Safety, Crisis, and Criminal Law

Jenny E. Carroll

Executive Summary

This Article argues that the overlapping crises of 2020 expose dysfunction in the way criminal law has defined and promoted safety. Simply put, reliance on detention and rigorous, though disproportionate policing and prosecution of minority communities has failed to promote safety in the face of a global pandemic and the killing of Black and Brown people by police. The rhetoric of law and order has produced neither. Accordingly, this Article proposes a reorientation of criminal law’s central goal of safety – an orientation that pivots away from formal decision makers and instead grounds itself in the community. This reorientation relies on three concepts: dismantling the dichotomy between the defendant’s and the community’s interests, disaggregation of executive power, and the creation of meaningful opportunities for community participation in the construction, application and interpretation of law.

Key Findings:

Key Recommendations:

Each of these reform suggestions imagine fundamental and macro-level changes in the criminal system. Each is not without its hazards and complications. Yet without this reprioritization and re-conception, criminal law risks growing ever distant from its original safety goals.