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Politics of Criminal Law Reform: A Comparative Analysis of Lower Court Decision-Making

NCJ Number
Date Published
258 pages
This dissertation analyzes select instances of criminal law reform in the United States, England and Wales, and Chile to ascertain how lower courts make decisions when constrained by higher lawmaking and interpreting bodies.

As shown in this dissertation, legislatures acting as principals feel compelled to continually offer solutions to alleviate what are considered high crime rates and sometimes inappropriate punishments by legislating constantly on this topic. Much of the legislation involves constraining lower court judges as agents who are deemed to be responsible for the failures of the criminal justice system. However, the rate and complexity of legislation is not only at cross purposes, but threatens to undermine a pillar of the rule of law, namely predictable, easily ascertainable law. While politicians feel compelled to act when crime rates rise, when a horrendous crime occurs in a constituent’s community, or when prison populations threaten to break the budget, it may be more appropriate to stop and analyze the effects of law and policy on judges and the cases they decide. Criminal law reform is a manifestation of the constant battle waged between politicians who want to appear tough on crime and judges who want to act independently to apply their expertise and judgment in adjudicating criminal cases. This dissertation supported by the U.S. Department of Justice, National Institute of Justice includes an analysis of sentencing reform in the United States Federal system and England and Wales, as well as an analysis of more general criminal law reform in Chile which converted its criminal process from one that was predominantly inquisitorial to one that is more adversarial in nature. By focusing on the effect of select instances of criminal law reform on lower court decisionmaking, the dissertation includes an analysis of whether lower courts are responsive to legislation and higher court mandates and whether the intent behind criminal law reforms was achieved or whether the reform resulted in unintended consequences. Tables, figures and appendix

Date Published: January 1, 2008