Scholarship about American criminal justice today focuses on two questions: How did Americans come to have a 2-million-plus inmate population, nearly half of it African American? How might that swollen inmate population be reduced without triggering a rise in crime? The second question is related to the first: If we can understand how our circumstances arose, we will be better able to change those circumstances in productive ways. Scholars have identified a host of answers to that first question, but three possible, partial answers have largely been ignored – I have certainly ignored them in my work, and I’m pretty sure the same is true more generally in the field as a whole. All are about the allocation of power over criminal punishment: precisely what has to change if the future of criminal punishment is to look different than its past. The first two partial answers concern institutional dynamics; the third stems from legal doctrine.
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