purpose of the criminal justice system essay

Guide to the U.S. Criminal Justice System

Written by: Nalea J. Ko | Edited by: Cassie Muniz | Last Updated: April 2024

What Is the Criminal Justice System? | Law Enforcement | Courts | Corrections | Tribal Law | How the System Works | Careers | FAQ

• The criminal justice system includes the courts, corrections, and law enforcement.
• Full-time law enforcement accounts for more than 700,000 U.S. workers.
• The federal court includes 94 district courts, 12 circuit courts, and the U.S. Supreme Court.
• U.S. Department of Justice and the U.S. Department of Homeland Security comprise the federal law enforcement.
• The first prison system in the country opened in 1891.

What Is the Criminal Justice System?

The criminal justice system in the United States consists of law enforcement, the court system, and corrections. These three subsystems encompass private and government agencies at the state, federal, and local levels, all of which work together to maintain public safety.

Each subsystem handles a different responsibility. Law enforcement does as their name implies: they enforce the law by making arrests. At the court level, defendants undergo the trial process that includes the opening statements, presenting of evidence, closing arguments, and sentencing. Convicted persons undergo rehabilitation as part of the correction process.

This comprehensive guide explores the complex network of subsystems within America’s criminal justice system.

Law Enforcement in the United States

At every level, the law enforcement branch of the United States criminal justice system attempts to serve the public by promoting safety and order. Law enforcement officers investigate suspected criminal activities and refer suspected criminals to courts.

The three main levels of law enforcement include federal, state, and local (e.g., county and municipal) policing. Each level tends to works independently within its own jurisdiction.

Each law enforcement level maintains internal hierarchies of individual departments and ranked officers who supervise and report to one another. To learn more about the structure, varying roles, and goals of each of these law enforcement levels, continue reading.

Federal Law Enforcement

The federal branch of law enforcement includes thousands of full-time officers working within dozens of federal agencies. The two main departments that employ law enforcement officers are the U.S. Department of Justice (DOJ) and the U.S. Department of Homeland Security (DHS). Notable agencies associated with each department include:

DOJ Agencies

• Federal Bureau of Investigation
• Drug Enforcement Administration
• U.S. Marshals Service
• Federal Bureau of Alcohol, Tobacco, and Firearms
• Federal Bureau of Prisons

DHS Agencies

• Transportation Security Administration
• Secret Service
• U.S. Customs and Border Protection
• Immigration and Customs Enforcement
• Coast Guard

Local and state law enforcement handle the majority of crimes in the U.S., but the federal government steps in where states and municipalities lack jurisdiction, such as when perpetrators commit crimes on federal property .

More specifically, the 10th Amendment to the U.S. Constitution reserves all rights and powers for the states that are not expressly delegated to the federal government. States reserve the right to establish and enforce laws to protect public health, safety, and welfare.

Thus, federal police power typically extends only to situations involving:

• Civil rights
• Immigration
• Offenses affecting interstate commerce
• Crimes committed across state lines

State Law Enforcement

Most states operate law enforcement initiatives through agencies and departments extending from a few central government entities. For example, a state’s department of public safety generally sees to the services and duties of state police and highway patrol.

Each state has an office of the attorney general, which handles the criminal and civil detective work of a state’s bureau of investigation and works as the state-level equivalent of the FBI.

A variety of other departments within state governments can operate their own divisions of law enforcement, especially for security purposes. The most common of these include:

• State capitol’s capitol police force
• Universities employing campus police
• State hospital security staff

When considering the role of state police, people commonly think of highway patrolmen, but the purpose and goals of state law enforcement extend beyond pulling over speeding cars.

State police conduct enforcement activities and investigations that fall outside the jurisdiction of a county sheriff’s office. Duties beyond highway patrol and enforcement of traffic laws may include:

• Protecting government officials
• Arresting suspects
• Providing emergency assistance
• Protecting crime scenes
• Interrogating or interviewing people

Local and Municipal Law Enforcement

Among the various sections of the criminal justice system, local law enforcement is the branch that a majority of people are most familiar with. Unlike federal and state law enforcement branches, local law enforcement operates within specific counties, cities, and communities.

The structure of local law enforcement can vary greatly depending on the jurisdiction size. A small town — like Ellendale, Delaware or Little River, Kansas — may employ a single officer or town marshal, whereas major cities like New York City have a large police department spread throughout multiple neighborhood precincts.

Counties often establish a sheriff’s department and county police force with a wider jurisdiction and/or greater focus on jail and court services, rather than patrolling a specific town or neighborhood.

Depending on the size of a local police department, the hierarchy can include up to a dozen different positions. A police commissioner — also called the chief of police — stands at the top of the chain of command. This position is followed by an assistant chief, deputy chief/commissioner, inspectors, colonels, majors, captains, lieutenants, sergeants, detectives, and officers or deputies.

Court and Legal Systems in the United States

The United States criminal justice system consists of courts at the federal and state levels. Federal and state courts are independent of one another and differ in several key areas defined by their jurisdiction and the types of cases they hear.

State courts receive a broad jurisdiction, hearing cases regarding:

• Family disputes
• Broken contracts
• Traffic violations
• Criminal activities (assaults or robberies)

In contrast, federal courts commonly hear cases in which the U.S. is a legal party:

• Federal law or Constitutional violations
• Copyright and patent law
• Maritime law

U.S. courts work closely with law enforcement and corrections in scenarios such as deciding whether or not to hear a case, sharing intelligence, asking law enforcement officers to testify during a trial, engaging in presentencing investigations, and determining alternative sentencing options.

State Courts

The vast majority of criminal and civil legal cases in the U.S. are handled by the massive state court system . Each state divides its courts into a structure with three main tiers : trial courts, appellate courts, and state Supreme Courts.

Trial courts include municipal courts (limited jurisdiction). Typical cases include:

• Traffic court
• Misdemeanor crimes
• Preliminary felony hearings

County courts (larger jurisdiction). Cases may relate to:

• Probate law
• City ordinance violations

State trial courts (largest jurisdiction). Cases may relate to:

• Property disputes
• Major felonies

When a losing party disagrees with a trial court’s decision, they can file an appeal. This prompts the trial court to send the case record to a state appeals court for consideration. To make a final ruling decision, the appellate court does not conduct a trial, instead relying on case documents, trial transcripts, exhibits, and attorneys’ written arguments.

An appellate court can either affirm the original decision, reverse the original decision, or send the case back to a trial court for further action.

A legal party unhappy with the ruling of their appeal can take the case a step further by requesting a final appeal with the state’s Supreme Court. At this level, appeals remain discretionary. The court decides whether or not to hear a case; if it declines, the lower court’s decision is considered final.

A state Supreme Court functions similarly to lower appeals courts. It reviews case documents, files, written briefs, and oral arguments rather than holding a full trial.

Upon reviewing a case, the state Supreme Court either affirms a decision, reverses it, or sends a case back to trial. Legal parties who do not receive their desired appeal result can strive for a final appeal with the U.S. Supreme Court .

Federal Courts

Three main levels make up the U.S. federal court system: 94 district courts, 12 circuit courts, and the U.S. Supreme Court. District courts conduct civil and criminal trials within the federal system, with one or two assigned to each U.S. state or territory. Trial cases commonly heard in district courts include those dealing with federal laws and/or those involving parties from two different states.

Like the state court system, legal parties who disagree with the decision of their district court trial can file for an appeal. A circuit court acts as the first stop in the federal appeals process. Some appealed cases receive decisions based on a review of court records and written briefs alone; however, many are also selected for oral arguments, in which attorneys can briefly present spoken arguments before a panel of judges.

The circuit court decision remains final unless the case is sent back for trial or legal parties seek an appeal with the U.S. Supreme Court by filing a petition for a “writ of certiorari” — simply put, a request for judicial review.

Each year, the U.S. Supreme Court receives thousands of requests for case review, but selects only a small fraction to hear. Cases most commonly heard by the Supreme Court include:

• Cases with an unusually significant legal principle
• Cases where at least two federal courts differ in the interpretation of a law
• Cases interpreting the Constitution

Once the U.S. Supreme Court delivers a decision, it can be overturned only by a rarely granted request for a rehearing, a future Supreme Court ruling, or an amendment to the Constitution itself.

Corrections in the United States

While law enforcement and the courts work to identify and intercept people involved in criminal activity, the corrections system serves a variety of simultaneous functions :

• Keeping criminal populations separate
• Enacting punishments for wrongdoing
• Promoting rehabilitation for the incarcerated

The U.S. corrections system is the largest system of its type in the world. Though home to less than 5% of the world’s population, the U.S. holds more than 20% of the world’s prisoners — the highest global per capita rate of incarceration among founding NATO countries, according to 2021 incarceration data.

The U.S. corrections system contains multiple state and federal corrections systems that act independently, although they follow similar procedures and protocols. Prisons can be publicly or privately operated, and state and federal corrections systems most commonly interact when transferring inmates. Corrections systems utilize incarceration, community service, parole, and probation to punish and/or rehabilitate criminals.

Incarceration entails the confinement of a person in a prison, and daily prison life severely restricts that person’s freedoms. In contrast, those sentenced to community service or those on parole or probation live beyond a prison cell.

If assigned to community service by a court, an individual typically completes a number of unpaid work hours for a nonprofit. Parole and probation both involve supervision and specific rules/guidelines regarding travel limitations, curfews, and required drug tests. Parole typically occurs when an individual gains early release from prison, while probation occurs before an individual enters prison.

The U.S. holds a high rate of recidivism, meaning the likelihood that a convicted criminal will return to prison is relatively high. This most commonly occurs because people violate the terms of their parole, and perhaps because the American rehabilitation system has inherent flaws.

There hasn’t been a large-scale recidivism survey conducted yet this decade, butfor 2019, BackgroundChecks.org places the U.S. recidivism rate of 70% within five years of initial incarceration.

Tribal Law in the United States

Federally recognized Native American tribes possess a form of sovereignty that preserves the inherent rights of each tribe to form their own governments, make and enforce civil and criminal laws, collect taxes, and establish and regulate tribal citizenship.

Some of the first federal recognitions of tribal sovereignty and law began in the early 19th century with a series of Supreme Court decisions, including the 1832 case of Worcester v. Georgia .

Though this case did not prevent the relocation of the Cherokee Nation from its ancestral homeland, it served as a foundation for the principle of tribal sovereignty, with the majority opinion calling tribal nations “distinct, independent political communities retaining their original natural rights.”

While federal Native American law concerns relationships between tribal, state, and federal government, tribal law governs a tribe’s members and territories. Tribal governments and tribal justice systems function in much the same way as state systems.

Tribal law is enforced by tribal law enforcement, and tribal courts that possess civil jurisdiction over tribal members and nonmembers who reside or do business within federal reservations. In 1978, the criminal jurisdiction of tribal courts became limited to violations of tribal law by tribal members only ( Oliphant v. Suquamish Indian Tribe ). Along with operating their own law enforcement and courts, Native American reservations house more than 90 corrections facilities .

Today, tribal governments, laws, and areas of jurisdiction often function in partnership with their local and state counterparts, working together to promote public safety and economic development. In some cases, however, the division between tribal and state jurisdiction can cause difficult legal complications .

How Does the Criminal Justice System Work?

A standard series of steps — including investigation, charging, initial hearing, discovery, plea bargaining, trial, sentencing, and appeal — helps streamline the process from law enforcement to the courts to corrections. The sections below explain those steps.

1) Entry Into the Criminal Justice System

The criminal justice process begins when someone commits a crime. Law enforcement officers on patrol can witness a crime directly, or be dispatched to respond to a witness’s call about a potential crime.

When officers arrive on the scene, the second step involves filing a crime report, which includes logging information about the time, location, and details of the incident by speaking with witnesses and/or victims.

This process must be completed as accurately and precisely as possible, as it builds a foundation that can impact the subsequent investigation and arrest of a suspect. It may also determine who gets called to testify in a trial and the sentencing process.

After obtaining a crime report, law enforcement can begin the process of investigation, arrest, and/or citation. If the suspect remains on site, officers can provide a citation with a date to appear in court or they can arrest the suspect.

Otherwise, officers must pursue an investigation and attempt to identify a suspect and collect enough direct or circumstantial evidence to warrant an arrest. If officers complete an investigation, discover a suspect, and collect appropriate evidence, they can make an arrest or provide a citation, depending on the nature of the crime and other factors.

2) Prosecution and Pretrial

The decision to formally charge a person with a crime rests with a court prosecutor, who forms this determination by examining all assembled evidence and a suspect’s criminal history. If a prosecutor does not find a suspect guilty beyond a reasonable doubt, that suspect is released. Alternatively, if a prosecutor decides to file formal charges, they determine the severity of the alleged crime (e.g., a murder charge versus a manslaughter charge).

If a suspect faces charges, an initial hearing will typically take place within 72 hours. A first court appearance involves arraignment, whereby the court informs a defendant about their legal rights and the charges they face.

The defendant responds to arraignment by entering a plea of guilty, not guilty, or no contest (allowable in some jurisdictions). A guilty or no contest plea means the defendant receives a sentence without going through the trial process. A not guilty plea means a case proceeds toward trial.

Upon a plea of not guilty, the defendant and court make defense attorney arrangements, if this has not already been done, and the judge determines if the defendant will be held or released. Depending on the severity of the charges and other factors, defendants may be given the option to post bail.

3) Trial Process

Rather than going to trial, a majority of cases in the criminal justice system are resolved by a plea agreement. Arranged cooperatively between the prosecution and defense, a plea agreement means the defendant agrees to plead guilty to one or more charges in exchange for a recommendation of a reduced sentence, a lesser degree charge, or having one or more charges being dropped entirely.

If parties do not reach a plea agreement, the case proceeds to trial.

Defendants reserve the right to select a jury trial (decided by a group of civilians) or a bench trial (decided by a single judge). A majority of defendants select bench trials. Reasons for this may include a speedier process — no need for jury selection, minimized opening/closing statements, lower mistrial risk — and/or concerns that a jury may judge the case based on emotion rather than on evidence/the law.

In either trial method, the prosecution and defense present their arguments and witnesses testify and face cross examination. Trials close with the judge or jury deciding on a verdict. Not guilty verdicts lead to the defendant’s release, while guilty verdicts lead to a sentence. If a jury cannot deliver a verdict due to disagreement or other reasons, such as misconduct or illness, a mistrial is called and a new trial can be arranged.

4) Corrections

To determine the appropriate sentence for a guilty defendant, a judge can examine sentencing guidelines provided by the United States Sentencing Commission .

For situations involving less serious crimes and shorter sentence lengths, judges may decide to sentence convicted persons to probation or parole rather than incarceration.

Probation or parole come with supervision and other restrictions. For example, individuals may face limitations on where they can live and travel, requirements to hold steady employment or attend school, and/or requirements to attend therapy or rehab. Violating probation or parole terms can land an offender in jail or prison.

Though controversial, a sentence of capital punishment remains legal in 27 states. However, this sentence can only be handed down by the unanimous decision of a jury, and it is only applicable in cases of capital offense (e.g., murder and/or assassination, treason, and espionage).

Careers in Criminal Justice

Criminal justice careers encompass many law enforcement , legal , and correctional roles , including jobs that only require a high school diploma and on-the-job training and those that require years of college study.

A majority of criminal justice professionals obtain at least a bachelor’s degree. However, many schools offer criminal justice degrees at multiple levels, including master’s and doctoral programs for students interested in higher-level management, academia, or research.

Criminal justice professionals tend to be detail oriented, inquisitive, and highly organized and possess a natural affinity for leadership and problem solving. The list below details several criminal justice-related careers.

Police and Detectives

Police officers work to ensure public safety, patrol assigned areas, and respond to emergency and nonemergency calls. Detectives gather facts and evidence for criminal court cases. Although a high school diploma and police academy training may meet minimum job requirements, some departments prefer candidates with a college degree.

• Median Salary (2023): $74,910
• Projected Growth Rate (2022-32): +3%

Correctional Officers and Bailiffs

Correctional officers supervise individuals in jail awaiting trial or serving sentences in prison. Bailiffs work as law enforcement officers within a courtroom where they maintain order, assist judges, and provide general courthouse security.

A high school diploma is typically the minimum education requirement, though federal prisons may require a bachelor’s degree. Some states require correctional officers to hold state certification.

• Median Salary (2023): $53,290
• Projected Growth Rate (2022-32): -7%

Probation Officers and Correctional Treatment Specialists

Probation officers and correctional treatment specialists help to rehabilitate law offenders and reintegrate them back into society after being released. Correctional treatment specialists conduct psychological tests to assess inmates and they also administer other tests, such as drug screenings. A bachelor’s degree usually provides the prerequisites to secure a career as a probation officer or correctional treatment specialists.

• Median Salary (2023): $61,800

Forensic Science Technicians

Forensic science technicians, or crime scene investigators , mostly work in local government, but also state government agencies, testing laboratories, and medical and diagnostic labs. At crime scenes, forensic science technicians collect evidence such as blood, footprints, and weapons. In the lab, forensic science technicians analyze physical and biological evidence.

• Median Salary (2023): $64,940
• Projected Growth Rate (2022-32): +13%

Lawyers conduct legal research and analysis, interpret legal concepts, and provide advice and representation during criminal or civil court cases and private legal disputes. Clients may include people, businesses, and government agencies. Those who want to become lawyers must typically hold a doctor of jurisprudence degree and pass a state bar exam.

• Median Salary (2023): $145,760
• Projected Growth Rate (2022-32): +8%

Sociologists

Sociologists study society and human behavior by examining processes by which groups, cultures, and organizations interact. Criminologists are sociologists who specialize in the study of crime, including its causes and effects. Finding employment as a criminologist typically requires at least a master’s degree.

• Median Salary (2023): $101,770
• Projected Growth Rate (2022-32): +5%

Postsecondary Teachers

Postsecondary instructors in this field teach criminal justice courses at colleges and universities. They create the lesson plans, following department curriculum, and also grade homework and exams according to set rubric. This job may also require publishing academic papers.

At the community college level, you can work with a master’s degree. However, you usually need a doctorate in criminal justice to get a tenured postsecondary position. Master’s degree-holders can also become adjuncts at four-year colleges.

• Median Salary (2023): $69,030

Frequently Asked Questions About the Criminal Justice System

What is the criminal justice system in simple terms.

The criminal justice system adheres to policies and practices that exist to uphold justice and keep people safe. The criminal justice system operates to prevent crime and punish law offenders under the governing jurisdiction. The criminal justice system is the complicated network of legal subsystems at the federal, local, and state level in the United States.

How has the criminal justice system changed over time?

The criminal justice system and the policies that influence mass incarceration shifted during the War on Drugs that began nearly 50 years ago. In 2023, politicians enacted policies to reduce mass incarceration, including reforming sentencing for youth defendants, increasing parole eligibility, and changing policies to reduce punitive practices put in place during the War on Drugs. Some states are working on restoring voting rights to former felons.

What is the definition of “justice” in the criminal justice system?

Justice as it relates to the criminal justice systems means ensuring that all people receive fairness in the legal process. The United States Constitution protects every citizen’s right to justice. According to the Sixth Amendment, all citizens have the right to a lawyer and a fair and speedy trial in front of an impartial jury.

What is the purpose of the U.S criminal justice system?

The U.S. criminal justice system exists to enforce laws but also to protect all citizens and society. The saying goes, “crimes against an individual are crimes against the state.” The criminal justice system outlines penalties for criminal behavior with the aim of deterring crime. When the courts find criminals guilty, judges sentence them to prisons or jails for rehabilitation.

Is the FBI part of the criminal justice system?

Yes. The Federal Bureau of Investigation (FBI) operates under the U.S. Department of Justice. The FBI often works with other law enforcement agencies to share intel, especially in cases of national security threats. The Director of National Intelligence oversees the operations of the FBI, which reports intelligence to local U.S. attorneys.

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The Criminal Justice System Definition Essay

• To find inspiration for your paper and overcome writer’s block
• As a source of information (ensure proper referencing)
• As a template for you assignment

Components of the Criminal Justice System

Criminal justice process, reference list.

The ability of a country to uphold social control, prevent, and extenuate crime depends on the organization of its criminal justice system. For a criminal justice system to achieve its mandate, it must have specific components, which must coordinate to achieve the overall role of reducing crime.

Further, for a criminal justice system to be democratic and fair in achieve justice for all, its members must follow certain processes in executing their duties . The United States criminal justice system primarily applies a “systems” approach in executing its duties, by using constitutional rules, state, federal, and departmental principles of criminal procedure, the Code of ethics, and bill of rights.

To ensure that the system performs its functions to desired standards, the government controls the criminal justice through three main structures namely the executive, legislative, and judicial. The primary function of the legislature is to define practices considered as crimes, fix sentences for such crimes, and provide monetary assistance to the system. The Judiciary through judges, attorneys, and juries help to make judgments using specific defined rules and principles.

On the other hand, the executive branch is mandated with the role of furnishing the criminal justice system with judges and heads of law-enforcing agencies. Therefore, a criminal justice system is a combination of federal state, and local and public bodies that are interdependent and work together for a common goal (Miller & Gaines, 2008, pp. 3-24).

Generally, a crime is any act that violates a set of fundamental laws, which govern public practices within a society; whereas, law is system of principles that helps to govern practices in a society. Therefore, laws are there primarily to prevent crime, through ensuring that individual’s practices and actions are within certain fundamental rules. Violation of any set rules is prosecutable and punishable in a court of law, as this is the only way of protecting people’s fundamental rights.

To achieve justice for all; prevent and control the rate of crime, the criminal justice system uses three major components, which the government has mandated with different roles, although they are very interdependent. The first component is police departments. The primary roles of this component include ensuring societies maintain law and order, implementing provisions in criminal law, and providing other security needs to the general public.

For police officers to achieve this role, they closely coordinate with community members and security organizations to apprehend criminals. To ensure that suspected criminals and sufferers of crimes get justice, police officers work closely with prosecutors in investigating crimes and gathering enough evidence, for prosecution purposes.

Evidence gathered from investigations acts as the primary basis of operation of the second component of the criminal justice system. The second component’s (courts) main mandate is to ascertain the criminal responsibility of suspects. Through the use of the juries, judges, prosecutors, and defense lawyer’s expertise and presentations, courts will either acquit or convict individuals of specific criminal charges.

Depending on a court’s verdict, the third component (Corrections) comes into action, if one is found guilty. The most common forms of corrections include parole, house arrests, approves, probation, and a specific jail term that matches with one’s crime. The primary role of corrections is to ensure that a criminal justice system rehabilitates criminals, through punishing them (Hewitt & Regoli, 2009, pp. 13-27).

To ensure that different components of the criminal justice system perform their duties to the desired standards and to avoid chances of laws enforcing agents violating the fundamental rights of those they are serving, the criminal justice process must go through a series of steps.

The first step in the process is investigation. Investigation involves the process of collecting evidence, identifying the suspect, and conducting searchers using the set procedures and rules. If there is evidence of the crime linking the suspect, the second step that involves arresting the criminal comes into action. Arrests are followed by prosecutions in a district court in the presence of attorneys and a prosecutor.

Depending on the facts of a prosecution procedure, in cases of capital offenses, an indictment by a grand jury is a necessity in ascertaining the amount of evidence to warrant a trial. If there is enough evidence, the sitting judge will arraign the suspect in a court of law fro pretrial. Before commencement of the trial proceedings, a defendant has a right of entering a plea, which is usually followed by plea bargaining, where the accused can accept to plead guilty for consideration of a less heavy punishment.

After plea bargaining, the case goes to trial in the presence of a judge or jury, prosecutor, and defense attorneys. Using the prosecutor’s evidence, the attorney’s defense during post trial; the courts can acquit defendants of all the charges or convict them of criminal offenses, which can be in form of jail terms, fines, probation periods, and community service.

If a defendant is not satisfied with the court rulings, they can file appeals in appellate courts. Depending on the court of appeal’s decision (which can be reversing the case or affirming to the lower court’s decision), the case is closed or returned for retrial. If the case goes back for retrial, the lower courts can re-file or drop the case.

In cases where the courts drop the case, the defendant can go free, but if re-filed, depending on the outcomes of the retrial the courts can acquit or convict defendants of the prescribed criminal offenses (National Centre for Victims of Crime, (n.d), pp. 2-4).

Hewitt, J. D., & Regoli, M. R. (2009). Exploring criminal justice system . Massachusetts Jones & Bartlett Publishers. Web.

Miller, L. R., Gaines, L. K. (2008). Criminal justice in action: the core . Florence, Kentucky: Wadsworth Publishing. Web.

National Centre for Victims of Crime. (N.D). The Criminal Justice System. Web.

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The purpose of the criminal justice system

What is the purpose of the criminal justice system?

Consult the official website - www.cjsonline.gov.uk - and you will read the following under the ' aims and objectives ' section:

The purpose of the Criminal Justice System... is to deliver justice for all, by convicting and punishing the guilty and helping them to stop offending, while protecting the innocent.

Or consider the following, from Working Together to Cut Crime and Deliver Justice , the criminal justice strategic plan published in November 2007:

The central purpose of the Criminal Justice System is to deliver an efficient, effective, accountable and fair justice process for the public.

A similar tone was set by the 'Policy Green Paper' published in early March 2008 by the Conservative Party, entitled ' Prisons with a purpose '. Replete with crime control aspirations, the paper observed, in relation to prisons:

Prisons should reduce crime in three principal ways: by incapacitating offenders, by punishing and thereby deterring others who would commit crimes, and by rehabilitating offenders.

The main challenge was that of making the prisons system and the processes associated with dealing with prisoners more effective and efficient.

With their appeal to a utilitarian efficiency and an instrumental logic - protecting the innocent and punishing the guilty - these statements offer a picture of criminal justice as being in the business of crime control. The challenge is one of effectiveness.

A rather different note was struck by Jack Straw in his first major speech as Lord Chancellor in July 2007. What was 'fundamental to the welfare and happiness' of citizens, he argued, was strong public institutions, properly managed, 'and above all whether all... citizens, poor or rich, low or high got justice against the powerful, and the state.' He went on to draw out the implications for the justice system:

We are blessed in the United Kingdom by a judiciary whose integrity, independence, professionalism and skill are not in question. But we take such a condition for granted at our peril. Justice is a delicate plant. It has to be nurtured, protected, cared for.

The justice system on this account presents a bulwark against the potentially overweening power of the state and other vested interests. A concern for due process, checks and balances, core values and an underlying institutional strength inform this perspective, rather than the pragmatic appeal to the effective and efficient control of crime.

It was the American legal scholar Herbert Packer who first proposed that the competing logics of 'crime control' and 'due process' exercised varying influence on the operations of the US criminal justice process. Under the crime control model, the underlying logic of the criminal justice is to contain and repress criminal behaviour. Successful criminal detection, prosecution and conviction are hallmarks of an effective criminal justice model. The due process model, on the other hand, places at least as much emphasis on protecting the rights of the innocent as it does on convicting the guilty. The protection of individual liberty in the face of a potentially over-powerful state is a key preoccupation of the due process model.

Packer's contrast between crime control and due process was developed in the context of the US criminal justice process. Yet it is possible to consider recent debates on criminal justice in England and Wales in the categories he developed.

Of course crime control and due process logics are not pristine and mutually exclusive. The very fact that Jack Straw can both express due process concerns, while also being a senior minister responsible for the implementation of the government's criminal justice strategy suggests as much.

But disputes between crime control and due process considerations tend also to boil down to questions of degree and emphasis. Crime control advocates might argue that a misguided attachment to certain protections historically afforded to suspects hampers convictions. But the principle of appropriate protections is not, generally, denied. Due process advocates might champion enhanced protections for suspects in police custody. But one would have to search hard to find someone who would oppose any questioning of suspects in police custody.

The debate over the appropriate balance between due process protections and the crime control imperative, in other words, tends to be dominated by disagreements of a largely procedural kind. Such procedural debates are obviously vitally important. A society that shows indifference to the processes by which those deemed to have breached the laws of the land are dealt with is unlikely to be a society in which the rights of individuals are respected.

But on their own, procedural debates offer little insight into the social context and political-economic structures within which the criminal justice process operates. In order to explore this question, consider the following definition of criminal justice, taken from Andrew Sanders and Richard Young's standard textbook on the subject. Criminal Justice , they write:

is... a complex social institution which regulates potential, alleged and actual criminal activity within procedural limits supposed to protect people from wrongful treatment and wrongful conviction.

Criminal justice practices, they go on to note, 'are inherently coercive'. This focus on criminal justice as a set of often coercive social regulatory institutions, and not merely a collection of 'crime fighting' agencies, throws a spotlight on the broader social purpose of criminal justice, rather than merely considering its operations within the framework of a fight against crime versus the protections afforded suspects.

But then criminal justice, as a social regulatory set of institutions, operates within a society characterised by notable inequalities in wealth and power. What is the implication of this for the operations of criminal justice? For Sanders and Young they are very clear. '[I]n a society in which power, status and wealth are unequally distributed along lines such as age, gender, race, and class, much criminal justice activity will compound wider social divisions,' they write. They go on to argue that the 'enforcement of the criminal law... reinforces a hierarchical social order which benefits some while disadvantaging others.'

Now Sanders and Young are hardly red in tooth and claw revolutionaries. Their scholarship sits squarely within the parameters of liberal critique. But while liberal scholarship has many strengths, it also has its limitations. Take, for instance, the perspective set out by the Marxist political scientist Ralph Miliband over thirty years ago , on the differences between a liberal and a Marxist view on the nature of social conflict and its resolution:

In the liberal view of politics, conflict exists in terms of "problems" which need to be "solved". The hidden assumption is that conflict does not, or need not, run very deep; that it can be "managed" by the exercise of reason and good will, and the readiness to compromise and agree... The Marxist approach to conflict is very different. It is not a matter of "problems" to be "solved" but of a state of domination and subjection... Ultimately, stability is not a matter of reason but of force... and the notion of genuine harmony is a deception or a delusion.

The reason for quoting Miliband's analysis is that it implies a rather different take on the purpose and nature of criminal justice. From a Marxist perspective - at least if we take Miliband as the reference point - the purpose of criminal justice might be characterised as the ongoing maintenance of class domination by means of coercive force, legitimated by legal norms. Thus, of the four functions of the capitalist state identified by Miliband the first of them is the maintenance of law and order; what he dubs 'the repressive function'. The 'state is always involved' in the processes of criminal justice, Miliband argues, if only because it defines the nature of `legal norms and sanctions'.

It is not necessary to subscribe to Miliband's politics, nor Sanders and Young's liberalism, to acknowledge the critical purchase they offer to an understanding of criminal justice. In different ways they pose the challenge to take seriously the relationship between social structures and social processes on the one hand, and normative principles in relation to criminal justice on the other.

A concern with the appropriate principles and priorities that guide the operations of the criminal justice process remains an important and necessary task. But a theory of criminal justice that does not take seriously the ways in which criminal justice might both regulate and manage underlying social antagonisms is likely ultimately to lead to bad policy and dubious outcomes.

This article was first published in the March 2008 issue of the Barrister Magazine.

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Purpose of the Criminal Justice System: Examining The Purpose and Process

• Criminal Justice
• June 3, 2024

The purpose of the criminal justice system is to protect society, punish offenders and rehabilitate criminals. It does this by following a process where the offender is arrested and tried for what they did wrong.

If found guilty, they are punished with jail time or other punishments such as fines or community service. The offender may also be ordered to go through rehabilitation programs in order to stop them from committing crimes again in the future.

The goal of this article is to examine what the purpose of this system actually is, as well as how it works.

Read More: Why Criminal Justice is Important

Table of Contents

What is the purpose of the criminal justice system?

What career paths are available in the criminal justice system, qualifying for your future, what does ‘criminal justice’ mean.

The term criminal justice refers to the system of laws, law enforcement agencies, and associated personnel that work together to maintain order in society by identifying criminals who have committed crimes against the state or other citizens.

There are several different criminal justice systems throughout the world. Each one is designed according to what type of government runs it—whether a democracy, monarchy, or dictatorship for example.

Generally, however, they follow very similar steps when dealing with crime: arrest suspects; conduct investigations; bring cases before courts if necessary; pass sentences on convicted offenders, etc.

The purpose of the criminal justice system is to protect society, punish offenders and rehabilitate criminals. It does this by following a process where the offender is arrested and tried for what they did wrong. If found guilty, they are punished in some way.

People are put into the criminal justice system through what they do—or what is done to them. If someone commits a crime, they may be arrested and put on trial with their fate decided by a judge or jury of their peers (people who committed similar crimes).

Punishment changes depending on what crime has been committed and might involve being sent to jail for several years, being made to pay a fine, or having their driver’s license revoked.

The criminal justice system is what makes us feel safe in our own homes and what keeps order in society.

The process that the government follows when dealing with criminals helps keep peace within a community by punishing those who have done wrong while providing rehabilitation so they can become productive.

Read More: Reasons to Pursue a Degree in Criminal Justice

There are plenty of careers available in the criminal justice system, especially if you are interested in becoming something that isn’t a lawyer. Some of the most common careers in the criminal justice system include:

• Law enforcement: police officers, detectives, and deputy sheriffs
• Corrections officer: jailers, correctional treatment specialists, and parole or probation officers
• Legal support staff members such as paralegals who work with attorneys to help them prepare for what will happen during a trial. They can also be responsible for assisting witnesses when they come in to give their testimony.
• Interpreters and translators who work with the court to translate what is being said from one language into another
• Clerical staff members such as legal secretaries, bookkeepers, or computer technicians who are responsible for the upkeep of all of the files that are used in a trial. This includes not just what happens during a case but also what happened before it.

As you can see, there are many career paths in the criminal justice system, each with a range of different, but vital, duties, making it an excellent and exciting field in which to work. 

Gaining the criminal justice degree from our trade school puts you in an excellent position to access a variety of employment opportunities as you look for one that suits your skills and interests. 

At Northwest Career College, our Criminal Justice instructors include licensed, practicing attorneys and degree instructors able to teach, not only the law but also to guide our students in the many ways a criminal justice graduate integrates into a Las Vegas legal profession.

As part of our Criminal Justice Program, you’ll visit courts, jails, meditation centers, and more to experience first-hand the law in action, which will make your criminal justice training applicable to the Las Vegas legal system. 

Northwest offers a flexible blended program with all criminal justice classes, Las Vegas law classes taught on campus by an attorney, and general education courses offered online. Our experienced instructors are on campus to review and support your learning experience at all times. 

Call us at (702) 403-1592 to speak to one of our enrollment team about joining our Criminal Justice Program today!

Beginning her career as a Paralegal, Lisa soon advanced to the role of Senior Paralegal for various Family Law, Personal Injury and Corporate law firms in the Las Vegas community. She obtained her Juris Doctor and LL.M, completing her fellowship… Read Full Bio

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The Idea of 'The Criminal Justice System'

American Journal of Criminal Law, Forthcoming

Vanderbilt Law Research Paper No. 17-48

41 Pages Posted: 10 Oct 2017 Last revised: 20 Oct 2018

Sara Mayeux

Vanderbilt University - Law School

Date Written: October 9, 2017

The phrase “the criminal justice system” is ubiquitous in discussions of criminal law, policy, and punishment in the United States — so ubiquitous that almost no one thinks to question the phrase. However, this way of describing and thinking about police, courts, jails, and prisons, as a holistic “system,” dates only to the 1960s. This essay contextualizes the idea of “the criminal justice system” within the rise of systems theories more generally within intellectual history and the history of science. The essay first recounts that more general history of systems thinking and then reconstructs how it converged, in 1967, with the career of a young systems engineer working for President Johnson’s Crime Commission, whose contributions to the 1967 report The Challenge of Crime in a Free Society launched the modern and now pervasive idea of “the criminal justice system.” Throughout, the essay reflects upon the assumptions and premises that go along with thinking about any complex phenomenon as a “system” and asks whether, in the age of mass incarceration, it is perhaps time to discard the idea, or at least to reflect more carefully upon its uses and limitations. For instance, one pernicious consequence of “criminal justice system” thinking may to be distort appellate judges’ interpretations of Fourth Amendment doctrine, because they imagine their rulings to be hydraulically connected in a “system” with crime rates.

Keywords: criminal justice, criminal procedure, criminal law, history of criminology, legal history, policing

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Criminal justice is an umbrella term that refers to the laws , procedures , institutions, and policies at play before, during, and after the commission of a crime . As a modern concept, criminal justice expresses two central ideas: 

• Suspects, convicted criminals and victims of crime all have certain rights ;
• Criminal conduct should be prosecuted and punished by the state following set laws. 

By contrast, throughout ancient history, criminal acts were resolved privately, often by ”blood feuds” for murder and  trial by ordeal  for other crimes. The biblical phrase "an eye for an eye" embodied the criminal justice principles of ancient times. In  ancient Athens , for example, citizens were left to investigate and prosecute crimes with no government assistance. In this context, criminal justice referred to all available means private citizens had to avenge the harm caused by a crime.

Criminal justice has since evolved as a concept. In modern times, criminal justice reflects developments in legal theory, social science, politics, and changes in legal systems. Private citizens are no longer charged with the duty to investigate and prosecute crimes for personal vengeance. Instead, modern societies are built on a social contract that governments are responsible for maintaining order in their jurisdictions . To achieve order, governments created criminal laws, developed police systems, and established courts and facilities for incarceration ; including jails and prisons . Governments funded criminal defense lawyers to represent the indigent in legal proceedings and paid the salaries of judges to apply laws to the case at hand. In this context, criminal justice is the system that prescribes the fate of the criminal. It is also the system that provides recompense to the victim under the rule of law. Criminal justice seeks to deter future crimes by creating penalties for criminal conduct and rehabilitate criminals through incarceration. It is a system that delivers " justice " through a punishment proportionate to the crime.

In the United States, criminal justice evolved dramatically during the  Hoover administration  when President Herbert Hoover established  the National Commission on Law Observance and Enforcement , chaired by  U.S. Attorney General George Wickersham . Known as  the Wickersham Commission , the coalition studied the criminal justice system's current state, from policing tactics, prison conditions, and the root causes of crime. The final report documented rampant corruption among police officers, dangerous prison conditions, and hostile police tactics. Indeed, the  Wickersham Report  criticized the police for their "general failure... to detect and arrest criminals guilty of the many murders, spectacular bank, payroll, and other holdups and sensational robberies with guns." In turn, the Commission led to dramatic reform in the criminal justice system.

Criminal justice also refers to  reform movements  targeted at ending  mass incarceration . In the United States, criminal justice reform efforts highlight issues such as  discriminatory policing , the disproportionate number of poor people of color incarcerated, the high cost of incarceration, the  dangerous conditions  of the prison, and the questionable benefit of imprisonment to  public safety , among others.

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Criminal Justice Reform Is More than Fixing Sentencing

Experts explain how we got here and solutions that will benefit everyone.

• Changing Incentives
• Cutting Jail & Prison Populations

A single criminal conviction bars a person for life from calling a bingo game in New York State. Before you chuckle at this gratuitous prohibition, take a second to appreciate the wider context: this is one of 27,000 (!) rules nationwide barring people with criminal records from obtaining a professional license. Conviction of a crime excludes people from holding jobs from real estate appraiser to massage therapist.

In our work to end mass incarceration, the Brennan Center has focused on the length of prison sentences. As our studies have shown, 39 percent of those in prison are there without a current public safety rationale. But the reach of our criminal justice system — its inefficiencies and its unfairness — extends far beyond the time an individual is incarcerated.

We all have a stake, for example, in making sure that a person leaving prison can reintegrate into society. Instead, we throw up barriers. Getting a job, even one that does not require a professional license, becomes extremely challenging. Studies show that a criminal conviction reduces the likelihood of getting a job callback by 50 percent for a white applicant and nearly two-thirds for a black applicant. These long odds have serious consequences. Finding work is the keystone to getting housing, becoming a contributing family member, and living an independent life.

Since many people are convicted of crimes when young, the negative effects reverberate for decades. The annual reduction in income that accompanies a criminal conviction rises from $7,000 initially to over $20,000 later in life.

Today crime is rising. Public safety must be a paramount goal. When violence cascades, it affects and hurts poor and marginalized communities most. As Alvin Bragg, the new Manhattan district attorney, put it so well, “The two goals of justice and safety are not opposed to each other. They are inextricably linked.” 

Progress toward criminal justice reform was made possible, in part, by the fact that crime rates were falling for decades. Now, rising crime again creates the conditions where demagogic politics and unwise policies can recur — with potentially crushing social, economic, and racial consequences. So we need to think anew, to make sure that the reaction to rising crime does not provoke a policy response that produces neither safety nor fairness.  

A year ago, the Brennan Center set out to broaden the national discussion about criminal justice reform. Since then, through our Punitive Excess series , we have published 25 essays by diverse authors ranging from scholars to formerly incarcerated people. The ill-considered collateral consequences of criminal conviction is just one of many topics, which also include perverse financial incentives in the system, inhumane prison conditions, racism, the treatment of child offenders, and more. 

It is a trove of analysis and scholarship that deserves your attention. Today we published the concluding essay , which surveys the damage from heavy-handed tactics and offers alternatives that empower communities. We also released a new video exploring the problems caused by excessive punishment. I hope you will read, view, and share widely. 

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A better path forward for criminal justice: Conclusion

Subscribe to governance weekly, rashawn ray and rashawn ray senior fellow - governance studies brent orrell brent orrell senior fellow - american enterprise institute.

Below is the conclusion from “A Better Path Forward for Criminal Justice,” a report by the Brookings-AEI Working Group on Criminal Justice Reform. You can access other chapters from the report here .

As we write this report, the high-profile failures of the criminal justice system remain front and center in news coverage and the nation’s public policy agenda. The trial of former Minneapolis police officer Derek Chauvin in the killing of George Floyd draws our attention to how police authority continues to be a frequent threat to life and well-being, especially for low-income individuals and people of color. The police killing of Daunte Wright in a Minneapolis suburb further fuels community distrust and racial division in the Twin Cities and around the country.

At the same time, we are seeing a sudden and disturbing spike in criminal activity and violent offenses in our major urban areas. This spike has variously been attributed to social stress related to the pandemic, a declining willingness of police forces (in the wake of the Floyd death and subsequent civil unrest) to risk potentially dangerous confrontations with individuals committing crimes, and a growing unwillingness among prosecutors to try lower-level offenses thus implicitly encouraging worse ones.

As we prepare to exit pandemic conditions, we recommend a strategic pause to gather data that will help us understand why criminal activity has gone up and inform both immediate responses as well as longer-term reform initiatives. There will be a temptation – on both sides – to argue that the recent spike confirms their prior understandings and policy preferences; either that the recent burst of crime can be effectively controlled by a ratcheting up “tough-on-crime” policies and practices or that it is exactly these practices that create the predicate for crime surges by disrupting lives, families, and neighborhoods through excessive reliance on force and incarceration. We should resist both of these views while we strive for a better understanding of the forces driving and shaping patterns of criminal offenses. It is entirely possible, given the unprecedented conditions of the past 12 months, we will find ourselves surprised by what we learn.

As is often the case, we may need an “and” approach rather than an “or” approach. Policies need to address recent rises in crime and overpolicing. This is why our report focuses on the criminal justice as a whole. Policing is the entree to the criminal justice system that sorts people based on race, social class, and place. Most people do not want less policing. They want equitable policing, and equitable treatment once interacting with the criminal justice system, either as a victim or perpetrator.

Research-informed innovation that builds a more flexible and effective toolbox of responses is needed to move us towards the more peaceful, flourishing, and just society that is the shared objective of conservatives and progressives alike.

The sources of criminal activity and public safety challenges are multifaceted while our responses to them are often singular: more and tougher policing, prosecution, and incarceration. Not every public order challenge is a nail in need of a hammer. If we are to honor the dignity of every person and respect the sanctity of human life, we need a more balanced and diversified approach that recognizes confrontation and coercion are not the only, and often not the best, strategies for protecting our communities. Research-informed innovation that builds a more flexible and effective toolbox of responses is needed to move us towards the more peaceful, flourishing, and just society that is the shared objective of conservatives and progressives alike.

The essays in this volume and the recommended supplemental readings provide much food for thought about the major areas of criminal justice reform that should be at the top of the nation’s agenda. The recommendations are varied and informed by differing perspectives on how to better balance the requirements of community safety, civil liberty, policing and procedural protections, and supporting and achieving lasting changes in attitudes, behaviors, and outcomes among justice-involved individuals as befits a nation committed to the idea of rehabilitation and not just retribution. The authors in this volume will continue convening to discuss, debate, and research these complex issues, with a shared goal of identifying ways to improve our country’s criminal justice system. These are deeply interconnected issues requiring a thorough, thoughtful, and comprehensive response rather than an immediate reversion to long-held and -argued views that may fit recent history or current conditions. A nation that incarcerates so many at such a high cost in public resources and wasted human lives can ill-afford to do otherwise.

The Brookings Institution is a nonprofit organization devoted to independent research and policy solutions. Its mission is to conduct high-quality, independent research and, based on that research, to provide innovative, practical recommendations for policymakers and the public. The conclusion and recommendations of any Brookings publication are solely those of its authors, and do not reflect the views of the Institution, its management, or its other scholars.

The American Enterprise Institute for Public Policy Research is a nonpartisan, nonprofit 501(c)(3) educational organization. The views expressed in this report are those of the authors. AEI does not take institutional positions on any issues.

Support for this publication was generously provided by the Ewing Marion Kauffman Foundation. The views expressed in this report are those of its authors and do not represent the views of the Foundation, their officers, or employees.

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• Social Policy

How can we improve our criminal justice system?

Legal scholar Herbert L. Packer described two models of the criminal justice system: the crime-control model and the due-process model. The crime-control model focuses on harsh policies, laws and regulations. Its goal is to create swift and severe punishments for offenders. The due-process model, on the other hand, aims to promote policies that focus on individual rights. It tends to focus on fairness, justice and rehabilitation.

The dynamics of the crime-control model continue to reinforce prison as the default response to crime – an approach which is inadequate and deficient. A more restorative-justice/healing process for offenders would help foster human dignity, respect and well-being. That’s why Canada should move away from the crime-control model in favour of a restorative-justice model.

It is important to understand how the concept of punishment is linked to broader social theories and phenomena. Émile Durkheim , a well-known French sociologist, emphasizes how punishment is functional for society as it reaffirms the collective conscience and social solidarity. His theory provides an explanation for how moral panics and the public’s mass consumption of prison images in the media justify prisons and make people believe that they are the only way to deter crime and rehabilitate offenders.

Moving restorative justice into the mainstream

Marxist theory offers a holistic approach to the explanation of social life. It argues that society has a definite structure, as well as a central dynamic, which patterns social practices in specific and describable ways that connect various areas of social life. Marxist theory argues that the way economic and political activity is organized and controlled tend to shape the rest of society. These ideals are different from the legal and technical aspects of punishment, which tend to focus solely on deterring future criminal activity through laws that are retributive.

Retributive laws and policies focus on deterrence, denunciation and incapacitation. The truth is that crime-control, zero-tolerance and harsh policies do not work . The dominant retributive model of justice does not allow for healing the offenders because the purpose of incarceration is solely to punish them. Crime-control policies and harsh punishments lead to the increased racialization of prison populations, as well as the high levels of the marginalized and mentally ill in prisons. Crime-control policies and the punitive model of crime fail to look at how social and economic factors can make a person more prone to offend and ultimately get funneled into the criminal-justice system.

On the other hand, restorative-justice objectives look at how institutional and interpersonal relationships can address the issues of social domination that permeate through class, race, gender, culture, physical and mental ability, and sexual orientation. Restorative justice is a healing process, which focuses on social arrangements that foster human dignity, respect and well-being. The purpose of restorative justice is to address underlying systemic issues, provide victim-offender reintegration, restore harmony and address harm through various legal orders. This system further tries to help those marginalized individuals who are most vulnerable to experiencing discrimination and human rights violations to reintegrate back into society in a positive way.

Although restorative justice tries to move away from the punitive model of justice, there are some criticisms associated with restorative-justice policies as well. Many argue that the ideals associated with restorative justice can be implemented in society only once we start to question norms and alter existing social structures that make crime-control policies and the prison-punishment system necessary in the first place. There is a need for a new system of restorative justice that is based on social and economic justice, respect for all and restoration. Such a system is hard to implement in a social society where power and equality are not equally structured or equally distributed among members of the community. These inequalities and power differences legitimize the use of crime-control policies and the prison-punishment system, and pull the marginalized into the criminal justice system with the use of harsh laws and policies.

Given the failures of crime-control objectives and its exploitation of the most vulnerable populations in our society, Canada should move away from such harsh crime-control policies. We need restorative justice and a radical transformation in the way that we conceive justice and punishment. This is important because inmates need sustainable justice and rehabilitation. Alternative methods are needed to help the marginalized, those suffering from violence, mental health issues and drug addiction.

You are welcome to republish this Policy Options article online or in print periodicals, under a Creative Commons/No Derivatives licence.

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How to Think about Criminal Justice Reform: Conceptual and Practical Considerations

• Published: 20 December 2022
• Volume 47 , pages 1050–1070, ( 2022 )

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How can we improve the effectiveness of criminal justice reform efforts? Effective reform hinges on shared understandings of what the problem is and shared visions of what success looks like. But consensus is hard to come by, and there has long been a distinction between “policy talk” or how problems are defined and solutions are promoted, and “policy action” or the design and adoption of certain policies. In this essay, we seek to promote productive thinking and talking about, as well as designing of, effective and sustainable criminal justice reforms. To this end, we offer reflections on underlying conceptual and practical considerations relevant for both criminal justice policy talk and action.

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Across the political spectrum in the United States, there is agreement that incarceration and punitive sanctions cannot be the sole solution to crime. After decades of criminal justice expansion, incarceration rates peaked between 2006 and 2008 and have dropped modestly, but consistently, ever since then (Gramlich, 2021 ). Calls to ratchet up criminal penalties to control crime, with some exceptions, are increasingly rare. Rather, where bitter partisanship divides conservatives and progressives on virtually every other issue, bipartisan support for criminal justice reform is commonplace. This support has yielded many changes in recent years: scaling back of mandatory sentencing laws, limiting sentencing enhancements, expanding access to non-prison alternatives for low-level drug and property crimes, reducing revocations of community supervision, and increasing early release options (Subramanian & Delaney, 2014 ). New laws passed to reduce incarceration have outpaced punitive legislation three-to-one (Beckett et al., 2016 , 2018 ). Rather than the rigid “law and order” narrative that characterized the dominant approach to crime and punishment since the Nixon administration, policymakers and advocates have found common ground in reform conversations focused on cost savings, evidence-based practice, and being “smart on crime.” A “new sensibility” prevails (Phelps, 2016 ).

Transforming extensive support for criminal justice reform into substantial reductions in justice-involved populations has proven more difficult, and irregular. While the number of individuals incarcerated across the nation has declined, the U.S. continues to have the highest incarceration rate in the world, with nearly 1.9 million people held in state and federal prisons, local jails, and detention centers (Sawyer & Wagner, 2022 ; Widra & Herring, 2021 ). Another 3.9 million people remain on probation or parole (Kaeble, 2021 ). And, not all jurisdictions have bought into this new sensibility: rural and suburban reliance on prisons has increased during this new era of justice reform (Kang-Brown & Subramanian, 2017 ). Despite extensive talk of reform, achieving actual results “is about as easy as bending granite” (Petersilia, 2016 :9).

How can we improve the effectiveness of criminal justice reform? At its core, a reform is an effort to ameliorate an undesirable condition, eliminate an identified problem, achieve a goal, or strengthen an existing (successful) policy. Scholarship yields real insights into effective programming and practice in response to a range of issues in criminal justice. Equally apparent, however, is the lack of criminological knowledge incorporated into the policymaking process. Thoughtful are proposals to improve the policy-relevance of criminological knowledge and increase communication between research and policy communities (e.g., Blomberg et al., 2016 ; Mears, 2022 ). But identifying what drives effective criminal justice reform is not so straightforward. For one, the goals of reform vary across stakeholders: Should reform reduce crime and victimization? Focus on recidivism? Increase community health and wellbeing? Ensure fairness in criminal justice procedure? Depending upon who is asked, the answer differs. Consensus on effective reform hinges on shared understandings of what the problem is and shared visions of what success looks like. Scholars of the policy process often distinguish “policy talk,” or how problems are defined and solutions are promoted, from “policy action,” or the design and adoption of policy solutions, to better understand the drivers of reform and its consequences. This distinction is relevant to criminal justice reform (Bartos & Kubrin, 2018 :2; Tyack & Cuban, 1995 ).

We argue that an effective approach to criminal justice reform—one that results in policy action that matches policy talk—requires clarity regarding normative views about the purpose of punishment, appreciation of practical realities involved in policymaking, and insight into how the two intersect. To this end, in this essay we offer critical reflections on underlying conceptual and practical considerations that bear on criminal justice policy talk and action.

Part I. Conceptual Considerations: Narratives of Crime and Criminal Justice

According to social constructionist theory, the creation of knowledge is rooted in interactions between individuals through common language and shared meanings in social contexts (Berger & Luckmann, 1966 ). Common language and shared meanings create ways of thinking, or narratives, that socially construct our reality and profoundly influence public definitions of groups, events, and social phenomena, including crime and criminal justice. As such, any productive conversation about reform must engage with society’s foundational narratives about crime and criminal justice, including views about the rationales for punishment.

I. Rationales of Punishment

What is criminal justice? What purpose does our criminal justice system serve? Answers to these questions are found in the theories, organization, and practices of criminal justice. A starting point for discovery is the fact that criminal justice is a system for the implementation of punishment (Cullen & Gilbert, 1982 ). This has not always been the case but today, punishment is largely meted out in our correctional system, or prisons and jails, which embody rationales for punishment including retribution, deterrence, incapacitation, rehabilitation, and restoration. These rationales offer competing purposes and goals, and provide varying blueprints for how our criminal justice system should operate.

Where do these rationales come from? They derive, in part, from diverse understandings and explanations about the causes of crime. While many theories exist, a useful approach for thinking about crime and its causes is found in the two schools of criminological thought, the Classical and Positivist Schools of Criminology. These Schools reflect distinct ideological assumptions, identify competing rationales for punishment, and suggest unique social policies to address crime—all central to any discussion of criminal justice reform.

At its core, the Classical School sought to bring about reform of the criminal justice systems of eighteenth century Europe, which were characterized by such abuses as torture, presumption of guilt before trial, and arbitrary court procedures. Reformers of the Classical School, most notably Cesare Beccaria and Jeremy Bentham, were influenced by social contract theorists of the Enlightenment, a cultural movement of intellectuals in late seventeenth and eighteenth century Europe that emphasized reason and individualism rather than tradition, along with equality. Central assumptions of the Classical School include that people are rational and possessed of free will, and thus can be held responsible for their actions; that humans are governed by the principle of utility and, as such, seek pleasure or happiness and avoid pain; and that, to prevent crime, punishments should be just severe enough such that the pain or unhappiness created by the punishment outweighs any pleasure or happiness derived from crime, thereby deterring would-be-offenders who will see that “crime does not pay.”

The guiding concept of the Positivist School was the application of the scientific method to study crime and criminals. In contrast to the Classical School’s focus on rational decision-making, the Positivist School adopted a deterministic viewpoint, which suggests that crime is determined by factors largely outside the control of individuals, be they biological (such as genetics), psychological (such as personality disorder), or sociological (such as poverty). Positivists also promote the idea of multiple-factor causation, or that crime is caused by a constellation of complex forces.

When it comes to how we might productively think about reform, a solid understanding of these schools is necessary because “…the unique sets of assumptions of two predominant schools of criminological thought give rise to vastly different explanations of and prescriptions for the problem of crime” (Cullen & Gilbert, 1982 :36). In other words, the two schools of thought translate into different strategies for policy. They generate rationales for punishment that offer competing narratives regarding how society should handle those who violate the law. These rationales for punishment motivate reformers, whether the aim is to “rehabilitate offenders” or “get tough on crime,” influencing policy and practice.

The earliest rationale for punishment is retribution. Consistent with an individual’s desire for revenge, the aim is that offenders experience an unpleasant consequence for violating the law. Essentially, criminals should get what they deserve. While other rationales focus on changing future behavior, retribution focuses on an individual’s past actions and implies they have rightfully “earned” their punishment. Punishment, then, expresses moral disapproval for the criminal act committed. Advocates of retribution are not concerned with controlling crime; rather, they are in the business of “doing justice.” The death penalty and sentencing guidelines, a system of recommended sentences based upon offense (e.g., level of seriousness) and offender (e.g., number and type of prior offenses) characteristics, reflect basic principles of retribution.

Among the most popular rationales for punishment is deterrence, which refers to the idea that those considering crime will refrain from doing so out of a fear of punishment, consistent with the Classical School. Deterrence emphasizes that punishing a person also sends a message to others about what they can expect if they, too, violate the law. Deterrence theory provides the basis for a particular kind of correctional system that punishes the crime, not the criminal. Punishments are to be fixed tightly to specific crimes so that offenders will soon learn that the state means business. The death penalty is an example of a policy based on deterrence (as is obvious, these rationales are not mutually exclusive) as are three-strikes laws, which significantly increase prison sentences of those convicted of a felony who have been previously convicted of two or more violent crimes or serious felonies.

Another rationale for punishment, incapacitation, has the goal of reducing crime by incarcerating offenders or otherwise restricting their liberty (e.g., community supervision reflected in probation, parole, electronic monitoring). Uninterested in why individuals commit crime in the first place, and with no illusion they can be reformed, the goal is to remove individuals from society during a period in which they are expected to reoffend. Habitual offender laws, which target repeat offenders or career criminals and provide for enhanced or exemplary punishments or other sanctions, reflect this rationale.

Embodied in the term “corrections” is the notion that those who commit crime can be reformed, that their behavior can be “corrected.” Rehabilitation refers to when individuals refrain from crime—not out of a fear of punishment—but because they are committed to law-abiding behavior. The goal, from this perspective, is to change the factors that lead individuals to commit crime in the first place, consistent with Positivist School arguments. Unless criminogenic risks are targeted for change, crime will continue. The correctional system should thus be arranged to deliver effective treatment; in other words, prisons must be therapeutic. Reflective of this rationale is the risk-need-responsibility (RNR) model, used to assess and rehabilitate offenders. Based on three principles, the risk principle asserts that criminal behavior can be reliably predicted and that treatment should focus on higher risk offenders, the need principle emphasizes the importance of criminogenic needs in the design and delivery of treatment and, the responsivity principle describes how the treatment should be provided.

When a crime takes place, harm occurs—to the victim, to the community, and even to the offender. Traditional rationales of punishment do not make rectifying this harm in a systematic way an important goal. Restoration, or restorative justice, a relatively newer rationale, aims to rectify harms and restore injured parties, perhaps by apologizing and providing restitution to the victim or by doing service for the community. In exchange, the person who violated the law is (ideally) forgiven and accepted back into the community as a full-fledged member. Programs associated with restorative justice are mediation and conflict-resolution programs, family group conferences, victim-impact panels, victim–offender mediation, circle sentencing, and community reparative boards.

II. Narratives of Criminal Justice

Rationales for punishment, thus, are many. But from where do they arise? They reflect and reinforce narratives of crime and criminal justice (Garland, 1991 ). Penological and philosophical narratives constitute two traditional ways of thinking about criminal justice. In the former, punishment is viewed essentially as a technique of crime control. This narrative views the criminal justice system in instrumental terms, as an institution whose overriding purpose is the management and control of crime. The focal question of interest is a technical one: What works to control crime? The latter, and second, narrative considers the philosophy of punishment. It examines the normative foundations on which the corrections system rests. Here, punishment is set up as a distinctively moral problem, asking how penal sanctions can be justified, what their proper objectives should be, and under what circumstances they can be reasonably imposed. The central question here is “What is just?”.

A third narrative, “the sociology of punishment,” conceptualizes punishment as a social institution—one that is distinctively focused on punishment’s social forms, functions, and significance in society (Garland, 1991 ). In this narrative, punishment, and the criminal justice system more broadly, is understood as a cultural and historical artifact that is concerned with the control of crime, but that is shaped by an ensemble of social forces and has significance and impacts that reach well beyond the population of criminals (pg. 119). A sociology of punishment narrative raises important questions: How do specific penal measures come into existence?; What social functions does punishment perform?; How do correctional institutions relate to other institutions?; How do they contribute to social order or to state power or to class domination or to cultural reproduction of society?; What are punishment’s unintended social effects, its functional failures, and its wider social costs? (pg. 119). Answers to these questions are found in the sociological perspectives on punishment, most notably those by Durkheim (punishment is a moral process, functioning to preserve shared values and normative conventions on which social life is based), Marx (punishment is a repressive instrument of class domination), Foucault (punishment is one part of an extensive network of “normalizing” practices in society that also includes school, family, and work), and Elias (punishment reflects a civilizing process that brings with it a move toward the privatization of disturbing events), among others.

Consistent with the sociology of punishment, Kraska and Brent ( 2011 ) offer additional narratives, which they call theoretical orientations, for organizing thoughts on the criminal justice system generally, and the control of crime specifically. They argue a useful way to think about theorizing is through the use of metaphors. Adopting this approach, they identify eight ways of thinking based on different metaphors: criminal justice as rational/legalism, as a system, as crime control vs. due process, as politics, as the social construction of reality, as a growth complex, as oppression, and as modernity. Several overlap with concepts and frameworks discussed earlier, while others, such as oppression, are increasingly applicable in current conversations about racial justice—something we take up in greater detail below. Consistent with Garland ( 1991 ), Kraska and Brent ( 2011 ) emphasize that each narrative tells a unique story about the history, growth, behaviors, motivations, functioning, and possible future of the criminal justice system. What unites these approaches is their shared interest in understanding punishment’s broader role in society.

There are still other narratives of crime and criminal justice, with implications for thinking about and conceptualizing reform. Packer ( 1964 ) identifies two theoretical models, each offering a different narrative, which reflect value systems competing for priority in the operation of the criminal process: the Crime Control Model and the Due Process Model. The Crime Control Model is based on the view that the most important function of the criminal process is the repression of criminal conduct. The failure of law enforcement to bring criminal conduct under tight control is seen as leading to a breakdown of public order and hence, to the disappearance of freedom. If laws go unenforced and offenders perceive there is a low chance of being apprehended and convicted, a disregard for legal controls will develop and law-abiding citizens are likely to experience increased victimization. In this way, the criminal justice process is a guarantor of social freedom.

To achieve this high purpose, the Crime Control Model requires attention be paid to the efficiency with which the system operates to screen suspects, determine guilt, and secure dispositions of individuals convicted of crime. There is thus a premium on speed and finality. Speed, in turn, depends on informality, while finality depends on minimizing occasions for challenge. As such, the process cannot be “cluttered up” with ceremonious rituals. In this way, informal operations are preferred to formal ones, and routine, stereotyped procedures are essential to handle large caseloads. Packer likens the Crime Control Model to an “assembly line or a conveyor belt down which moves an endless stream of cases, never stopping, carrying the cases to workers who stand at fixed stations and who perform on each case as it comes by the same small but essential operation that brings it one step closer to being a finished product, or, to exchange the metaphor for the reality, a closed file” (pg. 11). Evidence of this model today is witnessed in the extremely high rate of criminal cases disposed of via plea bargaining.

In contrast, the Due Process model calls for strict adherence to the Constitution and a focus on the accused and their Constitutional rights. Stressing the possibility of error, this model emphasizes the need to protect procedural rights even if this prevents the system from operating with maximum efficiency. There is thus a rejection of informal fact-finding processes and insistence on formal, adjudicative, adversary fact-finding processes. Packer likens the Due Process model to an obstacle course: “Each of its successive stages is designed to present formidable impediments to carrying the accused any further along in the process” (pg. 13). That all death penalty cases are subject to appeal, even when not desired by the offender, is evidence of the Due Process model in action.

Like the frameworks described earlier, the Crime Control and Due Process models offer a useful framework for discussing and debating the operation of a system whose day-to-day functioning involves a constant tension between competing demands of different sets of values. In the context of reform, these models encourage us to consider critical questions: On a spectrum between the extremes represented by the two models, where do our present practices fall? What appears to be the direction of foreseeable trends along this spectrum? Where on the spectrum should we aim to be? In essence, which value system is reflected most in criminal justice practices today, in which direction is the system headed, and where should it aim go in the future? Of course this framework, as all others reviewed here, assumes a tight fit between structure and function in the criminal courts yet some challenge this assumption arguing, instead, that criminal justice is best conceived of as a “loosely coupled system” (Hagan et al., 1979 :508; see also Bernard et al., 2005 ).

III. The Relevance of Crime and Criminal Justice Narratives for Thinking about Reform

When it comes to guiding researchers and policymakers to think productively about criminal justice reform, at first glance the discussion above may appear too academic and intellectual. But these narratives are more than simply fodder for discussion or topics of debate in the classroom or among academics. They govern how we think and talk about criminal justice and, by extension, how the system should be structured—and reformed.

An illustrative example of this is offered in Haney’s ( 1982 ) essay on psychological individualism. Adopting the premise that legal rules, doctrines, and procedures, including those of the criminal justice system, reflect basic assumptions about human nature, Haney’s thesis is that in nineteenth century America, an overarching narrative dominated legal and social conceptions of human behavior—that of psychological individualism. Psychological individualism incorporates three basic “facts” about human behavior: 1) individuals are the causal locus of behavior; 2) socially problematic and illegal behavior therefore arises from some defect in the individual persons who perform it; and, 3) such behavior can be changed or eliminated only by effecting changes in the nature or characteristics of those persons. Here, crime is rooted in the nature of criminals themselves be the source genetic, biological, or instinctual, ideas consistent with the Classical School of Criminology.

Haney reviews the rise and supremacy of psychological individualism in American society, discusses its entrenchment in legal responses to crime, and describes the implications of adopting such a viewpoint. Psychological individualism, he claims, diverted attention away from the structural and situational causes of crime (e.g., poverty, inequality, capitalism) and suggested the futility of social reforms that sought solutions to human problems through changes in larger social conditions: “The legal system, in harmony with widely held psychological theories about the causal primacy of individuals, acted to transform all structural problems into matters of moral depravity and personal shortcoming” (pg. 226–27). This process of transformation is nowhere clearer than in our historical commitment to prisons as the solution to the problem of crime, a commitment that continues today. Psychological individualism continues to underpin contemporary reform efforts. For example, approaches to reducing racial disparities in policing by eliminating officers’ unconscious racial bias through implicit-bias trainings shifts the focus away from organizational and institutional sources of disparate treatment.

In sum, the various narratives of crime and criminal justice constitute an essential starting point for any discussion of reform. They reflect vastly differing assumptions and, in many instances, value orientations or ideologies. The diversity of ways of thinking arguably contribute to conflict in society over contemporary criminal justice policy and proposed reforms. Appreciating that point is critical for identifying ways to create effective and sustainable reforms.

At the same time, these different ways of thinking do not exist in a vacuum. Rather, they collide with practical realities and constraints, which can and do shape how the criminal justice system functions, as well as determine the ability to reform it moving forward. For that reason, we turn to a discussion of how narratives about crime and criminal justice intersect with practical realities in the policy sphere, and suggest considerations that policymakers, researchers, and larger audiences should attend to when thinking about the future of reform.

Part II. Practical Considerations: Criminal Justice Reform through a Policy Lens

Criminal justice reform is no simple matter. Unsurprisingly, crime has long been considered an example of a “wicked” problem in public policy: ill-defined; with uncertainty about its causes and incomplete knowledge of effective solutions; complex arrangements of institutions responsible for addressing the problem; and, disagreement on foundational values (Head & Alford, 2015 ; Rittel & Webber, 1973 )—the latter apparent from the discussion above. Many note a large gap between criminological knowledge and policy (Mears, 2010 , 2022 ; Currie, 2007 ). While a movement to incorporate research evidence into the policy-making process has made some in-roads, we know less about how policymakers use this information to adopt and enact reforms. Put differently, more attention is paid to understanding the outcomes of crime-related policy while less is known about the contexts of, and inputs into, the process itself (Ismaili, 2006 ).

We identify practical considerations for policy-oriented researchers and policymakers in thinking through how to make criminal justice reform more effective. Specifically, we discuss practical considerations that reformers are likely to encounter related to problem formulation and framing (policy talk) and policy adoption (policy action), including issues of 1) variation and complexity in the criminal justice policy environment, 2) problem framing and policy content, 3) policy aims and outcomes, 4) equity considerations in policy design and evaluation; and, 5) policy process and policy change. These considerations are by no means exhaustive nor are they mutually exclusive. We offer these thoughts as starting points for discussion.

I. The Criminal Justice Policy Environment: Many Systems, Many Players

The criminal justice “system” in the United States is something of a misnomer. There is no single, centralized system. Instead, there are at least 51 separate systems—one for each of the 50 states, and the federal criminal justice system—each with different laws, policies, and administrative arrangements. Multiple agencies are responsible for various aspects of enforcing the law and administering justice. These agencies operate across multiple, overlapping jurisdictions. Some are at the municipal level (police), others are governed by counties (courts, prosecution, jails), and still others by state and federal agencies (prisons, probation, parole). Across these systems is an enormous amount of discretion regarding what crimes to prioritize for enforcement, whether and what charges to file, which sentences to mete out, what types of conditions, treatment, and programming to impose, and how to manage those under correctional authority. Scholars note the intrinsic problem with this wide-ranging independence: “criminal justice policy is made and put into action at the municipal, county, state, and national levels, and the thousands of organizations that comprise this criminal justice network are, for the most part, relatively autonomous both horizontally and vertically” (Lynch, 2011 :682; see also Bernard et al., 2005 ; Mears, 2017 ).

Criminal justice officials are not the only players. The “policy community” is made up of other governmental actors, including elected and appointed officials in the executive branches (governors and mayors) and legislative actors (council members, state, and federal representatives), responsible for formulating and executing legislation. Non-governmental actors play a role in the policy community as well, including private institutions and non-profit organizations, the media, interest and advocacy groups, academics and research institutions, impacted communities, along with the public at large (Ismaili, 2006 ).

Any consideration of criminal justice reform must attend to the structural features of the policy environment, including its institutional fragmentation. This feature creates both obstacles and opportunities for reform. Policy environments vary tremendously across states and local communities. Policies championed in Washington State are likely different than those championed in Georgia. But the policy community in Atlanta may be decidedly different than that of Macon, and policy changes can happen at hyper-local levels (Ouss & Stevenson, 2022 ). Differences between local jurisdictions can have national impacts: while urban jurisdictions have reduced their reliance on jails and prisons, rural and suburban incarceration rates continue to increase (Kang-Brown & Subramanian, 2017 ). Understanding key stakeholders, their political and policy interests, and their administrative authority to act is critical for determining how effective policy reforms can be pursued (Miller, 2008 ; Page, 2011 ). Prospects for, and possible targets of, reform thus necessitate a wide view of what constitutes “policy,” Footnote 1 looking not only to federal and state law but also to state and local administrative policies and practices (Reiter & Chesnut, 2018 ).

II. Policy Talk: Framing Problems, Shaping Possible Solutions

While agreement exists around the need for reform in the criminal justice system, this apparent unanimity belies disagreements over the proposed causes of the problem and feasible solutions (Gottschalk, 2015 ; Levin, 2018 ). This is evident in how reform is talked about in political and policy spheres, the types of reforms pursued, and which groups are its beneficiaries. Since the Great Recession of 2008, bipartisan reforms have often been couched in the language of fiscal conservatism, “right-sizing” the system, and being “smart on crime” (Beckett et al., 2016 ). These economic frames, focused on cost-efficiency, are effectively used to defend non-punitive policies including changes to the death penalty, marijuana legalization, and prison down-sizing (Aviram, 2015 ). However, cost-saving rationales are also used to advance punitive policies that shift the costs of punishment onto those who are being sanctioned, such as “pay-to-stay” jails and the multitude of fines and fees levied on justice-involved people for the cost of criminal justice administration. Economic justifications are not the only arguments that support the very same policy changes; fairness and proportionality, reducing prison overcrowding, enhancing public safety, and increasing rehabilitation are all deployed to defend various reforms (Beckett et al., 2016 ). Similarity in rhetorical justifications—cost-efficiency and fiscal responsibility, for example—can obscure deep divisions over how, and whom, to punish, divisions which stem from different narratives on the causes and consequences of crime.

The content of enacted policies also reveals underlying disagreements within justice reform. Clear distinctions are seen in how cases and people are categorized, and in who benefits from, or is burdened by, reform. For example, many states have lowered penalties and expanded rehabilitation alternatives for non-violent drug and other low-level offenses and technical violations on parole. Substantially fewer reforms target violent offenses. Decarceration efforts for non-violent offenders are often coupled with increasing penalties for others, including expansions of life imprisonment without parole for violent offenses (Beckett, 2018 ; Seeds, 2017 ). Reforms aimed only at individuals characterized as “non-violent, non-serious, and non-sexual” can reinforce social distinctions between people (and offenses) seen as deserving of lenient treatment from those who aren’t (Beckett et al., 2016 ).

The framing of social problems can shape the nature of solutions, although the impact of “framing” deserves greater attention in the criminal justice policy process (Rein & Schön, 1977 ; Schneider & Ingram,  1993 ). Policies can be understood in rational terms—for their application of technical solutions to resolve pre-defined problems—but also through “value-laden components, such as social constructions, rationales, and underlying assumptions” (Schneider & Sidney, 2006 :105). Specific frames (e.g., “crime doesn’t pay” or “don’t do the crime if you can’t do the time”) derive from underlying narratives (e.g., classical school, rational-actor models of behavior, and deterrence) that shape how crime and criminal justice are understood, as discussed in Part I. Framing involves how issues are portrayed and categorized, and even small changes to language or images used to frame an issue can impact policy preferences (Chong & Druckman, 2007 ). Public sentiments play an important role in the policy process, as policymakers and elected officials are responsive to public opinion about punishments (Pickett, 2019 ). Actors in the policy community—criminal justice bureaucrats, elected officials, interest groups, activists—compete to influence how a problem is framed, and thus addressed, by policymakers (Baumgartner & Jones, 2009 ; Benford & Snow, 2000 ). Policymakers, particularly elected officials, commonly work to frame issues in ways that support their political goals and resonate with their constituents (Gamson, 1992 ).

As noted at the outset, public support for harsh punishments has declined since the 1990’s and the salience of punitive “law and order” and “tough-on-crime” politics has fallen as well, as public support for rehabilitative approaches has increased (Thielo et al., 2016 ). How can researchers and policymakers capitalize on this shift in public sentiments? Research suggests that different issue frames, such as fairness, cost to taxpayers, ineffectiveness, and racial disparities, can increase (or reduce) public support for policies for nonviolent offenders (e.g., Dunbar, 2022 ; Gottlieb, 2017 ) and even for policies that target violent offenders (Pickett et al., 2022 ). Public sentiment and framing clearly matter for what problems gain attention, the types of policies that exist, and who ultimately benefits. These themes raise orienting questions: In a specific locale, what are the dominant understandings of the policy problem? How do these understandings map to sets of foundational assumptions about the purpose of intervention (e.g., deterrence, retribution, rehabilitation, restoration) and understandings of why people commit crime (e.g., Classical and Positivist approaches)? What types of issue frames are effective in garnering support for reforms? How does this support vary by policy context (urban, suburban, rural; federal, statewide, and local) and audience (elected officials, agency leadership, frontline workers, political constituents)?

III. Proposed Solutions and Expected Outcomes: Instrumental or Symbolic?

There are a variety of motivations in pursuing various policy solutions, along with different kinds of goals. Some reflect a desire to create tangible change for a specific problem while others are meant to mollify a growing concern. As such, one practical consideration related to policymaking and reform that bears discussion is the symbolic and instrumental nature of criminal justice policies.

Policies are considered to have an instrumental nature when they propose or result in changes to behaviors related to a public problem such as crime—that is, when they change behavior through direct influence on individuals’ actions (Sample et al., 2011 :29; see also Grattet & Jenness, 2008 ; Gusfield, 1963 ; Oliver & Marion, 2008 ). Symbolic policies, by contrast, are those that policymakers pass in order to be seen in a favorable light by the public (Jenness, 2004 ), particularly in the context of a “moral panic” (Barak, 1994 ; Ben-Yehuda, 1990 ). As Sample et al., ( 2011 :28) explain, symbolic policies provide three basic functions to society: 1) reassuring the public by helping reduce angst and demonstrate that something is being done about a problem; 2) solidifying moral boundaries by codifying public consensus of right and wrong; and 3) becoming a model for the diffusion of law to other states and the federal government. Symbolic policies are thus meant to demonstrate that policymakers understand, and are willing to address, a perceived problem, even when there is little expectation such policies will make a difference. In this way, symbolic policies are “values statements” and function largely ceremonially.

This distinction has a long history in criminological work, dating back to Gusfield’s ( 1963 ) analysis of the temperance movement. Suggesting that policymaking is often dramatic in nature and intended to shift ways of thinking, Gusfield ( 1963 ) argues that Prohibition and temperance were intended as symbolic, rather than instrumental, goals in that their impacts were felt in the action of prohibition itself rather than in its effect on citizens’ consumptive behaviors.

A modern-day example of symbolic policy is found in the sanctuary status movement as it relates to the policing of immigrants. Historically, immigration enforcement was left to the federal government however state and local law enforcement have faced increasing demands to become more involved in enforcing immigration laws in their communities. Policies enacted to create closer ties between local police departments and federal immigration officials reflect this new pattern of “devolution of immigration enforcement” (Provine et al., 2016 ). The Secure Communities Program, the Criminal Alien Program, and 287g agreements, in different but complementary ways, provide resources and training to help local officials enforce immigration statutes.

The devolution of immigration enforcement has faced widespread scrutiny (Kubrin, 2014 ). Many local jurisdictions have rejected devolution efforts by passing sanctuary policies, which expressly limit local officials’ involvement in the enforcement of federal immigration law. Among the most comprehensive is California’s SB54, passed in 2017, which made California a sanctuary state. The law prohibits local authorities from cooperating with federal immigration detainer requests, limits immigration agents’ access to local jails, and ends the use of jails to hold immigration detainees. At first glance, SB54 appears instrumental—its aim is to change the behavior of criminal justice officials in policing immigration. In practice, however, it appears that little behavioral change has taken place. Local police in California had already minimized their cooperation with Federal officials, well before SB54 was passed. In a broader sense then, “…the ‘sanctuary city’ name is largely a symbolic message of political support for immigrants without legal residency” and with SB54 specifically, “California [helped build] a wall of justice against President Trump’s xenophobic, racist and ignorant immigration policies,” (Ulloa, 2017 ).

Instrumental and symbolic goals are not an either-or proposition. Policies can be both, simultaneously easing public fears, demonstrating legislators’ desire to act, and having direct appreciable effects on people’s behaviors (Sample et al., 2011 ). This may occur even when not intended. At the same time, a policy’s effects or outcomes can turn out to be different from the original aim, creating a gap between “policy talk” and “policy action.” In their analysis of law enforcement action in response to the passage of hate crime legislation, Grattet and Jenness ( 2008 ) find that legislation thought to be largely symbolic in nature, in fact, ended up having instrumental effects through changes in enforcement practices, even as these effects were conditioned by the organizational context of enforcement agencies. Symbolic law can be rendered instrumental (under certain organizational and social conditions) and symbolic policies may evolve to have instrumental effects.

As another example, consider aims and outcomes of sex offender registration laws, which provide information about people convicted of sex offenses to local and federal authorities and the public, including the person’s name, current location, and past offenses. As Sample et al. ( 2011 ) suggest, these laws, often passed immediately following a highly publicized sex crime or in the midst of a moral panic, are largely cast as symbolic policy, serving to reassure the public through notification of sex offenders’ whereabouts so their behaviors can be monitored (Jenkins, 1998 ; Sample & Kadleck, 2008 ). While notification laws do not yield a discernable instrumental effect on offenders’ behavior (Tewksbury, 2002 ), this is not the sole goal of such policies. Rather, they are intended to encourage behavioral change among citizens (Sample et al., 2011 ), encouraging the public’s participation in their own safety by providing access to information. Do sex offender notification laws, in fact, alter citizen behavior, thereby boosting public safety?

To answer this question, Sample and her colleagues ( 2011 ) surveyed a random sample of Nebraska residents to determine whether they access sex offender information and to explore the reasons behind their desire, or reluctance, to do so. They find largely symbolic effects of registry legislation, with a majority of residents (over 69%) indicating they had never accessed the registry. These findings raise important questions about the symbolic vs. instrumental nature of criminal justice policies more broadly: “Should American citizens be content with largely symbolic crime policies and laws that demonstrate policy makers’ willingness to address problems, ease public fear, solidify public consensus of appropriate and inappropriate behavior, and provide a model of policies and laws for other states, or should they want more from crime control efforts? Is there a tipping point at which time the resources expended to adhere to symbolic laws and a point where the financial and human costs of the law become too high to continue to support legislation that is largely symbolic in nature? Who should make this judgment?” (pg. 46). These two examples, immigration-focused laws and sex offender laws, illustrate the dynamics involved in policymaking, particularly the relationship between proposed solutions and their expected outcomes. They reveal that instrumental and symbolic goals often compete for priority in the policy-making arena.

IV. Equity-Consciousness in Policy Formulation

As the criminal justice system exploded in size in the latter half of the twentieth century, its impacts have not spread equally across the population. Black, Latino, and Indigenous communities are disproportionately affected by policing, mass incarceration, and surveillance practices. At a moment of political momentum seeking to curb the excesses of the criminal justice system, careful attention must be paid not only to its overreach, but also to its racialized nature and inequitable impacts. Many evaluative criteria are used to weigh policies including efficiency, effectiveness, cost, political acceptability, and administrative feasibility, among others. One critical dimension is the extent to which a policy incorporates equity considerations into its design, or is ignorant about potential inequitable outcomes. While reducing racial disparities characterizes reform efforts of the past, these efforts often fail to yield meaningful impacts, and sometimes unintentionally exacerbate disparities. Equity analyses should be more formally centered in criminal justice policymaking.

Racial and ethnic disparities are a central feature of the U.S. criminal justice system. Decades of research reveals Black people, and to a lesser degree Latinos and Native Americans, are disproportionately represented in the criminal justice system at all stages (Bales & Piquero, 2012 ; Hinton et al., 2018 ; Kutateladze et al., 2014 ; Menefee, 2018 ; Mitchell, 2005 ; Warren et al., 2012 ). These disparities have many sources: associations between blackness and criminality, and stereotypes of dangerousness (Muhammad, 2010 ); implicit racial bias (Spencer et al., 2016 ); residential and economic segregation that expose communities of color to environments that encourage criminal offending and greater police presence (Peterson & Krivo, 2010 ; Sharkey, 2013 ); and, punitive criminal justice policies that increase the certainty and severity of punishments, such as mandatory minimum sentences, life imprisonment, and habitual offender laws, for which people of color are disproportionately arrested and convicted (Raphael & Stoll, 2013 ; Schlesinger, 2011 ). Disparities in initial stages of criminal justice contact, at arrest or prosecution, can compound to generate disparate outcomes at later stages, such as conviction and sentencing, even where legal actors are committed to racial equality (Kutateladze et al., 2014 ). Disparities compound over time, too; having prior contact with the justice system may increase surveillance and the likelihood of being arrested, charged, detained pretrial, and sentenced to incarceration (Ahrens, 2020 ; Kurlychek & Johnson, 2019 ).

Perspectives on how to reduce disparities vary widely, and understanding how the benefits or burdens of a given policy change will be distributed across racial and ethnic groups is not always clear. Even well-intentioned reforms intended to increase fairness and alleviate disparities can fail to achieve intended impacts or unintentionally encourage inequity. For example, sentencing guidelines adopted in the 1970s to increase consistency and reduce inequitable outcomes across groups at sentencing alleviated, but did not eliminate, racial disparities (Johnson & Lee, 2013 ); popular “Ban the Box” legislation, aimed at reducing the stigma of a criminal record, may increase racial disparities in callbacks for job seekers of color (Agan & Starr, 2018 ; Raphael, 2021 ); and “risk assessments,” used widely in criminal justice decision-making, may unintentionally reproduce existing disparities by relying on information that is itself a product of racialized policing, prosecution, and sentencing (Eckhouse et al., 2019 ). Conversely, policies enacted without explicit consideration of equity effects may result in reductions of disparities: California’s Proposition 47, which reclassifies certain felony offenses to misdemeanors, reduced Black and Latino disparities in drug arrests, likelihood of conviction, and rates of jail incarceration relative to Whites (Mooney et al., 2018 ; Lofstrom et al., 2019 ; MacDonald & Raphael, 2020 ).

Understanding the potential equity implications of criminal justice reforms should be a key consideration for policymakers and applied researchers alike. However, an explicit focus on reducing racial disparities is often excluded from the policymaking process, seen as a secondary concern to other policy goals, or framed in ways that focus on race-neutral processes rather than race-equitable outcomes (Chouhy et al., 2021 ; Donnelly, 2017 ). But this need not be the case; examinations of how elements of a given policy (e.g., goals, target population, eligibility criteria) and proposed changes to procedure or practice might impact different groups can be incorporated into policy design and evaluation. As one example, racial equity impact statements (REIS), a policy tool that incorporates an empirical analysis of the projected impacts of a change in law, policy, or practice on racial and ethnic groups (Porter, 2021 ), are used in some states. Modeled after the now-routine environmental impact and fiscal impact statements, racial impact statements may be conducted in advance of a hearing or vote on any proposed change to policy, or can even be incorporated in the policy formulation stages (Chouhy et al., 2021 ; Mauer, 2007 ). Researchers, analysts, and policymakers should also examine potential differential effects of existing policies and pay special attention to how structural inequalities intersect with policy features to contribute to—and potentially mitigate—disparate impacts of justice reforms (Anderson et al., 2022 ; Mooney et al., 2022 ).

V. Putting It Together: Modeling the Policy Change Process

Approaches to crime and punishment do not change overnight. Policy change can be incremental or haphazard, and new innovations adopted by criminal justice systems often bear markers of earlier approaches. There exist multiple frameworks for understanding change and continuity in approaches to crime and punishment. The metaphor of a pendulum is often used to characterize changes to criminal justice policy, where policy regimes swing back and forth between punishment and leniency (Goodman et al., 2017 ). These changes are ushered along by macro-level shifts of economic, political, demographics, and cultural sensibilities (Garland, 2001 ).

Policy change is rarely predictable or mechanical (Smith & Larimer, 2017 ). Actors struggle over whom to punish and how, and changes in the relative resources, political position, and power among actors drive changes to policy and practice (Goodman et al., 2017 ). This conflict, which plays out at the level of politics and policymaking and is sometimes subsumed within agencies and day-to-day practices in the justice system, creates a landscape of contradictory policies, logics, and discourses. New policies and practices are “tinted” by (Dabney et al., 2017 ) or “braided” with older logics (Hutchinson, 2006 ), or “layered” onto existing practices (Rubin, 2016 ).

Public policy theory offers different, but complementary, insights into how policies come to be, particularly under complex conditions. One widely used framework in policy studies is the “multiple streams” framework (Kingdon, 1995 ). This model of the policymaking process focuses on policy choice and agenda setting, or the question of what leads policymakers to pay attention to one issue over others, and pursue one policy in lieu of others.

The policy process is heuristically outlined as a sequential set of steps or stages: problem identification, agenda setting, policy formulation, adoption or decision-making, implementation, and evaluation. However, real-world policymaking rarely conforms to this process (Smith & Larimer, 2017 ). In the multiple streams lens, the process is neither rational nor linear but is seen as “organized anarchy,” described by several features: 1) ambiguity over the definition of the problem, creating many possible solutions for the same circumstances and conditions; 2) limited time to make decisions and multiple issues vying for policymakers’ attention, leading to uncertain policy preferences; 3) a crowded policy community with shifting participation; and, 4) multiple agencies and organizations in the policy environment working on similar problems with little coordination or transparency (Herweg et al., 2018 ).

In this context, opportunity for change emerges when three, largely separate, “streams” of interactions intersect: problems , politics , and policies . First, in the “problem stream,” problems are defined as conditions that deviate from expectations and are seen by the public as requiring government intervention. Many such “problems” exist, but not all rise to the level of attention from policymakers. Conditions must be re-framed into problems requiring government attention. Several factors can usher this transformation. Changes in the scale of problem, such as increases or decreases in crime, can raise the attention of government actors. So-called “focusing events” (Birkland, 1997 ), or rare and unexpected events, such as shocking violent crime or a natural disaster (e.g., COVID-19 pandemic), can also serve this purpose. The murder of George Floyd by police officers in Minneapolis, for instance, was a focusing event for changing the national conversation around police use of force into a problem requiring government intervention. Finally, feedback from existing programs or policies, particularly those that fail to achieve their goals or have unwanted effects, can reframe existing conditions as problems worthy of attention.

The “policy stream” is where solutions, or policy alternatives, are developed to address emerging problems. Solutions are generated both by “visible” participants in the stream, such as prominent elected officials, or by “hidden” actors, such as criminal justice bureaucrats, interest groups, academics, or consultants. Policy ideas float around in this stream until they are “coupled,” or linked, with specific problems. At any given time, policy ideas based in deterrence or incapacitation rationales, including increasing the harshness of penalties or the certainty of sanctions, and solutions based in rehabilitative rationales, such as providing treatment-oriented diversion or restorative justice programs, all co-exist in the policy stream. Not all policy alternatives are seen as viable and likely to reach the agenda; viable solutions are marked by concerns of feasibility, value acceptability, public support or tolerance, and financial viability.

Lastly, the “political stream” is governed by several elements, including changes to the national mood and changing composition of governments and legislatures as new politicians are elected and new government administrators appointed. This stream helps determine whether a problem will find a receptive venue (Smith & Larimer, 2017 ). For example, the election of a progressive prosecutor intent on changing status quo processing of cases through the justice system creates a viable political environment for new policies to be linked with problems. When the three streams converge, that is, when conditions become problems, a viable solution is identified, and a receptive political venue exists, a “policy window” opens and change is most likely. For Kingdon ( 2011 ), this is a moment of “opportunity for advocates of proposals to push their pet solutions, or to push attention to their special problems” (pg. 165).

Models of the policy change process, of which the multiple streams framework is just one, may be effectively applied to crime and justice policy spheres. Prior discussions on the ways of thinking about crime and criminal justice can be usefully integrated with models of the policy change process; narratives shape how various conditions are constructed as problems worthy of collective action and influence policy ideas and proposals available among policy communities. We encourage policymakers and policy-oriented researchers to examine criminal justice reform through policy process frameworks in order to better understand why some reforms succeed, and why others fail.

When it comes to the criminal justice system, one of the most commonly asked questions today is: How can we improve the effectiveness of reform efforts? Effective reform hinges on shared understandings of what the problem is as well as shared visions of what success looks like. Yet consensus is hard to come by, and scholars have long differentiated between “policy talk” and “policy action.” The aim of this essay has been to identify conceptual and practical considerations related to both policy talk and policy action in the context of criminal justice reform today.

On the conceptual side, we reviewed narratives that create society’s fundamental ways of thinking about or conceptualizing crime and criminal justice. These narratives reflect value orientations that underlie our criminal justice system and determine how it functions. On the practical side, we identified considerations for both policy-oriented researchers and policymakers in thinking through how to make criminal justice reform more effective. These practical considerations included variation and complexity in the criminal justice policy environment, problem framing and policy content, policy aims and outcomes, equity considerations in policy design and evaluation, and models of the policy change process.

These conceptual and practical considerations are by no means exhaustive, nor are they mutually-exclusive. Rather, they serve as starting points for productively thinking and talking about, as well as designing, effective and sustainable criminal justice reform. At the same time, they point to the need for continuous policy evaluation and monitoring—at all levels—as a way to increase accountability and effectiveness. Indeed, policy talk and policy action do not stop at the problem formation, agenda setting, or adoption stages of policymaking. Critical to understanding effective policy is implementation and evaluation, which create feedback into policy processes, and is something that should be addressed in future work on criminal justice reform.

No single definition of public policy exists. Here we follow Smith and Larimer ( 2017 ) and define policy as any action by the government in response to a problem, including laws, rules, agency policies, programs, and day-to-day practices.

Agan, A. & Starr, S. (2018) Ban the box criminal records and racial discrimination: A field experiment. The Quarterly Journal of Economics, 133 (1), 191–235.  https://doi.org/10.1093/qje/qjx028

Ahrens, D. M. (2020). Retroactive legality: Marijuana convictions and restorative justice in an era of criminal justice reform. Journal of Criminal Law and Criminology, 110 , 379.

Google Scholar  

Anderson, C. N., Wooldredge, J., & Cochran, J. C. (2022). Can “race-neutral” program eligibility requirements in criminal justice have disparate effects? An examination of race, ethnicity, and prison industry employment. Criminology & Public Policy, 21 , 405–432.

Article   Google Scholar  

Aviram, H. (2015). Cheap on Crime: Recession-era Politics and the Transformation of American Punishment . University of California Press.

Book   Google Scholar  

Bales, W. D., & Piquero, A. R. (2012). Racial/Ethnic differentials in sentencing to incarceration. Justice Quarterly, 29 , 742–773.

Barak, G. (1994). Media, process, and the social construction of crime . Garland.

Bartos, B. J., & Kubrin, C. E. (2018). Can we downsize our prisons and jails without compromising public safety? Findings from California’s Prop 47. Criminology & Public Policy, 17 , 693–715.

Baumgartner, F. R., & Jones, B. D. (2009). Agendas and instability in American politics (2nd ed.). University of Chicago Press.

Beckett, K. (2018). The politics, promise, and peril of criminal justice reform in the context of mass incarceration. Annual Review of Criminology, 1 , 235–259.

Beckett, K., Reosti, A., & Knaphus, E. (2016). The end of an era? Understanding the contradictions of criminal justice reform. Annals of the American Academy of Political and Social Science, 664 , 238–259.

Beckett, K., Beach, L., Knaphus, E., & Reosti, A. (2018). US criminal justice policy and practice in the twenty‐first century: Toward the end of mass incarceration?. Law & Policy, 40 (4), 321–345. https://doi.org/10.1111/lapo.12113

Benford, R. D., & Snow, D. A. (2000). Framing processes and social movements: An overview and assessment. Annual Review of Sociology, 611–639.

Ben-Yehuda, N. (1990). The politics and morality of deviance . State University of New York Press.

Berger, P. L., & Luckmann, T. (1966). The social construction of reality: A treatise in the sociology knowledge . Anchor Books.

Bernard, T. J., Paoline, E. A., III., & Pare, P. P. (2005). General systems theory and criminal justice. Journal of Criminal Justice, 33 , 203–211.

Birkland, T. A. (1997). After disaster: Agenda setting, public policy, and focusing events . Georgetown University Press.

Blomberg, T., Brancale, J., Beaver, K., & Bales, W. (2016). Advancing criminology & criminal justice policy . Routledge.

Currie, E. (2007). Against marginality. Theoretical Criminology, 11 (2), 175–190. https://doi.org/10.1177/1362480607075846

Chong, D., & Druckman, J. N. (2007). Framing theory. Annual Review of Political Science, 10 , 103–126.

Chouhy, C., Swagar, N., Brancale, J., Noorman, K., Siennick, S. E., Caswell, J., & Blomberg, T. G. (2021). Forecasting the racial and ethnic impacts of ‘race-neutral’ legislation through researcher and policymaker partnerships. American Journal of Criminal Justice . https://doi.org/10.1007/s12103-021-09619-8

Cullen, F. T. & Gilbert, K. E. (1982). Criminal justice theories and ideologies. In Reaffirming rehabilitation (pp. 27–44). Andersen.

Dabney, D. A., Page, J., & Topalli, V. (2017). American bail and the tinting of criminal justice. Howard Journal of Crime and Justice, 56 , 397–418.

Donnelly, E. A. (2017). The politics of racial disparity reform: Racial inequality and criminal justice policymaking in the states. Am J Crim Just, 42 , 1–27.

Dunbar, A. (2022). Arguing for criminal justice reform: Examining the effects of message framing on policy preferences. Justice Quarterly . https://doi.org/10.1080/07418825.2022.2038243

Eckhouse, L., Lum, K., Conti-Cook, C., & Ciccolini, J. (2019). Layers of bias: A unified approach for understanding problems with risk assessment. Criminal Justice and Behavior, 46 , 185–209.

Gamson, W. A. (1992). Talking politics . Cambridge University Press.

Garland, D. (1991). Sociological Perspectives on Punishment. Crime and Justice, 14 , 115–165.

Garland, D. (2001). The culture of control: Crime and social order in contemporary society . University of Chicago Press.

Goodman, P., Page, J., & Phelps, M. (2017). Breaking the pendulum: The long struggle over criminal justice . Oxford University Press.

Gottlieb, A. (2017). The effect of message frames on public attitudes toward criminal justice reform for nonviolent offenses. Crime & Delinquency, 63 , 636–656.

Gottschalk, M. (2015). Caught: The prison state and the lockdown of American politics . Princeton University Press.

Gramlich, J. (2021). America’s incarceration rate falls to lowest level since 1995 . Pew Research Center.

Grattet, R., & Jenness, V. (2008). Transforming symbolic law into organizational action: Hate crime policy and law enforcement practice. Social Forces, 87 , 501–527.

Gusfield, J. R. (1963). Symbolic crusade: Status politics and the American temperance movement . University of Illinois Press.

Hagan, J., Hewitt, J. D., & Alwin, D. F. (1979). Ceremonial justice: Crime and punishment in a loosely coupled system. Social Forces, 58 , 506–527.

Haney, C. (1982). Criminal justice and the nineteenth-century paradigm: The triumph of psychological individualism in the ‘Formative Era.’ Law and Human Behavior, 6 , 191–235.

Head, B. W., & Alford, J. (2015). Wicked problems: Implications for public policy and management. Administration & Society, 47 , 711–739.

Herweg, N., Zahariadis, N., & Zohlnhöfer, R. (2018). The Multiple streams framework: Foundations, refinements, and empirical applications. In Theories of the policy process (pp 17–53). Routledge.

Hinton, E., Henderson, L., & Reed, C. (2018). An unjust burden: The disparate treatment of Black Americans in the criminal justice system . Vera Institute of Justice.

Hutchinson, S. (2006). Countering catastrophic criminology. Punishment & Society, 8 , 443–467.

Ismaili, K. (2006). Contextualizing the criminal justice policy-making process. Criminal Justice Policy Review, 17 , 255–269.

Jenkins, P. (1998). Moral panic: Changing concepts of the child molester in Modern America . Yale University Press.

Jenness, V. (2004). Explaining criminalization: From demography and status politics to globalization and modernization. Annual Review of Sociology, 30 , 147–171.

Johnson, B. D., & Lee, J. G. (2013). Racial disparity under sentencing guidelines: A survey of recent research and emerging perspectives. Sociology Compass, 7 , 503–514.

Kaeble, D. (2021). Probation and parole in the United States, 2020. Bureau of Justice Statistics. U.S. Department of Justice.

Kang-Brown, J., & Subramanian, R. (2017). Out of sight: The growth of jails in rural America . Vera Institute of Justice.

Kingdon, J. W. (2011[1995]). Agendas, alternatives, and public policies . Harper Collins.

Kraska, P. B., & Brent, J. J. (2011). Theorizing criminal justice: Eight essential orientations (2nd ed.). Waveland Press.

Kubrin, C. E. (2014). Secure or insecure communities?: Seven reasons to abandon the secure communities program. Criminology & Public Policy, 13 , 323–338.

Kurlychek, M. C., & Johnson, B. D. (2019). Cumulative disadvantage in the American Criminal Justice System. Annual Review of Criminology, 2 , 291–319.

Kutateladze, B. L., Andiloro, N. R., Johnson, B. D., & Spohn, C. C. (2014). Cumulative disadvantage: Examining racial and ethnic disparity in prosecution and sentencing. Criminology, 52 , 514–551.

Levin, B. (2018). The consensus myth in criminal justice reform. Michigan Law Review, 117 , 259.

Lofstrom, M., Martin, B., & Raphael, S. (2019). The effect of sentencing reform on racial and ethnic disparities in involvement with the criminal justice system: The case of California's Proposition 47 (University of California, Working Paper).

Lynch, M. (2011). Mass incarceration legal change and locale. Criminology & Public Policy , 10(3), 673–698.  https://doi.org/10.1111/j.1745-9133.2011.00733.x

MacDonald, J., & Raphael, S. (2020). Effect of scaling back punishment on racial and ethnic disparities in criminal case outcomes. Criminology & Public Policy, 19 , 1139–1164.

Mauer, M. (2007). Racial impact statements as a means of reducing unwarranted sentencing disparities. Ohio State Journal of Crime Law, 5 (19), 33.

Mears, D. P. (2010). American criminal justice policy: An evaluation approach to increasing accountability and effectiveness . Cambridge University Press.

Mears, D. P. (2017). Out-of-control criminal justice: The systems improvement solution for more safety, justice, accountability, and efficiency . Cambridge University Press.

Mears, D. P. (2022). Bridging the research-policy divide to advance science and policy: The 2022 Bruce Smith, Sr. award address to the academy of criminal justice sciences. Justice Evaluation Journal , 1–23.

Menefee, M. R. (2018). The role of bail and pretrial detention in the reproduction of racial inequalities. Sociology Compass, 12 , e12576.

Miller, L. L. (2008). The perils of federalism: Race, poverty, and the politics of crime control . Oxford University Press.

Mitchell, O. (2005). A meta-analysis of race and sentencing research: Explaining the inconsistencies. Journal of Quantitative Criminology, 21 , 439–466.

Mooney, A. C., Giannella, E., Glymour, M. M., Neilands, T. B., Morris, M. D., Tulsky, J., & Sudhinaraset, M. (2018). Racial/ethnic disparities in arrests for drug possession after California proposition 47, 2011–2016. American Journal of Public Health, 108 , 987–993.

Mooney, A. C., Skog, A., & Lerman, A. E. (2022). Racial equity in eligibility for a clean slate under automatic criminal record relief laws. Law and Society Review, 56 (3). https://doi.org/10.1111/lasr.12625

Muhammad, K. G. (2010). The condemnation of Blackness: Race, crime, and the making of modern urban America . Harvard University Press.

Oliver, W. M., & Marion, N. E. (2008). Political party platforms: Symbolic politics and criminal justice policy. Criminal Justice Policy Review, 19 , 397–413.

Ouss, A., & Stevenson, M. (2022). Does cash bail deter misconduct? Available at SSRN: https://ssrn.com/abstract=3335138

Packer, H. (1964). Two models of the criminal process. University of Pennsylvania Law Review, 113 , 1–68.

Page, J. (2011). The toughest beat: Politics, punishment, and the prison officers union in California . Oxford University Press.

Petersilia, J. (2016). Realigning corrections, California style. The ANNALS of the American Academy of Political and Social Science, 664 , 8–13.

Peterson, R. D., & Krivo, L. J. (2010). Divergent social worlds: Neighborhood crime and the racial-spatial divide . Russell Sage Foundation.

Phelps, M. S. (2016). Possibilities and contestation in twenty-first-century US criminal justice downsizing. Annual Review of Law and Social Science, 12 , 153–170.

Pickett, J. T. (2019). Public opinion and criminal justice policy: Theory and research. Annual Review of Criminology, 2 , 405–428.

Pickett, J. T., Ivanov, S., & Wozniak, K. H. (2022). Selling effective violence prevention policies to the public: A nationally representative framing experiment. Journal of Experimental Criminology, 18 , 387–409.

Porter, N. (2021). Racial impact statements, sentencing project . Retrieved July 16 2022, from https://www.sentencingproject.org/publications/racial-impact-statements/

Provine, D. M., Varsanyi, M. W., Lewis, P. G., & Decker, S. H. (2016). Policing immigrants: Local law enforcement on the front lines . University of Chicago Press.

Raphael, S. (2021). The intended and unintended consequences of ban the box. Annual Review of Criminology, 4 (1), 191–207. https://doi.org/10.1146/annurev-criminol-061020-022137

Raphael, S., & Stoll, M. A. (2013). Why are so many Americans in prison? Russell Sage Foundation.

Rein, M., & Schön, D. A. (1977). Problem setting in policy research. In C. H. Weiss (Ed.), Using social research in public policy making (pp. 235–251). Lexington Books.

Reiter, K., & Chesnut, K. (2018). Correctional autonomy and authority in the rise of mass incarceration. Annual Review of Law and Social Science, 14 , 49–68.

Rittel, H., & Webber, M. (1973). Dilemmas in a general theory of planning. Policy Sciences, 4 (2), 155–169.

Rubin, A. T. (2016). Penal change as penal layering: A case study of proto-prison adoption and capital punishment reduction, 1785–1822. Punishment and Society, 18 , 420–441.

Sample, L. L., & Kadleck, C. (2008). Sex offender laws: Legislators’ accounts of the need for policy. Criminal Justice Policy Review, 19 , 40–62.

Sample, L. L., Evans, M. K., & Anderson, A. L. (2011). Sex offender community notification laws: Are their effects symbolic or instrumental in nature? Criminal Justice Policy Review, 22 , 27–49.

Sawyer, W., & Wagner, P. (2022). Mass incarceration: The whole pie 2022 . Prison Policy Initiative. Retrieved August 28 2022, from https://www.prisonpolicy.org/reports/pie2022.html

Schlesinger, T. (2011). The failure of race neutral policies: How mandatory terms and sentencing enhancements contribute to mass racialized incarceration. Crime & Delinquency, 57 , 56–81.

Schneider, A. & Ingram, H. (1993). Social construction of target populations: Implications for politics and policy. American Political Science Review, 87 (2), 334–347. https://doi.org/10.2307/2939044

Schneider, A., & Sidney, M. (2006). What is next for policy design and social construction theory? The Policy Studies Journal, 37 , 103–119.

Seeds, C. (2017). Bifurcation nation: American penal policy in late mass incarceration. Punishment and Society, 19 , 590–610.

Sharkey, P. (2013). Stuck in place: Urban neighborhoods and the end of progress toward racial equality . University of Chicago Press.

Smith, K., & Larimer, C. (2017). The public policy theory primer (3rd Edition). Taylor & Francis.

Spencer, K. B., Charbonneau, A. K., & Glaser, J. (2016). Implicit bias and policing. Social and personality. Psychology Compass, 10 , 50–63.

Subramanian, R., & Delaney, R. (2014). Playbook for change? States reconsider mandatory sentences . Vera Institute of Justice.

Tewksbury, R. (2002). Validity and utility of the Kentucky Sex Offender Registry. Federal Probation, 66 , 21–26.

Thielo, A. J., Cullen, F. T., Cohen, D. M., & Chouhy, C. (2016). Rehabilitation in a red state: Public support for correctional reform in Texas. Criminology & Public Policy, 15 , 137–170.

Tyack, D. B., & Cuban, L. (1995). Tinkering toward Utopia: A century of public school reform . Harvard University Press.

Ulloa, J. (2017). California becomes ‘sanctuary state’ in rebuke of Trump immigration policy. Los Angeles Times. Retrieved from: https://www.latimes.com/politics/la-pol-ca-brown-california-sanctuary-state-bill-20171005-story.html

Warren, P., Chiricos, T., & Bales, W. (2012). The imprisonment penalty for Young Black and Hispanic Males: A crime-specific analysis. Journal of Research in Crime and Delinquency, 49 , 56–80.

Widra. E., & Herring, T. (2021). States of incarceration: The global context 2021 . Prison Policy Initiative. Retrieved July 26 2022, from https://www.prisonpolicy.org/global/2021.html

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Kubrin, C.E., Tublitz, R. How to Think about Criminal Justice Reform: Conceptual and Practical Considerations. Am J Crim Just 47 , 1050–1070 (2022). https://doi.org/10.1007/s12103-022-09712-6

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Reflections on Criminal Justice Reform: Challenges and Opportunities

Pamela k. lattimore.

RTI International, 3040 East Cornwallis Road, Research Triangle Park, NC 27703 USA

Associated Data

Data are cited from a variety of sources. Much of the BJS data cited are available from the National Archive of Criminal Justice Data, Interuniversity Consortium for Political and Social Research. The SVORI data and the Second Chance Act AORDP data are also available from NACJD.

Considerable efforts and resources have been expended to enact reforms to the criminal justice system over the last five decades. Concerns about dramatic increases in violent crime beginning in the late Sixties and accelerating into the 1980s led to the “War on Drugs” and the “War on Crime” that included implementation of more punitive policies and dramatic increases in incarceration and community supervision. More recent reform efforts have focused on strategies to reduce the negative impacts of policing, the disparate impacts of pretrial practices, and better strategies for reducing criminal behavior. Renewed interest in strategies and interventions to reduce criminal behavior has coincided with a focus on identifying “what works.” Recent increases in violence have shifted the national dialog from a focus on progressive reforms to reduce reliance on punitive measures and the disparate impact of the legal system on some groups to a focus on increased investment in “tough on crime” criminal justice approaches. This essay offers some reflections on the “Waged Wars” and the efforts to identify “What Works” based on nearly 40 years of work evaluating criminal justice reform efforts.

The last fifty-plus years have seen considerable efforts and resources expended to enact reforms to the criminal justice system. Some of the earliest reforms of this era were driven by dramatic increases in violence leading to more punitive policies. More recently, reform efforts have focused on strategies to reduce the negative impacts of policing, the disparate impacts of pretrial practices, and better strategies for reducing criminal behavior. Renewed interest in strategies and interventions to reduce criminal behavior has coincided with a focus on identifying “what works.” Recent increases in violence have shifted the national dialog about reform. The shift may be due to the disruptions caused by the COVID-19 epidemic or concerns about the United States returning to the escalating rise in violence and homicide in the 1980s and 1990s. Whichever proves true, the current rise of violence, at a minimum, has changed the tenor of policymaker discussions, from a focus on progressive reforms to reduce reliance on punitive measures and the disparate impact of the legal system on some groups to a focus on increased investment in “tough on crime” criminal justice approaches.

It is, then, an interesting time for those concerned about justice in America. Countervailing forces are at play that have generated a consistent call for reform, but with profound differences in views about what reform should entail. The impetus for reform is myriad: Concerns about the deaths of Black Americans by law enforcement agencies and officers who may employ excessive use of force with minorities; pressures to reduce pretrial incarceration that results in crowded jails and detention of those who have not been found guilty; prison incarcerations rates that remain the highest in the Western world; millions of individuals who live under community supervision and the burden of fees and fines that they will never be able to pay; and, in the aftermath of the worst pandemic in more than a century, increasing violence, particularly homicides and gun violence. This last change has led to fear and demands for action from communities under threat, but it exists alongside of other changes that point to the need for progressive changes rather than reversion to, or greater investment in, get-tough policies.

How did we get here? What have we learned from more than 50 years of efforts at reform? How can we do better? In this essay, I offer some reflections based on my nearly 40 years of evaluating criminal justice reform efforts. 1

Part I: Waging “War”

The landscape of criminal justice reform sits at the intersection of criminal behavior and legal system response. Perceptions of crime drive policy responses. Perceptions of those responsible for crime also drive responses. And perceptions of those responses result in demands for change. To establish context for the observations that follow, this section describes trends in crime, the population of justice-involved individuals, and the expenditures supporting the sprawling criminal justice enterprise in the United States since the mid-to-late twentieth century.

But first, my perspective: Over the last nearly 40 years, I have observed justice system reform efforts since working, while a first-year graduate student in 1983, on a National Institute of Justice (NIJ) grant that funded a randomized control trial of what would now be termed a reentry program (Lattimore et al., 1990 ). After graduate school, I spent 10 years at NIJ, where I was exposed to policy making and the relevance of research for both policy and practice. I taught for several years at a university. And, for most of my career, I have been in the trenches at a not-for-profit social science research firm. Throughout my career, I have conducted research and evaluation on a broad array of topics and have spent most of my time contemplating the challenges of reform. I’ve evaluated single programs, large federal initiatives, and efforts by philanthropies to effect reform. I’ve used administrative data to model criminal recidivism to address—to the degree statistical methods allow—various dimensions of recidivism (type, frequency, and seriousness). I’ve developed recidivism models for the practical purpose of assessing risk for those on community supervision and to explore the effects of covariates and interventions on recidivism and other outcomes. I’ve participated in research attempting to understand the shortcomings of and potential biases in justice data and the models that must necessarily use those data. While most of my work has focused on community corrections (e.g., probation and post-release interventions and behavior) and reentry, I have studied jail diversion programs, jail and pretrial reform, and efforts focused on criminal record expungement. These experiences have illuminated for me that punitiveness is built into the American criminal justice system—a punitiveness that traps many people from the time they are first arrested until they die.

Crime and Correctional Population Trends

The 1960s witnessed a dramatic rise in crime in the United States, and led to the so-called “War on Crime,” the “War on Drugs,” and a variety of policy responses, culminating with the passage of the Violent Offender Incarceration and Truth-in-Sentencing Act of 1994 (“The 1994 Crime Act”; Pub. L. 103–322). Figure  1 shows the violent crime rate in the United States from 1960 to 1994. 2 In 1960, the violent crime rate in the United States was 161 per 100,000 people; by 1994 the rate had increased more than four-fold to nearly 714 per 100,000. 3 As can be seen, the linear trend was highly explanatory (R-square = 0.96)—however, there were two obvious downturns in the trend line—between 1980 and 1985 and, perhaps, between 1991 and 1994.

US Violent Crime Rate, 1960–1994

Homicides followed a similar pattern. Figure  2 shows the number of homicides each year between 1960 and 1994. In 12 years (1960 to 1972), the number of homicides doubled from 9,100 to 18,670. By 1994, the number had grown to 23,330—but it is worth noting that there were multiple downturns over this period, including a drop of more than 4,000 between 1980 and 1984. These figures show the backdrop to the “War on Drugs” and the “War on Crime” that led reformers to call for more punitive sentencing, including mandatory minimum sentences, “three-strikes laws” that mandated long sentences for repeat offenders, and truth-in-sentencing statutes that required individuals to serve most of their sentences before being eligible for release. This was also the period when the 1966 Bail Reform Act, which sought to reduce pretrial detention through the offer of money bond, was supplanted in 1984 by the Pretrial Reform Act, which once again led to increased reliance on pretrial detention.

United States Murder and Non-negligent Manslaughter Rate, 1960–1994

The 1994 Crime Act, enacted during the Clinton Administration, continued the tough-on-crime era by enabling more incarceration and longer periods of incarceration that resulted in large increases in correctional populations. In particular, the Violent Offender Incarceration and Truth-in-Sentencing (VOI/TIS) Incentive Grant Program, funded by the Act, provided $3 billion to states to expand their jail and prisons capacities between FY1996 and FY2001 and to encourage states to eliminate indeterminate sentencing in favor of laws that required individuals to serve at least 85% of their imposed sentences.

Figure  3 shows the dramatic rise in the number of state and federal prisoners prior to passage of the 1994 Crime Act—the number of prisoners more than tripled between 1980 and 1994. 4 The increase in numbers of prisoners was not due to shifts from jail to prison or from probation to prison, given that all correctional populations increased dramatically over this 14-year period—jail populations increased 164% (183,988 to 486,474), probation increased 166% (1,118,097 to 2,981,022), and parole increased 213% (220,438 to 690,371).

State and Federal Prisoners in the US, 1960–1994

So, what happened after passage of the 1994 Crime Act? Fig.  4 shows the violent crime rate from 1960 through 2020. As can be seen, the decrease in the violent crime rate that began prior to passage of the 1994 Crime Act continued. And, notably, it preceded the influx of federal funding to put more police on the streets, build more jails and prisons, and place more individuals into the custody of local, state, and federal correctional agencies. Even with a small increase between 2019 and 2020, the violent crime rate in 2020 was 398.5 per 100,000 individuals, well below its 1991 peak of 758.2. 5

United States Violent Crime Rate (violent crimes per 100,000 population), 1960–2020

Figure  5 shows the US homicide rate from 1960 to 2020. Consistent with the overall violent crime rate, the homicide rate in 2020 remained well below the peak of 10.2 that occurred in 1981. (Rates also may have risen in 2021—as evidenced by reports of large increases in major U.S. cities—but an official report of the 2021 number and rate for the U.S. was not available as of the time of this writing.) The rise in this rate from 2019 to 2020 was more than 27%— worthy of attention and concern. It represents the largest year-over-year increase between 1960 and 2020. However, there have been other years where the rate increased about 10% (1966, 1967, 1968, 2015, and 2016), only then to drop back in subsequent years. Further, it is difficult to determine whether the COVID-19 pandemic, which has caused massive disruptions, is a factor in the increase in homicides or to know whether the homicide rate will abate as the pandemic ebbs. Finally, it bears emphasizing that during this 60-year period there have been years when the homicide rate fell by nearly 10% (e.g., 1996, 1999). From a policy perspective, it seems prudent to be responsive to increases in crime but also not to over-react to one or two years of data—particularly during times of considerable upheaval.

United States Murder and Nonnegligent Manslaughter Rate, 1960–2020

The growth in correctional populations, including prisoners, that began in the 1970s continued well into the twenty-first century—in other words, long after the crime rate began to abate in 1992. Figure  6 shows the prison population and total correctional population (state and federal prison plus jail, probation, and parole populations summed) between 1980 and 2020. Both trends peaked in 2009 at 1,615,500 prisoners and 7,405,209 incarcerated or on supervision. Year-over-year decreases, however, have been modest (Fig.  7 ), averaging about 1% (ignoring the steep decline between 2019 and 2020). The impact of factors associated with COVID-19, including policy and practice responses, resulted in a 15% decrease in the numbers of state and federal prisoners and a 14% decrease in the total number of adults under correctional control. Based on ongoing projects in pretrial and probation, as well as anecdotal evidence related to court closures and subsequent backlogs, it is reasonable to assume that some, if not most, of the decline in populations in 2020 was due to releases that exceeded new admissions as individuals completed their sentences and delays in court processing reduced new admissions. To the extent that these factors played a role, it is likely that in the immediate near term, we will see numbers rebound to values closer to what prevailed in 2019.

United States Prison and Total Correctional Populations, 1980–2020

Year-over-Year Change in Prison and Total Correctional Populations, 2981–2020

Responding with Toughness (and Dollars)

The increase in crime beginning in the 1960s led to a political demand for a punitive response emphasized by Richard Nixon’s “War on Crime” and “War on Drugs.” In 1970, Congress passed four anticrime bills that revised Federal drug laws and penalties, addressed evidence gathering against organized crime, authorized preventive detention and “no-knock” warrants, and provided $3.5 billion to state and local law enforcement. 6 Subsequent administrations continued these efforts, punctuated by the Crime Act of 1994. As described by the U.S. Department of Justice:

The Violent Crime Control and Law Enforcement Act of 1994 … is the largest crime bill in the history of the country and will provide for 100,000 new police officers, $9.7 billion in funding for prisons and $6.1 billion in funding for prevention programs …. The Crime Bill provides $2.6 billion in additional funding for the FBI, DEA, INS, United States Attorneys, and other Justice Department components, as well as the Federal courts and the Treasury Department. 7

Much of the funding went to state and local agencies to encourage the adoption of mandatory minimum sentences, “three strikes” laws, and to hire 100,000 police officers and build prisons and jails. This funding was intended to steer the highly decentralized United States criminal justice “system” towards a more punitive approach to crime; this system encompasses all levels of government (local, state, and federal) and all branches of government (executive, judicial, legislative).

The nation’s crime rate peaked in 1992. So, this “largest crime bill in the history of the country” began a dramatic increase in funding for justice expenditures just as crime had already begun to decline. Figure  8 shows that expenditures increased roughly 50% in real dollars between 1997 and 2017—from $188 billion to more than $300 billion dollars (Buehler,  2021 ). 8 More than half of that increase-—$65.4 billion additional—went to police protection. Roughly $50 billion additional went to the judiciary and corrections.

United States Justice Expenditures, 1997–2017

So, what did these increases buy? Dramatically declining crime rates (Figs. ​ (Figs.4 4 and ​ and5) 5 ) suggest that numbers of crimes also declined. That can be seen in Fig.  9 , which shows offenses known and an estimate of offenses cleared for selected years between 1980 and 2019. 9 In 1991, there were 11,651,612 known property offenses and 1,682,487 known violent offenses—these numbers declined 47% and 34% by 2019.

Offenses Known and Cleared in the US, Selected Years 1980–2019

Declining numbers of crimes and dramatic increases in expenditures on policing and justice system operation would suggest that there should have been improvements in offense clearance rates during this time. This did not happen. Crime clearance rates stayed roughly constant, which means that the numbers of offenses cleared declined by percentages like declines in the number of offenses over this period—49% for property offenses and 33% for violent offenses. More than 750,000 violent offenses and more than 2 million property offenses were cleared in 1991 compared to about 500,000 violent offenses and 1 million property offenses in 2019.

Presently, as violent crime ticks up, we are hearing renewed calls for “tough-on-crime” measures. Some opinion writers have compared 2022 to Nixon’s era. Kevin Boyle noted:

[Nixon] already had his core message set in the early days of his 1968 campaign. In a February speech in New Hampshire, he said: “When a nation with the greatest tradition of the rule of law is torn apart by lawlessness, when a nation which has been the symbol of equality of opportunity is torn apart by racial strife … then I say it’s time for new leadership in the United States of America.” There it is: the fusion of crime, race and fear that Nixon believed would carry him to the presidency. 10

Responding to the recent increase in violent crime, President Joseph Biden proposed the Safer America Plan to provide $37 billion “to support law enforcement and crime prevention.” 11 The Plan includes more than $12 billion in funds for 100,000 additional police officers through the Community Oriented Policing Services (COPS) program. This proposal echoes the “100,000 cops on the street” that was a centerpiece of the 1994 Crime Act, which created the COPS office and program. Unlike the 1994 Crime Act, however, the Safer America Plan does not include funding for prisons and jails. Both the 1994 Crime Act and the Safer America Plan address gun violence, strengthen penalties for drug offenses, and provide support for programs and interventions to make communities safer and to address criminal recidivism.

The previous 50 or 60 years witnessed reforms efforts other than these that largely focused on bolstering the justice system infrastructure. The 1966 Bail Reform Act sought to reduce pretrial detention through the offer of money bond, but subsequently was supplanted by the 1984 Pretrial Reform Act that once again promoted pretrial detention. 12 This century—as jail populations exceeded 700,000, with most held prior to conviction—there has been considerable attention to eliminate money bond, which disproportionately leads to pretrial detention for poor and marginalized individuals (and release for the “well-heeled”). Private philanthropy has led much of this focus on pretrial and bail reform. For example, the MacArthur Foundation has spent several hundred million dollars on their Safety and Justice Challenge since 2015 with a goal of reducing jail populations and eliminating racial and ethnic disparity. 13 The Laura and John Arnold Foundation (LJAF) took a different approach and has invested substantial sums in the development and validation of a pretrial assessment instrument (the Public Safety Assessment or PSA) that provides assessments of the likelihood an individual will fail to appear to court or be arrested for a new crime or new violent crime if released while awaiting trial. 14 Although assessment algorithms have been criticized for lack of transparency and for perpetuating racial bias, the PSA scoring algorithm is publicly available and has not shown evidence of racial bias in a series of local validations conducted by RTI for LJAF. New York and New Jersey are among the states that have attempted to reduce reliance on money bond. However, as violent crime has increased, these efforts have faced considerable pushback.

The bail bonds industry has been a vocal opponent of efforts to reduce or eliminate the use of money bond. This industry is not the only one that profits from the imposition of punishment. As Page and Soss ( 2021 ) recently reported, “Over the past 35 years, public and private actors have turned US criminal justice institutions into a vast network of revenue-generating operations. Today, practices such as fines, fees, forfeitures, prison charges, and bail premiums transfer billions of dollars from oppressed communities to governments and corporations.” Fines, fees, and forfeitures generally profit the governments and agencies that impose them—although supervision fees to private probation services benefit businesses, as do fees for electronic monitoring, and drug testing. The Prison Policy Institute reports that there are more than 4,000 companies that profit from mass incarceration. 15 Court and supervision fees can quickly add up to hundreds or even thousands of dollars, burdening people with crushing debt and the threat of jail if they don’t pay. 16 There can be other consequences as well. After Florida passed a constitutional amendment to restore voting rights to individuals once they had completed their carceral or community sentence, the State specified that the right to vote would not be restored until an individual had paid all outstanding fees and fines. In addition, mistakenly voting with outstanding fees and fines is a felony. 17

Other work to reform pretrial justice includes early provision of defense counsel, and implementation of diversion programs for individuals charged with low-level offenses or who have behavioral health issues. The sixth amendment to the United States Constitution guarantees criminal defendants in the United States a right to counsel. In some jurisdictions (and the Federal court system), this is the responsibility of an office of public defense. In others, private defense counsel is appointed by the Court. Regardless, public defense is widely understood to be poorly funded. As noted by Arnold Ventures, a philanthropy currently working to improve access to defense, “The resulting system is fragmented and underfunded; lacks quality control and oversight; and fails to safeguard the rights of the vast majority of people charged with crimes who are represented by public defenders or indigent counsel.” 18

Mental health problems are prevalent among individuals incarcerated in local jails and prisons. The Bureau of Justice Statistics, in a report by Bronson and Berzofsky ( 2017 ), reported that “prisoners and jail inmates were three to five times as likely to have met the threshold for SPD [serious psychological distress] as adults in the general U.S. population.” Bronson and Berzofsky further reported that 44% of individuals in jail reported being told they had a mental disorder. The Substance Abuse and Mental Health Administration’s GAINS Center has been at the forefront of efforts to implement jail diversion programs for individuals with mental health or substance use disorders and has also played a significant role in the establishment of treatment courts. 19 Crisis Intervention Training (CIT) for law enforcement to improve interaction outcomes between law enforcement and individuals in crisis. The National Alliance on Mental Illness (NAMI) notes that “The lack of mental health crisis services across the U.S. has resulted in law enforcement officers serving as first responders to most crises. A Crisis Intervention Team (CIT) program is an innovative, community-based approach to improve the outcomes of these encounters.” 20 Non-law enforcement responses—such as the CAHOOTS program that was developed in Eugene, Oregon—to certain calls for service are also being tested in multiple communities. 21 Despite multiple efforts to identify appropriate alternatives to jail, individuals with mental health disorders continue to disproportionately fill the nation’s jails.

A Recapitulation

The 1970 crime bills that passed early in Nixon’s presidency set the stage for the infusion of federal dollars that has provided billions of dollars in funding for police and prisons. Between 1970 and 1994, the number of adults in state and federal prisons in the United States increased from less than 200,000 to nearly 1 million. In 2019, that number stood at more than 1.4 million down from its peak in 2009. Another 734,500 individuals were in jail and more than 4.3 million were in the community on probation or parole. Although representing a dramatic decline since these populations peaked about 2009, this still means that more than 6 million adults were under the supervision of federal, state, and local corrections agencies in 2019.

Thus, it is important to recognize that we are at a very different place from the Nixon era. Today, the numbers (and rates) of individuals who are “justice-involved” remain at near record highs. As the progressive efforts of the twenty-first century encounter headwinds, it is worth waving a caution flag as the “remedies” of the twentieth century—more police, “stop and frisk,” increased pretrial detention—are once again being proposed to address violent crime.

Part II: Finding “What Works”

The 1994 Crime Act and subsequent reauthorizations also included funding for a variety of programs, including drug courts, prison drug treatment programs, and other programs focused on facilitating reentry and reducing criminal recidivism. Subsequent legislation authorized other Federal investments that resurrected rehabilitation as a goal of correctional policy. The Serious and Violent Offender Reentry Initiative (SVORI) provided $100 million (and some limited supplements) to agencies to develop programs that began in prison and continued into the community and were intended to improve outcomes across a range of domains—community reintegration, employment, family, health (including mental health), housing, substance abuse, supervision compliance and, of course, recidivism (see Lattimore et al., 2005b ; Winterfield et al., 2006 ; Lattimore & Visher, 2013 , 2021 ; Visher et al., 2017 ). Congress did not reauthorize SVORI but instead authorized the Prisoner Reentry Initiative (PRI) managed by the U.S. Department of Labor; PRI (now the Reintegration of Ex-Offenders or RExO program) provides funding for employment-focused programs for non-violent offenders. In 2006, a third reentry-focused initiative was funded—the Marriage and Incarceration Initiative was managed by the Department of Health and Human Services and focused on strengthening marriage and families for male correctional populations. In 2008, Congress passed the Second Chance Act (SCA) to provide grants for prison and jail reentry programs. The SCA grant program administered by the Bureau of Justice Assistance (BJA) was reauthorized in 2018; it continues to provide reentry grants to state and local agencies (see Lindquist et al., 2021 ). These initiatives all primarily focused on supporting efforts at the state and local level. The First Step Act of 2018 focused on reforms for the federal prison system. These efforts signified a substantial increase in efforts aimed at determining “what works” to reduce criminal behavior—and provided an opportunity to rebut the “nothing works” in correctional programming that followed the publication of research by Lipton ( 1975 ).

Elsewhere, I have summarized some of the research into Federal initiatives that I have conducted over the years (Lattimore, 2020 ). These studies comprise work in dozens of states, involving thousands of individuals and have included studies of drug treatment, jail diversion, jail and prison reentry, and probation. Some involved evaluation of a substantial Federal investment, such as the multi-site evaluation of SVORI.

These evaluations, as has been largely true of those conducted by others, have produced mixed results. Systematic reviews and meta-analyses focusing on the effectiveness of adult correctional programming have yielded findings of modest or negligible effects (e.g., Aos et al., 2006 ; Bitney et al., 2017 ; Lipsey & Cullen, 2007 ; MacKenzie, 2006 ; Sherman, et al., 1997 ). In an updated inventory of research- and evidence-based adult programming, the Washington State Institute for Public Policy (Wanner, 2018 ) identified a variety of programs for which evidence suggests significant if modest effect sizes. As has been identified by others (e.g., MacKenzie, 2006 ), the most effective programs focused on individual change, including, for example, cognitive behavior therapy (estimated effect size of -0.11). Treatment-oriented intensive supervision programs were found to reduce recidivism by about 15%, while surveillance-oriented intensive supervision was found to have no demonstrated effects. Several types of work and educational programs (correctional industries, basic adult education, prison-based vocational education, and job training and assistance in the community) were found to reduce recidivism between 5 and 22%. Most non-zero treatment effect sizes were between about 5% and 15%. Lipsey and Cullen ( 2007 ) also suggest 14% to 22% reductions in recidivism for adult rehabilitation treatment programs.

Two thoughts about these small effects warrant consideration. The first, of course, is why reducing criminal behavior appears to be so difficult. Second, however, is that, in recognizing the first, perhaps we should adapt more realistic expectations about what can be achieved and acknowledge that even small effects can have a meaningful impact on public safety.

Challenges: Why Is Effective Criminal Justice Reform So Difficult?

One issue with most federal funding streams is “short timelines.” For example, typical of grant programs of this type, SVORI grantees were given three years of funding. During this time, they had to develop a programmatic strategy, establish interagency working arrangements, identify program and service providers, develop a strategy for identifying potential participants, and implement their programs. Three years is a very short time to develop a program that incorporates needs assessment, provides a multiplicity of services and programs within an institution, and creates a path for continuation of services as individuals are released to various communities across a state.

The “short timelines” problem underlies, and contributes to, a variety of other considerations that can plague efforts to identify “what works.” Based on my experiences, these considerations, which I discuss further below, include the following:

• People: Justice-involved individuals have multiple needs and there is an emerging question as to whether addressing these needs is the best path to desistance.
• Programs: Interventions often lack adequate logic models and are poorly implemented.
• Methods: Evaluations frequently are underpowered and unlikely to scale the alpha 0.05 hurdle typically used to identify statistically significant effects.

First, it is important to recognize that justice-involved individuals face serious and complex challenges that are difficult to remedy. Many scholars have highlighted the myriad of challenges faced by individuals returning to the community from prison (e.g., see Petersilia, 2003 ; Travis, 2005 ; Travis & Visher, 2005 ). In interviews conducted with 1,697 men and 357 women who participated in the SVORI multisite evaluation, 95% of women and 94% of men said at the time of prison release that they needed more education. Nearly as many—86% of women and 82% of men—said they needed job training. More than two-thirds indicated that they needed help with their criminal thinking and three-quarters said they needed life skills training. They were somewhat less likely to report needing substance use disorder or mental health treatment but still—at the time of prison release—66% of the women and 37% of the men reported needing substance use treatment and 55% of the women and 22% of the men reported needing mental health treatment.

Half of these individuals had participated in SVORI programs while incarcerated and the proportions reported reflect their self-assessment of need after in-prison receipt of programming. Figure  10 shows the percentages of SVORI and non-SVORI groups who reported receiving a select set of services and programs during their incarceration. Several things standout: (1) The receipt of programs and services during incarceration was much less than the indicated need at the time of release; and (2) SVORI program participants were more likely to report receiving services than the comparison group members who were not in SVORI programs.

Self-reported service receipt during incarceration for SVORI program evaluation participants. Note: * =  p  <  = 0.05. Educ = educational programming, EmplSrv = employment-related services, CrimAtt = programs for criminal attitudes including cognitive behavior therapy, LifeSk = life skills, AODTx = substance abuse treatment, and MHTx = mental health treatment. Sample sizes were SVORI men (863), non-SVORI men (834), SVORI women (153) and non-SVORI women (204).

Source: Lattimore & Visher (2009)

More recently, Lindquist et al. ( 2021 ) completed a seven-site evaluation of Second Chance Act reentry programs that were a mix of jail- and prison-based programs. About half of the study participants reported having received substance use disorder treatment and about one-third reported having received mental health treatment. At release, they reported limited-service receipt. For example, there was no significant difference between receipt of educational programming (23% of SCA program participants compared with 17% for comparison group members). SCA program participants were more likely to report receiving any employment services (60% versus 40%), which included job assistance, employment preparation, trade or job training programs, vocational or technical certifications, and transitional job placement or subsidized employment. SCA program participants were also more likely to report receiving cognitive behavioral services (58% versus 41%). But, again, not all program participants received services despite needing them and some comparison subjects received services.

Limited access to treatment by program participants and some access to treatment by comparison subjects were also observed in a multi-site study of pre- and post-booking jail diversion programs for individuals with co-occurring substance use disorder and serious mental illness (Broner et al., 2004 ; Lattimore et al., 2003 ). Across eight study sites, 971 diverted subjects and 995 non-diverted subjects were included in this evaluation; the research found only modest differences in the receipt of services and treatment at 3- and 12-months follow-up. For example, at the 3-month interview, 26% of both groups reported receiving substance abuse counseling, and at the 12-month interview, 0.7% of those diverted versus no non-diverted participant received two or more substance abuse counseling sessions. At 3 months, 38% of the diverted subjects and 30% of the non-diverted reported mental health counseling versus 41% and 38% at 12 months, respectively.

The service needs expressed by these individuals reflect their lack of education, job experience, vocational skills, and life skills, as well as the substance abuse and mental health issues identified among justice-involved individuals. The intervention response to these needs is reflected in the variety of services prescribed in the typical “reentry program bucket.” These involve the services and programs shown in Fig.  10 , as well as case management and reentry planning to coordinate services with respect to needs.

The identification of needs followed by efforts to meet those needs underlies the Risk-Needs-Responsivity (RNR) approach to addressing justice-involved populations (e.g., Andrews & Bonta, 1994 , 2006 ; Latessa, 2020 ). The RNR approach to addressing criminal behavior is premised on the assumption that if you address identified needs that are correlated with criminal behavior, that behavior will be reduced. In other words, recidivism can be addressed by providing individuals the education and job skills and treatment they need to find gainful employment, reduce substance use, and mitigate symptoms of mental illness. Latessa ( 2020 ) recently discussed the RNR approach, reiterating the importance of assessing individual criminogenic and non-criminogenic needs to improve reentry programs. He also reiterated the importance of focusing resources on those identified as high (or higher) risk by actuarial risk assessment instruments—pointing to important work he conducted with colleagues that found that interventions reduced recidivism among high-risk individuals and increased it among low-risk individuals (Lowenkamp & Latessa, 2002 ; Latessa et al., 2010 ). This approach to reentry programming is reflected in the requirements of most federal grants—like the SVORI and SCA—that require programs to incorporate reentry planning that includes needs assessment and services that address criminogenic and non-criminogenic needs.

As noted, most justice-involved individuals have limited education and few job skills, and many have behavioral health issues, anger management issues, and limited life skills. But if addressing these deficits is the key to successfully rehabilitating large numbers of individuals caught in the carceral and community justice system, the meager results of recent research suggests two possibilities. First, this is the right approach, but poor or incomplete implementation has so far impeded findings of substantial effects (a common conclusion since the Martinson report). Second, alternatively, this approach is wrong (or insufficient), and new thinking about the “what and how” of rehabilitative programming is needed. I address the second idea next and turn to the first idea shortly.

MacKenzie ( 2006 ) and others (e.g., Andrews and Bonta, 2006 ; Andrews et al., 1990 ; Aos et al., 2006 ; Lipsey, 1995 ; Lipsey & Cullen, 2007 ) have stressed that programs focused on individual change have been found to be effective more often than those providing practical services. The SVORI evaluation also found support for this conclusion. Services we classified as “practical” (e.g., case manager, employment services, life skills, needs assessment, reentry planning, and reentry program) were associated with either no or a deleterious impact on arrest chances—although few were statistically different from a null effect. Individual-change services (e.g., anger management, programs for criminal attitudes including cognitive behavior therapy, education, help with personal relationships, and substance abuse treatment) were associated with positive impacts on arrest. The original SVORI evaluation had a follow-up period of about 2 years and findings suggested that the overall impact of SVORI program participation on rearrest and reincarceration were positive but not statistically significant. In contrast to these findings, a longer follow-up that extended at least 56 months showed participation in SVORI programs was associated with longer times to arrest and fewer arrests after release for both men and women. For the men, SVORI program participation was associated with a longer time to reincarceration and fewer reincarcerations, although the latter result was not statistically significant ( p  = 0.18). For the women, the reincarceration results were mixed and not significant.

Support for positive impacts of programs focused on individual change are consistent with theories associated with identity transformation and desistance from criminal activity. Bushway ( 2020 ) has recently discussed two alternative views of desistance, contrasting the implications of desistance either as a process (i.e., the gradual withdrawal from criminal activity) or reflective of an identify shift towards a more prosocial identity. In examining these two ideas, Bushway posits that the second suggests that individuals with a history of a high rate of offending may simply stop (as opposed to reducing the frequency of criminal acts). If individuals do (or can or will) stop, the implication is clear: policies that focus on an individual’s criminal history (e.g., for employment or parole decisions) may fail to recognize that the individual has changed. This change may be evidenced by in-prison good behavior (e.g., completing programs and staying out of trouble) or positive steps following release (e.g., actively seeking meaningful employment or engaging in positive relationships). Tellingly, Bushway ( 2020 ) notes: “Individuals involved in crime get information about how they are perceived by others through their involvement in the criminal justice system. Formal labels of ‘criminal’ are assigned and maintained by the criminal justice system. As a result, identity models are much more consistent theoretically with an empirical approach that revolves around measures of criminal justice involvement rather than criminal offending per se.” He goes on to discuss the relationship of identity-based models of stark breaks and criminal career models. In short, reflecting insights that labeling theorists have long emphasized, the labels the criminal justice system and society place on individuals may impede the desistance process that is the supposed goal of the system.

The second consideration are concerns about program design and implementation—What is the underlying logic model or theory of change? Is there adequate time to develop the program and train staff to implement it appropriately? Is the resulting program implemented with fidelity? The two or three years usually provided to implement complex programs suggest that these goals are unlikely to be met. The “notorious” findings of Martinson (1975) that “nothing works” was more appropriately interpreted as “nothing was implemented.” Unfortunately, nearly 50 years later, we largely observe something similar—not “nothing” but “something” that is far short of what was intended.

As discussed in detail by Taxman (2020), the usual approach to program development and testing skips over important formative steps, doesn’t allow time for pilot testing, and provides little opportunity for staff training or for achievement and maintenance of program fidelity (if there is even a program logic model). From an evaluator’s perspective, this short timeline imposes multiple challenges. An evaluator must identify study participants (and control or comparison subjects), follow them largely while they are in the program, and hope to have at least one year of post-program follow-up—generally without being able to accommodate the impact of likely weak implementation on evaluation power to detect effects.

Thus, it may not be surprising that effects are generally small. However, these small effects may not be negligible from a public safety perspective. In a study of the effects of non-residential drug treatment for a cohort of probationers, Lattimore et al. ( 2005a ) found that treatment reduced the number of probationers with a felony arrest by 23% during the first year and 11% over the first two years. The total number of arrests was also reduced by 17% over 12 months and 14% over 24 months. “Back of the envelope” calculations suggested that if treatment cost $1,000 per individual, it would have been cost effective to provide treatment to all members of the cohort as long as the (average) cost of arrest (and all related criminal justice processing and corrections) exceeds about $6,463.

Another example is to consider that the impact of a treatment effect in the 10% range applied across all prison releases would imply the aversion of many crimes. For example, assuming 750,000 prison releases each year over a five-year period and a 66% rearrest rate within 3 years (and no additional arrests after 3 years), then 3.75 million prisoners will be released over the five years; of these individuals, 2.475 million will be arrested at least once during the three years following release. A 10% reduction in first-time rearrests would mean 247,500 fewer first-time rearrests. To the extent that many offenders are arrested multiple times, this figure represents a lower bound on the number of averted arrests. A similar analysis could be conducted assuming 2,000,000 probation admissions each year and a 39% rearrest rate within 3 years. In this case, there would be 10,000,000 probation admissions that would generate 3.9 million first-time arrests over the three years after admission to probation. A 10% reduction in first-time rearrests would mean 390,000 fewer arrests. In total, therefore, reducing recidivism—as measured by rearrest by 10% for these hypothetical correctional populations—would translate into 637,500 averted arrests. Extrapolating further and assuming that roughly 10% of the arrests were for violent crime and 90% for property crime, and applying the inverse of the crime clearance rates for these two types of crime to generate a “crimes averted” count, we find that a 10% reduction in recidivism for these two populations would translate into 140,110 violent and 3,519,939 property crimes averted. 22 Thus, “modest” improvements in recidivism may provide substantial public benefits—in crimes averted, and lower demands on law enforcement, prosecution, and correctional resources. 23

The third consideration is the adequacy of the evaluation methods we routinely apply to this complex problem of inadequate interventions that are partially and sometimes poorly implemented. At minimum, we need to explicitly recognize the impacts of the following:

• Programs partially implemented and partially treated control conditions.
• Recidivism outcomes conditioned on an intermediate outcome.
• Follow-up periods too short to accommodate short-term failure followed by long-term success.
• Focusing on a binary indicator of recidivism ignores frequency and seriousness of offending.

The impact of partial treatment of both treatment and control groups on effect sizes and the consequential impact on statistical power is seldom discussed—either in initial estimates of needed sample sizes or in subsequent discussions of findings. As shown earlier and is true for most justice evaluations, the control or comparison condition is almost never “nothing.” Instead, it is generally “business as usual” (BAU) that means whatever the current standard of treatment entails. Thus, the treatment group may receive some services that aren’t available to the control group, but in many cases both groups have access to specific services and programs although the treatment group may get priority.

As we saw in Fig.  10 , treatment was reported by some individuals in both the SVORI and non-SVORI groups. Table ​ Table1 1 shows the implications of partial treatment using data from the SVORI evaluation. 24 The percent treated for the SVORI and non-SVORI men are shown in columns three and four. Column 2 presents the effect sizes for four interventions as identified by Wanner ( 2018 ). If we assume that the recidivism rate without treatment is 20%, 25 the observed recidivism rate for the SVORI and non-SVORI men as a result of receiving each treatment is shown in columns four and five. Column six shows that the observed differences in recidivism between the two groups in this “thought experiment” are less than two percent—an effect size that would never be detected with typical correctional program evaluations. 26

Hypothetical treatment effects with incomplete treatment of the treatment group and partial treatment of the comparison group, assuming untreated recidivism rate is 20 percent

* Estimates from Wanner ( 2018 ).

Similar findings emerge when considering the effects on recidivism of interventions such as job training programs that are intended to improve outcomes intermediate to recidivism. Consider the hypothetical impact of a prison job training program on post-release employment and recidivism. The underlying theory of change is that training will increase post-release employment and having a job will reduce recidivism. 27 Suppose the job training program boosts post-release employment by 30% and that, without the program, 50% of released individuals will find a job. A 30% improvement means that 65% of program participants will find employment. Randomly assigning 100 of 200 individuals to receive the program would result in 50 of those in the control group and 65 of those in the treatment group to find employment. (This outcome assumes everyone in the treatment group receives treatment.) Table ​ Table2 2 shows the treatment effect on recidivism under various assumptions about the impact of employment on recidivism. The table assumes a 50% recidivism rate for the unemployed so, e.g., if the effect of a job is to reduce recidivism by 10% employed individuals will have a recidivism rate of 45%. If there is no effect—i.e., recidivism is independent of being employed—we observe 50% failure for both groups and there is no effect on recidivism rates even if the program is successful at increasing employment by 30%. On the other hand, if being employed eliminates recidivism, no one who is employed will be recidivists and 50% of those unemployed will be recidivists—or 25 of the control group and 17.5 of the treated group. The last column in Table ​ Table2 2 shows the conditional effect of job training on recidivism under the various effects of employment on recidivism shown in column 1. The effects shown in the last column are the same regardless of the assumption about the recidivism rate of the unemployed. So, employment must have a very substantial effect on the recidivism rate to result in a large effect on the observed recidivism rate when, as is reasonable to assume, some members of the control group who didn’t have the training will find employment. As before, this finding underscores the need to carefully consider the mechanism affecting recidivism and potential threats to effect sizes and statistical power.

Hypothetical effects of job training on employment and recidivism assuming job training increases employment by 30% and control (untreated) employment is 50%

A third concern is that follow-up periods which typically are 2 years or less may be too short to observe positive impacts of interventions (Lattimore & Visher, 2020). Although this may seem counterintuitive, it is what was observed for the SVORI multisite evaluation. The initial SVORI evaluation focused on the impact of participation with at least 21 months of follow-up following release from prison and showed positive but insignificant differences in rearrests for the SVORI and non-SVORI groups. A subsequent NIJ award provided funding for a long-term (at least 56 months) examination of recidivism for 11 of the 12 adult programs (Visher et al., 2017 ; also see Lattimore et al., 2012 ). In contrast to the findings in the original study, participation in SVORI programs was associated with longer times to arrest and fewer arrests after release for both men and women during the extended follow-up period of at least 56 months. Although untestable post hoc, one plausible hypothesis is that the early period following release is chaotic for many individuals leaving prison and failure is likely. Only after the initial “settling out period” are individuals in a position to take advantage of what was learned during program participation. In any event, these findings suggest the need to conduct more, longer-term evaluations of reentry programs.

A final consideration is the indicator of recidivism used to judge the success of a program. Recidivism, which is a return to criminal behavior, is almost never observed. Instead, researchers and practitioners rely on proxies that are measures of justice system indicators that a crime has occurred—arrest, conviction, and incarceration for new offenses—and, for those on supervision, violation of conditions and revocation of supervision. A recent National Academy of Sciences’ publication ( 2022 ) highlights some of the limitations of recidivism as a measure of post-release outcomes, arguing that indicators of success and measures that allow for the observation of desisting behavior (defined by the panel as a process—not the sharp break advanced by Bushway) should be used instead. These are valid points but certainly in the short run the funders of interventions and those responsible for public safety are unlikely to be willing to ignore new criminal activity as an outcome.

It is worth highlighting, however, some of the limitations of the binary indicator of any new event that is the usual measure adopted by many researchers (e.g., “any new arrest within x years”) and practitioners (e.g., “return to our Department within 3 years”). These simple measures ignore important dimensions of recidivism. These include type of offense (e.g., violent, property, drug), seriousness of offense (e.g., homicide, felony assault, misdemeanor assault), and frequency of offending (equivalent to time to the recidivism event). As a result, a typical recidivism outcome treats as identical minor acts committed, e.g., 20 months following release, and serious crimes committed immediately. Note too that this binary indicator fails in terms of being able to recognize desisting behavior, that is, where time between events increases or the seriousness of the offense decreases. Survival methods and count or event models address the frequency consideration. Competing hazard models allow one to examine differences between a few categories of offending (e.g., violent, property, drug, other). The only approach that appears to have tackled the seriousness dimension is the work by Sherman and colleagues (Sherman et al., 2016 ; also, see www.crim.cam.ac.uk/research/thecambridgecrimeharminde ) who have developed a Crime Harm Index that is based on potential sentences for non-victimless crimes. To date, statistical methods that can accommodate the three dimensions simultaneously do not, to my knowledge, exist. At a minimum, however, researchers should use the methods that are available to fully explore their recidivism outcomes. Logistic regression models are easy to estimate and the results are easily interpretable. But an intervention may be useful if it increases the time to a new offense or reduces the seriousness of new criminal behavior.

The last forty years or so have seen strides at identifying interventions that are promising, but much work remains to be done to find programs that result in substantial, broad-based improvements. Challenges in program development and implementation, partial treatment of treatment groups and control groups, and limited focus on recidivism as a binary indicator of failure were highlighted as some of the issues confronting practitioners and evaluators. 28 There is reason for optimism—if expectations are realistic from both a programmatic and methodological perspective: Identify promising programs, apply best practices of implementation science, calculate reasonable statistical expectations, and build on what has been tried.

Conclusions

In the past several decades, dramatic increases in crime resulted in large-scale legislative changes and expenditures. Correctional populations dramatically increased even as crime rates plunged. In addition, despite large increases in funding to law enforcement and other justice agencies, the number of offenses cleared declined. During this time, there were multiple federal initiatives focused on reducing criminal recidivism. Some, such as the Residential Substance Abuse Treatment (RSAT) programs, focused singularly on reducing drug use, while others focused broadly on addressing the multi-faceted needs of justice-involved individuals.

These changes occurred in a context of a highly decentralized approach to criminal justice, one that creates a myriad of costs and incentives. For example, if a federally funded reentry program reduces crime, the immediate agency beneficiaries are local law enforcement (due to fewer crimes to solve), prosecution (due to fewer crimes to prosecute), and the courts (due to fewer cases to try). That can reduce admissions to prison. But for cost-savings to occur, agencies have to respond to reductions in crime by reducing costs. That tends to run counter to the natural inclination of administrators, especially if it means reducing staffing. And it runs counter to what happened as crime declined over the last roughly 30 years.

We increasingly have research evidence that some programs can reduce recidivism, but many challenges, such as underpowered research designs, sometimes undermines this evidence. Even so, it is important to note that even modest reductions in recidivism imply opportunities to avert substantial numbers of crimes and subsequent criminal justice system processing and costs.

This essay suggests that it is time to embrace the modest improvements in recidivism that have been forthcoming from programs that have been subjected to the most rigorous evaluations. And it suggests that it is time to downsize our expectations for a “silver bullet” and, instead, prepare for a long-term and sustained investment in programming that will improve, refine and augment programs and approaches that “work.” By using “what works” today as the basis for the successful adaptation of multi-faceted programs that address the multiplicity of offender needs, criminal justice policy and practice will develop the tools needed to help a heterogeneous population of prisoners successfully reenter their communities.

Finally, as policymakers grapple with a recent increase in violent crime, it is important to recognize that the “tough-on-crime” responses of the twentieth century led to a 252% increase in the number of citizens under legal system control—including a 312% increase in prison populations—between 1980 and 2000. Correctional populations peaked in 2008 but in 2019 remain 255% above 1980 levels with more than 6.5 million individuals in prisons, jails, or on probation or parole. 29 As the current administration proposes the Safer America Plan, it is important that proper attention be addressed to assure that the result of these expenditures is not to reinvigorate the mass incarceration and mass supervision that followed the adaptation of the as the 1984 Pretrial Reform Act and the Violent Offender Incarceration and Truth-in-Sentencing Act of 1994. And it is important that we attend to widespread support for high-quality implementation of programs that have been shown to reduce recidivism.

is a Principal Scientist with RTI International’s Justice Practice Area. She has more than 35 years of experience evaluating interventions, investigating the causes and correlates of criminal behavior, and developing approaches to improve criminal justice operations. She was principal investigator for multi-site, multi-method evaluations including the Multi-Site Evaluation of the Serious and Violent Offender Initiative, the Second Chase Act Adult Offender Reentry Demonstration Program Evaluation, and the HOPE Demonstration Field Experiment. She is principal investigator for research examining pretrial risk assessment, policy, and practice; state-level reforms for adult probation; implementation and impact of criminal record expungement; development and implementation of dynamic risk assessment algorithms for Georgia probation and parole; and the long-term impact of a three-state RCT of the 5-Key Reentry Program Model. She is a past Chair of the American Society of Criminology Division on Corrections and Sentencing, a Fellow of the Academy of Experimental Criminology, and a recipient of the American Correctional Association Peter P. Lejins Researcher Award, the American Society of Criminology Division on Corrections and Sentencing Distinguished Scholar Award, and the Academy of Experimental Criminology Joan McCord Award. Dr. Lattimore has published extensively, has served on the editorial boards of multiple journals, and was the inaugural co-editor of the annual series Handbook on Corrections and Sentencing published by Routledge Press.

Data Availability

1 Some of the ideas presented here were initially explored in Lattimore ( 2020 ) and Lattimore et al. ( 2021 ).

2 Data 1960 to 1984 are FBI, Uniform Crime Reports, prepared by the National Archive of Criminal Justice Data; downloaded March 5, 2006; data from 1985 to 2020 are from https://crime-data-explorer.app.cloud.gov/pages/explorer/crime/crime-trend , downloaded July 12, 2022.

3 Violent crime commands the most attention and hence is the focus here, but property crimes are much more prevalent—directly affecting many more individuals. Property crime rates also increased in the 1960s and 1970s. The property crime rate increased from 1,726.3 per 100,000 in 1960 to 4,660.2 in 1994—an 170% increase. The property crime rate peaked in 1980 at 5,353.3 per 100,000—a 210% increase over 1960.

4 Data for 1960 and 1970 prisoners are from Cahalan, M.W. and Parsons, L.A. ( 1986 ). Data from 1980–2014 are from Glaze, L., Minton, T., & West, H. (Date of version: 12/08/ 2009 ) and Kaeble, D., Glaze, L., Tsoutis, A., & Minton, T. ( 2015 ). Data from 2015–2020 are from Kluckow, DSW, & Zeng, Z. (Date of version: 3/31/ 2022 ).

5 As noted in footnote 3, property crime rates also rose between 1960 and 1980—peaking at 5,353.3 per 100,000. With some minor fluctuations, the property crime rate has declined steadily since the 1980s and was 1958.2 per 100,000 in 2020.

6 The Comprehensive Drug Abuse Prevention and Control Act of 1970 (PL 91–513); the Organized Crime Control Act of 1970 (PL 91–452); the District of Columbia Court Reorganization and Criminal Procedure Act of 1970 (PL 91–358); and the Omnibus Crime Control Act of 1970.

7 https://www.ncjrs.gov/txtfiles/billfs.txt

8 The trend shown in Fig.  9 continued a trend. Between 1982 and 1997, total justice expenditures increased 125% from $84.1 billion to $189.5 billion (2007 dollars), Kyckelhahn, T. ( 2011 ).

9 Data are from the FBI Crime in the United States publications for 1980, 1991, 1995, 2000, 2010 and 2019 https://ucr.fbi.gov/crime-in-the-u.s/ . Numbers of offenses cleared were estimated by multiplying the offenses known by the offense clearance rates reported by the FBI.

10 https://www.nytimes.com/2022/07/31/opinion/richard-nixon-america-trump.html

11 https://www.whitehouse.gov/briefing-room/statements-releases/2022/08/01/fact-sheet-president-bidens-safer-america-plan-2/

12 For some thoughts on recommendations for reforms for pretrial and sentencing see Lattimore, Spohn, & DeMichele ( 2021 ). This volume also has recommendations for reform across the justice system.

13 Safety and Justice Challenge.

14 https://www.arnoldventures.org/

15 https://www.prisonpolicy.org/research/economics_of_incarceration/

16 For an example of how a minor traffic offense can result in thousands of dollars in fines and fees for extensive terms of private probation see In Small-Town Georgia, A Broken Taillight Can Lead to Spiraling Debt—In These Times.

17 See for example, https://www.propublica.org/article/florida-felonies-voter-fraud

18 https://www.arnoldventures.org/work/public-defense

19 https://www.samhsa.gov/gains-center

20 https://www.nami.org/Advocacy/Crisis-Intervention/Crisis-Intervention-Team-(CIT)-Programs

21 https://www.eugene-or.gov/4508/CAHOOTS

22 In 2005, the Uniform Crime Reports reported 1,197,089 known violent offenses and 8,935,714 known property offenses or a ratio of about 1:9. Clearance rates were 45.5% for violent and 16.3% for property crimes known to police. The estimated total number of arrests for 2005 was 14,094, 186. Thus, the violent and property arrests account for about 72% of all arrests. Of course, these estimates rest on many assumptions—in some cases, these assumptions would imply that we are estimating the lower bound, since each member of our study population is allowed only one arrest while many will have many more than one. On the other hand, to the extent that individuals are arrested who have committed no offenses, the estimates would over represent the impact of a reduction in crime. The goal here was not to generate a precise estimate but to illustrate that a 10% reduction in recidivism translates into substantial reductions in crime.

23 A model-based estimate of the effect of non-residential drug treatment on 134,000 drug-involved individuals admitted to probation in Florida showed treatment reduced arrests by more than 20% (Lattimore et al., 2005a , 2005b ). This analysis was extended to a cost-effectiveness framework in which it was shown that it would be cost effective to spend $1000 treating all drug-involved probations as long as the average cost of an arrest averted (including arrest, and the costs of judicial processing and corrections) is at least $6,463.

where R = recidivism rate for the group, r = recidivism rate in the absence of treatment, T = percentage of group that is treated, and p = the percentage reduction in recidivism due to treatment (the treatment effect). Differences in outcomes are constant with respect to the assumed recidivism rate in the absence of treatment.

25 Differences in outcomes are constant with respect to the assumed recidivism rate without treatment.

26 Lipsey ( 1998 ) discusses the issue of underpowered evaluations.

27 A similar example was presented in Lattimore, Visher, & Steffey ( 2010 ).

28 Although not addressed here because of page limitations additional important methodological considerations include whether a comparison group exists for some interventions such as incarceration (see Lattimore & Visher 2021 for a brief discussion) and, even more challenging, whether replication is even possible given the heterogeneity of context and populations. For an interesting consideration of the implications of the latter for examining the impact of incarceration see Mears, Cochran & Cullen ( 2015 ).

29 Correctional populations dropped dramatically in 2020 as law enforcement and the criminal justice system adapted to COVID-19.

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• Andrews, D.A., & Bonta, J. (1994). The psychology of criminal conduct . Anderson.
• Andrews DA, Bonta J. The psychology of criminal conduct. 4. Lexis/Nexis/Matthew Bende; 2006. [ Google Scholar ]
• Andrews DA, Ziner I, Hoge RD, Bonta J, Gendreau P, Cullen FT. Does correctional treatment work: A clinically-relevant and psychologically-informed meta-analysis. Criminology. 1990; 28 :369–404. doi: 10.1111/j.1745-9125.1990.tb01330.x. [ CrossRef ] [ Google Scholar ]
• Aos S, Miller M, Drake E. Evidence-based adult corrections programs: What works and what does not. Washington State Institute for Public Policy; 2006. [ Google Scholar ]
• Bitney K, Drake E, Grice J, Hirsch M, Lee S. The effectiveness of reentry programs for incarcerated persons: Findings for the Washington Statewide Reentry Council (Document Number 17–05- 1901) Washington State Institute for Public Policy; 2017. [ Google Scholar ]
• Broner N, Lattimore PK, Cowell AJ, Schlenger W. Effects of diversion on adults with mental illness co-occurring with substance use: Outcomes from a national multi-site study. Behavior Sciences and the Law. 2004; 22 :519–541. doi: 10.1002/bsl.605. [ PubMed ] [ CrossRef ] [ Google Scholar ]
• Bronson, J., & Berzofsky, M. (2017). Indicators of mental health problems reported by prisoners and jail inmates, 2011–12. Bureau of Justice Statistics. NCJ 250612.
• Buehler ED. Justice expenditures and employment in the United States, 2017 , available from the National Criminal Justice Reference Service, NCJ-256093. US Department of Justice, Bureau of Justice Statistics; 2021. [ Google Scholar ]
• Bushway, S. (2020). What if people decide to desist? Implications for policy. (2020). In B. Orrell (Ed.), Rethinking reentry: An AEI working group summary (pp. 7–38). American Enterprise Institute.
• Cahalan MW, Parsons LA. Historical corrections statistics in the United States, 1850–1984 , available from the National Criminal Justice Reference Service, NCJ-10529. US Department of Justice, Bureau of Justice Statistics; 1986. [ Google Scholar ]
• Glaze, L., Minton, T., & West, H. (2009). Correctional populations in the United States . Date of version: 12/08/09, available from the National Criminal Justice Reference Service. US Department of Justice, Bureau of Justice Statistics.
• Kaeble, D., Glaze, L., Tsoutis, A., & Minton, T. (2015). Correctional populations in the United States . Date of version December 2015. Available from the National Criminal Justice Reference Service, NCJ-249513. US Department of Justice.
• Kluckow, D.S.W., & Zeng, Z. (2022). Correctional populations in the United States . Available from the National Criminal Justice Reference Service, NCJ-303184. Date of version: 3/31/2022. US Department of Justice, Bureau of Justice Statistics.
• Kyckelhahn, T. (2011 ). Justice expenditures and employment, FY 1982–2007 Statistical tables, Appendix Table 1 . Bureau of Justice Statistics Criminal Justice Expenditure and Employment Extracts Program.
• Latessa EJ. Triaging of services for individuals returning from prison. In: Orrell B, editor. Rethinking reentry: An AEI working group summary. American Enterprise Institute; 2020. pp. 7–38. [ Google Scholar ]
• Latessa, E.J., Lovins, L.B., & Smith, P. (2010). Follow-up evaluation of Ohio’s community-based correctional facility and halfway house programs—Outcome study . University of Cincinnati. https://www.uc.edu/ccjr/reports.html .
• Lattimore PK. Considering reentry program evaluation: Thoughts from the SVORI (and other) evaluations. In: Orrell B, editor. Rethinking reentry: An AEI working group summary. American Enterprise Institute; 2020. pp. 7–38. [ Google Scholar ]
• Lattimore, P. K., Barrick, K., Cowell, A. J., Dawes, D., Steffey, D. M., Tueller, S. J., & Visher, C. (2012). Prisoner reentry services: What worked for SVORI evaluation participants? Prepared for NIJ.
• Lattimore PK, Broner N, Sherman R, Frisman L, Shafer M. A comparison of pre-booking and post-booking diversion programs for mentally ill substance using individuals with justice involvement. Journal of Contemporary Criminal Justice. 2003; 19 (1):30–64. doi: 10.1177/1043986202239741. [ CrossRef ] [ Google Scholar ]
• Lattimore PK, Krebs CP, Koetse W, Lindquist C, Cowell AJ. Predicting the effect of substance abuse treatment on probationer recidivism. Journal of Experimental Criminology. 2005; 1 :159–189. doi: 10.1007/s11292-005-1617-z. [ CrossRef ] [ Google Scholar ]
• Lattimore, P.K., Spohn, C., & DeMichele, M. (2021) Reimagining Pretrial and Sentencing. In The Brookings-AEI Working Group on Criminal Justice Reform, A better path forward for criminal justice (pp. 16–27) . Brookings. https://www.brookings.edu/multi-chapter-report/a-better-path-forward-for-criminal-justice/ .
• Lattimore PK, Visher C. The impact of prison reentry services on short-term outcomes: Evidence from a multi-site evaluation. Evaluation Review. 2013; 37 :274–313. doi: 10.1177/0193841X13519105. [ PubMed ] [ CrossRef ] [ Google Scholar ]
• Lattimore, P. K., & Visher, C. A. (2021). Considerations on the multi-site evaluation of the Serious and Violent Offender Reentry Initiative. In. P. K. Lattimore, B. M. Huebner, & F. S. Taxman (Eds.), Handbook on moving corrections and sentencing forward: Building on the record (pp. 312–335). Routledge.
• Lattimore PK, Visher CA, Brumbaugh S, Lindquist C, Winterfield L. Implementation of prisoner reentry programs: Findings from the Serious and Violent Offender Reentry Initiative multi-site evaluation. Justice Research and Policy. 2005; 7 (2):87–109. doi: 10.3818/JRP.7.2.2005.87. [ CrossRef ] [ Google Scholar ]
• Lattimore PK, Visher C, Steffey DM. Prisoner reentry in the first decade of the 21st century. Victims and Offenders. 2010; 5 :253–267. doi: 10.1080/15564886.2010.485907. [ CrossRef ] [ Google Scholar ]
• Lattimore PK, Witte AD, Baker JR. Experimental assessment of the effect of vocational training on youthful property offenders. Evaluation Review. 1990; 14 :115–133. doi: 10.1177/0193841X9001400201. [ CrossRef ] [ Google Scholar ]
• Lindquist, C., Buck Willison, J., & Lattimore, P. K. (2021). Key findings and implications of the cross-site evaluation of the Bureau of Justice Assistance FY 2011 Second Chance Act Adult Offender Reentry Demonstration Projects. In. P. K. Lattimore, B. M. Huebner, & F. S. Taxman (Eds.), Handbook on moving corrections and sentencing forward: Building on the record (pp. 312–335). Routledge.
• Lipsey MW. What do we learn from 400 research studies on the effectiveness of treatment with juvenile delinquency? In: McGuire J, editor. What works reducing reoffending: Guidelines from research and practice. Wiley; 1995. pp. 63–78. [ Google Scholar ]
• Lipsey, M. W. (1998). Design sensitivity: Statistical power for applied experimental research. In: Bickman Leonard, Rog Debra J. (eds.) Handbook of applied social research methods (pp 39–68). Sage.
• Lipsey MW, Cullen FT. The effectiveness of correctional rehabilitation: A review of systematic reviews. Annual Review of Law and Social Science. 2007; 3 :297–320. doi: 10.1146/annurev.lawsocsci.3.081806.112833. [ CrossRef ] [ Google Scholar ]
• Lipton, D.S. (1975). The effectiveness of correctional treatment: a survey of treatment evaluation studies. Praeger Publishers.
• Lowenkamp, C.T., & Latessa, E.J. (2002). Evaluation of Ohio’s community-based correctional facilities and halfway house program s. University of Cincinnati. https://www.researchgate.net/publication/237720823 .
• MacKenzie D. What works in corrections? Reducing the criminal activities of offenders and delinquents. Cambridge University Press; 2006. [ Google Scholar ]
• Mears DP, Cochran JC, Cullen FT. Incarceration heterogeneity and its implications for assessing the effectiveness of imprisonment on recidivism. Criminal Justice Policy Review. 2015; 26 (7):691–712. doi: 10.1177/0887403414528950. [ CrossRef ] [ Google Scholar ]
• National Academies of Sciences, Engineering, and Medicine. (2022). The limits of recidivism: Measuring success after prison . The National Academies Press. 10.17226/26459.
• Page, J., & Soss, J. (2021). Predatory dimensions of criminal justice. Science , 374(6565), 291–294 10.1126/science.abj7782. [ PubMed ]
• Petersilia J. When prisoners come home: Parole and prisoner reentry. Oxford University Press; 2003. [ Google Scholar ]
• Sherman L, Gottfredson D, MacKenzie D, Eck J, Reuter P, Bushway S. Preventing crime: What works, what doesn’t, what’s promising. US Department of Justice, National Institute of Justice; 1997. [ Google Scholar ]
• Sherman, L., Neyroud, P.W. and Neyroud, E., 2016. The Cambridge crime harm index: Measuring total harm from crime based on sentencing guidelines. Policing: A Journal of Policy and Practice , 10 (3 ), 171–183.
• The Brookings-AEI Working Group on Criminal Justice Reform. (2021). A Better Path Forward for Criminal Justice . Brookings. https://www.brookings.edu/multi-chapter-report/a-better-path-forward-for-criminal-justice/ .
• Travis J. But they all come back: Facing the challenges of prisoner Reentry. Urban Institute Press; 2005. [ Google Scholar ]
• Travis, J., & Visher, C., eds. (2005). Prisoner reentry and crime in America . Cambridge University Press.
• Visher C, Lattimore PK, Barrick K, Tueller SJ. Evaluating the long-term effects of prisoner reentry services on recidivism: What types of services matter? Justice Quarterly. 2017; 34 (1):136–165. doi: 10.1080/07418825.2015.1115539. [ CrossRef ] [ Google Scholar ]
• Wanner P. Inventory of evidence-based, research-based, and promising programs for adult corrections (Document Number 18–02-1901) Washington State Institute for Public Policy; 2018. [ Google Scholar ]
• Winterfield L, Lattimore PK, Steffey DM, Brumbaugh SM, Lindquist CH. The serious and violent offender reentry initiative: Measuring the effects on service delivery. Western Criminology Review. 2006; 7 (2):3–19. [ Google Scholar ]

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The Justice System

What is the sequence of events in the criminal justice system.

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The flowchart of the events in the criminal justice system (shown in the diagram) updates the original chart prepared by the President's Commission on Law Enforcement and the Administration of Justice in 1967. The chart summarizes the most common events in the criminal and juvenile justice systems including entry into the criminal justice system, prosecution and pretrial services, adjudication, sentencing and sanctions, and corrections. A discussion of the events in the criminal justice system follows.

The response to crime

The private sector initiates the response to crime

This first response may come from individuals, families, neighborhood associations, business, industry, agriculture, educational institutions, the news media, or any other private service to the public.

It involves crime prevention as well as participation in the criminal justice process once a crime has been committed. Private crime prevention is more than providing private security or burglar alarms or participating in neighborhood watch. It also includes a commitment to stop criminal behavior by not engaging in it or condoning it when it is committed by others.

Citizens take part directly in the criminal justice process by reporting crime to the police, by being a reliable participant (for example, a witness or a juror) in a criminal proceeding and by accepting the disposition of the system as just or reasonable. As voters and taxpayers, citizens also participate in criminal justice through the policymaking process that affects how the criminal justice process operates, the resources available to it, and its goals and objectives. At every stage of the process from the original formulation of objectives to the decision about where to locate jails and prisons to the reintegration of inmates into society, the private sector has a role to play. Without such involvement, the criminal justice process cannot serve the citizens it is intended to protect.

The response to crime and public safety involves many agencies and services

Many of the services needed to prevent crime and make neighborhoods safe are supplied by noncriminal justice agencies, including agencies with primary concern for public health, education, welfare, public works, and housing. Individual citizens as well as public and private sector organizations have joined with criminal justice agencies to prevent crime and make neighborhoods safe.

Criminal cases are brought by the government through the criminal justice system

We apprehend, try, and punish offenders by means of a loose confederation of agencies at all levels of government. Our American system of justice has evolved from the English common law into a complex series of procedures and decisions. Founded on the concept that crimes against an individual are crimes against the State, our justice system prosecutes individuals as though they victimized all of society. However, crime victims are involved throughout the process and many justice agencies have programs which focus on helping victims.

There is no single criminal justice system in this country. We have many similar systems that are individually unique. Criminal cases may be handled differently in different jurisdictions, but court decisions based on the due process guarantees of the U.S. Constitution require that specific steps be taken in the administration of criminal justice so that the individual will be protected from undue intervention from the State.

The description of the criminal and juvenile justice systems that follows portrays the most common sequence of events in response to serious criminal behavior.

To contents

The justice system does not respond to most crime because so much crime is not discovered or reported to the police. Law enforcement agencies learn about crime from the reports of victims or other citizens, from discovery by a police officer in the field, from informants, or from investigative and intelligence work.

Once a law enforcement agency has established that a crime has been committed, a suspect must be identified and apprehended for the case to proceed through the system. Sometimes, a suspect is apprehended at the scene; however, identification of a suspect sometimes requires an extensive investigation. Often, no one is identified or apprehended. In some instances, a suspect is arrested and later the police determine that no crime was committed and the suspect is released.

After an arrest, law enforcement agencies present information about the case and about the accused to the prosecutor, who will decide if formal charges will be filed with the court. If no charges are filed, the accused must be released. The prosecutor can also drop charges after making efforts to prosecute (nolle prosequi).

A suspect charged with a crime must be taken before a judge or magistrate without unnecessary delay. At the initial appearance, the judge or magistrate informs the accused of the charges and decides whether there is probable cause to detain the accused person. If the offense is not very serious, the determination of guilt and assessment of a penalty may also occur at this stage.

Often, the defense counsel is also assigned at the initial appearance. All suspects prosecuted for serious crimes have a right to be represented by an attorney. If the court determines the suspect is indigent and cannot afford such representation, the court will assign counsel at the public's expense.

A pretrial-release decision may be made at the initial appearance, but may occur at other hearings or may be changed at another time during the process. Pretrial release and bail were traditionally intended to ensure appearance at trial. However, many jurisdictions permit pretrial detention of defendants accused of serious offenses and deemed to be dangerous to prevent them from committing crimes prior to trial.

The court often bases its pretrial decision on information about the defendant's drug use, as well as residence, employment, and family ties. The court may decide to release the accused on his/her own recognizance or into the custody of a third party after the posting of a financial bond or on the promise of satisfying certain conditions such as taking periodic drug tests to ensure drug abstinence.

In many jurisdictions, the initial appearance may be followed by a preliminary hearing. The main function of this hearing is to discover if there is probable cause to believe that the accused committed a known crime within the jurisdiction of the court. If the judge does not find probable cause, the case is dismissed; however, if the judge or magistrate finds probable cause for such a belief, or the accused waives his or her right to a preliminary hearing, the case may be bound over to a grand jury.

A grand jury hears evidence against the accused presented by the prosecutor and decides if there is sufficient evidence to cause the accused to be brought to trial. If the grand jury finds sufficient evidence, it submits to the court an indictment, a written statement of the essential facts of the offense charged against the accused.

Where the grand jury system is used, the grand jury may also investigate criminal activity generally and issue indictments called grand jury originals that initiate criminal cases. These investigations and indictments are often used in drug and conspiracy cases that involve complex organizations. After such an indictment, law enforcement tries to apprehend and arrest the suspects named in the indictment.

Misdemeanor cases and some felony cases proceed by the issuance of an information, a formal, written accusation submitted to the court by a prosecutor. In some jurisdictions, indictments may be required in felony cases. However, the accused may choose to waive a grand jury indictment and, instead, accept service of an information for the crime.

In some jurisdictions, defendants, often those without prior criminal records, may be eligible for diversion from prosecution subject to the completion of specific conditions such as drug treatment. Successful completion of the conditions may result in the dropping of charges or the expunging of the criminal record where the defendant is required to plead guilty prior to the diversion.

Once an indictment or information has been filed with the trial court, the accused is scheduled for arraignment. At the arraignment, the accused is informed of the charges, advised of the rights of criminal defendants, and asked to enter a plea to the charges. Sometimes, a plea of guilty is the result of negotiations between the prosecutor and the defendant.

If the accused pleads guilty or pleads nolo contendere (accepts penalty without admitting guilt), the judge may accept or reject the plea. If the plea is accepted, no trial is held and the offender is sentenced at this proceeding or at a later date. The plea may be rejected and proceed to trial if, for example, the judge believes that the accused may have been coerced.

If the accused pleads not guilty or not guilty by reason of insanity, a date is set for the trial. A person accused of a serious crime is guaranteed a trial by jury. However, the accused may ask for a bench trial where the judge, rather than a jury, serves as the finder of fact. In both instances the prosecution and defense present evidence by questioning witnesses while the judge decides on issues of law. The trial results in acquittal or conviction on the original charges or on lesser included offenses.

After the trial a defendant may request appellate review of the conviction or sentence. In some cases, appeals of convictions are a matter of right; all States with the death penalty provide for automatic appeal of cases involving a death sentence. Appeals may be subject to the discretion of the appellate court and may be granted only on acceptance of a defendant's petition for a writ of certiorari. Prisoners may also appeal their sentences through civil rights petitions and writs of habeas corpus where they claim unlawful detention.

After a conviction, sentence is imposed. In most cases the judge decides on the sentence, but in some jurisdictions the sentence is decided by the jury, particularly for capital offenses.

In arriving at an appropriate sentence, a sentencing hearing may be held at which evidence of aggravating or mitigating circumstances is considered. In assessing the circumstances surrounding a convicted person's criminal behavior, courts often rely on presentence investigations by probation agencies or other designated authorities. Courts may also consider victim impact statements.

The sentencing choices that may be available to judges and juries include one or more of the following:

• the death penalty
• incarceration in a prison, jail, or other confinement facility
• probation - allowing the convicted person to remain at liberty but subject to certain conditions and restrictions such as drug testing or drug treatment
• fines - primarily applied as penalties in minor offenses
• restitution - requiring the offender to pay compensation to the victim.

In some jurisdictions, offenders may be sentenced to alternatives to incarceration that are considered more severe than straight probation but less severe than a prison term. Examples of such sanctions include boot camps, intense supervision often with drug treatment and testing, house arrest and electronic monitoring, denial of Federal benefits, and community service.

In many jurisdictions, the law mandates that persons convicted of certain types of offenses serve a prison term. Most jurisdictions permit the judge to set the sentence length within certain limits, but some have determinate sentencing laws that stipulate a specific sentence length that must be served and cannot be altered by a parole board.

Offenders sentenced to incarceration usually serve time in a local jail or a State prison. Offenders sentenced to less than 1 year generally go to jail; those sentenced to more than 1 year go to prison. Persons admitted to the Federal system or a State prison system may be held in prisons with varying levels of custody or in a community correctional facility.

A prisoner may become eligible for parole after serving a specific part of his or her sentence. Parole is the conditional release of a prisoner before the prisoner's full sentence has been served. The decision to grant parole is made by an authority such as a parole board, which has power to grant or revoke parole or to discharge a parolee altogether. The way parole decisions are made varies widely among jurisdictions.

Offenders may also be required to serve out their full sentences prior to release (expiration of term). Those sentenced under determinate sentencing laws can be released only after they have served their full sentence (mandatory release) less any "goodtime" received while in prison. Inmates get goodtime credits against their sentences automatically or by earning them through participation in programs.

If released by a parole board decision or by mandatory release, the releasee will be under the supervision of a parole officer in the community for the balance of his or her unexpired sentence. This supervision is governed by specific conditions of release, and the releasee may be returned to prison for violations of such conditions.

Once the suspects, defendants, or offenders are released from the jurisdiction of a criminal justice agency, they may be processed through the criminal justice system again for a new crime. Long term studies show that many suspects who are arrested have prior criminal histories and those with a greater number of prior arrests were more likely to be arrested again. As the courts take prior criminal history into account at sentencing, most prison inmates have a prior criminal history and many have been incarcerated before. Nationally, about half the inmates released from State prison will return to prison.

For statistics on this subject, see --   Juvenile justice and facts and figures

The juvenile justice system

Juvenile courts usually have jurisdiction over matters concerning children, including delinquency, neglect, and adoption. They also handle "status offenses" such as truancy and running away, which are not applicable to adults. State statutes define which persons are under the original jurisdiction of the juvenile court. The upper age of juvenile court jurisdiction in delinquency matters is 17 in most States.

The processing of juvenile offenders is not entirely dissimilar to adult criminal processing, but there are crucial differences. Many juveniles are referred to juvenile courts by law enforcement officers, but many others are referred by school officials, social services agencies, neighbors, and even parents, for behavior or conditions that are determined to require intervention by the formal system for social control.

At arrest, a decision is made either to send the matter further into the justice system or to divert the case out of the system, often to alternative programs. Examples of alternative programs include drug treatment, individual or group counseling, or referral to educational and recreational programs.

When juveniles are referred to the juvenile courts, the court's intake department or the prosecuting attorney determines whether sufficient grounds exist to warrant filing a petition that requests an adjudicatory hearing or a request to transfer jurisdiction to criminal court. At this point, many juveniles are released or diverted to alternative programs.

All States allow juveniles to be tried as adults in criminal court under certain circumstances. In many States, the legislature statutorily excludes certain (usually serious) offenses from the jurisdiction of the juvenile court regardless of the age of the accused. In some States and at the Federal level under certain circumstances, prosecutors have the discretion to either file criminal charges against juveniles directly in criminal courts or proceed through the juvenile justice process. The juvenile court's intake department or the prosecutor may petition the juvenile court to waive jurisdiction to criminal court. The juvenile court also may order referral to criminal court for trial as adults. In some jurisdictions, juveniles processed as adults may upon conviction be sentenced to either an adult or a juvenile facility.

In those cases where the juvenile court retains jurisdiction, the case may be handled formally by filing a delinquency petition or informally by diverting the juvenile to other agencies or programs in lieu of further court processing.

If a petition for an adjudicatory hearing is accepted, the juvenile may be brought before a court quite unlike the court with jurisdiction over adult offenders. Despite the considerable discretion associated with juvenile court proceedings, juveniles are afforded many of the due-process safeguards associated with adult criminal trials. Several States permit the use of juries in juvenile courts; however, in light of the U.S. Supreme Court holding that juries are not essential to juvenile hearings, most States do not make provisions for juries in juvenile courts.

In disposing of cases, juvenile courts usually have far more discretion than adult courts. In addition to such options as probation, commitment to a residential facility, restitution, or fines, State laws grant juvenile courts the power to order removal of children from their homes to foster homes or treatment facilities. Juvenile courts also may order participation in special programs aimed at shoplifting prevention, drug counseling, or driver education.

Once a juvenile is under juvenile court disposition, the court may retain jurisdiction until the juvenile legally becomes an adult (at age 21in most States). In some jurisdictions, juvenile offenders may be classified as youthful offenders which can lead to extended sentences.

Following release from an institution, juveniles are often ordered to a period of aftercare which is similar to parole supervision for adult offenders. Juvenile offenders who violate the conditions of aftercare may have their aftercare revoked, resulting in being recommitted to a facility. Juveniles who are classified as youthful offenders and violate the conditions of aftercare may be subject to adult sanctions.

The structure of the justice system

The governmental response to crime is founded in the intergovernmental structure of the United States

Under our form of government, each State and the Federal Government has its own criminal justice system. All systems must respect the rights of individuals set forth in court interpretation of the U.S. Constitution and defined in case law.

State constitutions and laws define the criminal justice system within each State and delegate the authority and responsibility for criminal justice to various jurisdictions, officials, and institutions. State laws also define criminal behavior and groups of children or acts under jurisdiction of the juvenile courts.

Municipalities and counties further define their criminal justice systems through local ordinances that proscribe the local agencies responsible for criminal justice processing that were not established by the State.

Congress has also established a criminal justice system at the Federal level to respond to Federal crimes such a bank robbery, kidnaping, and transporting stolen goods across State lines.

The response to crime is mainly a State and local function

Very few crimes are under exclusive Federal jurisdiction. The responsibility to respond to most crime rests with State and local governments. Police protection is primarily a function of cities and towns. Corrections is primarily a function of State governments. Most justice personnel are employed at the local level.

Discretion is exercised throughout the criminal justice system

Discretion is "an authority conferred by law to act in certain conditions or situations in accordance with an official's or an official agency's own considered judgment and conscience." 1  Discretion is exercised throughout the government. It is a part of decision-making in all government systems from mental health to education, as well as criminal justice. The limits of discretion vary from jurisdiction to jurisdiction.

Concerning crime and justice, legislative bodies have recognized that they cannot anticipate the range of circumstances surrounding each crime, anticipate local mores, and enact laws that clearly encompass all conduct that is criminal and all that is not. 2  Therefore, persons charged with the day-to-day response to crime are expected to exercise their own judgment within limits set by law. Basically, they must decide -

• whether to take action
• where the situation fits in the scheme of law, rules, and precedent
• which official response is appropriate. 3

To ensure that discretion is exercised responsibly, government authority is often delegated to professionals. Professionalism requires a minimum level of training and orientation, which guide officials in making decisions. The professionalism of policing is due largely to the desire to ensure the proper exercise of police discretion.

The limits of discretion vary from State to State and locality to locality. For example, some State judges have wide discretion in the type of sentence they may impose. In recent years other States have sought to limit the judges discretion in sentencing by passing mandatory sentencing laws that require prison sentences for certain offenses.

1  Roscoe Pound, "Discretion, dispensation and mitigation: The problem of the individual special case," New York University Law Review (1960) 35:925, 926.

2  Wayne R. LaFave, Arrest: The decision to take a suspect into custody (Boston: Little, Brown & Co., 1964), p. 63-184.

3  Memorandum of June 21, 1977, from Mark Moore to James Vorenberg, "Some abstract notes on the issue of discretion."

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Article Contents

1. introduction, 2. the aims and capacities of criminal law and punishment in relation to victims, 3. the purposes and capacities of criminal law and punishment in relation to society, 4. conclusions.

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The Rationale and Purposes of Criminal Law and Punishment in Transitional Contexts

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Elena Maculan, Alicia Gil Gil, The Rationale and Purposes of Criminal Law and Punishment in Transitional Contexts, Oxford Journal of Legal Studies , Volume 40, Issue 1, March 2020, Pages 132–157, https://doi.org/10.1093/ojls/gqz033

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Recently, the idea that criminal sanctions should be seen as an essential mechanism within transitional justice for dealing with collective violence has gained increasing traction. The article focuses on the purposes of criminal law and punishment, and what they can achieve in relation to victims and society in transitional contexts. As to victims, it proposes a reorientation of the victim-oriented theories of punishment towards consequentalism and the adoption of a wider concept of justice. As to society, it argues that in transitional contexts the main purpose is positive general prevention. Under both perspectives, the conclusion is that victims’ interests should be weighed up against other social aims and that a flexible approach to the prosecution and/or punishment of offenders should be permitted, in the search for the best optimum means possible to guarantee the ultimate aim of the maintenance of social order.

In recent years, the idea that criminal sanctions should be seen as an essential mechanism within transitional justice 1 for dealing with collective violence has gained increasing traction. The theory has been given impetus by various phenomena, noteworthy among which are the prominence now given to victims in criminal policy 2 and the pressure from international law. In this context, both the development of international criminal law with the maxim of the ‘fight against impunity’ and the case law of human rights courts have made a contribution. 3 The latter, especially the Inter-American Court of Human Rights (IACtHR), has consolidated victims’ rights to truth, justice, reparation and non-repetition, as well as a maximalist interpretation of the right to justice as a right to the punishment of criminals. 4

The concept of punishment as being the only possible form of reparation for serious human rights violations, as a means of satisfying victims, or even as the victims’ right, is a significant challenge to the traditional understanding of criminal law. First, it implies ceasing to conceive of criminal law as a tool for social control, designed originally to protect legal interests for peaceful social coexistence; rather, seeing it as a mechanism designed for the reparation of victims’ rights. 5 This involves abandoning the idea of criminal law as ius puniendi , as a right of the state, and instead seeing it as a state obligation, officium puniendi. 6

Such a notion, in turn, means eliminating the set of non-exculpatory defences and mitigating circumstances based on merely political considerations, which take into account the efficacy of criminal law itself or the prevalence of other public interests, irrespective of the perpetrator’s culpability. 7 These defences and mitigating factors appear frequently in national laws 8 and allow a rational use of criminal law, based on the premise that the latter is an instrument for the protection of legal interests and may be set aside when other measures grant a more satisfactory fulfilment of this aim. 9

Besides that, and more importantly, the new conception of punishment as a state obligation diminishes the rights and guarantees of the accused—created as a containing wall against the repressive apparatus of the state—to merely individual interests over which, furthermore, according to this ideology, the victims’ interests must always prevail. 10

It is not the purpose of this article to look at all of these consequences in depth. 11 We wish to call attention, above all, to the fact that this change of orientation with regard to the use and meaning of criminal law is often invoked, without a prior analysis of its real capacity, to fulfil the aims assigned to it by these doctrines. That is to say, even before verifying whether the drawbacks of this doctrine are compensated by the benefits it may bring, we must analyse whether criminal law is indeed able to fulfil the purposes attributed to it when punishment is conceived of as a state’s obligation and a victim’s right.

Furthermore, this question must be analysed within the framework of the broadest aims of transitional justice. We start from the premise that the mechanisms for recovery from a situation of collective violence involving serious human rights violations must cover diverse interests and aims, the compatibility of which may be challenging. 12 Paying attention to victims and their rights is a condition sine qua non for the resolution of the conflict. However, a partial view of the problem, which covers only a possible claim for retributive justice by the victims, can lose sight of the other interests in play; it may give rise to the ultimate frustration of the objectives of transitional justice, namely, those of reconciliation, reconstruction of the social fabric, recovery from a conflictive past and consolidation of the new social order. Moreover, seeing criminal punishment as sacred—under the maxim of the fight against impunity—may hide the fact that victims’ needs are varied, that criminal law rarely fulfils them, and that punitive solutions are prescribed in general without a prior analysis of the purposes of punishment and what it can actually achieve.

The present article is a contribution towards filling this gap: analysing the purposes of criminal law and punishment, and what they can achieve in relation to victims (section 2) and society (section 3) in transitional contexts. What we hope to achieve is to demonstrate (section 4) that there is no victims’ right to punishment and that criminal law is not a sufficient—nor, on occasions, the most appropriate—measure for providing an adequate response to the complex web of the aims of transitional processes. Our hypothesis is that the rise of the idea that the full punishment of criminals has to be an essential component of transitional justice overburdens criminal law with aims that it is unable to fulfil and/or that are more satisfactorily achieved through the application of other mechanisms. In contrast, criminal law and punishment should always be considered as just one of the many tools that states have at their disposal, even in transitional contexts, in the search for the best possible solution to fulfil the ultimate aim of maintaining social order, that is, the set of protected legal interests in a society.

A. Victim-oriented Theories of Punishment

The first aspect we shall address in our study is that of the supposedly beneficial effects that criminal punishment of the offender may have on the victim. We shall analyse the various theories elaborated in criminal law and in philosophy that may in some way serve as a theoretical support to the idea of punishment as a means to satisfy the victim or even as a victim’s right.

(i) The crime as a moral requirement or a demand for justice: classical retributionist theories

The victim-oriented theories of punishment share with Kant’s conception of criminal sanction the notion of punishment as an imperative, or obligation (of society, of the state), as well as the frequent appeal to justice as a foundation, the demand for talionic punishment 13 —regardless of political and criminal considerations, and of the possible absence of preventive needs—and the requirement of the full execution of the sentence imposed. For this reason, certain authors have labelled the doctrines that promote the state’s duty to punish and the victims’ right to the punishment as retributionist. 14

However, it should be noted that there are significant differences between the two doctrines. 15 The classical theory of retribution focuses on the offender and on the fact that he or she deserves to be punished; 16 therefore, its perspective is centred on the past. The victim-oriented theory of criminal punishment focuses instead on the present, on the victims and their satisfaction. 17

Furthermore, retributionist theories, in both their classical and more modern versions, have been widely rebutted by scholars. 18 Among many other criticisms, it is argued that these theories, seeking a metaphysical foundation for punishment, forget that the foundation of the latter lies within a complex legal system. Critics point out that the conception of punishment as an evil and a purpose in itself is not rational and that one evil cannot be obliterated or compensated by another. 19

(ii) Punishment as a right of the victim generated as a consequence of the crime: the appeal to historical evolution

Some authors have tried to justify the victim’s right to the punishment of the offender by appealing to the evolution from vengeance to punishment. 20 It is argued that refraining from private justice and assigning to the state the monopoly on punishment means that the state has a duty to exercise it. Such an argument involves affirming a kind of natural right, not only to self-protection, but also to punishment, the existence of which is more than doubtful. 21 Additionally, more than a millennium after its consolidation, state punishment can no longer be perceived as an imaginary act of conferring by the victim; rather, it is the outcome of the will of the democratic legislator.

The main problem with these theories lies, nevertheless, in the fact that the appeal to tradition or historical evolution cannot be a substitute foundation for the imposition of punishment. In other words, evidence of historical evolution from the institution of vengeance to punishment does not explain why and for what one is punished, whether then or now. This argument would require us to investigate the purposes of the archaic institution of vengeance, in order to determine whether this could assist us in uncovering the purposes of punishment in modern times.

(iii) Punishment as a means of producing beneficial effects on the victim

Some authors have argued that the purpose of punishment is to give satisfaction to the victim, in the sense that it makes the victim feel ‘better’. 22 The beneficial effects of punishment are usually said to include the recognition that the victim has suffered an unjust act and that what has occurred is neither a mere accident, the product of bad luck, nor the consequence of one’s own errors. 23 The punishment of the offender also offers the symbolic assurance that it will not recur, thereby protecting the victims’ sense of safety 24 or self-confidence 25 and preventing them from feeling guilty. 26 Lastly, it expresses the sympathies and solidarity of society, 27 and it furthers the consequent ‘re-socialisation’ or reintegration of the victim. 28

Scholars, however, have cast doubt on the capacity of punishment to fulfil all of these purposes. 29 In reality, the effects of the criminal offence—and of the criminal trial—are different for each victim, 30 depending on a wide variety of circumstances. Moreover, many of the desirable effects attributed to punishment by the supporters of these theories are achievable by other means that do not imply the imposition of an evil. 31 In addition, when one wishes to show sympathy towards, and solidarity with, an individual, their acts should be better directed towards the person they wish to comfort and not towards someone else. Punishment, as the imposition of an evil, goes beyond solidarity and cannot be explained by it. 32

Moreover, this argument faces further difficulties: if the sole purpose of punishment is to offer the victim satisfaction, then its harshness should be determined exclusively on the ground of the victim’s needs, which are different for each victim. 33 Were this criterion applied, sentencing would infringe the principles of legal certainty and equality before the law. 34

Those who see the satisfaction of certain interests of the victim, together with other social aims, as one of the possible aims (or desirable effects) of punishment ally themselves to consequentialist theories in the traditional sense, or to mixed or unitary theories of punishment. 35 These scholars have no option but to admit that the various purposes may conflict with each other and, in case they are weighted, may have to give way. 36 Therefore, these authors cannot affirm that the victim has a right to punishment as such.

Those who, on the contrary, deem the victims’ satisfaction as the sole purpose of the punishment can claim a right to punishment, but they cannot explain why exactly this purpose (giving satisfaction or happiness to the victim) must prevail over any other. 37

In conclusion, we cannot claim the existence of a right to punishment 38 solely on the basis of its possible beneficial effects for victims. 39

(iv) Punishment as constituting the elimination or cessation of a harm to the victim as differentiated from the harm to a legal interest

Contrary to (or even together with) the previous positions, we find some others, along similar lines yet with distinctive nuances, which argue that a criminal offence always causes a harm to the victim, further and distinct from the specific harm caused to the protected legal interest. The only way this harm may be ended or eliminated would be by imposing a criminal punishment on the offender. It is thus argued that criminal punishment fulfils the function of putting an end to a disorientation in social life suffered by the victims, where this may arise from a lack or loss of confidence in the law if no punishment were imposed. 40 Others maintain that its purpose is to liberate the victim from the offender’s domination, 41 restoring or reaffirming his or her social worth, 42 or to put an end to an ongoing harm to his or her honour, which continues as long as the offender is not prosecuted and sanctioned. 43 There has also been an attempt to relate the theory of the victim-oriented punishment to positive general prevention, by stating that criminal sanction pursues the reaffirmation not of the legal values infringed by the offence—as is claimed by the positive general prevention 44 —but of the victims themselves. 45 In other words, criminal punishment is deemed to seek the ‘re-socialisation of the victim’. 46

The divergence from the position described in the previous section would be founded on the belief that it is precisely the absence of the punishment that causes the continuing perpetration of the harm, from which arises the state’s duty to punish 47 in order to put an end to this harm. This argument reminds us of the Kantian theory, 48 which holds that a society that fails to punish is accomplice in the crime. 49 Furthermore, it follows the doctrine of human rights courts, in arguing that the state commits a new and independent violation of human rights when it fails to punish a primary violation thereof.

These arguments usually present the same defects that have already been denounced in interpretations discussed in the previous section, namely, that the need to equalise the victim and the offender in the evil suffered lacks a rational explanation; also, that there is no demonstration that the expression of concern for the victims and their suffering requires the imposition of an evil on the offender. Very much to the contrary: one asks oneself how the causing of an evil, ie imprisonment, to another can relieve the suffering of the victim, and whether reparatory measures centred on the victims themselves would not be more effective for this purpose. 50 How can the exclusion of the offender return the victim to society? 51

It is also unclear up to what point and in which crimes the victims suffer a trauma, and of what kind 52 or for what reason the recovery from this trauma necessarily requires the imposition of an evil on the offender. In reality, the victim’s expectations in relation to the declarations of solidarity of the rest of society, an important factor for overcoming trauma and for avoiding its desocialising effect, would also vary depending on the method adopted by the victim to deal with the crime. The victim who reacts to the trauma with a confrontational strategy expects that society’s solidarity will consist of sharing this strategy in relation to the crime. However, social psychology has demonstrated that not all victims confront crime using such strategies, nor that they are likely to be the optimum strategies for overcoming or avoiding psychological disorder and suffering. 53

The supposed domination by the perpetrator or the humiliation or subjection of the victim are no more than a subjective response experienced by some (not even the majority) of the victims. This response should not be turned into a reality by virtue of a legislative choice, nor could it constitute the foundation of criminal prosecution. The same is true of the argument that attempts to endow punishment with the restoration of the victim’s honour, worth or dignity. 54 Fortunately, this is not in accordance with the current conception of honour and dignity. If it were indeed to be accepted, it would send an utterly incorrect message. Where, historically, within the ambit of private vengeance, the absence of a physical response to the crime through punishment was sanctioned socially with a loss of honour, this was because in a non-institutionalised system of control few alternative ways existed of obliging compliance with the so-called secondary rule, which addressed all of the members of the community. 55 Nowadays, however, these theories, affirming that the victim’s restoration of honour, value or dignity depends on the imposition of a punishment, instead of correcting moral judgments or erroneous attributions of meanings, would reinforce a false claim: that a correlation exists between power, on the one hand, and the value or honour of a human being, on the other. 56

B. Alternative Proposal

(i) reorientation of victim-oriented theories on punishment towards a consequentialist approach.

In our opinion, the—at least abstract—potential of punishment to produce beneficial effects for the victims cannot be refuted. The effects consist principally of demonstrating the injustice suffered by them and offering a certain degree of non-repetition guarantees, thereby assuaging their need for justice, restoring their confidence in the law and in society, and encouraging their non-desocialisation. We must acknowledge it as evident that, as human beings, our sense of justice leads us to require that bad acts be punished. However, we must not forget that these feelings respond to the calculated reciprocity mechanism, 57 present not only in the human being, but also in other species with social behaviours. 58 This mechanism, which acts as a preventive tool, ultimately serves to promote the conservation of the group and of the individual as a social being. 59 In other words, even when the punishment does serve to satisfy the needs for reciprocity that are so firmly inherent in our system of social interrelations, this purpose is ultimately instrumental. For this reason, the victims’ satisfaction may never be extrapolated and placed as either a purpose in itself or superior to the classic preventive aims, nor can it eclipse or replace the main rationale of criminal law, that is, to protect legal interests and the social order. 60

In conclusion, we may state that a strategy that attempts to satisfy all of the interests in play in order to build a sustainable peace must not neglect to respond to past crimes. Having said this, the state, through its monopoly on violence, may in our opinion moderate the understandable and legitimate instincts and desires for reciprocity of the victims and of the society as a whole and submit these to certain rational limits. The state should attempt to give satisfaction to those desires through other mechanisms and weigh them against other social aims, and even against other victims’—equally legitimate—interests in the search for the optimum means possible to guarantee the ultimate aim of the maintenance of social order. 61

(ii) Requiring a wider concept of justice for victims

When talking of victims’ right to justice, it is essential to require a broader concept of justice, one not limited to the imposition of a punishment, but one that opens its doors to the enormous possibilities offered by restorative justice. 62 Specifically, restorative justice is characterised by seeking the reparation of the harm caused to the victim by the crime, rather than merely the punishment of the offender, and it attempts to overcome certain deficiencies in the traditional system of retributive justice. 63

The various restorative justice mechanisms, eg mediation, are designed such that the victim has a voice in the conflict resolution process and is thus able to express his or her needs and obtain reparation. This is an attempt to favour ‘de-victimisation’, also assuaging feelings of a lack of understanding or of guilt. Furthermore, restorative justice mechanisms contribute—and do so more effectively than conventional criminal justice—to the acknowledgement of responsibility by the offender, to his or her re-socialisation and to the restoration of interpersonal relations. 64 Lastly, as some authors have remarked, restorative justice not only has an impact at the interpersonal level, but may also have broader transformative effects on institutions and community as a whole. 65

Social psychology has also questioned the affirmation that only criminal punishment, based on the idea of just deserts, re-establishes justice. A broader concept of justice is needed; it has been argued that, from the victims’ own point of view, their need for justice is better satisfied by an apology from the offender, an acknowledgement of the injustice committed and the acceptance of responsibility than by the unilateral imposition of a punishment by the state. Various studies have demonstrated that restorative measures such as saying ‘Sorry’ have a reparatory effect as to the sense of justice. 66 Besides that, with these tools, the legal values harmed by the crime are reaffirmed. The situation of asking for forgiveness expresses, first, that the offender shares those values and, secondly, an acknowledgement of and restoration of the dignity of the victims. In conclusion, these studies state that punishment may be seen as insufficient or as unnecessary for restoring justice for victims. 67

It is worth clarifying that we do not deem restorative justice to constitute an alternative to the traditional criminal justice system. 68 Rather, it could be a mechanism complementary to the latter, one that allows the incorporation of new elements that humanise the system and favour the fulfilment of its aims. At the same time, when restorative justice is applied, there may be evidence of a reduced need for punishment if some of the purposes of the punishment are deemed to be at least partially fulfilled. In such circumstances, there is an argument to be made in favour of the reduction of the criminal punishment, or its replacement by an alternative sanction, a conditional suspended sentence or probation. 69

These ideas run counter to the requirement of the punishment’s being in any event proportional to the gravity of the crime and the degree of culpability, which prevents it from being mitigated by any other consideration. 70

It is also appropriate to point out the differences between transitional justice and restorative justice, and how the latter must be understood within the framework of the former. While transitional justice is the product of a public design, restorative justice starts from the premise that all involvement in the various measures is voluntary. For this reason, we cannot talk about an imposed restorative justice. Rather, it is a case of the transitional justice processes allowing, on the one hand, the application of restorative justice mechanisms and, on the other, adopting a restorative perspective in their design, by adapting some of those mechanisms to the specific transitional framework. 71 For instance, certain transitional tools, such as truth commissions, may be classified as forms of transitional justice with a restorative perspective, since they formally acknowledge that a wrong has been committed, especially if they encompass the issuing and receiving of apologies. 72 The same definition may be applied to official apologies by state actors, official ceremonies of recognition of victims or compensation schemes provided by the state for past wrongdoing.

Of course, not even restorative justice, or transitional justice with a restorative perspective, is sufficient to fulfil all of the aims of a transitional process, since it focuses on relationships and the interpersonal plane. And even if some of the tools implemented under this perspective also have potential community benefits, they cannot provide an answer to the (political, economic, or social) macro aspects of the conflict, which are related to peace building. For this reason, we must bear in mind that this is only one perspective to take into account within the set of tools that must make up the complex mechanism of transitional justice. 73 To achieve these further aims, transitional processes require the use of other tools, ones that go beyond the concept of justice—both criminal and restorative—by applying the so-called integral or holistic approach to transitional processes. 74

This broader view has also been labelled ‘transformative justice’, a concept which would comprise a range of policies and approaches that can impact on the social, political and economic status of a large range of stakeholders, therefore going beyond the traditional goals of truth and justice as accountability. 75

The aims that criminal law fulfils (or should fulfil) in relation to society undergo profound changes in the contexts of transition when faced with the legacy of experiences of mass violence. The phenomenology of the crimes themselves calls into question some of the purposes traditionally attributed to criminal law and to punishment: in particular, special deterrence, general deterrence and retribution or desert. In addition, there is a marked tendency to entrust to criminal law the achieving of new aims that are central to all transitional processes, such as the search for truth, the building of peace, and the founding of the new social and legal order arising as a result of the transition.

A. The Rethinking of the Traditional Purposes of Criminal Law and Punishment

The contexts of transition require at least a partial rethinking of the traditional purposes of criminal law and of punishment. 76 Aside from the fact that the debate on the identification of the aim or aims of criminal law and of punishment remain open and are probably inexhaustible, 77 we can say that both the inherent traits of these crimes and the peculiarities of the transitional period raise doubts and new challenges in relation to those aims. 78

(i) Retribution and deterrence when faced with a particular criminal phenomenology

The massive nature of the violence perpetrated gives rise to the impossibility in practice of trying all of the persons who in some way participated in committing the crimes. This circumstance frequently combines with the institutional weakness during the transitional period, which also affects the courts. These factors normally impose a selective criminal prosecution, which should at least be based on rational criteria such as the gravity or type of crimes, the identification of those who bear the greatest responsibility 79 or the representative nature of the cases. 80 Such selectivity, while being necessary and inevitable when facing experiences of collective violence, challenges the ethical concept of retribution, 81 ie the idea of retribution understood as the offenders ‘getting their just deserts’ for what they have done, because it applies punishment unequally and incompletely. 82 Similarly, a selective criminal prosecution also adversely affects the deterrence function, inasmuch as it allows a proportion of the criminals to escape sentencing and punishment. 83

Another common feature of the crimes faced by transitional processes is their commission by organised groups or organisational structures governed by a strict hierarchy and, usually, by an ideology (political, religious or rooted in other beliefs) that is very strong and exclusive. Although these circumstances do not serve to dilute individual criminal responsibility within a more diffuse collective responsibility, it is worth asking whether, once the apparatus or group concerned has been dismantled, the risk that the criminals will commit new crimes really exists. 84 These considerations raise doubts about the special deterrence that punishment may pursue in these contexts.

It can be argued that transitional processes do not always involve the disappearance of the organisations involved in committing the abuses, but, rather, their conversion into legitimate groups and their participation in the new regime. Even in these cases, the disappearance of the context that favoured the structural violence, such as the cessation of armed conflict, the reduction in the power they held previously or the loss of support of (part of) the population, makes it really unlikely that these individuals would once again commit the same crimes.

Otherwise, where these circumstances have not disappeared and the criminals continue to perceive that they are supported by the power structures to which they belong, criminal punishment actually does little to contribute to its elimination. 85 What are really needed in these contexts are wider measures of institutional reform. 86

Similarly, both deterrence and the rehabilitation function of punishment appear to have less relevance when dealing with crimes that are not the result of the deviant conduct of one or a few people, but are the consequence of the activity of perverted institutions 87 or of an extraordinary context generated by an inter-community conflict. The systematic nature of these crimes requires a response combining the penalties directed towards individuals with wider structural measures that eliminate, or at least reduce, the ground on which the ideology of the criminal system, or the origins of the conflict, is founded.

(ii) Positive general prevention and communication

The purpose of criminal law which has the greater chance of retaining its full validity in transitional contexts is the protection of legal interest through the positive general, or integrating, prevention 88 or, according to concepts pertaining more closely to Anglo-Saxon doctrine, through the expressive function of punishment. 89

From this standpoint, punishment serves to express the community’s reprobation of certain conducts, thus confirming the norm and the social values protected by it and restoring confidence in them. 90 This confirmation of the validity of the norm and the reminding of the value of the protected interests is intended to prevent future attacks against those norms and interests. 91

This communication is delivered at two different stages. At a first stage, the mere existence of the law, by prohibiting some conducts and by threatening them with punishment, performs the function of informing about the prohibited behaviour and expressing the value of the protected legal interest. At a second stage, the same function is developed by the application of criminal law. Here, we can distinguish three successive phases: first, the central core of the message of reprobation and stigmatisation is expressed through the ritual of the criminal trial, when the defendant is seated in the dock and faces the prosecution and the judge, as well as through the judgment officially declaring his or her responsibility. Naturally, the validity and efficacy of the reproach expressed goes hand in hand with the legitimacy of the institutions (national or international) sending this message. 92

The second phase in the construction of this message lies in sentencing. We believe that the role of punishment is more than an element added to the message of reproach already contained in the fact of the criminal process and in the conviction. 93 If this were the case, it would delegitimise the function and value of the punishment; it would lead us to propose its elimination not only in the extraordinary contexts of transition, but also in general. On the contrary, it appears to us that punishment meets an expressive function of its own that consists in reflecting the gravity of the offence and the degree of blameworthiness: the more serious the act and the greater the degree of blameworthiness of the convicted person, the greater the punishment required to express the (negative) evaluation merited by the crime.

The third phase in which this function is developed is the enforcement of the punishment. When the offender serves his or her sentence, the seriousness and importance of the message of reproach and the gravity and blameworthiness of the act are once again confirmed, giving it a concrete and thus tangible content.

An acknowledgement of the three phases in which the communicative function is fulfilled does not, however, mean that the complete elimination of one of these impinges on the fulfilling of this purpose. This circumstance may be seen in transitional contexts, where specific priorities and demands arise, such as reaching a peace agreement or maintaining it; involving the criminals in investigating what has occurred and in reparations to benefit the victims; or avoiding a resurgence of the violence. The combination of these objectives with the demand for criminal prosecution and sanctioning for past crimes generates an intrinsic tension inherent to all transition scenarios. They must achieve a balance between short-term solutions and long-term aspirations, which can be partially managed only by considering the objectives and transitional mechanisms as dynamic 94 and are therefore subject to a necessary balancing exercise. 95

The concurrence of these objectives may therefore suggest a flexible approach to criminal prosecution in one or all of the three phases mentioned. Thus, the priorities of the transitional process may be taken into account as constituting the factors affecting the enforcement of the punishment through extinguishing it with a pardon, suspending it, limiting it or replacing it with other kinds of measures. This was the option chosen, for example, in Northern Ireland, with the early releases provided under the Good Friday Agreement of 10 April 1998. 96

The same considerations could also affect the second phase in which the expressive function manifests itself, ie sentencing. They may lead to opting for a punishment less than proportionate to the gravity of the offence and its blameworthiness. 97 The alternative punishments provided by the Colombian Peace and Justice Law (Law 975/2005, of 25 July 2005) fall within this second category. 98 Furthermore, criteria based on special deterrence and rehabilitation may also suggest changes in the punishment to be imposed or in its enforcement. The participation of the accused in particular truth-finding and/or reparation mechanisms would show their potential for re-socialisation and a corresponding reduced need for punishment.

Finally, we believe that in transitional contexts, solutions that involve (at least partial) waivers of the criminal trial, in the form of amnesties or equivalent measures, rooted equally in political and criminal law considerations, should not be completely ruled out. 99 Our position therefore runs counter to the reiterated doctrine of the IACtHR, which, since the seminal Barrios Altos case, has been affirming the prohibition not only of self-amnesties, but also of all kinds of amnesty (even those passed by democratic parliaments and confirmed by referendum), pardons and all measures preventing criminal prosecution. 100 The more nuanced position we defend seems to be closer to the ECtHR traditional view, 101 although there are good reasons to think that in the future this body might adopt a position closer to its Inter-American counterpart. 102

If we maintain the admissibility of these waivers of criminal prosecution, as we suggest, the communicative function to which the criminal trial is directed could be replaced, as an exception and due precisely to the exceptional nature of the transitional context, by other mechanisms transmitting the same message of stigma and reaffirmation of the legal values violated. The ritual of the criminal trial has historically been chosen as the best tool with which to comply with the above-mentioned function; however, there is no reason why other mechanisms (eg a public declaration of guilt before a truth commission, such as the South African Truth and Reconciliation Commission 103 ) could not transmit the message satisfactorily in these exceptional circumstances, provided that certain requisites of legitimacy and fairness are satisfied. 104

It is essentially a case of acknowledging that the characteristics and requirements of a specific community could require a review of the traditional concepts and definitions (at least within Western legal systems) of punishment and the ascertaining of guilt, where these are not in line either with local realities or with specific circumstances of a particular historical juncture, according to the idea of ‘cosmopolitan pluralism’ defended by Drumbl. 105

B. The New Aims of Criminal Law in Transition Processes

Transitional experiences have led to the rise of a tendency to attribute to criminal law, as well as the classical aims we have discussed, other added objectives that are strictly related to the unusual context in which the transition develops.

(i) Criminal law as a truth-finding mechanism

First, there is a widespread imperative that the criminal trial is central to ascertaining the truth about the violent experience. This truth is deemed to be not only one of the indispensable elements for overcoming a conflictive past and giving non-repetition guarantees, but also a true right of victims. 106 In this regard, the fact finding contained in a judgment, which needs to be proven beyond all reasonable doubt, requires rigorous documentation and reconstruction, 107 thereby providing a high-standard declaration of what occurred. Furthermore, the criminal trial offers a public forum in which the truth determined in this way is officially declared by bodies (the courts) whose legitimacy is at least in principle consolidated. 108

However, we know all too well the significant differences between the material or historical truth, which seeks the widest possible reconstruction, and procedural truth, which is structurally limited. 109 The latter, on the one hand, adopts a more restricted focus, centring on the conduct of the accused and the harmful effects thereof, leaving aside the macro dimension within which this kind of crime occurs. 110 On the other hand, procedural truth has to submit to the limits imposed by the fundamental guarantees of defence. The presumption of innocence, the in dubio pro reo principle, the right not to incriminate oneself, the burden of proof falling on the prosecution, the so-called cross examination, the res judicata , the exclusionary rules of evidence: all of these guarantees act simultaneously as a limitation on ascertaining the truth. 111 The consolidation of these rules has led to a general rethinking of the truth-finding goal of the criminal trial even in inquisitorial procedural systems, where the outcome of ascertaining the truth about the facts has traditionally been considered a priority, as opposed to the focus that the adversarial systems put on the rules applied to the confrontation between the parties and their competing truths. 112 Yet, the progressive blurring of the differences between these two pure models (in favour of the creation of various kinds of hybrid procedural systems), together with the consolidation of the fair trial standards as human rights recognised by international law, has consolidated the almost universal acceptance of procedural limits to the truth-finding role of criminal trials. 113

Therefore, an exhaustive investigation of a collective violence experience can undoubtedly benefit from the contributions contained in court investigations, yet it cannot be limited only to these. Establishing the truth must be complemented by other mechanisms, exempt from the strict limits applied within the criminal jurisdiction, thus offering the broadest, deepest and most multifaceted reconstruction of the events that have occurred. 114

(ii) Criminal law as a mechanism for reconciliation

Criminal prosecution is often seen as being indispensable to fulfilling the aim of social reconciliation, one of the priorities of transitional processes.

However, it appears to us that the criminal trial, the structure of which reproduces a conflict as a formalised ritual on a specific, temporal and procedural level, 115 does not favour the meeting between victim and offender. Rather, it brings into focus the conflict of perceptions between them. Therefore, there is some doubt as to its appropriacy as a tool for reconciliation. Nothing may be predicted in relation to the criminal trial except its capacity to promote a—purely formal—acknowledgement of the criminals and the victims as members of the political community. This mutual acknowledgement may in turn contribute to reconstructing a minimum level of social coexistence. 116

Nonetheless, attaining a deeper reconciliation between victims and offenders will require the use of restorative justice mechanisms that favour an inclusive dialogue between the parties and the restoration of interpersonal relations. 117 In addition, from the perspective of the whole society, reconciliation will need, instead of criminal prosecutions, a set of political, economic and educational measures that may foster the elimination of the division between opposing social groups.

On the contrary, a criminal prosecution rooted in a purely retributionist and maximalist standpoint—a perspective, it appears, defended by the IACtHR—involves the risk of becoming a potent factor of exclusion of criminals. The latter, far from enjoying the desired acknowledgement as members of the community, would be the ‘other’, the enemy, and would be subject to permanent ostracism. Such an outcome is entirely contrary to the objectives of social reconciliation. 118

(iii) Criminal law as a peace-building and foundational mechanism

A third idea that has been widely disseminated recently, under the maxim ‘No peace without justice’, 119 is that criminal law in transitional contexts plays a peace-building role. This idea assumes as axiomatic the notion that the exemplary punishment of crimes committed by one or all of the parties to a conflict contributes to the construction of peace. 120

Similarly, some authors have stressed the foundational function fulfilled by criminal law in transitional contexts in terms of the creation of a new legal order. 121 By expressing firm condemnation of past violence, the criminal trial restores social values and rules violated by such violence, marks a clear break between the previous and the current regime, promotes confidence of citizens in the new order and restores the offenders’ full participation in society. 122 In this way, criminal law fulfils a clear transformative and foundational function, particularly oriented towards the future and to the (re-)establishment of the democratic rule of law. 123

In reality, both theories merely constitute an expression of positive general prevention theories, described above, 124 in the specific contexts of the transition. The contribution offered by criminal law to the construction of the new legal and social order and a stable and lasting peace is no more than an indirect effect of the functions of stigmatisation, communication and reaffirmation of the violated values normally fulfilled by criminal prosecution. For this reason, it seems to us unnecessary to isolate these objectives as being the aims in themselves of criminal law. Moreover, as Teitel herself acknowledges, criminal justice fulfils this foundational task even when applied in a limited way, when responsibility for past wrongdoing is not fully ascribed and/or when sentences are not fully served. 125

Additionally, criminal prosecution is in itself manifestly insufficient to act as the basis of a new social and legal order and a peaceful coexistence. As we recalled referring to social reconciliation, here again other measures are needed, such as restorative justice mechanisms, education plans, institutional reforms, and training and reconstruction programmes. 126

Finally, in some specific circumstances, holding criminal trials could even make the fulfilment of the aims mentioned above more difficult. 127 The consolidation of new institutions could be placed in jeopardy by prosecuting those responsible for past crimes where these persons still hold a degree of power within the new regime. 128 The priority aim of putting an end to an armed conflict could, similarly, require certain concessions, such as the imposition of a reduced punishment or of alternative sanctions, 129 to be made: moves that encourage those responsible for the crimes to take part in the disarmament and in the peace process. 130

The application of criteria of selection and prioritisation in criminal prosecution would similarly allow obstacles to the viability of criminal prosecution, raised by the magnitude of crimes committed, to be overcome. What is more, as has already been stated, other out-of-court measures exist that could perform this foundational and constructive role equally satisfactorily: the South African experience clearly shows how the conditional amnesty applied there has played a truly constituent function in the transitional process experienced by that country. 131

Therefore, we do not propose refraining completely from exercising criminal prosecution, but we suggest that, in these extraordinary contexts, a flexible approach to the prosecution and/or punishment of criminals should be permitted when it is considered that trials and sanctions constitute an obstacle rather than an aid to achieving peace. A more appropriate maxim for transitional processes could therefore be ‘as much [criminal] justice as peace allows’. 132

In recent years, we have seen the rise of the idea that the full punishment of criminals has to be an essential component of transitional justice. Punishment has come to be understood as a mechanism for giving satisfaction to the victim, or even as a victim’s right, as well as being the preferred means of obtaining peace and of constructing the new social order.

This study, on the contrary, shows that such an interpretation overburdens criminal law with aims that it is unable to fulfil or that are more satisfactorily achieved through the application of other mechanisms.

With regard to the possible beneficial effects of punishment on victims, the analysis of various theories of punishment that could serve as a foundation for this doctrine have shown that punishment, in the form of the imposition of a subsequent evil, may only be rationally explained through its preventive effect. For this reason, it is argued that the diverse theories that attempt to defend the need for the imposition of an evil on the offender, based on its possible beneficial effects or on the cessation of harm that this would have for the victim, are merely an attempt to rationalise the victim’s desire for reciprocity (or vengeance, using the term with no pejorative intent). 133

In our opinion, one cannot dismiss the idea that punishment may indeed have beneficial effects for the victim, such as by demonstrating publicly the injustice suffered and by offering a certain guarantee of non-repetition. This would satisfy the victim’s need for justice, restore his or her confidence in the legal system and society, and favour his or her non-desocialisation. It must nevertheless not be forgotten that these feelings of justice are grounded on the reciprocity mechanism that, in the final instance, serves to uphold the conservation of both the group and the individual as social entities. The feeling of justice is the result of the standardisation of an evolutionary positive reaction (the punishment being a preventive tool), and that concept of justice is also a limit to the quantum of punishment (by imposing proportionality in sanctions). Therefore, punishment must never be extrapolated and invoked as an end in itself, nor should the ‘victims’ right’ to justice eclipse or replace the rationale of criminal law to protect legal values or interests by means of the preventive function of punishment.

The state, therefore, through its monopoly on violence, can control the victims’ understandable and legitimate instincts and desires for reciprocity, and place certain rational limits on these. We must not forget that beneficial treatments in criminal law, making the application of more benevolent sanctions conditional on demobilisation, confession, an acknowledgement of responsibility and the making of reparations, will undoubtedly involve renouncing the ‘just’ punishment, that is, a punishment proportional to the gravity of the offence and the degree of culpability of the perpetrator. However, it will comply with other aims that are also of interest to the victims and to society as a whole, such as favouring the promptness of the punishment (which results in achieving the aim of justice) and contributing to truth finding, reparation and non-repetition.

The state may therefore try to offer satisfaction to victims’ claims through other mechanisms (such as truth-finding mechanisms, official apologies, public events acknowledging the victims and their suffering, memorials, material and symbolic reparations), measuring them against other aims and needs, in the search for the best possible solution to fulfil the ultimate aim of maintaining social order, that is, the set of protected legal interests in a society.

Moreover, we have confirmed that collective violence phenomena (characterised by a massive scale and, in most cases, the systematic nature of the crimes) and transitional contexts, with their exceptional priorities and features, require the rethinking of the classical purposes of criminal law and a wider reflexion on the supposed new aims with which many authors attempt to endow it. In these scenarios, the aim of positive general and integrating prevention is of central importance, since criminal prosecution—in its three phases, the trial, the sentencing and the enforcement of the sentence—serves to express the community’s rejection of specific conducts, thereby confirming the legal values protected by criminal law, restoring confidence in the norms and consequently preventing future crimes. Through these effects, criminal law also contributes, indirectly, to the foundation and consolidation of the new legal order and the construction of a stable peace.

On the one hand, the insufficiency of criminal proceedings per se must be recognised in fulfilling such objectives, which require further complementary reform, investigation, reparations and education measures, within the framework of an idea of ‘transformative justice’ that is much broader than criminal justice, 134 in order for this future project to take shape in all its complexity.

On the other hand, the circumstances pertaining to the transitional process may produce the paradoxical effect of making criminal law an obstacle, and not an instrument, for the maintenance of social order and the protection of legal interests. This occurs when criminal prosecution and punishment, through using a purely retributive and maximalist approach, triggers new episodes of violence or prevents putting an end to ongoing violence, distances criminals from truth and reparation initiatives, and weakens the new institutions.

As a consequence, we wish to stress the importance of the maintenance of criminal law as a ius puniendi and as a tool of the state—not the only tool available, nor an absolute obligation—to achieve the ultimate aim of protecting legal interests and thus ensuring peaceful coexistence among the individuals making up a community. 135 This allows the use of criminal law only inasmuch as it is useful and necessary. When other mechanisms exist that provide this protection more satisfactorily, or when criminal law runs the risk of becoming, if applied, a danger to these legal interests, inasmuch as it ends up destabilising the legal system that is entrusted with this protection, then criminal prosecution and punishment have to take a step back, and be adjusted and restricted according to the specific circumstances of each case.

This article is part of the Research Project ‘La influencia de las víctimas en el tratamiento jurídico de la violencia colectiva’ (DER2013-43760-R), funded by the Spanish Ministry of Economy and Competitiveness.

We understand transitional justice as the set of legal and political measures that a society may apply in order to overcome a situation of (generally inter-group) conflict where collective violence has been experienced. Whereas the concept originally developed as referring to the transitional processes after a dictatorship (such as in Latin-American countries in the 1980s, or in Post-Communist Eastern countries) or to post-conflict contexts (see Ruti Teitel, Transitional Justice (OUP 2000)), its recent evolution has broadened its scope, by expanding it to situations of ongoing armed conflicts like the Colombian experience (see Rodrigo Uprimny Yepes et al, ¿Justicia transicional sin transición? Verdad, justicia y reparación para Colombia (DeJusticia 2006) 14) and even to experiences of collective violence within democratic regimes (Amaia Alvarez Berastegi, ‘Transitional Justice in Settled Democracies: Northern Ireland and the Basque Country in Comparative Perspective’ (2017) 10 Critical Studies on Terrorism 542), all situations where a proper ‘transition’ lacks: see Joanna R Quinn, ‘Whither the “Transition” of Transitional Justice?’ (2014–15) 8 Interdisciplinary Journal of Human Rights Law 63. Therefore, we maintain a broad concept of transitional justice with regard to both its scope and its goals. In contrast to other definitions that focus exclusively on transitional justice being instrumental to repair victims of serious human rights violations (see Naomi Roth-Arriaza, ‘The New Landscape of Transitional Justice’ in Naomi Roth-Arriaza and Javier Mariezcurrena (eds), Transitional Justice in the Twenty-First Century. Beyond Truth Versus Justice (CUP 2006) 1; or the definition offered by the International Centre for Transitional Justice: ‘Transitional justice refers to the ways countries emerging from periods of conflict and repression address large-scale or systematic human rights violations so numerous and so serious that the normal justice system will not be able to provide an adequate response’ <www.ictj.org/about/transitional-justice> accessed 1 February 2019), we share the view that it furthers a wider set of purposes, namely, overcoming a conflictive past (or present), reconciling the society, and consolidating peace, democracy and the rule of law. In a similar vein, see Marc Engelhart, ‘Objetivos de la Justicia de transición’ in Pablo Galáin Palermo (ed), ¿Justicia de Transición? (Tirant lo Blanch 2016) 35ff; Ezequiel Malarino, ‘Transición, derecho penal y amnistía. Reflexiones sobre la utilización del derecho penal en procesos de transición’ (2013) 9 Revista de Derecho penal y Criminología 205; Bronwyn A Leebaw, ‘The Irreconciliable Goals of Transitional Justice’ (2008) 30 Hum Rts Q 95, 98ff; Kimberly Theidon, ‘Transitional Subjects: The Disarmament, Demobilization and Reintegration of Former Combatants in Colombia’ (2007) 1 International Journal of Transitional Justice 66. For a deeper analysis of the evolution and the various experiences of transitional justice (as well as on the differences among their respective challenges, priorities and outcomes), see, among others, Ruti Teitel, ‘Transitional Justice Genealogy’ (2003) 16 Harv Hum Rts J 69; Roth-Arriaza (ibid) 1ff.

Cornelius Prittwitz, ‘The Resurrection of the Victim in Penal Theory’ (1999) 3 Buffalo Criminal Law Review 109; Pedro Cerruti, ‘Procesos emocionales y respuestas punitivas: acerca del activismo penal de las víctimas del delito’ (2009) 20 Revista Electrónica de Psicología Política 15; Ana Isabel Cerezo Domínguez, El protagonismo de las víctimas en la elaboración de las leyes penales (Tirant lo Blanch 2010) 37ff; Luca Lupária and Raphaële Parizot, ‘Which Good Practices in the Field of Victim Protection?’ in Luca Luparia (ed), Victims and Criminal Justice. European Standards and National Good Practices (Wolters Kluwer 2015) 333.

Karen Engle, Zinaida Miller and Dennis Davis, Anti-impunity and the Human Rights Agenda (CUP 2016); M Cherif Bassiouni, ‘Victims’ Rights’ in M Cherif Bassiouni (ed), The Pursuit of International Criminal Justice: A World Study on Conflicts, Victimization, and Post-conflict Justice , vol I (Intersentia 2010) 599ff; Kai Ambos et al (eds), Sistema interamericano de protección de los derechos humanos y derecho penal internacional , vol I (Konrad-Adenauer Stiftung (KAS) 2010) and vol II (KAS 2011); Javier Chinchón Álvarez, Derecho internacional y transiciones a la democracia y la paz: Hacia un modelo para el castigo de los crímenes pasados a través de la experiencia iberoamericana (Parthenos 2007) 235ff, 434ff.

Ezequiel Malarino, ‘Judicial Activism, Punitivism and Supranationalisation: Illiberal and Antidemocratic Tendencies’ (2012) 12 International Criminal Law Review 665. Some scholars have criticised this interpretation as being weakly and questionably grounded in human rights treaties and lacking deeper questioning into the rationale and purposes of criminal law. See Jesús María Silva Sánchez, ‘Una crítica a las doctrinas penales de la “lucha contra la impunidad” y del “derecho de la víctima al castigo del autor”’ (2009) 11 Revista de Estudios de la Justicia 35; Daniel R Pastor, ‘La ideología penal de ciertos pronunciamientos de los órganos del sistema interamericano de derechos humanos: ¿garantías para el imputado, para la víctima o para el aparato represivo del Estado?’ in Ambos et al, Sistema interamericano vol II (n 3) 481. The European Court of Human Rights (ECtHR) has traditionally held a more cautious view, although recently it seems to come closer to the position of its American counterpart. See Anja Seibert-Fohr, Prosecuting Serious Human Rights Violations (OUP 2009) 118ff; Kai Ambos and Laura Böhm, ‘Tribunal Europeo de Derechos Humanos y Corte Interamericana de Derechos Humanos ¿Tribunal tímido y tribunal audaz?’ in Ambos et al, Sistema interamericano vol II (n 3) 55ff; Francesco Viganó, ‘Sobre las obligaciones de tutela penal de los derechos fundamentales en la jurisprudencia del TEDH’ in Santiago Mir Puig and Mirentxu Corcoy Bidasolo (eds), Garantías constitucionales y Derecho penal europeo (Marcial Pons 2012) 320ff; Carmen Tomás-Valiente Lanuza, ‘Deberes positivos del Estado y Derecho penal en la jurisprudencia del TEDH’ (2016) 3 InDret 6ff.

Silva Sánchez (n 4) 54; Alicia Gil Gil and Elena Maculan, ‘Responsabilidad de proteger, derecho penal internacional y prevención y resolución de conflictos’ in Miguel Requena (ed.) La seguridad: un concepto amplio y dinámico (IUGM 2013) 35.

By talking about the role of criminal law and of the goals of punishment, we do not underestimate the differences between the two concepts, even though some scholars in continental literature question this differentiation as a consequence of the rise of the expressive, non-consequentialist theories of ‘general positive prevention’: Günther Jakobs, Strafrecht, Allgemeiner Teil. Die Grundlagen und die Zurechnungslehre (2nd edn, De Gruyter 1998) 1/1ff, 2/22ff; Winfried Hassemer, Hauptprobleme der Generalprävention (Metzner 1979) 40ff. An analysis of this topic goes beyond the scope of this article; for a wider view on this discussion, see Rafael Alcácer Guirao, Los fines del Derecho penal (Universidad Externado de Colombia 2001) 19ff. What we want to point out here is simply that to assign a new nature and new purposes to punishment will also change the nature and goals of criminal law, and, conversely, pursuing new purposes through criminal law entails assigning new aims to punishment.

On non-exculpatory defences from the Anglo-Saxon doctrine, see Paul H Robinson and Michael Cahill, Criminal Law (2nd edn, Wolters Kluwer 2012) 405–35; Paul H Robinson et al, ‘Extralegal Punishment Factors: A Study of Forgiveness, Hardship, Good Deeds, Apology, Remorse, and Other Such Discretionary Factors in Assessing Criminal Punishment’ (2012) 65 Vand L Rev 737. In the continental legal tradition, these circumstances fall within a separated element that forms part of the analytical structure of the criminal offence, named ‘punishability’: see eg Alicia Gil Gil et al, Derecho penal. Parte general (2nd edn, Dykinson 2015) 117ff.

eg testimonial and bargained immunity, or sentence mitigation for cooperation with the criminal justice system.

José Núñez Fernández, ‘Algunas reflexiones sobre la punibilidad en el tratamiento jurídico penal del terrorismo’ in Alicia Gil Gil and Elena Maculan (eds), La influencia de las víctimas en el tratamiento jurídico de la violencia colectiva (Dykinson 2017) 243ff.

Silva Sánchez (n 4) 169; Malarino (n 4); Pastor (n 4); Jean Pierre Matus Acuña, ‘Víctima, idealismo y neopunitivismo en el Derecho Penal internacional’ (2013) 81 Revista Nuevo Foro Penal 139.

For a detailed study, see Alicia Gil Gil and Elena Maculan (eds), El papel de las víctimas en el tratamiento jurídico de la violencia colectiva (Dykinson 2017).

Leebaw (n 1) 95.

Immanuel Kant, Die Metaphysik der Sitten (Modes und Baumann 1838); Cerezo Domínguez (n 2) 81.

Julio González Zapata, ‘La justicia transicional o la relegitimación del derecho penal’ (2007) 31 Estudios Políticos 23, 27; Carlos S Nino, Radical Evil on Trial (Yale UP 1996) 111–12.

Prittwitz (n 2) 118.

Bernardo Feijoo Sánchez, La legitimidad de la pena estatal (Iustel 2014) 24ff.

Silva Sánchez (n 4) 56.

Ulrich Klug, Skeptische Rechtsphilosophie und humanes Strafrecht , vol 2 (Springer 1981) 149ff; Bernd Schünemann, ‘Aporien der Straftheorie in Philosophie und Literatur—Gedanken zu Immanuel Kant und Heinrich von Kleist’ in Cornelius Prittwitz et al (eds), Festschrift für Klaus Lüderssen (Nomos 2002) 327.

Feijoo Sánchez (n 16) 29ff; Klug (n 18); Schünemann (n 18).

Adil A Haque, ‘Group Violence and Group Vengeance: Toward a Retributivist Theory of International Criminal Law’ (2005) 9 Buffalo Criminal Law Review 273.

Thomas Weigend, ‘„Die Strafe für das Opfer“?—Zur Renaissance des Genugtuungsgedankens im Straf- und Strafverfahrensrech?—Zur Renaissance des Genugtuungsgedankens im Straf- und Strafverfahrensrech’ in Zeitschrift für rechtswissenschaftliche Forschung , vol 1 (Nomos 2010) 39, 45.

On the defenders of this idea within the common law tradition, see Whitley Kaufman, Honor and Revenge: A Theory of Punishment (Springer 2013) 50ff.

Klaus Günther, ‘Die symbolisch-expressive Bedeutung der Strafe’ in Cornelius Prittwitz et al (eds.) Festschrift für Klaus Lüderssen (Nomos 2002) 205, 218; Jan P Reemtsma, Das Recht des Opfers auf die Bestrafung des Täters –als Problem (CH Beck 1999) 26.

Wilfried Holz, Justizgewähranspruch des Verbrechensopfers (Duncker & Humblot 2007) 134ff.

Günther (n 23) 208ff.

Tatjana Hörnle, ‘Die Rolle des Opfers in der Straftheorie und im materiellen Strafrecht’ (2016) 19 Juristenzeitung 950, 955.

Hörnle (n 26).

Reemtsma (n 23) 27.

Weigend (n 21) 48ff.

Darío Páez Rovira et al, ‘Afrontamiento y violencia colectiva’ in Darío Páez Rovira et al (eds), Superando la violencia colectiva, construyendo cultura de paz (Fundamentos 2011) 279, 293. On the inability of punishment to ‘heal’ the victim in many cases, see also, with subsequent bibliography, Hörnle (n 26) 955.

Prittwitz (n 2) 120–1; Michael Wenzel and Tyler Okimoto, ‘How Acts of Forgiveness Restore a Sense of Justice: Addressing Status/Power and Value Concerns Raised by Transgressions’ (2010) 40 European Journal of Social Psychology 401; M Ángeles Maitane Arnoso et al, ‘Violencia colectiva y creencias básicas sobre el mundo, los otros y el yo: impacto y reconstrucción’ in Páez Rovira et al (n 30) 247.

Hörnle (n 26) 956 does not agree with this, arguing that the punishment envisaged in any criminal code for each offence is already sufficient to comply with the function of expressing solidarity. From this we can deduce that, in her view, criminal punishment is not aimed to satisfying the needs of each single victim.

Alicia Gil Gil, ‘Sobre la satisfacción de la víctima como fin de la pena’ (2016) 4 InDret 1ff.

Holz (n 24) 200; Hörnle (n 26) 956.

Kaufman (n 22) 50ff.

Kaufman (n 22) 51.

This right is refuted by Holz (n 24) 129, who exclusively defends a right of access to the criminal proceeding, finding support mainly on the basis of the case law of the ECtHR. Weigend (n 21) 46 recalls that the German Supreme Court has clearly stated that there is no right of the victim to the criminal prosecution of the offender.

Weigend (n 21) 57.

Reemtsma (n 23) 26.

George P Fletcher, ‘The Place of Victims in the Theory of Retribution’ (1999) 3 Buffalo Criminal Law Review 51.

Jeffrie Murph and Jean Hampton, Forgiveness and Mercy (CUP 1988) 132; for further references, see Heather J Gert et al, ‘Hampton on the Expressive Power of Punishment’ (2004) 35 Journal of Social Philosophy 79.

Kaufman (n 22) 117ff.

See also below, section 3A(ii).

Fletcher (n 41) 58.

Reemtsma (n 23) 27. On all these theories in more depth, see Gil Gil (n 34).

Kant (n 13) 127ff.

Fletcher (n 41) 60ff.

Silva Sánchez (n 4) 53. Zedner also warns against the possible conflict between the claim for compensation, under a reparative approach, and penalties belonging to the classic criminal law paradigm, such as custody: see Lucia Zedner, ‘Reparation and Retribution: Are They Reconciliable’ (1994) 57 MLR 228, 247.

In similar terms, see Jan P Reemtsma, Im Keller (6th edn, Rowohlt 2012) 216; against, Prittwitz (n 2) 129.

Prittwitz (n 2) 124–5.

As indicated by Prittwitz (n 2) 128, it is preferable simply to talk of the beneficial effects that punishment may have on the victim and not of ‘compensation’, ‘aid for survival’, ‘cessation of a harm’, etc.

For a critical comment on this argument, see Gil Gil (n 34).

According to Santiago Mir Puig, Derecho penal. Parte General (10th edn, Tirant lo blanch 2015) 67ff, the secondary rule is the rule that envisages a sanction of the violation of a primary rule, whereas the primary rule is that which expresses a mandate or prohibition on a certain action. For instance, if we recall the old Barbaricino Code, being the primary rule ‘do not kill’, the secondary rule was ‘to punish those who kill with the death penalty’. Therefore, infringement of the primary rule brings with it, according to this example, the death penalty, whereas infringement of the secondary rule brings with it the punishment of dishonour. This is clearly confirmed by art 1 of the Barbaricino Code, which imposed on every citizen the duty of vengeance. Accordingly, anyone who renounced vengeance was not considered a man of honour. See Lorenzo Passerini Glazel, ‘La semántica nomotrofica della vendetta’ in Giuseppe Lorini and Michelina Masia (eds), Antropologia della vendetta (ESI 2015) 169, 175.

Gert et al (n 42) 84.

Raffaele Caterina, ‘La reciprocià: alle origini della vendetta e dello scambio’ in Giuseppe Lorini and Michelina Masia (eds), Antropologia della vendetta (ESI 2015) 205, 213.

ibid 212; Filippo Aureli et al, ‘Kin-oriented Redirection among Japanese Macaques: An Expression of a Revenge System?’ (1992) 44 Animal Behaviour 283.

See Émile Durkheim, De la division du travail social (Les Presses universitaires de France 2008). Nowadays, we find various studies (from anthropology, psychology and the philosophy of law) that support the idea of a preventive ground of both punishment (even when the latter is understood as retribution) and vengeance itself. These studies have found that both punishment and vengeance are based on the calculated reciprocity mechanism. See eg Napoleon Chagnon, ‘Life Histories, Blood Revenge, and Warfare in a Tribal Population’ (1988) 4843 Science 985; Dale T Miller, ‘Disrespect and the Experience of Injustice’ (2001) 52 Annual Review of Psychology 527, 541; Mario Gollwitzer and Markus Denzler, ‘What Makes Revenge Sweet: Seeing the Offender Suffer or Delivering a Message?’ (2009) 45 Journal of Experimental Social Psychology 840, 843; Olimpia G Loddo, ‘Reciprocità aspettative e aspettative di reciprocità nella vendetta’ in Giuseppe Lorini and Michelina Masia (eds), Antropologia della vendetta (ESI 2015) 217; Daniel Rodríguez Horcajo, Comportamiento humano, y pena estatal: disuasión, cooperación y equidad (Marcial Pons 2016) 308ff; Glazel(n 55) 171; Gil Gil (n 34) 31.

In a similar sense, Rodríguez Horcajo (n 59) 308ff highlights how the feeling of justice is the result of the standardisation of an evolutionary positive reaction. In his opinion, what remains of retribution in the rationale of punishment would be just a willingness towards a behaviour (the punishment) which in turn pursues a favourable goal.

Jesús María Silva Sánchez, Malum passionis. Mitigar el dolor del Derecho penal (Atelier 2018) 195ff also points out the need for criminal law to be subordinated to other interests that are alien to its scope. In his view, this explains why it is legitimate to reduce the penalty when the offender performs certain post delicto conducts, such as confession: ibid 122ff.

John Braithwaite, Restorative Justice & Responsive Regulation (OUP 2002) 16ff; Josep Tamarit Sumalla, ‘Comisiones de la verdad y justicia penal en contextos de transición’ (2010) 1 InDret 21; Kerry Clamp (ed), Restorative Justice in Transitional Settings (Routledge, 2016); Wenzel and Okimoto (n 31) 413ff. However, the scope and definition of restorative justice are still heavily contested. See eg Andreas von Hirsch, Julian V Roberts and Anthony E Bottoms (eds), Restorative Justice and Criminal Justice: Competing or Reconcilable Paradigms (Hart Publishing 2003).

Gerry Johnstone and Daniel Van Ness (eds), Handbook of Restorative Justice (Willan 2007) 5ff; Marian Liebmann, Restorative Justice: How It Works (Jessica Kingsley 2007) 32; Howard Zehr, The Little Book of Restorative Justice: Revised and Updated (Good Books 2014) 4ff; Marina Sanz Díez de Ulzurrun, ‘Justicia restaurativa y mediación penal’ in Gil Gil and Maculan (n 9) 121; Gema Varona Martínez, ‘El papel de las víctimas respecto de los mecanismos utilizados en la justicia transicional’ in Gil Gil and Maculan (n 9) 145 (especially at 163ff). Yet, the incorporation of a restorative approach into the classic retributive paradigm also poses some practical and conceptual challenges, as suggested by Zedner (n 50) 238ff.

Howard Zher, Changing Lenses: A New Focus for Crime and Justice (Herald Press 1990); Johnstone and Van Ness (n 63); Liebman (n 63) 32.

M Kay Harris, ‘An Expansive, Transformative View of Restorative Justice’ (2004) 7 Contemporary Justice Review 117, arguing that restorative justice ‘necessarily must address community well-being along with that of the specific parties to crime and conflict’ (120); Zehr (n 64) s 4; Dennis Sullivan and Larry Tifft, Restorative Justice: Healing the Foundations of our Everyday Lives (Willow Tree Press 2001), pointing out that restorative justice is ‘concerned with processes of healing but also with transforming the social institutions’ (ix–x); Dennis Sullivan and Larry Tifft, ‘The Transformative and Economic Dimensions of Restorative Justice’ (1998) 22 Humanity & Society 38.

Wenzel and Okimoto (n 31) 402–3, 414.

Wenzel and Okimoto (n 31).

Although some penal abolitionists have made precisely this claim. See eg Herman Bianchi, Justice as Sanctuary: Toward a System of Crime Control (Indiana UP 1994) 10ff; Louk Hulsman and Jacqueline Bernat de Celis, Peines perdues. Le système pénal en question (Le Centurion 1982) 45. This is currently a minority view, though, which we do not share. In contrast, we agree with Zehr’s idea that ‘real world justice’ may be seen as a ‘continuum’ from criminal justice to restorative justice, and that these forms of justice should be complementary: Zehr (n 64) s 4.

Paul H Robinson, ‘The Virtues of Restorative Processes, the Vices of “Restorative Justice”’ (2003) 1 Utah L Rev 387. In contrast, Silva Sánchez (n 61) 219ff maintains that restorative processes must always be applied after the completion of the criminal trial and in a separate manner, in order to guarantee the sincerity of the offender. Silva Sánchez nevertheless recognises the utility of those processes, especially in those situations in which the penalty has not been imposed even though the perpetrator was found guilty, due to the prevalence of other public interests.

Although the latter view is held in some of the judgments by the IACtHR (see eg IACtHR, Case of the Rochela Massacre v Colombia Series C no 163, 11 May 2007, para 196), we deem it to be incorrect.

For more details on these possibilities, see Clamp (n 62); Varona Martínez (n 63) 167ff.

James L Gibson, ‘Truth, Justice, and Reconciliation: Judging the Fairness of Amnesty in South Africa’ (2002) 46 American Journal of Political Science 547.

Ivo Aertsen et al, Restoring Justice after Large-Scale Violent Conflicts (William 2008) 17ff.

Carsten Stahn, ‘The Geometry of Transitional Justice: Choices of Institutional Design’ (2005) 18 LJIL 425.

Paul Gready and Simon Robin, ‘From Transitional to Transformative Justice: A New Agenda for Practice’ (2014) 8 International Journal of Transitional Justice 339ff; Wendy Lambourne, ‘Transformative Justice, Reconciliation and Peacebuilding’ in Susanne Buckley-Zistel et al (eds), Transitional Justice Theories (Routledge 2014) 19. The latter author identifies four elements in this idea of transformative justice: criminal justice or responsibility; truth as knowledge and acknowledgement; socioeconomic justice; and political justice (23ff).

Paul Seils, Squaring Colombia’s Circle. The Objectives of Punishment and the Pursuit of Peace (ICTJ 2015) 9–11 <www.ictj.org/publication/squaring-colombia-circle-objectives-punishment-peace> accessed 1 February 2019.

For a recent and complete description of the various theories of punishment developed by both Anglo-Saxon and continental scholars, see Rodríguez Horcajo (n 59) 29–86. See also George Fletcher, Rethinking Criminal Law (OUP 2000) 414–40.

See the critical account by Mark Osiel, ‘Why Prosecute? Critics of Punishment for Mass Atrocity’ (2010) 22 Hum Rts Q 118; see also Jon Elster, ‘Retribution in the Transition to Democracy’ in Arend Soeteman (ed), Pluralism and Law (Springer 2001) 19; Nino (n 14).

In addition to having been used by the ad hoc International Criminal Tribunal to rationalise their activity, this criterion is specified at the statutory level to determine the jurisdiction of the SCSL (art 1 of the Statute of the Special Court for Sierra Leone: ‘… persons who bear the greatest responsibility’) and of the ECCC (art 2 of Law on the Establishment of the ECCC: ‘… senior leaders of Democratic Kampuchea and those who were most responsible for the crimes’).

This criterion is combined with other objective and subjective criteria to govern the policy of selection and prioritisation of cases introduced in Colombia with the constitutional reform known as ‘Marco Jurídico para la Paz’ (Acto Legislativo 1/2012) and developed by the General Prosecutor of the Colombian Nation in its Directive 001/2012 of 4 October. This is one of the original transitional justice mechanisms that the Colombian State has adopted into its extremely interesting peace process, where the challenging goal is to put an end to an especially complex and long-lasting armed conflict that is still ongoing. For further information, see eg Alicia Gil Gil, Elena Maculan and Susana Ferreira (eds), Colombia como nuevo modelo para la justicia de transición (IUGM 2017); Alejandro Aponte Cardona, ‘El Acuerdo de paz y el modelo transicional colombiano: hacia un reconocimiento y dignificación de las víctimas’ in Gil Gil and Maculan (n 9); Alejandro Aponte Cardona, ‘Colombia’ in Kai Ambos et al (eds), Justicia de transición (KAS 2009) 235. For a comparison between various policies of selection and prioritising international crimes cases, applied both by international and hybrid criminal tribunals and in national legal systems, see Morten Bergsmo (ed), Criteria for Prioritizing and Selecting Core International Crimes Cases (2nd edn, Torkel Opsahl Academic 2010).

Mark A Drumbl, Atrocity, Punishment and International Law (CUP 2007) 151–4; Robert Cryer, ‘Aims, Objectives, Justifications of International Criminal Law’ in Robert Cryer et al, An Introduction to International Criminal Law and Procedure (3rd edn, CUP 2014) 28, 44.

We may also recall the practice of plea bargaining, used both by international criminal tribunals and by many domestic courts in relation to international crimes. This instrument is a response to requirements for procedural economy and flexibility of procedures, but as it brings with it the imposition of a reduced penalty to those accused persons who request it, it contradicts the idea of retribution as proportionality: Antony R Duff, ‘Process, not Punishment: The Importance of Criminal Trials for Transitional and Transnational Justice’ (2014) Minnesota Legal Studies Research Paper 14 < http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2387601 > accessed 1 February 2019; Pablo D Eiroa, Políticas del castigo y derecho internacional (Ad Hoc 2009) 162; Drumbl (n 81) 163–9. Furthermore, it has been argued that for these kinds of crimes there is an intrinsic impossibility of fitting within any proportionality criterion. As indicated by Garapon, citing Hannah Arendt, these are ‘crimes that one can neither punish, nor forgive’: Antoine Garapon, Des crimes qu'on ne peut ni punir ni pardonner (Odile Jacob 2002). This raises doubts as to whether there are punishments that are sufficiently burdensome both in the absolute sense (measurement between the offence and the punishment in themselves) and in a relative perspective (measurement based on the comparison between various crimes and the corresponding punishments), unless one accepts the imposition of treatments that would in turn entail a violation of human dignity and fundamental rights, such as torture, the death penalty or treatments that cause great suffering to the convicted person. Such a view, nonetheless, is grounded on a pure retributivist approach, which we have already criticised (cf section 2); additionally, problems related to proportionality also appear in ordinary criminality, eg in cases of conviction for multiple offences: see Osiel (n 78) 128–9.

The capacity to intimidate is prejudiced especially when selectivity is based more on political criteria and mainly concerned that nothing can interfere in the interests of the state apparatus or of the powerful countries: Gil Gil and Maculan (n 5) 49.

In similar terms, Kai Ambos, ‘Punishment without a Sovereign? The Ius Puniendi Issue of International Criminal Law: A First Contribution towards a Consistent Theory of International Criminal Law’ (2013) 33 OJLS 293; David Luban, ‘Fairness to Rightness: Jurisdiction, Legality, and the Legitimacy of International Criminal Law’ in Samantha Besson and John Tasioulas (eds), Philosophy of International Law (OUP 2010) 569, 577; Teitel, Transitional Justice (n 1) 44ff. Similarly, Elster (n 78) 28ff.

Eiroa (n 82) 165; Jaime Malamud-Goti, ‘Transitional Government in the Breach: Why Punish State Criminals?’ (1990) 12 Hum Rts Q 1, 9.

Cryer (n 81) 43; Naomi Roth-Arriaza, Impunity and Human Rights in International Law and Practice (OUP 1995) 14.

Malamud-Goti (n 85) 10.

Kai Ambos, Treatise of International Criminal Law. Vol. I. Foundations and General Part (OUP 2013) 72.

The resurgence of these theories was inaugurated by the seminal work by Joel Feinberg, ‘The Expressive Function of Punishment’ in Joel Feinberg, Doing and Deserving (Princeton UP 1970) 95. For a general account on expressive theories of law, see eg Elizabeth S Anderson and Richard H Pildes, ‘Expressive Theories of Law: A General Restatement’ (2000) 148 U Pa L Rev 1503.

Elena Maculan, ‘Fines de la pena y del proceso penal en contextos de transición’ in Gil Gil and Maculan (n 9) 207.

Alicia Gil Gil, ‘Prevención general positiva y función ético-social del derecho penal’ in José Luis Díez Ripollés (ed), La ciencia del derecho penal ante el nuevo siglo: libro homenaje al profesor doctor don José Cerezo Mir (Tecnos 2002) 9ff. This position represents a unitary or mixed theory of punishment that combines retribution (understood, according to a modern view, as the confirmation of the validity of the norm and of the legal protected values) and deterrence. Together with the general prevention, we admit specific deterrence as an aim of punishment. Von Hirsch’s theory can also be labelled as unitary, since he recognises a deterrence element, subject to the ‘censuring framework’: Andrew von Hirsch, Censure and Sanctions (OUP 1993) 14.

Luban (n 84) 582 brilliantly expresses this idea in the slogan ‘fairness to rightness’: the courts have to comply with the fair trial standards and other minimum requirements in their creation and composition in order to be legitimate institutions that really dispense justice.

See also Victor Tadros, The Ends of Harm: The Moral Foundations of Criminal Law (OUP 2011) 100.

Leebaw (n 1) 118.

Alicia Gil Gil, ‘El tratamiento jurídico de los crímenes cometidos en el conflicto armado colombiano. La problemática jurídica en el marco de la dicotomía paz-justicia’ in Alicia Gil Gil et al (eds), Colombia como nuevo modelo para la justicia de transición (IUGM 2017) 21, 36.

This mechanism, the application of which was entrusted to the Sentence Review Commission, an independent body created in 1998, was used for persons serving sentences for political and associated crimes, committed prior to the signing of the agreement itself and subject to a series of conditions. The experience of Northern Ireland does not fit into the traditional transitional settings (namely, the aftermath of a dictatorship or of an armed conflict), yet some of its features and some of the mechanisms adopted within it can be properly defined as transitional justice: Colm Campbell et al, ‘The frontiers of Legal Analysis: Reframing the Transition in Northern Ireland’ (2003) 66 MLR 317.

This view is in line with the conceptual distinction made by Feinberg (n 89) between the ‘reprobative symbolism of punishment’ and its character as ‘hard treatment’ (98), and the subsequent affirmation that ‘it is social disapproval and its appropriate expression that should fit the crime, and not hard treatment (pain) as such’ (118).

This law provided for the imposition of a punishment of the deprivation of liberty of between five and eight years, plus an additional term of conditional release (art 29 of the Law), for members of illegal armed groups that demobilise, give a free version of the crimes of which they are aware and contribute with their assets to reparations for the victims. A similar sanction (imprisonment for between five and eight years) is also provided in the Special Jurisdiction for Peace created by the agreement between the Colombian Government and the FARC-EP signed last November. This penalty will be applied to those persons who declare their responsibility for crimes committed after an investigation has been opened but before the trial against them begins. For those who give this declaration before the investigation begins, an even more beneficial punishment is provided, ie an alternative penalty that involves a restriction of liberty (although not to be served in prison) and carrying out restorative activities.

The same view is also held, with special reference to the ECtHR position, by Miles Jackson, ‘Amnesties in Strasbourg’ (2018) 38 OJLS 1, 17–18 and 22–4.

See IACtHR, Barrios Altos v Perú Series C no 75, 14 March 2001, paras 41–3; Gelman v Uruguay Series C no 221, 24 February 2011 (declaring that an amnesty law passed under the recovered democracy and confirmed in two different referendum amounted to a violation of the American Convention of Human Rights); Barrios Altos and La Cantuta v Perú ‘Supervisión de cumplimiento de sentencia’, 30 May 2018 (affirming the inadmissibility of pardons whenever they aim to cover gross human right violations, with specific reference to the pardon recently issued to the former President of Perú Alberto Fujimori). Yet, the IACtHR appears to be more flexible in its position when facing an ongoing armed conflict: IACtHR, El Mozote Massacre v El Salvador Series C no 252, 25 October 2012. For a deeper analysis, see Louise Mallinder, ‘The End of Amnesty or Regional Overreach? Interpreting the Erosion of South America’s Amnesty Laws’ (2016) 65 International and Comparative Law Quarterly 645.

See eg Ould Dahl v France App no 13113/03 (ECtHR, 17 March 2009). In a more recent judgment, the ECtHR recognised that ‘a growing tendency in international law is to see such amnesties as unacceptable’: Marguš v Croacia App no 4455/10 (ECtHR, 13 November 2012) para 139, while not completely closing the door on amnesties. See Elena Maculan, ‘Derecho penal, obligaciones internacionales y justicia de transición’ (2018) 41 Revista penal 117, 126ff.

See the brilliant criticism developed by Jackson (n 99). For a comparative analysis of the case law of the two human rights bodies, see Seibert-Fohr (n 4) 51ff and 105ff.

This experience is commonly viewed as a turning point in evolution of transitional justice, since its key mechanism was not a self-amnesty nor a blanket one, but a properly democratic, bilateral and conditional amnesty. Here, the benefit could be granted for crimes committed for political motives, even when they amounted to serious human rights violations, in exchange for the offenders’ public declaration of guilt and their contribution to the ascertaining of the truth about the wrongdoings. This approach allowed, at least in principle, the combination of different goals, namely, accountability (not in the traditional criminal sense), truth finding and reconciliation. See Antje Du Bois-Pedain, Transitional Amnesty in South Africa (CUP 2007); Jeremy Sarkin-Hughes, Carrots and Sticks: The TRC and the South African Amnesty Process (Intersentia 2004).

Mark Freeman, Truth Commissions and Procedural Fairness (CUP 2006) 88ff. Here again, Osiel (n 78) 134–7 warns against the risks and limits of truth commissions or other official public reports as alternatives to criminal trial.

Drumbl (n 81): the author maintains the universality of the blaming for certain crimes at the same time as arguing for the pluralism of mechanisms created to deal with them.

Bassiouni, ‘Victims’ Rights’ (n 3); Jonathan Doak, Victims’ Rights, Human Rights and Criminal Justice (Hart Publishing 2008) 180ff.

Malamud-Goti (n 85) 11.

Duff (n 82) 10.

See the brilliant and still relevant study of Piero Calamandrei, who describes the differences between the judge and the historian, alerting readers of the risks involved in merging the two roles: Piero Calamandrei, ‘Il giudice e lo storico’ (1939) Rivista di Diritto Processuale Civile 105.

M Cherif Bassiouni, ‘Accountability for Violations of International Humanitarian Law and Other Serious Violations of Human Rights’ in M Cherif Bassiouni (ed), Post-Conflict Justice (Transnational 2002) 383, 400.

Daniel Pastor, ‘Acerca de la verdad como derecho y como objeto exclusivo del proceso penal’ in Elena Maculan and Daniel Pastor, El derecho a la verdad y su realización por medio del proceso penal (Hammurabi 2013) 19; Thomas Weigend, ‘Is the Criminal Process about Truth? A German Perspective’ (2003) 26 Harvard Journal of Law & Pubic Policy 157. Yet, some authors also maintain the opposite view that the criminal trial is a perfect venue for the truth-finding task: see eg Michele Taruffo, ‘Verità e giustizia di transizione’ (2015) Criminalia 21.

This different set of priorities may reflect a different concept of truth, being the inquisitorial model in line with the correspondence theory (truth exists a priori and the judge has the task to discover and reveal it) and the adversarial one, more congruent with the consensus theory (truth is what reasonable people agree upon, in a trial, after an antagonistic presentation of competing versions of the facts): Thomas Weigend, ‘Should We Search for the Truth, and Who Should Do It’ (2010) 36 NCJ Int'l L & Com Reg 389. In a similar vein, Grande points out the correspondence of the two models with the concept of ontological truth and interpretive truth , respectively: Elisabetta Grande, ‘Dances of Criminal Justice: Thoughts on Systemic Differences and the Search for the Truth’ in John Jackson et al (eds), Crime, Procedure and Evidence in a Comparative and International Context (Hart Publishing 2008) 145, 147. See also the seminal work by Mirjan Damaška, ‘Truth in Adjudication’ (1998) 49 Hastings LJ 289.

For instance, the respect for the defendant’s right to silence and the rejection of evidence that was acquired in clear violation of Constitutional rights (such as dignity and privacy) are nowadays almost universally accepted also in inquisitorial systems, despite the obstacle they create for the ascertaining of truth: Weigend (n 112) 400–1. Besides the fair trial standards, there is a set of social needs and values that exercise a constraining effect on truth values in trials, such as the demand for stability in decision making and cost: Damaška (n 112) 301.

See the mechanisms recalled by Freeman: truth commissions, human rights commissions, commissions of inquiry, complaints procedures: Freeman (n 104) 40–69.

Antoine Garapon, Bien juger. Essai sur le rituel judiciaire (Odile Jacob 2001).

Duff (n 82) 7.

cf section 2B(ii).

Luban (n 84) 579; Eiroa (n 82) 205ff.

We find this formula in the founding instruments of the International Criminal Tribunals: Considering 9 of UN Security Council Resolution no 808/1993, of 22 February, setting up the ICTY; Considering 7 of UN Security Council Resolution no 955/1994, of 8 November, setting up the ICTR) and in all the rhetoric surrounding their legitimation (Danilo Zolo, ‘Peace through Criminal Law?’ (2002) 2 JICJ 727, 729.

For a critical look at the arguments of the defenders of this idea, see Mark Kersten, Justice in Conflict (OUP 2016) 19–36. See also Lisa Schirch, ‘Linking Human Rights and Conflict Transformation. A Peacebuilding Framework’ in Julie Mertus and Jeffery Helsing (eds), Human Rights and Conflict. Exploring the Links between Rights, Law and Peacebuilding (UN Institute for Peace Press 2006) 63.

Teitel, Transitional Justice (n 1) 49–51.

Malamud-Goti (n 85) 11–12.

Teitel, Transitional Justice (n 1) 30.

cf section 3A(ii).

Teitel, Transitional Justice (n 1) 49.

Janine N Clark, ‘Peace, Justice and the International Criminal Court: Limitations and Possibilities’ (2011) 11 JICJ 521, 521; Eiroa (n 82) 143.

As stated by Pablo D Eiroa, ‘El impacto de las jurisdicciones penales internacionales en la finalización de un conflicto de violencia grave y la consolidación de la paz’ in Gil Gil and Maculan (n 9) 81. See also Michael Broache, ‘Irrelevance, Instigation and Prevention: The Mixed Effects of International Criminal Court Prosecutions on Atrocities in the CNDP/M23 Case’ (2016) 10 International Journal of Transitional Justice 388.

Malamud-Goti (n 85) 14.

Both solutions have been adopted in the Colombian peace process, both in the Peace and Justice Law and in the recently created Special Jurisdiction for Peace.

Along the same lines, see the dissenting opinion of Judge García Sayán in IACtHR, El Mozote v El Salvador Series C no 252, 25 October 2012, paras 30–1.

Andrea Lollini, Constitutionalism and Transitional Justice in South Africa (Berghan Books 2011) 95ff.

Malarino (n 1) 211. This proposal differs from another interesting view that can be summarised by the phrase ‘First peace, then justice’. According to Kersten (n 120) 31–2, this idea has the advantage of converting the peace versus justice dilema into a question of sequence that does not eliminate the justice element, but rather defers it to a time when peace and stability have been consolidated. However, as the same author notes, the sequence cannot be premeditated, because no leader would be prepared to sit down to negotiate knowing in advance that the benefits obtained in such negotiations would sooner or later be annulled. Furthermore, this idea fails to take into account the fact that on many occasions the negotiations concede to the adversary party guarantees regarding not only criminal prosecution, but also positions of political power (ibid). Finally, these solutions involve serious legal problems as to the retroactive nature of the new, unfavourable law and the resurgence of criminal liability already cancelled, which would bring into question the commitment to the rule of law of the new democratic regime.

Prittwitz (n 2) 129; Silva Sánchez (n 4) 56.

Lambourne (n 75) 23ff.

Ambos (n 84) 314–15.

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