The “Freedom” Model of Criminal Justice: a Critical Analysis

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Introduction

“Criminal justice is controversial, not because the list of its goals is controversial, but because people differ over which are most important and which are to be given low-quality priority” (Sanders, 2010, p.47). There have been many disputes arising over the role of the criminal justice system in dispensing justice. Often criticized are the practices by police, prosecutors, or courts which are thought to implement a “too harsh” enforcement which leads to the selective use of police discretion and disproportionate imprisonment of some groups. Alternatively, there are those who claim that some of these practices are “too lax” in their enforcement which allegedly leads to the belief that suspects and defendants are let off too easily. As Daly puts it, justice to some is an injustice to others, and the vice versa is also true (2012, p.4). The two principles of justice: freedom and equality, have been revised over the years in a bid to repress the endless violent wave of crime. However, this reestablishment may have led to a disorder in the process of goal prioritization. It becomes even more difficult in a capitalist economy such as the United States since the state, and its legal system exists to secure and perpetuate the capitalist interests of the ruling class. Disproportional reward Is the most effective way of maintaining capitalism (Potter and van den Haag, 2014, p.3). The result has been the introduction of various approaches to justify the methods used to pass justice. The current report critically analyzes the “Freedom Approach” proposed by Andrew Sanders and its relevance and efficiency when applied in the criminal justice system. It argues that the model not only satisfies the core values of justice, but it is also effective in reducing crime prevalence.

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The analysis will begin by stating the purpose of the research. The purpose describes the motivation behind the selected topic and what it hopes to gain at the end of the analysis. Following this is a section that includes a brief description of Andrew Sanders’ freedom approach and the principles and arguments that form its foundation. With that in mind, the research will then focus on its necessity, and why it has been found to be an integral part of the criminal justice. The critical analysis will evaluate the soundness of the approach using the criminal justice core values as the measures from which the comparison can be made. Further, the open criticism of the method will be employed in the research, and the counterargument made in response to it. Finally, a conclusion regarding the relevance of the approach will end the analysis.

Statement of Purpose

The research aims to establish how the freedom approach to criminal justice is more important regarding goal prioritization and criminal justice efficiency than the currently available models of justice. Goal prioritization is essential for any institution as it helps identify the critical success factors relevant to it and exposes those variables that either lead to the success or failure of a proposed model (Gates, 2010, p.24). The reason for making this presupposition is because the prevalent justice models: crime control and due process, are not universally applicable per se since they represent the conflicting interests and values operating within the criminal justice. The tensions that exist between the crime control and due process models bring about disharmony which undermines the efficiency and effectiveness of the criminal justice system as it ought to be. To declare that one is better than the other requires one to make a valued judgment, which presents opportunities for inconsistency due to the subjective views of the different law enforcement agents. The freedom approach thus attempts to unpack the competing goals ascribed and applied to the criminal justice system. While crime control is conservative, and it is more interested in promoting order and social stability, the due process model is quite libertarian and helps protect people and their property from harm (Roach, 1999, p.677).

The “Freedom Approach”

Very few people would argue against convicting the guilty, protecting the innocent, and everyone else from any arbitrary and oppressive treatment. Many people support the rhetoric that the criminal justice system should treat victims with respect and make sure that this is pursued efficiently and proportionately (Sanders, 2017, p.1). The problem with this is that the world is not a perfect place and the justice models that exist today cannot operate at a 100% efficiency. The best that we can do is develop practices and approaches that take the effectiveness of the justice system as close to optimality as possible. Other than that, it must be recognized that there will always exist a conflict between justice models, primarily because of the difference in goal prioritization, and the considerations made when selecting what goals to pursue. According to Sanders (2010, p.47), the values and interests of the criminal justice system are varied, and Packer’s two justice models strive to ensure that they are adequately covered. However, they are each incomplete in meeting all these obligations and are also not normatively acceptable. The human rights perspective is the proposed alternative to solving the gaps preexistent in the crime control and due process models. Nonetheless, it also has its flaws as it has not been as fruitful and comprehensive to use when understanding, critiquing or developing the criminal justice.

Andrew Sanders argues that a simple remedy to the problems brought about by the previous models to criminal justice is to support crime repression objectives from a freedom perspective. Freedom should be the ultimate objective of the criminal justice process, and all the actions taken by the different actors should work towards this, thus rendering freedom as a kind of common currency. According to Sanders, the primary goal of safeguarding victims, offenders, and other individuals impacted by the crime and the criminal justice system, is to ensure that freedom is either enhanced or protected appropriately (Sanders et al., 2010, p.48). Protection should not be considered as the ultimate goal in itself, but as a means to an end which leads to the facilitation of the respective freedoms of these individuals. The freedom approach is based on a human rights foundation, but also entails much more than just protecting the minimalistic “safety net” rights. The human rights provisions may have provided a basis from which criminal justice agents can carry out inquisitions and crime control (Sanders, 2010, p.48). However, human rights play a vital role in the outcome of all the processes combined. The freedom approach takes on an absolute approach which tends to combine all the efforts put into the respective justice models to achieve the most favorable aspirations by the community: to live in a society that is free of crime.

The freedom approach tends to consider the implications of a crime and the methods through which justice is carried out. Through it, law enforcement agencies are supposed to appraise how much freedom would be constricted by an action before deciding upon which decision to make concerning that particular crime. Sanders suggests that by careful, and fair selection of the issues to consider in a court case, it becomes possible to rank the problems by order of their importance (Sanders et al., 2010, p.48). Justice is measured based on the freedom ascribed to it. For example, when a crime occurs and is directed to the victim, it means that the individual is denied the freedom to enjoy whatever was taken from them or made them suffer. The freedom approach is based on consequentialism ethics, where judges value their decisions based on the consequences of an act. Sanders suggests that distribution sensitive rule-consequentialism is far better equipped to promote freedom as it adheres to the rules put in place unlike the individual act-consequentialism theory (2010, p.49). The latter can easily undermine the manner in which it promotes freedom due to the uncertainty caused by imperfections caused by factors such as inaccurate information, time constraints, and personal prejudices. It is based on an actor selecting the action to take after evaluating which alternative act would maximize the value gotten from the decision.

In short, Sanders is more concerned about whether the measure taken (from any justice model, with consideration of the human rights), will curb instances of recidivism or ensure that guilty individual do not continue roaming free. In a way, the freedom approach tends to ensure the effectiveness and efficiency of the criminal justice both in the short and long run. As long as the criminal justice department can critically analyze the implications of an action regarding a particular case and make favorable inferences as to the repercussions of the action with precision, then the criminal justice is in a better position to justify their decisions. According to Quirk et al. (2010, p.62), the reform of the freedom and equality principles as regards to criminal justice may have led to the rebalanced favor of the victim and away from the accused, arguing that the former may have more esteem than the latter. Suspects make up part of the community, and their rights are meaningful as well. Hence, an appropriate justice measure should consider the impact of a criminal justice decision that is inclusive of the ‘reformed’ individual if they are to make decisions that remain effective even after the individual is out of corrections. It is what Sanders terms as a balance of freedom (Sanders, 2017, p.1).

Provisions of the Freedom Approach Method

The freedom approach makes some arrangements for law enforcement agencies regarding how to assess and deal with crime. They also form part of the advantages that accrue in the name of seeking out justice. They include:

  • A balance of freedom. The freedom approach does not discriminate as to who the implications of more liberty in a society apply to once the justice process is complete.
  • Cost-effectiveness. The freedom approach sways attention from the partiality of the victim’s needs as they would be counterproductive for the overall freedom of the community as well as the hope for recidivist tendencies.
  • Impact on law enforcement and criminal procedures. By focusing on the freedom approach, the criminal justice agents are inclined to carry out the justice processes with dignity so that they can minimize the risk of recidivism, while also working in alignment to their specified roles. It prevents officials from working outside their assigned responsibilities, which also tends to protect the marginalized community.
  • A balanced approach for both victims and the accused. None of the associated parties have the upper hand as each is allowed the same information, services, and involvement in the restorative process as the other.

Criminal Justice Core Values

In order to understand the degree of efficiency and effectiveness that the freedom model is capable of when used in the criminal justice processes, it would be prudent to compare its relation to the three core values of the justice system: Justice, Democracy, and the Three Es (efficiency, effectiveness, and economy) (Sanders, 2017, p.1).

I. Justice

Justice may have very many meanings depending on the context in which it is used. According to a study carried out by Clark, the participants had varied opinions on what they considered to encompass justice. To some, it involved retribution while for others acknowledgment of the crimes committed is enough for them. For others, the safety of the entire community was what justice was all about (Clark, 2011, p.75). However, what researchers have found to be true is that there are two case scenarios from which justice can be achieved: for the victim or the accused. A discussion of the notion of justice is an essential starting point for determining whether the criminal justice system is what it proclaims itself to be and its capability to deliver what people expect it to (Clark, 2011, p.39). According to research by Hurlbert and Mulvale (2011, p.9), they mention that the principles of justice are linked to fairness, entitlement, moral righteousness, and equality. As such, any described form of justice describes the normative standards and how the principles mentioned above are implemented. Fairness is a reaction to those standards (Goldman and Cropanzano, 2015, p.315).

As part of the explanation given by Andrew Sanders in his move to push for the use of a ‘freedom approach to criminal justice, he states that justice and fairness must be held to a high account as part of the concern to maximize human freedom (Sanders, 2010, p.49). His argument is inclined to relate this to a distribution-sensitive consequentialism principle. What is behind this concern is the thought that certain deontological values and norms of justice are so fundamental and essential that they ought to be protected and promoted as intrinsic values. They would include the equal worth and dignity of persons, as well as the respect given for each (Ernst and Heilinger, 2011, p.118). The freedom approach ensures that each person is treated to the same justice process by basing the outcomes on the normative human rights, and an inclusive policy of criminal analysis. What this means is that the overall freedoms of the victim, the accused, and the community are considered, and rulings are made that align to the outcome that is most advantageous to the society at large while working within the standard rules of justice (Sanders, 2010, p.58). As much as the freedom approach follows an inclusivity principle, it binds law enforcement agents to their duties. At the end of a criminal case, the victim should be in a position to claim that they are satisfied with the justice given, the accused (if guilty) should be content with the ruling given, and the justice system should be in a position to claim that the outcome of the verdict serves in the interests of the community.

II. Democracy

According to Bretherton (2015, p.278), for the criminal justice to grow more just, it must allow for those who bear more cost of crime and punishment to exercise more power over those who enforce the law and give out punishment. Simply put, any policy or professional practice such as criminal justice should allow for the contribution of wisdom, knowledge, and experience of those it affects. By doing so, democracy helps enhance democratic citizenship by promoting skills, responsibility, neighborliness, and agency of those it affects with regard to any policy or professional practice. According to Kleinfeld (2016, p.1466), democracy within the criminal justice system should achieve the objective of enhancing the ethical life upheld by the community living under law and government. An ethical life reflects the values disclosed by a community’s public deliberations, provided that these deliberations are non-oppressive in their application (Kleinfeld, 2016, 1466).

A core principle of the freedom approach is that it recognizes the value of each of the parties involved in the justice model. The fact that it makes a significant consideration for the rights and freedoms of the society as a whole is an indication that the approach respects the democratic aspect of justice. Sanders claims that the types of freedom that the criminal justice system should enhance include those of the broader community and in an equal fashion (2010, p.54). Another tenet of the freedom approach is that it takes into consideration other aspects of society which encroach on the freedoms that the criminal justices set out to protect (Sanders, 2010, p.56). The inclusionary approach includes consideration for others and obedience to the law; made possible by explanation, discussion, experience, and example. It is in line with the proposed responsibility, neighborliness, and agency that democracy purports to uphold (Kleinfeld, 2016, p.1466). It allows the public to respect the authority held by the criminal justice system while reducing opportunistic instances of imposed power.

III. Efficiency, Effectiveness, and Economy

The criminal justice system’s credibility depends on its performance. Poor performance renders much of the criminal justice processes questionable and unstainable. The diffused lines of accountability for performance within the criminal justice system makes it vulnerable to criticism and slow to adopt measures that ensure its efficiency (Dandurand, 2014, p.385). The community that relies on the criminal justice system to make them feel safe tends to undermine the credibility and authority they ascribe the institution if at all they perceive that it is unable to meet the public’s expectations of fairness, timeliness, and transparency (Dandurand, 2014, p.385). Also, of significance is the ability to manage the costs of carrying out justice since failure to do so leads to the potentiality of a funding crisis, that may require severe cuts in the budget. The result of this is the inability to be effective in dispensing justice, especially with the increasing number of court cases. As such, it has been argued that justice systems that are unable to be both effective and efficient in carrying out their duties make it less relevant to conflict resolution, public safety, and crime prevention (Dandurand, 2014, p.385).

First of all, the freedom model is both efficient and cost-effective. All criminal justice systems rely on taxpayer money to acquire resources needed to make sure they feel secure in the country it operates. What the freedom approach does is that it assures a high rate of low recidivism by utilizing the most suitable approach to ensuring that both justice and safety are guaranteed. According to Sanders, time and cost constraints are among the most significant impediments to efficient crime control. Due process, on the other hand, may extend the work and investigation needed to conclude a case, which may eat into the allocated criminal justice. It would mean that funds may be taken from other crucial sectors such as health and education (Sanders, 2010, p.37). Due process may, therefore, have raised the cost imposition of judgment and punishment (Simon, 2017, p.30). Requiring the taxpayers to pay more to cater for additional expenses that would be incurred to unnecessarily punish people through correction systems constrict the freedom of the community as they have to appropriate more of their money to paying for these services directly or indirectly (Sanders, 2010). The freedom approach allows for law enforcement agencies to consider the most successful method of crime control while making deliberate considerations on the cost that it would impose on the judicial system in future. Fundamentally, the question to ask is whether the accused person poses a future risk or the possibility of reoffending and then suggest a legal remedy to ensure that such probabilities are limited or close to none.

In theory, a criminal justice system that successfully achieves incapacitation, deterrence, and control through the use of programmes offered to delinquents and offenders can be said to be effective in its methods when compared to the freedom approach (Butorac et al., 2017). The reason is simple, the inhibition of criminals means that the rest of the community gets to enjoy their freedoms, such as owning property or walking alone at night, etc. which is the objective that the freedom approach wishes to push. Hence, under the freedom approach, the criminal justice will strive to use the available resources in a manner that gives assurance that the objectives mentioned above can be achieved. Furthermore, the performance of the criminal justice system Is what determines its perceived effectiveness. The rate of recidivism is considered a performance measure of the criminal justice system (King, 2014, p.2). Since the objective is of the freedom approach is to ensure that recidivism does not occur, it can be argued that the method satisfies the third element of the three E’s: effectiveness.

Criticism of the Freedom Approach

One of the significant criticisms of the use of the freedom approach is whether it is indeed operational as Andrew Sanders claims it to be. The question is not without merit because it is far from clear how law enforcement agencies seek to identify the differential freedoms and unfreedoms. For example, take the case of a budding footballer who has a career ahead of him. If an attack on him leads to them breaking a leg, meaning that they cannot pursue their career, would his/her reduction of freedom be similar or count for more than those of a bed-ridden pensioner who cannot experience any loss of freedom in practice? In another example, would it be seemingly fair not to imprison a burglar with five children depending on him/her and imprison one that has no dependents at all? As such, these questions insinuate that the freedom approach method may be difficult to operationalize because individuals’ experience and relationship to acts defined as crime are influenced by wealth, power, and opportunity inequalities (Matsueda and Grigoryeva, 2014, p.20).

However, Andrew Sanders was quick to acknowledge that such a critical point would be argued as one to undermine his model’s development and application. He makes this apparent in his argument of Conor Gearty’s analysis of human rights. The respect for human rights should include equivalent respect for their dignity. According to Quirk et al. (2010, p.61), the DNA of human rights rests within the principles of dignity, legality, and democracy. Andrew believes that dignity is characterized by autonomy (ability to practice human agency), real choice (requires a minimum level of education, health, and resources), and every individual should possess the liberty to exercise the options (Quirk et al., 2010, p.60). The respect for human rights requires justice officials both not eroding its elements while actively promoting people to pursue them, Other than that; inequalities can only lead to the erosion of dignity (Shukla, 2011, p.11). With that said, Quirk mentions that criminal justice should be a matter of social justice and law enforcement officials should try as much as possible not to let social inequalities hamper the ideal of justice and fairness (2010, p.61). It can be done by balancing social justice priorities, which resounds with Andrew Sanders’s freedom approach.

Andrew Sanders freedom approach draws on John Rawls political liberalism. The reason for this being that it forms the basis from which scholars and law enforcement officers can carry out critical reflection as to what would give criminal justice the impetus it needs to realize success. According to John Rawls, two fundamental principles need to be considered to achieve the conception of justice as being fair entirely. The first is that each individual has an equal claim to the fundamental rights and liberties afforded to them, and the second is that social and economic inequalities are to exist under two conditions. The first is that people that hold these positions must be in offices must offer their services with fair equality of opportunity and that the most significant benefit should be to the most disadvantaged (Welson, 2011, p.85). In so doing the freedom approach requires that law enforcement officials carry out their duties, and make decisions while keeping in mind that the minority may have limited representation on the socially acceptable policies which make up law.

Conclusion

The analysis takes on the task of evaluating the ‘freedom approach’ by critically analyzing its principles and application. The research shows that it satisfies the core values of justice and it is, therefore, a viable model to use in the criminal justice process. With regard to the justice principle, the research shows how Andrew Sanders equates his freedom approach to a rule-consequentialism argument. The values of the society are upheld by the model, with close alignment to the rules that maintain social order. The democratic principle of justice also holds due to the inclusivity aspect of the freedom model; observing that the community comprises of both suspects and victims and a preferred justice scenario would be that which optimizes the freedom of either. Finally, freedom approach has been deemed effective, efficient, and cost-effective to satisfy the three E’s of the justice core value. These ideas help conceptualize the framework developed by Andrew Sanders by showing its interconnectivity with the core aspects associated with free and fair justice for all. Furthermore, Andrew Sanders has a rebuttal for criticism directed at his model stating that countries must ensure that they have in place, laws and policies that take note of their minority groups. It ensures that the freedom approach does not only benefit the empowered in society. The freedom approach does away with quantifying whether a criminal procedure is too harsh or too lax, or whether the law enforcement agencies made the right decisions or not. Instead, the goal that maximizes the freedom of the community will be the most appropriate. It will have guaranteed that careful evaluations and extrapolations have been made, and an assurance that law enforcement takes the issue of equal and fair treatment of its citizens seriously when delivering justice.

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References

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