Chapter 7 Notes: Foundations, Policy Development, and Drug Policy
7.1 Foundations of Criminal Justice Policy
Focus question: What are the foundations of criminal justice policy? How does society respond to crime?
Why society needs police, courts, and correctional agencies (jails, prisons, probation, parole): to maintain order; to prevent, investigate, and solve crime; to protect the public; to avoid a free-for-all environment in the absence of enforcement and dispute resolution.
Two hypothetical societies without CJ agencies:
Crime-free utopia: unlikely in reality; Émile Durkheim argued a truly crime-free society would require unanimous agreement on all laws and behavior, which is implausible given diverse opinions and preferences. \text{Unanimity of opinion} is hard to achieve and sustain.
Free-for-all: life without enforcement leads to little safety and unregulated behavior that endangers others.
Simple answer to “Why do we need a criminal justice system?”: to maintain order in society; CJ processes cover prevention, investigation, and resolution of crime, creating an orderly middle ground between utopia and anarchy.
Foundations of criminal justice policy: the social contract as a metaphor. It helps explain what goals law and CJ should pursue to promote order.
The Social Contract as a metaphor for CJ goals (Maus, 2013):
State of nature: imagine life with no government or justice system.
Next question: what should government do in light of that state of nature?
From this analysis, philosophers derive possible goals for government and CJ to promote order.
Three classic social contract theorists (each presents a different CJ/goals perspective):
THOMAS HOBBES — PROTECTION
State of nature: life would be “solitary, poor, nasty, brutish, and short.” No laws or enforcement; individuals act on self-interest and fear retaliation.
Government emerges when individuals give up some freedom for security; laws against harming others are enforced by the government.
CJ/goals emphasize protection from harm; government may enact and enforce broad laws to prevent harms.
Quote-style rationale: to avoid a return to the state of nature, almost-any-laws-are-acceptable for safety.
JOHN LOCKE — RIGHTS
State of nature is not as chaotic; resources exist to minimize conflict; individuals have natural rights (life, health, liberty, possessions).
Government’s function: protect natural rights; minimal interference with behavior; legitimacy from protecting rights under law.
The state’s purpose is to preserve the moral code that underpins rights; the public holds virtues to be protected.
JOHN RAWLS — FAIRNESS
Original position/veil of ignorance: imagine rules without knowing one’s own place in society.
The most appropriate resolution is to promote fairness in processes, opportunities, and protections.
Assessing social contracts: each view supports different CJ goals:
Hobbes: protection and order, strong government authority to stop harms.
Locke: rights protection, limited government interference.
Rawls: fairness and justice in processes and outcomes for a diverse public.
Implications for legitimacy and governance:
Legitimacy is the acceptance that the government has the right to govern; without legitimacy, protests, civil disobedience, or revolution may follow.
Locke’s salus populi suprema lex: the good of the people is the supreme law; legitimacy can be built through:
Criminal and civil justice processes that work fairly.
Efforts to promote social justice.
Forces shaping CJ policy-making within American government structures.
Summary questions for reflection (Q):
Do you agree with Durkheim that a crime-free society would be impossible? Why or why not?
Which social contract perspective(s) do you find most persuasive or least persuasive? Or propose an alternate perspective.
What goals should American CJ policy pursue according to the different social contracts? How would each perspective address a criminal justice policy issue (e.g., marijuana policy) from Chapter 7?
How would you balance protection, rights, and fairness in CJ policy?
What factors contribute to government legitimacy, and how can CJ promote them?
7.2 Criminal Justice and Civil Justice
Key idea: justice can be pursued in three venues—criminal justice, civil justice, and social justice—each with its own processes, but not entirely isolated; the same incident can involve multiple venues with overlapping concerns.
Table-like distinctions (differences between Criminal, Civil, and Social Justice):
When does it apply?
Criminal: when a crime as defined by the criminal code has been committed.
Civil: when individuals believe they have been wronged (e.g., torts) regardless of criminal status.
Social justice: not a process; a framework to view equality and distribution of benefits/risks.
Who brings the case?
Criminal: the state against the accused.
Civil: individuals who allege harm sue the wrongdoer.
Social justice: not a case, but advocacy and policy critique to address injustices.
Initiating agents:
Criminal: government actors (police, prosecutors).
Civil: private attorneys representing the plaintiff.
Social justice: activists, advocates, protests, lobbying, media campaigns.
Time limits (statutes of limitations):
Criminal: often no limit for the most serious crimes; shorter or longer limits for others; more timeliness in filing is common.
Civil: generally shorter limits (e.g., 2 years for many torts).
Level of proof:
Criminal: beyond a reasonable doubt.
Civil: preponderance of the evidence (more likely than not).
Consequences:
Criminal: criminal punishment (probation, fines, imprisonment, loss of rights).
Civil: monetary damages (compensation, punitive damages).
Example case: Abel and Baker (tavern incident)
Criminal CJ: Baker’s assault could be charged if it meets the statute (e.g., assault in the first degree) under a given jurisdiction.
Civil CJ: Abel could sue Baker for tort damages; civil court could award compensatory and potentially punitive damages; outcomes may differ from criminal judgment (as in McDonald coffee case).
Important note: the same incident may be addressed by both systems; social justice implications may arise (e.g., access to resources, health care).
Civil justice process specifics:
Initiated by individuals, not the state.
Agents: private attorneys; access may depend on ability to hire counsel (pro bono options exist).
Time limits: shorter; example given of two-year limit for wrongful injury torts.
Burden of proof: preponderance of the evidence; not a criminal standard.
Outcomes: financial settlements, compensatory and punitive damages; no criminal penalties.
Box 7.1: Qualified Immunity and Police Civil Liability
Question: can police be sued civilly for rights violations? Qualified immunity often shields public employees unless two criteria are met:
They violated a constitutional right.
A reasonable officer would view the conduct as unlawful in the circumstances.
Standard is high; perspective is from the “reasonable officer on the scene.”
Notable case: Scott v. Harris (2007) involved a high-speed pursuit; the Supreme Court held that the officer’s actions were not liable due to qualified immunity in a closely scrutinized fact pattern.
Policies: some agencies limit pursuits; debates on when high-speed pursuits are appropriate.
Other cases: Graham v. Connor (1989) and Saucier v. Katz (2001) shaping the qualified immunity doctrine.
The controversy: qualified immunity can limit accountability for police misconduct; debates about reforms or abolition.
Civil vs criminal outcomes with notable examples:
O.J. Simpson: criminal acquitted; civil liability found later (Goldman v. Simpson, Brown v. Simpson) for wrongful death and related claims; demonstrates different standards and outcomes across CJ venues.
Practical implications:
Civil court often imposes stricter access barriers (costs, attorneys) compared to criminal court’s public defense protections.
Civil and criminal processes can operate concurrently on the same incident, but with different standards, timelines, and penalties.
7.3 Social Justice and American Values
Central idea: social justice is not a legal process but a value framework guiding equality and fairness in society; it informs CJ policy as it intersects with civil and criminal justice.
Key theorist: David Miller (1999) on social justice as concerns about fairness and equality; can challenge hegemonic power structures that marginalize groups.
Social justice and CJ intersect with: critical legal theories, critical criminology, distributive justice (Chapter 6).
Core questions: Can a just society provide benefits equally to all members? Should benefits be redistributed to address injustices?
Mechanisms for social justice advocacy and change:
Civil lawsuits and legal challenges when injustices are believed to occur.
Protests, media campaigns, lobbying for policy changes, and new legislation.
Box 7.2: Ethics in Practice — Healthcare in California Prisons
Brown v. Plata (2011) and the Prison Litigation Reform Act (PRLA) context:
Inmates’ healthcare and mental health care inadequate in CA prisons due to overcrowding and resource limits.
2011 Supreme Court upheld lower court orders to reduce overcrowding to ensure constitutional-level medical care; CA reduced inmate population by 27,527, prison crowding from 181% to 150% of design capacity; significant cost savings with no adverse safety impact.
2011–2013 developments and ethical balancing of correctional healthcare with resource constraints; issues highlighted include chronic delays, suicides, and poor access to care.
COVID-19 pandemic framed renewed concerns about correctional healthcare (disproportionate infection and mortality; policy responses included early releases and ongoing ethical considerations).
Box 7.3: Homelessness, Social Justice, and Criminal Justice
HUD estimate: ~553,742 homeless individuals on any given night (likely undercounting hidden populations).
Social justice concerns: shelter access, domestic violence connections to homelessness, risk of victimization, public sleeping laws.
Policy questions: police steps to reduce victimization, homelessness reduction programs, service provision, policies about sleeping in public, and related rights.
American political culture values:
Liberty (life, liberty, pursuit of happiness) and equality are foundational; CJ system must balance order with rights protections.
Legitimacy: public trust in government; procedural justice fosters obedience and compliance with laws.
Recognition that real-world data show CJ system shortcomings in achieving equality and fair treatment; ongoing challenges documented in Chapter 12 (policing) and beyond.
Social movements and justice debates:
Major movements: Occupy, Black Lives Matter, Me Too; their impact on policy debate and public discourse on policing, violence, and gender-based justice.
Debates on defunding the police and reallocating funds to social services; budget trends show mixed results.
The role of protests in expanding civil rights and influencing policy (e.g., Women’s suffrage, Civil Rights Movement).
Immigration and social justice tensions:
Arizona SB 1070 and federal-state dynamics; federalism and Supremacy Clause; debates about racial profiling and legitimacy of immigration enforcement.
The 2017–2018 family separation policy as a social justice issue; evidence of trauma and long-term harm to children; international law concerns raised.
Social justice and healthcare access in general:
Healthcare inequities, the role of social justice in ensuring basic rights (e.g., healthcare for the incarcerated, and implications for reentry).
Social justice and policy implications:
Social justice perspectives encourage CJ to address systemic inequalities; policy interventions may require reforms in criminal law, civil law, and social programs.
7.4 The Development of Criminal Justice Policy
Core idea: CJ policy is shaped by government structure and requires collaboration among many actors to create laws, procedures, and strategies aimed at desired outcomes.
Policy stability and restraint: public policy tends to be stable due to the need for coordination across legislative bodies, executives, courts, and bureaucracies; stability can support legitimacy but may hinder rapid reform when necessary.
Policy windows (Kingdon’s model): for dramatic policy change to occur, three factors must align: problem perception, feasible solution, and favorable political climate; the window then closes as policy becomes established.
Marijuana policy as an example of diffusion and change:
Public perceptions and moral debates influence whether a policy window opens for marijuana reform.
States have innovated with medical or recreational marijuana, but federal policy remains unsettled; diffusion is uneven due to federal-state conflict and moral complexity.
Federalism and state vs. federal policy:
Dual systems: 51 separate systems (50 states + federal) with their own laws, enforcement, courts, and penalties.
Supremacy Clause: federal law can override state law; historically, states have had primary authority, but Commerce Clause powers expanded federal involvement (e.g., drug control).
Examples:
Gonzalez v. Raich (2005): Congress can regulate home-grown marijuana under interstate commerce considerations; federal authority can apply even if no interstate activity occurs.
PREA (Prison Rape Elimination Act) as a federal funding incentive shaping state compliance.
Separation of powers: legislative makes laws, judiciary interprets, executive enforces; policy decisions are constrained by courts and constitutional rights.
Dillon’s Rule and home rule:
Local governments exist at the state’s pleasure; localities have limited powers and cannot supersede state law.
Policy in comparative perspective:
Cross-national learning while cautioning against naive imports; cultural compatibility matters.
Historical perspective: two eras of American CJ policy roughly divided by Prohibition:
Early era: state-dominated approach to crime and justice.
Later era: growing federal involvement and collaboration (sometimes conflicting) in crime control.
Federal funding as leverage:
Federal funding conditions influence state policies (e.g., highway funds tied to age limits and DUI standards; federal standards for prison reform via funding incentives).
Implications for today:
Policy development is iterative, multi-actor, and shaped by political culture, federalism, and separation of powers.
7.5 Forces Shaping Criminal Justice Policy
Agenda setting and problem definition: processes by which issues are identified and framed for policy action.
Four main drivers of policy formation:
Mass media: shapes perceptions; entertainment often exaggerates crime; can generate fear and support for harsher punishment; may influence problem definitions and public opinion.
Interest groups: organized factions advocating for policy outcomes (e.g., NRA, Brady Campaign; Mothers Against Drunk Driving (MADD)); coalitions can push policy through ballot measures or lobbying; example: California three-strikes law defended by an interest-group coalition.
Politics and politicians: presidents and elected officials influence agenda setting; policy statements can shape public expectations; symbolic politics vs. substantive policy changes (e.g., Hate Crime Statistics Act as a symbolic action; executive commissions).
Bureaucrats: street-level bureaucrats implement policies and exercise discretion; their decisions cumulatively define policy outcomes; progressive prosecution as an example of bureaucratic influence on reform.
Problem definition matters: different definitions of a problem yield different policy solutions; examples include:
School shootings: after Columbine (1999) gun control vs. security vs. mental health frames; Parkland (2018) broadened definitions to gun control vs. enforcement vs. mental health.
Death penalty: definitions focused on innocence, justice, deterrence influence public opinion and sentencing frequency.
Policy diffusion and diffusion drivers:
Amber Alert as an example of rapid diffusion across jurisdictions.
State experimentation via federal funding and policy diffusion, with diffusion depending on moral/policy consensus.
Federalism and local variation:
State-to-state variation in criminal law and enforcement; no single national pattern; Scalia’s Harmelin v. Michigan example demonstrates respect for state-specific policy choices.
The role of levels of government:
State vs. federal influence depends on issue; many CJ issues remain state-dominant, while some rely on federal authority and funding.
Cross-national perspective and historical context:
The chapter emphasizes learning from other countries but with caution about cultural fit.
7.6 Conclusion: CJ Policy and Drug Policy Focus
Recap: CJ policy is shaped by social justice, political culture, government structure, mass media, interest groups, and bureaucrats, all interacting with the politics of policy making.
CJ problem-solving and drugs policy: broad public concern about drugs; overview of drug policy history and contemporary issues.
Drug policy history and frameworks:
Early federal controls: Harrison Narcotics Act (1914), Volstead Act (Prohibition, 1919), Marihuana Tax Act (1937).
Comprehensive framework: Controlled Substances Act (1970) creating five schedules; Schedule I includes heroin, LSD, marijuana, psilocybin, MDMA, and others; Schedule V includes the least serious drugs.
Data on drug use and harm:
NSDUH 2020: about 13.5\% of the population engaged in illicit drug use; substances include 49.6{,}000{,}000 people using marijuana (note: figure presented as a representative count in the text).
Overdose deaths: 91{,}799 in 2020, with the majority involving opioids (prescription opioids, heroin, fentanyl).
The societal cost of opioids: approx. 141.8\text{ billion USD} (healthcare, justice system, lost productivity).
Goldstein’s three links between drugs and crime (1985):
Psychopharmacological crime: drug effects leading to criminal activity.
Systemic crime: violence associated with drug markets.
Economic-compulsive crime: crimes committed to obtain drugs or money to buy them.
Four strategic approaches to drug policy (as of the text’s framing):
Demand Reduction: reduce demand through prevention (education, anti-drug campaigns, resilience-building in schools) and treatment services (12-step programs, therapeutic communities, rehab programs).
Supply Reduction: reduce availability through interdiction, shutdowns of manufacturing, enforcement against dealers, and deterrence.
Harm Reduction: minimize negative consequences of drug use (training first responders, needle exchange, naloxone, MAT therapies like Suboxone/Methadone).
Legalization/Decriminalization: remove or reduce criminal penalties for possession/distribution; alternatives to criminal law (civil penalties or decriminalization schemes).
Discussion prompts to close:
Which of the four policy strategies do you favor or oppose, and does the type of drug matter?
How would the factors described (culture, politics, media, etc.) affect policy development and implementation for drugs?
What additional information would you want to decide how to structure U.S. drug policy?
Key numerical and legal references (LaTeX-formatted)
Durkheim on unanimity: \text{unanimity of opinion} is rarely achievable in large, diverse societies.
Overcrowding in California prisons (Brown v. Plata context): 137.5\% of design capacity; reduction by 27{,}527 inmates; crowding decreased from 181\% to 150\% of design capacity; estimated savings: \$453\ million.
Prison healthcare and aging issues: examples of delays, suicides, and care deficiencies; ethical questions about the standard of care for inmates and released individuals.
Federalism and law: there are 51 separate criminal justice systems (50 states + federal) with the Supremacy Clause allowing federal law to override state law; e.g., Gonzales v. Raich (2005) on interstate commerce and home-grown marijuana.
Drug policy schedules: Schedule I includes substances with high abuse potential, no accepted medical use (e.g., \text{heroin}, \; \text{LSD}, \; \text{marijuana}, \; \text{psilocybin}, \; \text{MDMA}); Schedule V is least serious.
Public attitudes & drug policy: 2020 data show high public concern about drugs; overdose death trends; opioid crisis costs.
Mediation of federal funding effects: federal funds linked to compliance with standards (e.g., PREA, highway funds tied to age and DUI rules).
Reflections and study tips
When studying: map the three CJ policy goals (Protection, Rights, Fairness) to the three social contract theorists and note how each approach would shape policy decisions in practice.
Compare criminal and civil outcomes for the same incident (e.g., Abel and Baker) to understand how different standards and burdens of proof yield different consequences.
Consider how social justice, political culture, and federalism interact to create policy windows for reform (e.g., marijuana policy, policing reforms after high-profile incidents).
Use real-world cases to anchor theoretical concepts (e.g., Hobbes/Locke/Rawls; Graham v. Connor; Scott v. Harris; Brown v. Plata; Gonzales v. Raich).
For discussion prompts: practice articulating how different theories would address a contemporary issue (e.g., marijuana legalization, police accountability, or correctional healthcare).