Democracy Enhancement in Criminal Law and Procedure

There is a democracy deficit at the intersection of crime, race, and poverty. The causes and consequences of hyperincarceration disproportionately affect those least likely to mount an effective oppositional politics: poor people and people of color. This Article breaks new ground by arguing that the democracy deficit calls for a democracy-enhancing theory of criminal law and procedure that modifies traditional justifications of retributivism and deterrence by prioritizing self-governance. Part I contextualizes the argument within cyclical retrenchments in movements for racial and economic justice. Part II sketches the contours of a democracy-enhancing theory. Parts III and IV turn that theoretical lens on a single jurisdiction, North Carolina, to map a previously unnoticed constellation of cutting-edge criminal justice reforms. Part III explains why those reforms were improbable. Part IV tests the democracy-enhancing effect of the reforms. Part V identifies some conditions that allowed reform to occur and occasionally survive counterattack. The Article concludes that those conditions privilege grasstops over grassroots advocacy, and highlights examples of direct action by low-income people and people of color as a vital component of a more broadly democratic foundation for criminal law and procedure