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Two recent decisions confirm criminal law’s ‘pathological politics’
By Robert Batey
Informal Opinion columns.
Of course the typical criminal
practitioner doesn’t have time to read many law review articles, not even the
ones Ellen Podgor flags in her regular column in this magazine. But every now
and then an article appears that so clearly captures the essence of a
particular set of problems that it just has to be on everybody’s “must read”
list. My nominee for your list is “The Pathological Politics of Criminal Law,”
by Harvard Law School’s William J. Stuntz, which appears in the December 2001
issue of the Michigan Law Review.1
Stuntz’ article analyzes the
fundamental political drives of legislators and prosecutors, contrasting them
with the aims of judges. His stark conclusions are that it is in the interest
of legislators and prosecutors to have criminal statutes drafted broadly, so
that the discretion of prosecutors is maximized, and that judges are largely
unwilling to do much of anything about this obvious threat to the rule of law.
“[C]riminal law serves not as a means of se
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