Minimalist Criminal Courts

For many penal abolitionists, criminal courts have been complicit in mass incarceration. This Article argues that, unlike abolitionists, criminal justice minimalists should consider criminal courts part of the solution rather than the problem. Minimalist scholars have focused on advancing
wide-scale public policy proposals, such as extensive decriminalization, through the work of legislatures. While such proposals are generally desirable, their sweeping nature may sometimes raise concerns over excessive risks to public safety and political feasibility.
The shortcomings of promoting minimalism through legislatures
highlight the advantages of criminal courts. By virtue of their case-by-case adjudication, criminal courts can play a key role in ensuring that governments exercise their penal powers only as a last resort, while remaining sensitive to the unique circumstances of each individual case.
Their ability to exercise discretion and consider specific contexts and situations allows them to apply minimalist principles more fairly and in less objectionable ways politically.
The Article points to three complementary potential principles that minimalism-oriented courts can and should adhere to: de minimis, ultima ratio (last resort), and penal restraint. It also proposes how the values and goals of criminal justice minimalism can inform the design of each principle. Together and apart, these principles empower courts to play a major role in reducing the overreach of criminal law.