There is evidence everywhere that our criminal justice system is undergoing a crisis of practice. Increased police violence and the concomitant distrust of police in many communities, fear of aggressive enforcement tactics more generally, worries about widespread governmental surveillance and, above all, a concern with overcriminalization and mass incarceration-these are the dreary and familiar stuff of daily headlines. But, this crisis of practice in tum reflects a deeper crisis of how we theorize about criminal law. We lack, for the most part, any worked-out theory of what the policing and processing of crime should look like. Nor do we have real consensus on what things should be criminalized.1 And while we have theories of punishment in seeming abundance, they address a world that is, for the most part, divorced from our current reality.2
In particular, neither theories of deterrence nor retribution can explain, in any straightforward way, what is wrong with the warehousing of millions of people in prisons and jails across America.3 We live, as many have observed, in a "carceral state. "4 Our theories of criminal law
and punishment, for from giving us grounds to criticize that practice, could in some ways be said to be propping it up.5 If we need to punish harshly because retribution demands it, or because deterrence requires it, then the carceral state is not an unfortunate reality. It may be a normative necessity.
Chad Flanders.Criminals Behind the Veil: Political Philosophy and Punishment. 31 BYU Journal of Public Law (2016).