end this vicious cycle and help remedy both sets of failures.
Those failures are well known. On the criminal justice side, police and prosecutors abuse their authority, plea bargaining has replaced jury trials, crime rates remain constant despite exceedingly harsh sentencing dispositions, and communities of color unfairly bear the brunt of the system’s dysfunction. On the democracy side, we have become a seriously divided nation with seemingly intractable disagreements on a host of issues, and this polarization has, again, inflicted the most suffering on the disadvantaged. Sklansky’s contention is that application of the right democratic principles to policing, adjudication and punishment can not only improve criminal justice but also help reconstruct a healthy democracy.
On Sklansky’s account, our current political disarray can be traced back to the 1960s and 70s’ crime wave, which the criminal justice system not only failed to staunch but actively exacerbated through multiple police shootings that triggered what came to be called “race riots.” Many others have noted that during this period Republicans, beginning with Goldwater, used crime as a wedge issue and that Democrats soon joined the tough-on-crime chorus that has led to the ill-advised mass incarceration policies we have today. But while the left has since backed off the strident rhetoric, Sklansky asserts that the political right, all the way through to Donald Trump, has continued to trumpet criminal armageddon memes in election campaigns with the thinly veiled goal of othering Blacks and Latinos, and that this strategy—more than any other single phenomenon—has created the cultural and political chasm we have today.
While Sklansky thus blames democracy for both our broken criminal legal system and our broken political system, his target is a particular brand of democracy. Political scientists have identified a number of democratic variants, among them populist, participatory, deliberative and pluralist. Relying on this literature, Sklansky points out that many people today—scholars and laypeople alike—think of democracy in terms of “popular sovereignty,” the idea that the majority’s will should generally rule and that restrictions on that sovereignty compromise democracy. To Sklansky, it is this popular sovereignty strain that is the driver of our political shambles. He distinguishes both popular sovereignty and its authoritarian offshoot embodied by Trump from “democratic pluralism,” which prescribes a system that allows “a diverse society to govern itself peaceably and equitably.” The goal under democratic pluralism is not to follow the desires of the majority—which is rarely unified on the details of policy and can shift dramatically depending on events and information flow—but rather to ensure that particular processes are followed. Those processes include not only free and fair elections and adherence to norms endorsing the rule of law but also the full participation of the polity through legal institutions and “interest groups” of all types, including those based on identity and composed of people who have committed crimes. At the same time, Sklansky resists the recently popular notion that criminal justice policy should be dictated by local “communities,” because the most vocal people in the community may not always represent the diverse views of its members.
At the meta level, Sklansky’s version of democratic pluralism leads him to reject both penal populism—which he believes exaggerates the public’s punitive attitudes—and activist-based counter movements such as the Defund Police and Abolish Prisons campaigns—which he thinks take insufficient account of the public’s legitimate concerns about crime, concerns that are just as strong among people of color as they are among the rest of the polity. Implementing that view, Sklansky makes a number of specific proposals which he believes will enhance pluralism in the criminal legal system and, through those improvements, the well-being of our democracy. He also asserts that most of his recommendations could be accepted by both sides of the political aisle, because they avoid the public safety v. anti-racism agendas that make consensus so difficult. While many of these proposals were floated long before the publication of Criminal Justice in Divided America—including by Sklansky himself in his book Democracy and the Police, published almost 20 years ago—his framing of them as means of promoting democratic pluralism allows us to consider them in a new, refreshing light.
The proposals are fleshed out in four chapters entitled Police, Prosecution, Adjudication, and Punishment. In the policing arena, Sklansky argues for an expanded approach to community and problem-oriented policing, transfer of non-criminal functions to other agencies, transparent systems for holding police accountable, tracking of problem officers, use of body cameras, and increased emphasis on diversifying police forces, all initiatives that should be relatively uncontroversial (although he also argues for an end to qualified immunity, which is decidedly less so). With respect to prosecution, he suggests that imposing constraints on prosecutorial charging and plea bargaining power by reducing trial penalties and draconian sentences, while simultaneously bolstering public defender services, would be welcomed by the left and the right, especially given current enmity toward progressive as well as traditional prosecutors and today’s heightened concerns about the human and fiscal costs of mass incarceration. By helping to rejuvenate the jury system, curbing prosecutorial ability to coerce pleas should also further the pluralist agenda at cases that go to trial. Other means of doing so, Sklansky suggests, include limiting exclusions from jury service (including exclusions aimed at the formerly incarcerated), ending peremptory challenges, giving grand and petit jurors more authority to ask questions, informing juries about potential sentences, and selecting judges through commissions rather than direct elections. Finally, all of this could also help curb excessive and racially-biased punishment, as could the expanded use of community-based restorative justice approaches and increased opportunities for probation, parole and clemency (the latter perhaps granted through a jury process).
Again, the innovation of this book is not the proposals it proffers, which have been seen before, but the prism through which Sklansky views them. For him, the overall goal should be choosing criminal justice reforms that promote integration of every component of society, a society which he emphasizes consists not of a majority and a minority but of “many minorities.” Achieving that goal, Sklansky argues, should help defang attempts to use crime and the criminal legal system as populist weapons to divide us and instead provide a forum for acknowledging the diversity of views in the United States.
