75 Am. U. L. Rev. 11 (2025).

Abstract

The American criminal justice system doles out the harshest punishments in the world. It is infamous for its protracted criminal sentences and prodigious criminal code. But, what most scholars and policymakers overlook is that the United States punishes only a fraction of the total serious crime that occurs in the country—including violent crime. Approximately twenty million serious crimes occur in America each year, but only about half of these are reported to police. Of those reported, the police make arrests for an average of only twenty percent of serious crimes, and only ten percent of arrests result in a conviction. The problem is not only that those who are arrested are punished severely, but also that there is a selection error in who—and what crimes the American criminal justice system chooses to punish. First, the justice system increasingly focuses on incarcerating those who commit minor nonviolent crimes, rather than pursuing difficult-to-solve violent crimes. This creates a serious accountability gap for the most violent criminals. Second, American incarceration suffers from a selection error in that it overwhelmingly punishes individuals from low-income backgrounds and people of color. Not only is this problematic through a disparity lens, but also in terms of crime control and recidivism, as studies show that low certainty of punishment leads to higher rates of crime. There are two approaches to rectify this largely unrecognized dilemma. One option is to increase incarceration rates, focusing on the populations who are currently not being targeted and are getting away with crime. Higher accountability for crime will lead to increased certainty of punishment and less crime and incongruity as a more representative sample is incarcerated. A second possibility, considered more closely by this Article, is relying on alternative accountability models that could improve certainty of punishment without relying exclusively on incarceration, thereby avoiding the societal harms that accompany incarceration. This approach could address the dangerous selection error that tends to neglect violent crime by creating non-carceral accountability and strengthening police-community relationships.

* Woodruff J. Deem Professor of Law, BYU Law School. Distinguished Fellow, Wheatley Institute. This piece benefitted from presenting and dialogue at the Stanford/Yale/ Harvard Criminal Law Colloquium. Special thanks to Alec Karakatsanis and the team at Civil Rights Corps for helpful discussions in the formulation of this piece. Special thanks to Erica Larsen, David Griffith, Benjamin Hill, Austin Carpenter, Morgan Bronson, Mason Spedding, Taylin Antonick, and Claire Rattan and the editors of the American University Law Review for excellent editing and other assistance on this Article.