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Abstract

Criminal law pervades American society, subjecting millions to criminal enforcement, prosecution, and punishment every year. All too often, culpability is a minimal or nonexistent aspect of this phenomenon. Criminal law prohibits a wide range of common behaviors and practices, especially when one considers the various federal, state, and municipal levels of law restricting people’s actions. Recent scholarship has criticized not only the scope and impact of these laws but has also critiqued these laws out to the extent that they fail to live up to supermajoritarian ideals that underlie criminal justice.

This Article adds to and amplifies this criticism by identifying “countermajoritarian laws.” While some critics argue that criminal law often fails to live up to supermajoritarian ideals, this Article goes further and identifies instances in which criminal law is resistant to the will of the community. These laws end up remaining in place even where circumstances indicate that a majority of the community wishes to legalize or decriminalize the conduct these laws criminalize. Instances of countermajoritarian criminal laws include vetoes of decriminalization and legalization efforts, criminal provisions in federal and state constitutions, and local crimes enacted by officials who are voted into office by a tiny subset of the community.

Having identified the phenomenon of countermajoritarian criminal laws, this Article discusses how these laws may be addressed—and considers a range of potential reforms and their impact on countermajoritarian criminal laws. Countermajoritarian criminal laws should be a focal point in calls for criminal justice reform. Addressing these laws provides a basis for arguments regarding criminal law’s larger problem of democratic illegitimacy, and helps add a level of criticism on top of existing critiques of criminal law’s broad, discriminatory, and oppressive impacts on communities.

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