Legitimizing criminal justice policies and practices.

I'd like to speak about the legitimation of the criminal justice system in the United States. It is a subject that I take very seriously because we could easily take for granted that the system will be legitimate and, therefore, fail to do the work that will legitimate it in the eyes of citizens.

As citizens, we ask a great deal from the criminal justice system. We ask it to protect us from criminal attack - not just from the reality but also from the fear of being victimized. When criminal attacks occur, we want the system to soothe our indignation by catching the crooks and giving them their just desserts (while protecting their constitutional rights). We expect it to achieve these ambitious goals without reaching too deeply into our privacy and freedom. We also want reassurances that the money and authority entrusted to criminal justice agencies will be used fairly, allocated toward need rather than an ability to pay, and used to enforce the law without fear or favor. Increasingly, we ask them to take a step further; and in the words of Attorney General Janet Reno, "Help to reweave the fabric of community."

My purpose is to discuss how criminal justice agencies - police, prosecutors, public defenders, courts, and correctional agencies - can meet these ambitious goals. In discussing this topic, I'll adopt the point of view of those who manage these agencies and look for some concrete ways to use the resources entrusted to them to accomplish their broad and diverse goals. But my focus will not be on the common concerns of management: downward and inward management of personnel policies and procedures. I will focus instead on the efforts criminal justice agencies can and must make to legitimate themselves in the eyes of the citizens they serve. That includes a focused effort on the encounters that criminal justice agencies have with citizens, in particular:

1) Ensuring quality in encounters with citizens, not only when they are providing service to citizens who appeal to them for help but also when they engage in what I would describe as an "obligation encounter" - when they ask citizens to stand still for the orderly processes of justice.

2) Rendering their organizations transparent and accountable to citizen overseers and their representatives, who demand assurances that the agencies are achieving their complex purposes in an appropriate way.

3) Engaging citizens as coproducers of crime control and justice in operations designed to help criminal justice agencies achieve goals that they cannot achieve alone and must have citizen input to accomplish.

Finally, and most important, is to extend the effect of all three of these kinds of citizen contacts with a kind of moral leadership that teaches people what it is that justice requires in a democracy and, through that device, to help reweave the fabric of the community that is gradually becoming tattered.

In short, I am most interested in how managers of criminal justice agencies engage external actors through political and legal processes. In the past, the goal of enhancing the legitimacy of criminal justice agencies and the specific efforts required to accomplish this goal have been badly neglected and, to some degree, misdirected. This failure has not only weakened the standing but also the real performance of the criminal justice system. Finally, I will argue that much of the increased focus on community justice should be understood as increased efforts to legitimate criminal justice agencies and capture the substantive operational benefits that come from such efforts.

Let me start, however, by recalling the important work that the President's Crime Commission did in the late 1960s to frame society's understanding of the operations of criminal justice agencies and in setting an agenda for reform. One of the most enduring products of the Crime Commission's work was the image of the criminal justice system as a large funnel that channeled criminal justice cases to their ultimate disposition. This image scythed through a tangle of institutional complexity and local variability to create an enduring schematic image of how criminal justice agencies were supposed to operate.

Everyone understood, of course, that this was not a system in the sense that the agencies were being explicitly directed toward a particular objective by some coherent centralized authority. It was only a system in the far more limited sense that the different agencies were linked together through a process in which one agency's outputs became the next agency's inputs....

Now, this so-called criminal justice system was judged to be valuable to society in two broadly different ways. First, it was an instrument of practical purposes. As an instrument of practical purposes, this system was thought to be accountable for the efficient and effective reduction of crime. The criminal justice system was thought to accomplish this result largely through four distinct mechanisms: deterrence, both general and specific; incapacitation; and rehabilitation. That practical goal and those practical means were what the system as a whole seemed to be designed to do, and that was what the citizens who paid to support the system wanted as a result. That makes up frame one, the practical frame.

But the criminal justice system was also considered important in an entirely different way - not as a practical instrument for achieving specific results but also as an instrument of justice, a way of holding offenders accountable for their crimes while also protecting their constitutional rights. It's important to understand that the second idea - the criminal justice system is there to produce justice, not just crime control - could constitute a stand-alone justification for criminal justice system processing. From this point of view, the system did not have to show that it was producing any practical effect such as reducing crime; it was enough that it produce justice. There were widely varying views about what constituted justice, of course, both in general and individual cases; but the point is that the idea of creating justice is quite different than the idea of producing crime control. Further, the production of justice could constitute a separate and complete justification for the operations of the system.

These two different evaluative frames laid out the different ways in which individual agencies in the criminal justice system and the system as a whole could legitimate and justify themselves in the eyes of the citizenry. The system could legitimate itself as an effective and efficient means of reducing crime, or it could establish itself as an important instrument of justice, a means for ensuring that citizens live up to their responsibilities to one another and society. Since both were important, the goals of reform advanced on both fronts simultaneously: To make the criminal justice system more efficient and effective and to make it more fair and just....

One important feature of the funnel diagram was that the central drama it evoked was whether a particular case and an associated offender would make it all the way through the process, that is, to prison. This seemed to suggest that the whole point of the exercise was to ensure that offenders were ultimately incarcerated. This orientation ignored, of course, two important facts. First, most cases did not, in fact, make it all the way through the system. What was to be done with cases that couldn't be solved or with offenders that couldn't be convicted? Second, the funnel diagram seemed to ignore that most of the actual work of and expense to the criminal justice system occurred both before and after the moment of adjudication. In short, a majority of the work in which the system engaged involved assisting the community to cope with the facts that some cases could not be resolved and that most offenders would be returned to the community sooner or later. Obscured was the important reality that we live with crime and live with offenders.

Second, because the diagram made the processing of cases to imprisonment so important, it naturally tended to focus attention on serious criminal cases, primarily adult felonies. Lesser cases, such as misdemeanors or juvenile offenses, would not be worth the trouble of such elaborate attention nor the expense of a prison sentence.

Besides, a sharp focus on serious offenses and offenders seemed closely allied to the goals of producing an efficient and fair criminal justice system. It seemed obvious as a matter of efficiency and effectiveness that scarce resources should be reserved for the most serious offenses and offenders. It also seemed important that the aggressive use of state authority should be limited to crimes that were bad in themselves, not simply bad because they were prohibited. Such policy ensured consistency and integrity, as well as economy, in the enforcement of laws.

Third, the funnel diagram presented a fundamentally reactive view of crime control and thereby underemphasized some potentially important preventive opportunities. Of course, the Crime Commission did not ignore prevention. Deterrence, after all, is a preventive concept. It seeks to dissuade people from committing crimes by threatening them with bad consequences if they do. Incapacitation and rehabilitation can also be seen as preventive ideas. They may not prevent a potential offender's first crime, but they might well have an effect on future offending. And given the importance of criminal recidivism and overall patterns of crime, preventing future crimes by those who have already committed one would be an important preventive contribution.

It also is true that the commission insisted that the root causes of crime included poverty, economic inequality, and racism; and that crime could only be reduced significantly by alleviating these broad social conditions - the ultimate preventive argument. Still, in retrospect, it seems that there were some important opportunities for preventing crime that could have been noted more prominently, specifically those that lay between the limited reactions of the criminal justice system on one end and broad social actions directed at the root causes of crime on the other....

Perhaps the most important omission of the Crime Commission, however, was that in focusing attention on the publicly supported agencies of the criminal justice system, it necessarily deemphasized the role that private individuals and institutions of civil society - families, community groups, churches, merchant associations - play in controlling crime, both by themselves and as adjuncts to the criminal justice system. The funnel diagram did not emphasize the central role that victims and witnesses play in activating and focusing the attention of criminal justice agencies on particular crimes. Nor did it point to the important role played by citizens who make individual and collective efforts to guard their own property and intervene with fellow citizens who behave badly. Nor did it draw attention to the role local merchants might play in seeking to enforce orderly conditions on the streets that fronted their stores or in providing jobs to neighborhood kids. Nor did it emphasize the role of church groups in giving support to single parents struggling to supervise and raise their children. Such private efforts were viewed as beyond the boundaries of the criminal justice system - they might have an effect on levels of crime and disorder but are largely independent and beyond the reach of agencies of the criminal justice system. This omission was, in my view, particularly important given the fact that many offenders would never be taken from the community or would be quickly returned into the community for handling.

The neglect of actors outside the criminal justice system related to the last omission of the Crime Commission and most closely relates to the subject of this talk. Namely, there were important sources of legitimacy for the criminal justice system beyond the pursuit of efficiency and lawfulness that were not only neglected but implicitly rejected by the Crime Commission as important sources of legitimacy. That is the kind of legitimacy that is rooted, on one hand, in moral passion and, on the other, in the political and individual responsiveness of the criminal justice system. To the Crime Commission, moral passion and politics were viewed with great caution. Behind moral passion, they saw the lynch mob. Behind political responsiveness, they saw the threat of political control of the system by the powerful against the weak. Thus, establishing important links between criminal justice processing on one side and moral passion and politics on the other was viewed not as a way to anchor and legitimate the system but, instead, as a way of exposing the operations of the criminal justice system to powerful tides of ignorance and bias. Rather than being sought out, these were to be avoided. To do their work, it was better that the agencies of the criminal justice system be insulated from both moral passion and politics. Their legitimacy could be established in law and professional competence rather than in responding to the moral passions of individuals and politicians.

The paradigm constructed by the Crime Commission proved to be a powerful one. Over the next two decades, agencies of the criminal justice system pursued the agenda laid out for them with great enthusiasm. They made significant progress in increasing their professionalism and technical knowledge and in reducing the amount of racial and class bias in the operations of the criminal justice system.

By rights, this should have increased the standing and overall effectiveness of the system. It seems to me, though, that what happened was that the criminal justice system agencies found that their overall effectiveness and standing weakened over this period. The popular legitimacy of the system faded even as the system was becoming fairer and more effective. Legislatures took discretion back from the hands of the sentencing judges. Community groups demanded the establishment of civilian review boards, and they removed the civil service protections of police chiefs. Increasingly, citizens turned to private security arrangements to meet their desires for protection.

The criminal justice system, even as it was becoming fairer and more professionally competent, seemed to be becoming increasingly irrelevant to citizens' efforts to guarantee their own security and satisfy their appetites for justice. The system's role in producing social justice seemed less and less important.

So the question that faces us now, 30 years after the Crime Commission's report, is how we can restore the standing and effectiveness of the criminal justice system as a social institution that can not only guarantee our safety but also help us understand what our obligations are to one another in a conception of justice.

The loss of popular legitimacy for the criminal justice system produces disastrous consequences for the system's performance. If citizens do not trust the system, they will not use it. If citizens do not want to use the system, the expensive apparatus we constructed will be useless where it depends fundamentally on citizen mobilizations. Moreover, to the extent that confidence in the system is illdistributed, with poor, racial minorities more suspicious of the system than wealthier majorities, the capacity of the system to act fairly is undermined, along with its future legitimacy and effectiveness and its capacity to teach what we owe to one another. The system's ability to mobilize citizens to comply with laws voluntarily also will be undermined if citizens view it as inefficient or unjust. Without proper legitimacy supporting criminal justice operations, instead of having a collectively established criminal justice system helping to enforce a widely shared conception of a just moral order, we will live in a world of gated communities, each with its own conception of right conduct and each enthusiastically excluding citizens from other communities from moving into their own. To avoid this result, we must find a way to restore the popular legitimacy of the nation's criminal justice system.

Legitimacy could be viewed as an abstract value, an ideal to be achieved. Viewed from this vantage point, what particular individuals and groups actually think about the system and its operations would be viewed as irrelevant. What is important is the extent to which the system could realize a particular set of values, such as fairness or efficiency. Its successes in doing so would be registered through technical professional evaluations, not in popular sentiment.

Alternatively, one could think of legitimacy as something that exists in the minds of citizens. This perspective looks for what citizens really think about the system - whether they think it is fair or efficient or responsive to their conceptions of justice. From this vantage point, we could learn about the system's legitimacy not by looking at its performance and comparing it with some ideal but by finding out what people really think about it and on what basis they have formed their views.

From an operational and managerial perspective, this second category is the more important type of legitimacy - the kind that exists in the minds of citizens the system is supposed to serve. That may be very different and require different kinds of performance than the first kind of legitimacy. Indeed, some worry that the ideals that many think should define the legitimacy of the system are not, in fact, embraced by ordinary citizens. In this view, we face a stark choice between legitimating the system through political responsiveness on one hand, which threatens the ideals of justice, or trying to make the system meet the standards of efficiency and fairness on the other. Yet, the facts are that many of the system's most important ideals are embraced by the populace. The populace, too, likes procedural fairness. Citizens like a sense of proportionality. They like efficiency and economy. And, even if they did not like those things (which give us an enormous advantage), the problem that we as leaders and managers of the criminal justice agencies would face would be to help them come to love those things rather than not. The reason is that in the end, the system cannot operate without the support of the citizenry for its fundamental tenets.

This, then, defines the problem to be addressed. How can we enhance the popular and moral legitimacy of the system while at the same time enhancing the legitimacy that comes from being technically proficient and aligned with important legal virtues, such as fairness and restraint?

My answer to this is a simple one. As managers of criminal justice agencies, we must pay attention to the quality of the interactions we have with citizens in three distinct roles: as clients, as overseers, and as co-producers of justice. In managing these interactions, we must stand for the important democratic values of fairness and restraint. This seems to be consistent with the challenge of establishing community justice and using the nation's criminal justice institutions to reweave the fabric of the community.

Let me explain why. Abrecht, writing to America's corporate executives about how to improve the performance of their organizations, develops the idea that success lies in paying attention to the quality of what he calls "moments of truth," the particular moments when customers encounter an organization's operation and begin forming impressions about the company and its product. From my point of view, labeling such mundane events as being put on hold when one calls to order a product as a moment of truth seems a little grandiose. But even in the commercial world, this grandiosity helps to focus attention on the details of these all-important customer contacts.

The concept, to me, seems far less out of place when we are talking about the ways the nation's criminal justice agencies might legitimate themselves in the eyes of citizens they serve. These contacts really do qualify as important moments of truth. These are moments when citizens encounter a criminal justice agency as clients asking for help or being obliged to stand still; moments when, as citizens, they contemplate the work of the criminal justice system and decide whether it is performing well or badly; and moments when they are asking to participate in the production of justice either as part of a community-based patrol or as part of a jury. These three moments of truth are what we have to pay attention to.

The most obvious points of contact between citizens and criminal justice agencies consist of those moments when citizens call the system for help. We imagine victims and witnesses calling the police for emergency aid or demanding justice from prosecutors. This is, of course, an important client group that criminal justice agencies must serve. If anyone qualifies as a "retail customer" of a criminal justice agency, it must be these individuals. And it doesn't take much experience in a radio patrol car or even in a prosecutor's office to learn that many citizens want things from criminal justice agencies other than the prosecution of criminal cases. We all know that citizens call the police for many things other than the response to serious crime. One of the most important ideas associated with community-oriented policing is to view these noncrime calls for service as worth a response, rather than as a distracting nuisance. The idea is that these calls may represent opportunities to intervene earlier in situations that might escalate to crimes. Or, even if they are not, they may be an opportunity to establish a relationship with a citizen that can become a bankable asset in the future.

Similarly, prosecutors have figured out that not only do they have to attend carefully to victims and witnesses to maintain their cases through the long process of adjudication but also that it pays to give close attention to the less serious crimes adjudicated in misdemeanor as well as felony courts.

Agencies of the criminal justice system have important "retail" contacts, if you will, with another groups of clients, as well. These contacts consist of not just those who call for help but also those who become the focus of enforcement efforts. In addition to alleged criminal offenders, it also includes those who have been stopped for traffic offenses or asked to cooperate in some kind of crowd control. It has long been accepted that there is little chance of pleasing these clients of the system and little prospect that they could become supporters. The reason is that unlike the clients identified above who need help from the criminal justice agencies, this group of clients is obligated to do something they did not choose to do or are punished for something they should not have done. As recipients of obligations and penalties rather than service it seems unlikely that these clients could be satisfied. In any case, it seems improbable that satisfying these clients should be the goal of the enterprise. Consequently, with respect to these encounters, the primary goal is to satisfy others that the encounters proceed properly - that a subject is, in fact, reasonably suspected; that a traffic stop is made in accord with the law; that the person is sentenced without fear or favor.

More recently, however, this pessimistic view of how we should interact even with our "obligatees" has changed. Some who manage criminal justice agencies believe that arrestees, defendants, and prisoners can tell the difference between being treated well and badly, or fairly and unfairly, and that this difference should matter to their colleagues throughout the system....

It is also worth noting that citizens want things from criminal justice agencies as groups, as well as discrete individuals. Particularly important are those groups that form around residential communities. Sometimes there are particular interest groups that become important, as well, such as small-business associations, women who fear domestic violence, or parents who fear their children will become involved with drags or gangs. One can easily imagine that it might be important to think of such groups as having an account with criminal justice agencies, and that it would be important for those who manage criminal justice agencies to attend to the character and quality of the relationships they are maintaining through those accounts.

From the perspective of this speech, what is important about these encounters with clients, both those receiving aid and those receiving obligations (individuals as well as groups), is that all such encounters leave a residue of experience and feelings - that these in turn become the bases for diminished legitimacy of the system. Citizens, like customers in commercial transactions, remember when they have been treated well and badly, and they respond with more or less loyalty and interest. They may even come to identify and value the aims of those who treated them well and learn to suspect and despise the aims of those who treated them badly. Thus, these interactions form the basis for communicating values, as well as for building support and legitimacy for criminal justice agencies.

While the most intense moments of truth between citizens and criminal justice agencies may occur when citizens have discrete transactions with the system that involve their particular interest, the most common moments of truth may be those when citizens hear something about the performance of the system and decide whether it is performing well or poorly. These are the moments when they interact with the system as overseers, not as either clients or coproducers. The views of citizen overseers may be important not only because they affect their willingness to support the criminal justice system with taxes and grants of authority, but also because their views about whether the system is just may affect their willingness to obey the law. Citizens want to know that the system has written rules that are fair, that the laws are enforced equitably, that the system can respond to some important differences among individuals, and that the whole system is designed to operate to good effect.

The views of citizen overseers, however, may be profoundly influenced by the concrete experiences they had as clients of the system. They may also form their views based on the experience of their friends and families. For this reason, client contacts are very important....

The point I want to make about citizen overseers, however, is that if we wish to engage citizens as effective overseers of criminal justice systems, it is important that we find ways to make our operations transparent to citizens and to present our operations in a comprehensive, consistent, and reliable way. Many in the criminal justice world have been reluctant to take on that responsibility for fear that their operations would become too exposed and too vulnerable to political interference. But I think that many officials have now had the experience that, when they make the effort to expose and render transparent their operations, they win a grant of support and enthusiasm from the citizens that would stand them in good stead in those moments when, occasionally, the system fails. However, it takes a certain amount of courage to decide to make your organization transparent and accountable to citizens. That turns out to be crucial for getting the most out of that particular moment of truth, when a criminal justice agency relates to a citizen as an overseer.

Citizens also make contact with criminal justice agencies through their important role as coproducers of justice. Victims and witnesses are important coproducers, as well as clients and customers of the system. Their efforts are essential to making the system work. One can even imagine some offenders are coproducers, in the sense that they have to do a great deal of work on their own to allow rehabilitation to succeed. Beyond this, we can imagine many other ways in which citizens can become coproducers. They are asked to serve on juries. They often organize themselves in block groups. They are sometimes asked to serve on sentencing councils, to provide mentoring to kids, or to help monitor offenders released in communities. Indeed, families of offenders might turn out to be important allies in efforts to reduce future offending, and not only in juvenile cases. That idea, that there are people in the communities who are coproducers, is advanced most prominently by the ideas of community justice. People are inventing new ways to engage citizens in the concrete operations of the system, and in doing so, they not only increase the power and impact of the system, but they also increase its standing with communities.

If managed well, these contacts with citizens as coproducers provide an opportunity to increase the legitimacy of the system. Each contact forms an impression; each contact provides an opportunity to express and advocate a particular set of values through the operations of the system. When the police arrest suspects and read them their rights in front of victims and witnesses, when prosecutors explain how a particular case will be handled and why, when defense attorneys explain the case against their client, when citizen-jurors are given their instructions by a judge, citizens are being taught about the basic values of the criminal justice system. These include: measured indignation about criminal offending tempered by respect for the rights of citizens, the need to share responsibility in the exercise of social control, and the ambition to be fair. It is from this material that we can construct a constituency for justice and the criminal justice system.

Aristotle observed that the first virtue of a state was the quality of justice it could produce among its citizens. There is an important meaning of justice in that idea, of right relationships among individuals, as well as between individuals and the society and state. Within this broad notion of justice, right reactions to criminal offending are only one small topic. But in many ways, this is the most exacting test of justice, the hottest crucible, the place where our commitments to and understanding of one another are tested very sharply. Thus, it may be that an important base for all these other interactions with one another is established by the quality we can produce in these particularly demanding relationships.

I believe it is the task of criminal justice agencies to take on the burden of producing quality justice in society's response to crime and criminal offending. In doing so, it falls to the nation's criminal justice agencies to teach two of the hardest lessons that citizens in democracies have to learn. The first is the most obvious: that it is wrong to give offense to other citizens and you must practice restraint - you have to respect other people's lives and properties. The second lesson is far less obvious but potentially as important: namely, that it is wrong to take offense too easily or to respond to offense disproportionately. it is the second lesson that carries the burden of forcing us to be tolerant, and in many ways, it is a much more "inhuman" act to be tolerant than to be offended when one is attacked.

By building a constituency for these values, we not only increase the legitimacy of the criminal justice institutions and enhance their efficiency, we also accomplish the broader goal of reweaving the fabric of a liberal community - "liberal" in the old-fashioned sense. We can teach what we most fundamentally owe to one another. After all, it is in the interstices created by the restraint we impose on ourselves and the wide latitude we give to others that the maximum of liberty and security is found. And it is that maximum we seek through the various initiatives that comprise the movement for community justice. If we are to produce justice, we must learn to love it, and that is what the movement to create community justice is all about.

Dr. Mark H. Moore, a professor at the John F. Kennedy School of Government, Harvard University, delivered this address as part of the Perspectives on Crime and Justice Series sponsored by the National Institute of Justice.