What’s the Point? The Missing Piece of Criminal Justice Reform through Consensus and Compromise

Abstract

Criminal justice reform has had a firm place in news headlines for more than a decade. Reform has mainly been sought through two approaches: consensus through ballot initiative or legislative compromise. But these modes of reform share a fundamental failure: both often lack a clear articulation of the purpose of criminal sentencing. In other words, “What’s the point?” Without an agreement on the underlying purpose of criminal punishment, neither method of pursuing changes in the criminal justice system can ever produce meaningful, long-standing reform. Our usual way of understanding criminal justice reform is through legislative compromise. The moves from the Anti-Drug Abuse Act of 1986 to the Fair Sentencing Act of 2010 to the First Step Act of 2018 were the result of this slow legislative mechanism. However, the resulting sentencing changes were not due to an effort to study the effects of drug sentencing or to any work toward agreement about what purpose Congress was actually trying to fulfill through drug sentencing. The same problem exists when it comes to consensus reform through ballot initiative – a move that has taken place in many areas of the country—from the passing of recreational marijuana laws in places like Michigan to the attempt to pass sweeping drug sentencing reform through Ohio’s Ballot Issue. When examined, these efforts at reform consensus show that agreement on the need for reform does not show agreement on the purpose of reform. This lack of true, deep consensus can ultimately defeat efforts at large-scale reform through consensus.