The criminal justice system traditionally performs its public functionscondemning prohibited conduct, shaming and stigmatizing violators, promoting societal norms -through the use of negative examples: convicting and punishing violators. One could imagine, however, that the same public functions could also be performed through the use of positive examples: publicly acknowledging and celebrating offenders who have chosen a path of atonement through confession, apology, making amends, acquiescing in just punishment, and promising future law abidingness. An offender who takes this path arguably deserves official public recognition, an update of all records and databases to record the public redemption, and an exemption from all collateral consequences of conviction.This essay explores how and why such a system of public redemption might be constructed, the benefits it might provide to offenders, victims, and society, and the political complications that creation of such a system might encounter.
Although an offender’s conduct before and during the crime is the traditional focus of criminal law and sentencing rules, an examination of post-offense conduct can also be important in promoting criminal justice goals. After the crime, different offenders make different choices and have different experiences, and those differences can suggest appropriately different treatment by judges, correctional officials, probation and parole supervisors, and other decision makers in the criminal justice system. Positive post-offense conduct ought to be acknowledged and rewarded, not only to encourage it but also as a matter of fair and just treatment. This essay describes four kinds of positive post-offense conduct that merit special recognition and preferential treatment: the responsible offender, who avoids further deceit and damage to others during the process leading to conviction; the debt-paid offender, who suffers the full punishment deserved (according to true principles of justice rather than the sentence actually imposed); the reformed offender, who takes affirmative steps to leave criminality behind; and the redeemed offender, who out of genuine remorse tries to atone for the offense. The essay considers how one might operationalize a system for giving special accommodation to such offenders. Positive post-offense conduct might be rewarded, for example, through the selection and shaping of sanctioning methods, through giving preference in access to education, training, treatment, and other programs, and through elimination or restriction of collateral consequences of conviction that continue after the sentence is completed.
While an offender's conduct before and during the crime is the traditional focus of criminal law and sentencing rules, an examination of post-offense conduct can also be important in promoting criminal justice goals. After the crime, different offenders make different choices and have different experiences, and those differences can suggest appropriately different treatment by judges, correctional officials, probation and parole supervisors, and other decisionmakers in the criminal justice system. Positive post-offense conduct ought to be acknowledged and rewarded, not only to encourage it but also as a matter of fair and just treatment. This essay describes four kinds of positive post-offense conduct that merit special recognition and preferential treatment: the responsible offender, who avoids further deceit and damage to others during the process leading to conviction, the debt-paid offender, who suffers the full punishment deserved (according to true principles of justice rather than the sentence actually imposed), the reformed offender, who takes affirmative steps to leave criminality behind, and the redeemed offender, who out of genuine remorse tries to atone for the offense. The essay considers how one might operationalize a system for giving special accommodation to such offenders. Positive post-offense conduct might be rewarded, for example, through the selection and shaping of sanctioning methods, through giving preference in access to education, training, treatment, and other programs, and through elimination or restriction of collateral consequences of conviction that continue after the sentence is completed.
Solving criminal justice problems typically requires the enactment of new rules or the modification of existing ones. But there are some serious problems that can best be solved simply by altering the way in which the existing rules are drafted rather than by altering their content. This is the case with two of the most serious problems in criminal justice today: the problem of overlapping criminal offenses that create excessive prosecutorial charging discretion and the problem of legislative inconsistency and irrationality in grading offenses. After examining these two problems and demonstrating their serious effects in perverting criminal justice, the essay proposes a particular method of drafting criminal offenses-consolidated offense drafting-and then shows how this drafting approach is the best and perhaps the only effective means of solving the problems. Potential political resistance to the proposal is discussed.
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