12. The Second Coming of Dignity

Abstract

In this chapter, Jonathan Simon argues that the modern criminal system should adopt the value of dignity as its governing ideal. The chapter argues that the legality principle—once a primary engine for strengthening the criminal system’s democratic legitimacy—has exhausted its sociological and jurisprudential power. Surveying 150 years of criminal legal commitments, this chapter shows how the legality principle rose to prominence as a vehicle for reform and accountability, and then fell under pressure from mass incarceration and institutional racism. Accordingly, the legality principle should be supplemented with a dignity principle, “an increasingly prominent value in legal systems internationally since the middle of the 20th century.” Simon traces the development of various forms of dignity in Supreme Court jurisprudence, from police procedure to prison conditions, determinate sentencing, and mental health. The chapter concludes that “the great banner reading ‘nulla poena sine lege’ must now be, not lowered, but joined by another banner of ‘no crime and no punishment without respect for human dignity.’”