Seth Mayer

The American criminal justice system falls far short of democratic ideals. In response, democratic communitarian localism proposes a more decentralized system with a greater emphasis on local control. This approach aims to deconcentrate power and remove bureaucracy, arguing local control would reflect informal cultural life better than our current system. This view fails to adequately address localized domination, however, including in the background culture of society. As a result, it underplays the need for transformative, democratizing change. Rejecting communitarian localism, I defend a mass deliberative democratic approach to criminal justice reform that relies on institutions outside localities to democratize local institutions and background cultural patterns. Nonetheless, local institutions must be empowered to exert democratic control, as well as to influence institutions outside the locality. This process of democratic co-development offers greater hope for political equality, non-domination, and inclusive democratic deliberation about criminal law than democratic communitarian localism.

Although Jacques Rancière and Jürgen Habermas share several important commitments, they interpret various core concepts differently, viewing politics, democracy, communication, and disagreement in conflicting ways. Rancière articulates his democratic vision in opposition to important elements of Habermas’s approach. Critics contend that Habermas cannot account for the dynamics of command, exclusion, resistance, and aesthetic transformation involved in Rancière’s understanding of politics. In particular, the prominent roles Habermas affords to communicative rationality and consensus have led people to think that he cannot grasp the radical forms of political disagreement Rancière describes. While some have viewed Rancière as offering a trenchant challenge to Habermas, I will contend that Rancière’s critique is less compelling than some have thought. Habermasian understandings of third personal speech and aesthetic expression are nuanced and adaptable enough to evade Rancière’s criticisms. I conclude by suggesting that Habermasian theorists have also developed crucial forms of social and political critique that Rancière’s theory systematically excludes.

The way citizens regard and treat one another in everyday life, even when they are not engaged in straightforwardly “political” activities, matters for achieving democratic ideals. This claim provokes an underexamined unease in many. Here I articulate these concerns, which I argue are prompted by the approaches most often associated with these issues. Such theories, like democratic communitarianism, require problematic sorts of unity in everyday social life. To avoid these difficulties, I offer an alternative, called procedural democratic informal politics, which allows democrats to evaluate everyday life without demanding questionable forms of unity within it.

The diverse coalition of activists trying to cut the prison population has thus far failed to articulate a coherent moral foundation for criminal justice reform. Since the various constituents of this coalition support reform for different reasons, it may seem savvy to avoid conversation about moral questions. We argue, however, that failing to work toward developing a moral basis for reform puts the coalition at risk of repeating the failures of the sentencing reform movement of the 1970s and 1980s. This initially promising movement culminated in the passage of the widely disliked and deeply flawed United States Sentencing Guidelines. We lay out and analyze the downsides of avoiding moral discourse in criminal justice reform movements and argue for more collaboration and dialogue between moral thinkers and activists.