(Disclaimer: this post is the result of reading some work by Tommie Shelby and Erin Kelly but not yet wrestling with either author’s views sufficiently or examining the larger literature on expressivism in law. If you were a peer-reviewer, you should reject this post.)
A society has a right and an obligation to express what is just through the criminal law. One reason is that public statements about what is permitted and forbidden can influence behavior for the better. But sometimes laws are not effective means of shaping behavior. Even then, it is important for a community to express justice as accurately and completely as it can, and the criminal law is a valuable vehicle of expression.
Public expressions of justice must often be accompanied by penalties. Otherwise, laws can reasonably be interpreted as mere lip-service. If, for example, the law says that everyone must pay taxes, but oligarchs routinely get away with tax evasion, then the law is saying that oligarchs don’t have to pay taxes. The failure to punish them conveys a view of justice that is unfair.
Many things are wrong but should still be legal. Awful but constitutionally protected speech is an example. The scope of the law should be limited both because of the fallibility of any government and because individual liberty is a great value. (We’re not free if we’re only allowed to do good things.) Nevertheless, there remains a large domain of actions that are bad enough that the state should express their wrongness by prohibiting them and enforcing the prohibition with penalties.
Even a partially unjust regime can and must express justice through the criminal law. Its failures do not invalidate laws that it enacts and enforces, if those laws are just. An exception may be a pervasively evil regime. For instance, a Nazi law court could render the correct decision in a case of rape or murder, but the very existence of that court is so offensive as to render all of its verdict moot. The victims of even real crimes cannot get justice from Nazi judges. But that reasoning does not apply to courts in societies, like ours, that harbor a great deal of injustice.
Public statements about justice must be deliberated. This is not because deliberation equals justice (a proceduralist view). Justice is justice. Rather, we must deliberate because hearing and responding to alternative views is our best method of discovering what justice demands. Also, the legitimacy of a public (as opposed to an individual’s) statement of justice depends on whether each of us had a chance to influence it with our voice.
Our legal system violates the expressivist principles summarized so far. The features that violate this theory are: racialized mass incarceration, rampant plea-bargaining, degrading punishments (prison uniforms, refusal to provide education, tolerance for sexual violence, stripping prisoners of civil rights), frequent imprisonment of people with mental illness, and a tendency to hide the whole system away from public view.
Mass incarceration of people who are racial minorities and/or poor and/or mentally ill clearly expresses a view that is incompatible with justice–that those people are not equal. We wouldn’t have the same system if most of the prisoners were middle-class and white.
Racialized mass incarceration also blocks a satisfactory national discussion of justice. In some communities, incarceration is common, and in others, it is virtually absent; but since they are separated by race and class and have unequal amounts of political power, they are very unlikely to deliberate together.
Replacing jury trials with plea-bargains removes any public deliberation about particular cases and prevents each verdict from saying anything at all. The outcome of a case is a function of the perceived likelihood of conviction, the defendant’s tolerance of risk, the prosecutor’s interest in conviction, and the cost of a trial, not anyone’s view of what is deserved.
Hiding the whole system away excuses the public from deliberating about particular cases and about policy. You can easily turn a blind eye to the criminal justice system even though our prisons house a population as big as a state.
I would not go so far as to claim that an expressivist theory of criminal law is completely adequate. We can imagine a system that does a good job of expressing justice but fails other tests, such as the utilitarian criterion of doing the most good for the greatest number. For instance, maybe it would be better to cancel trials that don’t affect behavior and use the money saved for prevention. I’m sufficiently pluralist (or wishy-washy) to suspect that utilitarianism, contractarianism, classical liberalism, Foucault, and other views all offer valid insights.
But I would submit that an expressivist theory explains some of what is so badly wrong with our system.
See also: mass incarceration, the jury, and civic studies; why we are choosing to abolish the jury system; civic engagement and the incarceration crisis; if we are going to put millions in prison, WE should make millions of decisions