An Emotional Affair

Steven K. Erickson, University of Pennsylvania Law School

Abstract

This essay briefly reflects on the seminal Article by William Stuntz, The Pathological Politics of Criminal Law. As Stuntz rightly argues, the pathology which afflicts our criminal justice system lies in its structural politics and power - unlike other institutional bodies, criminal justice can deprive liberty. But the power of the criminal code also lies in its inherent emotional attachment to the people it governs. Most folks rarely concern themselves with the various obtuse regulations which embody our modern legal system- yet almost everyone has a strong notion of how crimes should be punished. Criminal justice policy, however, has steadily tread towards sentencing decisions insulated from participatory influences. Likewise, punishment is now almost entirely a private enterprise. This divorce of the public from the ultimate output of the criminal justice system just might explain some of perverse realities which Stuntz so skillfully describes.