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. 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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.