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:

• Current constructs of safety in Arizona’s criminal code and rules are premised on a false dichotomy between the accused’s or the convicted’s interests and the community’s interests. In reality, such interests often overlap – a community may benefit from a defendant’s presence and may suffer losses from a defendant’s absence.

• The crises of 2020 expose the hazards of overreliance on criminal law – through police, prosecutors and sentencing schemes – to create or ensure safety. In reality, criminal law is often a poor tool for addressing broad social concerns ranging from homelessness to drug addiction.

• The application, interpretation and creation of criminal law relies too heavily on formal actors – elected and appointed officials while those who live under the law have little opportunity for direct participation in these functions. As a result, the law is often both tone deaf to the people’s interests and lacks nuance necessary for responsiveness as circumstances (and interests) change.

Key Recommendations:

• Arizona should recouple the defendant’s and the community’s interests in defining safety. This will not only achieve a more holistic sense of safety or risk, but also community investment in the outcome of the ultimate decision.

• Arizona’s legislature should seek to disaggregate executive and judicial power. Current reliance on police, prosecutor, and sentencing to promote safety ignores underlying needs within communities for social services to address everything from re-entry, medical, housing, education, and other needs.
• Community stakeholders should have the opportunity to participate in discretionary decision-making in criminal cases. Further, such discretionary decisions should occur in ways designed to acknowledge and address changing needs and interests.

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.