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Flawed Coalitions and the Politics of Crime

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ABSTRACT: Bipartisanship can be dangerous. In the late 1970s, liberal and conservative forces united to discard two centuries of discretionary federal sentencing practice by passing the Sentencing Reform Act, which ushered in an era of fixed guidelines that would reshape the criminal justice landscape. In the decades that followed, liberals would come to bitterly regret their alliance with conservative sentencing reformers. The guideline regime established by the Act ultimately advanced hardline conservative criminal justice goals that were antithetical to the objectives of many of the Act’s former liberal supporters.

Researchers have shown that a particular cognitive bias—cultural cognition—can explain why intense partisan conflicts persist even when different sides share the same long-term goals. But while scholars have documented ways that cultural cognition fosters disagreement where parties agree on desired outcomes, no commentator has explored the opposite phenomenon: whether cultural cognition may foster agreement where, in fact, citizens and policymakers sharply disagree.

This Article argues that the same cultural cognition biases that foment conflict among parties that share similar goals may also mask substantive differences among parties that should never have collaborated in the first place. Using the reform effort that led to the federal sentencing guidelines and the current movement to establish criminal “problem-solving courts,” this Article demonstrates how, in some cases, cultural cognition may dangerously frustrate the goals of elected officials who broadly delegate power to politically unaccountable actors.

Accordingly, this Article recommends the use of safeguards borrowed from administrative law that can minimize the dangers of flawed coalitions and promote deliberative democracy. By adopting sunset provisions and third-party monitors, policymakers can ensure that they do not overly commit to reform policies that will one day undermine their own interests.

 

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