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A Call for New Criminal Justice Values, The Square One Project, 2019

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EXECUTIVE SESSION
ON THE FUTURE OF
JUSTICE POLICY
JANUARY 2019
Arthur Rizer,
R Street Institute

A CALL
FOR NEW
CRIMINAL
JUSTICE
VALUES

The Square One Project aims to incubate
new thinking on our response to crime,
promote more effective strategies, and
contribute to a new narrative of justice
in America.
Learn more about the Square One
Project at squareonejustice.org

The Executive Session was created with support from
the John D. and Catherine T. MacArthur Foundation as
part of the Safety and Justice Challenge, which seeks
to reduce over-incarceration by changing the way
America thinks about and uses jails.

04

07

12

OUR VALUES ARE
OUR IDENTITY

VALUES OF THE
PAST AND PRESENT

REDEFINING
OUR VALUES

20

21

24

ENDNOTES

REFERENCES

ACKNOWLEDGEMENTS

24

25

AUTHOR NOTE

MEMBERS OF THE
EXECUTIVE SESSION
ON THE FUTURE OF
JUSTICE POLICY

02

A CALL FOR NEW CRIMINAL JUSTICE VALUES

Who are we? Ever since we could
ponder such a question, we have looked to
philosophers, theologians, and scientists for
answers. And yet, maybe we don’t need to
apprehend the heavens or dissect the atom
to understand our inner nature. Maybe the
answer is simpler: we are what we value.

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

03

A CALL FOR NEW CRIMINAL JUSTICE VALUES

Accordingly, this paper seeks to answer
the question: what does American criminal
justice reveal about what we value and who
we are? I first explain why our criminal justice
values are so intertwined with our identity.
I then briefly discuss the historical backdrop
of the current values underlying criminal
justice. And finally, I provide a revised set
of values and argue that they better reflect
who we are today.

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

04

A CALL FOR NEW CRIMINAL JUSTICE VALUES

OUR VALUES ARE
OUR IDENTITY

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

05

A CALL FOR NEW CRIMINAL JUSTICE VALUES

Laws are supposed to reflect societal values.
For both good and bad, we have seen this
throughout American history. For example,
both the Constitution and the Bill of Rights
reflect our desire for the recognition of
inalienable rights and the need to safeguard
them from government overreach.
Unfortunately, due to fear and intolerance

have led to the enactment of laws such

from segments of our society, we also

as mandatory minimums and sentencing

created laws, like those of Jim Crow, that

enhancements, and those laws have led to

failed to recognize the inalienable rights

a change in justice outcomes. There are

of black Americans. Law, however, has

few better examples of this than the sharp

continued to evolve alongside new notions of

increase in the use of incarceration over the

justice, changing the mission of our criminal

decades following the passage of “tough on

justice apparatus and shifting power to

crime” legislation in the 1970s and ‘80s. Here,

different players within these systems.

values directly impacted not only the diction
of our criminal code, but also the mission of

A rehabilitative notion of justice, justice

the justice system as demonstrated through

focused on reforming individual behaviors,

the use of increasingly harsh enforcement

has traditionally awarded more authority

and punishment—and the disregard of the

to judges and parole officers; while notions

collateral consequences of that punishment.

of retributive justice, justice articulated
as proportional punishment for those who

Individual and institutional values are

commit wrongs, have awarded power to

also similarly displayed in the day-to-day

Congress and the greater public (Gertner

rhetoric and decisions of lawmakers and

2010:691). Historical changes in values

practitioners who carry out their duties

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

06

A CALL FOR NEW CRIMINAL JUSTICE VALUES

LOCAL JUSTICE OFFICIALS
HAVE SUBSTANTIAL ABILITY
TO INFLUENCE AN INDIVIDUAL’S
PATHWAY INTO OR EXIT FROM
THE JUSTICE SYSTEM
within the criminal justice field. Compare

having a mental breakdown or to escort

the language used by U.S. Attorney General

them to a hospital or public health facility.

Jeff Sessions and U.S. Representative

Similarly, a reform-minded district attorney

Mia Love, for example: Sessions often

may decide to send a greater number of

indiscriminately refers to those who commit

individuals to diversion programs instead of

crime as “hardened criminals” while Love

pursuing prosecution. Alternatively, a “tough

describes individuals who are incarcerated

on crime” judge may refuse to sentence any

as women and mothers (Associated Press

eligible individuals to a local community-

2018; Love 2017). These word choices

based sentencing alternative and insist on

perpetuate different images of people

giving them the maximum penalty allowed by

behind bars and can either reduce public

law. Since agencies within criminal justice

stigmatization of those convicted of crime or

often operate within silos and are armed with

increase it. Beyond rhetoric, however, values

divergent cultures and incentives, a coherent

often translate into changes in practice.

value structure is necessary to unify all

In an age of tight budgets and competing

policymakers and practitioners behind a

demands, criminal justice practitioners

common goal and to create a more effective,

prioritize programming based on competing

transparent, and cohesive apparatus.

values. A 2009 study of criminal justice
administrators, including prison wardens

Our values can also be examined through

and probation and parole administrators,

how we fund priorities. Indeed, if a core value

demonstrated that prison wardens who

of the justice system is rehabilitation, one

deemed substance abuse treatment to be

would expect to see increased investment in

highly valuable were more likely to report the

public defense, alternatives to incarceration,

adoption of evidence-based practices within

rehabilitative programming, re-entry

their respective facilities (Henderson and

services, and treatment. In comparison,

Taxman 2009). They were also more likely

if a core value is incapacitation, one would

to be located in the Northeast or Midwest

expect increased funding for prosecution,

(Henderson and Taxman 2009).

policing, and incarceration. If the
lawmakers who fund the various justice

Moreover, local justice officials, such as

agencies do not hold similar values as the

police officers, prosecutors, and judges,

practitioners who run them, the latter may

have substantial ability to influence an

find themselves without the funding or

individual’s pathway into or exit from the

resource support necessary to accomplish

justice system. A police officer, for example,

their respective missions, making reform

may have the choice to arrest an individual

all the more difficult.

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

07

A CALL FOR NEW CRIMINAL JUSTICE VALUES

VALUES OF THE
PAST AND PRESENT:
REHABILITATION,
RETRIBUTION,
DETERRENCE, AND
INCAPACITATION

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

08

A CALL FOR NEW CRIMINAL JUSTICE VALUES

The origins of the American criminal justice
system in colonial times were marked by
a belief in retribution (Gertner 2010:694).
Punishments were often binary, and the legal
code was simple and easily understood.
However, if jurors believed the consequences
of guilt too severe, they were allowed to show
mercy by arriving at a decision of “not guilty”
(Gertner 2010:692-693).

Rehabilitation emerged as the

was permeated by the idea “that such

predominant value of the criminal justice

measures should be designed to effect

system during the early 1900s (Gertner

changes in the behavior of a convicted

2010:695). In 1959, esteemed legal

person in the interests of his own happiness,

scholar Francis Allen asserted that the

health, and satisfactions and in the interest

current “rehabilitative ideal” was based

of social defense” (Allen 1959:226). Thus,

upon a couple of presumptions: (1) that

judges and the broader correctional system

preexisting and environmental factors

sought to uphold these ideals. For much

influence how humans behave, and that

of the 20th century, American judges

(2) justice serves a “therapeutic function”

had largely determined sentences with

when it engages with those who commit

broad discretion and little oversight from

crime (Allen 1959:226; Gertner 2010:696).

legislatures or appellate courts (Gertner

Allen noted that this research and belief

2010:695-696). However, in practice,

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

09

A CALL FOR NEW CRIMINAL JUSTICE VALUES

this system created large disparities in

found error with the disproportional,

sentencing outcomes, and rehabilitative

severe penalties that would come to be

programming was “often poorly implemented

enacted in the name of deterrence. The

and funded,” which undermined the chance

value of “just deserts” and proportional

for positive results for people who offended

punishment informed the enactment of

(Mackenzie 2001:7-8).

sentencing guidelines in the 1970s and 1980s,
which, in turn, helped reduce sentencing

THE VALUE OF RETRIBUTION GAINED
PROMINENCE DURING THE 1970S AND
REMAINS ONE OF THE MOST STRONGLY
HELD VALUES IN CRIMINAL JUSTICE

disparities among those who committed
similar offenses and promoted a more
consistent form of punishment (Travis,
Western, and Redburn 2014:325).
However, the value of deterrence resulted
in the enactment of new legislation that

In the 1970s and 1980s, rehabilitation

contradicted the aim of retribution and

was increasingly replaced by the penal

proportional punishment. Those who claimed

theories of retribution, deterrence, and

deterrence as a key value of the criminal

incapacitation (Allen 1981). The value of

justice system believed that foreseen

retribution gained prominence during the

consequences influence the rational

1970s and remains one of the most strongly

individual’s choice of action (Paternoster

held values in criminal justice. During this

2010:782). Therefore, the criminal justice

time, Andrew Von Hirsch presented a new

apparatus should invoke fear of punishment

articulation of retribution that replaced

in order to deter future criminal activity.1

the concept of an “eye for an eye” with the

In this pursuit, laws, courtroom tactics,

theory of “just deserts,” which featured

and policing practices evolved in an effort

punishment scaled according to the severity

to increase the certainty, severity, and

of one’s crime (Von Hirsch 2007:414-415).

celerity of punishment. Scholars credit this

In contrast to rehabilitation, which focuses

belief, along with the more present-oriented

on correcting criminal behavior and, thus,

value of incapacitation, with the enactment

minimizing future harm, retribution looks

of mandatory minimums, “three strikes”

at past behavior (i.e. the crime itself and

laws, and preventative techniques such as

past crimes committed by the individual)

“hot spots” policing (Paternoster 2010:766;

when determining punishment (Von

Travis et al. 2014:322). According to scholars

Hirsch 2007:415). Believers in proportional

Jeremy Travis, Bruce Western, and Steve

punishment, a key component of retribution,

Redburn (2014:325), new deterrence

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

10

A CALL FOR NEW CRIMINAL JUSTICE VALUES

THE CERTAINTY OF PUNISHMENT
MAY BE A MORE EFFECTIVE MODE OF
DETERRENCE, WHILE THE SEVERITY OF
PUNISHMENT IS A LESS OR COMPLETELY
INEFFECTIVE DETERRENT
penalties often corroded the previous intent

Some scholars have argued that the

of proportionality: “Low-level drug crimes

newly enacted deterrence policies were

often were punished as severely as serious

responsible for a portion of the subsequent

acts of violence. Under three strikes laws,

drop in the national crime rate throughout

some misdemeanors and minor property

the 1990s. Others, including Raymond

felonies were punished as severely as

Paternoster, Alfred Blumstein, and Richard

homicides, rapes, and robberies.”

Rosenfeld, have asserted that this crime
reduction may have been due to the

Studies have since suggested that the

incapacitation of individuals rather than

certainty of punishment may be a more

simple deterrence (Pasternoster 2010:802–

effective mode of deterrence, while

803; Blumstein and Rosenfeld 2008:22).

the severity of punishment is a less or

While deterrence utilizes the threat of

completely ineffective deterrent (Kovandzic,

punishment, incapacitation restricts an

Sloan, and Vieraitis 2004; Kleck 2005; Tonry

individual’s freedom, which limits his or her

2

2018; Von Hirsch 1999). However, even the

ability to commit a criminal offense. The

effectiveness of punishment that is certain

value of incapacitation is predominantly

has been questioned and is thought to differ

seen in the practice of incarceration or

widely based on an individual’s offense, peer

supervision. In the time period following the

network, and previous experiences with

enactment of deterrence and incapacitation

crime and the justice system (Matthews
and Agnew 2008:109; Tomlinson 2016:35).

policies, the number of incarcerated
3

Research has also significantly challenged
the power that celerity has as a deterrent,
suggesting that deterrence altogether may
be ill-suited as the sole value of our criminal
justice system (Miranne and Gray 1987;
Zettler et al. 2015). 4

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

individuals increased substantially.

11

A CALL FOR NEW CRIMINAL JUSTICE VALUES

Aside from policies aimed at deterrence

These values have continued to evolve

and incapacitation, Paternoster and other

amidst societal changes. Modern-

scholars suggested other factors that may

day scholars differentiate between

have influenced this crime drop—during

contemporary retributive theorists,

the same decade, Canada’s national crime

who believe “punishments may or must be

rate and use of incarceration decreased

imposed because they are deserved, but

concurrently (Pasternoster 2010; Blumstein

to be just they must be closely apportioned

and Rosenfeld 2008:22, 34; Rosenfeld

to the seriousness of the crime,” and

and Messner 2009:447). Thus, while

contemporary consequentialist theorists,

incapacitation may prevent an individual

who believe “punishments may or must

from committing crime temporarily (although

be imposed if doing so will achieve valid

narrative accounts demonstrate that criminal

preventative goals, but to be just they must

activity often continues throughout prisons

be no more severe than is needed for them

or jails), it is hardly a tenable, or just, long-

to be effective” (Travis et al. 2014:322). 5

term solution. Indeed, in a society in which

The value of rehabilitation has returned to

the value of incapacitation is paramount,

the center of the criminal justice reform

the time period in which government

movement, followed by a call for more

should restrict an individual’s freedom is

effective rehabilitative, reentry-focused

seemingly limitless; there is almost always

programming, and increased evaluation and

room to argue that the release of convicted

awareness of implementation integrity. 6

individuals carries the risk of future harm,

However, the American criminal justice

justifying incapacitation in the name of

system lacks a core—and agreed upon—

public safety. Yet perpetual incapacitation

system of values from which respective

is not an equal or just punishment for all or

agents of justice may derive aligned missions

most crimes, nor does locking individuals

and purpose. Accordingly, individuals

up forever address the underlying

across the political spectrum agree that the

circumstances which may promote criminal

current values and principles of our criminal

activity. Such a society would be constrained

justice system need to be redefined and our

to an increasingly costly chain of action in

institutions reformed to match these values

which more individuals sit in prisons, their

(Atkinson 2018; Rizer and Trautman 2018).

communities are left broken, and society is
only marginally—if at all—safer. Therefore,
although a possible temporary fix to crime,
incapacitation should not be a principal value
to which we should aspire.

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

12

A CALL FOR NEW CRIMINAL JUSTICE VALUES

REDEFINING
OUR VALUES:
THE NEED
FOR LIMITED
GOVERNMENT,
PARSIMONY,
AND LIBERTY
EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

13

A CALL FOR NEW CRIMINAL JUSTICE VALUES

A LIMITED GOVERNMENT
Our nation was founded on the principle of
inalienable rights, with government’s primary
purpose to secure and protect those rights –
namely, life, liberty, and the pursuit of happiness.
In exchange for this protection, individuals

A return to our founding principle of limited

give government the power to regulate

government, therefore, would be marked

human activity, “so far as is required for

by the eradication of laws that greatly

the preservation of himself and the rest

infringe on personal liberties and yield little

of society,” and the power to enforce such

or no benefit to public safety. Currently,

regulations (Locke 1689). This Lockean

the nation’s penal systems often inflict

articulation of limited government is

punishments upon individuals for acts that

perhaps the foremost value of our criminal

cause little harm to others. This system of

justice system, because it is the value

“overcriminalization” has created a large

upon which every other value is built. Yet,

expanse of laws about which the majority of

current criminal justice policies display

individuals are unaware, but for which they

rampant irreverence for this principle. The

may be prosecuted. Of this phenomenon,

overcriminalization of human behavior,

former U.S. Attorney General Edwin Meese III

the infliction of arbitrary collateral

(2010) warned: “We are making and enforcing

consequences after punishment, and the

far too many criminal laws that create traps

subsequent disregard for an individual’s life,

for the innocent but unwary, and threaten

liberty, and happiness following involvement

to turn otherwise respectable, law-abiding

in the process of justice all conflict with

citizens into criminals.”

the principle of limited government.
The simple truth is a government that
acts arbitrarily and capriciously against
its people, by definition, cannot claim
to be a limited government.

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

14

A CALL FOR NEW CRIMINAL JUSTICE VALUES

A simple, widely understood set of laws

and harrowing accounts from those who

clarifies the principles of the nation, makes

have experienced months, years, and even

it easier to identify right from wrong, and

decades in solitary confinement bring to

limits government power to enforce the laws

light its degradation of human dignity and

that matter most to public safety (Meese

mental health (Haney 2018; Penn 2017). If the

2010). In contrast, today’s legal system,

goal of punishment is to bring about justice

in which a 12-year-old may be arrested for

for victims and keep society safe, then the

eating junk food on the subway or an elderly

ways in which we punish must respect and

grandmother may be criminally charged

restore the integrity of the human mind

for not trimming her hedges, fails to be

rather than destroy it.

widely understood or to limit government
involvement to matters that protect

Moreover, a society that values limited

others from harm (Meese 2010).

government as a key principle of
criminal justice would call for a system

Limited government should also be

of accountability that intervenes at the

illustrated in policies that impact how

lowest level of authority first, with the

an individual is held accountable. For

power of enforcement as proximate to the

example, the shackling of pregnant women,

people as possible. So, for example, when

particularly during labor and birth, greatly

a teenager runs away or is truant, parents

reduces a mother’s personal liberty and

or guardians should be the authority figures

human dignity, and causes potential harm

involved in dealing with the consequences

both to her and her child while providing

of such behavior, rather than the justice

little benefit to public safety (Ferszt et al.

system. This is also reflected today in the

2018:19). This abhorrent practice has already

concept of community-based programming,

been limited in several states, but has yet

which by design, tailors programming to

to be eradicated throughout the country

the individual’s needs within their own

(Ferszt et al. 2018:20). Similarly, the use of

community instead of removing individuals

solitary confinement, if used at all, should

to incarcerate them in state prisons or

be minimized to situations in which an

local jails. Pre- and post-arrest diversion

individual presents a severe, credible harm

programs allow for a similar concept;

to the safety of others and should also be

local prosecutors can assess whether an

limited only to the amount of time absolutely

individual is better suited for punishment

necessary to prevent such harm. Placing

at the state level or for help through

individuals in solitary confinement has

community-based programs. Thus, to the

been shown to have numerous ill effects,

extent possible, government involvement

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

15

A CALL FOR NEW CRIMINAL JUSTICE VALUES

is more limited, and the decision-making

The overcriminalization and

power is in the hands of the localities that

overincarceration of justice-involved

typically bear the consequences of whether

individuals has resulted in the depletion

or not a given punishment is successful.

of state coffers across the nation. Indeed,

If rehabilitation is achieved, the community

it has been the high cost of failed policies

prospers due to reduced crime and increased

that first awakened reform in states such

safety, better local labor activity, and greater

as Texas. Policies that limit an individual’s

numbers of re-unified families. If policies are

ability to become a productive, contributing

poorly implemented, the community suffers

citizen upon reentry should be eliminated.

from the opposite trends.

For example, occupational licenses that
restrict employment due to a criminal record

Finally, the concept of limited government

unrelated to the duties of the position should

should be demonstrated in the pursuit and

be removed and unnecessarily lengthy

implementation of the most cost-effective

or ill-suited supervision requirements

manner of accountability possible—a return

reassessed. Moreover, data collection and

on investment.

program evaluation should be the hallmarks
of criminal justice, not the exception to the
rule. Local, state, and federal policymakers

A SOCIETY THAT VALUES LIMITED
GOVERNMENT AS A KEY PRINCIPLE
OF CRIMINAL JUSTICE WOULD CALL
FOR A SYSTEM OF ACCOUNTABILITY
THAT INTERVENES AT THE LOWEST
LEVEL OF AUTHORITY FIRST, WITH THE
POWER OF ENFORCEMENT AS PROXIMATE
TO THE PEOPLE AS POSSIBLE

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

should be continuously seeking to perfect
their accountability methods to increase
an individual’s likelihood of rehabilitation
and, therefore, to reduce crime while
wisely stewarding taxpayer dollars. Thus,
tracking the outcomes of criminal justice
policies and programs and measuring their
corresponding return on investment is
imperative to promoting a cost-effective,
limited justice apparatus.

16

A CALL FOR NEW CRIMINAL JUSTICE VALUES

WHILE LIMITED GOVERNMENT SEEKS TO
SCALE BACK AND LOCALIZE ENFORCEMENT
OF THE LAW, PARSIMONY FOCUSES
ON SCALING BACK THE HARMFUL IMPACT
OF PUNISHMENTS ON THE INDIVIDUAL

PARSIMONY
Parsimony, a principle that respects

among those who commit similarly severe

the concept of self-restraint and limited

crimes (Walgrave 2012:143). Instead,

government, may also present a unifying

parsimony requires an understanding of

value for our criminal justice system.

the individual and the best, least-severe

Parsimony is delineated by Travis et

method of accountability.

al. (2014:326) as the belief that “[a]ny
punishment that is more severe than is

Parsimonious punishment would result in

required to achieve valid and applicable

monetary and resource savings as states

purposes is to that extent morally

concentrate their resources on holding

unjustifiable.” This principle is infused

persons accountable in the least detrimental

by “the normative belief that infliction of

manner possible. Moreover, Jamie Fellner

pain or hardship on another human being

(2014), former senior advisor of the U.S.

is something that should be done, when it

program of Human Rights Watch, asserts

must be done, as little as possible” (Travis

that parsimony is critical to sentencing

et al. 2014:326). Although longstanding, this

reform as “unnecessarily harsh sentences

belief was built upon the recent arguments

make a mockery of justice.” Parsimony may,

of those such as Norval Morris and Michael

therefore, reduce the current concentration

Tonry (1990), who articulated the need for

of the collateral consequences following

parsimony in choosing whether or not to

incarceration among impoverished and

use incarceration as a form of punishment.

minority communities, while also restoring

The choice to incarcerate, they argued,

the legitimacy of criminal justice (Travis

should only be made “to affirm the gravity of

et al. 2014:327). Daryl Atkinson (2018),

the crime, to deter the criminal and others

a senior fellow with the Center for American

who are like-minded, or because other

Progress, articulates the process of arriving

sanctions have proved insufficient” (Morris

at parsimonious punishment: “[S]ociety

and Tonry 1990:13). Parsimony contrasts

must consider whether the state’s intrusion

with the value of proportionality in that it

on an individual’s liberty is the minimum

“requires an active search for non-coercive

necessary intervention to achieve public

ways of restoring dominion,” and does not

safety and wellness.”

necessitate equally applied punishment

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

17

A CALL FOR NEW CRIMINAL JUSTICE VALUES

Thus, while limited government seeks to

to society at some point in their lives,

scale back and localize enforcement of

parsimony begets the question of whether

the law, the concept of parsimony focuses

or not the given form of punishment prepares

on scaling back the harmful impact of

the individual for that reality or whether,

punishments on the individual. In light of

due to unnecessarily severe punishment,

the fact that 95% of those who are currently

it simply makes their reentry more difficult

incarcerated in state prisons will return

(Bureau of Justice Statistics 2018).

LIBERTY
There is perhaps no better way to judge

the attempt to define our values. Indeed,

our values than through our criminal

this thread is intertwined with the concepts

justice system. As Russian novelist

of limited government and parsimony.

Fyodor Dostoyevski wrote, “The degree of

Liberty represents a core principle of

civilization in a society can be judged by

America’s founding and American civil

entering its prisons” (Shapiro 2006:210).

society. There are many interpretations, but

Precisely because it’s the system that,

for the purposes at hand, we will rely on five

among other functions, was designed

articulations of liberty presented by Carl

to protect our cherished liberty.

Eric Scott (2014): (1) “natural rights liberty” –
the natural rights we expect government

The word “liberty” is used frequently but

to protect; (2) “classical-communitarian

seldom understood in the United States.

liberty” – i.e. self-governance; (3) “economic-

It is written on the tombs of our respected

autonomy liberty;” (4) “progressive

men and women, etched on our great

liberty” – articulated by Scott as “the social

buildings, and perhaps no other word evokes

justice of the national community;” and (5)

as much emotion and political reaction.

“personal-autonomy liberty” – the right for

Indeed, it was the word of power for both

an individual to make decisions according

the slave chained to a post, as well as the

to one’s own mores.

master who seceded from the “oppressive
union.” But because of the power of this
word, it can serve as a common thread in

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

18

A CALL FOR NEW CRIMINAL JUSTICE VALUES

AN INDIVIDUAL’S LIBERTIES
SHOULD NOT BE PERMANENTLY
FORSAKEN DUE TO AN
INFRACTION OF THE LAW

In its current form, criminal justice broadly

While the commission of crime is naturally

oversteps the bounds of liberty in several

followed by enforcement of the law and

ways. “Natural rights liberty” is violated when

thus the removal of several aspects of one’s

the right of private property is desecrated

liberty, criminal justice can re-institute

by practices such as civil asset forfeiture.

the value of liberty by reinstating those

“Classical-communitarian liberty” is

freedoms unnecessarily taken from justice-

forsaken when those who commit crime

involved individuals during their period of

are permanently barred from casting a vote

punishment and by restoring the full rights

for their elected officials. “Economic-

of citizenship after punishment is served.

autonomy liberty,” also known as economic

For example, criminal justice can promote

individualism, is prevented when a criminal

economic autonomy by training individuals

record seals off opportunity for those

in new skillsets through work-release

returning to society, as when occupational

programs, removing criminal records via

licensing boards arbitrarily ban individuals

expungement, and helping individuals

from practicing their skillset. It is similarly

secure stable housing, appropriate

prevented when other necessities for

transportation, and the documentation

employment—such as stable housing and

necessary to find stable employment.

a driver’s license—are unable to be obtained.

Moreover, classical-communitarian liberty

“Progressive liberty” fails to be realized when

can be granted through the restoration of

large racial disparities prevail in the system,

voting rights, and progressive liberty through

both in whom we choose to prosecute

the critical assessment and reform of

and in how we punish individuals for their

policies and norms resulting in the disparate

actions. Finally, “personal-autonomy liberty”

treatment of races. An individual’s liberties

is disregarded when the criminal code

should not be permanently forsaken due to

evolves to include a litany of crimes that

an infraction of the law. Rather, our methods

do not warrant government enforcement

of accountability should uphold the value

but should remain in the hands of private

of liberty by removing only those liberties

decision makers and public norms.

conflicting with the necessary, parsimonious
punishment and by preparing and granting
individuals all the duties of citizenship
upon their release.

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

19

A CALL FOR NEW CRIMINAL JUSTICE VALUES

THIS IS ONLY THE START
OF THE CONVERSATION
Who we are and the values tied to that

In today’s America, criminal justice

question have some distinct characteristics

lacks a cohesive set of values from which

in the United States. They are defined by

policymakers and practitioners may define

our incredible and storied past. We are a

their missions and align their purpose.

nation born from a revolution of ideals and

During various stages of history and with

out of a civil war rooted in the oppression of

varying levels of support for each individual

those very ideals. We looked evil in the face

value, scholars have argued for and assessed

and stopped the Nazi empire but, at home,

the efficacy of instituting rehabilitation,

subjected many of our citizens to a regime

retribution, deterrence, and incapacitation

of hate and intolerance. Indeed, America

as the core values from which laws and

is not a monolith, and can be, at times,

practice should be derived. Yet research

a paradox of itself.

demonstrates that, in many cases, these
values have failed to uphold the truest

But a core set of values can weave

notions of justice, to respect human dignity,

together different segments of society

and to restore public safety. Instead of solely

with diverse perspectives and biases.

embracing these principles of old, those

The values have to be shared across the

looking to redefine the core values of the

top levels of policy-making power and must

criminal justice system should integrate the

have buy-in from practitioners in order to be

values of limited government, parsimony,

successfully implemented. And ultimately,

and liberty into a new mission – one in which

they must also have public backing to

society is safer, those who commit crime

enjoy longer-term stability.

are transformed, and liberty is preserved.

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

20

A CALL FOR NEW CRIMINAL JUSTICE VALUES

ENDNOTES
1 Deterrence theory is thought

3 Shelley Matthews and Robert Agnew

5 Other scholars, such as Mark Tunick

to have evolved from the works of

(2008) find that the impact certainty of

(1992), have argued for a form of

Cesare Beccaria (1764) and Jeremy

punishment has as a deterrent of future

consequentialist retribution, in which

Bentham (1789). For a recent

crime depends on youth’s peer groups.

society “is to take the retributive ideal

overview of deterrence theory,

Those with few or no peers engaged in

as far as it goes, and only when it can

see Tomlinson 2016.

delinquent behavior are more likely to

go no further, to invoke considerations

curtail future criminal activity due to

normally taken as utilitarian.”

2 Tomislav Kovandzic et al. (2004)
found that three strikes laws did

certain punishment.

not reduce crime rates, and Gary

4 In an older general deterrence study

Kleck et al. (2005) found that

among male college students, Alfred

surveyed individuals’ perceptions of

Miranne and Louis Gray (1987) found

punishment depended little on the

that the celerity of punishment was

actual levels of punishment seen

not an effective general or specific

in the aggregate community. This

deterrent. In a more recent study,

is in direct contradiction to a core

Zettler et al. (2015) assessed whether

tenet of deterrence theory which

the celerity of arrest (i.e. swiftness

assumes individual perceptions of

of punishment following a criminal

punishment are formed, in part, based

act) impacted 3-year recidivism rates

on how individuals are punished in the

among criminal defendants; scholars

aggregate; and therefore, if aggregate

found that celerity only had a small,

punishment is marked by severity,

significant effect as a deterrent with

celerity, and certainty, individuals

an increasingly diminished impact the

will take notice and be deterred

longer the time period between the

from committing crime. Michael

criminal act and arrest.

Tonry (2017) provides a summarized
account of research regarding the
impact of severity on deterrence
in an online article to be published
in a forthcoming book.

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

6 For a review of literature evaluating
current reentry plans see Doleac 2018.

21

A CALL FOR NEW CRIMINAL JUSTICE VALUES

REFERENCES
Allen, Francis. 1981. The Decline of the

Blumstein, Alfred and Richard

Gertner, Nancy. 2010. “A Short

Rehabilitative Ideal: Penal Policy and

Rosenfeld. 2008. “Understand Crime

History of American Sentencing:

Social Purpose. New Haven, CT: Yale

Trends: Workshop Report, Chapter

Too Little Law, Too Much Law, or Just

University Press.

2: Factors Contributing to U.S. Crime

Right.” Journal of Criminal Law and

Trends.” The National Academies Press.

Criminology 100(3).

Justice, Legal Values and the

Bureau of Justice Statistics. 2018.

Ferszt, Ginette G., Michelle Palmer,

Rehabilitative Ideal.” Journal of Criminal

“Reentry Trends in the United States:

and Christine McGrane. 2018. “Where

Law and Criminology 50(226):226.

Inmates returning to the community

Does Your State Stand on Shackling

after serving time in prison.” U.S.

of Pregnant Incarcerated Women?”

Department of Justice. Retrieved

Nursing for Women’s Health 22(1):19.

Allen, Francis. 1959–1960. “Criminal

Associated Press. 2018. “Sessions calls
on Congress to get tough on crime.” USA
Today. August 1. Retrieved September
16, 2018 (https://www.usatoday.com/

September 16, 2018 (https://www.bjs.
gov/content/reentry/reentry.cfm).

videos/news/politics/2018/08/01/

Doleac, Jennifer. 2018. “Strategies

sessions-calls-congress-get-tough-

to productively reincorporate

crime/37243657/).

the formerly incarcerated into

Atkinson, Daryl. 2018. “A Revolution
of Values in the U.S. Criminal Justice
System,” Center for American Progress.
February 27. Retrieved September 16,
2018 (https://www.americanprogress.
org/issues/criminal-justice/

communities: A review of the
literature.” IZA Discussion Paper
No. 11646. Retreived September 16,
2018 (http://jenniferdoleac.com/
wp-content/uploads/2018/06/
Doleac_Reentry_Review.pdf).

news/2018/02/27/447225/revolution-

Fellner, Jamie. 2014. “Lawmakers

values-u-s-criminal-justice-system/).

should be parsimonious – not

Beccaria, Cesare. 1765. On Crimes and

sanctimonious – on drug sentencing,”

Haney, Craig. 2018. “Restricting the
Use of Solitary Confinement” Annual
Review of Criminology 1:285-310.
Henderson, Craig and Faye Taxman.
2009. “Competing values among
criminal justice administrators:
The importance of substance
abuse treatment.” Drug and Alcohol
Dependence 103(S1):S11.
Kleck, Gary, Brion Sever, Spencer Li,
and Marc Gertz. 2005. “The Missing
Link in General Deterrence Research.”
Criminology 43(3):642-653.

The Hill. June 14. Retrieved September

Kovandzic, Tomislav V., John J. Sloan III,

16, 2018. (http://thehill.com/blogs/

and Lynne M. Vieraitis. 2004. “‘Striking

congress-blog/judicial/209325-

out’ as crime reduction policy: The

Bentham, Jeremy. [1789] 1988. The

lawmakers-should-be-parsimonious-

impact of ‘three strikes’ laws on crime

Principles of Morals and Legislation.

not-sanctimonious-on-drug).

rates in U.S. cities.” Justice Quarterly

Punishments. Translated by H. Paolucci.
New York: Pearson/Macmillan.

Reprint, Amherst, NY: Prometheus.

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

21(2):207-239.

22

A CALL FOR NEW CRIMINAL JUSTICE VALUES

Locke, John. 1689. Second Treatise of

Miranne, Alfred III and Louis Gray. 1987.

Scott, Carl. 2015. “The Five Conceptions

Government. Retrieved September 16,

“Deterrence: A laboratory experiment.”

of American Liberty.” National Affairs

2018 (https://www.earlymoderntexts.

Deviant Behavior 8 (2).

20:164-183.

Morris, Norval and Michael Tonry.

Shapiro, Fred (ed.). 2006. The Yale Book

Love, Mia. 2017. “Criminal justice

1990. Between Prison and Probation:

of Quotations. New Haven, CT: Yale

reform: A women’s issue 2017.” The Hill.

Intermediate Punishments in a Rational

University Press.

March 13. Retrieved September 16, 2018

Sentencing System. Oxford University

(http://thehill.com/blogs/congress-

Press.

com/assets/pdfs/locke1689a.pdf).

blog/judicial/323244-criminal-justicereform-a-womens-issue).

stand?” Federal Probation Journal

Much Do We Really Know about Criminal

80(3):33-38.

Deterrence.” Journal of Law and

“Sentencing and Corrections in the

Criminology 100(30):782.

the Future.” University of Maryland,
College Park. Retrieved September 16,
2018 (https://www.ncjrs.gov/pdffiles1/
nij/189106-2.pdf).
Matthews, Shelley and Robert Agnew.
2008. “Extending deterrence theory:
Do delinquent peers condition the
relationship between perceptions
of getting caught and offending?”
Journal of Research in Crime and
Delinquency 45(2):109.
Meese, Edwin III. 2010. “Too Many
Laws Turn Innocents into Criminals.”
The Heritage Foundation. May 26.
Retrieved September 16, 2018 (https://
www.heritage.org/crime-and-justice/
commentary/too-many-laws-turninnocents-criminals).

Tonry, Michael. 2017. “An Honest
Politician’s Guide to Deterrence:

Penn, Nathaniel. 2017. “Buried

Certainty, Severity, Celerity, and

Alive: Stories from Inside Solitary

Parsimony.” Deterrence, Choice, and

Confinement,” GQ, March 2.

Crime: Contemporary Perspectives.

Retrieved September 16, 2018

Retrieved September 18, 2018 (https://

(https://www.gq.com/story/

ssrn.com/abstract=2981749).

buried-alive-solitary-confinement).

Travis, Jeremy, Bruce Western, and

Rosenfeld, Richard and Steven

Steve Redburn (eds.). 2014. The Growth

Messner. 2009. “The crime drop in

of Incarceration in the United States:

comparative perspective: the impact

Exploring Causes and Consequences.

of the economy and imprisonment

Washington, DC: National

on American and European burglary

Academies Press.

rates.” The British Journal of
Sociology 60(3):447.
Rizer, Arthur and Lars Trautman.
2018. “Where the Right Went Wrong
on Criminal Justice.” The American
Conservative. July 6. Retrieved
September 16, 2018 (https://www.
theamericanconservative.com/
articles/where-the-right-went-wrongon-criminal-justice/).

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

of Deterrence Theory: Where do we

Pasternoster, Raymond. 2010. “How

Mackenzie, Doris L. 2001.
21st Century: Setting the Stage for

Tomlinson, Kelli. 2016. “An Examination

Tunick, Mark. 1992. Punishment Theory
and Practice. Berkeley, CA: University
of California Press.
Von Hirsch, Andrew. 2007. “The “desert”
model for sentencing: Its influence,
prospects, and alternatives.” Social
Research: An International
Quarterly 74 (2):414-415.

23

A CALL FOR NEW CRIMINAL JUSTICE VALUES

Von Hirsch, Andrew and Cambridge
University. 1999. Criminal Deterrence
and Sentence Severity: An Analysis of
Recent Research. Oxford: Hart.
Walgrave, Lode. 2012. Restorative
Justice, Self-Interest and Responsible
Citizenship. New York: Routledge.
Zettler, Haley R., Robert G. Morris, Alex
R. Piquero, and Stephanie M. Cardwell.
2015. “Assessing the celerity of arrest
on 3-year recidivism patterns in a
sample of criminal defendants.” Journal
of Criminal Justice 43(5):428-436.

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

24

A CALL FOR NEW CRIMINAL JUSTICE VALUES

ACKNOWLEDGEMENTS

AUTHOR NOTE

The author would like to thank
Emily Mooney, criminal justice policy
associate at R Street Institute, for her
drafting and research support of this
article. He would also like to thank his
Executive Session colleagues Bruce
Western, Vikrant Reddy, Sylvia Moir,
Abbey Stamp, Katharine Huffman,
and Anamika Dwivedi, who provided
invaluable feedback on earlier drafts
of this paper.

Arthur Rizer is the director of
criminal justice and civil liberties
at the R Street Institute.

Designed by soapbox.co.uk

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

25

A CALL FOR NEW CRIMINAL JUSTICE VALUES

MEMBERS OF THE EXECUTIVE SESSION
ON THE FUTURE OF JUSTICE POLICY
Abbey Stamp | Executive Director,
Multnomah County Local Public
Safety Coordinating Council

Emily Wang | Director, Health
Justice Lab & Co-Founder,
Transitions Clinic Network

Nneka Jones Tapia |
Inaugural Leader in Residence,
Chicago Beyond

Amanda Alexander | Founding
Executive Director, Detroit
Justice Center

Greisa Martinez | Deputy Executive
Director, United We Dream

Pat Sharkey | Professor and Chair
of Sociology, NYU & Scientific
Director, Crime Lab New York

Arthur Rizer | Director of Criminal
Justice and Civil Liberties,
R Street Institute
Bruce Western | Co-Director
and Co-Founder, Justice Lab,
Columbia University
Danielle Sered | Executive
Director, Common Justice
Daryl Atkinson | Co-Director,
Forward Justice
Elizabeth Glazer | Director,
New York City’s Mayor’s Office
of Criminal Justice
Elizabeth Trejos-Castillo | C. R.
Hutcheson Endowed Associate
Professor, Texas Tech University
Elizabeth Trosch | District Court
Judge, 26th Judicial District of
North Carolina

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

Jeremy Travis | Executive Vice
President of Criminal Justice,
Laura and John Arnold Foundation
Katharine Huffman | Executive
Director, Square One Project,
Justice Lab, Columbia University

Robert Rooks | Vice President,
Alliance for Safety and Justice
Sylvia Moir | Chief of Police,
Tempe, Arizona

Kevin Thom | Sheriff, Pennington
County, South Dakota

Thomas Harvey | Justice Project
Program Director and Senior
Attorney, Advancement Project

Kris Steele | Executive
Director, TEEM

Tracey Meares | Founding Director,
The Justice Collaboratory

Lynda Zeller | Senior Fellow
Behavioral Health, Michigan Health
Endowment Fund

Vikrant Reddy | Senior Fellow,
Charles Koch Institute

Matthew Desmond | Professor
of Sociology, Princeton University
& Founder, The Eviction Lab
Melissa Nelson | State Attorney,
Florida’s Fourth Judicial Circuit
Nancy Gertner | Professor, Harvard
Law School & Retired Senior Judge,
United States District Court

Vincent Schiraldi | Co-Director
and Co-Founder, Justice Lab,
Columbia University
Vivian Nixon | Executive Director,
College and Community Fellowship

The Executive Session on the
Future of Justice Policy, part
of the Square One Project, brings
together researchers, practitioners,
policy makers, advocates, and
community representatives to
generate and cultivate new ideas.
The group meets in an off-the-record setting
twice a year to examine research, discuss new
concepts, and refine proposals from group
members. The Session publishes a paper series
intended to catalyze thinking and propose
policies to reduce incarceration and develop
new responses to violence and the other social
problems that can emerge under conditions of
poverty and racial inequality. By bringing together
diverse perspectives, the Executive Session tests
and pushes its participants to challenge their
own thinking and consider new options.

 

 

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