On Law-Breaking and Law's Legitimacy
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ON LAW-BREAKING AND LAW'S LEGITIMACY
Aliza Plener Cover*
Our criminal justice system is built and justified on the idea
that criminal laws reflect our communal sense of right and wrong;
criminal punishment is theorized as distinct from civil confinement
primarily because of the collective moral opprobrium attached to a
criminal conviction.1 What happens, then, to the legitimacy of
criminal law when large segments of the community persistently
engage in the conduct it prohibits?
The war on drugs catalyzed an era of mass incarceration, a
phenomenon much studied and critiqued by scholars, policymakers,
and advocates.2 Less discussed in legal circles is the coexistence of
mass law-breaking-law-breaking by individuals across racial and
economic lines, within all sectors of society, and in numbers vastly
disproportionate to those serving time. Our last three presidents either
allegedly or admittedly used illicit drugs in their younger days.3 So,
© 2015 Aliza Plener Cover.
* Associate Professor, University of Idaho College of Law. J.D., Yale Law School. I
am grateful to Catherine Hancock and Cynthia Alkon for inviting me to participate
in the SEALS discussion group on mass incarceration, to my fellow discussants for
their feedback, to the University of Idaho College of Law for its generous support,
and to Benjamin Plener Cover for his insight as I developed this paper.
1 E.g., Henry M. Hart Jr., The Aims of the Criminal Law, 23 LAW & CONTEMP.
PROBLEMS 401, 404-05 (1958) (What distinguishes a criminal from a civil sanction
and all that distinguishes it, it is ventured, is the judgment of community
condemnation which accompanies and justifies its imposition.... [A crime] is
conduct which, if duly shown to have taken place, will incur a formal and solemn
pronouncement of the moral condemnation of the community.).
2 See, e.g., MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN
THE AGE OF COLORBLINDNESS (2010); Andr6 Douglas Pond Cummings, All Eyez
on Me : America's War on Drugs and the Prison-Industrial Complex, 15 J. GENDER
RACE & JUST. 417 (2012); HUMAN RIGHTS WATCH, NATION BEHIND BARS: A
HUMAN RIGHTS SOLUTION (2014),
http://www.hrw.org/sites/default/files/relatedmaterial/2014 US Nation Behind Ba
rsO.pdf, PEW CENTER ON THE STATES, ONE IN 31: THE LONG REACH OF AMERICAN
CORRECTIONS (2009),
http://www.pewtrusts.org/-/media/assets/2009/03/02/psppl in3 1_report final web_
32609.pdf
3 See Clinton Tried Marijuana as a Student, He Says, N.Y. TIMES (Mar. 30, 1992),
http://www.nytimes.com/1992/03/30/news/30iht-bill_1 .html; Bush Faces New
Round of Drug Questions, CNN.COM (Aug. 20, 1999),
http://www.cnn.com/ALLPOLITICS/stories/l 999/08/20/president.2000/bush.drug/.](ViewImageLocal?handle=hein.journals/margin15&div=16&collection=&method=preview&ext=.png&size=3)
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On Law-Breaking and Law's Legitimacy
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