When Theory Met Practice: Distributional Analysis in Critical Criminal Law Theorizing

Progressive (critical race and feminist) theorizing on criminal law exists within an overarching American criminal law culture in which the U.S penal system has become a peculiar institution and a defining governance structure. Much of criminal law discourse is subject to a type of ideological capture in which it is natural to assume that criminalization is a valid, if not preferred, solution to social dysfunction. Accordingly, progressives’ primary concerns about harms to minority victims takes place in a political-legal context in which criminalization is the technique of addressing harm. In turn, progressive criminal law theorizing manifests some deep internal tensions. On the one hand, critical race and feminist scholars are by-and-large vocal critics of the American penal state’s punitivity, masculinist nature, and disproportionate effects on minorities. On the other hand, much left-leaning criminal scholarship involves identifying crimes against minorities and women (domestic violence, rape, hate crimes, etc.), exposing lackluster police and prosecutorial responses, and calling for reforms to increase arrests, prosecutions, and sentence severity. Progressives find themselves in the contradictory position of regarding the U.S. criminal system as cruel, sexist, racist, and unfair, but investing more power in that very system in the hope of reducing crime against minorities. I use this Essay as an opportunity to endorse a “distributional” method of doing progressive criminal law scholarship that can ease this apparent tension. Distributional analysis is a creature of critical legal studies, and it involves meticulous contemplation of the many interests affected by the existing criminal law regime and evidence-informed predictions about how law reform might redistribute harms and benefits, not just imminently but over time. This methodology, if widely adopted, would effect a profound change in criminal law theorizing. Currently, much of progressive criminal law scholarship is devoted to exposing that race and gender based crimes occur and may even be a “crisis” and then proposing generalized ratchet-up reforms to criminal law. Distributional analysis calls for a deeper inquiry into the detection, definition, and description of social problems. More importantly, it requires a very meticulous economics-style evaluation of the costs and benefits of punitive law reform proposals, which ideally brings in all interests relevant to critical theorists (group, individual, philosophical, political, socioeconomic) within a broadened temporal frame. Careful empiricism can aid in understanding the link between law reform and harm reduction, winners and losers, how parties see their interests, the relationship of law reform to social structures, and the list goes on. However, critical scholars must be careful not to lionize data as unassailable truth and to retain awareness that scientific knowledge is necessarily produced within the context of value-driven choices. Distributional analysis thus calls on critical scholars to design empirical studies and interpret empirical evidence with sincere desire to uncover facts, but also skepticism of objectivity, awareness of how design choices and data labeling reflect and produce normative meaning, and willingness to allow critical race, feminist, and other anti-subordination concerns to influence how and whether to collect and present data