*Note

Additional update coming soon w/ the following (need to finish processing some cards)—
- Additional important work on Enact, CJR, and each area
- Lots of additional specific yes/no T cards for different AFFs, particularly in the Sentencing area
- All the other misc. definitions one would want in this file (i.e. of ‘should’ etc.)
 Resolution
The United States federal government should enact substantial criminal justice
reform in the United States in one or more of the following: forensic science,
policing, sentencing.
Enact
 Courts Can Enact
‘Enact’ means to legally establish or make law, which the Courts do—Restricting
it to legislatures only is arbitrary, unpredictable and imprecise
Wright 13 – JD from UMich
Adam Wright, JD-University of Michigan Law School, Executive Notes Editor for the Michigan Journal of
Race & Law, Federal Constraints on States’ Ability to License an Undocumented Immigrant to Practice
Law, Vol. 19, 2013, https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1004&context=mjrl

A.The Plain Language of the Statute Does Not Confine an “Enactment of a State Law” to
Legislative Enactments
The text of the savings clause does not limit “enactments of State law” to legislative enactments.85
Opponents , nevertheless, argue that only a legislature may enact a law .86 However, plain meaning
and popular use of the word “enact” is not so limited . The Merriam-Webster Dictionary does not
define “enact” as an action exclusive to legislatures ; it is merely defined as “to establish by legal
and authoritative act ,” or “to make into law. . . .”87 “ Enact” is not defined, nor is it generally
thought of, as an action unique to legislatures.
Further, courts commonly refer to court-enacted rules . For example, the California Supreme Court
has discussed the “rules of court enacted in response to [a] constitutional amendment . . . .”,88 the
Delaware Supreme Court has referenced a “statute or rule of court enacted under authority of
law ”,89 and many other state supreme courts and federal appellate courts often have pointed to
court-enacted rules.90 These cases refer to court enacted rules that deal with bearing the cost of
printing a transcript record,91 rules setting the requirements for appeal in state court proceedings,92 and
rules prescribing class action requirements.93 The plethora of these examples indicates that courts
have not restricted the ability to “enact” a law to the legislature .
The fact that these cases refer to court-enacted “ rules” rather than “laws ” is of little significance .
Similar to legislative enactments of law, court rules have “the force of law ” and are in this important
way indistinguishable from legislative laws.94 The U.S. Court of Appeals for the Second Circuit has
stated that “[l]ocal rules have the force of law, as long as they do not conflict with a rule prescribed by the
Supreme Court, Congress, or the Constitution.”95 The Committee, citing Black’s Law Dictionary ,
notes, “‘[ L]aw means more than statutes and includes legislation, judicial precedents, rules, and
legal principles . . .”96 Thus, it follows that a state court may enact a law sufficient to activate §
1621’s savings clause.

Courts enact
Coleman 63 – GC at Allied Chemical
Lawrence A. Coleman, General Counsel, Allied Chemical Corporation, The Deep Pocket Rule and the
Jumping Warranty: Strict Products Liability of Manufacturers, Food, Drug, Cosmetic Law Journal ,
November, 1963, Vol. 18, No. 11 (November, 1963), pp. 654-664, http://www.jstor.com/stable/26655781

Our purpose is to comment upon an emergent rule of law that has profound implications for
manufacturers.
It is a rule of law that is jurisprudentially "radical," as it goes to the "roots" of our law ; it is morally dubious,
as it would rob Peter to pay Paul ; it is economically oppressive, as it casts its whole burden on a single
class of businessmen ; and it is wrongly ordained, as it has been enacted by the courts , not our
legislatures .
We refer to the recently developed, judge-made rule that imposes an absolute liability on manufacturers
for injuries sustained by others using their products, even when such products are carefully made and
sold. We refer to what has been termed the "Deep Pocket" Rule.
Background of the Rule The change in our legal order made by the Deep Pocket Rule is best appreciated against the background of the law of products liability as it stood in, say, 1950, a little more than a decade ago. At that time, a manufacturer's products liability was typically based upon two legal theories, one developed under the law of torts (that is, civil wrongs), the other created by the law of sales. The tort theory involved the familiar principle, applicable to us all, that a man is liable to another for injuries caused by his
negligent conduct. Negligence was defined by reference to the objective stand ard of the ordinary care of prudent men. Consequently, a manufac turer who made or sold a product carelessly was liable for the injuries sustained by others using the product. PAGE 654 FOOD DRUG COSMETIC LAW JOURNAL NOVEMBER, 1963 This content downloaded from 141.161.91.14 on Tue, 23 Jun 2020 07:23:49 UTC All use subject to htt Justice Cardozo's Decision Originally, this liabilty for negligence extended only to immedi ate
purchasers of the product, persons in so-called "privity" with the manufacturer. But in 1916 that limitation was removed, at least with respect to dangerous products, by Judge Cardozo of the New York Court of Appeals in a seminal decision,1 and it is probably the current rule that a negligent manufacturer is liable to all who are fore seeably injured by his product. Judge Cardozo's requirement that the product be one that would be "reasonably certain to place life and limb in peril when negligently made"2 seems to have been
more easily satisfied outside New York than within his jurisdiction, so that sofas, lounge chairs, cigarettes, and toy tops, among numerous other products, have been regarded as inherently dangerous in several of the states.3 One is reminded in this connection of the comment of a recently appointed federal judge in the New York Southern District who, sitting for the first time on maritime tort cases, remarked that he had never imagined that there were so many "unseaworthy" vessels plying New York Harbor! The relevant point
here is that under this tort theory, it remains a condition of the manufacturer's liability that he be negligent, that he be at fault, that he be blameworthy. That is the usual tort rule of liability applicable to us all, and in theory at least the manufacturer is neither favored nor disfavored by it. We must quickly add that there are a few special situations in which negligence is not a condition of tort liability, as under work men's compensation statutes, or for activities like dynamiting, that subject others to extraordinary hazards. But the
exceptions under score the otherwise universal rule that men are not liable without fault. Of course, intentional wrongs are actionable without negli gence, but they are hardly an exception to the rule of no liability without fault. Warranties Made by Sellers to Buyers The second theory of products liability was found in the law of sales, and specifically in the warranties that were made by sellers to buyers. 1 MacPherson v. Buick Motor Com pany, Product Liability Cases 827, 217 N. Y. 382 (1916). 2 Case cited at footnote 1, at p.
389. ' Frumer & Friedman, I Products Lia bility 25-26 (1960). STRICT PRODUCTS LIABILITY OF MANUFACTURERS PAGE 655 This content downloaded from 141.161.91.14 on Tue, 23 Jun 2020 07:23:49 UTC All use subject to htt Dean Presser has said that the warranty concept is "a. freak hybrid born of the illicit intercourse of tort and contract." 4 It is a concept with a strange legal history, but in modern times, certainly since the general enactment of the Uniform Sales Act, the warranty has functioned much like a promise
from seller to buyer guaranteeing the quality of goods sold. The promise may be expressly made by the seller, or may be implied by law. In either event, the seller is obligated to deliver goods of the promised quality. If the goods prove defective, the warranty is breached, the seller is liable for consequent damages, and it is no defense that the seller exercised the greatest care in making the product. Here the strict liability normally associated with contract breaches ensues. "In Privity" This is the traditional and proper result;
promises must be kept. The crucial point in 1950, however, was that only the buyer who had purchased directly from the seller could sue for the breach of war ranty. He was, after all, the only other party to the contract of sale, the only party, therefore, to whom the guarantee of quality could ordinarily 5 have been made. He was "in privity." If he resold the goods to a consumer, the latter, not being a party to the original con tract of sale, not being in privity with the manufacturer, could not sue the manufacturer for breach of
warranty ; his remedy was against his immediate seller. Where fault was present, the remote consumer might sue the manufacturer in negligence under Judge Cardozo's ruling mentioned earlier, but not for breach of warranty. Again, we must add that an exception to the no-privity-no-liability in-warranty rule had long existed in the case of food products. Here, manufacturers seem to have had an extensive liability from the begin nings of our law. The rationale of the exception has never been satis factorily traced,6 but a great
teacher of law has suggested a sardonic explanatibn of these food decisions with the comment, "The emotional drive and appeal of the cases centers in the stomach." 7 In 1950, then, the general rules were that manufacturers, if negli gent, might be held liable to all persons foreseeably injured by their 4 Prosser, "The Assault upon the Cita del" 69 Yale Law Journal, 1099, 1126 (1960). 5 Third-party beneficiary doctrine in contract law should not apply. Re statement, Contracts, Sec. 133(1) (b) (1932). 6 See Dickerson, Products
Liability and the Food Consumer, p. 26 (1951); Pres ser, cited at footnote 4, at p. 1103. 1 Llewelyn, Cases and Materials on Sales, p. 342 (1930); quoted in Presser, cited at footnote 4, at p. 1103. PAGE 656 FOOD DRUG COSMETIC LAW JOURNAL—NOVEMBER, 1963 This content downloaded from 141.161.91.14 on Tue, 23 Jun 2020 07:23:49 UTC All use subject to htt products ; and secondly, might be held liable to their immediate cus tomers for breach of warranty, irrespective of negligence. Influential Opinion of 1944
Noted About 1950, ideas that had been germinating in the minds of some of our judges began to bear fruit; one is tempted to say, bitter fruit. An anticipatory expression of these ideas is found in a concurring, but influential opinion of a judge of the Supreme Court of California. In a case appealed to that court8 the facts were that the plaintiff, a wait ress in a restaurant, was injured when a bottle of cola exploded in her hand. (I may say, parenthetically, that bottlers have contributed much to our learning in this field.) Defendant was
a bottler who sold and delivered the bottles to the restaurant. No specific act of negli gence by defendant was shown, but there was no evidence that any one but plaintiff had touched the bottles after delivery. -On this rec ord, the jury found the defendant bottler negligent, and the Supreme Court of California affirmed the judgment. However, Judge Traynor rested his concurrence on broader grounds than the defendant's negligence. He said : "I concur in the judgment, but I believe the manufacturer's negligence should no longer
be singled out as the basis of a plaintiff's right to recover in cases like the present one. In my opinion it should now be recognized that a manufacturer incurs an absolute liability when an article that he has placed on the market, knowing that it is to be used without inspec tion, proves to have a defect that causes injury to human beings. . . . Even if there is no negligence . . . public policy demands that respon sibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that
reach the market. It is evident that the manufacturer can anticipate some hazards and guard against the recurrence of others, as the public cannot . . . the risk of injury can be insured by the manufacturer and distributed among the public as a cost of doing business. . . . Against such a risk there should be general and constant protection and the manu facturer is best situated to afford such protection." Thus, Judge Traynor, speaking in 1944, holds that, irrespective of the care they exercise, manufacturers may be held liable for
de fective products even to persons, such as the plaintiff-waitress, with whom they have no contractual relations. He suggests that such 8 Escola v. Coca Cola Bottling Com pany of Fresno, 11 Neglegence Cases 88, Product Liability Cases 1053, 24 Cal. 2d 453 (1944). STRICT PRODUCTS LIABILITY OF MANUFACTURERS PAGE 657 This content downloaded from 141.161.91.14 on Tue, 23 Jun 2020 07:23:49 UTC All use subject to htt liability may properly be imposed on manufacturers because they can best afford it as a
cost of doing business. Dean Pound has described this view as resting on the idea "that the manufacturer can stand the loss better than the person injured."9 Here is the "Deep Pocket Rule," full blown. "Assault upon the Citadel of Privity" Within 20 years, the California judge's view was to be shared by some of the most prominent courts in the country, and applied to all kinds of manufacturers. Liability without fault for manufacturers was to be accomplished by an "assault upon the citadel of privity." 10 as Judge Cardozo has put
it. What happened was this : the second theory of product liability, breach of warranty, was retailored to suit the problem. A plaintiff remote from the manufacturer was permitted to base his claim on breach of warranty, notwithstanding the theory that a manufacturer's warranty is a promise to his immediate buyer only. He might recover if it were shown that the product proved defective and the plaintiff was hurt, without showing how or where the defect developed. Proof of careful manufacture would be no de fense to an action for
breach of warranty. The new dispensation would impose an absolute liability without fault on manufacturers generally. To be sure, the refashioning of the warranty theory to achieve this end has met with no little conceptual difficulty.11 A student of the subject has found about thirty different modes of legal analysis for making the warranty "jump." 12 It has been held that the retailer is the manufacturer's agent to sell, that the retailer is the consumer's agent to buy, that the retailer assigns his warranty from the manufacturer to the
consumer, that the consumer is a third-party beneficiary of the retailer's contract with the manufacturer, and so on. When this happens in a legal system, one can be fairly certain that the reasons given by judges have fol lowed, not preceded, the desired result. 9 Pound, An Introduction to the Phil osophy of Law, p. 102 (1953 rev. ed.). 10 Ultramares Corporation v. Touche, 255 N. Y. 170, 180 (1931). 11 Amram and Goodman, "Some Prob lems in the Law of Implied Warranty," 3 Syracuse Law Review, 259, 263-268 (1952). "
Gillam, "Products Liability in a Nut shell," 37 Oregon Law Review, 119, 153 55 (1957). PAGE 658 FOOD DRUG COSMETIC LAW JOURNAL—NOVEMBER, 1963 This content downloaded from 141.161.91.14 on Tue, 23 Jun 2020 07:23:49 UTC All use subject to htt "Strict Tort Liability" Judge Traynor has now made this clear. In a 1963 California opinion, writing this time for a unanimous Supreme Court, and with a battery of supporting decisions now behind him, he writes :13 "A manufacturer is strictly liable in tort when an
article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being. . . . Although . . . strict liability has usually been based on the theory of an express or implied warranty running from the manufacturer to the plaintiff . . . the liability is not one governed by the law of contract warranties but by the law of strict liability in tort . . . We need not recanvass the reasons for imposing strict liability on the manufacturer . . . The purpose of such liability is to
insure that the costs of injuries resulting from defective products are borne by the manu facturers that put such products on the market rather than by the injured persons who are powerless .to protect themselves," (Italics supplied.) We must at least be grateful for this candor. The California court tells us that we need no longer concern ourselves with the in tricacies of the jumping warranty, that a new tort has emerged, and that it is specially designed for manufacturers who are without fault. It is simply called, "Strict Tort
Liability." Happily, the California decision is not yet the law of the land. There remain a very large number of states, perhaps a majority, that refuse to make the warranty jump. And the American Law Insti tute's new Torts Restatement imposes strict liability on sellers of food only." But if it is not the law, it is the handwriting on the wall. It has already received glowing approval from no less than Chief Judge Desmond of the New York Court of Appeals. Just last May, speak ing for the court, he referred to Judge Traynor's concept of
"strict tort liability" as "surely a more accurate phrase" for manufacturer liability.15 This is powerful judicial backing for the new philosophy. It behooves us to examine the matter somewhat more closely. 13 Greenman v. Yuba Power Products, Inc., IS Neglegence Cases (2d) 35, 59 Cal. 2d 67 (1963). "Restatement, Torts (Second) Sec. 402A. 15 Goldberg v. Kollsman Instrument Corporation, CCH Products Liability Cases If 5058, 191 N. E. 2d 81, (N. Y. Ct. App., 1963). STRICT PRODUCTS LIABILITY OF MANUFACTURERS
PAGE 659 This content downloaded from 141.161.91.14 on Tue, 23 Jun 2020 07:23:49 UTC All use subject to htt Dubious Morality of the Rule We said at the outset that the Deep Pocket Rule, the rule of strict tort liability for manufacturers, is jurisprudentially radical, in the sense that it goes to the roots of our law. It is, we hope, now ap parent that it does. As we have observed, with few exceptions, our law refuses to impose liability without fault. That principle is firmly embedded in our legal order. To depart from it and create a
special class of de fendants without the benefit of its protection because of their deeper pockets, to (in effect) place manufacturers beyond the pale of law because they can afford it, is seriously to compromise our system of justice. It is difficult to conceive_ of any other sector of our law in which ordinary civil liability is determined with reference to the economic status of the parties. How foreign that view is to our traditional jurisprudence is best seen in this extract from Section 406 of the Soviet Civil Code :16 "In situations where .
. . the person causing the injury is not under a duty to repair, the court may nevertheless compel him to repair the injury, depending upon his property status and that of the person injured." (Italics supplied.) Surely that is a shocking idea to Americans. A prominent teacher of jurisprudence has shown us how one's sense of justice is offended by this kind of discriminatory treatment of a defendant. He posits the case of five men arraigned before a magistrate for the identical offense. The magistrate acquits three, fines one five
dollars, and imprisons the last. These inequalities of treatment arouse the sense of injustice because, as he puts it," ". . . equal treatment of those similarly situated with respect to the issue before the court is a deep implicit expectation of the legal order." It is assuredly a deep implicit expectation of our legal order that parties to a civil proceeding will be equally treated irrespective of their economic status. "Justice is blind," we say, and do not add (as has a wag1S) "Blind she is, an' deef an' dumb an' has a wooden leg." If liability
is to be imposed on the basis of affluence, shall we rule for the small manufacturer when the plaintiff is a giant chain store? Clearly, we are dealing with fundamental moral questions, and it will not do to rob Peter to pay Paul. There is a close kinship between 18 Quoted in Pound, An Introduction to the philosophy of Law, 1953 rev. ed. at p. 103. 17 Cahn, The Sense of Injustice, 1949 at pp. 14-15. 18 Finley Peter Dunne. PAGE 660 FOOD DRUG COSMETIC LAW JOURNAL NOVEMBER, 1963 This content downloaded from
141.161.91.14 on Tue, 23 Jun 2020 07:23:49 UTC All use subject to htt law and morals in the principle of no liability without fault. In mak ing moral judgments, we do not regard men as wrongdoers when they are blameless. Neither should the law. There are, moreover, important social theories involved here. Implicit in the idea of no liability without fault is the notion that if individual men carry on their affairs with reasonable care, society will not penalize them; indeed, that society encourages the energetic, im aginative exercise
of individual free will when done carefully. And conversely, each of us must bear the risks of some injuries that are inevitable in society when no one is at fault. The Deep Pocket Rule takes a very different view of society. It conceives that a life free of economic risks is now to be guaranteed everyone by the law, by making Good Samaritans out of manufactur ers. There are to be no more luckless victims. It is not our purpose to examine the relative merits of these two social theories. The point here is that the Deep Pocket Rule
pre supposes a view of society that sharply diverges from the theory that has reigned heretofore. There is, finally, an economic assumption under the strict liability theory that is disturbing. Economic Validity The California court held that the manufacturer is properly the victim of the Deep Pocket Rule because he can insure his liability and transfer his costs to ultimate consumers. Passing the question whether the consuming public should pay for the plaintiff's injuries, how valid is that assumption as a matter of economics ? •
There are about 165,000 active manufacturing corporations in the United States. Of these, 90 per cent are corporations with total assets of less than $1 million.19 The nameless, typical manufacturer, therefore, is overwhelmingly in the category of small business. In the absence of insurance, ability to withstand product liability claims is plainly limited, for judgments in this area are not uncommon in five and six figures. 19 Quarterly Financial Report for Man ufacturing Corporation, First Quarter 1963 (FTC-SEC) at p. 61. Figures
are based on corporation income tax forms filed in 1960-61. Manufacturing part nerships and single proprietorships are excluded, but would probably increase the stated percentage. STRICT PRODUCTS LIABILITY OF MANUFACTURERS PAGE 661 This content downloaded from 141.161.91.14 on Tue, 23 Jun 2020 07:23:49 UTC All use subject to htt The Question of Insurance May insurance be expected to solve his problem? It seems clear that complete insurance coverage of strict liability would require that insurers
guarantee the quality of a manufacturer's research, the efficiency of his manufacturing and packaging tech niques, and the warranties printed on his labels or uttered by his sales men. Coverage of this scope is not now available, and, in view of the enormity of the risk entailed, will probably not become available in the foreseeable future. What is normally available, therefore, does not fully meet the risks involved. The text of a given policy may fail to include particu lar risks from coverage, .because heretofore they were not
considered the reasonable subject of liability. Similarly, as any verdicts increase in amount, a manufacturer may well find himself uncovered for sub stantial sums. The costs of this insurance cannot be lightly dismissed. A small manufacturer of a general line of chemicals with sales of, say, $10 million a year, desiring reasonable coverage, might well be paying an annual premium of $30,000. If his sales were chiefly of products with the special risks of bodily injury, his premium might be $45,000. For large chemical companies,
premiums may be in the order of half a million dollars, depending on experience. And, of course, as the courts broaden the scope of liability and juries bring in ever larger verdicts, premiums will climb. Will Higher Prices Be the Result? Can these insurance costs be passed on to customers as higher prices, as the courts assume ? A recent study of the pricing policies of 200 companies sponsored by the National Industrial Conference Board 20 suggests not. The determinants of price are shown to be multiple; costs may be one
of these, but are rarely controlling, frequently are of little importance, and, indeed, are often unknown. Rather, the economic characteristics of a product, whether new or old, whether capital goods or consumer goods, whether differentiated goods or standardized goods; the type of firm involved, whether multiproduct or single product; the extent of competition, domestic and foreign ; the role of demand in relation 20 Backman, Pricing : Policies and Practices (1961). TAGE 662 FOOD DRUG COSMETIC LAW JOURNAL—
NOVEMBER, 1963 This content downloaded from 141.161.91.14 on Tue, 23 Jun 2020 07:23:49 UTC All use subject to htt to the availability of substitute products, consumer purchasing power, and habits and tastes ; public relations considerations, and other forces; any and all of these may, for a given company and product, be more crucial than costs in determining price. The report concludes :21 . . it is clear that the role of costs in pricing has been considerably exaggerated. Certainly, costs cannot be ignored in pricing. But
neither can the many other factors discussed in this analysis. While cost-price relationships may be important, it does not follow that cost determines price. On the contrary, under many circumstances the flow is in the opposite direction. The price that can be obtained under prevailing conditions of demand and the pressures of competition often determines the costs that a company may profitably incur." Thus, in the many cases in which a manufacturer's price is deter mined by noncost factors he cannot pass on his increased
costs. He may, in fact, be locked into a given price by external economic forces so that increased costs of product liability come out of his pocket. And if, as is probable, he is a small manufacturer, his pocket is not very deep

Which brings me to my final point. We have indicated that the Deep Pocket Rule is an expression of
radical jurisprudence , dubious morality, novel social theory and bad economics. Apart from the merits
of each of these criticisms, and mindful only of the magnitude of the change that the rule effects, surely
it is bad government for the courts, rather than the legislatures , to have enacted it.
 --modifies ‘reforms’
Enact modifies reform not laws—Can include new rules to implement legislation
DOI, No Date
US Dept. of the Interior, Federal Reforms, https://revenuedata.doi.gov/how-it-works/federal-reforms/

The federal government reforms laws and regulations by enacting new legislation and proposing
new rules to implement the legislation . Reforms are recommended by oversight organizations, such
as the Inspector General or the Government Accountability Office.

And, courts can 'enact reforms'

Winslow 9 – Reporter
Ben Winslow, AG’s office files proposal to end litigation over polygamous trust land, 2009,
https://www.ksl.com/article/6829502/ags-office-files-proposal-to-end-litigation-over-polygamous-trust-land

A judge must ultimately sign off on the proposal, but Wisan has already objected, arguing in court papers
that it violates the reforms enacted by the courts when the trust was taken over. The Arizona Attorney
General's Office has also objected, ex-FLDS members also have concerns over the proposal.

Especially in criminal justice context—Ev proves that the judiciary can ‘enact
reforms,’ not just legislatures
Ghiardi 88 – Professor of Law at Marquette
James D. Ghiardi, Professor of Law, Marquette University Law School, Punitive Damage Awards: An
Expanded Judicial Role, 72 Marq. L. Rev. 33 (1988),
https://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1750&context=mulr

AN EXPANDED JUDICIAL ROLE

The reforms enacted by the courts and the legislatures will help to produce more equitable and
uniform awards, but a more basic reform is required. Allowing the judiciary to exercise complete control
over the size of punitive damage awards would work to achieve the dual purpose of punitive damages,
and reduce the potential for abuse. Since punitive damages have essentially the same purpose as
criminal sanctions - punishment and deterrence - it would be reasonable to allow the judge in a post-trial
hearing to set the amount of punitive damages. The judge could, after liability for punitives has been
determined by the jury, consider any and all of the factors necessary to tailor an appropriate punishment
for a particular defendant in a controlled environment where the parties could introduce any relevant
information applicable to the amount of damages to be awarded. Kansas has taken a step in this
direction, but the factors to be considered by the court are still too limited.96
This approach would allow a judge, who has at his disposal greater experience and knowledge in
determining a reasonable amount of money adequate to punish and deter, to make the original
assessment of the amount of the award, instead of having to remit it. This approach would also prevent
the introduction of potentially prejudicial evidence such as the amount and number of other punitive
verdicts, and the wealth of the defendant from influencing the issue of liability. In addition, it would
eliminate the wasteful costs of a new trial, and also the problem faced by defendants defending against
liability in the first instance, while also having to introduce evidence as to his or her wealth and profitability
at the same time.
Legislation that would give the trial court alone the power to determine the amount of a punitive damage
award after the jury has determined that the defendant's conduct merits such an award is an idea whose
time has come.97 The issue is one of legislative and judicial policy . A jury finding of the amount of a
punitive award is not one of "constitutional dimensions."'g Shifting the initial responsibility for the amount
of punitive damages to the trial court, subject to review by the appellate court as to any abuse of
discretion, would make the awards more reflective of their dual purpose - punishment and deterrence.

Can enact some major reforms without legislative involvement

Tamburin 17 – Covers justice for The Tennessean
Adam Tamburin, Reporter-Tennessean, Tennessee Supreme Court backs 'major reforms' to legal
representation for poor, 2017, https://www.tennessean.com/story/news/2017/10/03/tennessee-defense-
lawyers-public-defenders-courts/728396001/

The Tennessee Supreme Court supports " major reforms " to the way the state helps poor people get
legal representation after a report called for sweeping changes to the system .
The Tuesday announcement came after the court's Indigent Representation Task Force issued a series
of wide-ranging recommendations in April. Those recommendations were based on 18 months of work,
including frank conversations with defense attorneys who warned that current rules would lead to lawyer
burnout and civil lawsuits.
“The task force confirmed what many of us already suspected: The system needs major reforms,” Chief
Justice Jeff Bivins said in a statement. “While no perfect solution exists, the Court believes the
improvements we commit to today will move the state toward a more efficient, effective means of
providing this representation that our federal and state constitutions guarantee.”
While the court can enact changes to some rules on its own , others will require collaboration with
the governor's office and the General Assembly.

specifically, 'judicial reform of the criminal justice system' is a thing

Blanco 12 – Associate Professor of Public Policy at Pepperdine
Luisa Blanco, Associate Professor of Public Policy at Pepperdine School of Public Policy, scholar at
UCLA Resource Center for Minority Aging Research-Center for Health Improvement of Minority Elderly
(RCMAR-CHIME), a Visiting Senior Scholar at the Minneapolis Federal Reserve Bank (2017-2018), an
Adjunct Researcher at RAND Corporation, and a Research Fellow at Harris Manchester College at
Oxford, The Impact of Reform on the Criminal Justice System in Mexico, 2012,
https://www.rand.org/content/dam/rand/pubs/working_papers/2012/RAND_WR948.pdf

Judicial reform should lead to a more transparent and efficient criminal justice system in Mexico,
which in turn should result in greater trust and satisfaction with criminal justice institutions (e.g., police,
prosecutors, and judges). By leading to greater confidence in criminal justice institutions, judicial reform
should also help prevent and deter crime. Yet the literature on the impact of judicial reform is scant, and
there are contradictory arguments about its effects on crime.
 “Enact” = Congress
“Enact” must be Congress—Clear intent to define and exclude
Berman 94 – Judge on the Superior Court of New Jersey, citing to prior precedent and dictionaries
Opinion by Glenn J. Berman, Superior Court of New Jersey, Law Division, Civil, Middlesex County, South
Brunswick Associates v. Township Council of Tp. of Monroe, 285 N.J. Super. 377, Decided 17 May 1994,
Lexis

Miller's conduct would be permissible under N.J.S.A. 40A:9-22.5i if the representation were regarding the
" enactment of any ordinance, resolution or other matter required to be voted upon or which is subject to
executive approval or veto." Id. (emphasis added). However, this language suggests legislative, not
quasi- judicial action . 2 If the Legislature intended to allow public officials [*381] to represent others in
quasi-judicial proceedings, it could have stated that public officials may participate in any proceeding
which would not result in material or monetary gain to them. Cf. N.J.S.A. 40A:9-22.5i
[FN 2]
"Enactment" is defined as the act or action of enacting: passing of a bill by the legislature ;
something that has been enacted as a law, bill, or statute . Webster's Third New International Dictionary
745 (3d ed. 1986). "Enact " is defined as to enter into public records; to establish by legal and
authoritative act, make into law , especially to perform the last act of legislation that gives the validity
of law. Ibid.
[End FN]

Specifically excludes the Courts—Most precise and predictable: they ‘adopt’ but
do NOT ‘enact’. That word was chosen deliberately—Must read it in a way that
gives it meaning
McMurdie 20 – Judge on the Arizona Court of Appeals
Paul J. McMurdie, delivering the opinion of the Court, Netherlands v. Md Helicopters, 1 CA-CV 19-0019
(Ariz. Ct. App. 2020), https://www.courtlistener.com/opinion/4737531/netherlands-v-md-helicopters/

MD Helicopters’ argument regarding the meaning of the terms “enact” and “adopt” is similarly
unpersuasive on the question of whether A.R.S. § 12-3252(B)(2) refers only to acts of a foreign
country’s legislative body , and not of its courts as well . The common usage of the term “enact”
does not generally include the actions of a court. See, e.g., 2015 Ariz. Sess. Laws, ch. 170, § 1 (1st
Reg. Sess.) (“Be it enacted by the Legislature of the State of Arizona . . . .” (emphasis added)); Cronin v.
Sheldon, 195 Ariz. 531, 537 (1999) (“[T]he legislature has the authority to enact laws.”). But the term
“adopt ” is not nearly so limited . Courts make law through the adoption of rules or common-law
principles . See, e.g., Carrow Co. v. Lusby, 167 Ariz. 18, 24 (1990) (“We adopt the modern common law
view that an owner of livestock owes a duty of ordinary care to motorists traveling on a public highway in
open range.” (emphasis added)); Judson C. Ball Revocable Tr. v. Phoenix Orchard Grp. I, L.P., 235 Ariz.
519, 523–24, ¶¶ 11, 16 (App. 2018) (Finding Delaware courts’ decision to “ adopt ” rule of standing for
shareholder suits “as a matter of common law” persuasive and deciding to “adopt” that rule as well).
Executive agencies are also frequently empowered by the legislature to “ adopt ” rules and regulations.
See, e.g., A.R.S. § 23-361 (Industrial Commission “may adopt such rules and regulations as necessary”
to administer and enforce statutes governing the payment of wages (emphasis added)). And the use of
both the terms “enact” and “adopt” must be read to contemplate different things , or one term will
be rendered superfluous . See Cont’l Bank, 131 Ariz. at 8.
It’s a legal term of art. Even if agencies or court decisions are equivalently legally-
binding, they are not “enacted”.
Carlson 4 – Justice of the US Supreme Court of MS, citing to prior federal court precedent and Black’s
Law Dictionary
Opinion by George C. Carlson Jr., Supreme Court of Mississippi, Gulf Ins. Co. v. Neel-Schaffer, Inc., 904
So. 2d 1036, Decided 9 December 2004, Lexis

In so holding, we note that Neel-Schaffer's argument is not altogether unreasonable. Neel-Schaffer

argues that in instances where a legislative branch has delegated its authority to regulate to an
administrative agency and where that agency is considered the final regulatory authority, the agency's
regulations should be considered the legal equivalent to statutes. Nevertheless , Neel-Schaffer
presents no compelling argument as to why this Court should not adopt the view held by the local
federal courts . Further reason ing to reject Neel-Schaffer's argument is the fact that the Act
incorporates the term "enact." The use of this term seemingly denotes a legislative enterprise.12
[FN 12]
"Enact" is defined as follows: "To establish by law ; to perform or effect; to decree. The common
introductory formula in making statutory laws is, 'Be it enacted .' See Enacting clause." Black's Law
Dictionary (5th ed. 472).
[End FN]

Courts cannot enact—Only construct and interpret

Hanna 12 – Justice of the Supreme Court of New Mexico
Opinion by J. Hanna, Supreme Court of New Mexico, Terr. of N.M. v. Davenport, 17 N.M. 214, 1912

Penal statutes are to be strictly construed and the courts all uniformly so hold. It is true, in some of the
states, this rule has been abrogated by statute, but in New Mexico we have no statute authorizing us to
depart from the strict rule of the common law in this respect. Hence we must give to the statute now under
consideration a strict construction, according to its letter, and nothing must be regarded as being included
within it, that is not both within the letter and spirit of the statute. "And where a statute of this kind contains
such an ambiguity as to leave reasonable doubt of its meaning, where it admits of two constructions, that
which operates in favor of life or liberty is to be preferred." Lewis' Sutherland Statutory Construction, 2nd
ed. sec. 520. The above statute is peculiarly [****6] worded and from our research we have been unable
to find a similar statute in any other state. Its meaning and intent are not clear and it is very ambiguous.
The Legislature of New Mexico [*218] should enact a statute upon Sunday observance that would
plainly express the prohibited acts, so that the people would be able to know, without construction by the
courts, what it was intended to prohibit. Courts cannot enact laws and are limited simply to their
construction and interpretation , and under well defined rules.

That deals with the effects of an enactment—But is not an ‘enactment’ itself

Bennion 9 – Lecturer in Law at Oxford
F. A. R. Bennion, former Parliamentary Counsel, barrister, and Chief Executive of the Royal Institution of
Chartered Surveyors, Basic concepts I: common law statutes; the enactment; legal meaning; factual
outline and legal thrust; implied ancillary rules, printed 2009,
DOI:10.1093/acprof:oso/9780199564101.003.0002,
https://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780199564101.001.0001/acprof-
9780199564101-chapter-2

This chapter explains the concept common law statutes, stressing that the laws governing common law
countries are now mostly enactments of a democratic parliament , mediated by common law rules of
interpretation . The basic unit of legislation is the enactment , consisting of a distinct proposition of
law . It needs an informed construction , which is explained. Legislation is what the legislator says it
is ; while the legal meaning of legislation , that is the one corresponding to the legislator's intention, is
what the court says it is . The chapter explains in detail the importance of the legal meaning . The
usual effect of an enactment is that, when the facts fall within an indicated area called the factual outline,
specified consequences called the legal thrust ensue. Elements in the legal thrust may be left
unexpressed by the drafter. These implied ancillary rules are to be treated as imported.

Can’t “enact”
Meyers 19 – Professor Emerita of Philosophy at the University of Connecticut
Edited by Diana T Meyers, Kenneth Kipnis, Steve Griffin, Chapters from Philosophical Dimensions Of The
Constitution, Routledge/Taylor Francis & Group, 2019

Judicial review of legislative enactments has the power to tell us,

, so the popular analysis it, is fundamentally antidemocratic. Nine justices, appointed for life, have

inter alia, where our children will go to school, that organized prayer in public schools is impermissible,
that the several states cannot outlaw abortion . Moreover, this extraordinary power1 can be, and all too often is, exercised in the face of clear expressions of the will of the elected representatives of

The institution of judicial review

the people. very invalidate legislative enactments (or, more exactly, the products of that institution that 2) seems to be inconsistent with
democracy. "This," John Hart Ely concludes at the end of a civics sermonette, "in America, is a charge that matters. We have as a society from the beginning, and now almost instinctively, accepted the notion that a representative democracy must be our form of
government."3 Judicial review, the legacy of John Marshall and Marbury v. Madison, is now a deeply ingrained part of U.S. political practice. Given that the courts will engage in judicial review, the standard of review remains a matter of some debate. Current
debates about the legitimacy of judicial policymaking divide theorists into two dominant camps: the interpretivists represented by Raoul Berger, William Rehnquist, and Robert Bork, and the noninterpretivists represented by Thomas Grey, Owen Fiss, William
Brennan, and Michael Perry. Most of the current debates about constitutional interpretation are misleading because they suggest that there are exactly two positions, exclusive and exhaustive, that one may adopt: the clausebound literalism of Raoul Berger and
William Rehnquist (hereafter called positivist interpretivism) and the value imposing noninterpretivism of Michael Perry and Thomas Grey (hereafter called nonpositivist, noninterpretivism}.4 My goal in this chapter is to defend a theory of judicial 96 Between Clause-
bound Literalism and Value Imposition 97 review that stands as an alternative to the dominant theories in current legal/philosophical debates. The theory I argue for is faithful to the central tenets of legal positivism, yet it sanctions the imposition of extraconstitutional
values. This chapter is divided into three sections. In the first two sections I show why both positivist interpretivism and nonpositivist noninterpretivism are inadequate theories of constitutional interpretation. While I address the shortcomings of these theories, I also
attempt to demonstrate that each has important contributions to make toward an adequate theory of judicial review. In the third section I outline the position of the positivist noninterpretivist. Primary emphasis is placed on explicating the position (showing why it is
both positivist and noninterpretivist) and on distinguishing it from positivist interpretivism. I also consider the major objection against any theory of noninterpretive review: How are the values that the Court may impose to be determined? The answer I provide to this
question has a legacy traceable through Alexander Bickel back to Edmund Burke: consensus of the citizenry. THE FAILURE OF POSITIVIST INTERPRETIVISM Positivist interpretivists argue that when engaging in judicial review of legislative enactments, the
criterion of constitutionality to be applied by the courts is the express language of the Constitution. If only judges would follow the criterion of constitutionality recommended by the positivist interpretivists, there would be no cause for popular resentment of the
judiciary. A true positivist interpretivist judge would follow the suggestion of Justice Roberts in U.S. v. Butler, that when exercising judicial review the Court should simply "lay the article of the constitution which is invoked beside the statute which is challenged and
determine whether the latter squares with the former."5 Only if the act cannot be squared with the relevant constitutional provision should the Court strike the act. Roberts's suggestion as to how courts should act when reviewing legislative enactments is appealing,
but it simply does not work. His approach looks nice until one tries to figure out how to implement it when the constitutional provision involved is not completely clear. The Eighth Amendment protection against cruel and unusual punishment says nothing about which
punishments are cruel and unusual, the due process clauses of the Fifth and Fourteenth amendments say nothing about how much process one is due, nor does the Equal Protection Clause indicate how much protection citizens are to enjoy. In short, many of the
operative clauses of the Constitution simply are not amenable to interpretivist analysis. Accordingly, one faces a dilemma. Either one must abandon interpretivism or one must be willing to concede that certain constitutional provisions that appear to place some
restraints on the actions of both state and federal government officials do not, in fact, 98 H. Hamner Hill have any force at all. 6 Those unwilling to surrender so powerful a tool as the Equal Protection Clause cheerfully conclude that interpretivism must be abandoned
and that some form of noninterpretivism must be embraced. Such a rejection of interpretivism, however, is too quick. It fails to ask what motivates one to embrace interpretivism at all. It fails to realize that at one level at least, interpretivism seems to follow from a
positivist conception of law. There are two distinct theses that are central to contemporary legal positivism. First there is the famous separability thesis: the view that there is no noncontingent link between law and morality. The separability thesis is the most widely
noted feature of legal positivism, and it is the target of most of the philosophical attacks directed at legal positivism.7 Despite the attention that separability has drawn, it is not of great moment to this discussion. Rather, I want to focus on the other thesis central to
legal positivism-what Joseph Raz calls the sources thesis8 and what Hans Kelsen calls the doctrine of authorization. 9 Put roughly, the sources thesis states that for a norm to be a valid law, that norm must have been issued (posited) by a particular source (the
exact source being relative to a legal system). A norm, regardless of its form or its moral force, that does not issue from sources recognized as legitimate within a legal system simply is not a valid legal norm within that system. In a government of limited, delegated
lawmaking authority, the importance of the sources thesis for a theory of constitutional adjudication should be clear. Only those governmental bodies charged with lawmaking functions can make law, and then only within the scope of the authority delegated. As the
judiciary is not charged with lawmaking, the courts are not proper sources of law. But when the courts engage in noninterpretive review, they do make law. Striking an act as unconstitutional is no less an act of lawmaking than is the original promulgation of the act.
Thus the sources thesis appears to cut against noninterpretive review. It is, I believe, the sources thesis that underlies the philosophical allure of positivist interpretivism, and it is the sources thesis that ultimately leads me to develop a positivist noninterpretivism.
What, then, is wrong with positivist interpretivism, given the powerful brief the sources thesis appears to provide against noninterpretivism? Why even attempt to retain the sources thesis and still condone noninterpretive review? Because positivist interpretivists
adopt an overly restrictive concept of sovereignty. Following Bentham, positivist interpretivists contend that valid law must be tied directly to the will of the sovereign in a state. As Bentham puts it: "A law may be defined as an assemblage of signs declarative of
volition conceived or adopted by the sovereign in a state, concerning the conduct to be observed in a certain case by a certain person or class of persons, who in the case in question are or are supposed to be subject to his power."10 When a law is viewed with
respect to its source, Between Clause-bound Literalism and Value Imposition the will of which it is the expression must, as the definition intimates, be the will of the sovereign in a state. Now by a sovereign I mean a person or assemblage of persons to whose will a
whole political community are (no matter on what account) supposed to be in a disposition to pay obedience .... A mandate [law] is either referable to the sovereign or it is not: in the latter case it is illegal, and what we have nothing to do with here.11 99 The lesson
drawn from Bentham is that law is an expression of the will of the sovereign. Any expression of will other than that of the sovereign, regardless of the form of the expression, is not, indeed cannot be, law. Law is created when and only when the sovereign expresses
its will. The only modification of the basic Benthamite theory of law necessary to make it applicable to a constitutional democracy is that lawmaking organs to whom the sovereign has delegated lawmaking powers may make valid laws only when acting within the
scope of the authority delegated to them. Thus, only the sovereign and agents of the sovereign may make law, and, then, in the case of the agents, only when acting within the scope of delegated authority. But where is the sovereign will expressed and where is
political authority delegated? For positivist interpretivists, the constitutional text is the sole expression of the sovereign will; that text, and that text alone, is determinative of law and of legitimate delegations of lawmaking power (authority). Any piece of legislation or
court action that contravenes constitutional requirements is, eo ipso, subject to judicial invalidation as is any delegation of lawmaking authority (on the federal level) not sanctioned by the text. The text of the Constitution, for positivist interpretivists, serves the
function of Kelsen's Grundnorm: It underwrites the legitimacy of all other laws or delegations of lawmaking authority. 12 Given that the fundamental expression of sovereign will is contained in the text of the Constitution, one may still ask of whose will is the
document an expression? Put another way, who is sovereign? The positivist interpretivist answers this question in an unacceptably narrow way. The will of which the constitutional text is an expression is the will of the framers of the document. 13 The excessive
narrowness of the Benthamite concept of sovereignty, which is adopted by modem positivist interpretivists, can be seen in Bentham's few remarks concerning the institution of judicial review. Being wed to the idea of an unlimited sovereign, Bentham finds the
institution of judicial review inconsistent with the very idea of sovereign authority. "By this unicompetence, by this negation of all limits, this also is to be understood, namely, that let the legislature do what it will, nothing that it does is to be regarded as null and void:
in other words, it belongs not to any judge so to pronounce concerning it: for, to give such powers to any judge would be to give the judge . . . a power superior to that of the legislature itsel£."14 Bentham's dislike for the institution of judicial review can be traced
directly to his theory of unlimited sovereign power-a theory of sovereignty expressly rejected 100 H. Hamner Hill by the framers of the Constitution. Accordingly, any theory of constitutional interpretation applicable to a government of limited powers must reject the
Benthamite theory of sovereign power. Despite this clear need, positivist interpretivists at least tacitly accept Bentham's concept of sovereignty. In the third section of this chapter I develop a theory of sovereignty that is markedly different from Bentham's, but one
that is nonetheless consistent with Bentham's positivist theory of law. 15 For the positivist interpretivist, having adopted both a Benthamite theory of law and a Benthamite (though not Bentham's) theory of sovereignty, determining what a particular constitutional
provision requires-what the standards of legal validity under that provision arerequires looking first to the express text and then, if the text is not selfexplanatory, to the intentions of the framers of the provision. To be sure, the positivist interpretivist program is an

only those
inviting one, but it cannot, as will be demonstrated shortly, succeed. At first blush, the positivist interpretivist project is quite alluring. Using the positivist interpretivist criterion for judging legislative enactments unconstitutional,

enactments that violate could legitimately be struck by the courts Judicial review, as
clear passages in the Constitution as unconstitutional.

an institution, would thus be immune from charges of improper judicial policymaking government by judiciary and . If the positivist
interpretivist project were viable, only those enactments that, to borrow a Quinean aphorism, wear their unconstitutionality on their sleeves could, and would, legitimately be struck as unconstitutional. There are few, if any, legal theorists who could find fault with
judicial invalidation of legislative acts running afoul of so stringent a criterion of constitutionality.16 Unfortunately, adopting such a criterion of unconstitutionality is unacceptable on several grounds. First, assuming, arguendo, that the position of the positivist
interpretivist does not fall into the intentionalist fallacy, there are still good reasons for believing that the project cannot succeed. Gary Sherman states the case with admirable clarity and eloquence: Christopher Hogwood has a simple goal: the reinterpretation of all
major Western symphonic works according to "original intention," using original instruments, original ensembles, original stylistic methods and so forth. Which is a laudable effort that, if carried out with Maestro Hogwood's usual skill, should contribute greatly to
aesthetic enlightenment. However, there is one aspect of the original performance that cannot be duplicated: None of us can listen to the result with 18th or 19th-century ears or feel its effects with 18th or 19th-century hearts. The world has changed and we cannot
pretend that Antonio Dvorak, Bela Bartok, Aaron Copeland, jazz and rock 'n' roll never happened. Irrespective of the purity of the presentation, we will not hear what our forebears heard. 17 Even if one could determine the original intention of the legislators who
enacted a provision, it is not clear that that intention would be of any Between Clause-bound Literalism and Value Imposition 101 use to a modem court attempting to apply a two hundred year-old provision of the Constitution to one of today's problems. Even
politically honest18 positivist interpretivists seem to miss the importance of this point. William W. Crosskey, a much neglected proponent of positivist interpretivism, was fond of quoting Justice Holmes on the true nature of legal interpretation. Holmes said that when
interpreting a provision: "We ask not what this man meant, but what those words would mean in the mouth of the normal speaker of English, using them in the circumstances in which they were used."19 The Holmes approach to interpretation lends support to the
positivist interpretivist just in case the speaker whose words were in need of interpretation was one of the framers of the provision. If the question raised by a party challenging some governmental action as unconstitutional were "Would this action, had it been
undertaken in 1789, have been unconstitutional?" then emphasizing original intentions would be completely correct. But such is not the question asked. Rather, the question is whether a particular governmental action, undertaken today, in the last quarter of the
twentieth century, is unconstitutional. Today's "normal speaker of English" speaks the language of the late twentieth century, not the late eighteenth. The crucial words are used in the context of today, not two hundred years ago. The approach of the positivist
interpretivist is thus not so much wrong as it is wrongheaded. Second, positivist interpretivism, taken seriously, makes hash of accepted Supreme Court practice. Regardless of the political bent of the decisions involved, interpretivism holds that most of the major
decisions in constitutional law, including Marbury v. Madison, 20 are illegitimate because, inter alia, there is no clear expression in the Constitution that the Court may review the constitutionality of acts of Congress. Among the cases other than Marbury that end up
being illegitimate on an interpretivist basis are Lochner v. New York, 21 Brown v. Board of Education, 22 Griswold v. Connecticut,23 Mapp v. Ohio,24 and Roe v. Wade. 2s The difficulty with positivist interpretivism is that it is not at all faithful to actual legal practice.
Courts do not, and have not in the U.S. legal experience, behaved as the positivist interpretivists would have them behave. A theory of constitutional adjudication that bears precious little relevance to the phenomena of which it is a theory or that seriously
misdescribes the phenomena to be explained is, at best, a poor theory. Finally, positivist interpretivism leaves no role for courts to play as agents of social change. Legal scholars have, over the past thirty years, gradually, sometimes grudgingly, come to recognize
the legitimacy of the claim of the American Legal Realists that courts can, do, and should act as agents of social change and social reform. The clearest example of such action by the courts is the Brown decision and its progeny. Other examples can be found in the
areas of criminal procedure, voting rights, and freedom of expression. In the positivist interpretivist model of constitutional adjudication, there is no place for such action. Anyone 102 H. Hamner Hill committed, as I am, to defending at least some role for the courts to
play as agents of social change must reject positivist interpretivism. Adequate explication of Supreme Court behavior and support of the courts as agents of social change require a theory of judicial review that allows the courts to impose extraconstitutional values.
Simply rejecting positivist interpretivism does not, however, settle the issue. One must develop a theory that allows judicial imposition of values not expressed in the Constitution. One such theory is nonpositivist noninterpretivism. In the next section I show why such
a theory cannot succeed. THE FAILURE OF NONPOSITIVIST NONINTERPRETIVISM Nonpositivist noninterpretivism sanctions judicial imposition of extraconstitutional values. In so doing, this theory underwrites the legitimacy of Brown and similar decisions. The
difficulty with this theory is that one needs a defense of the values one would have the courts impose when engaging in judicial review. One obvious approach to defending nonpositivist noninterpretivism lies in natural law theory. Natural law, so the argument goes,
provides a legitimate source for extraconstitutional values. Michael Perry provides a sophisticated natural law defense of nonpositivist noninterpretivism in The Constitution, the Courts, and Human Rights. Perry's natural law defense of non positivist
noninterpretivism is limited to human rights cases. He contends that noninterpretive review serves a special political function that cannot be served by any other institution or practice. For Perry, "[t]he function of noninterpretive review in human rights cases, then, is
the elaboration and enforcement by the Courts of values, pertaining to human rights, not constitutionalized by the framers; it is the function of deciding what rights, beyond those specified by the framers, individuals should and shall have against government."26
Deciding what rights people should and shall have against government involves deciding what is, at heart, a political-moral question. What is more, if the decision is to be politically legitimate, then the decision on the matter must be correct. 27 But what, one must
ask, is the criterion to use in judging the correctness of an answer to a political-moral question? For Perry, the criterion with which to judge the correctness of an answer to a political-moral question, and the ultimate source of extraconstitutional values, is "a particular
conception of the American polity that seems to constitute a basic, irreducible feature of the American people's understanding of themselves. The conception can be described, for want of a better word, as religious."28 Perry recognizes that his answer to the
question invites misunderstanding. The religious self-understanding that lies at the heart of Perry's defense of nonpositivist noninterpretive review is in no sense sectarian or theistic. Rather, it involves a commitment "to the notion of moral Between Clause-bound
Literalism and Value Imposition 103 evolution,"29 a commitment that recognizes that the will of the people is not the definitive answer to moral questions: The people may be (and often are) mistaken in their moral appraisal of certain questions. What is more, Perry
believes that the people recognize their fallibility and are committed to a search for right (or at least better) answers to fundamental moral questions. The people have a commitment to a higher law, a law that determines the correctness of an answer to a political-
moral question "independently of what a majority of the American people [believes or] comes to believe in the future."30 Thus, "noninterpretive review in human rights cases enables us to take seriously-indeed is a way of taking seriously-the possibility that there are
right answers to political-moral problems."31 The possibility that there are right answers, Perry argues, is one to which the American people are "religiously" committed. Assuming that Perry's views on the religious self-concept of U.S. citizens is correct, what
problems follow from entrusting to the courts the task of moving popular moral beliefs in the direction of correct moral beliefs? At least two quite distinct challenges can be leveled at Perry's delegation of moral decisionmaking. The first concerns political theory (why
the courts rather than the legislature?); the second concerns the epistemological worries raised by skepticism. To the charge that the courts are institutionally less competent to make moral decisions (or to reach decisions on difficult moral questions) than are
legislatures, Perry gives a predictable answer in terms of political insulation. The courts, Perry argues, being free from the will of the voters, are less likely to decide moral questions through reference to established moral conventions than are legislators. To be sure,
Perry's claims seem to be susceptible of empirical confirmation. A detailed study of judicial as opposed to legislative behavior concerning decision of moral issues should allow one to determine whether courts do in fact reach correct moral decisions more often than
do legislatures. Of course, this suggestion leads directly to the epistemological problems presented by skepticism. On the epistemological level, Perry's thesis raises serious questions about how the courts can come to know one of the right answers to a moral
question. An ethical skeptic or a moral relativist would simply challenge Perry's assertion that there are context-independent right answers to moral questions. The ethical skeptic argues that even if there are right answers to moral questions (if there is moral truth),
those answers are beyond the scope of human knowledge. There may well be moral truth, but human beings cannot obtain it and judges certainly have no better claim to it than do electorally responsible legislators. Because judges have no better claim to moral
truth than do legislators, and because judges are electorally unaccountable, entrusting to the courts the task of determining which moral standards a society shall adhere to runs the risk of a moral dictatorship by the judiciary. Hence the 104 H. Hamner Hill rejection
of noninterpretive review on skeptical grounds. Perry recognizes that the skeptic presents serious difficulties for his view, and he attempts to reject the position (Perry seems unaware of just how worthy an opponent the Pyrrhonic skeptic has proven in the history of
philosophy). Unfortunately, Perry simply rejects the position of the ethical (and, in passing, epistemological) skeptic without arguing against it. To be sure, Perry notes that many people reject ethical skepticism on many different grounds. Perry's response to the
skeptic smacks of question begging. Unless Perry can provide a stronger refutation of moral skepticism, nonpositivist noninterpretivism seems to be indefensible on theoretical grounds. What emerge then are strong reasons for rejecting both positivist interpretivism
and nonpositivist noninterpretivism. What is needed is a middle ground position, one that accepts the strengths of the extremes of the spectrum without embracing the critical defects inherent in each. Such a position, a positivist noninterpretivism, is set forth in the
next section. POSITIVIST NONINTERPRETIVISM The central defect in positivist interpretivism is that that theory does not sanction judicial imposition of any extraconstitutional values. Nonpositivist noninterpretivism remedies this defect, but at too high a price. The
justification of judicial imposition of extraconstitutional values provided by Perry rests on unstable epistemic foundations, runs the risk of justifying a judicial moral tyranny, and pays no heed at all to the sources thesis or the principle of electorally accountable
policymaking. For Perry, the moral principles that underwrite noninterpretive review exist and determine correct answers to moral questions independently of what a majority of the people believe or come to believe. What is needed, then, is a theory of judicial review
that remains faithful to the sources thesis and the principle of electorally responsible policymaking while sanctioning the judicial imposition of some extraconstitutional values. Positivist noninterpretivism is just such a theory. Central positivist noninterpretivism is the
development of a coherent version of legal positivism that does not tie sovereignty exclusively to the intentions of the framers. Such a development requires major modifications of the concept of sovereignty adopted by the positivist interpretivists. The remainder of
this section is divided into four subsections. The first deals with the concept of sovereignty. The second deals with the nature of the extraconstitutional values that the courts may impose under the concept of sovereignty developed in the first subsection. The third
discusses the role of the courts as agents of social change under a positivist noninterpretivist theory of judicial review. Finally, the fourth subsection discusses some of the difficulties presented by the theory I advocate. Between Clause-bound Literalism and Value
Imposition 105 The Concept of Sovereignty The defects noted above with positivist interpretivism can be traced directly to the overly restrictive concept of sovereignty adopted by adherents of that theory. The locus of sovereignty, for the positivist interpretivists, is
the will of the framers of the Constitution. Law must be an expression of the will of the sovereign, fundamental law is expressed in the Constitution, and the will of which the Constitution is an expression is the will of the framers. Accordingly the emphasis placed on
original intentions. Positivist noninterpretivism, on the other hand, identifies the locus of sovereignty as the will of a consensus of the people (the will of the people, for short). The people are sovereign, and it is the will of the people, not the framers, that is
determinative of law. At first this does not seem like a major modification, but it has far reaching implications for legal theory. Simply shifting the locus of sovereignty from the will of the framers to that of a consensus of the people allows one to see at least two critical
differences between interpretivist and noninterpretivist versions of positivist constitutional theory. Two areas in which important differences are readily visible are changes in the sovereign will and the determination of the meaning of constitutional provisions. Can the
will of the sovereign, with respect to issues of fundamental law, change over time? To this question both the interpretivist and noninterpretivist positivists answer in the affirmative. Their answers differ, however, with respect to the ease with which change is possible
and with respect to the mechanism of change. For the positivist interpretivist, the will of the sovereign, being linked to the will of the framers, is relatively fixed and static. The will of the sovereign on issues of fundamental law is fixed in the Constitution. Changes in
fundamental law, revisions in the will of the sovereign, require amending the Constitution. If fundamental law is to be created or changed, the positivist interpretivist insists that such changes should be made in the legislature, through the amendment process, not in
the courts. 32 For the positivist noninterpretivist, on the other hand, the will of the sovereign, even with respect to questions of fundamental law, is fluid and mutable; it changes as the will of the people changes. Times and social conditions change, and law, even
fundamental law, if it is to be of service to the people, must be able to change in response to changing circumstances. As Dean Harry W. Jones puts it, It has become a truism that law must be kept up to date, responsive to the continuing processes of social change.
Present-day judges are very much aware that concepts and categories received from law's past-privity of contract, sovereign immunity, "fault" in divorce actions and many more-may not order contemporary phenomena effectively and justly. It is not that these
concepts were necessarily wrong when they were handed down; we are, I think, too quick to assume that. It is simply that, whatever their original justification, they offer the wrong answers for today's problems. 106 H. Hamner Hill One hates, in a way, to see old
friends like negligence, consideration and "state action" withering away in vitality and influence, but, to borrow a phrase from Justice Roger Traynor, "the number they have called is no longer in service. "33 Jones's observations apply no less to questions of
fundamental law than they do to questions of more mundane areas of substantive law.34 For the positivist noninterpretivist, when the will of a consensus of the people changes with respect to a particular issue, the law on that issue has changed, and the courts
should be both empowered and required to enforce the new understanding. The reason underlying such an empowerment and such a requirement should be clear: A positivist theory of law, in which sovereignty is explicated in terms of the will of a consensus of the
governed, requires it. Law is an expression of the will of the sovereign, and sovereignty resides in the governed. As the role of courts is to enforce the laws of the sovereign, it follows that if the will of the sovereign on a particular issue conflicts with the will expressed
in a particular statutory or even constitutional provision, then the courts should enforce the current will as against the will expressed in the provision. The will expressed in the provision, not being reflective of the will of the sovereign, has lost the force of law. If courts
were to act on the will expressed in the provision, they would be acting contrary to the will of the sovereign, contrary to law. Such behavior on the part of courts no doubt takes place, but such actions are clearly ultra vires. The will of the sovereign is determinative of
law. If the will of the sovereign is clear, and a court knows that will and disregards it, for whatever reason, then that court has exceeded its legitimate authority and has acted illegally. In many instances, of course, when a question comes before a court for decision
the will of a consensus of the people may not be clear. It may be that people have failed to consider the issue or it may be that a consensus from a previous era is undergoing reexamination. In such cases, the role of the courts will be rather different than that
described in this subsection. Such situations are discussed in the third subsection. The second area in which important differences between the interpretivist and noninterpretivist versions of legal positivism appear is in the determination of the meaning of various
constitutional provisions. For the positivist interpretivists, ideally, a constitutional provision wears its meaning on its sleeve. All that one need do in order to determine precisely what a constitutional provision requires is to read the provision.35 When the meaning of a
provision is unclear, then the courts should look to the legislative history of the provision to determine the original intent. If, as in the case of the liberty clauses of the Fifth and Fourteenth amendments, the meaning of the provision is unclear, and there is no
legislative history indicating what the framers intended, the courts should refrain from imbuing the provision with their own values. Although there is a certain appeal to such a program, it has the unfortunate and Between Clause-bound Literalism and Value
Imposition 107 unacceptable effect of deoperationalizing many important provisions in the Constitution. Positivist noninterpretivism, on the other hand, has the court look to the understanding and will of a consensus of the people with respect to unclear constitutional
provisions in order to determine the meaning of such provisions. The precise meaning of a constitutional provision depends upon the understanding of a consensus of the people with respect to that provision. As times change, and as the people's understanding of a
constitutional provision changes, the legal requirements imposed by that provision change. An example of this sort of change can be seen in the attitudinal change with respect to equal protection that took place in the United States between 1896 (Plessy v.
Ferguson) and 1954 (Brown). As the people, prompted by the courts, gradually came to the view that the requirements of the Equal Protection Clause were inconsistent with state-enforced racial segregation (a view shared by a consensus of the people at least by
the late 1960s), the meaning of the Equal Protection Clause changed. That the framers of the Fourteenth Amendment did not intend to outlaw segregated public schools is of little importance. The will of the sovereign (the people) in 1954 was different than it had
been in 1867. If the will of the people concerning a constitutional provision at one moment in history is at odds with the will of an earlier generation, so much the worse for the previous generation. Sovereign will, for the positivist noninterpretivist, is determined
through reference to a consensus of the governed. In order to make sense of the continued legal validity of old (sometimes ancient) statutory or constitutional provisions that cannot properly be understood to be a part of the will of the current sovereign, one needs a
Lockean doctrine of tacit consent or tacit reauthorization. Unless the current sovereign specifically overrules actions of a previous sovereign, those actions remain in force. There are no major difficulties with this part of the consensus approach to sovereignty.
Difficulties arise in determining what the consensus is on controversial issues like abortion. I address those difficulties in the third subsection. Assuming that I can construct a positivist theory of constitutional interpretation in which the concept of sovereignty is not
tied to the intentions of the framers, what makes such a theory noninterpretivist? I address that question in the next subsection. Determining the Values Courts May Impose In the previous subsection I discussed modifications in the concept of sovereignty necessary
to divorce the will of the sovereign from the will of the framers. So doing sets the stage for a positivist theory of constitutional adjudication that is noninterpretivist. The theory being developed is positivist in that it adheres to the sources thesis and, as 108 H. Hamner
Hill will be demonstrated shortly, to the separability thesis. But it is also noninterpretivist. The central feature of any noninterpretivist theory of judicial review is that the courts are empowered legitimately to impose extraconstitutional values-values that are not clearly
stated in the Constitution nor intended by the framers to be imbedded in it. Because the concept of sovereignty outlined above locates sovereignty in the will of a consensus of the people, it should be clear that legal values need not be restricted to those expressly
stated in the Constitution. The text of the Constitution simply is not the final word on questions of fundamentallaw. 36 Because law is but an expression of the will of the sovereign, for a norm to become law all that is required is that that norm be a part of the will of
the sovereign. Thus, with certain exceptions, for a value to become law, all that is required is that that value become a part of the will of the sovereign. Even if these values are clearly extraconstitutional, such as the value of racial equality vis-a-vis the Fourteenth
Amendment, that value becomes law, becomes legally binding, when incorporated into the value scheme willed by a consensus of the people. Once a value, even an extraconstitutional value, is so willed, the courts may legitimately apply that value. If and when a
consensus determines that, say, equal protection of the laws is inconsistent with, inter alia, state-imposed racial discrimination, despite a deafening silence on such issues within the text of the Constitution, the value judgment adopted by the people becomes legally
applicable by the courts. Accordingly, the version of positivism being considered here is noninterpretivist. One might worry that this theory runs roughshod over constitutional protection of minority rights against majority tyranny. In the last subsection I discuss this
problem and a solution to it that involves restrictions placed on majority rule by the sovereign. Care must be taken at this point not to confuse the positivist noninterpretivism that I advocate with the nonpositivist natural law theory advocated by Perry. In my view only
those values that are part of the will of a consensus of the people are legally binding. If the people fail to incorporate a particular moral principle into their will, then that principle ultimately lacks legal force and can play, at most, a very limited role in legitimate judicial
decisionmaking. That is not to say, however, that such a principle has no role at all, as will be discussed in the next subsection. To deny that principles, regardless of their moral validity, not willed by the sovereign lack legal force would be to deny both the sources
and separability theses. That I am unwilling to do. Perry, on the other hand, straightforwardly denies the separability, and, eo ipso, the thesis. Perry argues that there are legally binding moral principles that exist and determine the correct answers to political-moral
questions "independently of what a majority of the American people [believes or] comes to believe in the future." 37 And, for Perry, those principles should govern Supreme Court behavior when engaging in noninterpretive review. Between Clause-bound Literalism
and Value Imposition 109 Courts as Agents of Social Change Even if one concedes that courts should apply the value scheme adopted by the sovereign as described here, it is not at all clear that there is a role for the courts to play as agents of social change.
Moreover, it is unclear that there is any role for moral principles not incorporated into the will of the sovereign in judicial review. If one were to hold, as I do not, that the consensus on a particular moral question determinative of law at any given moment in history is
the actual consensus of a prereflective or unreflective citizenry, neither of the roles mentioned above would exist. The courts would, in such a view, properly reflect change, but they would not initiate it. Moreover, such a view would result in the standards of
constitutionality being held hostage by popular sentiment. In such a view, the decision in Korematsu v. U.S. might well turn out to be fully legitimate, the ruling reflecting the will of the majority at the time, while the decision in Brown would be illegitimate in that it
failed, at the time the decision was made, to reflect a consensus. 38 Such results, however, can be avoided by allowing the courts to act as agents of social change, not merely as reflectors of it. Claiming that there are instances in which courts should be allowed to
act as agents of social change, where social change means a change in the will of the sovereign, has significant implications for legal theory. The claim suggests that a case sometimes comes before a court even though there is no clear law governing the case. The
simple fact of the matter is that there are cases in which either the law is unclear or in which there is no law on the matter. Situations of this sort can arise when cases are unforeseen or when the people realize that what was once an accepted solution to a problem
no longer "orders the phenomena justly and fairly." In either case, a court is faced with a very difficult task-it must decide a case39 in the absence of clear law (perhaps in the absence of law at all). This claim amounts to saying that there are gaps (lacunae) in the
law that courts must attempt to fill. 40 A gap exists in the law whenever a case falls within the jurisdiction of a court and there are no clear legal rules for its resolution. 41 To be sure, the existence of legal lacunae has been much debated, and the existence or
nonexistence of the same is a major question for legal theory. Even though this chapter is not a proper forum for exploring the issue of legal lacunae in depth, I do think it important to point out that my version of positivist noninterpretivism requires their existence.
Moreover, positivist noninterpretivism makes it the province of the courts to fill such gaps. When a court seeks to fill in a gap in the law, when it seeks to find/ make the law, what the court must do is attempt to determine, or to help in the determination of, the will of a
consensus of the people. If the court were to do otherwise, it would be abandoning the sources thesis and, accordingly, acting ultra vires. Thus saying that a court may, indeed has to, decide cases in the absence of law does not amount to 110 H. Hamner Hill a
rejection of the sources thesis. In the absence of a dear consensus, in the absence of law, a court should attempt to determine the consensus or to shape it, whichever is appropriate to the case. Determining the consensus of the people is never an easy task. The
task is made all the more difficult when the issue involves a moral problem that the people have not subjected, or will not subject, to critical examination. The consensus determinative of law should be a reflective rather than a prereflective or unreflective one. It is in
the provocation of critical reflection on difficult issues that the court has a role to play as an agent of social change. By tackling some tough issues, and attempting to find acceptable solutions to them, the courts have an extraordinary power to force critical evaluation
or reevaluation of moral beliefs. The courts have the ability to act as agents provocateurs of a developing moral consensus. When there is no dear consensus on a particular moral question, or when the consensus appears to be unreflective, the task of the courts
should be to try to determine an appropriate principle for resolving the issue and then see whether, upon reflection, a consensus develops that embraces the principle articulated. What is more, should a court fail to articulate a principle on which there is a
consensus, or should it articulate a principle that runs counter to the reflective consensus, there are a number of ways in which such a principle can be denied legal force. Several examples should help clarify this point. Three important cases dealing with difficult
moral issues exemplify the nature of the role that courts should play as agents of social change. The cases are Brown, Roe v. Wade, and Lochner, representing, respectively, the court successfully acting as an agent of social change, the court urging a moral
prindple on which there is not yet a consensus, and the court urging a moral principle rejected by the people. Depending upon how one reads the social science data, a strong case can be made to the effect that in 1954 there was no consensus concerning racial
equality and the Equal Protection Clause. The Court, however, saw that there was a need to address the issue of state-sponsored racial segregation and undertook to articulate a moral principle for dealing with the issue. To be sure, the princple articulated by the
Court in Brown prompted neither instant nor universal assent, but it did force a critical evaluation of attitudes concerning racial discrimination. And, importantly, within twenty years a dear consensus had developed, a reflective consensus, agreeing with the principle
articulated by the Court. In dear contrast to the Court's success in changing social attitudes in Brown stands its limited success in dealing with the abortion issue. In Roe the Court accepted the task of attempting to articulate a moral principle for dealing with the
problem of abortion that would be acceptable to a consensus of the people. The principle it articulated, however, far from coalescing a consensus, appears to have split public opinion. Few people are happy with the principle underpinning Roe. Those who favor
Between Clause-bound Literalism and Value Imposition 111 the decision often feel that the right to abort should be stronger than the one the Court articulated; those who oppose the decision feel that there should be no such right. The ultimate fate of the decision
still hangs in the balance, awaiting the development of a reflective consensus. The Court clearly succeeded in Roe in provoking critical examination of moral beliefs, but it has not yet and may never, succeed in discovering a moral principle governing the problem of
abortion acceptable to a consensus of the people. Should a consensus fail to develop, the Court should return the issue to the states for determination in more homogenous forums. In my view the courts simply cannot provide answers to all questions and on those
where they cannot, they should refer the questions to an organ of government more competent to decide. Lochner provides a clear example of what happens when the courts identify a political-moral principle that is actually, or upon reflection, ultimately, rejected by
the consensus. There are good reasons to believe that even in 1905 a majority of the people would have rejected the applicability of laissez-faire economics to many of the then current social problems. When the Court embraced laissez-faire, over Holmes's
objections that the Constitution was written for people of fundamentally differing views, public rejection of the principle adopted by the Court was swift and overwhelming. Legislators continued to pass legislation that flew in the face of laissez-faire principles (much of
it was subsequently struck), and President Harry Truman threatened to pack the Court with justices who would reverse Lochner. Within thirty years the Court saw the error of its ways and reversed. Had the Court not reversed, the people had and have other means
at their disposal with which to reject court decisions (short of a court-packing plan). Perhaps the most powerful of these means is the amendment process. One of the much overlooked features of the U.S. political landscape is the relation between the amendment
process and rejection of Supreme Court decisions. There have been, of course, but twenty-six amendments to the Constitution of which ten accompanied the original document and were necessary for ratification, and yet another two were a serious mistake and its
correction (prohibition). Of the remaining fourteen, five of the amendments are clear repudiations of Supreme Court decisions. The Eleventh Amendment reverses the decision in Chisholm v. Georgia, 42 the Thirteenth and Fourteenth reverse Scott v. Sanford, 43
the Sixteenth reverses Pollock v. Farmer~ Loan and Trust Co., 44 and the Twenty-sixth reverses Oregon v. Mitchell. 45 The amendment procedure is a powerful tool that the people can and have utilized to correct what are, in the eyes of the people, serious
mistakes on the part of the Court when it comes to answering difficult political-moral issues. When the Court errs, there are remedies.46 Having outlined a theory of judicial review that is both positivist and noninterpretivist, and that retains a role for the courts to play
as agents but not the sole determiners of social change, several problems 112 H. Hamner Hill remain to be considered. The problems addressed in the next subsection fall into two broad categories: those dealing with the determination of a consensus and those
dealing with the problem of majority tyranny. Difficulties with Positivist Noninterpretivism The core of my positivist noninterpretivist theory of judicial review is the location of sovereignty in the will of a consensus of the people. Consensus theories, however, face
several serious difficulties, not the least of which involves determining what the consensus is and whose views are to count toward the consensus. There are at least two approaches to determining a consensus: Everyone's views are to count and to count equally (a
moral one-person, one-vote principle), or the views of some count more than, and perhaps to the exclusion of, the views of others. The former approach has been adopted by Edmund Burke and by Alexander Bickel in his later writings; the latter by modern-day
contractarians, John Rawls, and others. Each of these approaches presents difficulties. If, on the one hand, the views of some are to count more than the views of others in the determination of the consensus, two problems arise. First, as the views of some persons
are valued more highly than the views of others, the charge that the consensus is elitist is hard to defeat. Even if those whose views are to be taken more seriously are identified as "competent judges" according to Rawls,47 the consensus that emerges from the
competent judges is in no way democratic. In a society at least nominally committed to democratic policymaking, this is a serious difficulty. The second difficulty involves the determination of who is to count as a competent judge in moral matters. The identification of
competent judges in any area of inquiry often smacks of questionbegging or stacking the deck. Determining who is a competent judge is often a question of power politics, a determination geared toward maintaining the status quo. Even in objective realms like
physical science, Thomas Kuhn, Paul Feyerabend, and their followers argue that people who disagree with the majority power brokers are, despite their objective competence, ruled incompetent. Disagreement with the majority becomes a pretext for banishment to
the gulag of incompetence. One should recall Bertrand Russell's conjugation of the highly irregular verb: I am firm, you are obstinate, he is a pig-headed fool. Although there may well be acceptable answers to the problem of determining who is to count as a
competent judge (though I, I should confess, am dubious of even that modest prospect), I can see no way to counter the charge that entrusting policymaking exclusively to competent judges is inherently antidemocratic. It is, of course, disturbing that unqualified (not
to say incompetent) persons take part in the democratic process, but democracy may well require not only a right to be wrong but a right to be stupidly wrong. To paraphrase Oliver Wendell Holmes, a commitment to democracy Between Clause-bound Literalism
and Value Imposition 113 seems to require that the people are entitled to go to hell in a handbasket, so long as they vote themselves there. Of course, embracing the other option, namely, that everyone's views count equally toward the consensus, poses a clear
danger of majority tyranny. Burke noted long ago that there is nothing sacred in the concept of majority rule. It applies, where it does, as a result of history and habit, not because it is in any way an objectively superior form of government. Pure majority rule subjects
the standards of legality and constitutionality to the sentiments rampant in the citizenry.48 Protection of minority rights becomes, to put it mildly, a very serious problem. Despite the serious nature of problems such as the protection of minority rights, my positivist
noninterpretivist theory commits me to what Bill Nelson has called "radical democracy." Ultimately the exclusive determinant of what law is is the will of a consensus .of the people. If the people will unwise, politically unsound, or clearly immoral laws into existence,
then we are stuck with unwise, unsound, or immoral laws as sovereignty is located in the will of the people. As Justice Stewart said, dissenting in Griswold v. Connecticut, the silliness, or stupidity, or even asininity of a law does not, in itself, make such a law
unconstitutional. 49 I wholeheartedly embrace Stewart's position. The courts simply are not the place within our system to seek protection from unwise, immoral, or blatantly discriminatory legislation. To be sure, such protection must be sought somewhere, but, as
Learned Hand so ably argues: "This much I think I do know-that a society so riven that the spirit of moderation is gone, no court can save; that a society where that spirit flourishes, no court need save; that in a society which evades its responsibility by thrusting
upon the courts the nurture of that spirit, that spirit in the end will perish."50 To be sure, a society needs to try and protect itself against majority tyranny. But such protection lies chiefly outside the courts.51 There is, however, a limited role for the courts to play in
providing such protections. One way the courts can aid in protecting society against majority tyranny is through the enforcement of self-imposed limits on majority power or action, that is, empowering courts to force the majority to abide by rules to which it, the
majority, has agreed-rules that effectively disable the majority from asserting its will in certain areas. The restrictions on state and federal government actions found in Article I, Sections 9 and 10, and in the Bill of Rights count as instances of disabling rules that the
courts could enforce. To be sure, such a move promotes protection of minority rights, but it does not guarantee them absolutely. Ultimately, of course, the protection offered by the courts is minimal in that the courts are empowered to enforce only those limitations
on majority power that the majority accept. Should a super-majority (the two-thirds of the people needed to amend the Constitution-a number itself the product of self-imposed restraint) decide to free itself from the fetters of current constitutional restraints, then the
courts can offer no protection. 114 H. Hamner Hill Though I find the idea repugnant, I can see no good reason to suppose that the people could not free the states from the restrictions of the Fourteenth Amendment through the repeal process. If there were to be any
protection from such action, it would lie outside the courts. One thing that a positivist noninterpretivist theory of judicial review cannot guarantee, and does not pretend to guarantee, is that the courts will articulate correct moral values, or that the consensus that
emerges will embrace correct values. There is no protection against morally bad, yet legally valid, laws. And there is no guarantee that a future decision like Brown would be legitimate while one like Lochner would be illegitimate. Those decisions and decisions like
them stand on the same footing: Each is potentially legitimate. Where they differ is in the verdict history has passed on them. To ask for a guarantee that all decisions in cases of noninterpretive review will be morally correct is to ask too much from a theory of
judicial review. To seek, as so many constitutional theorists seek, a theory that guarantees Brown while protecting against Lochner is truly the elusive quest. NOTES 1. Alexander Bickel begins his classic defense of nonpositivist noninterpretive review, The Least
Dangerous Branch, with the observation "The least dangerous branch of the American government is the most extraordinarily powerful court of law the world has ever known. The power which distinguishes the Supreme Court of the United States is that of
constitutional review of actions of the other branches of government, federal and state." A. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Indianapolis, Ind.: Bobbs-Merrill, 1963), p. 1. 2. Critics of judicial review (Ely among them)

Whenever the Court upholds a legislative enactment a far more

frequently fail to discuss one of the important functions of judicial review-legitimation. (

common result than invalidation), that enactment gains an air of legitimacy . For a discussion of the legitimating function, see, A. Bickel, supra note 1, p.
29 ff. 3. J. H. Ely, Democracy and Distrust: A Theory of Judicial Review (New Haven, Conn.: Yale Univ. Press, 1980), p. 5. 4. For excellent contemporary statements of the positivist interpretivist position, see, R. Berger, Government by Judiciary (Cambridge:
Harvard, 1977) and R. Bork, Traditional Morality in Constitutional Law (Washington D.C.: American Enterprise Institute, 1984); R. Bork, "Neutral Principles and Some First Amendment Problems," 47 Indiana L. J. 1 (1971). Excellent contemporary statements of the
nonpositivist noninterpretivist position can be found in A. Bickel, supra note 1; M. Perry, The Constitution, the Courts, and Human Rights (New Haven, Conn.: Yale Univ. Press, 1977); T. Grey, "Do We Have an Unwritten Constitution," 27 Stanford L. Rev. 703
(1975). 5. U.S. v. Butler, 297 U.S. 1, 63 (1936). 6. One is reminded of the Vince Lombardi theory of equal protection. "Sure," Coach Lombardi is reported to have said, "I treat all my players equally. They're all scum." On a strict interpretivist reading of the Equal
Protection Clause, as neither the language of the constitutional provision nor the intent of the framers Between Clause-bound Literalism and Value Imposition 115 gives any guidance, a court would be compelled to rule a legislative equivalent to the Lombardi
approach constitutional. Similarly, whenever a legislature says, "But that is all the process she is due," the court would be compelled to hold whatever minimal process the legislature provided as adequate. 7. See, for example, Lon L. Fuller, The Morality of Law
(New Haven, Conn.: Yale Univ. Press, 1964); "Positivism and the Fidelity to Law," 71 Harvard L. Rev. 593 (1958). 8. Joseph Raz, "Legal Reasons, Sources, and Gaps," in Joseph Raz, The Authority of Law (Oxford: Clarendon Press, 1979), p. 53. 9. For a full
statement of Kelsen's doctrines of authorization, see Stanley Paulson, "Material and Formal Authorization in Kelsen's Pure Theory," 39 Cambridge L. ]. 172 (1980). 10. Jeremy Bentham, Of Laws in General, H.L.A. Hart ed. (Oxford: Oxford Univ. Press, 1970), p. 1.
11. Ibid., pp. 18 ff. 12. For a discussion of the Constitution as Grundnorm see Paulson, supra note 9. Paulson makes the important point that the Constitution serves both a validating and an invalidating function; that is, the Constitution allows one both to determine
which laws are invalid and which are valid. As noted above, the legitimating function of judicial review is a much neglected feature of the practice, neglected primarily by critics. 13. Robert Bork has noted that whenever possible judges talk as if they were searching
for the intent of the framers ("Neutral Principles and Some First Amendment Problems," supra note 4 at pp. 3-4). Other authors insist that judges should be bound by the intent of the framers. Berger, supra note 4; T. Diamond, "Democracy and 'The Federalist': A
Reconsideration of the Framers' Intent," 53 Am. Pol. Sci. Rev. 52 (1959); J. P. Frank and R. F. Monroe, "The Original Understanding of 'Equal Protection of the Laws,'" 50 Columbia L. Rev. 131 (1950); H. Morrison, "Does the Fourteenth Amendment Incorporate the
Bill of Rights?: The Judicial Interpretation," 2 Stanford L. Rev. 140 (1949); C. Warren, "The New Liberty Under the Fourteenth Amendment," 339 Harvard L. Rev. 431 (1926). There are, of course, many who reject the quest for the original understanding. A. Bickel,
"The Original Understanding and the Segregation Decision," 69 Harvard L. Rev. 1 (1955); P. Brest, "The Misconceived Quest for the Original Understanding," 60 Boston Univ. L. Rev. 234 (1980); A. S. Miller and R. F. Howell, "The Myth of Neutrality in Constitutional
Adjudication," 27 Univ. of Chicago L. Rev. 661 (1960). 14. J. Bentham, "The Constitutional Code," in The Works of Jeremy Bentham, vol. 9, R. Bowring, ed. (London: Simpkin, Marshall, and Co., 1843), p. 121. 15. In large part I take my task here to be similar to that
of Hart in his acceptance of a positivist theory of law while rejecting Austin's command theory of law and material reduction theory. I accept the basic Benthamite position on the nature of law, but I adopt a non-Benthamite, noninterpretivist theory of sovereignty. 16.
One criticism of the interpretivist criterion of unconstitutionality is that it is too stringent. Felix Cohen argues that the interpretivist criterion, expressed in James Bradley Thayer's famous rule of clear mistake, amounts to a rule that what is rational is constitutional.
"Taken seriously, this conception makes of our courts lunacy commissions sitting in judgment upon the mental capacity of legislators and, occasionally, of judicial brethren." F. Cohen, "Transcendental Nonsense and the Functional Approach," 35 Columbia L. Rev.
809, 819 (1935). 116 H. Hamner Hill 17. G. Sherman, "Keeping Alive a 2-century-old Document," National L. ]., Monday, October 13, 1986, p. 13. 18. One of the problems that one encounters in current debates about constitutional interpretation is that various
theories of interpretation are often used to mask political convictions. The work of William Winslow Crosskey, for example, is almost totally ignored by current proponents of positivist interpretivism. This is odd in that Crosskey provides a careful and detailed study of
the meaning of various constitutional provisions as they were understood by the framers in the context of the late eighteenth century. Crosskey's analysis, however, reveals that provisions like the Commerce Clause were originally intended to grant the federal
government extraordinarily broad regulatory powers. Such a reading of the original intention of the Constitution is at odds with the political motives of many positivist interpretivists, so it comes as little surprise that Crosskey's work is virtually ignored. See, W. W.
Crosskey, Politics and The Constitution in the History of the United States, 3 vol. (Chicago: Univ. of Chicago Press, 1980). 19. 0. W. Holmes, "The Theory of Legal Interpretation," 12 Harvard L. Rev. 418 (1899). Crosskey, supra note 18, uses this quote from Holmes
on the frontispiece of the first two volumes of Politics and the Constitution. 20. 5 U.S. (1 Cranch) 137 (1803). 21. 198 u.s. 45 (1905). 22. 347 u.s. 483 (1954). 23. 381 u.s. 469 (1965). 24. 367 u.s. 643 (1961). 25. 410 u.s. 113 (1973). 26. Perry, supra note 4, p. 93. 27.
Perry does not subscribe to the view that there is a uniquely correct answer to each political-moral question-there may be several. Thus he rejects a moral version of Dworkin's right answer thesis. What Perry desires is a process of dispute resolution likely to reach
one of the right answers to difficult politicalmoral questions. He believes that the process most likely to succeed is noninterpretive review. 28. Perry, p. 97. 29. Perry, p. 99. 30. Perry, p. 115. This passage in Perry clearly identifies his nonpositivist views. He requires
neither that the moral values that underwrite correct legal decisions in hard human rights cases be enacted by the sovereign (made part of the law), nor that they be accepted by the sovereign. Such moral values exist and determine the correct answers to legal

The
questions independently of what the sovereign believes or comes to believe. Perry thus rejects both the sources thesis and the separability thesis. Rejecting these theses identifies his view as one that is nonpositivist. 31. Perry, p. 102. 32.

positivist interpretivist's response to bad laws is "Get the legislature to change them." This view has been
expressed in several important Supreme Court decisions concerning the standard of review. Justice Black, discussing a Kansas debt adjustment statute noted, "The Kansas debt
statute may be wise or unwise. But relief, if any be needed, lies not with this body but with the body constituted to pass laws for the State of Kansas." Ferguson v. Skrupa 372 U.S. 726, 732 (1963). Similarly, Justice Potter Stewart said of Connecticut's birth control
statute, "I think this is an uncommonly silly law. . . . But we are not Between Clause-bound Literalism and Value Imposition 117 asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States
Constitution. And that I cannot do." Griswold v. Connecticut 381 U.S. 469, 527 (1965) (Justice Stewart dissenting). 33. H. Jones, "An Invitation to Jurisprudence," 74 Columbia L. Rev. 1023, 1031 (1974). 34. It should be noted that Jones's reference to state action
doctrines implicitly endorses my view in that state action, as explicated for purposes of Fourteenth Amendment analysis, is a question of fundamental law. 35. Of course, such a reading of the First Amendment would support Justice Black's rather extreme view that
"no law" means no law and, accordingly, that all libel and slander laws are unconstitutional. 36. The text is, however, the best place to start, and, frequently, the final word on the matter. The constitutional text has a very special place in U.S. political and legal theory,
and any theory of judicial review that fails to take account of or that obscures that place is defective. Perhaps the single most devastating challenge that can be leveled against the American Legal Realists is that they give no account of the importance of legal texts,
including the constitutional text, in their account of law. 37. Perry, supra note 4, p. 115. 38. Some constitutional theorists have managed to read the available social science data so as to find that in 1954 the decision reached in Brown was, in fact, reflective of an
actual consensus existing in the U.S. public. Although I would like to believe that we do, in fact, live in an enlightened society, the data do not support such a belief. To be sure, there was in 1954 a growing uneasiness with state-enforced racial segregation, and the
Court in Brown took an active role in the reconsideration of a social policy. I think it at best fanciful, however, to suggest that the Brown decision actually reflected the views of a consensus of the people at the time that the decision was handed down. The Court in
Brown initiated and shaped a new consensus, it did not reflect a newly developed one. 39. The principal task of the judge is to decide cases properly brought before the court. One aphorism familiar to most beginning law students is that the judge is often in error but
never in doubt. As disturbing as the claim may seem, a wrong decision from a judge is, for systematic reasons, better than no decision at all. 40. A full discussion of the problem of normative gaps or normative closure is far beyond the scope of the present chapter.
For those interested in this problem, however, some of the leading works on the topic are Carlos Alchourron and Euginio Bulygin, Normative Systems, (Wein: Springer-Verlag_ 1971); Logique et Analyse N.S. 9 (1966) is devoted to the problem; Joseph Raz, The
Authority of Law, ch. 5; and Julius Stone, Legal Systems and Lawyer's Reasonings (Stanford, Calif.: Stanford Univ. Press, 1964). 41. One implication of embracing the existence of normative gaps in legal systems is that one must reject ~onald Dworkin's famous
right answer thesis. The existence of legal gaps requires that there be cases within the jurisdiction of courts for which there is no uniquely correct legal resolution. Whether one treats the existence of gaps as a beneficial or detrimental feature of a legal system is a
separate question. What one must do, however, is accept that there are cases for which there is no right answer. 42. 2 Dall. 419 (1793). 118 H. Hamner Hill 43. 19 How. 393 (1857). 44. 157 u.s. 429 (1895). 45. 400 u.s. 112 (1970). 46. One should also recall
President Andrew Jackson's rebuff of Chief Justice John Marshall: "Mr. Marshall has made his decision, let him enforce it." 47. J, Rawls, "Outline of a Decision Procedure for Ethics," 60 Phil. Rev. 177 (1951). 48. Stability in law, particularly constitutional law, is a
desirable trait. One does not want the standards of what is legal to change too rapidly. Accordingly, a tedious process like the amendment process, while allowing for expressions of the popular will, slows the rate of change. 49. See note 32, supra. 50. Learned
Hand, "The Contribution of an Independent Judiciary to Civilization," in The Spirit of Liberty, I. Dillard, ed. (New York: Knopf, 1953), p. 165. 51. James Bradley Thayer, long an opponent of "judicial activism," argued at the tum of the century that "under no system can
the power of courts go far to save a people from ruin; our chief protection lies elsewhere." Thayer, unfortunately, did not indicate just where "elsewhere" might be. J. B. Thayer, "The Origin and Scope of the American Doctrine in Constitutional Law," in Legal Essays
(Boston: Boston Book Co., 1908), p. 39. SIX Toward a Public Values Philosophy of the Constitution STEPHEN M. GRIFFIN A relatively new type of constitutional theory involves applying moral and political philosophy to explain, justify, and criticize aspects of
constitutional law. This chapter addresses a recent development in this category of constitutional theory-the effort to construct a public values or "neorepublican" philosophy of the Constitution.1 The development of this philosophy is an attempt to articulate a distinct
alternative to the democratic relativism that has dominated U.S. political and constitutional thought in this century. 2 The proponents of a public values philosophy reject the political theory of interest group pluralism that awards political victory to the greatest
aggregation of private preferences. They argue that the Constitution and the Bill of Rights presume "a conception of the political process as an effort to select and implement public values."3 Public values can be understood as the common goals or aspirations of
the American community, exemplified by the values contained in the Constitution. Despite the historical appeal of neorepublicanism, its proponents have not so far been able to provide much content to the concept of a public value. A public values approach may
also be usefully contrasted with traditional constitutional theory (which concerns itself with reconciling judicial review and democracy) in that this approach seeks not merely to influence the constitutional practices of government, but to find a new audience for
constitutional discussion among the citizens of the United States. The general idea is that public discussion over issues of constitutional principle should be encouraged in the hopes of providing a more secure basis for the maintenance of freedom and equality. This
encouragement of public discussion on constitutional, matters can be regarded as a democratization of political and constitutional theory, the aim of which is a greater degree of awareness of constitutional values and participation in constitutional and political
change. 119 120 Stephen M. Griffin The idea of a public values philosophy presents certain difficulties. For example, it is not immediately clear how the notion of a "public value" is to be distinguished from a purely private preference. Further, because the objective
of the political process from a public values viewpoint is to select those values, the question arises as to the nature of the institutions and practices required to ensure that this process is not unduly influenced by powerful aggregations of private preferences. To see
how these difficulties might be addressed and a public values philosophy elaborated, this chapter explores the public values alternative within the framework of Rawls's theory of justice.4 Five main topics are considered: the justification of "public" values, the
structure of Rawls's system of constitutional rights, the worth of liberty, whether judicial review can be justified within Rawls's theory, and the contrast between democratic relativism and a public values philosophy. PUBLIC VALUES AND THE ORIGINAL POSITION
How are public values to be distinguished from mere preferences? Rawls's theory provides a straightforward solution to this problem: A public value is a value that would be affirmed from the perspective of the original position. Unfortunately, Rawls's idea of an
original position has proved problematic, as it is the source of many misunderstandings. I will therefore offer an account of the original position that I hope will be less vulnerable to some standard objections. The original position is a set of appropriate conditions to
govern the selection of principles of justice for the basic structure of society. In trying to accurately and completely describe these conditions, the conception of the original position will inevitably appear as a philosophical ideal. But it is important to understand that
the conditions specified are intended to be the restrictions on argument we try to adhere to every time we reason about questions of social justice. When Rawls first introduces the concept of the original position, it is in terms of a social contract metaphor, an
assembly of persons gathering to choose principles of justice.5 In the main, he continues to use the original position as a social contract metaphor, speaking of "the parties" in the position and the like. But Rawls makes it quite clear that the original position should
be interpreted so that anyone can assume its perspective at any time: [O]ne or more persons can at any time enter this position, or perhaps, better, simulate the deliberations of this hypothetical situation, simply by reasoning in accordance with the appropriate
restrictions .... To say that a certain conception of justice would be chosen in the original position is equivalent to saying that rational deliberation satisfying certain conditions and restrictions would reach a certain conclusion. . . . It is important that the original
position be interpreted so that one can at any time adopt its perspective. 6 A Public Values Philosophy of the Constitution 121 This is how I regard the original position: It is a collection of restrictions on the kinds of arguments we may use to advocate or oppose
given principles of justice. If we find these restrictions persuasive, we will employ them in reasoning about questions of justice, and they will affect the arguments we make in a real and nonhypothetical fashion. One may think that what is hypothetical about the
original position is the agreement that is made there, the hypothetical contract Rawls speaks of.7 Rawls is actually somewhat ambiguous on this point. When he tries to explain specifically why his theory is a social contract theory, he justifies the term by referring to
the fact that the theory must apply to many persons, must be a public conception of justice, and that persons are expected to adhere to the agreed principles. 8 But all of these conditions can be built into the original position as appropriate conditions for argument
without a contract ever occurring, real or hypothetical. Given the severe restrictions on information appropriate to reasoning about justice, there is no basis for bargaining or negotiation in the original position. The original position is thus the standpoint of one person,
who by virtue of the restrictions imposed on his or her reasoning (some of which are inspired by the social contract tradition), can be assured that his or her favored principles would be chosen by anyone adopting that standpoint. 9 It is thus misleading to
characterize Rawls's theory as a social contract theory if what is meant is that the principles of justice are derived from or justified through a contract, real or hypothetical. If the question is one of justification, Rawls is not best understood as a contractarian, and his
theory is not best understood as a social contract theory. The principles of justice do not acquire their initial justification from a hypothetical contract but from the moral force of the conditions on argument that make up the original position. The condition on argument
that ensures the values selected will be public values is the requirement that we must exclude the effects on our reasoning of information that prevents us from achieving an objective standpoint free of prejudice and bias (the "veil of ignorance"). It is not necessary to
speak of hypothetical parties laboring under a sudden, mysterious denial of knowledge. We simply take care not to support the arguments we make in favor of our preferred principles of justice (public values) with certain kinds of information. The information that
Rawls excludes essentially relates to the characteristics of persons that form the basis for personal preferences.10 Due to this restriction on information, the values selected in the original position are substantially independent of existing preferences. They are public
values. For a public values philosophy, the question then arises whether the political system can be designed to approximate the fairness of the original position. If this can be done, the political system will be able to properly fulfill its role of selecting public values.
The next three sections explore aspects of Rawls's constitutional scheme in order to 122 Stephen M. Griffin determine how the political system must be structured to fulfill this role. RAWLS'S SYSTEM OF CONSTITUTIONAL RIGHTS Rawls's first principle of justice,
the principle of equal liberty, states that the social primary goods known as the basic liberties should be arranged to form the most extensive set of liberties justifiable from the standpoint of the original position, and that the set of liberties should be distributed equally
to all citizens. The content of the set of basic liberties is as follows: (1) liberty of conscience (including religious freedom); (2) the political liberties and freedom of association (including the right to vote, to run for public office, freedom of speech, press, and
assembly); (3) the liberty and integrity of the person (including the right to hold personal property, freedom from slavery, and freedom of movement and occupation); and (4) the rights and liberties covered by the rule of law (including freedom from arbitrary arrest
and seizure and all other liberties that may be usefully summarized under the heading of "due process"). 11 It appears that Rawls intends all of the basic liberties to be thought of as constitutional rights, rights that any just constitution must contain. As Rex Martin
has observed, however, Rawls does not provide us with an account of what he takes a "right," constitutional or otherwise, to be.12 Following Martin's Rawls-like theory. of rights then, we may define a right for Rawls as "an individual's legitimate expectation as to
what he would receive in a just institutional distribution of social primary goods."13 Further, in virtue of the list of basic liberties Rawls gives, we may characterize rights as things that belong to individuals as persons, "which can be individuated (parceled out, equally,
to the individuals within a certain class) in some determinate amount or to some determinate degree, under publicly recognized rules, such that the distribution of that [social primary] good can be guaranteed to each and every member of that class."14 All of Rawls's
basic liberties-constitutional rights meet these criteria. In his most recent articles, Rawls has used the fundamental capacities and highest order interests of moral persons to have an effective sense of justice and to form, revise, and pursue a conception of the good
to justify recognition of his general categories of constitutional rights.15 Rawls tends to think in terms of three categories: rights that are supported by the interest in having an effective sense of justice; rights that are supported by the interest in having a conception
of the good; and rights that are necessary so that the foregoing rights may be properly guaranteed.16 Thus, the political liberties and freedom of thought are supported primarily on the basis that they enable citizens to express their sense of justice. Liberty of
conscience and freedom of association are supported primarily on the basis that they enable citizens to have a conception A Public Values Philosophy of the Constitution 123 of the good. The rights connected with the liberty and integrity of the person and the
various due process rights are necessary if the other rights are to be guaranteed.17 Together, these different rights form a family or system of rights. As conflicts among the rights are inevitable, any right may be limited in the process of achieving a coherent system,
and so no right is "absolute." There are no "preferred" rights in Rawls's theory. Further, Rawls does not assume that the entire system of rights can be derived solely from the universal interests of a moral person. Deriving a more specific system is a complex
process involving arguments from the perspective of the original position, establishing scopes and weights for the different rights, taking into account constitutional considered judgments, and any appropriate facts and circumstances.18 Rawls simply remarks: "The
historical experience of democratic institutions and reflection on the principles of constitutional design suggest that a practicable scheme of liberties can indeed be found."19 Rawls therefore holds that the priority of the basic constitutional rights is not infringed by
drawing limits to regulate them into a coherent system of rights. Rules of order and regulations of "time, place, and manner" are all appropriate. Rights may also be restricted, which is to say that they may be limited for the purpose of securing an even more
extensive system of rights. There are two sorts of cases envisioned by Rawls: restrictions on the rights of political participation to protect other rights through the mechanisms of constitutionalism, and restrictions of an emergency nature necessary to protect the
entire system of rights in time of war or other constitutional crisis.20 Both cases are familiar enough in our constitutional law. Rawls sees "[t]he traditional devices of constitutionalism-bicameral legislature, separation of powers mixed with checks and balances, a bill
of rights with judicial review"21-as being adopted for a just constitution on the grounds that by limiting majority rule, the system of rights is made more extensive or more secure. The restriction is thus built directly into the constitution.22 By contrast, restricting
constitutional rights in an emergency involves interests extraneous to the system of rights, and such restrictions do not appear in the constitution. The sort of emergency Rawls has in mind is a very rare one, a constitutional crisis requiring "the more or less
temporary suspension of democratic political institutions, solely for the sake of preserving these institutions and other basic liberties."23 In a well-ordered society (or even in our own), such a crisis is unlikely to occur because such a society is a stable political order
with a constitutional system flexible enough to handle "normal" emergencies such as foreign wars or even internal rebellions. Rawls is skeptical of Supreme Court decisions that imply such a crisis existed at some point in U.S. history, and he concludes that such a
crisis is unlikely to ever occur in the United States or in any well-ordered society.24 124 Stephen M. Griffin THE WORTH OF LIBERTY So in a Rawlsian well-ordered society, all citizens possess a determinate bundle of guaranteed constitutional rights. Given the
inequalities in economic goods allowed by the second principle of justice, however, each citizen does not enjoy the same opportunity to exercise those rights. It appears that some citizens will be more able to pursue expensive conceptions of the good and that some
citizens will have a greater ability to influence the political process. Rawls thinks of this difference between possessing a right and the ability to exercise it as a distinction between liberty and the worth of liberty. The basic liberties (or, as we have seen, all basic
rights) are guaranteed to even the most poor and uneducated in an equal manner by the first principle of justice. The inequalities allowed by the second principle permit the worth of liberty to vary among the groups who possess different amounts of economic
goods. 25 It is at this point that egalitarian or Marxist critics of Rawls pose a strong objection. Rawls appears to assume too easily that inequalities in economic goods are compatible with equality in basic rights. What will the real "worth" of liberty be to someone who
is one of the leastadvantaged members of society? What will prevent powerful individuals or economic interests from unduly influencing the political process? Inadequate material means will often translate into a lack of political power. Why doesn't Rawls simply
stipulate that all of the social primary goods be distributed so that the worth of the basic liberties is equal for everyone? Rawls attempts to meet this objection through his guarantee of the "fair value" of the political liberties. In A Theory of Justice, his introduction of
this idea seemed somewhat ad hoc. 26 Once we better understand the nature of Rawls's argument for the political liberties, however, we can see that his theory in fact requires that the worth of the political liberties be made as equal as possible for all. Further, the
requirement that the equal worth of the political liberties be guaranteed has important egalitarian implications for Rawls's theory as a whole. Although there are no rights with a preferred position in Rawls's system, the political liberties do hold a special place. If we
keep in mind several themes in the preceding discussion, it is not hard to understand why this is the case. The moral interest that chiefly supports the political liberties is the interest in exercising our sense of justice. Our sense of justice is the capacity that allows us
to attain the perspective of the original position and therefore to understand and apply the principles of justice. It thus has a central place in Rawls's theory. When we add to this the fact that the political process is responsible for the implementation of the two
principles, the special role of the political liberties becomes apparent. So far as possible, we want the political process to mirror "the fair representation of persons achieved by the A Public Values Philosophy of the Constitution 125 original position."27 Allowing
inequalities in the political process would be similar to allowing inequalities between persons in the original position. Such inequalities would be a severe violation of the equal status and dignity of individuals. Inequality would imply that those favored by it are
somehow more worthy of exercising their sense of justice and governing society than those less favored. We therefore arrive at the conclusion that the worth of the political liberties to all citizens must be equal, or as equal as possible. This guarantee of the "fair
value" of the political liberties is similar to the idea of fair equality of opportunity in the second principle of justice.28 Absolute equality is not to be expected, but we take whatever steps we can to ensure that everyone has a fair chance to hold public office, to be
informed about political issues, to place items on the public agenda, and to generally influence the political process. Rawls suggests that the following measures be considered: "Property and wealth must be kept widely distributed" ;29 and political parties must be
kept independent of concentrations of private economic power, public financing of campaigns and elections, limits on political contributions, and subsidies to encourage a full airing of opinions on public issues.30 He remarks Historically one of the main defects of
constitutional government has been the failure to insure the fair value of political liberty. The necessary corrective steps have not been taken, indeed, they never seem to have been seriously entertained. Disparities in the distribution of property and wealth that far
exceed what is compatible with political equality have generally been tolerated by the legal system. Public resources have not been devoted to maintaining the institutions required for the fair value of political liberty. 31 The concept of guaranteeing the fair value of
the political liberties is a powerful one. Under certain assumptions, it can become a mighty egalitarian engine. Rawls implies at some points that the inequalities allowed by the full operation of the second principle will still be too great to be tolerated under the fair
value standard.32 The fair value argument implies that if a completely equal distribution of social primary goods is the only means of attaining the equal worth of the political liberties, then that is what ought to be done. Perhaps this is why Rawls puts his main
emphasis on policies that compensate for inequality (rather than working on inequality directly) in his suggestions for how to implement the fair value guarantee. In any case, the fair value argument is an important one for a public values philosophy. For to carry out
the public values vision, we must have a political process that is free of the distorting inequalities caused by private power. The general character of Rawls's discussion suggests just how far our current political process is from ensuring the fair value of the political
liberties, and thus just how much of a critical perspective a public 126 Stephen M. Griffin values philosophy must have. A recent careful study of U.S. politics produced this sobering conclusion: The power shift that produced the fundamental policy realignment of the
past decade did not result from a conservative or Republican realignment of the voters; nor did it produce such a realignment after the tax and spending legislation of 1981 was enacted. Rather, these policy changes have grown out of pervasive distortions in this
country's democratic political process. These distortions have created a system of political decisionmaking in which fundamental issues . . . are resolved by an increasingly unrepresentative economic elite.33 Rawls's theory may be described in many ways, but one
inappropriate description is that it is a defense of the status quo. It is quite clearly a powerful critique of our political system, a critique all the more compelling because its theoretical base is firmly within the domain of liberalism.34 JUSTIFYING JUDICIAL REVIEW In
designing just institutions for a Rawlsian constitutional system, the fundamental principle to bear in mind is the guarantee of equal, basic rights to all. All considerations of constitutional and political design are subordinate to this principle. The general objective is to
establish a governmental system that will preserve the most extensive system of basic rights possible and lead to just legislation. To do this, we try insofar as possible to reproduce the fairness of the perspective of the original position within the constitutional
system. As just discussed, this implies strong measures to keep the legislative-political process free from the influence of concentrations of private power. As we have already seen, Rawls thinks it plausible that the traditional mechanisms of constitutionalism can be
justified as desirable elements of a just constitution. Note, however, the nature of this justification. As prima facie restrictions on the equal political liberties, all of the devices of constitutionalism (a written constitution, bicameral legislature, separation of powers, a bill
of rights, judicial review) are equally suspect. All must be justified on the ground that the restrictions they entail provide a greater degree of protection to the other liberties than would be available under a system of bare majority rule. Majority rule as such has no

If liberties are not guaranteed

special place. It is dependent for its justification on the fundamental importance of the political liberties. those , then the conditions of background political justice are not met, and the
justness of any legislation enacted is in severe doubt So judicial review is justifiable
by the majority . 35 for Rawls if it ensures a more

This
extensive system of rights. But can we be more specific than this? We must bear in mind that, at best, Rawls's theory can only provide us with a general justification for judicial review. means a justification for a practice that allows the
judicial branch of government to nullify acts of legislation . A Public Values Philosophy of the Constitution 127 Rawls's theory does not provide us with a basis for saying whether the
judiciary should be elected, how it should construe the constitution, whether a special vote of the legislature could override certain judicial decisions, and so on. These are matters that lie beyond the theory of justice, matters of practical constitutional design. We can
say that, in comparison to the legislature, it is easier for the judiciary to mirror the fair representation of persons achieved by the original position. This is the ideal we are trying to achieve in designing the constitutional system. Striving for this ideal in the legislative
process requires a complex system of restraints and compensatory devices. By contrast, the nature of constitutional adjudication is such that formally, persons are already equal. As Lawrence Sager has said of this process: "It is irrelevant that a claimant is despised
or revered, or even that his is a claim shared by many or held in solitude."36 Judges are commonly said to have a duty to act fairly, impartially, objectively, and to exercise their sense of justice wisely. This perspective is precisely the one persons adopt in the

we have strong grounds for saying that judicial review

original position. If this perspective is already at least partially built into the institution of the judiciary, then is compatible with

stands on as firm a footing as the power of the legislature to enact legislation. Of course, the
Rawls's theory and

courts cannot play the same role as the legislature The courts cannot enact legislation or in guaranteeing the system of rights.

act on their own to create cases. no branch of government has a monopoly Further, Rawls makes it clear that on constitutional interpretation: In a
democratic society, then, it is recognized that each citizen is responsible for his interpretation of the principles of justice and for his conduct in the light of them. There can be no legal or socially approved rendering of these principles that we are always morally

not even
bound to accept, when it is given by a supreme court or legislature the court, puts forward
. Indeed each constitutional agency, the legislature, the executive, and

its interpretation Although the court may have the last say in settling any particular
of the constitution and the political ideals that inform it.

case, it is not immune from powerful political influences that may force a revision of its reading of the constitution. The court presents its doctrine by reason and argument; its conception of the constitution must, if it is to endure, persuade the

major part of the citizens of its soundness. The final court of appeal is not the court, nor the executive[,) [n)or the legislature , but the electorate as a whole.37

That distinction rests at the core of our Constitutional system.

Fowler 16 – Attorney
David Fowler, After Obergefell, Can Courts Rewrite Laws?, 2016,
https://www.wordfoundations.com/2016/10/24/after-obergefell-can-courts-rewrite-laws/

The Founders of the United States of America designed a balanced system of government that sets the
stage for limiting the power of each of its three major divisions, or branches. We call this a system of
checks and balances. It is a system that rests on the principle of the separation of powers.
According to this model , courts cannot enact or rewrite laws ; they can only interpret them or rule
them unconstitutional . Only legislators—lawmakers—can write laws.
Substantial
 Substantial – Aff
‘Substantial’ conclusively does not require quantification—Overwhelming legal
consensus, and consistent with dictionary definitions and plain meaning. Cherry-
picking the 5th definition in the dictionary is arbitrary
Van Antwerpen 5 – Judge, US Court of Appeals, Third Circuit
Interfaith Community Org. v. Honeywell Int’l, 426 F.3d 694 (3d Cir. 2005), available at
https://caselaw.findlaw.com/us-3rd-circuit/1170899.html

This approach, we believe, is most faithful to the statutory language, especially as to the word
"substantial ." See, e.g., United States v. Union Corp., 259 F. Supp. 2d 356, 399-400 (E.D. Pa. 2003)
(observing that RCRA's " substantial " requirement " 'does not require quantification of the
endangerment (e.g., proof that a certain number of persons will be exposed . . . or that a water supply will
be contaminated to a specific degree)'") (quoting United States v. Conservation Chemical Co., 619 F.
Supp. 162, 194 (W.D. Mo. 1985)). For the reasons we discuss infra, we believe that HN17 decisions such
as Parker, [**23] Cox, Union Corp., and Conservation Chemical define "substantial " in a manner
consistent with the statutory language, the legislative history, and the plain meaning of that word. See,
e.g., Cox, 256 F.3d at 300 (stating that "an endangerment is 'substantial' if it is 'serious' "); Union Corp.,
259 F. Supp. 2d at 400 (stating that a RCRA "endangerment is substantial if there is some reasonable
cause for concern that someone or something may be exposed to a risk of harm . . . if remedial action is
not taken.") (internal quotation omitted). We do not disagree that, given RCRA's language and purpose,
Congress must have intended that "if an error is to be made in applying the endangerment standard, the
error must be made in favor of protecting public health, welfare and the environment." Conservation
Chemical, 619 F. Supp. at 194. Here, the District Court added four additional requirements to the
endangerment showing. These held plaintiffs to a higher than needed showing for success on the merits
under § 6972(a)(1)(B). The additional requirements were as follows: [A] site "may present an imminent
and substantial endangerment" [**24] within the meaning of RCRA where: (1) there is a potential
population at risk; (2) the contaminant at issue is a RCRA "solid" or "hazardous waste"; (3) the
contaminant is present at levels above that considered acceptable by the state; and (4) there is a pathway
for current and/or future exposure. Interfaith Cmty. Org. v. Honeywell Int'l, Inc., 263 F. Supp. 2d 796, at
838 (2003). At least two of these requirements are irreconcilable with § 6972(a)(1)(B). 5 The first
requirement requires a "population," but HN18 § 6972(a)(1)(B)'s disjunctive phrasing, "or environment,"
means a living population is not required for success on the merits, as we discuss infra. The third
requirement, apparently intended by the District Court to give quantitative meaning to the word
"substantial" in § 6972(a)(1)(B), is similarly without support . The word "substantial" is not defined by
the statute or its legislative history. Turning to a dictionary, we find that " substantial " means " having
substance " and "not imaginary "; only as the last of several definitions does the dictionary offer
"of considerable size or amount ." Webster's New Universal Unabridged Dictionary 1817 (2d ed. 1983).
These definitions do not support one particular [**25] type of quantification measurement, such as the
District Court's requirement that there be an exceedence of state standards. Honeywell, tacitly following
Cox, 256 F.3d at 300, equates "substantial" with "serious ," which also does not support one
particular type of quantification measurement. As noted, the word "substantial" is not defined by the
statute or its legislative [*260] history, and we have not found any binding authority which stands
contrary to this analysis . It is thus difficult to see how § 6972(a)(1)(B) justifies the kind of hurdle
created by the District Court's third quantitative requirement - let alone the even higher requirements for
"substantial" that Honeywell argues for, without citation . Honeywell's arguments actually [**26]
provide an additional reason why we will not read state standards into the language of this federal law.
Honeywell contends that its conceded discharges into the Hackensack River could not possibly be
"substantial" because New Jersey has not yet established a remedial standard for river sediment
chromium. We do not believe that Congress intended § 6972(a)(1)(B) to be dependent upon the states in
such a manner, and the statutory language provides no support for such dependency. When Congress
enacted RCRA in 1976, it sought to close "the last remaining loophole in environmental law, that of
unregulated land disposal of discarded materials and hazardous wastes." H.R. Rep. No. 1491, 94th
Cong., 2d Sess. 4, reprinted in 1976 U.S.C.C.A.N. 6238, 6241. As we have noted, there is no definition or
explanation of the meaning of "substantial," but a discussion of RCRA's amendments observes that HN19
§ 6972(a)(1)(B) is "'intended to confer upon the courts the authority to eliminate any risks posed by toxic
wastes,'" S. Rep. No. 98-284, 98th Cong., 1st Sess. at 59 (1983) (quoting Price, 688 F.3d at 213-14), and
further that courts should " recogniz[e ] that risk may be assessed [**27] from suspected, but not
completely substantiated, relationships between imperfect data, or from probative preliminary data
not yet certifiable as fact." Id. (internal quotations and citations omitted). This supports neither the District
Court's particular quantitative requirement nor the even higher and more narrow quantitative standards
that Honeywell would have us impose. Decisions of the other courts of appeals are not to the
contrary. None require a particular quantitative showing as a sine qua non for liability. See Parker, 386
F.3d at 1015 (considering evidence of contamination at levels requiring landfill operator to notify state
agency but determining substantialness on totality of the evidence); Cox, 256 F.3d at 299-301 (finding
endangerments at two dumps on totality of the evidence; considering evidence of exceedences as to only
one dump); Dague, 935 F.2d at 1356 (affirming endangerment finding without considering any
quantitative evidence).

Specifically, default to reasonability—The court had made clear that when used
as a modifier the word ‘substantial’ should not be a high threshold. It’s core
function is to require that the reform be real, not that it be large.
Sanders 8 – Law Prof-Houston
Joseph Sanders, Michael D. Green, Law Prof-Wake Forest, and William C. Powers, Jr., Law Prof-UT
Austin, The Insubstantiality of the “Substantial Factor” Test for Causation, Missouri Law Review, Vol. 73,
p. 399, 2008, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1345171

Finally, the court signaled that it did not mean to have the modifier “substantial” constitute a high
threshold . It speaks of insubstantial factors as those which play only an “‘infinitesimal’” or
“‘theoretical’” part in bringing about injury, damage, or loss67 and notes that “[ u]ndue emphasis
should not be placed on the term ‘substantial’ ”68 : For example, the substantial factor standard,
formulated to aid plaintiffs as a broader rule of causality than the “but for” test, has been invoked by
defendants whose conduct is clearly a “but for” cause of plaintiff’s injury but is nevertheless urged as an
insubstantial contribution to the injury. Misused in this way, the substantial factor test “undermines the
principles of comparative negligence, under which a party is responsible for his or her share of negligence
and the harm caused thereby.”69

Throw out definitions of ‘substantially’—‘Substantial’ is distinct, and merely

means of substance or of the moment
Larson 68 – Justice of the Supreme Court of Iowa
Opinion by J. Larson, Unanimous, Smith v. Ft. Dodge, 160 N.W.2d 492, 1968

Apparently this is the first time we have had before us a question as to the meaning of section 373.19.
Specifically, we seek the interpretation of the words "substantial amendment" in that section. A
careful review of our case law reveals that we have never had occasion [**14] to define
"substantial ", but have attempted to define " substantially ." See Hardin County v. Wells, 108 Iowa 174,
176, 78 N.W. 908, 909. Webster defines " substantial " as follows: "3. That is of moment ; essential;
material * * *. 6. That is such in substance or in the main * * *. 10. Of or pertaining to the substance or
main part of anything." [*498] Webster's New International Dictionary, Second Edition (1957).
It's indeterminate—And, toss out definitions from other contexts—Must evaluate
it contextually
Larson 68 – Justice of the Supreme Court of Iowa
Opinion by J. Larson, Unanimous, Smith v. Ft. Dodge, 160 N.W.2d 492, 1968

It has also been said the word "substantial " is a relative and not exact term subject to a rule of
thumb. It is susceptible of different meanings according to the circumstances of its use. In
considering the word , it must be examined in its relation and context , and its meaning gauged by
all the surrounding circumstances . Busch v. Service Plastics, Inc., D.C., 261 F. Supp. 136, 142; State
v. Pahl, 254 Minn. 349, 95 N.W.2d 85, 89. See also 83 C.J.S. Substantial, p. 762; 40 Words and Phrases,
p. 493.

At worst, ‘substantial’ means considerable in amount – The courts say that’s still
so broad that it must be read deferentially. Specific thresholds are arbitrary, and
there’s a massive reasonability DA to intervening.
Prost 4 – Judge of the United States Court of Appeals for the Federal Circuit
“Committee For Fairly Traded Venezuelan Cement v. United States”, 18 June 2004,
http://www.ll.georgetown.edu/federal/judicial/fed/opinions/04opinions/04-1016.html

The URAA and the SAA neither amend nor refine the language of § 1677(4)(C). In fact, they merely
suggest, without disqualifying other alternatives, a “clearly higher/substantial proportion” approach.
Indeed, the SAA specifically mentions that no “precise mathematical formula” or “‘benchmark’ proportion”
is to be used for a dumping concentration analysis. SAA at 860 (citations omitted); see also Venez.
Cement, 279 F. Supp. 2d at 1329-30. Furthermore, as the Court of International Trade noted, the SAA
emphasizes that the Commission retains the discretion to determine concentration of imports on a “case-
by-case basis.” SAA at 860. Finally, the definition of the word “substantial” undercuts the CFTVC’s
argument. The word “ substantial” generally means “considerable in amount, value or worth .”
Webster’s Third New International Dictionary 2280 (1993). It does not imply a specific number or cut-
off . What may be substantial in one situation may not be in another situation. The very breadth of the
term “substantial” undercuts the CFTVC’s argument that Congress spoke clearly in establishing a
standard for the Commission’s regional antidumping and countervailing duty analyses. It therefore
supports the conclusion that the Commission is owed deference in its interpretation of “substantial
proportion.” The Commission clearly embarked on its analysis having been given considerable leeway
to interpret a particularly broad term .
 Substantial – Neg
‘Substantial’ changes are major changes to the main part of something—Not
‘isolated, minor, or individual’ changes, REGARDLESS of whether they’re
significant or provoke backlash. AND, it should be assessed according to the
context.
Larson 68 – Justice of the Supreme Court of Iowa
Opinion by J. Larson, Unanimous, Smith v. Ft. Dodge, 160 N.W.2d 492, 1968

Section 373.19 HN6 provides in part: "Before adopting * * * any substantial amendment * * * the
commission shall hold at least one public hearing thereon, notice of the time of which shall [**11] be given
by one publication in a newspaper of general circulation in the municipality * * *. The adoption of the * * *
amendment * * * [*497] shall be by resolution of the commission carried by the affirmative vote of not less
than two-thirds of the members of the commission." (Emphasis added.)
Chapter 414 provides for municipal zoning and section 414.6 provides: HN7 "In order to avail itself of the
powers conferred by this chapter, the council shall appoint a commission, to be known as the zoning
commission, to recommend the boundaries of the various original districts, and appropriate regulations
and restrictions to be enforced therein. * * * Such commission shall, with due diligence, prepare a
preliminary report and hold public hearings thereon before submitting its final report; and such council
shall not hold its public hearings or take action until it has received the final report of such commission.
After the adoption of such regulations, restrictions, and boundaries of districts, the zoning commission
may, from time to time, recommend to the council amendments, supplements, changes, or modifications."
(Emphasis added.) It will [**12] be noted this section does not specifically require public hearings for
those latter modifications, and thus we are faced with the question of whether a minor change such as we
have here requires notice or hearings before the commission's recommendation can be considered by the
council.
Admittedly, there was no notice given or public hearing held on this proposed change by the zoning
commission, and the vote of the members present, although unanimous, would not amount to two-thirds
of the commission membership.
As indicated, we are satisfied HN8 the requirements of sections 373.19 and 414.6 are restricted to the
original comprehensive zoning ordinance and to " substantial " amendments, which means general
modification of the zoning districts or regulations in that law, not isolated, minor, or individual changes
such as appear herein.
The trial court correctly concluded these requirements related only to major changes in the
comprehensive plan and that Ordinance No. 1252 did not amount to such a change .
HN9 In reading a statute we are required to give words of common usage their commonly-
understood meaning unless it is clear from a reading of the statute that a different meaning was
intended, [**13] or unless such construction would defeat the manifest intent of the legislature. Re
Highland Perpetual Maintenance Soc., 254 Iowa 164, 172, 117 N.W.2d 57, 61, and many citations;
Consolidated Freightways Corp. of Delaware v. Nicholas, 258 Iowa 115, 120, 137 N.W.2d 900, 904;
Becker v. Board of Education of Benton County, 258 Iowa 277, 285, 138 N.W.2d 909, 913; Sioux
Associates, Inc. v. Iowa Liquor Control Comm., 257 Iowa 308, 311, 132 N.W.2d 421, 424.
Similarly, in construing a statute, the meaning of doubtful words may be ascertained by reference to the
meanings of words associated with them under the rule of "noscitur a sociis" unless such interpretation
would defeat the manifest intent of the legislature. Geer v. Birmingham, D.C., 88 F. Supp. 189, reversed,
8th Cir., 185 F.2d 82, certiorari denied 71 S. Ct. 571, 340 U.S. 951, 95 L. Ed. 686; State v. Bauer, 236
Iowa 1020, 1022, 20 N.W.2d 431, 432, and citations.
Apparently this is the first time we have had before us a question as to the meaning of section 373.19.
Specifically, we seek the interpretation of the words "substantial amendment" in that section. A careful
review of our case law reveals that we have never had occasion [**14] to define "substantial ", but have
attempted to define " substantially ." See Hardin County v. Wells, 108 Iowa 174, 176, 78 N.W. 908, 909.
Webster defines "substantial " as follows: "3. That is of moment; essential; material * * *. 6. That is such
in substance or in the main * * *. 10. Of or pertaining to the substance or main part of anything." [*498]
Webster's New International Dictionary, Second Edition (1957).
It has also been said the word "substantial" is a relative and not exact term subject to a rule of thumb. It
is susceptible of different meanings according to the circumstances of its use. In considering the
word, it must be examined in its relation and context , and its meaning gauged by all the surrounding
circumstances. Busch v. Service Plastics, Inc., D.C., 261 F. Supp. 136, 142; State v. Pahl, 254 Minn. 349,
95 N.W.2d 85, 89. See also 83 C.J.S. Substantial, p. 762; 40 Words and Phrases, p. 493.
HN10 The circumstances herein that must be considered, among others, are the size of the tract to be
rezoned, the new use for which the property is rezoned, and the effect upon the community as a whole.
We have carefully examined these and other relevant circumstances revealed in [**15] this brief record.
We believe the showing that this amendment rezoning approximately two city blocks by one block, or
some 4.9 acres in a city of 15 square miles , from R-1 single family residence to R-3 multi-family
residence classification, although objected to by a number of citizens , alone is insufficient to
establish it as a " substantial amendment" to the comprehensive plan as contemplated by the legislature,
and thus the requirements of section 373.19 are not applicable.

Substantial means ‘in the main’

Cottrell 6 – Director of Richards, Layton & Finger LLP
Frederick L. Cottrell, III et al., Head of Richards Layton's Intellectual Property Group, Crown Packaging
Tech. v. Rexam Bev. Can Co., 2006 U.S. Dist. Ct. Briefs LEXIS 2567, 2006

Rexam construes this term to mean, at or almost absolute radial alignment with said radial inward
support. (A 11.) Rexam has already discussed its proposed claim construction for "radial inward support"
and this limitation of claim 17 further supports that proposed construction. Rexam considers the word
"substantial" to be the only term remaining to be construed in this limitation. [*64] Rexam's proposed
construction applies the plain and customary meaning of the term " substantial ."
Since the term "substantial" does not have a specialized definition in the can industry, Rexam's
construction uses the general meaning of the term "substantial" This term will be examined at the time
of filing of the '385 Patent, 1991. Webster's Third New International Dictionary defines substantial as:
4 a: being that specified to a large degree or in the main b: of or relating to the main part of
something

And, that means that ‘substantial’ must be judged in the context of the entire
work. Even if somewhat subjective, must still draw lines, and it’s workable.
Deciding NOT to vote on T-subs is every bit as interventionist as doing so!
Gagliardi 76 – US District Judge
Opinion by Gagliardi, District Judge, Meeropol v. Nizer, 417 F. Supp. 1201, 1976

In this case, in accordance with the test of fair use set forth above, the scope of the use of copyrighted
material by the defendants is relatively limited, and the purpose of the use of the letters does not appear
to be to capitalize on the unique intellectual product of the authors. Here, whatever their literary quality,
the letters are clearly used by the defendants to describe the feelings and thoughts of two of the major
participants in the Rosenberg trial. Unlike the material used in Folsom v. Marsh, it cannot be said that
defendants' work derives a significant part of its value from the use of the copyrighted letters. Defendants'
work deals largely [**39] with the trial and legal proceedings following the trial prior to the Rosenbergs'
execution. While the impact of the trial and conviction on the relationship between Julius and Ethel
Rosenberg is undoubtedly a minor theme in the book, the limited use of the letters in the latter sections is
not, in this court's view, quantitatively or qualitatively substantial in the context of the entire
work . Nor is the copied material qualitatively or quantitatively substantial in the context of the copyrighted
work. Undoubtedly , the qualitative impact of copyrighted passages is a matter that to some extent
turns on individual subjective judgment . Nevertheless , the undisputed facts in the record in this case
are so overwhelming that this court finds that a reasonable jury could not reach the conclusion
that the copying here is not entitled to fair use protection.

It’s not enough to show that there are other definitions of ‘substantial’—There are
tons, but to avoid it becoming meaningless, it must be read to require a large
change in contrast to a small one. The way to do that without mixing burdens is
to focus on it being a massive change to the main part of the thing.
Jakubowitz 4 – JD-St John’s
David Jakubowitz, JD, St. John's University School of Law, NOTE:"HELP, I'VE FALLEN AND CAN'T GET
UP!" NEW YORK'S APPLICATION OF THE SUBSTANTIAL FACTOR TEST, 18 St. John's J.L. Comm.
593, Lexis, 2004

What Does "Substantial Factor" Mean?

Ask yourself, is 25 a substantial part of 100 ? Now ask yourself what number should be considered a
substantial part of 100? These questions are important because juries are consistently asked to
determine if a defendant's negligent conduct rises to the [*615] level of being "substantial ." 115Link
to the text of the note This amounts to asking juries to define "substantiality ." 116Link to the text of
the note
A. Defining the Word "Substantial"
At least one jury actually regretted not sending for a dictionary after their misunderstanding of the word
substantial resulted in a plaintiff who was unjustly prohibited from collecting damages . 117Link to the
text of the note In Moisakis v. Allied Building Products Corp., 118Link to the text of the note the plaintiffs
sought to recover damages for personal injuries. 119Link to the text of the note After the verdict
dismissing the complaint was announced, and the jurors were discharged, the plaintiffs' attorney and the
jurors conversed. 120Link to the text of the note The jurors claimed they were confused by the term
"substantial factor." 121Link to the text of the note The plaintiff's attorney brought the matter before the
judge. 122Link to the text of the note After a hearing, the judge, in a very unorthodox procedure, required
all of the jurors to return the following week for questioning. 123Link to the text of the note
The Court asked the jurors if they were confused about anything and one juror responded, ""substantial'
threw us off a bit. We thought the question was substantially, meaning 100 [*616] percent, but it wasn't
that way." 124Link to the text of the note The Court then asked all the jurors if they felt the same way. The
jurors responded with a resounding "yes," and added that "the word "substantial' threw us off." 125Link to
the text of the note Juror Number Four ended the questioning session by stating, "the word "substantial'
threw us off. We were fighting about the meaning of "substantial.' We should have sent for a dictionary."
126Link to the text of the note
However, even if the jury had sent for a dictionary it probably would not have clarified the meaning
of "substantial" within the jury instruction. After all, dictionaries give varying definitions of the word
"substantial." 127Link to the text of the note If the jury had sent for a dictionary this is what they would
have seen:
Substantial adj 1 a : consisting of, relating to, sharing the nature of, or constituting substance : existing
as or in substance : MATERIAL b : not seeming or imaginary : not illusive : REAL, TRUE c : being of
moment : IMPORTANT , ESSENTIAL 2 a : adequately or generously nourishing : ABUNDANT,
PLENTIFUL b: possessed of goods or an estate : moderately wealthy : WELL-TO-DO; often : having a
good and well maintained income producing property c : considerable in amount , value, or worth 3 a :
having good substance : firmly or stoutly constructed : STURDY, SOLID, FIRM b : having a solid or firm
foundation : soundly based : carrying weight 4 a : being that specified to a large degree or in the main b :
of or relating to the main part of something SYN see MASSIVE 128Link to the text of the note
Hence, the " substantial factor" test could be any one of the following : the " not-imaginary /real factor"
test, the " important factor" test, the " generous factor" test, the " solid factor" test, or the "massive
factor" test . 129
[FN 127]
See Webster's Third New International Dictionary 2280 (1993) (representing one of the definitions of the
"substantial" to be "not seeming or imaginary"); Cambridge Advanced Learner's Dictionary (2003),
http://dictionary.cambridge.org.proxy.library.georgetown.edu/define.asp?key=79480&dict=CALD
(indicating one of the meanings of "substantial " to be "relating to main or most important things to be
considered"); Dictionary.com at http://dictionary.reference.com/search?q=substantial (stating meaning of
"substantial" to include "true or real; not imaginary").
[End FN]
[FN 129]
See id.; see also Greenleaf v. Garlock, Inc., 174 F.3d 352, 361 (3d Cir. 1999) (repeating the district
court's jury instruction that "A substantial factor is a real actual factor even though the result may be
unusual, unforeseen, unforeseeable or unexpected but it is not an imaginary or fanciful factor having no
connection or only an insignificant connection with the injury"); McDowell v. Davis, 448 P.2d 869, 871
(Ariz. 1968) (stating that "Webster's Third International Dictionary Unabridged, notes a number of
varying meanings for the word "substantial' - among these it is defined as "not imaginary , not
illusive." Were we certain that it would be understood in this sense , or in the sense of "insignificant", a
litigant would have little cause to complain . However , Webster also defines "substantial" as
"abundant, plentiful and considerable in amount ", at 2280. Commonly, we speak in terms of a
substantial amount as in a substantial meal or a substantial income. If this meaning is attributed to
the word, the instruction is palpably erroneous as inducing the concept of largeness as opposed to
smallness "). See generally Battenfeld v. Gregory 247 N.J Super. 538, 547 (1991) (stating " substantial
factor" cannot be quantified in percentage terms ).
[End FN]
 Must Be Contextual
Definitions need to be contextual – reduces ambiguity
Devinksy 2 – Partner, McDermott Will & Emery LLP
Paul, Paul Devinsky is a partner in the law firm of McDermott Will & Emery LLP and is based in the Firm’s
Washington, D.C., office, “Is Claim ‘Substantially’ Definite? Ask Person of Skill in Art,” McDermontt News
Letters Vol. 5, No.11 Novermber 2002
http://www.mwe.com/index.cfm/fuseaction/publications.nldetail/object_id/c2c73bdb-9b1a-42bf-a2b7-
075812dc0e2d.cfm

In reversing a summary judgment of invalidity, the U.S. Court of Appeals for the Federal Circuit found
that the district court, by failing to look beyond the intrinsic claim construction evidence to consider
what a person of skill in the art would understand in a "technologic context," erroneously concluded
the term "substantially" made a claim fatally indefinite. Verve, LLC v. Crane Cams, Inc., Case No.
01-1417 (Fed. Cir. November 14, 2002). The patent in suit related to an improved push rod for an
internal combustion engine. The patent claims a hollow push rod whose overall diameter is larger at
the middle than at the ends and has "substantially constant wall thickness" throughout the rod and
rounded seats at the tips. The district court found that the expression "substantially constant wall
thickness" was not supported in the specification and prosecution history by a sufficiently clear
definition of "substantially" and was, therefore, indefinite. The district court recognized that the use
of the term "substantially" may be definite in some cases but ruled that in this case it was indefinite
because it was not further defined. The Federal Circuit reversed, concluding that the district court
erred in requiring that the meaning of the term "substantially" in a particular "technologic context" be
found solely in intrinsic evidence: "While reference to intrinsic evidence is primary in interpreting
claims, the criterion is the meaning of words as they would be understood by persons in the field of
the invention." Thus, the Federal Circuit instructed that "resolution of any ambiguity arising from the
claims and specification may be aided by extrinsic evidence of usage and meaning of a term in the
context of the invention." The Federal Circuit remanded the case to the district court with instruction
that "[t]he question is not whether the word 'substantially' has a fixed meaning as applied to 'constant
wall thickness,' but how the phrase would be understood by persons experienced in this field of
mechanics, upon reading the patent documents."
 “Effect” Bad
Having a “big effect” doesn’t determine T, that’s a solvency question – T comes
first
US Court of Appeals 1
Judge Edward J. Damich, UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT,
September 19, 2001, EXXON RESEARCH AND ENGINEERING COMPANY, Plaintiff-Appellant, v.
UNITED STATES, Defendant-Appellee, 265 F.3d 1371; 2001 U.S. App. LEXIS 20590; 60 U.S.P.Q.2D
(BNA) 1272, Lexis

A decision holding a patent invalid for indefiniteness [**10] presents a question of law, which we
review de novo. See Atmel Corp. v. Info. Storage Devices, Inc., 198 F.3d 1374, 1378, 53 U.S.P.Q.2D
(BNA) 1225, 1227 (Fed. Cir. 2000). Despite a multitude of recent authorities stating that indefiniteness is
a question of law, see, e.g., S3 Inc. v. n VIDIA Corp., 259 F.3d 1364, slip. op. at 4 (Fed. Cir. 2001); Union
Pac. Res. Co. v. Chesapeake Energy Corp., 236 F.3d 684, 692, 57 U.S.P.Q.2D (BNA) 1293, 1297 (Fed.
Cir. 2001); [***1277] Process Control Corp. v. Hydreclaim Corp., 190 F.3d 1350, 1358 n.2, 52
U.S.P.Q.2D (BNA) 1029, 1034 n.2 (Fed. Cir. 1999); Solomon v. Kimberly-Clark Corp., 216 F.3d 1372,
1377, 55 U.S.P.Q.2D (BNA) 1279, 1281 (Fed. Cir. 2000); and Personalized Media Communications,
L.L.C. v. Int'l Trade Comm'n, 161 F.3d 696, 702, 48 U.S.P.Q.2D (BNA) 1880, 1886 (Fed. Cir. 1998),
Exxon contends that indefiniteness depends on underlying questions of fact. It argues that in this case
there is a genuine issue of material fact as to whether the claims of the two patents at issue, read in
light of their specifications, reasonably apprise those skilled in the art of the scope of the invention.
For that [**11] reason, Exxon asks us to reverse the summary judgment so that the Court of Federal
Claims, sitting as a fact-finder at trial, can decide the purported factual issues and reconsider its
prior invalidity determination.
We adhere to the principle that determination of claim indefiniteness is a legal conclusion that is drawn
from the court's performance of its duty as the construer of patent claims." Personalized Media
Communications, 161 F.3d at 705, 48 U.S.P.Q.2D (BNA) at 1888; see also Cybor Corp. v. FAS Techs.,
Inc., 138 F.3d 1448, 1454-55, 46 U.S.P.Q.2D (BNA) 1169, 1172-73 (Fed. Cir. 1998) (en banc). In Cybor,
we reaffirmed that .although a court may consider or reject certain extrinsic evidence in resolving disputes
en route to pronouncing the meaning of claim language , "the court is not crediting certain evidence
over other evidence or making factual evidentiary findings . Rather, the court is looking to the extrinsic
evidence to assist in its construction of the written document . . . ." Cybor, 138 F.3d at 1454, 46
U.S.P.Q.2D (BNA) at 1173 (quoting Markman v. Westview Instruments, Inc., 52 F.3d 967, 981, 34
U.S.P.Q.2D (BNA) 1321, 1331 (Fed. Cir. 1995) [**12] (en banc)). We therefore reject Exxon's
argument that the issue of indefiniteness turns on an underlying factual dispute that should not
have been resolved as a matter of law on summary judgment.

How are you supposed to quantify that anyway? Ambiguity means err Aff.
US Court of Appeals 1
Judge Edward J. Damich, UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT,
September 19, 2001, EXXON RESEARCH AND ENGINEERING COMPANY, Plaintiff-Appellant, v.
UNITED STATES, Defendant-Appellee, 265 F.3d 1371; 2001 U.S. App. LEXIS 20590; 60 U.S.P.Q.2D
(BNA) 1272, Lexis

The term "to increase substantially" in claim 1 of the '705 patent refers to the claimed increase achieved
by the invention in the relative productivity of the catalyst used in the Fischer-Tropsch process. The
specification defines "substantially increased" catalyst activity or productivity as an increase of at least
about 30%, more preferably an increase of about 50%, and still more preferably an increase of about
75%. '705 patent, col. 1, ll. 59-63. Based on that language from the specification, the trial court found, and
the parties agree, that the term "to increase substantially" requires an increase of at least about 30% in
the relative productivity of the catalyst. Notwithstanding that numerical boundary , the trial court found
the phrase "to increase substantially" to be indefinite because the court concluded that there were two
possible ways to calculate the increase in productivity, the subtraction method and the division method,
and the patent did not make clear which of those ways was used in the claim.
An example from the specification will illustrate the difference [**14] between the two methods of
calculating the increase in catalyst productivity. The specification gives two examples showing the relative
productivity "before" and "after" super-activation according to the method of the invention. In the
experiment reported in Example 1, the "before" productivity was 60 and the "after" productivity was 100.
In the experiment reported in Example 2, the "before" productivity was 25 [***1278] and the "after"
productivity was 100. The court found that the increase in relative productivity could be calculated either
by the subtraction method or the division method. That is, in Example 2 there would be either a 75%
increase (100 minus 25) or a 300% increase ([100 minus 25] divided by 25). The difference in the
numerical outcome produced by the two results is relevant because in certain circumstances
calculating relative productivity by the first method could produce an increase of less than 30% in
relative productivity, but using the second method could produce an increase of more than 30% .
In such a case, the trial court explained, a person of skill in the art would not be able to determine
whether the claims of the '705 patent were infringed. That ambiguity, according [**15] to the court,
rendered the claims indefinite.
Criminal Justice Reform
 Criminal Justice
Textbook definition of criminal justice is the system/series of steps involved in
law enforcement, adjudication, and correction of those charged w/ criminal
offense
Siegel 9 – Professor Emeritus of Criminology & Justice Studies
Larry Siegel, Ph.D., Essentials of Criminal Justice, Cengage Learning, accessed via Google Books, 2009,
pp. 4-5

Criminal justice may be viewed or defined as the system of law enforcement, adjudication, and
correction that is directly involved in the apprehension, prosecution, and control of those charged
with criminal offenses. This loosely organized collection of agencies is responsible for, among other
matters, protecting the public, maintaining order, enforcing the law, identifying transgressors, bringing the
guilty to justice, and treating criminal behavior. The public depends on this vast system not only to protect
them from evil-doers and to bring justice to their lives but to maintain order and protect the fabric of
society.
This textbook serves as an introduction to the study of criminal justice . This area of research and
scholarship typically includes describing, analyzing, and explaining the behavior of those agencies,
authorized by law and statute, to dispense justice— police departments , courts , and correctional
agencies —and is designed to help these institutions identify effective and efficient methods of crime
control.
This chapter introduces some basic issues, beginning with a discussion of the history of crime in America
and the development of criminal justice. The major organizations and criminal justice processes of the
criminal justice system are then introduced so that you can develop an overview of how the system
functions. Because there is no single view of the underlying goals that help shape criminal justice, the
varying perspectives on what criminal justice really is or should be are set out in some detail.
[Insert from the page margin]
criminal justice process: The decision making points, from the initial investigation or arrest by
police to the eventual release of the offender and his or her reentry into society ; the various
sequential criminal justice stages through which the offender passes.
[End of insert]
 --CJS
That defines the criminal justice system
Wilson 10 – Manager of Workforce Development & Training in the NASW Center for Workforce
Studies, MBA, LCSW-C
Melvin Wilson, MBA, LCSW-C, Manager of Workforce Development & Training in the NASW Center for
Workforce Studies, James J. Kelly, PhD, ACSW, NASW President, and Elizabeth J. Clark, PhD, ACSW,
MPH, NASW Executive Director, Criminal Justice Social Work in the United States: Adapting to New
Challenges, National Association of Social Workers, Center for Workforce Studies,
https://www.socialworkers.org/LinkClick.aspx?fileticket=n8L3HaALWb8%3D&portalid=0

Criminal justice social workers serve as frontline staff and administrators in criminal justice settings. The
criminal justice system encompasses a broad spectrum of public and private agencies, and settings
including (but not limited to):
• State and federal correctional facilities;
• City and county jails;
• Federal, state, and city parole and probation agencies;
• Federal, state, and local court systems (including drug courts and mental health courts);
• Community-based nonprofit agencies serving ex-offenders or reentrants;
• Faith-based agencies; and
• Primary health and behavioral health care providers serving low-income people, including ex-offenders.
Many professional disciplines and paraprofessionals make up the criminal justice workforce, including:
• Public safety personnel such as policemen and parole or probation officers;
• Court (judicial) personnel, including judges, public defenders, prosecutors, and defense lawyers; and
• Bio-psychosocial providers such as medical professionals, mental health professionals, and social
workers.
There are many thousands of social workers working in criminal justice settings, working with criminal justice populations, or both. It is likely that most criminal justice social workers also practice in the areas of behavioral health and case management. Much of the contextual framework of the following analysis draws heavily from the criminal justice social work model that has existed in Scotland for over 20 years. The Scottish criminal justice social work system is a valuable information resource due to its extensive history,
stringent research and evaluation efforts, and its highly structured policies and procedures that are integrated into the larger Scottish criminal justice system. This paper will explore the capacity of the social work profession to influence policies, program planning, and service delivery in the U.S. criminal justice system. The underlying premise of this discussion is that although social workers are significantly represented in the criminal (and juvenile) justice workforce, the profession has had limited impact on shaping criminal
justice policies and assuming leadership roles in coordinating psychosocial service delivery throughout the nation’s criminal justice system. Clearly, the social work profession has the requisite history and experience in providing services to the criminal and juvenile justice populations to effect meaningful change in the criminal justice system. Schools of social work across the nation provide practical and academic training that prepares their graduates to address the complex psychosocial needs of individuals in the criminal
justice system. As is true with other professions, social work is being asked to adapt to the evolving changes in the country’s philosophy on the best ways to balance the sometimes conflicted dichotomy between the need for public safety and the need to address the bio-psychosocial needs of offenders. The ethical challenge to social workers is to weigh the needs of the justice system against those of the offender. The social worker should take on the challenge by participating in legislative action to mold social policy to create a
balance between the justice system and the offender. Thus, the social worker can help the justice system provide more effective services to the offender, their families, and their communities as professionals by participating in the process of public policy development (Roberts & Springer, 2007, p. 46). Two competing, dichotomous schools of thought drive the discussion related to crime prevention. One, the pro-punishment school of thought postulates that punishment is the means to preventing crime (Roberts & Springer,
2007); whereas the positivist (pro-treatment) philosophy suggests that some instances of criminal behavior is determined by factors, such as mental illness, that offenders find difficult to control. Therefore, treatment becomes a means of preventing future criminal behaviors. Social work has historically been strongly associated with the positivist school of thought of crime prevention. Roberts and Springer (2007) posit that to be effective in the current criminal justice environment, social work must begin to move away from such a
one dimensional view of offenders, particularly in light of significant changes in sentencing guidelines. During the late 1980s, judges in both state and federal judicial systems were required to follow sentencing guidelines. These guidelines significantly limited judges’ discretion to consider psychosocial factors during the sentencing phase of the trial: In other words, instead of the sentence being decided by the judge, the prosecutor has now been given the authority to implicitly incorporate sentencing into the charges. The
importance of meaningful psychosocial information from the probation officer’s presentencing report under fixed sentencing is reduced (Roberts & Springer, 2007, p. 46). These changes in the judicial policy for sentencing forced the social work profession to examine new realities and develop a more multidimensional approach to its role as a major part of the criminal justice system. Roberts and Springer (2007) suggested that the profession should: • Recognize its professional obligation both to the offender and to the
community (from a public safety perspective); and • Participate in the process of developing crime reduction policies that reflect social work’s commitment to both the offender and the community (Roberts & Springer, 2007). Important steps towards broadening social work’s role in developing policies and plans for service delivery within the criminal justice system could include: • Making the case that social work, as a profession, is well qualified and historically prepared to take a leadership role in coordinating services in an
integrated service delivery system; and • Advocating for national standards for bio-psychosocial service delivery.

DEFINING THE AMERICAN CRIMINAL JUSTICE SYSTEM

According to the American Heritage Dictionary , the criminal justice system is defined as “the
system of law enforcement , the bar , the judiciary , corrections , and probation that is directly
involved in the apprehension , prosecution , defense , sentencing , incarceration , and supervision
of those suspected of or charged with criminal offenses . Operationally , the U.S. criminal justice
system consists of three main parts : (1) law enforcement ; (2) adjudication (courts); and (3)
corrections .
 --formal govt institutions
It’s that specific set of formal govt institutions
Friedmann 15 – Professor Emeritus of Criminal Justice at GSU & Founding Director of Georgia
Internat’l Law Enforcement Exchange
Robert R. Friedmann, Professor Emeritus of Criminal Justice at Georgia State University's Andrew Young
School of Policy Studies and Founding Director at Georgia International Law Enforcement Exchange,
Criminal Justice System, 28 December 2015, https://doi.org/10.1002/9781118519639.wbecpx153

The phrase “criminal justice system ” (CJS) describes the formal governmental institutions that
aim to regulate human behavior and human morality in order to achieve social control through criminal
legislation , law enforcement , courts , corrections , pardons and parole , and rehabilitation and
treatment programs – as well as by understanding, predicting and managing the occurrence of crime .
The CJS is examined here from a system perspective, and a historical review of its components is
offered.
 --Includes private actors
The criminal justice system can include private responses to crime
Simmons 7 (Ric Simmons, Associate Professor of Law, Moritz College of Law, The Ohio State
University. “PRIVATE CRIMINAL JUSTICE,” 42 Wake Forest L. Rev. 911, 2007)
On one level, the definitional argument is impossible to refute. If one defines criminal justice as (in part) a
process in which the state is a party, then there is by definition no way to have a private criminal justice
adjudication. But this is a rather limited (and as we have seen, historically inaccurate ) definition of
criminal justice. A more appropriate definition might be that a criminal justice system is one that
responds to, processes, and resolves [*969] criminal activity - and such a system may or may not
involve the state . If we assumed that criminal justice must by definition involve the state, we would have
to redefine the actions of hundreds of thousands of private law enforcement officers and detectives who
apprehend criminals every day - not to mention redefine the actions of the criminals themselves. If an
individual appropriates a shirt from a department store and is apprehended, the activity is criminal
regardless of whether he was apprehended by a public employee or a private employee. Similarly, if a
person hits another person in the face while waiting in line at Disneyland and is arrested by a park
security guard, the act of violence was still a criminal action. Any of the individuals involved - the victim,
the guard, or (theoretically) the defendant - could report the incident to the public police or the local
prosecutor and the state would become involved. But if all three parties agree to adjudicate and resolve
the dispute in some alternative way, the private adjudication and resolution could end the matter
altogether. Whether we call that process a private criminal adjudication or a civil adjudication that avoids
public criminal charges from being filed is really only a matter of terminology. Either way, a crime was
committed and the matter was resolved to every party's satisfaction.

The criminal justice system includes private actors

Dabbaghian et al. 13 (Chapter by V. Dabbaghian, P. Jula, P. Borwein, E. Fowler, C. Giles, N.
Richardson, A.R. Rutherford and A. van der Waall. “Theories and Simulations of Complex Social
Systems,” “Chapter 6 High-Level Simulation Model of a Criminal Justice System,” Intelligent Systems
Reference Library, First online 2013)
Criminal Justice System
A criminal justice system (CJS) is a set of legal and social institutions for enforcing the criminal law in
accordance with a defined set of procedural rules and limitations. CJSs include several major sub-
systems, composed of one or more public institutions and their staffs: police and other law enforcement
agencies; trial and appellate courts; probation and parole agencies; custodial institutions (jails, prisons,
reformatories, halfway houses, etc.); and departments of corrections (responsible for some or all
probation, parole, and custodial functions). Some jurisdictions also have a sentencing guidelines
commission. Other important public and private actors in this system include: defendants; private
defense attorneys; bail bondsmen; other private agencies providing assistance, supervision, or treatment
of offenders; and victims and groups or officials representing or assisting them (e.g., crime victim
compensation boards). In addition, there are numerous administrative agencies whose work include
criminal law enforcement (e.g., driver and vehicle licensing bureaus; agencies dealing with natural
resources and taxation).
 --Excludes private actors
Only the state can enforce laws
e Silva 18 (K. K. e Silva, PhD, expert in cyber crime. “Vigilantism and cooperative criminal justice: is
there a place for cybersecurity vigilantes in cybercrime fighting?,” International Review of Law, Computers
& Technology, 2018)
From a legal standpoint, cybersecurity vigilantism poses a series of questions regarding legitimacy and
legality of bottom-down contributions to criminal justice. A tenet of the criminal justice system is the State
monopoly of the use of violence. By this tenet, only the State, in the form of its institutions and official
bodies , is permitted to lawfully deploy force – to the extent that is justifiable for the purpose of
ensuring respect for the rule of law . Exceptionally, individuals will not be punished for using force if
this classifies as a measure of public or private defense. For instance, individuals are authorized to
counteract with reasonable force if such use of force is necessary, proportional, and welltimed for
stopping or preventing a crime against themselves (self-defense) or another (defense of other). Aside
from these narrow circumstances, the use of force by individuals is punishable and the actors who
engage in such use are criminally liable for any criminal offences ensuing from it.

The criminal justice system is solely the state

Brown 93 (Jennifer Gerarda Brown, Assistant Professor of Law, Emory University. “Blackmail as
Private Justice,” University of Pennsylvania Law Review, Vol. 141, No. 5, 1993)
To say that a public authority enforces the criminal law is to state a near tautology. Many define criminal
prohibitions not just by the severity of their associated penalty, but also by the state's exclusive
entitlement to enforce them.93 The criminal action belongs not to the victim, but to the state. Such
truisms about the nature of criminal law seem to lead inexorably to the conclusion that it should be
enforced publicly rather than privately.
 --Includes juvenile justice system
Criminal justice system includes juveniles
2007 ORS 137 (2007 ORS 137.651, Definition 2. “Definitions,” Oregon Revised Statues, No Date,
https://www.oregonlaws.org/ors/2007/137.651)
"Criminal justice system" includes all activities and agencies, whether state or local, public or private,
pertaining to the prevention, prosecution and defense of offenses, the disposition of offenders under the
criminal law and the disposition or treatment of juveniles adjudicated to have committed an act
which, if committed by an adult, would be a crime . The "criminal justice system" includes police,
public prosecutors, defense counsel, courts, correction systems, mental health agencies, crime victims
and all public and private agencies providing services in connection with those elements, whether
voluntarily, contractually or by order of a court. [1985 c.558 §1; 1995 c.420 §4; 1997 c.433 §1]
 --Excludes juvenile justice system
The juvenile justice system is definitionally distinct from the criminal justice
system
Youth ND (Youth, government program with representatives from 21 federal agencies. "Juvenile
Justice," Interagency Working Group on Youth Programs, No Date,
https://youth.gov/youth-topics/juvenile-justice)
Youth under the age of 18 who are accused of committing a delinquent or criminal act are typically
processed through a juvenile justice system 1. While similar to that of the adult criminal justice system
in many ways—processes include arrest, detainment, petitions, hearings, adjudications, dispositions,
placement, probation, and reentry—the juvenile justice process operates according to the premise that
youth are fundamentally different from adults , both in terms of level of responsibility and potential for
rehabilitation. The primary goals of the juvenile justice system, in addition to maintaining public safety, are
skill development, habilitation, rehabilitation, addressing treatment needs, and successful reintegration of
youth into the community.

Though similar, the juvenile justice system is distinct from the criminal justice
system
Patterson 18 (George T. Patterson, PhD, associate professor at the City University of New York,
specializing in police social work and criminal justice. “Introduction to Evidence-Based Practices and
Principles in the Criminal Justice System,” Clinical Interventions in Criminal Justice Settings, 2018)
The Juvenile Justice System
The juvenile justice system mirrors the adult criminal justice system in terms of the four components
previously identified. Commonly referred to as the juvenile justice system, the distinguishing features of
the four components and subcomponents are based on the age of the youth, which varies according to
jurisdiction. Another distinguishing feature is the legislative component, which mandates different
processing procedures for youth and defines juvenile delinquency. The juvenile justice system is
comprised of separate sentencing guidelines, court structures, juvenile secure and non-secure detention
facilities, juvenile probation officers, and statutes that define delinquency and status offenses, which are
age-related offenses.

The juvenile justice system is not included in the criminal justice system
Sawyer 19 (Wendy Sawyer, Research Director at the Prison Policy Initiative. Master’s in Criminal
Justice from Northeastern University and a Bachelor’s in Afro-American Studies from the University of
Massachusetts. Former investigator for the Civilian Complaint Review Board in New York City and as a
research associate for Northeastern's Institute on Race and Justice. Author of multiple books. “Youth
Confinement: The Whole Pie 2019,” Prison Policy Initiative, December 19, 2019,
https://www.prisonpolicy.org/reports/youth2019.html)
The terms used in the juvenile justice system differ from those used in adult courts, but while they have
distinct meanings and describe different processes, in many cases they can be thought of in parallel to
each other. In the juvenile system, youth have “adjudicatory hearings” instead of “trials”; they are
“adjudicated” rather than “convicted,” and found “delinquent” instead of “guilty.” Youth are given
“dispositions” instead of “sentences,” and are “committed” instead of “incarcerated.” While adults and
youth in adult jails and prisons are considered either “unconvicted” (or pretrial) or “convicted,” the status
of youth in juvenile facilities is either “detained” or “committed.” This distinction is particularly important for
this report: “detained” youth are held in juvenile facilities before their juvenile or criminal court hearings, or
before decisions have been made about appropriate sanctions or placement. Committed youth have been
adjudicated (convicted) and a decision has been made to transfer legal responsibility over them to the
state for the period of their disposition (sentence).
The juvenile justice system is distinct from the criminal justice system
Sawyer 19 (Wendy Sawyer, Research Director at the Prison Policy Initiative. Master’s in Criminal
Justice from Northeastern University and a Bachelor’s in Afro-American Studies from the University of
Massachusetts. Former investigator for the Civilian Complaint Review Board in New York City and as a
research associate for Northeastern's Institute on Race and Justice. Author of multiple books. “Youth
Confinement: The Whole Pie 2019,” Prison Policy Initiative, December 19, 2019,
https://www.prisonpolicy.org/reports/youth2019.html)
In an effort to capture the full scope of youth confinement, this report aggregates data on youth held in
both juvenile and adult facilities. Unfortunately, the juvenile and adult justice system data are not
completely compatible, both in terms of vocabulary and the measures made available.
Because we anticipate this report will serve as an introduction to juvenile justice issues for many already
familiar with the adult criminal justice system, we have attempted to bridge the language gap between
these two systems wherever possible, by providing criminal justice system “translations.” It should be
noted, however, that the differences between juvenile and criminal justice system terminology reflect real
(if subtle) philosophical and procedural differences between the two parallel systems.
 --Includes Mil & Natives
CJS includes Native American reservations and military prisons
Eisen 20 – Director of the Brennan Center’s Justice Program
Lauren-Brooke Eisen, director of the Brennan Center’s Justice Program where she leads the
organization’s work to end mass incarceration, former senior program associate at the Vera Institute of
Justice, where she worked on the sentencing and corrections team to implement policies in multiple
states, former assistant district attorney in New York City, where she worked in the Appeals Bureau, the
Criminal Court Bureau, and the Sex Crimes Special Victims Bureau, Criminal Justice Reform at the State
Level, 2020, https://www.brennancenter.org/our-work/research-reports/criminal-justice-reform-state-level

The criminal justice system encompasses more than 1,700 state prisons, 100 federal prisons, 1,700
juvenile correctional facilities, 3,100 local jails, and 80 jails on Native American reservations , as well
as other facilities like military prisons .
 --Distinct from DOD prosecution of military
Excludes military justice, which is DOD prosecuting members of the US military
for violations of the UCMJ; it’s a separate system from the CJS
Jenks 15 – Assistant Professor and Criminal Justice Clinic Director, SMU Dedman School of Law
Chris Jenks, Southern Methodist University, Dedman School of Law, previously served as a Judge
Advocate in theU.S. Army, including as lead counsel for the Army’s firstcounter-terrorism case, a
classified, fully contested court-martial of an activated National Guard Soldier who attemptedto aid al-
Qaeda. The Department of Defense recognized thecase with the Counterintelligence/Law Enforcement
NationalSecurity Investigation of the Year Award and the Departmentof Justice Counterterrorism Section
nominated then MajorJenks for John Marshall Interagency Cooperation , Sentencing Complexities in
National Security Cases, Federal Sentencing Reporter, Vol. 27 No. 3, February 2015, pp. 151-155, DOI:
10.1525/fsr.2015.27.3.151, https://scholar.smu.edu/law_faculty/504/

To discuss the sentencing complexities in military national security cases, first defining a national
security case and then distinguishing Department of Defense ( DOD ) prose-cutions from those by the
Department of Justice ( DOJ ) is helpful. Following that, this article explains the challengesnational
security cases present, including the introductionof classified information and the difficulty in
correlatingdegrees of potential harm to national security to a level ofpunishment.
I. What is a National Security Case?
There is no agreed upon definition of a ‘‘national security case.’’ Civil liberties groups litigating U.S.
government travel watch lists, monitoring of cell phone call data, oroverseas targeted killing operations
are civil national secu-rity cases. So too are certain criminal cases brought by the DOJ in U.S. District
Courts and the DOD in military pro-secutions or courts-martial . Some of the federal and mili-tary
prosecutions are considered national security cases by the charges , the federal law , or Uniform Code
of MilitaryJustice ( UCMJ) article allegedly violated. Other federal and military cases are considered
national security cases not by the charges but by the overall context of the prosecution . This article
employs a useful but admittedly not dispositive indicator of a national security case —whether the
pro-ceeding involves classified information .
The DOJ is involved in the vast majority of national security cases, prosecuting criminal cases and
defending the U.S. government in civil cases. The role of the DOD is triggered when the individuals who
allegedly committed the offense(s) are subject to the UCMJ . 1Although service-members are not the only
category of individuals subject tothe UCMJ,2in practice U.S. military justice is essentially limited to the
DOD prosecuting members of the U.S. military.
 Ext-Enforcement, Adjudication, Corrections
The criminal justice system refers to law enforcement, adjudication, and
corrections
US Legal ND (US Legal Dictionary. "Criminal Justice System Law and Legal Definition," US Legal, No
Date, https://definitions.uslegal.com/c/criminal-justice-system/)
Criminal justice system refers to the collective institutions through which an accused offender passes until
the accusations have been disposed of or the assessed punishment concluded. The criminal justice
system consists of three main parts : (1) law enforcement (police, sheriffs, marshals); (2) adjudication
(courts which include judges, prosecutors, defense lawyers); and (3) corrections (prison officials,
probation officers, and parole officers). In a criminal justice system, these distinct agencies operate
together under the rule of law and are the principal means of maintaining the rule of law within society.

Criminal justice is enforcement, courts, and corrections

Random House ND (RANDOM HOUSE UNABRIDGED DICTIONARY, "Criminal Justice," No Date,
https://www.dictionary.com/browse/criminal-justice)
the system of law enforcement, involving police, lawyers, courts, and corrections, used for all stages of
criminal proceedings and punishment.

The criminal justice system means enforcement, adjudication, and corrections

CO ND (Correctional Officer, Organization dedicated to sharing accurate and in depth information
regarding the field of Corrections. "U.S. Criminal Justice System Overview," Correctional Officer,
Sponsored by Strayer University – Bachelors of Science Degree in Criminal Justice, No Date
http://www.correctionalofficer.org/us-criminal-justice-system)
INTRO TO THE AMERICAN CRIMINAL JUSTICE SYSTEM
Unlike in most countries, the United States criminal justice system is not represented by a single, all-
encompassing institution. Rather, it is a network of criminal justice systems at the federal, state, and
special jurisdictional levels like military courts and territorial courts. Criminal laws at these levels vary,
although these are all based on the US Constitution.
The federal criminal justice system handles cases that are national in scope: treason, espionage,
assassination of top-level government officials, among others. Meanwhile, state criminal justice systems
handle crimes that have taken place or, in certain situations, have evident involvement in the state. The
same process goes for the criminal justice systems within special jurisdictions.
Components of the Criminal Justice System
As with any mechanism, the criminal justice system involves the coordinated functioning of its distinct
parts. The ideal result is making offenders pay for, and repent, their criminal acts while delivering
recompense to the victims. The three components of the criminal justice system are:
Law Enforcement
The wheels of law enforcement start grinding when a crime is detected. Detection takes place when the
concerned law enforcement body (police force or specialized agency) receive a report from the victim or a
witness, or catch the crime perpetrator. Thereafter, the law enforcers verify the information furnished and
proceed with the investigation.
Law enforcement duties include: arresting suspected offenders, gathering and preserving evidence,
establishing the motive, and completing police/arrest reports by stating results of the investigation.
Responsibilities include: upholding the rights of offenders, victims, and witnesses; and conducting police
procedures within rules prescribed by law.
At the federal level, there is a law enforcement body designated to cover particular areas of criminal law.
One example would be the US Department of Homeland Security, which addresses the problem on
human trafficking. Another would be the US Department of Justice (DOJ), which is made up of agencies
like the FBI that has police powers over crimes of significant nationwide impact like terrorist acts.
Meanwhile, state and other local-government police organizations vary in structure, as well as in names.
However, the mission is the same as the others': to enforce laws, maintain peace and order in the
communities they serve, and provide their constituencies safety and security.
Adjudication
The adjudication of a criminal case involves court processes. In plain terms, adjudication refers to the
legal process by which a judgment is pronounced by the court to the parties in a case. As with the law
enforcement component of the criminal justice system, the courts are organized at federal, state, and
special-jurisdiction levels.
Pretrial services- The adjudication process starts when the law enforcement body has submitted the
police/arrest report to the prosecutor. The prosecutor, in turn, determines whether or not the incident will
prosper into a criminal case, in which the suspected offender will be charged with the crime. It is not
uncommon for the prosecutor to drop or dismiss charges altogether, for reasons that include: lack of
evidence and weak police investigation. It is the prosecutor that takes the side of the victim and,
accordingly, the state (society or community), which the crime has also affected.
Arraignment- If the prosecutor decides to press charges against a suspected offender, the adjudication
process advances to arraignment. During arraignment, the suspect is read the charge/s filed against him
or her. With the aid of a legal counsel, the suspect (now a defendant) enters a plea of either guilty or not
guilty.
Trial- The arraignment progresses into trial to determine the guilt of the suspect (if the not-guilty plea was
not entered). In the event of a guilty verdict, the offender is convicted and the court will determine the
sentence.
A trial is characterized by an argument that has two sides: the prosecution and the defense. On the one
hand, the prosecution represents the interests of the victim and , in effect, the society (or state) that the
offender is suspected to have violated. On the other, the defense asserts the innocence of the offender
and labors to get the offender acquitted.
A trial often results in an appeal, in which the disadvantaged side (prosecution or defense) will try to shift
the advantage. In this instance, the case is elevated in a higher court, which either upholds or overturns
the earlier decision.
Sentencing- A court conviction corresponds to a sentence, which is the penalty imposed on the offender
who has been found guilty as a result of the preceding trial. The sentence is meted out by the judge, who
follows prescribed guidelines, standards, and limitations in punishing convicts.
Death Penalty- Generally, United States laws permit the death penalty for convicts who have committed
heinous crimes, although the practice of capital punishment is on a case-by-case basis.
In principle, the Federal Death Penalty Act of 1988 sentences to death all offenders convicted of
homicide. But in practice, capital punishment is more an exception than the rule. For example, most of the
convicted terrorists on death row have yet to be meted out their sentences.
Corrections
The third component of the criminal justice system is corrections. While it implies reform and
rehabilitation, corrections encompasses all sentenced offenders, including those who are on death row.
Federal and state criminal justice systems hold “corrections” as the replacement for “penology” that many
find harsh and unforgiving. In any case, the corrections component manages incarcerated convicts and
those who are conditionally released, as well as those who are merely slapped with punishments that do
not require imprisonment but who need supervision anyway.
The corrections network includes publicly run and privately operated institutions, along with the personnel
and other stakeholders, and its administration must adhere to lawful standards. The process involves
reform and rehabilitation programs to prepare eligible convicts for reentry and reintegration into society as
free individuals.

Criminal justice is law enforcement, courts, and corrections

Del Mar 19 (Del Mar College, "Criminal Justice Associate in Arts Degree," Del Mar College Degrees,
July 22, 2019, https://www.delmar.edu/degrees/criminal-justice/index.html)
Criminal Justice includes three distinct systems: Law Enforcement, the Courts, and Corrections.
Law Enforcement involves protection of the people and their property and apprehension of criminal
violators, as well as a wide variety of community services to assure a high quality of life in the community.
The Court System involves the adjudication of criminal law violators by judges and advocates for the
defense as well as the federal, state, and local governments.
Corrections involves the jails and prisons at all levels of government, probation systems in lieu of
imprisonment, and parole as a form of aftercare following prison sentences.
All three components are cooperatively involved with the Juvenile Justice System which provides for the
care of, and adjudication for, children until they reach adulthood.

The criminal justice system is an assemblage of actors that make up

enforcement, adjudication, and corrections
Frase and Weidner ND (Richard S. Frase, Benjamin N. Berger Professor of Criminal Law at the
University of Minnesota Law School. He teaches criminal law, criminal procedure, and the federal defense
clinic. Author of multiple books. Robert R. Weidner, professor at the University of Minnesota in the
Department of Anthropology, Sociology, and Criminology. He is an expert incarceration, problem-solving
courts, and sentencing. "Criminal Justice System Structural And Theoretical Components Of Criminal
Justice Systems, The Systems In Operation, The Importance Of Viewing Criminal Justice As A System,"
Jrank Law, No Date, https://law.jrank.org/pages/858/Criminal-Justice-System.html)
A criminal justice system is a set of legal and social institutions for enforcing the criminal law in
accordance with a defined set of procedural rules and limitations. In the United States, there are separate
federal, state, and military criminal justice systems, and each state has separate systems for adults and
juveniles.
Criminal justice systems include several major subsystems, composed of one or more public institutions
and their staffs: police and other law enforcement agencies; trial and appellate courts; prosecution and
public defender offices; probation and parole agencies; custodial institutions ( jails, prisons, reformatories,
halfway houses, etc.); and departments of corrections (responsible for some or all probation, parole, and
custodial functions). Some jurisdictions also have a sentencing guidelines commission. Other important
public and private actors in this system include: defendants; private defense attorneys; bail bondsmen;
other private agencies providing assistance, supervision, or treatment of offenders; and victims and
groups or officials representing or assisting them (e.g., crime victim compensation boards). In addition,
there are numerous administrative agencies whose work includes criminal law enforcement (e.g., driver
and vehicle licensing bureaus; agencies dealing with natural resources and taxation). Legislators and
other elected officials, although generally lacking any direct role in individual cases, have a major impact
on the formulation of criminal laws and criminal justice policy. Such policy is also strongly influenced by
the news media and by businesses and public-employee labor organizations, which have a major stake in
criminal justice issues.
The notion of a "system" suggests something highly rational—carefully planned, coordinated, and
regulated. Although a certain amount of rationality does exist, much of the functioning of criminal justice
agencies is unplanned, poorly coordinated, and unregulated. No jurisdiction has ever reexamined and
reformed all (or even any substantial part) of its system of criminal justice. Existing systems include some
components that are very ancient (e.g., jury trials) alongside others that are of quite recent origin (e.g.,
specialized drug courts). Moreover, each of the institutions and actors listed above has its own set of
goals and priorities that sometimes conflict with those of other institutions and actors, or with the
supposed goals and priorities of the system as a whole. Furthermore, each of these actors has
substantial unregulated discretion in making particular decisions (e.g., the victim's decision to report a
crime; police and prosecutorial discretion whether and how to apply the criminal law; judicial discretion in
the setting of bail and the imposition of sentence; and correctional discretion as to parole release, parole
or probation revocation, prison discipline, etc.).
Nevertheless, all of the institutions and actors in the criminal justice system are highly interdependent.
What each one does depends on what the others do, and a reform or other change in one part of the
system can have major repercussions on other parts. It is therefore very useful to think about criminal
justice as a system, not only to stress the need for more overall planning, coordination, and structured
discretion, but also to appreciate the complex ways in which different parts of the system interact with
each other.
It’s law enforcement, courts, and corrections
FindLaw 19 (FindLaw, "How Does the Criminal Justice System Work?," Findlaw, 1-28-2019,
https://criminal.findlaw.com/criminal-law-basics/how-does-the-criminal-justice-system-work.html)
The criminal justice system is comprised of three major institutions which process a case from inception,
through trial, to punishment. A case begins with law enforcement officials, who investigate a crime and
gather evidence to identify and use against the presumed perpetrator. The case continues with the court
system, which weighs the evidence to determine if the defendant is guilty beyond a reasonable doubt. If
so, the corrections system will use the means at their disposal, namely incarceration and probation, to
punish and correct the behavior of the offender.

The criminal justice system consists of law enforcement, courts, and corrections
ASAM 19 (American Society of Addiction Medicine, “The ASAM National Practice Guideline for the
Treatment of Opioid Use Disorder: 2020 Focused Update,” American Society of Addiction Medicine,
December 18, 2019)
Criminal Justice System: Consists of law enforcement agencies, courts and accompanying
prosecution and defense lawyers, and agencies for detaining and supervising offenders. The total
correctional population is the population of persons incarcerated, either in a prison or a jail, and persons
supervised in the community, either through problem solving courts or on probation or parole.

The criminal justice system consists of enforcing laws, prosecution, and

rehabilitation or punishment
OKCPD 14 (Police Department of the City of Oklahoma City, Operations Manual, Policy Number:
120.0, Effective Date: 9/2014)
The administration of criminal justice consists of the identification, arrest, prosecution, punishment, and
rehabilitation of a law violator, and it has as its objective the voluntary compliance with the law as an
alternative to punishment. Once a crime has been committed, it is the duty of the Department to initiate
the criminal justice process by identifying and arresting the perpetrator, by obtaining necessary evidence,
and cooperating in the prosecution of the case.
 Interpret “LE” Narrowly
Criminal justice system is criminal law enforcement—Only way to avoid limits
explosion is to interpret “law enforcement” narrowly as direct enforcement of
criminal laws
Azisa 20 – Associate Professor of Law at Hasanuddin University
Nur Azisa, Amir Ilyas, and M. Rheza Prasetya, Obstacles for Law Enforcement Officers Against the
Suspect In the Criminal Justice Examination Process, OSR Journal Of Humanities And Social Science
(IOSR-JHSS), Volume 25, Issue 1, Series. 7 (January. 2020) 01-05, http://www.iosrjournals.org/iosr-
jhss/papers/Vol.%2025%20Issue1/Series-7/A2501070105.pdf

The criminal justice system is also referred to as the "criminal justice system" which starts from the
process of arrest , detention , prosecution , and examination before the court, and ends with the
implementation of crime in a prison .6According to Soebekti,7 what is meant by the system is an order
or order, a whole consisting of parts related to one another, arranged through a plan or pattern, the result
of a thought to achieve the goal. The system moves based on the goals that already exist first so that all
actions are based on the goals that have been made. BardaNawawi Arief8 defines the criminal justice
system as a process of criminal law enforcement , therefore it is closely related to criminal law itself,
both substantive criminal law and criminal procedure . Basically, criminal law is the enforcement of
criminal law in abstracto which will be translated into law enforcement in concreto.
In addition to the law, justice is the king of all movements both directly and indirectly, namely the
relationship between the people and the Indonesian government.9 Law enforcement is the process of
making efforts to be able to erect or function of legal norms that are in force and have been regulated as
guidelines for behavior in traffic or legal relations in human, community and state life. For this reason, the
provisions that regulate them will not stop in the sense that the rules do not move or die, but they will
stand upright and walk forward as determined by official and recognized state institutions governing them.
Broadly , the process of law enforcement involves all legal subjects in every legal relationship.
Whoever runs the normative rules or does or does not do something by basing themselves on the
norms of the rule of law , then that means that they have run or enforced the rule of law.
Meanwhile, narrowly from the aspect of the subject , law enforcement can be interpreted as an effort
of certain law enforcement apparatuses to be able to guarantee and ensure that the rule of law runs as
stipulated by its rules. This is to ensure the rule of law; law enforcement officials are allowed to use
forceful measures. From the perspective of the object, namely from the legal aspect of law enforcement
that is the understanding also includes broad and narrow meanings. In a broad sense, then law
enforcement also includes the values of justice contained in the sound of formal rules or values of justice
that live in society.
Different things in a narrow sense , law enforcement is limited to the formal and written enforcement
of regulations and issued by the authorized institution to issue the regulation. But in the field of law
enforcement is not as beautiful as described by the legal theories and regulations that have governed it.
There is more than one problem of law enforcement and to be able to discuss law enforcement more
deeply and the problem can be clearer, then by considering what factors can influence law enforcement.
 --Law Enforcement = Detect & Punish Crimes
Law enforcement is detection and punishment
Bender 5 (Justice Michael L Bender, “Hung Ma v. People,” 121 P.3d 205, Supreme Court of Colorado,
October 11, 2005)
The phrase "law enforcement" is defined as "the detection and punishment of violations of the law."
Black's Law Dictionary 891 (7th ed. 1999). Detecting and punishing violations of law is commonly
understood to be the job of the police or other police-like agencies. See American Heritage Dictionary of
the English Language, supra at 1358 (defining the word "police" as "the governmental department . . .
established to maintain order, enforce the law, and prevent and detect crime"). Police officers are
responsible for enforcing criminal laws. They do this by investigating crimes, and arresting, detaining, and
assisting in the prosecution of suspected criminals. See, e.g., Denver Police Dep't, Denver Police Dep't
Operations Manual (2004). Therefore, the common understanding of the phrase "law enforcement"
conjures up images of police officers carrying out typical police functions in order to enforce [**13]
criminal laws.

Law enforcement means detection and punishment of crimes

Wilder 7 (Judge Kurtis T. Wilder, “Ernsting v. Ave Maria College,” 274 Mich. App. 506, Court of Appeals
of Michigan, March 6, 2007)
The WPA does not define "law enforcement agency." In reliance on the rule of noscitur a sociis, which
stands for the principle that a word or phrase is given [***9] meaning by its context or setting, Herald Co v
Bay City, 463 Mich. 111, 130 n 10; 614 N.W.2d 873 (2000), defendant argues that the Legislature
implicitly intended to exclude federal law enforcement agencies from the definition of "public body"
because subsections d(i) through (iv) expressly limit the definition of "public body" to include only state
and local governmental entities. We cannot agree. HN8 "Unless defined in the statute, every word or
phrase of a statute should be accorded its plain and ordinary meaning, and a dictionary may be consulted
for this purpose." Polkton Charter Twp v Pellegrom, 265 Mich. App. 88, 102; 693 N.W.2d 170 (2005).
HN9 Black's Law Dictionary (8th ed) defines "law enforcement" as "[t]he detection and punishment of
violations of the law. This term is not limited to the enforcement of criminal laws." Clearly, the function of
detecting and punishing violations of the law is not performed solely by state and local agencies, which is
reflected in the express language of MCL 15.361(d)(v). Nothing in MCL 15.361(d)(v) demonstrates the
Legislature's intent that the term "law enforcement agency" is limited [***10] to state or local enforcement
agencies. "'[A] court may read nothing into an unambiguous statute that is not within the manifest intent of
the Legislature as derived from the words of the statute itself.'" Hill v Sacka, 256 Mich. App. 443, 447-448;
666 N.W.2d 282 (2003) (citation omitted).

Law enforcement is the detection and punishment of violations of the law

Shepherd 7 (Judge Frank A. Shepherd, “Ward v. State,” 965 So. 2d 308, Court of Appeal of Florida,
Third District, September 19, 2007)
Although defendant's argument on appeal is supportable both by reference to the plain and ordinary meaning of the
phrase "law
enforcement" as can be found in a dictionary, see, e.g., Black's Law Dictionary 907 (8th ed. 1999) (HN3 defining "law
enforcement" as "[t]he detection and punishment of violations of the law[]" and "[p]olice officers and other
members of the executive branch of government charged with carrying out and enforcing the criminal
law") (emphasis added); Montgomery v. State, 897 So. 2d 1282, 1285 (Fla. 2005) (HN4 approving the use of dictionary definitions "when
necessary"), and from the breadth of the charge given to the Department by the Florida Legislature, see HN5 § 945.025(1), Florida Statutes (2002)
(stating the Department has "supervisory and protective care, custody, and control of the inmates, buildings, grounds, property, and all other matters
pertaining to the following facilities and programs for the imprisonment, correction, and rehabilitation of adult offenders"); § 945.04(1), Fla. Stat. (2002)
(HN6 "The Department of Corrections shall be responsible for the inmates and for the operation of, and shall have supervisory and protective care,
custody, [**7] and control of, all buildings, grounds, property of, and matters connected with, the correctional system."), we nevertheless conclude
defendant's argument is foreclosed by Burgess v. State, 831 So. 2d 137, 142 (Fla. 2002). In Burgess, the Florida Supreme Court considered [*311]
whether a trial court could rely upon a sworn arrest report to decide--in a proceeding brought under Florida Rule of Criminal Procedure 3.800(a)--
whether consecutive habitual offender sentences were illegal. Id. at 139. Answering the question in the negative, our high court held that "unlike the
information in the police report which petitioner [sought] to rely on, the jail records relied upon in [an earlier case, State v. Mancino, 714 So. 2d 429,
430 (Fla. 1998)] clearly fall under the public records exception to the hearsay rule." Burgess, 831 So. 2d at 142. Although Analyst Glisar's statement
relies upon the state prison records maintained by the Department rather than jail records, based upon the language of Burgess, we conclude we have
little choice but to affirm the trial court's decision that Analyst Glisar's statement is admissible under the public records exception.
 Tools of CJR
Topical mechanisms for criminal justice reform are penal codes, codes of
procedure, and investigative techniques
OPDAT = The Office of Overseas Prosecutorial Development Assistance and Training, part of the DOJ
McLeod 10 – Law Research Fellow, Georgetown University Law Center
Allegra M. McLeod, Law Research Fellow, Georgetown University Law Center. J.D., Yale Law School,
2006; Ph.D., Stanfrd University, 2009. “Exporting U.S. Criminal Justice,” 29 Yale L. & Pol'y Rev. 83, 2010

OPDAT's selection of these factors to measure progress toward its goals entails, predictably, a means-
ends substitution because several of OPDAT's "measures" are properly considered "means" rather than
"measures" of performance. For instance, OPDAT defines Measure 1 - "Structural Reform" - as [*137]
the development and implementation in the recipient country of standards of conduct for justice sector
workers and disciplinary mechanisms. OPDAT defines Measure 8 - " Tools for Criminal Justice
Reform " - as " penal codes, codes of procedure and investigative techniques ." These same codes
and standards of conduct are central means by which OPDAT intends to achieve its ultimate goals (e.g.,
Goal 4 - improve the effectiveness of recipient states' respective justice sectors).
 CJR Not Bidirectional
Even if some conservatives refer to harsher penalties as criminal justice
“reforms,” that’s outside the normal meaning of the term—Failure to adopt a
narrow interp renders the term meaningless, explodes limits and unified Neg
ground, and makes effective research and testing almost impossible. Doesn’t mix
burdens because it’s about the clear intent of the policy.
Wolff et al. 20 – Associate Prof of Criminal Justice & member of the doctoral faculty at John Jay
College of Criminal Justice
Douglas N. Evans, senior investigator with the Research and Evaluation Center focusing on barriers to
reentry from prison, Gina Moreno, Senior Research Analyst, Kevin T. Wolff, associate professor in the
Department of Criminal Justice and a member of the doctoral faculty for the Program of Doctor Studies in
Criminal Justice at John Jay/ The Graduate Center, and Jeffrey A. Butts, Director of the Research &
Evaluation Center at John Jay College of Criminal Justice, Easily Overstated: Estimating the Relationship
Between State Justice Policy Environments and Falling Rates of Youth Confinement, January 2020,
https://johnjayrec.nyc/2020/01/01/easilyoverstated2020/

State officials, policy advocates, and journalists often describe falling rates of youth confinement across
the United States as the result of reform. Indeed, youth confinement (out-of-home placements ordered by
juvenile justice authorities) began to decline in the 1990s after growing steadily during the 1970s and
1980s. By 2015, the rate of youth confinement per capita was less than half the rate of 1997 (Sickmund et
al. 2017). During the same period, the number of adults in U.S. prisons and jails grew 23 percent (BJS
2019).
Periods of confinement in the youth justice system are much shorter, of course, than sentence lengths in
the adult prison system. Youth confinement rates may react more quickly to a general decline in
incarceration. But, what specific factors are involved?
Policymakers and advocates make ambitious claims about the effects of changes in policy and practice,
suggesting that more progressive youth justice approaches are responsible for the declining rate of
confinement. While the use of confinement often declines after the implementation of various policies, this
is insufficient evidence of a causal relationship. Are youth justice policies actually responsible for
creating declines in youth confinement, or do public officials and advocates overstate the association
between policy reforms and reductions in confinement?
Why have youth confinement rates dropped sharply in the past two decades? Is it simply the result of
falling youth crime, or may officials rightfully take credit for reducing confinement with policy reform? If
so, which practices and policies are most effective in lowering the youth confinement rate and which
states had the most success in reducing confinement ? Is the youth justice policy environment a likely
cause of recent changes in confinement rates?
In this study, researchers analyzed data about economic factors, crime rates, political ideology, and youth justice policy to test the association between state-level policy environments and recent changes in the use of confinement for adjudicated youth.
Background
Surprisingly little research has examined fluctuations in rates of youth confinement and their relationship to policy structures. Research on adult incarceration is far more common. The discrepancy may be due to the limited range of data available on youth confinement—especially before the mid-1990s—as well as the fact that the confined youth population is very small relative to the number of incarcerated adults.1 The national number of incarcerated adults is often 40 to 50 times larger than the population of youth in
confinement, including those in long-term secure facilities, residential facilities, and group homes (Sawyer and Wagner 2019; Sawyer 2018).
1. The Census of Public and Private Juvenile Detention, Correctional, and Shelter Facilities, also known as the Children in Custody census, was conducted from the early 1970s until the 1990s when the Census of Juveniles in Residential Placement (CJRP) became the nation’s primary data series about juvenile confinement.
Some factors shaping the use of confinement may be similar in both the youth system and adult system, including crime rates, financial factors, political climate, and the policies and decisions of police, prosecutors, and courts. Reviewing research literature on adult incarceration, therefore, may lead to sufficient understanding of confinement trends. Some factors, however, may be quite different in youth justice. Research focusing specifically on youth confinement is essential for policymakers and practitioners who need to
identify the best methods for reducing unnecessary and ineffective uses of youth placements.
The declining use of confinement for youth began more than a decade before the decline in adult incarceration. Adult incarceration rates began to climb in the 1970s and continued for more than three decades, leaving the U.S. with the highest incarceration rate in the world (Carroll and Cornell 1985; Phelps and Pager 2016). The adult prison population dropped slightly beginning in 2010, down seven percent according to recent data (Carson 2018; Guerino, Harrison and Sabol 2011). Youth confinement numbers, on the other
hand, began falling in the mid-1990s. Between 1997 and 2015, the national number of youth in residential placements decreased 54 percent—from 105,055 to 48,043 (Hockenberry 2018).

Many factors likely contribute to the declining use of confinement, including some of the reforms
celebrated by advocates. Researchers, however, cannot test the direct effect of myriad reforms at
state and local levels. First, the concept of justice reform is so broad it makes the term almost
meaningless . Second, the detailed data required to study numerous state and local youth justice
reforms do not exist.
The popular notion of reform in the context of justice policy could mean any intentional effort to
improve the effectiveness and fairness of the justice process as well as the impact of any
subsequent interventions. Typical reforms include reducing punitive sentences and expanding the
use of alternatives , or limiting the influence of race and gender bias in sentencing decisions
(Harmon 2013).
The term reform , however, could also describ e changes in policy and practice o f a very different
type . Some policymakers could think of reform as increasing police surveillance , imposing
stricter sentences , or making the terms of probation longer and more restrictive . In such a
framework, reforms could contribute to increases in incarceration , such as mandatory minimum
sentences and Three Strikes Laws , or they could be designed to reduce the ability of courts to
impose non-incarcerative sanctions and limit access to diversion for broad categories of offenses.
“ Tough on crime” and “zero tolerance” policies during the 1980s and 1990s led to an expansion of
secure facility space in the U.S. and increased the use of confinement (Scott and Saucedo 2013). Some
officials may view these policies as “ reform .”
This study defined reform as the use of laws, policies, rules, and regulations to advance a more
“progressive” approach to youth justice. In other words, the study focused on reforms designed to
be rehabilitative and restorative rather than punitive , those that are compatible with the science of
adolescent development, that promote the use of the “least restrictive” setting for adjudicated youth,
and are generally respectful of civil liberties and maintain appropriate restraint on the power of
government even when those policies purport to ensure public safety.
Even narrowing the meaning of reform in this way , however, does not make a national analysis of
youth justice policies simple or straightforward. To establish a statistical connection between progressive
reforms and youth confinement rates, researchers would need detailed, historical measures about
policies and practices implemented in states, counties, and cities over several decades. Anything less
than a comprehensive, national database of reform measures organized at the local level would render
such research a type of case study. Of course, some useful research derives from case studies focused
on just one state or city (e.g., Fabelo et al. 2015). Case studies, however, fail to account for nationwide
trends. Researchers examining one jurisdiction alone may be tempted to see causation in a finding that
actually reflects a broader, national phenomenon (McDowall and Loftin 2009). To create more robust
measures, researchers need comprehensive and reliable data about policies and practices in all states
and for many years. Unfortunately, this kind of information does not exist, but it is possible to obtain a few
key variables from data series managed by the U.S. Department of Justice and to use these data to
model state-level characteristics pertaining to crime, justice processing, demographics, economics, and
political ideology across all 50 states.
State-level data about law and policy will still produce a limited reflection of youth justice in practice.
Removing a juvenile from home and placing them in a facility follows a complex series of policy
decisions. Because long-term confinement facilities are often an endpoint in the justice process, the
number of youth in these facilities depends on the decisions of many actors throughout the justice
system. Police officers have the discretion to arrest someone (or not ) for an offense. Prosecutors
have the authority to file charges (or not ). Judges and executive branch agencies usually decide
whether a particular case merits the use of confinement. Manipulating any one of these factors may
contribute to some change in the total rate of youth confinement, but no single factor is likely to
drastically reduce the volume of placements. Many other social and political factors influence such
decisions, from recent crime trends and public opinion to budget crises and even the lasting effects of
one or two notorious cases that generate public anxiety (Butterfield 1995).
Most importantly, the United States (as with many other countries) has been experiencing falling crime for
25-years. Adult and youth arrests have decreased nearly every year since the mid-1990s. The per capita
rate of violent crimes fell 29 percent between 1999 and 2018 (FBI 2019). When crime falls, especially
serious and violent crime, policymakers are more willing and more able to implement reforms. If the rate
of confinement continues to decline, officials are tempted to claim their reforms are responsible—even if
rigorous research would show the two measures (reforms and confinement rates) are associated but not
causally related. With fewer arrests coming to court, the demand for secure confinement may fall
regardless what policies are being pursued to reduce confinement.
Popular Claims
Researchers, politicians, and advocates often claim incarceration rates fall due to the effects of intentional
reform. Referencing the nationwide drop in adult incarceration rates, researchers Lofstrom and Raphael
asserted that declines were “driven by sentencing reforms at the state level explicitly designed to reduce
incarceration rates” (2016: 197). Governor John Bel Edwards of Louisiana was quick to celebrate his
state’s “significant decreases in prison populations and prison admissions following the first year of the
state’s historic criminal justice reforms” (Toohey 2018). Advocacy organizations are pleased to describe
the declining use of incarceration for adults as the result of reform.
“…South Carolina enacted a modest criminal justice reform package… intended to safely reduce the
prison population , save taxpayer money, and produce a better public safety outcome. And it did just
that” (Center for Criminal Justice Reform 2018).
Similarly, youth advocates credit an array of reforms for the declining number of youth held in secure
facilities and other forms of placement. Typical reforms include funding for community-based alternatives,
diversionary policies, policies requiring the least restrictive placement for adjudicated youth, bans on out-
of-home placement for youth adjudicated for certain types of offenses (non-felony, non-violent
misdemeanor, or low-level offenses, drug possession, prostitution), bans on confinement of foster care
youth, and raising the age of juvenile jurisdiction overall. Some of these reforms may have contributed to
reductions in the use of confinement for adjudicated youth, but without considering the effect of other
factors it may be wrong to claim or even imply that reforms are entirely responsible. Making causal
claims, however, is quite popular. Two authors of this study, in fact, published a John Jay College report
in 2011 that identified policy choices as a key influence on youth confinement.
“The scale of incarceration is not simply a reaction to crime. It is a policy choice . Some lawmakers
invest heavily in youth confinement facilities. In their jurisdictions, incarceration is a key component of
the youth justice system. Other lawmakers invest more in community -based programs” (Butts and
Evans 2011).
Other organizations have been even more confident in their attributions of cause and effect. Nationally known organizations such as the Council of State Governments, the National Juvenile Justice Network, the National Center for Youth Law, the National Council on Crime and Delinquency, the Crime and Justice Institute, and Pew Charitable Trusts have published reports suggesting that policy and practice reforms were responsible for lowering the rate of secure confinement for adjudicated youth.
In 2019, the Crime and Justice Institute examined changes in the demand for secure youth confinement space in West Virginia and implied that a small amount of improvement was due to the recent passage of state legislation.
“One primary goal of the S.B. 393 policy changes was to reduce the number of West Virginia youth in secure facilities. Examining the number of youth admitted to restrictive settings versus the number referred to community alternatives like the YRCs is a quantifiable way to measure progress toward this goal. From 2015 through 2017, the overall number of BJS admissions decreased from 2,073 to 1,877. At the same time, the data show a steady increase in the percentage of juveniles referred to community-based
interventions, from 37 percent in 2015 to 39 percent in 2017. The trend continued into 2018, with 42 percent of admissions referred to non-residential programs” (Crime and Justice Institute 2019: 4).
A 2012 report from the National Center for Youth Law and the National Council on Crime and Delinquency reviewed youth justice reforms implemented by the State of Arkansas and confidently declared them successful without investigating other explanations, such as the national crime decline and subsequent reductions in demand for secure space.
“Arkansas leaders, like their counterparts in other states, have embarked on a planned course to transform the state’s juvenile justice system. … In just a short period of time, Arkansas has achieved significant positive results from reform efforts. From 2008 to 2011, commitments to state custody have been reduced by 20%, including those for low-level, non-dangerous youthful misbehaviors; the average length of stay in state residential treatment centers has been shortened by 19%; and the number of beds at the state’s largest
juvenile secure facility, the Arkansas Juvenile Assessment and Treatment Center, was reduced by 30%” (Arthur and Hartney 2012: 1).
The National Juvenile Justice Network collaborated with the Texas Public Policy Foundation to publish a 2013 report on youth confinement trends. While the report acknowledged that declines in youth arrests “helped explain” the falling rate of youth confinement, it also asserted that state policies “shape” the changes leading to reduced confinement (National Juvenile Justice Network 2013: 2). In 2017, the Council of State Governments Justice Center described the nationwide drop in youth confinement as the result of efforts by
“state and local leaders.”
“State and local leaders across the country have made concerted efforts to scale back juvenile incarceration, and their efforts have yielded significant results: the national juvenile incarceration rate has been cut in half over the last decade. As a result, a greater number of youth in the juvenile justice system are now being supervised in their communities, which research shows leads to lower re-arrest rates, and states are increasingly allocating the majority of their juvenile justice resources to community-based supervision and
services” (CSG 2017).
Similarly, the enactment of youth justice reforms in Kentucky inspired the Pew Charitable Trusts to conclude the policies had a direct effect.
“Juvenile justice reforms enacted by Kentucky in 2014 are creating substantial benefits for youth, families, and communities throughout the state. Between fiscal years 2014 and 2017, the number of youths held in Department of Juvenile Justice facilities fell 34 percent, reflecting a reduction in detentions and commitments for lower-level offenses” (Horowitz and Pheiffer 2018).
Researchers at Pew saw other causal connections in Georgia: “After Georgia enacted a 2013 reform package, the state’s juvenile residential population fell 35 percent” (Horowitz and Carlock 2017). An assistant commissioner of the Georgia Department of Juvenile Justice joined the argument, saying “juvenile reform in Georgia has made it possible not only to avoid construction of new facilities, but to reduce the population in existing facilities” (Vignati and Edwards 2018).

An online data brief from Pew used federal data to depict changes in youth confinement from 2006 to
2015 and reported that all 50 states and Washington, DC showed decreases ranging from –1 percent to –
83 percent. The Pew brief ended by implying that reforms were likely behind the change because the
general trend of reduced youth confinement “comes as a growing number of states adopt policies that
prioritize costly space in residential facilities for youths adjudicated for serious crimes” (Horowitz 2017).
A comprehensive report from Texas used data from 2007 to 2012 to claim that policy changes deserved
credit for reduced confinement in that state: “the first of a series of reforms was enacted , and over the
next five years, the number of youth incarcerated in state facilities did not grow as projected but instead
plunged ” (Fabelo et al. 2015: 30). The authors concluded that:
“State efforts to reduce the number of youth in state juvenile correctional facilities have delivered on the
promise made when they were enacted. Thousands more youth are living at home now (or are being
supervised closer to home) than before the reforms” (Fabelo et al. 2015: 81).
Advocacy groups are often eager to report a connection between reforms and rates of confinement. The Vice President of the Advocates for Children of New Jersey (ACNJ) wrote that the “[Annie E. Casey Foundation’s Juvenile Detention Alternatives Initiative] has resulted in far fewer youth being incarcerated in longer-term Juvenile Justice Commission facilities without risk to public safety” (Coogan 2017). ACNJ relied on a subtle turn of phrase to imply a causal relationship between reforms and reduced confinement, stating
that “New Jersey is a national leader in a rapidly advancing juvenile justice reform movement. The state is locking up thousands fewer young offenders, while safely addressing their needs in their communities” (ACNJ 2018).
The 2014 Annual Report of the Annie E. Casey Foundation was less subtle, lauding a 43 percent drop in juvenile detention in several states as the “result” of its efforts to reduce detention in those states (Annie E. Casey Foundation 2014).
Journalists often endorse correlational claims by public officials and advocates. The Arkansas Times reported that “[statewide youth justice] reforms have reduced both the number of youths detained locally in juvenile detention centers and those committed to (state) facilities” (Hardy 2017). A Kansas news outlet noted that, “juvenile arrests and placement of youths in group homes or detention facilities declined at the same time Kansas moved to funnel budget savings into community-based therapy and intervention programs
designed to keep families together” (Carpenter 2019).
Another article about Kansas opened with the following assertion: “Reforms to the Kansas juvenile justice system have slashed the number of young people in confinement by 63 percent over the past two years” (The Crime Report 2019).
A recent article about Vice, the HBO documentary about criminal justice reform, opened with this observation: “The U.S. has significantly reduced the amount of incarcerated youths via state reforms from 2001 to 2015” (Vice Impact 2018).
Even celebrities join those seeing a direct, causal connection. Musician and justice advocate John Legend once observed:
“When Illinois instituted comprehensive reforms over the past several years to build age-appropriate responses to crime, day-reporting centers, and community-based mental health services for youth in cities including Chicago, the state incarcerated 44 percent fewer youth, reserving incarceration only for those who were a public safety threat” (Spark Action 2017).
Policy reforms may contribute to confinement reductions, but other factors—social conditions, economic trends, cultural shifts—likely play a part. This study tested the claim that state policies are responsible for falling youth confinement rates and examined what happens to that relationship when other explanatory factors are included. If the study indicates that the effects of the policy environment are reduced or nullified by covariates, it would cast doubt on the widely assumed causal relationship between reforms and
reductions in youth confinement.
The Changing Rate of Youth Confinement
The rise and fall of youth confinement occurred in the midst of America’s wave of mass incarceration. The number of incarcerated adults surged in the U.S. during the past 50 years. The adult incarceration rate had been relatively stable until the early 1970s, when it started to increase exponentially. From 1972 to 2008 the rate of individuals incarcerated in jails and state or federal prisons increased from 161 inmates per 100,000 residents to nearly 756 per 100,000 residents (Travis, Western, and Redburn 2014; Maguire, n. d.).
The incarceration boom affected people of all age groups, as adult crime and incarceration rates tend to affect youth confinement rates as well (Mears 2006).
Most research on incarceration continues to focus on adult populations, but this study concentrates on youth confinement and factors that influence it. The widespread decline in youth confinement that began in the mid-1990s followed a period of growth during the 1980s and early 1990s.
During periods of either increasing or decreasing confinement, nationwide trends obscure differences between states. In 1997, for example, rates of placement for juveniles age 10 and older varied from a low of 70 per 100,000 in Vermont to a high of 583 per 100,000 in Louisiana (Sickmund 2000). Sizeable disparities in confinement rates present an opportunity for researchers. By analyzing state variations, it may be possible to identify key factors affecting the use of youth confinement. Some factors, such as demographic
shifts, economic changes, and the introduction of new policies, may be measurable. Others, such as the political climate and cultural norms, are more difficult to capture in national studies.
“Tough on crime” legislation, for example, certainly contributed to increasing confinement rates in the 1980s (Tonry 1999). Being “tough” became the standard for elected officials in the criminal (adult) justice arena and had spillover effects on youth justice policy as well (Wool and Stemen 2004; Mears 2006). Aggressive policies were also a response to sharp increases in youth violence during the 1980s and early 1990s (Butts and Mears 2001; Van Vleet 1999). News media at the time sensationalized crimes involving youth and
some prominent academics even argued that certain juveniles were “superpredators… capable of committing the most heinous acts of physical violence for the most trivial reasons” (Dilulio 1995). Such claims likely motivated policymakers to implement more tough-on-crime policies aimed especially at youth.
After peaking in the mid-1990s, youth crime rates—especially violent crimes—began to fall. Youth confinement rates followed suit. The national number of confined youth decreased nearly every year since the late 1990s (Sickmund et al. 2015). The reduced demand for confinement was largely a response to falling youth crime. Juvenile courts placed fewer youth out-of-home in absolute terms, but the proportion of court cases resulting in out-of-home placement remained stable between 1996 and 2016 (Butts and Pfaff 2019). If
the overall decline in youth confinement coincided with falling crime rates, is it still possible that some of the recent changes were also due to policy changes?
Factors that Influence Incarceration
Incarceration rates respond to a combination of micro factors pertaining to individuals involved in the criminal justice process (defendants, police, prosecutors) and macro factors (societal changes potentially affecting the entire population) (Pfaff 2013). At the micro-level, police officers have the discretion to arrest someone suspected of committing a crime, or they can decide not to make an arrest. Prosecutors can charge an arrestee with a range of criminal offenses or they can decide not to file charges. Judges usually
determine a convicted defendant’s length of sentence, and parole boards determine if an inmate can leave prison before some pre-determined release date. Parole officers issue restrictions on their parolees and have the discretion to revoke parole and send them back to prison.
Micro factors affect the likelihood and severity/length of criminal sanctions and may explain some of the increase in incarceration that started in the 1970s and continued into the 2010s. Macro factors, of course, affect these micro factors, including efforts by lawmakers to restrict the discretion of justice officials to make decisions about individual cases. Other macro factors include the broad array of social policies, economic conditions, unemployment rates, demographic characteristics, and the political ideologies prevalent in a
given area.
Disentangling how all these factors affect incarceration is difficult because changes in one factor may correlate with changes in others. The war on drugs was a macro-level policy that influenced police departments and officers to target people suspected of drug offenses, which helps to explain the increase in people incarcerated for drug offenses (Blumstein and Beck 1999). The likelihood of prison became more common as prosecutors recommended severe sentences more often and judges agreed with them more often
(Travis, Western, and Redburn 2014). One study of prosecutions in 34 states (the only states for which felony filing data were available) indicated that while arrests fell about 10 percent between 1994 and 2008, felony court filings increased more than 37 percent (Pfaff 2013).
Other research shows that macro-economic factors, such as income and financial inequality, unemployment, and poverty, may also influence incarceration rates. Crime rates tend to be higher in communities beset by financial inequality and the association is consistent across multiple countries and time periods (Fajnzylber, Lederman and Loayza 2002). Although inequality may not have a direct effect on incarceration, its effect may operate through other factors. Even government assistance programs may be related to
incarceration. A study exploring welfare recipients and incarceration rates found that states spending less on social welfare had higher incarceration rates (Beckett and Western 2001).
Unemployment and poverty are often positively related to incarceration rates (Sorensen and Stemen 2002). Poor and unemployed people do not necessarily commit more crime, but there is a relationship between the number of people living with limited financial means and the justice system’s prioritization of incarceration. Researchers find that a rise in unemployment can affect increases in crime (Raphael and Winter-Ebmer 2001). The relative poverty rate in a neighborhood may be indicative of the extent of incarceration
among residents from that neighborhood. The criminal justice system may disproportionately affect individuals from high poverty communities along with other social problems such as violent crime, mental illness, and substance abuse (Travis, Western, and Redburn 2014). On the other hand, unemployment could actually contribute to reductions in youth confinement. Unemployed parents may spend more time at home, allowing them to supervise their children directly, potentially leading to fewer delinquent acts and fewer
youth confinements.

The political preferences and voting behavior of an area may also affect incarceration rates. Conservative
politicians could use claims of “crime problems” to offer tough-on-crime solutions that result in political
gains, or conservative citizens may demand harsher punishments for law violators (Jacobs and
Carmichael 2001). Politically conservative states may adopt more punitive justice policies, perhaps in
response to increases in populations of color in areas that were once predominantly White (McGarrel
1991; Tolbert and Grummel 2003). Conservative-leaning states also tend to adopt more severe
sentences for some crimes, including rape, assault, and robbery (Bowers and Waltman 1993). Some
researchers find a positive correlation between the number of conservative citizens and a state’s
incarceration rate (Sorensen and Stemen 2002; Greenberg and West 2001).
Policies in the criminal and juvenile justice systems are not easily comparable because criminal justice
policies tend to be more punitive. However, criminal justice policies can demonstrate the effects of
reforms on incarceration rates. Determinate criminal justice sentences , including mandatory
minimums and three-strikes laws , are often cited as a driver of mass incarceration . Some argue
that a shift toward determinate sentencing and longer sentences influenced the growth of incarceration
(Mauer 2001). Others, however, suggest that determinate sentencing laws are not associated with
increases in incarceration for most states and may actually decrease incarceration in some states
(Marvell and Moody 1996). A study of sentencing practices in all 50 states, including voluntary
sentencing, presumptive sentencing, three-strikes laws, parole abolition, and truth-in-sentencing laws,
found that with the exception of parole abolition, sentencing practices were not strongly correlated with
changes in prison populations (Zhang, Maxwell and Vaughn 2009).

CJR to have any meaning should be read narrowly—Reject bidirectionality

Green 20 – Research Fellow at the AI Now Institute at NYU, Affiliate at the Berkman Klein Center for
Internet & Society at Harvard, PhD in Applied Math
Ben Green, Affiliate at the Berkman Klein Center for Internet & Society at Harvard, Research Fellow at
the AI Now Institute at NYU, PhD Candidate in Applied Math at Harvard, studying the social and policy
impacts of data science with a focus on algorithmic fairness and the criminal justice system, Author of
The Smart Enough City, pub. 2019 by MIT Press, The False Promise of Risk Assessments: Epistemic
Reform and the Limits of Fairness, In Conference on Fairness, Accountability, and Transparency (FAT*
’20), 27-30 January 2020, 13 pp., https://dl.acm.org/doi/pdf/10.1145/3351095.3372869

This analysis requires , as a preliminary step , articulating principles with which to evaluate reform .
This is particularly important given that the notion of “criminal justice reform” is itself contested .
Criminal justice reform refers broadly to the goal of eliminating or altering policies that lead to
mass incarceration and racial injustice . However, there are divergent views about both the causes of
and solutions for these challenges. For example, police reform efforts range from focusing on
deficiencies in African American male culture ( reforms require improving this culture ) to the
enduring presence of white supremacy and antiblack racism ( reforms require structural
transformations to U.S. society ) [17].
While it is expected that any reform effort will involve multiple visions, the rhetorical flexibility of
“criminal justice reform ” leads to a signicant gap between the expansive change that “reform”
suggests and the more minimal shifts that many reformers actually intend . As a result, criminal
justice reform rhetoric is often both “superficial”—“most proposed ‘reforms’ would still leave the
United States as the greatest incarcerator in the world ”—and “ deceptive ”—many so-called
reformers “obfuscate the dierence between changes that will transform the system and tweaks
that will curb only its most grotesque -ourishes” [86].
This paper evaluates reforms based on the extent to which they address the well-documented
structural causes of carceral injustice . This is the emphasis articulated by the prison abolition
movement, which draws on the slavery abolition movement [38, 110]. Formerly consigned to the outskirts
of political discussion, abolition has been the subject of renewed attention among politicians, the legal
academy, social movements, and the media [5, 94, 138]. Prison abolition promotes decarceration with the
aim to ultimately create a world without prisons. Recognizing the violence inherent to conning people in
cages and to controlling people’s lives through force, abolitionists object to reforms that “render criminal
law administration more humane, but fail to substitute alternative institutions or approaches to realize
social order maintenance goals” [109]. Nor, however, do abolitionists intend to immediately close all
prisons.
Instead, abolition is a long-term project to develop “a constellation of alternative strategies and
institutions , with the ultimate aim of removing the prison from the social and ideological landscapes
of our society” [38]. This involves advocating to end practices such as capital punishment , the use of
criminal records in determining access to housing and voting, and the militarization of police [138]
and to create alternative practices such as transformative justice , democratic and holistic
responses to violence, and increasing resources for education and healthcare [111].
 --Contextual/Includes
CJR includes a range of different policies that make things nicer—Plenty big, but
single direction. Core of the present-day topic.
Skorup 15
Jarrett Skorup, CAPPS Report Lays Out Some Solid Criminal Justice Reforms, 2015,
https://www.mackinac.org/21406

CAPPS Report Lays Out Some Solid Criminal Justice Reforms

A new report from the Citizens Alliance on Prisons and Public Spending lays out some quality reforms
that would help pare down Michigan’s vast criminal system. Many of the ideas would save taxpayer
money and are commonsense reforms that will not endanger the public. In total, the report estimates that
Michigan could reduce its prison population by around 10,000 and save $250 million annually.
CAPPS notes that Michigan spends about $2 billion on its Department of Corrections — skyrocketing
from 1.6 percent of the General Fund budget in 1973 to 20 percent today. Much of this spending is
warranted — nobody wants violent criminals out on the street — but a significant chunk could be better
allocated with a few reforms.
The report recommends reducing the intake of prisoners , changing minimum sentencing
guidelines , increasing some paroles and shifting mentally and/or physically disabled prisoners
to other, specialized facilities , along with other ideas.
CAPPS argues that the state can reduce the intake of prisoners by imposing different penalties for
low-level offenders , such as retail fraud, parole violators, etc. Michigan can also better standardize its
criminal code with other states , which spend less money for fewer prisoners with no higher crime
rates.
A 2012 Pew Center on the States study found that Michigan has one of the longest average lengths of
stay for prisoners and longer criminal sentences in general. In a detailed analysis of Michigan nonviolent
criminals released in 2004, the study estimated that 24 percent of these prisoners could have served
shorter sentences without compromising public safety. This is consistent with other research evidence,
according to the new CAPPS study: “Researchers can make no connection between increased length of
stay and recidivism.” Michigan may be spending more money to lock people up for longer periods for no
observable benefit to the public.
The Mackinac Center is a proud partner in the overall Right on Crime movement, calling for
commonsense criminal justice reforms that will reduce the cost of this vital government service and
protect the legal rights of Michigan residents. Center experts have urged the Legislature to consider
other changes to the criminal justice system in Michigan. In particular, the state should re-examine
its overwhelmingly complex penal code and establish more robust legal protections for innocent
citizens by eliminating civil asset forfeiture.
 CJR Yes Bidirectional
CJR can mean making it harsher
Alt 19 – Founder of The Buckeye Institute’s Legal Center, former Director in the Center for Legal and
Judicial Studies under former Atty. Gen. Meese III
Robert Alt, distinguished scholar with particular expertise in legal policy including criminal justice, national
security, and constitutional law, former director in The Heritage Foundation’s Center for Legal and Judicial
Studies under former U.S. Attorney General Edwin Meese III, founder of Buckeye’s Economic Research
Center (ERC) and Legal Center, president and chief executive officer of The Buckeye Institute, where he
also serves on the Board of Trustees, frequent speaker at universities and law schools across the
country, Criminal Justice Reform: A Survey of 2018 State Laws, July 2019,
https://fedsoc.org/commentary/publications/2018-criminal-justice-reform

State legislatures across the country made significant strides in reforming their criminal justice
regimes throughout 2018. States revised their existing criminal codes, passed new legislation, and
amended their constitutions in order to address a range of criminal justice concerns. Several states
enacted similar legislative reforms , and a survey of the changing criminal justice landscape reveals
that states were most willing to modify their criminal laws in the areas related to pre-trial detention or bail
reform, civil asset forfeiture, marijuana legalization, drug-induced homicide, and opioid abuse. The most
notable new criminal justice legislation reforms fall generally among those categories.
Criminal justice reform did not trend in a singular direction . Some reform measures, for example ,
appear designed to liberalize drug enforcement by legalizing medical and recreational use of
marijuana, while others establish more severe penalties and stricter enforcement protocols for
fighting criminal drug trafficking and opioid abuse. Two states made significant changes to their pretrial
detention protocols, giving state judges more latitude to use risk-assessment tools and easing the
financial burdens that the cash bail systems had placed upon low-income criminal defendants. Several
states amended their civil asset forfeiture laws to make their asset forfeiture process more transparent
and to make asset forfeiture more difficult for law enforcement. Still other states, like Massachusetts,
adopted sweeping reform measures across virtually their entire criminal code.

CJR also refers to increasing the severity of punishments—not just decreasing

Steiker 19 (Carol S. Steiker, Henry J. Friendly Professor of Law and Faculty Co-Director of the Criminal
Justice Policy Program, Harvard Law School. “DUNWODY DISTINGUISHED LECTURE IN LAW:
KEEPING HOPE ALIVE: CRIMINAL JUSTICE REFORM DURING CYCLES OF POLITICAL
RETRENCHMENT,” 71 Fla. L. Rev. 1363, November, 2019)
Before I turn to the tool catalog, a word is in order about the definition of "criminal justice reform ."
Although a central focus of current reformers is--completely appropriately--the rolling back of mass
incarceration, the problems of American criminal justice are not simply problems of too much
punishment . Thus, reform is not always synonymous with less law enforcement or punishment. Even
as we over-incarcerate on a massive scale, there are also important pockets of disturbing under-
enforcement --of laws against political corruption, corporate and white-collar crime, police abuse,
violence in prisons and jails, and sexual assault . Reform , construed broadly, includes addressing
over-incarceration as part of a wider rethinking of law-enforcement priorities and overall investments,
through criminal justice and otherwise, in public safety and security.
 --Sentencing
Reform in the sentencing context especially is arbitrarily defined and
bidirectional
Tonry 5 (Michael Tonry, Sonosky Professor of Law and Public Policy and Director, Institute on Crime
and Public Policy, University of Minnesota Law School; Senior Fellow, Netherlands Institute for the Study
of Crime and Law Enforcement, Leiden. “The Functions of Sentencing and Sentencing Reform,” Stanford
Law Review, Vol. 58, No. 1, 2005)
" Sentencing reform " means very different things depending on whether the proponent wants
sentencing made softer, tougher, fairer, more consistent, more efficient, more economical, more
transparent, or more effective at preventing crime.2 Whether a proposed change counts in the eyes of
others as a reform depends on what the proponent wants to accomplish and whether others think
that a good thing.
 excludes expanding mens rea
Not meaningful CJR
Dotson 16 – VP for Energy Policy at the Center for American Progress
Greg Dotson, Vice President for Energy Policy at the Center for American Progress, Alison Cassady,
Director of Domestic Energy Policy at CAP, Three Ways Congressional Mens Rea Proposals Could Allow
White Collar Criminals to Escape Prosecution, Center for American Progress, 2016,
https://www.americanprogress.org/issues/criminal-justice/reports/2016/03/11/133113/three-ways-
congressional-mens-rea-proposals-could-allow-white-collar-criminals-to-escape-prosecution/

If the default mens rea provisions under discussion in the House of Representatives and the Senate
become law, they could make it harder for prosecutors to bring white-collar corporate criminals to
justice . Language with such potentially significant consequences for human health, the environment, and
public safety has no place in a meaningful criminal justice reform effort.
 CJR =/=Civil
It’s the key distinction—Prefer precision and quals
Conway 19 – quoting Asst. Dean of Public Service & Exec. Dir. Of the Milwaukee Justice Center at
Marquette Law
Kevin Conway, associate director for university communication at Marquette University, DEAN OF
PUBLIC SERVICE AT MARQUETTE UNIVERSITY LAW SCHOOL HONORED AS LEGAL INNOVATOR,
2019, Lexis

The following information was released by Marquette University:

Angela Schultz, assistant dean of public service at Marquette University Law School, has been named to
the State Bar of Wisconsin's list of Legal Innovators for 2019 for her role in developing an experiential
learning activity to illustrate the challenges facing lower-income Wisconsinites navigating the civil court
system.
Alongside Mary Ferwerda, executive director of the Milwaukee Justice Center, Schultz sought to raise
awareness about the issues facing low-income civil litigants in Wisconsin-many of whom are unable to
afford private representation and may not qualify for free civil legal aid . "Lost in the Law" is a role-
playing game designed to educate law students, lawyers, court officials, and other interested groups
about the complex set of circumstances unrepresented people face.
"Most people have an idea about what 'criminal justice reform' refers to , but there is not a similar
level of understanding about our civil justice system and the barriers facing low-income folks navigating
our civil courts," said Schultz. "In developing 'Lost in the Law,' we sought to illustrate the vast and
complex challenges underrepresented litigants face. Mary and I have participated in simulations for
poverty and domestic violence and know how effective it can be to walk in the shoes of a character.
Often, the choices someone has to make are very difficult and the game illustrates that.
"We also had the advantage of assistance from Legal Action of Wisconsin, Wisconsin New Leaders
Council, and law student members of our Public Interest Law Society at Marquette that helped us make
this a reality."
The simulation, which can be done in as few as 30 minutes, debuted at the Wisconsin Equal Justice
Conference in March 2019, and later was presented to the United Way of Greater Milwaukee and
Waukesha County and a group of volunteer lawyers and law students at Marquette. It also was used at
the Judicare Conference in November.
As assistant dean for public service, Schultz's charge is to advance access to justice through the creation,
implementation, and operational oversight of pro bono projects for law students and lawyers. Under her
guidance, Marquette Law School operates the Marquette Volunteer Legal Clinics and various other pro
bono legal services.

CJS is criminal cases

Rosynsky 11 – Quoting a Criminal Law Professor at Loyola
Laurie Levenson, Professor of Criminal Law at Loyola Law School in LA, Quoted by Paul T. Rosynsky,
Reporter-Oakland Tribune, San Jose Mercury News (California), 2011, Lexis

The handling of their court cases highlights a necessary, but some say troubling, aspect of the criminal
justice system , which is forced to process thousands of criminal cases a year with dwindling
resources.
 Reform (General)
Reform means to correct a wrong
Elia 12 (Judge Franklin D. Elia, McDonough v. Superior Court, 204 Cal. App. 4th 1169 Court of Appeal
of California, Sixth Appellate District, April 10, 2012)
The online Oxford reference dictionary defines the verb “reform” as meaning to “make or become better
by the removal of faults and errors,” to correct, or to “abolish or cure (an abuse or malpractice).” The noun
“reform” is defined as an “improvement” or “ the removal of faults or abuses , esp. of a moral or political
or social kind.” (Oxford American Dict. of Current English, Oxford University Press, 1999
<http://www.oxfordreference.com.ezproxy.lib.utah.edu/views/ENTRY.html?
subview=Main&entry=t21.e25558>.) The American Heritage Dictionary uses similar definitions: “To
improve by alteration, correction of error, or removal of defects; put into a better form or condition. … To
abolish abuse or malpractice … . To put an end to (a wrong). … A change for the better; an improvement.
… Correction of evils, abuses, or errors … .” [***12] (American Heritage Dict. 3d ed 1997), p. 1147.)
The Random House Dictionary likewise defines the noun “reform” as “the improvement or amendment of
what is wrong, corrupt, unsatisfactory , etc.” (Random House Dict. of the English Language (2d ed.
1987) p. 1621.)

Reform means diminishing defects

WKB Law Dictionary ND (The Wolters Kluwer Bouvier Law Dictionary, “Reform,” The Wotlers
Kluwer Bouvier Law Dictionary, No Date, https://advance-lexis-com.ezproxy.lib.utah.edu/api/document?
collection=analytical-materials&id=urn:contentItem:5FXB-8NR0-011T-Y466-00000-00&context=1516831)
Improvement, correction, or restoration. Reform is a process by which a person, idea, document,
institution or anything else is made better , or by which its defects are diminished . Reform has a
particular sense in which the person or thing improved is corrected and brought closer to its former or
natural condition . Law reform and other arenas of institutional reform suggest the improvement of the
efficiency and effectiveness with which legal institutions and legal rules give effect to the goals of the law,
as those goals are understood by the reformers of that time and place.
 Reform Is a Process (Perm Do CP)

Reform is a process
Channell 10 – Senior Legal Reform advisor for USAID & career legal reform specialist
Wade Channell, JD, Senior Legal Reform advisor for the United States Agency for International
Development (USAID) and a career legal reform specialist, “GRAMMAR LESSONS LEARNED:
DEPENDENT CLAUSES, FALSE COGNATES, AND OTHER PROBLEMS IN RULE OF LAW
PROGRAMMING,” 72 U. Pitt. L. Rev. 171, 2010

The Problem of Collective Nouns

Collective nouns appear in the singular but are actually plural in nature: a "herd" of cows, a "flock" of
sheep. "Deer" may be singular or plural, depending on context. In addition to provoking American
consternation when The Economist's British editors pair plural verbs with superficially singular subjects
(e.g., "the team are expected to succeed"), collective nouns are also a problem for the rule of law
assistance.
Like the word "deer," the term "reform" may refer to one or many events. In development practitioner
parlance, it is often used to denote passage of a new law or regulation. For example, a development
professional in Mozambique noted that a project had accomplished a number of significant reforms, but
that they had not been implemented. The common lay person might wonder how a reform can be
successful without being implemented, but professionals understand. Unfortunately, the professionals are
wrong.
Reform is not an event; it is a process and a system. The UN definition of rule of law provides a strong
sample of the multifaceted nature of the concept, implying the existence of a complex system. Individual
events, such as adoption of new legislation, are significant only to the extent that adoption is part of such
a system and leads to implementation. In many developing countries, this is simply not the case, or at
least not for implementation of donor-mandated laws that are adopted on the basis of conditionality
without local buy-in.
The purpose of law is to structure socio-economic behavior. The purpose of reform is to change that
behavior , either by prohibiting existing behaviors or permitting new behaviors. A reform is successful
only when the targeted behavior has changed.
The problem of treating "reform" as a singular noun appears to arise from several sources. One of these
is the use of "law" as a proxy for the complex system that produces laws. In well developed participatory
governments, laws are passed as a result of participatory negotiation that leads to consensus on
solutions, which can then be converted to law and implemented through a wide array of agencies and
individuals that move into action whenever a law is passed. In such countries, it is common for negative
events to provoke an outcry of "we need a law" to rectify that. What is often forgotten is that the law will
only be produced after five to seven years of negotiations, public hearings, and revisions in most
democracies (or twelve years on average in the Netherlands), followed by years of adapting and adopting
existing systems to ensure implementation. "Reforming a law" sounds like a singular event, whereas
the reality is far different.
[*185]
Poor understanding of reform complexity, coupled with the demand for measurable outcomes by those
who fund reform projects, plus limited available funding come together to create the perfect conditions for
focusing on passage of legislation as a proxy for implementation of new policies. Unfortunately,
measurable reforms may not be the same as meaningful reforms.
Correcting this syndrome will take more than explaining the plural nature of the term "reform." It might be
helpful if practitioners could adopt new language, given how difficult it is to change underlying perceptions
of a term. It would be far better to focus on the "reform process" or the "reform system." This process
incorporates four distinct stages, with numerous participants at each stage. It begins with (1) problem
identification, which leads to (2) policy formulation (often expressed through law or regulation). Once the
policy is in place, it must be (3) implemented, and the implementation must be (4) monitored and
evaluated. This often results in identification of new problems, and the cycle begins again to refine the
outcomes. 24Link to the text of the note
Today, "reform" identifies only one subset of the process-passing a law. Changing the language will
change the focus. And changing the focus should lead to far greater positive impact.
 Sentencing Reform
Sentencing reform contextually should be understood as REDUCING the
sentences for a large number of federal crimes
Head 19 – Executive director of the Faith & Freedom Coalition
Tim Head, Federal criminal justice reform is now law: What comes next?, 2019,
https://thehill.com/opinion/criminal-justice/427087-federal-criminal-justice-reform-is-now-law-what-comes-
next

The justice reform movement recently celebrated its crowning achievement at the federal level as
President Donald Trump signed the, Formerly Incarcerated Reenter Society Transformed Safely
Transitioning Every Person (First Step) Act. The FIRST STEP Act is the culmination of a ten year
bipartisan, bicameral push for reform and represents the most substantive federal justice reform in a
generation.
Just as Justice Brandeis described, a national change was possible because states such as Texas,
Georgia, and South Carolina led the way to enact effective reforms that made the public safer, saved
taxpayer dollars, and reduced the revolving door of incarceration.
Since 2007, more than 30 states have passed reforms designed to prioritize prison beds for more serious
offenders, reduce incarceration , reduce recidivism rates, and contain costs. States have achieved
excellent results that federal reform hopes to emulate with the implementation of the FIRST STEP Act.
For example, Texas saved its taxpayers over $2 billion while dropping its crime rate to its lowest level
since 1968.
These results finally proved to members of Congress and the Trump administration that similar results
were possible within the federal system. Now that the FIRST STEP Act is law, the question becomes
what is next at the federal level and what policy innovations can state governments develop to continue
the national momentum toward a more efficient and effective justice system.
The next order of business for implementation of federal reform is for the U.S. Senate to confirm William
Barr as Attorney General of the United States. As Attorney General, Barr and his appointed lieutenants
would be responsible for selecting a new director for the federal Bureau of Prisons and ensuring that the
Bureau accurately administers the codified risk assessment system for low-level, non-violent offenders
who are eligible for release, and provide these inmates with the programs to help them safely and
successfully re-enter society upon their release.
While the sentencing reforms contained in the FIRST STEP Act were secondary to the prison reforms that
are to be administered by the Department of Justice, further sentencing improvements are possible
through the U.S. Sentencing Commission. The independent Sentencing Commission issues guidelines for
sentencing in all federal criminal cases.
Today, the Commission lacks a quorum to function in its duties to administer federal sentencing laws. The
acting chair, Judge William Pryor of the Eleventh Circuit U.S. Court of Appeals is currently awaiting
renomination by the White House and confirmation by the Senate. By once again making Judge Pryor the
chair of the commission, the Trump administration and the Senate can follow through on the promises
made by the passage of the FIRST STEP Act.
These nominations are necessary to ensure proper implementation of the provisions contained in the
FIRST STEP Act and are essential to ensure the reforms championed by President Trump and reform
leaders in Congress are delivered. However, despite the “ah-hah” moment that the federal government
realized with the passage of the FIRST STEP Act, states must continue to lead the way as they have
done for the past decade.
Many states have joined the chorus of justice reform begun by Texas, Georgia and South Carolina.
Ohio recently passed legislation to seal certain low-level criminal records and promote drug and alcohol
treatment programs s alternatives to prison. In Pennsylvania, Governor Tom Wolf (D) signed the nation’s
first "Clean Slate” law to seal records of offenders convicted of low-level, nonviolent misdemeanor
offenses who do not incur further criminal charges over ten years.
Pennsylvania also removed one of the most challenging barriers for ex-offenders to safely and
successfully re-enter society by eliminating automatic suspensions of driver’s licenses for low-level
offenses. Kentucky Governor Matt Bevin and the state legislature enacted reforms to make it possible
for former low-level inmates to attain occupational permits o they can work to support themselves and
their families and turn away from crime.
The momentum achieved by state-level reforms made the FIRST STEP Act possible at the federal level.
States that have been slow to move have example after example of successful improvements in other
states. And now, in light of what President Trump and Congress have done to make the justice system
more efficient and effective, it is vital to continue the cycle of reform across the country which has made
our communities safer and restored lives at all levels.
Our entire nation can achieve greater public safety and justice outcomes through sensible sentencing
reforms that reduce a large number of federal crimes and implementation of recidivism reduction
programs such as mental health and substance abuse treatment, job and educational training programs,
and the breaking down barriers to employment for those with a criminal record.
The federal government and the states can continue to work together to end the vicious cycle of
incarceration and make it possible for ex-offenders to earn back the public’s trust by returning home as
good spouses, parents, and neighbors.
In the United States
 1NC In the US=Geographic
The “United States” geographically refers to the fifty states, Puerto Rico, Guam,
the Virgin Islands, and the Mariana Islands, and “in” means within—Jurisdiction
alone is not enough
IJ 13 – Immigration Judge, Houston
MEMORANDUM AND DECISION OF THE IMMIGRATION JUDGE (abbrev’d “IJ” by the Court) of the US
DOJ Executive Office for Immigration Review Immigration Court at Houston Service Processing Center in
Houston, In the Matter of Jermaine Amani THOMAS, December 2013, via
https://www.cocklelegalbriefs.com/wp-content/uploads/2016/01/32159-pdf-Crain.pdf

Respondent argues that his birth in a U.S. military hospital on a U.S. military base to a U.S. citizen father
qualifies as birth in the “United States ,” rendering him a United States citizen at birth. Id at 9- 15.
The Fourteenth Amendment of the U.S. Constitution and INA § 301(a) state that a person born in the
United States, and subject to the jurisdiction thereof, is a national and citizen of the United States. U.S.
Constitution, Amendment XIV; INA § 301(a). According to INA § 101(a)(38), “when used in a
geographical sense , [‘ United States’ ] means the continental United States, Alaska, Hawaii, Puerto
Rico, Guam, and the Virgin Islands of the United States, and the Commonwealth of the Northern
Mariana Islands .” INA § 101(a)(38).
Respondent was born in Germany . Exh 7. Based on a straightforward reading of the statutory
definition of “United States ,” Respondent was not born in the United States, and therefore, is not a
United States national or citizen by his location of birth. Moreover, the U.S. Department of State
Foreign Affairs Manual states that military installations are not part of the “United States ” within
the meaning of the Fourteenth Amendment:
Despite widespread popular belief , U.S. military installations abroad and U.S. diplomatic or consular
facilities abroad are not part of the United States within the meaning of the 14th Amendment. A child
born on the premises of such a facility is not born in the United States and does not acquire U.S.
citizenship by reason of birth.
Exh. 27 at 63. Respondent asserts that the term “military installation” is a general description, not including military hospitals. Respondent’s Memorandum at 14-15. According to an article submitted by DHS, the term “military installation” is defined to include:
A base, camp, post, station, yard, center, homeport facility or any ship, or any other activity under the jurisdiction of the department, agency, or other instrumentality of the Department of Defense, including a leased facility, except that such term shall not include any facility used primarily for civil works, rivers and harbor projects, or flood control projects.
Exh. 36. Respondent concedes that the hospital in which he was born was staffed by U.S. military personnel, and that the U.S. military exercised control over the hospital. Respondent’s Memorandum at 12. Consequently, the Court finds that the military hospital fell under the jurisdiction of the Department of Defense, and that the military hospital is included in the term “military installation” used in the Foreign Affairs Manual. Therefore, Respondent’s birth in a U.S. military hospital on a U.S. military base abroad does not equate
to birth in the United States.
The Court also observes that the U.S. Department of State Foreign Affairs Manual discusses the process for certifying the U.S. citizenship of a person born abroad to a U.S. citizen parent. According to the Foreign Affairs Manual, a “Consular Report of Birth Abroad of a Citizen of the United States of America” (“Report of Birth Abroad”) is a formal document certifying the acquisition of U.S. citizenship at birth by a person born abroad to a U.S. citizen parent, and “establishes a ‘prima facie case’ of U.S. citizenship.” Exh. 27 at 71.
A Report of Birth Abroad may be issued App. 39 upon submission of form DS-2029, “Application for Consular Report of Birth Abroad of a Citizen of the United States of America,” together with certain evidence, most importantly, “evidence of the U.S. citizen parent(s)’ physical presence or residence in the United States prior to the birth of the child.” Exh. 35. The instructions for the application specifically state that in the case of children born in U.S. military hospitals, the application must be signed before a designated military
official. The Court finds this to be further evidence that children born in U.S. military hospitals abroad do not automatically acquire United States citizenship. Such children must acquire United States citizenship by fulfilling other criteria.
Respondent argues that the submission of a Report of Birth Abroad is not required to confer citizenship at birth, and cites, as an example, to U.S. Senator John McCain, who was born on August 29, 1936, on a U.S. military base in the Panama Canal Zone to U.S. citizen parents. Respondent’s Memorandum at 6-9, 15 n.4. Respondent argues, essentially, that because Senator McCain is a United States citizen despite the fact that his parents did not apply for a Report of Birth Abroad, the absence of this document in
Respondent’s case has no legal consequence. Id at 15.
The Court does not rely on the mere existence of the State Department’s Report of Birth Abroad, a ministerial document, for the proposition that the Report itself grants citizenship or that its absence necessarily indicates a lack of citizenship. Rather, the App. 40 Court considers the instructions accompanying the Report of Birth Abroad as somewhat probative of whether children born in military hospitals abroad are U.S. citizens by virtue of the location of their birth. The Court agrees that a foreign-born person may be a citizen
regardless of whether his parents filed an application for a Report of Birth Abroad.
In regard to the analogy to Senator McCain, the Court observes that the legal basis for Senator McCain’s citizenship is different from Respondent’s. Senator McCain was born to two U.S. citizen parents,1 and consequently acquired United States citizenship pursuant to INA § 301(c). Additionally, at the time of Senator McCain’s birth, INA § 303(a) specifically granted citizenship at birth to children born in the Panama Canal Zone to a U.S. citizen parent. Respondent was not born to two U.S. citizen parents and he was not
statutorily granted citizenship at birth by virtue of his birth in Germany.

Respondent also asserts that because the U.S. had sovereign control over the military hospital in
which he was born, the military hospital was part of the U.S. , and, therefore, he was automatically a
United States citizen at birth. Respondent’s Memorandum at 11-12. Respondent notes that the hospital is
staffed by U.S. military members. Id. at 12. The Amicus brief further observes that the hospital performed
a circumcision on Respondent, a surgery which the German population allegedly disapproves of, and that
the form explaining the circumcision procedure was written in American English. Amicus Curiae Brief in
Support of Respondent’s Claim to Citizenship at Birth at 7-8 (Nov. 21, 2013).
In support of his argument that sovereign control of the military hospital renders the military hospital part
of the United States, Respondent cites to Boumediene v. Bush, 553 U.S. 723 (2008) (holding that
prisoners at the U.S. detention facility in Guantanamo Bay have the right to habeas corpus review, in part
because the U.S. exerts de facto sovereignty over the detention facility), and Reid v. Covert, 354 U.S. 1,
19 (1957) (holding that U.S. citizen civilians living on military bases abroad are entitled to the
constitutional safeguards of a civil trial, and that the Uniform Code of Military Justice does not apply to
limit the rights of U.S. citizen civilians living on U.S. military bases abroad). Respondent’s Memorandum
at 9-12. However, Boumediene and Reid are not controlling, as they considered entirely different
questions than those present before this Court. Boumediene and Reid involved the right to habeas corpus
review and the right to the procedural safeguards of a civil trial, not citizenship. Furthermore, although the
U.S. did exert some level of control over the military hospital, Germany retained de jure sovereignty,
which, in the immigration context, is App. 42 especially significant. The Court also observes that the Third
Circuit, in an unpublished decision, rejected reliance on Boumediene for the proposition that birth on the
U.S. military installation at Guantanamo Bay confers U.S. citizenship, finding it relevant that Cuba retains
de jure sovereignty over Guantanamo Bay. Williams v. Attorney General, 2012 WL 120150 at *152 (3rd
Cir. 2012). Germanely, the Third Circuit also relied on the Department of State Foreign Affairs Manual,
which, again, states that military installations are not part of the United States within the meaning of the
Fourteenth Amendment. Id.; Exh. 27. Consequently, the Court finds that alleged de facto control over
the military hospital in which Respondent was born does not establish that Respondent was “born” in
the United States.

Both legal precision and plain meaning support our Interp—Excludes the AFF
Mendelson 17 – Associate at MLB, Former Law Clerk at US Court of Appeals for the 5th Circuit
Benjamin Wallace Mendelson, JD w/ honors-U of Texas School of Law, Associate at Morgan, Lewis &
Bockius LLP, Former Law Clerk at United States Court of Appeals for the Fifth Circuit and the US District
Court for the District of New Mexico, Courts Have Gone off the Map: The Geographic Scope of the
Citizenship Clause, 95 Tex. L. Rev. 873 (2017),
https://texaslawreview.org/wp-content/uploads/2017/03/Mendelson.pdf

The Citizenship Clause of the Fourteenth Amendment has certainly generated controversy over the past
several years. Scholars have now debated for decades whether the Citizenship Clause grants birthright
citizenship to children of illegal immigrants1 as well as what certain dicta in the Supreme Court’s Wong
Kim Ark2 case means. But this Note is not about that controversy. In all of the debates surrounding
birthright citizenship, it appears that a small, yet critical, piece of the Citizenship Clause has been
overlooked. The Clause reads: “All persons born or naturalized in the United States , and subject to the
jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”3 Few courts,
however, have paused to consider what the phrase “in the United States” means because it seems
so obvious . At first glance , everyone knows what that phrase must mean . We all looked up at the
map of America from our desks in elementary school, the teacher pointed to the states, we memorized
them, we took our exams, and that was the end of it. Recently, however, some courts have had to
consider the geographical scope of the phrase “in the United States.” 4
[FN 4]
4.E.g., Thomas v. Lynch, 796 F.3d 535, 538 (5th Cir. 2015) (considering whether petitioner born on a U.S.
military base in what is now Germany was born “in the United States” for purposes of the Fourteenth
Amendment), cert. denied, 136 S. Ct. 2506 (2016); Tuaua v. United States, 788 F.3d 300, 302 (D.C. Cir.
2015) (considering whether American Samoa is “in the United States” for purposes of the Citizenship
Clause), cert. denied, 136 S. Ct. 2461 (2016); Nolos v. Holder, 611 F.3d 279, 284 (5th Cir. 2010) (holding
that persons born in the Philippines during its status as a U.S. territory were not born “in the United
States” under the Fourteenth Amendment and citing Rabang v. INS, 35 F.3d 1449 (9th Cir. 1994)); Lacap
v. INS, 138 F.3d 518, 519 (3d Cir. 1998) (per curiam) (following Rabang and denying birthright citizenship
to persons born in the Philippines during the territorial period); Valmonte v. INS, 136 F.3d 914, 920 (2d
Cir. 1998) (holding that persons born in the Phillipines during its time as a U.S. territory are not U.S.
citizens, relying on Rabang); Rabang v. INS, 35 F.3d 1449, 1454 (9th Cir. 1994) (concluding that “persons
born in the Philippines during the territorial period were not ‘born . . . in the United States,’ within the
meaning of the Citizenship Clause of the Fourteenth Amendment, and are thus not entitled to citizenship
by birth”).
[End FN]
They have ruled that an American military base in Germany ,5 American Samoa ,6 and the
Philippines at the time it was a U.S. territory 7 are not “in the United States” for the purposes of the
Fourteenth Amendment. Despite the fact that where the United States ends and another sovereign
begins is a serious constitutional issue and has obvious implications for the American immigration
system, the Supreme Court this past term denied certiorari on this question.8
 2NC Interp
Even total US sovereignty doesn’t put a place “in the United States”—Slew of
court precedents establish a clear geographic distinction. The AFF’s interp
explodes the caselist, and also makes drawing a coherent, precise limit
impossible
5th Circuit 15 – United States Court of Appeals for the Fifth Circuit
Thomas v. Lynch, 796 F.3d 535, 538 (5th Cir. 2015), Jermaine Amani THOMAS, also known as Jermaine
Thomas, Petitioner v. Loretta LYNCH, U.S. Attorney General, Respondent, Decided: August 07, 2015,
https://caselaw.findlaw.com/us-5th-circuit/1710350.html

“In reaching their holdings, the courts found guidance from the Supreme Court's Insular Cases
jurisprudence on the territorial scope of the term ‘the United States' as used in the Citizenship
Clause of the Fourteenth Amendment.” Id. (citing Valmonte, 136 F.3d at 918–19; Rabang, 35 F.3d at
1452).3 In the Insular Cases , the Supreme Court “created the doctrine of incorporated and
unincorporated Territories.” Examining Bd. of Eng'rs, Architects & Surveyors v. Flores de Otero, 426
U.S. 572, 599 n. 30 (1976). Incorporated Territories “encompassed those Territories destined for
statehood from the time of acquisition , and the Constitution was applied to them with full force ,”
while unincorporated Territories were not destined for statehood and only “fundamental
constitutional rights were guaranteed to the inhabitants.” Id. (internal quotation marks omitted). As
relevant here, the Court's decision in Downes v. Bidwell, 182 U.S. 244 (1901), one of the Insular
Cases, “ was derived in part by analyzing the territorial scope of the Thirteenth and Fourteenth
Amendments.” Valmonte, 136 F.3d at 918. In Downes, the Court held that Puerto Rico was “not a
part of the United States within the revenue clauses of the Constitution.” Downes, 182 U .S. at 287. The
Court noted that the Thirteenth Amendment prohibits slavery and involuntary servitude “ within the
United States, or any place subject to their jurisdiction .” Id. at 251 (quoting U .S. Const. amend. XIII, §
1 (emphasis added)). The “ disjunctive ‘or’ in the Thirteenth Amendment demonstrates that ‘ there
may be places within the jurisdiction of the United States that are no[t] part of the Union’ to which
the Thirteenth Amendment would apply.” Valmonte, 136 F.3d at 919 (quoting Downes, 182 U.S. at 251).
Conversely , the Fourteenth Amendment “is not extended to persons born in any place ‘subject to [the
United States'] jurisdiction .’ “ Downes, 182 U.S. at 251. Instead , citizenship under the Fourteenth
Amendment is “ limited to those born or naturalized in the states of the Union .” Nolos, 611 F.3d at 283
(citing Rabang, 35 F.3d at 1452–53). In fact, the Citizenship Clause of the Fourteenth Amendment, like
the Revenue Clause, “ ‘has an express territorial limitation which prevents its extension to every
place over which the government exercises its sovereignty .’ “ Id . (quoting Rabang, 35 F.3d at
1453). Therefore, we held that “ ‘[ i]t is ․ incorrect to extend citizenship to persons living in United States
territories simply because the territories are subject to the jurisdiction or within the dominion of
the United States, because those persons are not born “ in the United States ” within the meaning of
the Fourteenth Amendment.’ “ Id. at 283–84 (alteration in original) (internal quotation marks omitted)
(quoting Valmonte, 126 F.3d at 920); see also Rabang, 35 F.3d at 1453; Lacap, 138 F.3d at 519.4 We are
bound by our decision in Nolos.
Accordingly , regardless of whether the treaties applicable to the military base in which Thomas was
born rendered it “ subject to the jurisdiction or within the dominion of the United States,” such a base
was not “in the United States” for purposes of the Fourteenth Amendment. See id. at 283–84 (internal
quotation marks omitted) (citing Valmonte, 126 F.3d at 920; Rabang, 35 F.3d at 1453; Lacap, 138 F.3d at
519).5 Having already determined that the Philippines, which was “under the complete and absolute
sovereignty and dominion of the United States ” during its time as a United States territory, The
Diamond Rings, 183 U.S. 176, 179 (1901), was not “in the United States ” for Fourteenth Amendment
purposes, we decline to hold that a military base located in Germany qualifies as such, Nolos, 611
F.3d at 284; see also Friedrich v. Friedrich, 983 F.2d 1396, 1401 (6th Cir.1983) (explaining that a different
military base in Germany “is not sovereign territory of the United States.”); Rabang, 35 F.3d at 1452 (“In
the Insular Cases the Supreme Court decided that the territorial scope of the phrase ‘the United
States' as used in the Constitution is limited to the states of the Union .” (footnote omitted)). As we
held in Nolos, the Fourteenth Amendment's grant of birthright citizenship contains an express
geographical limitation , which does not encompass the military base where Thomas was born.
Accordingly, because Thomas was not born “in the United States” for purposes of the Fourteenth
Amendment, he is not a birthright citizen.6

And, Scholarly consensus

5th Circuit 15 – United States Court of Appeals for the Fifth Circuit
Thomas v. Lynch, 796 F.3d 535, 538 (5th Cir. 2015), Jermaine Amani THOMAS, also known as Jermaine
Thomas, Petitioner v. Loretta LYNCH, U.S. Attorney General, Respondent, Decided: August 07, 2015,
https://caselaw.findlaw.com/us-5th-circuit/1710350.html

Furthermore, scholars who have addressed the issue agree that “ contrary to popular belief , birth in
․ United States military facilities, does not result in United States citizenship in the absence of another
basis for citizenship.”7 Sarah Helene Duggin & Mary Beth Collins, ‘Natural Born’ in the USA: The Striking
Unfairness and Dangerous Ambiguity of the Constitution's Presidential Qualifications Clause and Why We
Need to Fix It, 85 B .U. L.Rev. 53, 103 (2005); see also Charles Gordon et al., Immigration Law and
Procedure § 92.03(d) (rev. ed. 2010) (“The far-flung foreign interest and operations of the United States ․
may also raise questions concerning the status of children born in U.S. installations in foreign countries. It
seems quite clear that such installations cannot be regarded as part of the United States for
purposes of the Fourteenth Amendment․”); Allan Erbsen, Constitutional Spaces, 95 Minn. L.Rev. 1168,
1195 n. 101 (2011) (“Few commentators have considered whether birth on a U.S. military base located
within a foreign country would constitute birth ‘in’ the United States for purposes of the Fourteenth
Amendment. The consensus is that such births would not confer automatic citizenship.”). The
commentary by these scholars supports our conclusion that the military base where Thomas was born
was not “in the United States ” for Fourteenth Amendment purposes.
 --Ext-AT: Jurisdiction
Jurisdiction is wholly irrelevant, because the phrase “in the United States”
establishes an express geographic limit—Most literal interp, and also supported
by all case law
Peterson 16 – Partner-Morgan Lewis LLP
Charles R. Flores, Counsel of Record, William R. Peterson, Beck Redden LLP, Thomas v. Lynch, Petition
for Writ of Certiorari, SCOTUS, 2016
https://www.cocklelegalbriefs.com/wp-content/uploads/2016/01/32159-pdf-Crain.pdf

Before the Fifth Circuit, Thomas once again argued that “the military base . . . where he was born was
‘ in the United States’ for purposes of the Fourteenth Amendment.” App. 7a. He rooted this position in
multiple lines of authority, including United States v. Wong Kim Ark, 169 U.S. 649 (1898), 5 Reid v.
Covert, 354 U.S. 1 (1957), and Boumediene v. Bush, 553 U.S. 723 (2008).
The Fifth Circuit issued a precedential opinion deciding “ whether a United States military base
located within what is now Germany was ‘in the United States’ for purposes of the Fourteenth
Amendment.” App. 4a. The opinion correctly noted that “Thomas was not a statutory birthright citizen
because his father did not meet the physical presence requirement of the statute in force at the time of
Thomas’s birth.” App. 6a. It recognized the constitutional question as being dispositive: “If Thomas
derived birthright citizenship from the Fourteenth Amendment, we must grant his petition for review
because only aliens can be deported.” App. 5a.
The Fifth Circuit denied the petition for review by deciding that “Thomas is not a citizen, because the
United States military base where he was born, which is located in modern-day Germany, was not ‘in
the United States’ for purposes of the Fourteenth Amendment.” App. 5a. The decision rests on several
key holdings about the Citizenship Clause’s geographic reach .
First, the Fifth Circuit defined the Citizenship Clause in a literal way , without considering its original
meaning at the time of enactment. It held that the Citizenship Clause’s phrase “in the United States” is
an unambiguous “express geographical limitation , which does not encompass the military base
where Thomas was born.” App. 11a-12a. 6
Second, the Fifth Circuit held that two of this Court’s decisions play no role whatsoever in defining the
Citizenship Clause’s reach: United States v. Wong Kim Ark, 169 U.S. 649 (1898), and Reid v. Covert, 354
U.S. 1 (1957). Each received close attention.
Wong Kim Ark construed the Citizenship Clause at length and understood it to incorporate “jus soli” – an
established common law of citizenship principles defining the right’s territorial reach in terms of birthplace
(as opposed to parental identity). Wong Kim Ark, 169 U.S. at 654-693. But because of the Fifth Circuit’s
literal reading, it dismissed Wong Kim Ark as “inapposite.” App. 13a-14a.
By rejecting Wong Kim Ark and jus soli, the Fifth Circuit refused to consider the United States’
“ jurisdiction” or “dominion.” App. 7a-12a. It thus disregarded as irrelevant the issue of “whether the
treaties applicable to the military base in which Thomas was born rendered it ‘ subject to the jurisdiction
or within the dominion of the United States.’ ” App. 10a-11a.
 --Excludes Bases/Territories
Decisively excludes military bases & territories—Sovereignty alone is not enough
5th Circuit 15 – United States Court of Appeals for the Fifth Circuit
Thomas v. Lynch, 796 F.3d 535, 538 (5th Cir. 2015), Jermaine Amani THOMAS, also known as Jermaine
Thomas, Petitioner v. Loretta LYNCH, U.S. Attorney General, Respondent, Decided: August 07, 2015,
https://caselaw.findlaw.com/us-5th-circuit/1710350.html

This case requires us to determine whether a United States military base located within what is now
Germany was “ in the United States ” for purposes of the Fourteenth Amendment. The answer to this
question is decisive because the Fourteenth Amendment grants birthright citizenship to “[a]ll persons
born ․ in the United States, and subject to the jurisdiction thereof.” U.S. Const. amend. XIV, § 1; see also
Schneider v. Rusk, 377 U.S. 163, 166 (1964) (explaining that “the rights of citizenship of the native born
derive from § 1 of the Fourteenth Amendment”). If Thomas derived birthright citizenship from the
Fourteenth Amendment, we must grant his petition for review because only aliens can be deported. See 8
U.S.C. § 1227(a). If he is in fact not a citizen, the petition for review must be denied because it is
undisputed that he is otherwise deportable as an aggravated felon. See 8 U.S.C. § 1227(a)(2)(A)(iii). After
a careful review of the decisions of the Supreme Court , other circuit courts of appeals , and our
own court , we hold that Thomas is not a citizen, because the United States military base where he
was born, which is located in modern-day Germany , was not “in the United States ” for purposes of
the Fourteenth Amendment.
“There are two sources of citizenship, and two only: birth and naturalization.” Bustamante–Barrera v.
Gonzales, 447 F.3d 388, 394 (5th Cir.2006) (internal quotation marks omitted). “Within the former
category, the Fourteenth Amendment of the Constitution guarantees that every person ‘born in the United
States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs
no naturalization.’ “ Miller v. Albright, 523 U.S. 420, 423–24 (1998) (quoting United States v. Wong Kim
Ark, 169 U.S. 649, 702 (1898)). “Persons not born in the United States acquire citizenship by birth only as
provided by Acts of Congress.” Id. At the time of Thomas's birth, Congress extended birthright citizenship
to children born abroad to one citizen parent and one alien parent, as long as the citizen parent met
certain physical-presence requirements. See 8 U.S.C. 1401(g) (1982), amended by Pub.L. No. 99–653, §
12, 100 Stat. 3655, 3657 (Nov. 14, 1986). Thomas was born on a United States military base located
within the territorial boundaries of modern-day Germany. His father was a naturalized United States
citizen serving in the United States military and his mother was an alien. However, it is undisputed that
Thomas was not a statutory birthright citizen because his father did not meet the physical presence
requirement of the statute in force at the time of Thomas's birth.1 Id. Consequently, Thomas must rely on
the Fourteenth Amendment, which provides, in relevant part, that “[a]ll persons born ․ in the United
States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein
they reside,” U.S. Const. amend. XIV, § 1, to sustain his claim that he is a birthright citizen. Thomas
contends that the military base located in modern-day Germany where he was born was “in the United
States” for purposes of the Fourteenth Amendment. We disagree.
We have not previously decided whether a military base located abroad qualifies as “in the United States”
for Fourteenth Amendment purposes. However, we have addressed whether a person derived United
States citizenship from his parents, who he claimed “became United States citizens at birth because they
were born in the Philippines when the country was a United States territory.” Nolos v. Holder, 611 F.3d
279, 282 (5th Cir.2010) (per curiam). In that case, we were required to determine whether the Philippines
was “in the United States” for Fourteenth Amendment purposes. Id. at 282. For guidance, we looked to
the Second, Third and Ninth Circuits , which had previously “held that birth in the Philippines at a
time when the country was a territory of the United States does not constitute birth ‘in the United
States' under the Citizenship Clause, and thus did not give rise to United States citizenship.” Id. (citing
Lacap v. INS, 138 F.3d 518, 518–19 (3d Cir.1998); Valmonte v. INS, 136 F.3d 914, 915–21 (2d Cir.1998);
Rabang v. INS, 35 F.3d 1449, 1450–54 (9th Cir.1994)).2 Underlying those circuits' conclusion was the
recognition that “the Citizenship Clause of the Fourteenth Amendment did not, without more, include
United States territories simply because the territories were subject to the jurisdiction or within the
dominion of the United States.” Id. (internal quotation marks and brackets omitted).
 AT: But the Constitution applies
Irrelevant! Whether Constitutional limits do or should apply abroad and what the
territorial scope of the term ‘in the US’ are two totally separate questions
5th Circuit 15 – United States Court of Appeals for the Fifth Circuit
Thomas v. Lynch, 796 F.3d 535, 538 (5th Cir. 2015), Jermaine Amani THOMAS, also known as Jermaine
Thomas, Petitioner v. Loretta LYNCH, U.S. Attorney General, Respondent, Decided: August 07, 2015,
https://caselaw.findlaw.com/us-5th-circuit/1710350.html

Thomas likewise does not find support in the recent decision of the Court of Appeals for the District of
Columbia Circuit in Tuaua v. United States, 788 F.3d 300 (D.C.Cir.2015). In Tuaua, the D.C. Circuit was
asked whether the Citizenship Clause of the Fourteenth Amendment affords birthright citizenship to
individuals born in American Samoa. Id. at 301. In order to answer this question, the D.C. Circuit
considered at length “whether the circumstances are such that recognition of the right to birthright
citizenship would prove ‘impracticable and anomalous,’ as applied to contemporary American Samoa.” Id.
at 309 (quoting Reid, 354 U.S. at 74 (Harlan, J., concurring)). Ultimately, the D.C. Circuit held that it was
“anomalous to impose citizenship over the objections of the American Samoan people themselves, as
expressed through their democratically elected representatives.” Id. at 310. We are not convinced that
Reid requires us to consider whether it would be “impracticable and anomalous” to recognize a right to
birthright citizenship to those born on military bases located abroad. Reid was concerned with what
“constitutional limitations apply to the Government when it acts outside the continental United
States.” 354 U.S. at 8. Here, we are not concerned with any of the Constitution's limitations on the
federal or state governments; rather , we are concerned with the “territorial scope of the term ‘in the
United States' as used in the Citizenship Clause of the Fourteenth Amendment.” Nolos, 611 F.3d at 282.
“We note that the territorial scope of the phrase ‘the United States' is a distinct inquiry from whether
a constitutional provision should extend to a territory.” Rabang, 35 F.3d at 1453 n. 8 (citing Downes,
182 U.S. at 249). Given that we have already determined that “the Citizenship Clause has an express
territorial limitation which prevents its extension to every place over which the government
exercises its sovereignty ,” Nolos, 611 F.3d at 283 (internal quotation marks omitted), we decline to
engage in a functional inquiry as to the scope of the Citizenship Clause. Therefore, Tuaua does not
change our conclusion that Thomas was not born “ in the United States ” for Fourteenth Amendment
purposes.8
 AT: Wong Kim Ark
Shoddy legal work—Wong Kim Ark is wholly inapposite to the question of the
geographic scope of the phrase “in the US”
5th Circuit 15 – United States Court of Appeals for the Fifth Circuit
Thomas v. Lynch, 796 F.3d 535, 538 (5th Cir. 2015), Jermaine Amani THOMAS, also known as Jermaine
Thomas, Petitioner v. Loretta LYNCH, U.S. Attorney General, Respondent, Decided: August 07, 2015,
https://caselaw.findlaw.com/us-5th-circuit/1710350.html

Thomas cites the Supreme Court's decision in United States v. Wong Kim Ark , to support his position.
There, the Supreme Court was asked to decide “whether a child born in the United States, of parents of
Chinese descent ․ becomes at the time of his birth a citizen of the United States, by virtue of the first
clause of the fourteenth amendment of the constitution.” Wong Kim Ark, 169 U .S. at 653. However,
Wong Kim Ark is inapposite. As we explained in Nolos, “the question of the territorial scope of the
Citizenship Clause of the Fourteenth Amendment was not before the Court in Wong Kim Ark.” Nolos, 611
F.3d at 284. This is because the fact that “the child was born in San Francisco was undisputed and it
was therefore unnecessary to define ‘territory’ rigorously or decide whether ‘ territory’ in its
broader sense (i.e. outlying land subject to the jurisdiction of this country) meant ‘in the United
States' under the Citizenship Clause.” Id. (internal quotation marks and brackets omitted). Accordingly,
Wong Kim Ark does not support Thomas's contention that the military base on which he was born was
“ in the United States ” for purposes of the Fourteenth Amendment.
 AT: Boumediene
Boumediene irrelevant—Speaks to the question of Constitutional limits, explicitly
NOT the geographic scope of the phrase “in the US”. BUT, even if—They still
don’t meet it!
IJ 13 – Immigration Judge, Houston
MEMORANDUM AND DECISION OF THE IMMIGRATION JUDGE (abbrev’d “IJ” by the Court) of the US
DOJ Executive Office for Immigration Review Immigration Court at Houston Service Processing Center in
Houston, In the Matter of Jermaine Amani THOMAS, December 2013, via
https://www.cocklelegalbriefs.com/wp-content/uploads/2016/01/32159-pdf-Crain.pdf

In support of his argument that sovereign control of the military hospital renders the military hospital part
of the United States, Respondent cites to Boumediene v. Bush, 553 U.S. 723 (2008) (holding that
prisoners at the U.S. detention facility in Guantanamo Bay have the right to habeas corpus review, in part
because the U.S. exerts de facto sovereignty over the detention facility), and Reid v. Covert, 354 U.S. 1,
19 (1957) (holding that U.S. citizen civilians living on military bases abroad are entitled to the
constitutional safeguards of a civil trial, and that the Uniform Code of Military Justice does not apply to
limit the rights of U.S. citizen civilians living on U.S. military bases abroad). Respondent’s Memorandum
at 9-12. However, Boumediene and Reid are not controlling, as they considered entirely different
questions than those present before this Court. Boumediene and Reid involved the right to habeas
corpus review and the right to the procedural safeguards of a civil trial, not citizenship. Furthermore,
although the U.S. did exert some level of control over the military hospital, Germany retained de jure
sovereignty, which, in the immigration context, is App. 42 especially significant. The Court also observes
that the Third Circuit, in an unpublished decision, rejected reliance on Boumediene for the proposition
that birth on the U.S. military installation at Guantanamo Bay confers U.S. citizenship, finding it relevant
that Cuba retains de jure sovereignty over Guantanamo Bay . Williams v. Attorney General, 2012 WL
120150 at *152 (3rd Cir. 2012). Germanely, the Third Circuit also relied on the Department of State
Foreign Affairs Manual , which, again, states that military installations are not part of the United
States within the meaning of the Fourteenth Amendment. Id.; Exh. 27. Consequently, the Court finds
that alleged de facto control over the military hospital in which Respondent was born does not
establish that Respondent was “born” in the United States.
Sentencing
 Sentencing Defn – 1NC
Sentencing is the specific stage at/process by which people found guilty of
violating a criminal law have criminal sanctions imposed
Stobbs 10 – senior lecturer and Director of the Compassion Informed Law Research program at the
Queensland University of Technology Faculty of Law and member of the Queensland Law Reform
Commission
Geraldine Mackenzie, PhD, LLM, Professor & Vice-Chancellor of Bond University, Nigel Stobbs,
Queensland University of Technology, and Jodie O'Leary, Bond University, Principles of sentencing,
Federation Press: Annandale, NSW, 2010, https://epubs.scu.edu.au/research_pubs/156/

Sentencing of offenders is often described as a difficult task, requiring as it does the balancing of many
different factors; often disparate and sometimes inherently contradictory. Sentencing is defined as “ the
process by which people who have been found guilty of offending against the criminal law have
sanctions imposed upon them in accordance with the law” It is this task which is examined in this
book.
 --Not Prisons, etc.
Sentencing is exclusively step #8 out of 11 of the criminal justice process, while
policing is the first 3. The topic does NOT include anything to do with trials,
prisons, parole, care after release, etc.
Dolan et al. 17 – Prof in the Drug Research Center at UNSW
Nicholas Clark, in the Department of Mental Health and Substance Abuse at the World Health
Organization, Kate Dolan, Professor in the Programme of International Research and Training, National
Drug and Alcohol Research Center at the University of New South Wales, and David Farabee, Professor-
in-Residence of Psychiatry and Biobehavioral Sciences Semel Institute for Neuroscience and Human
Behavior, Geffen School of Medicine, Eastern Mediterranean Health Journal, 23.3,
http://applications.emro.who.int/emhj/v23/03/EMHJ_2017_23_03_222_230.pdf?ua=1&ua=1

Opportunities for treatment as an alternative to conviction and punishment can occur at many stages in
the criminal justice process , starting from initial police contact through to community reintegration
after prison . In the same way that treatment and care provided to people with drug use disorders outside
the criminal justice sector, treatment is usually as an outpatient, but may include residential therapeutic
care for those in need of such services.
Schemes within the criminal justice system that facilitate treatment and care as an alternative to
conviction or punishment fall into 4 broad areas depending on their location in the criminal justice
process: 1) police diversion schemes, cannabis caution schemes; 2) regular court and probation service
based schemes; 3) specialist problem-solving courts, including drug courts; and 4) early release/aftercare
of sentenced prisoners.
In combination with these schemes, interaction with the health care system and diversion away from the
criminal justice system can occur at numerous points : 1) pre-arrest (i.e. as an alternative to arrest);
2) police arrest ; 3) in police custody and police custody on suspicion of a criminal offence; 4) in the
pre-trial process; 5) during the trial process; 6) on sentencing ; 7) on entry to prison; 8) in prison ; 9)
on preparation for release from prison; 10) on release into the community, including while on parole ;
and 11) on leaving the criminal justice system (either on release from prison, or when the parole period
ends ).

Sentencing is exclusively the one step – Not arrest, arraignment, plea bargaining,
trial, or pre-sentencing
CSAT 5 – US Center for Substance Abuse Treatment in the SAMSHA
Treatment Issues in Pretrial and Diversion Settings, Ch. 7 in Substance Abuse Treatment for Adults in the
Criminal Justice System, No. 44 in the Treatment Improvement Protocol (TIP) Series, by the Center for
Substance Abuse Treatment of the United States Substance Abuse and Mental Health Services
Administration (SAMHSA), pub. 2005, https://www.ncbi.nlm.nih.gov/books/NBK64143/

The pretrial period of criminal justice processing is unique in that for most people it is brief and the
outcome is uncertain. Yet, it represents an opportunity to identify those who could benefit from substance
abuse treatment and begin to engage them in the process. Providing effective services at this early stage
of involvement with the criminal justice system can result in heightened motivation to seek treatment and
decreased recidivism.
After characterizing the population of arrestees, this chapter describes the processes of arrest ,
arraignment , plea bargaining , trial , presentencing , and sentencing . Diversion to treatment can
occur at several points during the pretrial phase. Several types of diversion, including drug treatment
courts, are discussed. The chapter continues with a discussion of some of the strategies that are effective
during the pretrial stage, as well as some of the issues that are specific to it. Some of the qualities of
effective pretrial and diversion programs are the next topic: the staff resources, training, coordination,
program components and procedures. Finally, the chapter describes several existing diversion programs
and lists resources, research findings, and conclusions.
 --Not Trial/Guilt Phase
Explicitly distinguished from the guilt phase of a trial
Kehl 17 – Associate at Covington & former Fellow at New America’s Open Technology Institute
Danielle Kehl, Associate at Covington & Burling LLP, former fellow at New America's Open Technology
Institute, Priscilla Guo, MSc in Social Science of the Internet, Harvard & Oxford, and Samuel Kessler,
Technology Consultant, Algorithms in the Criminal Justice System: Assessing the Use of Risk
Assessments in Sentencing, https://dash.harvard.edu/bitstream/handle/1/33746041/2017-
07_responsivecommunities_2.pdf

B.The Sentencing Process

Despite the complexity of using these instruments in sentencing, as noted above, states are increasingly
recommending or mandating their use. In this subsection we provide some context about how
sentencing works generally and how these risk scores are specifically being incorporated into that
process today.
A criminal sentencing typically unfolds as follows: after a defendant has been convicted , the judge or
sentencing authority requests a pre-sentence investigation report (PSI) with pertinent information about
the defendant’s life and background. This report is usually prepared by an officer of the court with a
background in social work—not a lawyer—and may include information about a defendant’s criminal
record, details from interviews with the defendant’s family, friends, and former employers, and other
personal and biographical details. From a legal standpoint, there are few restrictions on what this pre-
sentence investigation report may contain. Although strict rules govern what evidence can be
introduced during the guilt phase of a trial , at sentencing a judge is free to consider a wide range of
additional evidence without running afoul of a defendant’s right to due process.92 The rationale for the
distinction is that sentencing is not just about the narrow issue of guilt , but is also informed by a
defendant’s life and characteristics. In our system, not every offense in a particular legal category calls for
an identical punishment absent consideration of the past life, habits, and prior criminal record of a
particular offender.93
Once the pre-sentence investigation report has been compiled, it is provided to the judge for review.
Although the information in the PSI is generally made available to the defendant or his counsel as well,
certain information or parts of the report the report may be considered confidential and kept from the
defendant. The justification for this selective redaction is that the individuals speaking with the social
worker compiling the report may wish to do so in confidence, especially if they fear reprisal from the
defendant—and without a guarantee that the defendant will not be able to see that information, they might
be hesitant or altogether unwilling to talk, thereby reducing the amount of information upon which a judge
can base her sentencing decision.94 Once the judge receives the PSI and any additional evidence
presented at a sentencing hearing, she is free to use that information however she sees fit in making
a final determination .
 --Not Plea Bargaining
Plea bargaining is outside of sentencing—Happens at the prosecutorial stage
Etienne 7 – Professor of Law at U of Illinois
Margareth Etienne, Professor of Law, University of Illinois College of Law, and Jennifer K. Robbennolt,
Professor of Law and Psychology, University of Illinois College of Law, Apologies and Plea Bargaining, 91
Marq. L. Rev. 295 (2007), https://scholarship.law.marquette.edu/cgi/viewcontent.cgi?
article=1136&context=mulr

Despite the promising role that apologies could play in the criminal context, until recently, virtually no
criminal law scholars have seriously considered the role of remorse outside of the sentencing and
dispositional phase s of criminal adjudications. As Stephanos Bibas and Richard Bierschbach contend in
their recent essay, Integrating Remorse and Apology into Criminal Procedure, criminal procedure
neglects the power of remorse and apology by relegating it only to sentencing. 8 They criticize the limited
use of apology throughout the criminal justice process and insist that the lack of focus on remorse and
apology amounts to lost opportunities for victims, defendants, and their communities. As they put it,
apology: is a powerful ritual for offenders, victims, and communities, one that criminal procedure could
facilitate by encouraging offenders to interact face to face with their victims. The focus would broaden
beyond the individual offender's badness to constructive measures to heal offenders, victims, and
communities. Remorse and apology would teach offenders lessons, vindicate victims, and encourage
communities to welcome wrongdoers back into the fold. 1 9 Bibas and Bierschbach go beyond merely
contemplating the benefits of incorporating remorse and apology into other areas of the criminal process.
They also suggest a number of ways in which this can be put into practice.2 " Most notably, they argue
that apologies and expressions of contrition could play a much larger role in prosecutorial decisions to
dismiss charges or to divert cases for alternate resolutions,2 and presumably in prosecutors' decisions
to make other plea offers . Theoretically, encouraging apologies in earlier stages of the criminal law
process may be a laudable goal given what we know about apologies and their potential benefits to
victims, offenders, and communities. But empirically, the growing literature on apologies in psychology
and law raises important questions about whether apologies-when made prior to a determination of guilt-
would lead to more favorable results for the offender. In this paper, we begin to explore the assumptions
regarding the practicability of incorporating remorse and apology into criminal procedure at stages prior
to sentencing . We are intrigued by the argument that apologies could play a significant role in
prosecutorial charging and plea bargaining decisions. While there are many stages in the processing of
criminal cases, charging and plea bargaining 22 are arguably the most important. [FN 22] 22. In using
the term "plea bargaining ," we often mean to include charging decisions by prosecutors . While
charging and plea bargaining can be different and distinct processes, there is commonly significant
overlap. In many instances plea negotiations between prosecutors and defense attorneys occur well
before charging decisions are made. This is particularly true, although not uniquely so, in white-collar
offenses where the defendants are often made aware that they are being investigated well before they
are formally charged or indicted. In other instances, plea bargaining may involve dismissing some
offenses and recharging others. [End FN] Plea bargaining has emerged as the most ubiquitous 23 and
outcome-determinative 24 phase of the criminal prosecution. As George Fisher put it, "plea bargaining
has triumphed" as "it has swept across the penal landscape and driven our vanquished jury into small
pockets of resistance." 25 There are many reasons for this ascendance. Over the last several decades,
prosecutorial power has been on the rise in state 26 and federal courts.27 A prosecutor's charging
decisions, for instance, determine the outcome of a great many cases. Sentences are dictated by both
charging and plea decisions. Because approximately ninety-five percent of state criminal convictions
are obtained through guilty pleas ,' prosecutors exercise enormous power over a staggering number of
cases through plea bargains. Any significant change in the approach with which defendants and their
attorneys handle criminal cases-such as the incorporation of apologies-will inevitably take into account
the potential impact on plea bargaining. Thus, while taking seriously the claim that apologies might have a
beneficial role to play in criminal cases outside of sentencing , we find it unrealistic to expect that most
defendants would participate in remorse or apology rituals without regard to the effect of the apology on
the outcome of their criminal cases. Because most criminal cases are resolved with guilty pleas, one has
to examine the impact of apologies on guilty pleas, and on plea bargaining in particular, if there is any
hope of encouraging apologies prior to sentencing.
 --Can’t Increase Sentences
Must REDUCE sentences—Cannot WEAKEN the reforms by INCREASING
sentences, reducing the scope of exemptions, or inserting unrelated provisions
(otherwise, it’s neither “substantial” nor “CJR”.)
NYT 16 – Editorial Board of the New York Times
NYT Editorial Board, Holding Sentencing Reform Hostage, 2016,
https://www.nytimes.com/2016/02/07/opinion/sunday/holding-sentencing-reform-hostage.html

An opportunity to pass the most significant federal criminal justice reform in a generation may be
slipping away — despite the tireless efforts of many top Republicans and Democrats in Congress, as well
as a rare exhortation from President Obama during last month’s State of the Union address.
The bill, known as the Sentencing Reform and Corrections Act of 2015, is the product of years of
negotiation over how best to roll back the imprisonment spree of the past four decades, a period in which
the federal prison population grew from just under 25,000 to more than 195,000.
Among other features, the act would reduce absurdly long mandatory minimum sentences for many
nonviolent drug crimes, give judges more control over the terms of punishment and provide inmates
with more opportunities to get out early by participating in rehabilitation programs.
It has even won over Chuck Grassley, the chairman of the Senate Judiciary Committee, who has long
been among the biggest skeptics of sentencing reform but who is a key sponsor of the legislation.
So what’s the problem? There are two, in fact — and both are serious threats to the bill’s chances of
passage.
First, some congressional Republicans now say they will approve the bill only if it includes an across-the-
board change in federal law that would make corporations and their executives harder to prosecute for
environmental or financial crimes by imposing a new intent, or “mens rea,” standard on these crimes.
There is absolutely no reason for this provision to be stuck into this criminal justice reform bill. In nearly all
the time the bill was being negotiated and debated, the issue of intent standards was never part of the
discussion. But because criminal justice reform is one of the few things in Congress that has bipartisan
support, those pushing for the new standard — a mix of some congressional Republicans, corporate
interests and defense lawyers — decided it was a good vehicle for getting their measure through.
These proponents have not identified any specific laws that need fixing. If a change in intent standards is
as important as they say, they should introduce it as a stand-alone bill to be considered on its own merits.
But they don’t want to do that out of fear that it might not withstand closer scrutiny.
It is already very difficult to prosecute corporate wrongdoers. A report released late last month by Senator
Elizabeth Warren documented 20 cases from 2015 alone in which corporations or their executives broke
the law but got off with little or no punishment, even when people died as a result of the violations.
Speaking from the Senate floor on Wednesday, Ms. Warren called the push for the new intent provision
“shameful because we’re already way too easy on corporate lawbreakers.”
The other obstacle to the reform bill’s passage is old-fashioned scaremongering about the release of
“violent criminals” into the streets. This is simply not true: Most of the provisions are focused on low-level,
nonviolent drug offenders, who make up nearly half of all federal inmates.
Senator Ted Cruz is leading this attack on the new bill. Yet just last year he called mandatory minimum
drug sentences “unfair and ineffective,” and he sponsored reforms that would have reduce d those
sentences even more than the current bill does. Running for president on a hard-right platform has,
apparently, changed his mind.
The sentencing reform legislation is not perfect, but it represents remarkable progress in what is often a
harsh , oversimplified debate about crime and punishment in America. It should not be weakened ,
either by narrowing its reach or by sneaking in an unrelated mens rea provision .
Throughout all of this, red and blue states around the country continue to take big, bold steps to reduce
state prison populations by shortening sentences and giving inmates returning to society a real
chance to succeed. Congress should be racing to catch up.
Policing
 Policing Must be Narrow / Not “social control”
“Policing” can be defined narrowly as just the activities of per se police, or
broadly as any form of social regulation—Must do the former to prevent it
becoming a catch-all, gutting limits and predictability
Platts-Fowler 16 – Lecturer in Criminology, Victoria University of Wellington
Deborah Platts-Fowler, The University of Leeds School of Law, Centre for Criminal Justice Studies,
'Beyond the Riots' – Policing in Partnership to Prevent and Contain Urban Unrest, 2016,
http://etheses.whiterose.ac.uk/16063/1/THESIS%20FV_DPF.pdf

The distinction between police , police-work and policing is an important one for facilitating
understanding about the police role as it has evolved and currently exists in England and Wales. It is also
important for understanding the relationship of the police to other public authorities, both generally and in
the context of urban unrest. In Anglo-American societies, the term ‘ police’ refers to ‘a specialised body
of people given primary formal responsibility for legitimate force to safeguard security’ (Reiner
2010, pp.4–8). ‘Policing’, narrowly defined , refers only to the activities performed by the police , but
there is also a broader definition , which is used to signify social regulation , recognising the term’s
etymological link with politics and governance (Rowe 2013). To avoid policing becoming a catch-all
for every institution and activity contributing to social regulation , which might include schools and
schooling, Reiner (2010) practically suggests narrowing it down to ‘the creation of systems of
surveillance coupled with the threat of sanctions for discovered deviance’ (p5). Thus, what the police do is
policing, but other institutions, groups and roles also contribute to this activity.

Catastrophic limits & ground DA—Must hold the line.

Wisler 9 – PhD, Founder & Director of Coginta which has managed, designed, and implemented police
restructuring programs for many countries; & Professor of Administration of Justice-TSU
Edited by Dominique Wisler, standing member of security sector reform rosters of experts of the United
Nations Departement of Peacekeeping Operations, the United Nations Development Program, and the
Swiss Foreign Office, former professor in political sociology at the University of Geneva, he has published
widely in scientific reviews, and overseen police and Ministry of Interior restructuring programs in
countries including Afghanistan, Chad, Sudan, Iraq, Turkey, Mozambique, Haiti, Bosnia and Herzegovina,
the Occupied Territories of Palestine and the Democratic Republic of Congo, member of advisory
committees of academic associations (South Asia Association of Criminology), academic journals (Police
Practice and Research. An International Journal), and Editor of the Working Paper Series of the
International Police Executive Symposium, DCAF and Coginta, and Ihekwoaba D. Onwudiwe, Professor
of Administration of Justice in the Barbara Jordan-Mickey Leland School of Public Affairs at Texas
Southern University, Community Policing: International Patterns and Comparative Perspectives, CRC
Press (Taylor & Francis Group): Boca Raton, FL, 2009, Foreword, pp. xi-xii

In all cases, COP (or a related phrase) is the term used to describe what is being done, even though the
specifics of policing practices and the interactions of formal and informal social control are unique
and widely disparate from case to case . What to make of this?
The book, especially the introduction, raises a fundamental question: What should be the relationships
between the police, who are employed by the state, and informal or self-help forms of providing security?
The editors argue that COP can be viewed from the top-down as a state police-sponsored form of
participation by communities that is controlled, steered, and guided (despite the rhetoric of partnership)
by the police to protect and promote the goal and interests of the police . In contrast , COP from the
bottom-up , includes all the civic society forms of providing security , be these community efforts ,
informal vigilantism , or even corporate and private security . Whether top-down or bottom-up, all of
these are forms of policing and are based on various political justifications and influence. The
question is this: How do these two basic categories meet, or how do the police deal with informal policing
structures, and how does the community deal with the formal state police? Since informal policing
exists everywhere , in forms that reflect history and contexts, top-down and bottom-up will always meet,
clash, or cooperate, and have to be reconciled politically.
On a slightly critical note here, it is not clear that a bottom-up form of social control should be
called policing. That widens the conception of what constitutes policing so broadly that policing
itself becomes undefined . A more distinct language , which incorporates, but also differentiates ,
state-provided policing from informal social control , could use the language of security as a field of
action populated by many actors having different powers, legal status, and goals.
The chapters as a whole provide extensive empirical analyses of the policing problems and changes
faced within their case study countries, as well as sophisticated theoretical ruminations on the nature of
this set of practices called “policing,” of what constitutes “community,” and what constitutes the “state.” It
is a solid contribution to the expanding, and now vast, literature on COP, as well as a useful and
necessary corrective to the assumption that community policing can be understood in a general way
without taking into account the contexts that shape how values, ideologies, and goals will transform
patterns of policing.

Disaster for clarity and predictability; this is the best line to draw
Osse 7 – Head of Amnesty International’s Police and Human Rights Programme
Anneke Osse, now Independent Consultant on Police and Human Rights for a range of organizations,
including the UN and international NGOs, and Honorary Fellow at the University of Exeter, Understanding
Policing, 2007, https://www.amnesty.org/download/Documents/HRELibrary/sec010112007eng.pdf

1.2. ‘ Police’ or ‘law enforcer’?

The commentary to article 1 of the UN Code of Conduct for Law Enforcement Officials (UN Code of
Conduct) provides the following definition of law enforcement officials: "The term ‘Law enforcement
officials’ includes all officers of the law, whether appointed or elected, who exercise police powers,
especially the powers of arrest and detention. In countries where police powers are exercised by military
authorities, whether uniformed or not, or by State security forces, the definition of law enforcement
officials shall be regarded as including officers of such services.”
The UN definition implies that all officials, whether called Security Forces, Gendarmerie or Military Police,
having the power to arrest and detain, are to be considered as law enforcement officials, and thus should
uphold the norms set out in the UN Code of Conduct. This principle is also reflected in the ‘Guidelines for
the effective implementation of the code of conduct for law enforcement officials’. 1
It is notable that the definition in the UN Code of Conduct does not explicitly refer to the powers police
have to use force against members of the public (in times of peace). The power to use force is very often
seen as a defining police characteristic: the police may legally use force to maintain order, whereas other
members of the public may in most circumstances only use force in selfdefence. This is often referred to
as the police having a ‘monopoly on the use of force’ in times of peace. It is exactly this monopoly on the
use of force that gives the police its particular, and sensitive, position within the State system, thereby
necessitating adequate control mechanisms to prevent abuse.
The specific power of police to use force is reflected in the European Code of Police Ethics which
(referring to police as ‘traditional police’, trusting – perhaps rightly so – that everyone understands
what that is ) states that the “hardcore characteristic (…) entrusted to all existing public police bodies in
Europe [is] the power to use force to maintain law and order in civil society.”2 Unlike the UN Code of
Conduct, specific types of police formed for purposes other than maintaining law and order in civil
society – such as military police , police involved in prison systems and secret security services as
well as private security companies – are explicitly excluded from the European Code. 3
In literature the terms ‘ police’ and ‘ law enforcement official’ (LEO, plural LEOs) are used
interchangeably . In international human rights standards the latter term is most commonly used, thereby
probably leading to its use by the majority of human rights advocates. Police themselves however tend
to prefer the term ‘police’ as policing is not the same as law enforcement . Although police are always
law enforcement officials , most countries also have nonpolice agencies whose officials enforce the
law , for example border guards or customs officials . Even more important is the fact that the police
function is often so much broader than mere law enforcement. It is generally accepted that the
functions of police encompass: 4
• Prevention and detection of crime
• Maintenance of public order
• Provision of assistance to the public
The term policing is used with many different meanings in mind; most notably it is referred to as the
process of ‘ ensuring compliance with the law’ in all its aspects. It should be apparent that ensuring
such compliance can never be achieved by the police alone. Policing may indeed encompass more
agencies and entities than just the police and is sometimes even taken as a social process
involving civil society at large rather than a professional duty carried out by a State agency.
However, such an interpretation of the concept of ‘policing’ may create unnecessary confusion ,
underlined by the fact that the term is not always easy to translate in other languages. We will therefore
use a simple definition and define policing as ‘ what the police do to ensure compliance with the
law ’.

Makes it meaningless
Dowling et al. 1 – Professor of Criminal Justice at SHSU, faculty member at the Bill Blackwood Law
Enforcement Management Institute, former FBI Special Agent
Edited by Thomas J. Jurkanin, Executive Director of the Illinois Law Enforcement Training and Standards
Board since 1992, PhD in Education and Social Justice from Southern Illinois University, Larry T. Hoover,
Professor of Criminal Justice as SHSU since 1977, Jerry L. Dowling, professor at the College of Criminal
Justice-SHSU since 1972, JD-U of Tennessee, and Janice Ahmad, PhD in Criminal Justice-Sam Houston
& research project manager of the National Institute of Justice-Office of Science & Tech, and former
police officer and director of a prosecutor-based victim/witness assistance program, Enduring, Surviving,
and Thriving as a Law Enforcement Executive, Charles C. Thomas Publisher, Ltd.: Springfield, IL, 2001,
Ch. 4, Department Mission and Infrastructure, p. 43,
https://www.ncjrs.gov/pdffiles1/Photocopy/188524NCJRS.pdf

IT IS DIFFICULT TO DEVELOP A REASONABLY SIMPLIFIED STATEMENT of the police mission.

Clearly, it is not mere enforcement of criminal statutes. Certainly law enforcement is a common
denominator among innumerable police activities, in fact the majority of police activities. But delivering
death messages has nothing to do with law enforcement, standing by downed wires until a power
company arrives has nothing to do with law enforcement and many of the dispute resolution activities in
which the police engage are at best tangentially related to law enforcement.
Thus, we end up substituting very broad descriptors of the police mission , for example, public
service. The problem here is that these terms become so broad as to be meaningless . The terms
don't really distinguish the police role from the functions of government generally or offer any
criteria for sorting the governmental functions that should be the purview of the police department
from those that are the responsibility of other governmental agencies . Our best efforts tend to result
in mission statements that are actually a list of ten to fifteen different functions, hardly a mission
statement. Nevertheless, it is the perception of mission that most influences police professionals in their
choice of strategy. Unfortunately, differences in such perceptions are not well articulated. Most
discussions of mission never move beyond, "It's clearly not mere law enforcement, so how about 'to
protect and serve?"' The lack of clearly defined mission boundaries leaves us wandering all over
the map when strategy is discussed.
The overwhelming majority of private sector organizations operate within a narrowly defined sector of the economy. Indeed, the flurry of corporate acquisitions and mergers that occurred on Wall Street during the early 1980s, assembling conglomerates of unrelated enterprises under the umbrella of a single "financial corporation," disintegrated. The sixth principle of Peters and Waterman's In Search of Excellence (1982)- "stick to the knitting"- was proved valid. Those companies that stick to the business they know prosper best
in the long run. And indeed, even the icon of diversity in American business, Sears, Roebuck and Company, has recently seen its percentage of the retail sales market slip steadily, particularly to the onslaught of a small retailer from Arkansas who initiated a chain that initially focused on the needs of small towns in America, reminiscent of the specific mission of Sears, Roebuck and Company of one hundred years ago. Serving largely unrelated objectives is a difficult posture to maintain successfully for any organization. It can
be accomplished for a period of time, occasionally even for an extended period of time.

But organizations with diffuse missions tend to be both the exception and short lived. In the public sector
it is only the police that we ask to maintain such a posture. Other governmental agencies have a clearly
focused mission, or at least a clearly focused central mission. For example, no one questions the mission
of fire departments . They do take responsibility for some services ancillary to fire fighting. Since fire
departments have to handle hazardous materials whenever they respond to an industrial fire, in most
jurisdictions by extension they have been made responsible for hazardous materials problems wherever
they occur in a community. In some communities fire departments also handle emergency medical
services (EMS) response. Again, however, this is an extension of fire fighter responsibilities on the fire
ground, and the dispersion of fire stations throughout a community makes them a natural base for
stationing ambulances. The clear central mission of every fire department, however, remains fire
prevention and suppression .
Further, when one moves beyond our sister public safety agency, Department Mission and Infrastructure
45 mission statements are even more tightly focused. Departments of sanitation, public works, public
transportation, water, parks and recreation, and road maintenance all possess clearly defined roles . We
all understand clearly what they do and don't expect them to be doing anything else. Unlike a police
agency, the water department does not receive hundreds of phone calls a day for which someone might
ask, "What in the world do we do with this one?"
Order Maintenance as the Police Mission
A significant part of the ambiguity surrounding the definition of police mission is the unfortunate use of
the term "order maintenance" as synonymous with "conflict management." The so-called order
maintenance function of the police is then held in contrast to the law enforcement function, i.e., order
maintenance versus law enforcement.
Characterized in this way, the two are co-equal but potentially conflicting police missions. Hence, we hear discussions that typically are as follows: It is symptomatic of our disproportionate identification with the crime con· trol function that 900fo of training is dedicated to law enforcement while 90°/o of the calls are order maintenance. Order maintenance, modified by the word "temporal" is better viewed as the police mission, the raison d'etre of police organizations.

Temporal order maintenance can be thought of as maintaining the status quo , i.e., keeping society
stable and functioning by acceptable rules , by using interventions with short-term effects. Order
maintenance used without the word "temporal" is too broad . Government itself maintains order . The
police are responsible only for temporal, or short duration , issues.
Consistent with the concept of a hierarchy of organizational goals, we can then think of the mission of
temporal order maintenance as subsuming at least three strategic objectives: public service/public safety,
conflict management, and law enforcement. Illustrations of the types of calls for service that generally fall
into each of these three categories are contained in Figure 4.1.
Figure 4.1 also illustrates two other important phenomena. First, different intervention techniques are
preferred depending upon the on-scene objective The public service/public safety role is most often
fulfilled by using social counseling. Comfort provided in delivering a death message, reassurance offered
parents of a lost child and warnings to children and citizens to stay back from downed power wires all fall
under the rubric of social counseling. Conflict management, however, demands a different response.
Here authoritative persuasion is preferred. Police officers still aren't literally enforcing the law in this role,
but they do employ their authority as a "law enforcement officer " to add strength to their persuasive
talents. They do not, however, respond to these calls intending to arrest anyone. Finally, there is that
category of responsibilities that is indeed law enforcement, and here the preferred intervention technique
is arrest. The police do not respond to a robbery in progress with any intent to counsel or persuade, only
to take someone into custody.
The second phenomenon illustrated by Figure 4.1 is the fact that both the on-scene objective of the police and their preferred intervention technique are best represented as a continuum of responses, not separate categories. Hence, a report of juveniles being loud is not clearly either public service/public safety or conflict management. Likewise, a theft involving acquaintances, or even an auto theft report, isn't always law enforcement-many times these turn out to be conflict Department Mission and Infrastructure 47
management situations. Furthermore, a problem that initially is likely to be a public service/public safety issue, e.g., a report of a lost child, may occasionally turn out to be a law enforcement issue, e.g., kidnapping. Likewise, a report of loud juveniles may be a fight over a drug sale. Hence, the police respond to a given situation with an assumed on-scene objective and with a preferred intervention technique, but both may change rapidly with further information. Indeed, the behavior of respondents at a scene often changes the
preferred police intervention technique. In a conflict management situation, a belligerent respondent may evoke an arrest intervention, despite the fact that the defmition of the situation remains conflict management. Thus, a given on-scene objective may be achieved by various intervention techniques or combination of techniques. Clear, mutually exclusive, categorical objectives and intervention techniques do not exist. Instead a continuum of objectives and intervention techniques are intermingled, although patterns of
association certainly are defmable. This makes sense if one recognizes that the overarching mission is temporal order maintenance. The police are at a scene fundamentally to maintain order, to keep the peace. As noted by Bittner (1990), "peacekeeping occasionally acquires the external aspects of law enforcement. This makes it specious to inquire whether or not police discretion in invoking the law conforms with the intention of some specific legal formula. The real reason behind an arrest is virtually always the actual state of
particular social situations ...."

Peacekeeping, or temporal order maintenance, governs police response. But one must also not
confuse law enforcement as an objective with arrest as a technique . It is such confusion that
results in many scholars understating the importance of law enforcement as an element of
policing . Law enforcement is not merely a technique . Arrest is a technique. Law enforcement is one
of three primary strategic objectives subsumed by the mission of temporal order maintenance.
There is a whole class of police activities focused exclusively upon this objective which have nothing to do
with conflict management or public service/public safety. This schematic also clarifies the issue of
what constitutes "real" police work . Real police work is performing the role of a peace officer .
Peacefulness, or orderliness, is the overall mission. A disorderly situation begets a call for police service
or proactive police intrusion. Disorder ranges from downed power lines to robberies in progress.
48 Enduring, Surviving, and Thriving There is, however, a hierarchical relationship among disorderly situations. As one moves from the public service/public safety class of situations through conflict management to law enforcement the threat to stable social order generally increases. Law enforcement situations usually result in greater harm and also possess the characteristic of being more generically threatening. Most public service/public safety and conflict management situations do not involve a general threat. Most also
entail disorderly interactions among acquaintances (it may seem cold to think of delivering death messages in this way, but this task is essentially a "disorderly interaction among acquaintances." Because of the tendency for greater harm, and the more generic threat, the law enforcement role of the police predominates both resource allocation and public image. Nevertheless, it is but one element of keeping the peace. Community-Oriented Policing

Sometimes form follows function, sometimes function follows form, and occasionally they interact. In the
past ten years in policing, form and function have been interacting. Problem-oriented and community-
oriented policing techniques have become alternate strategies to counseling, persuasion and arrest.
Only by understanding this fact can one appreciate the depth of the current debate about these
strategies . They are not merely a better way of doing things, they constitute doing different things .
Each strategy moves the police to a new role . The traditional mission has been temporal order
maintenance. Both problem-oriented and community-oriented strategies may solve short-term problems,
but they also push the police toward long-term structural and environmental interventions with significant
community impact. Community or problem-oriented techniques that are focused upon a very specific
situation, in particular, repetitive calls for service from a single source, do not constitute a philosophical or
mission switch.
However, when the police begin to initiate the demolition of abandoned structures, supervise housing
projects, or become involved in redrawing of zoning ordinances, a substantial change in mission has
occurred. The police are no longer dealing with temporal order maintenance, but with long-term
intervention in a community's infrastructure. The mission has changed from "temporal" order maintenance
to "sustained" order maintenance. Police interventions are longer term and have a far more enduring
impact. The three objectives of policing remain the same-public service/public safety, conflict
management and law enforcement. The kinds of specific problems handled remain the same. But in
addition to using social counseling, authoritative persuasion and arrest, the police employ social referral,
extended counseling, or effect structural or environmental changes to provide a longer term, enduring
impact. There is nothing wrong with such a change. But it is a significant one and should be approached
carefully.
Further, community-oriented policing does not require abandoning current strategies. If the traditional model of policing has its faults, it also has its strengths. The pervasive bias in favor of entrepreneurial organizations in American culture can backfire on enterprises where innovation is either impossible, impractical, or simply not desirable. Elements of policing fit this criterion. In a headlong rush to prove to other police administrators that he or she is at the cutting edge, a police chief would do well to pause and consider the
traditional police mission-temporal order maintenance, or stated differently, keeping things the way they are. Innovative, creative entrepreneurship doesn't always fit this mission. More frequently, staid, standardized, routinized bureaucratic response will best accomplish the goal of temporal order maintenance. The professional model may, in fact, be considerably better suited to fulfilling the mission of temporal order maintenance. Analogies sometimes provide useful insight. Any analogy between policing and another enterprise
has its limits, but one is particularly useful in understanding the match between police mission and police strategy. It is with the airline industry. Let's consider a flight from Chicago. The dynamics of a routine flight are these: • The basic issue is to get to one's destination on schedule. Business meeting plans are made assuming a scheduled arrival. Regardless of all other considerations, the primary criterion is getting from point A to point B. • Most people will bend by an hour or so on arrival time to stay on a particular airline if
they are hooked on their frequent flyer program. • Finally, most persons are reasonably tolerant of unavoidable delays. They irritate everyone, but 99.9% of the flying public 50 Enduring, Surviving, and Thriving recognize that delays are an inevitable part of flying. The weather certainly can't be controlled, and equipment malfunctions can't be eliminated even with aggressive maintenance. Nevertheless, at the time a delay is announced most people are irritated. It should be noted, however, that most people still don't enjoy flying.
Probably the most salient issue of this respect is the cattle-herding phenomenon. Most recognize, however, that given the exigencies of flying that current technology will economically permit, there isn't anything any airline can do about it. The analogies with regard to policing are these: • Despite analysis of calls for service indicating the predominance of conflict management calls, and despite the discussion in this chapter, the public regards the police role as crime control Oust as the airlines' role is to get one from point A to
point B). Police administrators would do well not to ignore this fact. • The public appears willing to pay enough in taxes to get police services that exceed absolute minimums. There are some "nofrills" agencies, just as there are a few no-frills airlines. But the substantial majority of agencies are sufficiently funded to provide some training to their officers, some crime prevention effort, and an Explorer Scout program. Few communities, however, are willing to pay first-class fares, buying everything a police agency can possibly
provide. Rather, most agencies feel some strain on resources. • Many citizens will wait a while to talk to an officer they know rather than just any officer. Even these "frequent users," however, are unwilling to reschedule dramatically to stay with their favorite officer. • Analogous to airline delays, the public recognizes that in the big picture the police can't solve every crime, can't resolve every problem. Nevertheless, they'll be irritated when it's their problem that can't be resolved. Further, they expect the police to make the best
effort to solve their problem; and, at the least, to be courteous and honest in telling them that they can't. It should be noted, however, that try as the police might, the substantial majority of the public will never "enjoy" contact with the Department Mission and Infrastructure 51 police. Just as the airlines can't do anything about the herding phenomenon that makes air travel tedious, the police will always be associated with "trouble." At the risk of stretching this analogy to the breaking point, it is also instructive to note what most
expect of an airline once they show up to board a flight: • An accessible reservations clerk • A window or aisle seat • Prompt departure • Quick beverage service • Luggage on the same flight • The engine to stay bolted on • Courteous staff (not gratuitous, not officious, not bubbly - just courteous) In short, the public wants an efficient, competent-but very routine bureaucratic response. What they explicitly do not want is: • Creative routing of luggage through Tokyo • An innovative seat assigornent • Imaginative flying at non-
prescribed altitudes • Novel food (particularly when they have no menu choices) • Inventive landing techniques A significant portion of policing should meet the same criterion-an efficient, competent bureaucratic response-and nothing more. For example, a large part of the police function is simple information processing. These "take a report" calls, including minor traffic accidents, are best handled by highly routine, standardized procedures. Further, the best response to some types of calls is with a highly prescribed technique,
e.g., delivering death messages or issuing traffic citations. The problem is that a simple, efficient, prescribed bureaucratic response isn't inherently exciting to academics, research organizations, management consultants and change-oriented police managers. Indeed, there is a strong bias in the management literature in favor of entrepreneurial organizations. Advocates of bureaucratic efficiency in policing are now labeled "traditionalists," with all the negative connotations that the term implies. 52 En.during, Surviving, and
Thriving But the reality is that classical bureaucratic efficiency is serving some organizations very well. Rensis Likert observed that Ray Kroc did not invent anything. The most successful food service enterprise the world has ever known was built, and continues to grow, on tumof-the-century efficiency management principles. And whether one walks into a McDonalds in New York, Moscow, London or Tokyo, the service and product will always be the same-standardization taken to the extreme. Similarly, the airline industry has
prospered in the past twenty years, passenger miles increasing several times over, by doing the basics better. The relevance of such comparisons to policing is, of course, limited. Police agencies differ not only in the public versus private dimension, but numerous others as well. Nevertheless, we need to be cognizant of the fact that success does not always require daily creativity.

Yet, almost universally the traditional model of policing is disdained. Certainly, aspects of the model are
either no longer necessary or no longer serving us as well as alternatives might. But not everything about
the professional model should be discarded. Herbert Simon (1945) argued in Administrative Behavior that
efficiency is a completely neutral concept. It is neither inherently good nor bad. Mintzberg (1989) points
out, however, that "A management obsessed with efficiency is a management obsessed with
measurement. The cult of efficiency is the cult of calculation. And therein lies the problem." But too many
police administrators and scholars throw out the baby with the bathwater . Obsession with superficial
efficiency measures of elements of police operations does not require as a reaction eliminating the
operations. There is a difference between overrating response time measures as a criterion of success
and response time being meaningless.
Before we abandon the professional model we would do well to consider what it has bequeathed us. More
educated and better trained personnel, sophisticated use of technology, better adherence to due process,
far less corruption, and-yes-better response time are all the products of the Vollmer and Wilson legacy.
Perhaps the legacy should not so readily be disdained because of some negative elements. Professional
efficiency may not be such a bad idea.
The arguments presented here are not intended to imply that we reject the community-oriented model of
policing. It is for some com munities or even a large number of communities. But an evaluation can be
made only after a clear definition has been established. A vague philosophy suggesting that we
treat citizens responsively is a characteristic of any democratic model of policing, not just community-
oriented policing .
 Policing=Police Force
Policing is precisely defined in law as activities of police officers—Other
definitions explode limits
Collins 14 – Collings English Dictionary, Complete
Collins English Dictionary, Complete and Unabridged, 12th Edition, 2014, available at
https://www.collinsdictionary.com/us/dictionary/english/policing

policing , noun
1 (Law) the activities carried out by police officers in order to preserve law and order
e.g.: the policing of public places
2. the actions of a person or group in authority in order to ensure fairness and legality in an area of
public life
e.g.: the policing of new housing developments
a more rigorous policing of new developments
independent policing of clinical procedures

Prefer that in this context—

--Definitions of CJR / CJ(S) / Reform of Policing

And, a police officer is someone who performs general enforcement or

investigatory functions for a police force—NOT someone in a supporting role,
and NOT a peace officer employed by an agency other than a police force
Hayward 82 – Assistant Attorney General of Iowa
Opinion by Gary L. Hayward, Assistant Attorney General, Office of the Attorney General of the State of
Iowa, 1981-82 Op. Atty Gen. Iowa 451, 1982, Lexis

2.The Meaning of "Detective or Officer"

Once it has been determined that an individual is employed by a "police force" , the next question
is whether the person is a "detective or officer " or another person in the employ of the police force. A
" detective" is defined as:
One whose business it is to watch, and furnish information concerning, alleged wrongdoers by
investigating their haunts and habits. One whose business it is to detect criminals or discover matters of
secret and pernicious import for the protection of the public.
Black's Law Dictionary 536 (4th ed. 1968). A " police officer" is defined as:
One of the staff of men employed in cities and towns to enforce the municipal police, i.e., the laws
and ordinances for preserving the peace and good order of the community. Otherwise called
"policeman."
Black's Law Dictionary 1317 (4th ed. 1968). They key to that definition for purposes of § 80A.2 is
" employed [*16] . . . to enforce . . . the laws and ordinances for preserving the peace and good
order of the community."
If a person may be called upon to perform general enforcement or investigatory functions of a
" police force " and has peace office authority , that individual should be considered a " detective or
officer" of that force for purposes of § 80A.2. If, on the other hand , the individual solely performs
another kind of service such as a jailer , custodian , clerical worker , bookkeeper , dispatcher , or
administrator , that person would fall into the second exemption in § 80A.2 which applies to any other
"person in the employ of the police force. "
Limiting to police force excludes narrower agency-specific peace officers—That’s
most legally precise, especially in the CJR context, and key to limits and unified
Neg ground. This card is comparative to their interp, which would allow in tweaks
to any executive agent
Hayward 82 – Assistant Attorney General of Iowa
Opinion by Gary L. Hayward, Assistant Attorney General, Office of the Attorney General of the State of
Iowa, 1981-82 Op. Atty Gen. Iowa 451, 1982, Lexis

A.The phrase "detective or officer belonging to and on the payroll of the police force " does not
encompass all persons who are peace officers .
1.The Meaning of Police Force
It is important to note initially, when considering this exemption, that it does not apply to all persons who
are " peace officers " under Iowa criminal law, or that of any other jurisdiction. For purposes of Iowa law,
the term "peace officer" is defined in § 801.4 (7), The Code (1981), as follows:
" Peace officers", sometimes designated "law enforcement officers"; include:
a. Sheriffs and their regular deputies who are subject to mandated law enforcement training.
b. Marshals and policemen of cities.
c.Peace officer members of the department of public safety as defined in Chapter 80.
d. Probation and parole agents acting pursuant to section 906.2.
e.Probation officers acting [*11] pursuant to section 231.10.
f. Special security officers employed by board of regent's institutions as set forth in section 262.13.
g. Conservation officers as authorized by section 107.13.
h.Such employees of the department of transportation as are designated "peace officers" by resolution
of the department under section 321.477.
i.Such persons as may be otherwise so designated by law.
Peace officers have a variety of functions. Their special authority includes the authority to arrest with a
warrant, § 804.6, The Code (1981), more expansive power to arrest without a warrant, § 804.7, The Code
(1981), a different authority to use force, § 804.8, The Code (1981), to issue citations §§ 805.1 and 805.6,
The Code (1981), and to execute search warrants, §§ 808.5 and 808.6, The Code (1981). Thus, the term
"peace officer" identifies those public officers who the legislature has determined must have certain types
of powers and authority to execute their assigned duties.
However , in § 80A.2, the legislature exempts detectives and officers belonging to a " police force" . This
is an exemption based upon the function of the officer's department and his or her role within the
department, [*12] rather than on the authority of the officer. The term "police force" is not defined in the
statute, so the legislature is presumed to have intended that it have its meaning in general usage . In
Severson v. Sueppel, 260 Iowa 1169, 1173, 152 N.W.2d 281, 284 (1967) the court stated, " 'Police'
refers to maintaining law and order ." The court was determining the meaning of the phrase "formal
police training", and looked to the generally accepted meaning of the term . The word " police " has
also been defined as:
The function of that branch of the administrative machinery of government which is charged with the
preservation of public order and tranquility, the promotion of the public health, safety and morals, and the
prevention, detection and punishment of crimes.
Black's Law Dictionary 1316 (4th ed. 1968). However , this latter definition refers to the general
"police power " of the government. 1 [FN 1] See, "Police Power", Black's Law Dictionary 1317 (4th ed.
1968). [End FN] It is unlikely that the legislature intended to exempt all government officials
engaged in promoting the state's interests in that expansive arena from the requirements of
Chapter 80A. The words "detective or officer" along with the court's interpretation of the phrase "formal
police training" [*13] in Seversen v. Sueppel, indicates that " police force " , as used in § 80A.2, The Code
(1981), means
[T]he governmental department (of a city, state, etc.) organized for keeping order, enforcing the
law, and preventing, detecting and prosecuting crimes.
Webster's New World Dictionary , 1102 (2d ed. 1972).
Therefore, all peace officers are not officers of a police force for purposes of the § 80A.2 exemption.
Parole and probation officers are not members of such a force. Similarly, persons given peace
officer authority simply to facilitate the regulatory authority of an agency are not members of a
"police force" . Examples would be conservation officers and peace officer members of the
D epartment of Transportation.2
[FN 2]
Section 107.13, The Code (1981), states in regard to conservation officers:
[T]he director shall appoint the number of officers and supervisory personnel that are necessary to
enforce the laws and rules and regulations, the enforcement of which are imposed on the commission.
The officers and supervisory personnel shall have the same powers that are conferred by law on peace
officers in the enforcement of the laws of the state of Iowa and the apprehension of violators.
Their peace officer powers are limited to matters under the authority of the Conservation Commission.
See, Op. Atty. Gen. p. 419 (April 14, 1936). Section 321.477, The Code (1981), places a similar limitation
on peace officer members of the D epartment of Transportation, by stating
The department may designate by resolution certain of its employees upon each of whom there is hereby
conferred the authority of a peace officer to control and direct traffic and weigh vehicles, and to make
arrests for violations of the motor vehicle laws relating to operating authority, registration, size, weight and
load of motor vehicles and trailers and registration of a motor carrier's interstate transportation service
with the department.
[End FN]
[*14] The general authority granted to the Iowa Department of Public Safety to enforce all state
laws, to prevent crime and to detect and apprehend criminals by § 80.9, The Code (1981), and the
similar authority granted sheriffs in Chapter 337, The Code (1981), clearly establish "police forces"
as that term is used in § 80A.2. Also, § 364.1, The Code (1981), impliedly gives any city the authority to
establish a police force subject to statutory restraints such as Chapter 400, The Code (1981), regarding
civil service, Chapter 410, The Code (1981), regarding disability pensions for police and firemen and
Chapter 411, The Code (1981), regarding retirement of police and firemen. Finally, the security forces of
the Board of Regent's institutions constitute a police force of the state because they have full
authority to enforce the law and investigate crime subject only to the territorial limitations of the
institutions they serve. See, § 262.13, The Code (1981).
The key to whether an agency is a "police force " is its function . If it has general
authority to enforce the law and maintain the peace, to investigate crime and to
arrest offenders subject only to the territorial limits of its [*15] jurisdiction, it is a
"police force" . If, on the other hand, the agency's employees only have peace
officer powers to enforce specified statutes relating to its regulatory authority , or
if its employees are parole or probation officers , it is not a police force.
[Beginning of “Police Officer” definition, above]
2.The Meaning of "Detective or Officer"
Once it has been determined that an individual is employed by a "police force" , the next question is
whether the person is a "detective or officer" or another person in the employ of the police force. A
"detective" is defined as:
One whose business it is to watch, and furnish information concerning, alleged wrongdoers by
investigating their haunts and habits. One whose business it is to detect criminals or discover matters of
secret and pernicious import for the protection of the public.
Black's Law Dictionary 536 (4th ed. 1968). A "police officer" is defined as:
One of the staff of men employed in cities and towns to enforce the municipal police, i.e., the laws and
ordinances for preserving the peace and good order of the community. Otherwise called "policeman."
Black's Law Dictionary 1317 (4th ed. 1968). They key to that definition for purposes of § 80A.2 is
"employed [*16] . . . to enforce . . . the laws and ordinances for preserving the peace and good order of
the community."
If a person may be called upon to perform general enforcement or investigatory functions of a "police
force" and has peace office authority, that individual should be considered a "detective or officer" of that
force for purposes of § 80A.2. If, on the other hand, the individual solely performs another kind of service
such as a jailer, custodian, clerical worker, bookkeeper, dispatcher, or administrator, that person would
fall into the second exemption in § 80A.2 which applies to any other "person in the employ of the police
force. "
[End of “Police Officer” definition card]
B.Persons who are detectives or officers of a police force are exempt from the licensing requirements and regulatory authority established by Chapter 80A, The Code (1981). The clear import of § 80A.2 is that the provisions of Chapter 80A "shall not apply" to detectives or officers of police forces. Furthermore, except for the exemption to county attorneys, the exemption for "detectives and officers" is the only one which is not limited to some covered activity which is carried on in the course of some other business or profession.
Other police [*17] employees are exempted only while engaged in official business. Attorneys are exempted only in the regular practice of law. News media are exempt only while engaged in the collection, editing or dissemination of news. Similar restrictions are placed on the exemptions for insurance adjusters interstate common carriers and credit bureaus. The legislature demonstrated that it could condition exemptions from the provisions if it wished. Its refusal to so limit the exemption of detectives and officers of police
forces indicates it meant that they be unconditionally exempt from the act. The express mention of one thing in a statute implies the exclusion of others. In re Wilson's Estate, 202 N.W.2d 41, 44 (Iowa 1972). This opinion is directly contrary to a previous opinion of this office which states in part: [T]he officers of a private detective agency and of a policeman are incompatable and . . . a policeman should not be licensed or authorized to engage in the private detective business. Op. Atty. Gen. #69-3-7 (1969). In a later opinion, this
office stated that in appropriate instances involving such conflicts of interest, private detective licenses should be limited [*18] to private security work. Op. Atty. Gen. #74-8-12 (1974). As applied to detectives and officers of designated police forces, both opinions ignore the fact that such persons are exempt from the provisions of Chapter 80A. Furthermore, the 1969 opinion rests upon a theory of incompatible offices. Yet, that theory is wholly inapposite because a private detective is not an officer of any sort. Therefore, to the
extent those two Opinions of the Attorney General are inconsistent with this opinion, they are expressly overruled. Detective and officers of American police forces, whether federal state or local, may engage in the private detective business in the State of Iowa without a license. All other persons, including some persons with peace officer authority, may not engage in that business in this state without a license unless otherwise exempted by § 80A.2. Finally, the exemption is personal to the detectives and officers and does not
extend to corporations which they may control or to associations to which they belong. This is so even if such control or membership is exclusively limited to such persons.

IV. THE DEPARTMENT OF PUBLIC SAFETY MAY BY RULE LIMIT PERSONS' PRIVATE
DETECTIVE [*19] BUSINESS TO SECURITY WORK WHEN THEIR CONFIDENTIAL RELATIONSHIP
TO THE PUBLIC WOULD CREATE TOO GREAT A RISK OF A CONFLICT OF INTEREST IF THEY
ENGAGED IN INVESTIGATORY WORK .
AThe Department of Public Safety has the authority to make rules regarding the private detective business which it can rationally believe the legislature intended it be able to make. The Department of Public Safety is charged with the responsibility of regulating the private detective business in the State of Iowa. In doing so, it only has that authority to make rules which has been granted by the General Assembly. Any rule established by the department which exceeds the scope of that authority is ultra vires and, therefore, invalid
and unenforceable. Iowa Auto Dealers Ass'n. v. Iowa Dept. of Revenue, 301 N.W.2d 760, 762 (Iowa 1981);Patch v. Civil Service Com'n. of the City of Des Moines, 295 N.W.2d 460, 464 (Iowa 1980);Motor Club of Iowa v. Dept. of Transportation, 251 N.W.2d 510, 518 (Iowa 1977). An agency has the authority to promulgate a rule when it could rationally conclude that the rule is within its statutory authority. Iowa Auto Dealers Ass'n. v. Iowa Dept. of Revenue, 301 N.W.2d at 762;Hiserote Homes, Inc. v. Riedemann, 277 N.W.2d
911, 913 (Iowa 1979). While Chapter 80A does not expressly grant to the Department of Public Safety authority to promulgate rules regulating the private detective business, that express authority does exist in a rather peculiar place, Chapter 321, The code (1981), on motor vehicles. Section 321.4, The Code (1981), states: The commissioner of public safety is authorized to adopt and promulgate administrative rules governing procedures as may be necessary to carry out the provisions of this chapter; and to carry out any other
laws the enforcement of which is vested in the department of public safety. (Emphasis added.) Chapter 80A is clearly a law the enforcement of which is vested in the Department of Public Safety. Of course, any policy or rule of the Department of Public Safety of general applicability which either limits a person's eligibility for a private detective license, or limits the scope of such a license if issued, would be unenforceable unless the department complied with the rule promulgation procedures of the Iowa Administrative Procedure
Act. §§ 17A.3 (2) and 17A.4 (3), The Code (1981). B. The [*21] Department of Public Safety could rationally conclude that the legislature gave it the authority to limit the scope of private detective licenses issued to persons with a conflict of interest, or lack of qualification to engage, in a particular aspect of the private detective business. This office has previously opined that the Department of Public Safety could limit the private detective licenses of persons engaged in, or closely related to, law enforcement to security work. Op.
Atty. Gen. #74-8-12 (1974). While this opinion rejects the inference of earlier opinions that the Department of Public Safety had the authority to exclude persons from, or limit their activities in, the private detective business who are exempted from that authority by § 80A.2, The Code (1981), it does not reject the 1974 opinion's conclusion that the department can limit the activities of persons subject to its licensing authority. However, because the previous opinions of this office did not give any rationale for that authority, it is
necessary to do more than affirm their results in this opinion.

As stated above, the legislature gave the Department of Public Safety express authority to promulgate
[*22] rules governing the private detective business in § 321.4, The Code (1981). The private detective
business, as defined in § 80A.1 (1), The Code (1981), necessarily involves a certain amount of
interference with citizens' rights to privacy. The very fact that the General Assembly enacted the licensing
provisions of Chapter 80A, The Code (1981), indicates that it intended that the business be regulated in
the public interest. Further indications of that intent are (1) the § 80A.5 (3) requirement that applicants be
of "good moral character"; (2) the § 80A.5 requirement that applicants post a bond "conditional on the
faithful, lawful and honest conduct of such applicant and those employed by such applicant in the private
detective business"; and (3) the provision allowing the department to suspend or revoke a private
detective license if the liceensee is adjudged guilty of the commission of a crime of moral turpitude, §
80A.10 (3), betrays a confidence of a client, § 80A.10 (4), or demonstrates that he or she is not of good
moral character, § 80A.10 (6). The regulatory nature of the scheme is also apparent from the fact that
Chapter 80A is obviously not a revenue generating provision. [*23] Thus, the Department of Public Safety
can rationally conclude that Chapter 80A grants it the authority to promulgate rules which require private
detective licensees to engage in their business in an ethical manner and in the public interest .3
[FN 3]
This is an example of the general police power which is distinguished from the term "police
force" above.
 --Short versions of “police force"
TL;DR
Hayward 82 – Assistant Attorney General of Iowa
Opinion by Gary L. Hayward, Assistant Attorney General, Office of the Attorney General of the State of
Iowa, 1981-82 Op. Atty Gen. Iowa 451, 1982, Lexis

VII.SUMMARY
1.Section 80A.2, The Code (1981), exempts "detectives and officers" of any federal, state or local "police
force" in the United States from the licensing and regulatory requirements of Chapter 80A, relating to the
private detective business. If an agency has general authority to enforce the law , maintain peace,
investigate crime and arrest offenders subject only to the territorial limitations of its jurisdiction,
it is a " police force " . If an agency exercises some peace officer authority but does [*31] not have
such general law enforcement responsibility , it is not a "police force " . If an employee of a "police
force" is called upon by that agency to perform general investigatory or enforcement duties and has
peace officer authority , he or she is a " detective or officer " of that "police force".

Clear brightline test—Excludes the Aff, and key to limits

Hayward 82 – Assistant Attorney General of Iowa
Opinion by Gary L. Hayward, Assistant Attorney General, Office of the Attorney General of the State of
Iowa, 1981-82 Op. Atty Gen. Iowa 451, 1982, Lexis

The key to whether an agency is a "police force " is its function . If it has general authority to
enforce the law and maintain the peace , to investigate crime and to arrest offenders subject
only to the territorial limits of its [*15] jurisdiction, it is a "police force " . If , on the other hand ,
the agency's employees only have peace officer powers to enforce specified statutes relating to its
regulatory authority , or if its employees are parole or probation officers, it is not a police force.

Their definition would be a total limits disaster—Court and AG opinions concur.

Absent specification in the resolutional wording, you must err toward reading it
narrowly!
Hayward 82 – Assistant Attorney General of Iowa
Opinion by Gary L. Hayward, Assistant Attorney General, Office of the Attorney General of the State of
Iowa, 1981-82 Op. Atty Gen. Iowa 451, 1982, Lexis

However, in § 80A.2, the legislature exempts detectives and officers belonging to a " police force " . This
is an exemption based upon the function of the officer's department and his or her role within the
department, [*12] rather than on the authority of the officer. The term "police force" is not defined in
the statute , so the legislature is presumed to have intended that it have its meaning in general
usage . In Severson v. Sueppel, 260 Iowa 1169, 1173, 152 N.W.2d 281, 284 (1967) the court stated,
" 'Police' refers to maintaining law and order ." The court was determining the meaning of the
phrase "formal police training", and looked to the generally accepted meaning of the term . The word
" police " has also been defined as:
The function of that branch of the administrative machinery of government which is charged with the
preservation of public order and tranquility, the promotion of the public health, safety and morals, and the
prevention, detection and punishment of crimes.
Black's Law Dictionary 1316 (4th ed. 1968). However , this latter definition refers to the general
"police power " of the government. 1 [FN 1] See, "Police Power", Black's Law Dictionary 1317 (4th ed.
1968). [End FN] It is unlikely that the legislature intended to exempt all government officials
engaged in promoting the state's interests in that expansive arena from the requirements of
Chapter 80A. The words "detective or officer" along with the court's interpretation of the phrase "formal
police training" [*13] in Seversen v. Sueppel, indicates that " police force " , as used in § 80A.2, The Code
(1981), means
[T]he governmental department (of a city, state, etc.) organized for keeping order, enforcing the
law, and preventing, detecting and prosecuting crimes.
Webster's New World Dictionary , 1102 (2d ed. 1972).
Therefore, all peace officers are not officers of a police force for purposes of the § 80A.2 exemption.
Parole and probation officers are not members of such a force. Similarly, persons given peace officer
authority simply to facilitate the regulatory authority of an agency are not members of a " police
force" . Examples would be conservation officers and peace officer members of the D epartment of
T ransportation.2
 Must be street-level enforcement
It’s professional law enforcement via street-level prevention, detection, and
investigation of crime by cops
Sierra-Arevalo 18 – Assistant Professor of Sociology at UT-Austin, focused on police socialization
Michael Sierra-Arévalo, Author of Peril on Patrol: Danger, Death, and U.S. Policing, Policing, Last
modified 25 Oct. 2018, https://www.oxfordbibliographies.com/view/document/obo-9780199756384/obo-
9780199756384-0213.xml

Policing refers to the profession and practice of maintaining social order and enforcing the law through
the street-level prevention , detection , and investigation of crime . As society’s most visible and
contacted legal agents, police officers are empowered by a governmental body with authority to enforce
laws and distribute coercive force to achieve their goals. Today, research on policing covers the
practices and effects of police in countries across the globe, though academic research
predominantly focuses on policing in the United States, the United Kingdom, and other Western
nations. Though this entry focuses on policing research in the United States , insights from this
literature can be and are frequently applied to the study of police in other contexts. Following an overview
of resources that cover the historical development of modern policing, this entry moves to discuss
foundational research that investigates the social function of the police (what role do police serve in
society?) and is followed by a section on their occupational role (what do police do in the course of their
work?). Closely linked to this research on the function and environment of the police, the next section
covers research that describes the norms, values, and attitudes that make up police culture. The following
section covers research on police decision-making in the context of stops, searches, and arrest, with
special attention to the factors that influence those behaviors. Given the centrality of force to the police
role, two sections attend to the highly consequential decision to use of force; the first of these looks at
force writ large, while the second focuses specifically on the use of lethal force. Following these section
on police force, the section on police misconduct and its control provides readings that describe various
facets of police misconduct and strategies for reducing its prevalence. Turning from research that seeks
to explain police behavior, the following section discusses research on the effectiveness of police
activities in reducing crime, disorder, and the fear of crime, followed by a section dedicated to procedural
justice and its effects on police legitimacy and legal cynicism. The final sections of this overview provides
a primer for research on contemporary issues in policing , including police and immigration, police
militarization, and Big Data technology in policing.
 Must be govt agencies
It’s governmental law enforcement agencies
Odunze 16 – Assistant Professor of criminal justice and criminology for over 20 years
Damian O. Odunze, PhD in CJ, Policing in Implementing Social Policy, 2016,
https://link.springer.com/referenceworkentry/10.1007%2F978-3-319-31816-5_2631-1

Policing refers to maintenance of public order by various government law enforcement agencies .
These federal, state, and local agencies help to prevent and detect crime and enforce laws and
regulations for the sake of public safety, health, morals, and protecting civil liberties.
A policy is a course of action and strategy adopted by a government, business, or individual in order to
attain a certain goal. Social policy is a public or government policy, strategy, or program for dealing with
human or societal issues. The government initiates social policies to address particular problems in the
society. For instance, the War on Poverty was a social policy that addressed the...
 Can’t be individuals
Precision—“Policing” and “police” are distinct—The former is a term of art that
refers to the institutional structure—The defining feature of doing criminal justice
reform of policing in the United States specifically is changing the structures
INSTEAD of focusing on individual police.
Davis 16 – former Director for the Office of Community Oriented Policing Services (COPS) in the DOJ
& Executive Director of Obama’s Task Force on 21st Century Policing
Ronald L. Davis, Director for the Office of Community Oriented Policing Services (COPS) in the
Department of Justice, appointed by United States Attorney General Eric Holder in November 2013, In
December 2014, President Obama appointed Director Davis to serve as the Executive Director of the
newly created President's Task Force on 21st Century Policing, Police Reform vs. Policing Reform, 2016,
https://cops.usdoj.gov/html/dispatch/08-2016/police_reform.asp

Policing in the United States is unique in that it is neither centralized, as is the case in many countries,
nor does it fall under the direct control of the Federal Government. Each of the approximately 18,000
local, state, and tribal law enforcement agencies in the nation falls under the control of a local governing
body, executive, or elected official(s). Local control is arguably one of the key characteristics that
makes the American policing system unique . It is also the characteristic that presents the greatest
challenge to establishing standardized ethical and professional practices within a system few
deny is in need of reform .
Yet the discussion of police reform seems to focus primarily on individual officer behavior and
ignores the operational systems that have an even greater impact on policing outcomes. The great
management guru William Edward Deming captured this notion through his 85/15 rule, which says that
85 percent of the problems in any organization are system-related while only 15 percent are worker-
related.
Rank-and-file officers do not decide organizational policies and practices. Nor do officers establish hiring
standards or have the power to administer discipline. They also do not decide whether an agency
embraces crime-reduction strategies that result in racial disparities. Yet when disparities or other systemic
problems do occur, rank-and-file officers are quickly demonized and blamed for those outcomes.
There is no question that rank-and-file officers must be held accountable for their actions. However, if the
systems in which they operate are flawed, even good officers can have bad outcomes.
If we are to achieve real and sustainable reform in law enforcement, our focus must shift from the
police (those individuals sworn to uphold the law) to policing systems (the policies, practices, and
culture of police organizations ). And through reform , our policing systems must identify not just the
roles and responsibilities of the police but the roles and responsibilities of the community as well.
After all, communities are a vital part of the policing system. In the words of Sir Robert Peel, the
founder of modern law enforcement, “The police are the public and the public are the police; the police
being only members of the public who are paid to give full time attention to duties which are incumbent on
every citizen in the interests of community welfare and existence.”
To separate the community from the policing system is akin to separating patients from the health
care system or students from the education system . Indeed, even the best teacher cannot help a
student who refuses to study. Nor can a doctor cure a patient who refuses to take prescribed medication
or to follow the doctor’s orders. The same applies to policing . The level of community involvement in
the policing system and the level of personal responsibility each community member assumes by
cooperating or collaborating with the police greatly impact the outcome of the system. Focusing on the
policing system does not ignore or excuse the misconduct of individual police officers . To the
contrary , the stronger the policing system, the more likely bad officers will be identified and
removed from service. The stronger the policing system, the more likely the culture of police
organizations will reject officer misconduct and embrace accountability and transparency. And the
stronger the policing system, the more likely recruitment and hiring practices will focus not only on hiring
diverse, qualified candidates who reflect the communities they serve but also on hiring candidates who
see themselves as members of that community.
As a veteran police officer with almost 30 years of experience serving communities in Oakland and
East Palo Alto, California, I feel optimistic about the future of the American policing system.
The reason I have faith in a positive future for American policing, even amid a growing chasm of distrust
between the police and many communities, is that I see firsthand the outstanding work the vast majority
of dedicated men and women in law enforcement do every day. I see them take great efforts to identify
the best ways to serve their communities. And I see evidence that many communities, even those that
feel the most disenfranchised, yearn for a stronger relationship with the police. People in neighborhoods
all across the country are working diligently and in collaboration with the police to make sure their
communities are treated fairly not only by the law enforcement officials who are sworn to serve and
protect them but also by the policing systems in which those officers operate.
We are at a defining moment in American policing history. Our collective efforts to meet the
challenges we have faced over the past few years have opened a unique but very small window of
opportunity —a window through which both police and the communities they serve see the need for
policing reform and recognize the necessity of working together to achieve success.
The Final Report of the President's Task Force on 21st Century Policing provides a roadmap for this
reform. The task force report outlines 59 recommendations that, when implemented , will result in
positive changes in the American policing system and organizational transformation within
individual law enforcement agencies.
It is my hope that law enforcement officials across the country not only will read the task force report but
will also use its insights, information, and recommendations to reform the policing systems in their own
departments.
Let’s not waste this unique opportunity on bickering and finger pointing. Instead, let’s forge ahead
together to reform the American policing system to meet the challenges of the 21st century. Affecting
change is never easy, but as President John F. Kennedy said, “Change is the law of life. And those who
look only to the past or present are certain to miss the future.”
 Policing = Broad
Precision—“Policing” is broader than just law enforcement, and that difference 1.
Is predictable/aligns with the topic lit & 2. Is key to productive education on CJR
Roufa 19
Timothy Roufa, wrote about criminology careers for The Balance Careers and has over 14 years of
experience in law enforcement, over 200 written articles in 5 years, Holds the rank of Major and Chief
Technology Officer for the largest statewide law enforcement agency in Florida, Served as an Assistant
Chief Training Officer and a police academy instructor, In his more than 14 years of law enforcement,
training, and management experience, Tim has worked closely with all facets of the criminal justice
system, He has held several different positions as he increased in rank, having served as a road patrol
officer, Traffic Homicide Investigator, first-line field supervisor, and manager of supervisory personnel,
The Difference Between Law Enforcement and Policing, 28 December 2019,
https://www.thebalancecareers.com/law-enforcement-vs-policing-974604

Often when we discuss criminal justice systems, strategies, and even professions, the terms law
enforcement and policing are used interchangeably . Though to some the two concepts may seem
to be one and the same, to criminology practitioners the differences are significant.
Those interested in pursuing careers in criminal justice or criminology should learn the difference
between law enforcement and policing , and why the distinction matters . Knowing the role each
plays in keeping the public safe could help repair the rift that is growing between police and communities.
Concept of Law Enforcement
At its core , the concept of law enforcement consists of just that: enforcing laws . In its purest form, law
enforcement requires an unwavering adherence to rules and procedures. It involves a focus on the letter
of the law rather than the spirit of the law. Citations are issued, arrests are made, and force is employed
with little regard for the reason or meaning behind a particular law or policy.
Law enforcement can be a very effective way to maintain public order and punish crime inasmuch as it is
focused on requiring the members of a community or society to comply with the law or face the
consequences. The problem of law enforcement as the sole response to crime, however, is that it is
singular in its approach, responding to effects without consideration for causes.
Concept of Policing
The term policing has come to mean an approach to fighting crime through community service and
problem solving . It requires a holistic approach to dealing with crime, taking into account the
problems that plague a community and working with the people within that community to solve
them.
Policing requires cooperation from residents, business owners, and leaders who participate in the process
of reducing crime and improving quality of life. While this idea of community policing may sound
revolutionary, it actually dates back to the earliest days of the modern police force. The concept is best
articulated in Sir Robert Peel's nine principles of policing.
Difference Between Law Enforcement and Policing
While there may be some overlap between these two concepts, the truth is that the differences run
deep . Whereas law enforcement implies compulsory compliance , policing suggests voluntary
adherence . Where law enforcement uses the rule of law and the threat of punishment to enforce
obedience, policing is intended to deal with behaviors through community relationships and
addressing root causes .
In a sense, law enforcement is but one component of policing —one of many tools in the toolbox
available to police officers and law enforcement agencies .
Why Does the Difference Matter?
In the current environment, particularly in the United States , there is a perception that a gulf has
emerged between police departments and their communities. By focusing solely on law enforcement ,
as opposed to the holistic approach to community policing, officers risk widening the gulf .
Taking a law enforcement-only approach to fighting crime can encourage an us-against-them
mentality, both in officers and the members of the public they serve. When police look to work within their
communities to solve problems and fight crime together, it encourages participation and ownership on
behalf of all parties and helps foster trust between officers and the general public.

Policing includes surveillance and control by a broader range of actors

Boyd School of Law, 20
William S. Boyd School of Law at the University of Nevada Las Vegas, Race, Gender & Policing Program,
March 2020, https://law.unlv.edu/race-gender-policing/symposium

The Program on Race, Gender & Policing explores the relationship between race, gender, and the ways
people are policed. Policing refers to not only the activities of law enforcement officers , but also
the ways that other actors , such as immigration officials, prison officials, schools, and private
civilians , participate in surveillance and control . The Program seeks to foster interdisciplinary
research and concrete reforms in Nevada, the nation, and beyond. Our goal for this symposium is
nothing less than to produce an issue that becomes the best statement of how race and gender and
policing come together.
Forensic Science
 Comprehensive definition
There are 5 types of forensic science—prefer government definitions from NIST
Risinger 18 (D. Michael Risinger John J. Gibbons Professor of Law, Seton Hall University School of
Law. "The Five Functions of Forensic Science and the Validation Issues They Raise: A Piece to Incite
Discussion on Validation,” 48 Seton Hall L. Rev. 719, 2018)
I. Introduction
In mid-February of 2017, I attended (virtually) the
meeting of the whole National Institute of Standards and
Technology (NIST) Organization of Scientific Area Committees for Forensic Science (OSAC), at which
every area of forensic science covered by the various Scientific Area Committees (SACs) and their subcommittees
reported on the current state of their efforts to bring improvement to their respective disciplines. This exercise caused me
to reflect on two questions - what is the operational assumption concerning the meaning of "forensic science"
reflected by the OSAC effort, and what can be said about approaches to validation in regard to the disparate collection of
disciplines covered by the OSAC subcommittees? I will address each of these questions below.
[*720]
II. What is the Operational Assumption Concerning the Meaning of "Forensic Science" Reflected by the OSAC Effort?
In approaching this question, I will not take up the hugely contentious issue of the "demarcation problem," that is, the proper criteria
to be used to distinguish between claims of expert knowledge based on "science," and those based on non-science (but perhaps
still well-warranted) knowledge. 1Link to the text of the note Instead, I will simply set out what appears to be the OSAC operational
assumption, which is a very broad approach to the notion of science in forensic science - one that apparently reflects the traditional
forensic science usage in labelling something "science" if the practitioners in an area have asserted historically that they are
"scientists" whose knowledge has been derived "scientifically." It is clear that something like this broad a definition is at work in the
OSAC, because it includes many disciplines that would be hard put to meet any more constrained definition of "science-based
knowledge" but which for many decades have been claimed by their practitioners to reflect the products of "science."
The "forensic" part is also a little troublesome to characterize. The usual definition of "forensic science" is "the
application of scientific knowledge to provide relevant evidence for use in the determination of material
issues in resolving legal disputes," or some such. 2Link to the text of the note Viewed from this broad
perspective , virtually any scientific knowledge can be deployed as "forensic science" in some litigation
setting. 3Link to the text of the note For instance, quantum mechanics might provide relevant information on why
some GPS system was in error in a way that caused damage to users of that system. Obviously, this broad
definition is not the operational definition for the OSAC. Quantum physicists might become expert witnesses on occasion, but the
(perfectly reasonable) operational assumption of the OSAC is that the forensic science disciplines it will deal
with will be limited to disciplines whose products are predominantly if not exclusively generated for use in
[*721] litigation in courts or other similar fora, or the investigation of such issues. 4Link to the text of the note But
still this definition is too broad , because many disciplines whose products have recurring impact on
many issues in civil litigation, such as epidemiology in toxic tort claims, are nowhere to be found in the
OSAC. It is clear that the focus of the OSAC is on forensic science disciplines whose products are generally
aimed at criminal litigation , even though they may also be relevant to various civil claims. 5Link to the text of the note This
practical focus is the result both of the historical membership in the American Academy of Forensic Sciences, and of the origins of
the OSAC effort - the 2009 NAS report, which was focused on problems of reliability in regard to forensic science, specifically
prosecution-proffered forensic science, in criminal proceedings. Even through this lens, however, there are some curious
omissions from the OSAC. Forensic pathologists and forensic dentists are included, but forensic
psychologists and psychiatrists, even though they also invoke the mantle of science, are not included . Perhaps this
omission was more a matter of prudence than of principle, given the hugely different problems of standardization and validity
presented by those "forensic science" disciplines. It is hard to imagine the kind of standards effort and products
fostered by NIST being generated in regard to forensic psychology and psychiatry. Or perhaps it was merely a
matter of habit, since the term "forensic science" is not commonly deployed in regard to them. 6Link to the text of
the note
Be that as it may, thereare still plenty of disciplines that are included. Here is a list of specialties which may
be incomplete, depending on how one cuts domain boundaries, but is still extensive and good enough for illustrative
purposes:
[*722] Forensic document examination (mainly but not exclusively handwriting analysis)
Fingerprint examination (friction ridge analysis and comparison)
Other print-like phenomena
Footprints
Tire tracks
Visual hair and fiber comparison
Firearms expertise
Toolmark expertise
Blood stain and spatter analysis
Forensic odontology
Forensic anthropology
Forensic entomology
Forensic botany
Forensic biological morphology
Forensic geology
Forensic serology
Human DNA
Non-human DNA
Forensic toxicology
Forensic chemistry (includes gunshot residue)
Dogs as instruments to identify and find substances
Digital forensics
Photogrammetry
Facial Recognition
Voice recognition
Fire investigation
Shooting incident reconstruction
Forensic pathology
The above list is merely illustrative of the variety of disciplines covered by the OSAC. Some of the labels cover areas that are very
narrow in their focus and the subject matter they deal with. For instance, fingerprint examiners deal almost exclusively with the
characterization and comparison of fingermarks left at a crime scene with exemplars from known people, either individually or
identified through a database search. That is not to say that there are not different contexts and subtasks involved in the enterprise,
but they all revolve around the phenomenon of ridged skin. Document examination, on the other hand, encompasses a more
complicated subject matter. While the bulk of a document examiner's work involves comparison of handwriting of various kinds,
document examiners also deploy expertise [*723] in regard to paper, ink, printing methods, and other specialized knowledge
relevant to determining the authenticity of any sort of document.
However, my purpose is not to describe in detail the broad or narrow domain of the disciplines listed above. Instead, I want to
suggest that the tasks of all these disciplines fall into a very few categories, and that those cross-discipline
categories have something to teach about what validation is necessary to determine if their claims to
knowledge are "fit for purpose," especially in regard to prosecution-proffered expert testimony in criminal cases. Note that
my observations below are limited to what might be called "ideal condition validity." The validity of results under the actual conditions
of practice prevailing at the time of the generation of the result is another topic altogether, although an important one, which I invite
other participants in this symposium to explore. 7Link to the text of the note
[*724]
III. The Five Functions of Forensic Science
every task undertaken in a forensic science discipline will fall into one of five categories :
I believe
1. Description/characterization of an object
2. Identification of a substance or object
3. Association of one object with another by virtue of common characteristics
4. Source attribution (This is a special class of association springing from the claim that some associations may be so strong
as to justify identifying one as the source of the other, or concluding that both had the same source.)
5. Reconstruction of a dynamic event

The National Institute of Justice defines 12 areas of forensic science

NRC 9 (National Research Council, part of the National Academies and intended to foster research,
further knowledge, and advise the federal government. “Strengthening Forensic Science in the United
States: A Path Forward,” The National Academies. 2009)
WHAT IS FORENSIC SCIENCE?
Although there are numerous ways by which to categorize the forensic science disciplines, the committee
found the categorization used by the National Institute of Justice to be useful:
1. general toxicology;
2. firearms/toolmarks;
3. questioned documents;
4. trace evidence;
5. controlled substances;
6. biological/serology screening (including DNA analysis);
7. fire debris/arson analysis;
8. impression evidence;
9. blood pattern analysis;
10. crime scene investigation;
11. medicolegal death investigation; and
12. digital evidence.5
Some of these disciplines are discussed in Chapter 5. Forensic pathology is considered a subspecialty of
medicine and is considered separately
in Chapter 9.
The term “forensic science” encompasses a broad range of disciplines, each with its own distinct
practices. The forensic science disciplines exhibit wide variability with regard to techniques,
methodologies, reliability, level of error, research, general acceptability, and published material (see
Chapters 4 through 6). Some of the disciplines are laboratory based (e.g., nuclear and mitochondrial DNA
analysis, toxicology, and drug analysis); others are based on expert interpretation of observed patterns
(e.g., fingerprints, writing samples, toolmarks, bite marks). Some activities require the skills and analytical
expertise of individuals trained as scientists (e.g., chemists or biologists); other activities are conducted by
scientists as well as by individuals trained in law enforcement (e.g., crime scene investigators, blood
spatter analysts, crime reconstruction specialists), medicine (e.g., forensic pathologists), or laboratory
methods (e.g., technologists). Many of the processes used in the forensic science disciplines are largely
empirical applications of science—that is, they are not based on a body of knowledge that recognizes the
underlying limitations of the scientific principles and methodologies used for problem solving and
discovery. It is therefore important to focus on ways to improve, systematize, and monitor the activities
and practices in the forensic science disciplines and related areas of inquiry. Thus, in this report, the term
“forensic science” is used with regard to a broad array of activities, with the recognition that some of these
activities might not have a well-developed research base, are not informed by scientific knowledge, or are
not developed within the culture of science.
 Only physical evidence
Forensic science excludes digital evidence
Lim 8 (Nena Lim, PhD, associate professor of Information Systems at Curtin University. "Digital
Forensic Certification Versus Forensic Science Certification,” Conference on Digital Forensics, Security
and Law, 2008)
2. DIGITAL FORENSIC CERTIFICATION
Digital forensic is the “process of identifying, preserving, analyzing, and presenting digital evidence in a
manner that is legally acceptable” (McKemmish, 1999). It emerged as a discipline in 1980s (Mohay et al.,
2003). Unlike well-established disciplines such as accounting and engineering, digital forensics discipline
has many certifications available. The variety of certification could be quite confusing even to the digital
forensic professionals themselves. Some of the certifications include Certified Information Forensics
Investigator (CIFI), Certified Computer Examiner (CFE), GIAC Certified Forensics Analyst (GCFA), just to
name a few. With so many digital forensic certifications available, choosing a representative one is not an
easy task. In this paper, we decided to use the number of certificate holders as an objective indicator of
the representativeness of a certification. Unfortunately, most computer forensic certification granting
bodies do not indicate their numbers of certificate holders on their web-sites. Based on the limited
available information, we chose GIAC Certified Forensics Analyst (GCFA) because it has more than 1100
certificate holders and GIAC has certified over 20,000 professionals. GCFA is one of the certifications
granted by Global Information Assurance Certification (GIAC). GIAC is a professional body established in
1999. It offers a suite of more than 20 certifications which cover expertise in computer security and digital
forensics (Frisk, 2008). All GIAC certifications are structured across four levels (level 3 to level 6). As the
coverage of each GIAC certification is rather specific, information systems or security professionals will
have to obtain different certifications from GIAC to show they have knowledge in different areas. GCFA is
a level 5 certification and it provides assurance that a certified individual has the knowledge and skills
necessary to undertake forensic analysis and incident investigation.
3. FORENSIC SCIENCE CERTIFICATION
Similar to digital forensic, forensic science is the application of science to identify, preserve, analyze, and
present evidence in a legally acceptable manner. The main difference between the two disciplines is
that forensic science emphasizes physical evidence instead of digital evidence . The forensic
science certification is chosen for comparison purposes because forensic science is closely related to
digital forensics. It will be interesting to see how closely the certification requirements of these two
relatively new disciplines match up to each other. Among the various forensic science certifications, the
certification provided by the Board of Forensic Document Examiners (BFDE) is included in the
comparison in this study because it is one of the six accredited boards under the Forensic Specialties
Accreditation Board, Inc. (FSCB). (None of the FSCB accredited boards is related to digital forensic.) As
the FSCB is sponsored by the American Academy of Forensic Sciences (AAFS), the National Forensic
Science Technology Center (NFSTC), and the National Institute of Justice, certifications granted by the
accredited boards under FSCB are likely to gain more confidence from the general public. We believe the
BFDE was established around 2005 but the exact date is unclear.

Forensic science is the application of science to physical evidence

Merriam-Webster ND (Merriam-Webster Dictionary. "Forensic Science,” No Date,
https://www.merriam-webster.com/medical/forensic%20science)
the application of scientific principles and techniques to matters of criminal justice especially as relating to
the collection, examination, and analysis of physical evidence

Forensic science requires physical evidence

US Legal ND (US Legal Dictionary. "Forensic Science Law and Legal Definition," US Legal, No Date,
https://definitions.uslegal.com/f/forensic-science/)
Forensic science is defined as the application of science to the law. In criminal cases, forensic scientists
are often involved in the search for and examination of physical traces which might be useful for
establishing or excluding an association between someone suspected of committing a crime and the
scene of the crime or victim. Such traces commonly include, among others, blood and other body fluids,
hairs, textile fibres from clothing etc, materials used in buildings such as paint and glass, footwear, tool
and tire marks, flammable substances used to start fires. Sometimes the scientist will visit the scene itself
to advise about likely sequence of events, any indicators as to who the perpetrator might be, and to join in
the initial search for evidence. Other forensic scientists analyse suspected drugs of abuse, specimens
from people thought to have taken them or to have been driving after drinking too much alcohol, or to
have been poisoned. Others specialize in firearms, explosives, or documents whose authenticity is in
doubt.

Forensic science is defined separately from digital forensics

*D/MM = Digital and Multimedia
DoDD 5205.15E (Department of Defense, Directive 5205.15E, “DoD Forensic Enterprise (DFE),”
Published April 26, 2011, last updated October 15, 2018)
These terms and their definitions are for the purpose of this Directive.
authoritative data repository. The primary DoD-approved repository of information.
business operations. The policies, processes, information, and systems related to the end-to-end
financial, logistical, facility management, human capital, acquisition, administrative, and other such
functions of the DoD that support the warfighter.
DFE. The DoD resources, assets, and processes required to provide forensic capabilities in support of
DoD operations.
D/MM forensics. The application of computer science and investigative procedures involving the
examination of D/MM material. D/MM forensics is derived from a combination of definitions as it applies
across the spectrum of computer forensics, audio forensics, image analysis, and video analysis.
computer and electronic device forensics . A sub-discipline of D/MM forensics that involves the
scientific examination, analysis, and/or evaluation of digital and electronic materials.
audio forensics . A sub-discipline of D/MM forensics that involves the scientific examination, analysis,
comparison, and/or evaluation of audio.
image analysis. A sub-discipline of D/MM forensics that involves the application of image science and
domain expertise to examine and interpret the content of an image and/or the image itself.
video analysis . A sub-discipline of D/MM forensics that involves the scientific examination, comparison,
and/or evaluation of video.
forensic science (often shortened to forensics). The application of multidisciplinary scientific processes
to establish facts.
multimedia. The use of different formats for presenting information to convey information and content that
utilizes a combination of different content forms. The term can be used as a noun (a medium with multiple
content forms) or as an adjective describing a medium as having multiple content forms. The term is used
in contrast to media that only utilize traditional forms of printed or hand-produced material. Multimedia
includes a combination of text, audio, still images, animation, video, and interactivity content forms, often
packaged on compact disk-read only memory with links to the Internet.
questioned documents. Documents that undergo a forensic document examination to include the analysis
and comparison of questioned handwriting, hand printing, typewriting, commercial printing, photocopies,
papers, inks, and other documentary items with known material in order to establish the authenticity of the
contested material as well as the detection of alterations.
ROMO. The spectrum of operations in which the future joint force is expected to engage.
U.S.-based forensics laboratories. Those DoD laboratories based in the United States that perform
forensic analysis to support the Department’s full range of military operations. These labs include:
Defense Forensic Science Center
Defense Computer Forensics Laboratory
Armed Forces Medical Examiner System
Defense POW/MIA Accounting Agency laboratories
Forensic science is only physical evidence
Exton ND (Deborah Exton, Department of Chemistry, University of Oregon. "Forensic Science
Advising," University Of Oregon, No Date, https://pages.uoregon.edu/dexton/fsadvising.html)
Forensic Science is the application of scientific principles and technological practices to the study and
resolution of criminal, civil and regulatory issues. The role of the forensic scientist is twofold: to analyze
physical evidence and to provide expert testimony in a court of law. This information is helpful in
determining the innocence or guilt of the suspect.

Forensic science is only physical evidence

BLS 18 (US Bureau of Labor Statistics, "Forensic Science Technicians," US Department of Labor, May,
2018, https://www.bls.gov/oes/2018/may/oes194092.htm)
Collect, identify, classify, and analyze physical evidence related to criminal investigations . Perform
tests on weapons or substances, such as fiber, hair, and tissue to determine significance to investigation.
May testify as expert witnesses on evidence or crime laboratory techniques. May serve as specialists in
area of expertise, such as ballistics, fingerprinting, handwriting, or biochemistry.

Forensic science only includes physical evidence

Open University ND (The Open University "Digital forensics," The Open University, No Date,
https://www.open.edu/openlearn/science-maths-technology/digital-forensics/content-section-2.4)
Forensic science is the collection and analysis of physical evidence generated by criminal activity or
relating to a civil matter. The physical evidence may include drugs, firearms, tool marks, fingerprints,
footwear, blood, glass, paint, bones, soil, accounting records and other material. All the analysis is
conducted in a forensic laboratory, following strict evidence handling procedures laid down by
professional bodies and regulators.
 Includes digital
*Both cards in the comprehensive definition section include digital

Forensic science includes digital evidence

NIST 20 (National Institute of Standards and Technology, "Digital evidence," US Department of
Commerce, Page last updated 4/23/20, https://www.nist.gov/topics/digital-evidence)
Digital forensics is the field of forensic science that is concerned with retrieving, storing and analyzing
electronic data that can be useful in criminal investigations. This includes information from computers,
hard drives, mobile phones and other data storage devices. In recent years, more varied sources of data
have become important, including motor vehicles, aerial drones and the cloud. Digital forensic
investigators face challenges such as extracting data from damaged or destroyed devices, locating
individual items of evidence among vast quantities of data, and ensuring that their methods capture data
reliably without altering it in any way. The projects listed below are just a few examples of how we help
the digital forensics community to address these challenges.
 Includes forensic psychology
Forensic science includes psychology and psychiatry
Heilbrun 10 (Kirk Heilbrun, Department of Psychology, Drexel University and received the Beth Clark
Award for Distinguished Service from the American Academy of Forensic Psychology. Stephanie Brooks,
Department of Psychology, Drexel University. “FORENSIC PSYCHOLOGY AND FORENSIC SCIENCE:
A Proposed Agenda for the Next Decade,” 16 Psych. Pub. Pol. and L. 219, August, 2010)
Under the Science, State, Justice, Commerce, and Related Agencies Appropriations Act of 2006 ,

Congress authorized the National Academy of Sciences to conduct a study on the state of forensic
science in the United States and make recommendations for improvement "Forensic science" was .

defined to include the disciplines of chemistry, biochemistry, biology, and medicine, as well as
scientific, technical, and crime scene personnel Its scope included both laboratory based endeavors .

and the interpretation of observed patterns

(e.g., nuclear and mitochondrial DNA analysis, toxicology and drug analysis) (e.g., fingerprints, writing samples, toolmarks, bite marks, and hair specimens).

It did not include psychology or psychiatry However, much of this report including the observed
[*228] . --

strengths and needs of forensic science and the recommendations for improvement appears relevant to , --

the science and practice of forensic psychology , considered broadly. It will therefore be considered in some detail, and used to help frame the priorities of forensic psychology for the
next decade.

The charges to the Forensic Science Committee that are particularly relevant to psychology include the
following: (a) assess resource needs (b) make recommendations for
present and future forensic
of the forensic science community; maximizing the use of

technologies and techniques; (c) identify potential scientific advances; (d) make recommendations for
programs that will increase the number of qualified forensic scientists and (e) disseminate best practices ; and

The report observed that resources, services, and expertise of forensic scientists vary widely across
guidelines.

jurisdictions, resulting in substantial variation in depth, reliability, and overall quality of the substantive
information provided This variability was attributed to the absence of (a) adequate training and continuing
.

education, (b) rigorous mandatory certification and accreditation, (c) adherence to robust performance
standards, and (d) effective oversight . The report also notes that forensic science is harmed by extreme disaggregation--multiple types of practitioners, different levels of education and training, varying
professional cultures, reliance on apprentice-type training, and guildlike structure of disciplines.
The full text of this report is available online (http://www.nap.edu.ezproxy.lib.utah.edu/catalog.php?record_id = 12589). The report raises two very important questions concerning the nature of forensic evidence used in criminal proceedings: (1) the nature of the
foundational science on which expert evidence is based and the results communicated; and (2) the extent to which expert evidence may be tainted through bias, human error, or the absence of sound operational procedures and performance standards (Monahan &

The report's recommendations that appear most applicable to forensic psychology are discussed in
Walker, 2010).

this section.
Best-Practice Standards. There has been noteworthy progress in forensic psychology in this area during
the past decade , although substantial gaps remain. Practice guidelines comparable with those developed by the AAPL are not available; for reasons discussed in this article, they are unlikely to be developed through the APA. However,

there is a substantial and growing scientific literature in areas such as response style, risk assessment,
and specialty tools for assessing functional legal capacities for various legal questions . This literature has been cited and applied to
forensic assessment (e.g. Melton et al., 2007; the Oxford University Press best practices series). The most important source of forensic ethical guidance, the SGFP, is nearing completion in revised form (Committee on the Revision of the SGFP, 2008).

Certification of Scientist--Practitioners. There are two levels of certification of competence in the practice
of forensic psychology, roughly paralleling the proficient and specialty levels identified at the 1995
Villanova Conference Some states provide training in forensic assessment and certify those with
(Bersoff et al., 1997).

a demonstrated degree of knowledge and skill. Such individuals might be considered proficient in the practice of forensic psychology. Massachusetts, for instance, has used a "certified forensic

The second level is board

evaluator" designation for over 2 decades. (Other states, such as Virginia, Florida, and Texas, provide specialized continuing [*229] education training but do not formally certify practitioners.)

certification , which can be satisfied through the American Board of Forensic Psychology --an organization that has been providing board certification since 1978 and is now affiliated with the American Board of Professional Psychology. Board
certification is one reflection of specialization in the practice of forensic psychology.

Promoting Peer-Reviewed Research and Technical Development. There is a clear recognition within the
field that forensic psychology should be evidence based whenever possible, with strong links to the
foundational science (see, e.g., Committee on the Revision of the SGFP, 2008; Grisso, 2003; Melton et al., 2007). Some of this recognition is long-standing (see, e.g., Melton et al., 1987), some of it is strengthened by the current

The "technical development"

emphasis on evidence-based practice, and some results from legal expectations (Daubert v. Merrell Dow Pharmaceuticals, Inc, 1993; Kumho Tire Company, Ltd. v. Carmichael, 1999).

has been largely realized through the development of specialized forensic assessment instruments. The field has
witnessed the development of a number of empirically supported tools to help in assessing violence risk (e.g., the Classification of Violence Risk [Monahan et al., 2005]; the Level of Service/Case Management Inventory [Andrews, Bonta, & Wormith, 2004]; the
Historical--Clinical--Risk Management--20 measure [HCR-20; Webster, Douglas, Eaves, & Hart, 1997]; and the Violence Risk Appraisal Guide [Harris, Rice, & Quinsey, 1993]), competence to stand trial (Evaluation of Competence to Stand Trial--Revised [ECST-R;
Rogers, Tillbrook, & Sewell, 2003] and the MacArthur Competence Assessment Test--Criminal Adjudication [MacCAT-CA; Poythress et al., 1999]), competence to make treatment decisions (the MacArthur Competence Assessment Tool--Treatment; Grisso &
Appelbaum, 1998), capacities to waive Miranda rights (Grisso, 1998), and other areas (see Grisso, 2003).

Improving Forensic Education and Promoting Educational Standards. This is another area in which
forensic psychology has made important strides on the predoctoral, postdoctoral, and continuing
professional education levels . Since 2000, forensic psychology (narrowly defined) has been recognized by APA as an area of applied specialization. The regulatory implications of this recognition have been developed in
postdoctoral training context, through guidelines for the APA accreditation of postdoctoral fellowships (AP-LS, 2009a, 2009b). Such guidelines will probably not be developed for the purpose of accrediting doctoral forensic training programs, as APA accredits
applied doctoral training programs only in the broad areas of clinical, counseling, and school psychology. However, they may well be developed to assist in evaluating forensic specialty concentrations within accredited programs. There have also been proposals for
training in particular domains that would facilitate the development of forensic expertise [*230] within the broader areas of clinical, counseling, and school psychology as well as within neuropsychology and cognitive, developmental, human experimental, and social
psychology (DeMatteo et al., 2009; Poythress, 1979). The availability of continuing professional education in forensic psychology has been facilitated by the programs provided by the American Academy of Forensic Psychology over the past 25 years
(http://www.aafp.ws/).

Funding to Support Research, Education, and Practice. The availability of public funding in these areas is
mixed . Research funding for forensic psychology from the National Institutes of Health, the National Science Foundation (NSF), and the National Institute of Justice is small compared with that available in other areas of behavioral and medical science. The
 public funding of forensic
education of some doctoral-level psychologists is supported within the budgets of public hospitals and correctional facilities (for practicum and internship training). A good example of such

practice involves the U.S. Bureau of Prisons, which conducts the majority of criminal forensic evaluations
in the federal system, provides internship and postdoctoral training for developing forensic psychologists,
and promotes forensic board certification of practitioners Such education is also supported by public and .

private universities, particularly for research-oriented clinical training program s (Norcross, 2009), but very rarely by federal funding. By contrast,

practice of forensic psychology in criminal and juvenile/family contexts is supported in large part by
however, the

public funding, through the budgets of particular jurisdictions, federal and state courts, and the offices of
prosecutors and public defenders . This is less applicable in civil litigation, however, where the costs of forensic evaluations and consultation are borne largely by the litigants.

Funding for Relevant State and Local Agencies. Public funding is available for many aspects of forensic
psychology practice . Whether this funding is sufficient to allow adequate staffing and operations is a different question, and the answer undoubtedly varies across jurisdictions. One of the most interesting questions raised in the NRC
report is whether funding might be enhanced at start-up, allowing agencies and units delivering public forensic services to design their functioning according to recognized best-practice standards.

Assessing Development and Impact of New Technologies . The use of contemporary telecommunication technology has been very limited in the delivery [*231] of forensic
psychology services. One noteworthy exception involves the use of computer administration, scoring, and interpretive guidance seen in certain psychological tests (e.g., Minnesota Multiphasic Personality Inventory--2, Millon Clinical Multiaxial Inventory--III,

the opportunity for expanded use of personal digital

Personality Assessment Inventory) and specialized measures (e.g., the Classification of Violence Risk). However,

assistant technology for accessing relevant empirical evidence and guiding best practice, for example, is
striking it may be useful to incorporate the use of portable assessment devices for measuring brain
. In a related vein,

activity (e.g., functional near-infrared spectroscopy, or fNIRS) and the enhanced use of relevant assessment software as the necessary equipment becomes smaller and less costly. As communication is enhanced through social networking and internet
technology, there is expanded opportunity to obtain much more information than we could previously. With more information available, however, there is also a much greater need to check the accuracy of such information.
It is also useful to consider the expanded use of teleconferencing technology. This permits interviewing and expert testimony at something approaching in-person levels of clarity. It could also be used to facilitate collaboration among professionals conducting an
evaluation when one of them is offsite, which has valuable implications for training and continuing professional education.

Establish Standard Terminology and Model Reports. The establishment of standard terminology and
model reports would be an important part of the development of practice guidelines . This now appears technically feasible. It would be
important to use sufficient flexibility in such terminology and model reports to account for differing legal demands across jurisdictions and to avoid premature closure in areas in which there remains active disagreement within the field (e.g., answering the ultimate
legal question). However, for reasons discussed elsewhere in this article, it would be problematic for APA, with its multiple constituencies, to serve as the home for practice guidelines in forensic psychology. Perhaps the preferable approach involves emulating the
AAPL by developing practice guidelines for specific types of forensic evaluations and consultations. This approach would yield different sets of guidelines that would be aspirational although, without APA endorsement, less likely to have an impact on regulatory
bodies (just as the 1991 SGFP had limited impact for this reason).

Competitively Fund Peer-Reviewed Research on Scientific Bases of Validity of Forensic Methods. Many
of the best specialized forensic assessment instruments have been developed through programmatic
research funded by federal granting agencies or foundations. Examples include the MacCAT-CA, the MacArthur Competence Assessment Tool for Treatment, and the
Classification of Violence Risk (funding from the MacArthur Foundation and the National Institutes of Health), the Instruments for Assessing Understanding and Appreciation of Miranda Rights (Grisso, 1998 [funding from NIMH]) and the work currently being
conducted by Rogers and colleagues on Miranda waiver capacities (Rogers, Harrison, Hazelwood, & Sewell, 2007 [funding from the NSF]). Increased levels of competitively awarded funding would promote the development of more such tools, which have been
among the best vehicles for increasing the scientific foundation of forensic practice. Alternative funding models, including enhanced support from foundations and perhaps from private-sector companies that might [*232] market specialized tools and technologies
once developed and validated, should also be considered.

Develop and Establish Quantifiable Measures of Reliability and Accuracy of Forensic Analyses. Research
on forensic questions and tools has a well-developed array of measures available Predictive research .

designs rather than controlled comparisons are necessary when many of the variables studied are difficult
or impossible to manipulate, for practical or ethical reasons. Such research, focusing on questions such
as who will be violent or who will be rearrested, now routinely incorporates such analytic techniques as
receiver operating characteristics, odds ratios, sensitivity, and specificity--substantial advances over
analytic techniques used before 1990 . Debates within the literature have also recently focused on the question of how group-derived standards apply to individuals and the important role played by confidence
intervals (Hart, Michie, & Cooke, 2007; Heilbrun, Douglas, & Yasuhara, 2009). Therefore, forensic psychology seems well equipped on this score.

Publish Reliability and Validity Data in Good Journals. A large number of competitive journals now publish
behavioral science evidence relevant to forensic psychology . Such journals include mainstream psychology journals (e.g., Assessment, Journal of Applied Psychology,
Journal of Consulting and Clinical Psychology, Psychological Assessment) as well as interdisciplinary journals (e.g., Behavioral Sciences & the Law, Criminal Justice and Behavior, Journal of the American Academy of Psychiatry and Law, International Journal of
Forensic Mental Health, Law and Human Behavior, Psychology, Public Policy, and Law). A review of the "Research Briefs" section of the AP-LS News (e.g., see AP-LS, 2009a, 2009b) provides ample illustration of the number and range of such journals and the
associated range of studies they publish.

Promote Research on Observer Bias and Human Error in Forensic Examinations. The measurement of
human error is an important part of using psychological tests and specialized tools in forensic contexts.
There is an extensive literature on the reliability and accuracy of decisions made through unstructured
clinical judgment, structured professional judgment, and actuarial approaches and a (Douglas & Ogloff, 2003; Monahan, 2008a)

substantial body of research on the contribution of evaluee response style to the potential for error in
forensic evaluations (Rogers, 2008). As well, there is a growing body of evidence on potential evaluator bias as a function of defense versus prosecution appointment in the scoring of relevant psychological tests (Boccaccini, Turner, &
Murrie, 2008; Murrie et al., 2009). The development of empirically supported specialized tools has also created an important methodological advantage in research on bias and error: It gives researchers an outcome against which to compare the results of human
judgment, whereas researchers before the existence of such tools were forced to use contaminated outcomes such as legal decisions that were not independent of the evaluations being studied.

Develop Specialty Tools. The development of specialty tools for the assessment of functional legal
capacities is one of the most important strategies for promoting empirically based practice. There has
been substantial progress in this area. These include measures developed to help assess competence to
stand trial capacities to waive Miranda rights
(ECST-R [Rogers et al., 2003]; Fitness Interview Test-Revised [Roesch, Zapf, & Eaves, 2004]; MacCAT-CA [Poythress et al., 1999]), (Grisso, [*233]

risk assessment for juveniles

1998), risk
(Structured Assessment of Violence Risk in Youth [Borum, Bartels, & Forth, 2003]; Youth Level of Service/Case Management Inventory [Hoge & Andrews, 2002]),

assessment for adults (the Classification of Violence Risk [Monahan et al., 2005]; Level of Service/Case Management Inventory [Andrews et al., 2004]; HCR-20 [Webster et al., 1997]; Violence Risk Appraisal Guide [Harris et al.,

and response style

1993]), (Structured Interview of Reported Symptoms [Rogers, 1992]; Test of Memory Malingering [Tombaugh, 1996]; Validity Indicator Profile [Frederick, 1997]). There is also a clear recognition of the value of such
measures (e.g., Heilbrun et al., 2008; Melton et al., 2007) when they are rigorously developed and supported by empirical data for the purposes) for which they are used. Despite such progress, however, there is much work that remains to be done in this area. A
number of legal questions for which FMHA is sought do not have a strong specialized measure available for use; practice in these areas will become less tenable in the future without such tools, given the way in which they translate scientific evidence into practice.
Develop Quality Improvement Procedures to Ensure Best Practice and Minimize Error. This encompasses two steps: (a) the development of broadly and specifically applicable principles and (b) the translation of such principles into quality control indices that are
applied to reports, testimony, and consultation in forensic contexts. Broadly applicable principles for FMHA have been described (Heilbrun, 2001; Heilbrun et al., 2008); more specifically applicable criteria would be the subject of practice guidelines for each kind of
evaluation, which have not yet been developed in forensic psychology. However, it would be challenging to implement such criteria across a wide range of settings that provide forensic psychology services. This is certainly needed; there is substantial evidence that
FMHA reports are often problematic (Christy, Douglas, Otto, & Petrila, 2004; Heilbrun & Collins, 1995; Hecker & Steinberg, 2002; Lander & Heilbrun, 2009). Whether it is feasible depends largely on the widespread recognition of the importance of such a step--a
recognition that could be promoted both by practice guidelines within the discipline and involvement in cross-disciplinary organizations such as the American Academy of Forensic Sciences or the National Institute of Forensic Science. Voluntary peer review is
available for forensic psychiatrists (through the AAPL) and forensic psychologists (through the American Academy of Forensic Psychology). Expansion of this process to promote more widespread usage, beyond the relatively rare and voluntary basis on which it is
now used, might well be indicated.

Develop a National Forensic Science Code of Ethics; Encourage Individual Societies to Incorporate This
Code Into Their Own Ethic . This describes a step that is conceptually straightforward for the discipline of
s

forensic psychology. The Committee on Ethical Guidelines for Forensic Psychologists is currently
SGFP ( , 1991)
under revision and will ultimately be approved through the APA process (unlike the 1991 version). The development of a code of ethics for forensic science,
applicable across disciplines, would clearly function as an important source of ethics authority and would be likely to be considered seriously for incorporation into future versions of the SGFP.
Fund Interdisciplinary Graduate Training. There is little federal funding currently available specifically for interdisciplinary training. There are occasional exceptions; the University of Nebraska's Law--Psychology program still offers an [*234] NIMH traineeship
(http://www.unl.edu/psypage/grad/lawpsych.shtml) long after this has vanished at most other training sites. However, the fellowships and stipends that would follow from such support would have some impact on the approximately 90 clinical psychology doctoral
training programs that are well funded and research oriented, and possibly even more effect on the approximately 30 programs that are not well funded but produce 50% of the graduates in clinical psychology nationally (Norcross, 2009). This is particularly
noteworthy, given that those coming from practice-oriented programs are far more likely to be involved in the direct provision of a substantial amount of forensic services, relative to research-oriented graduates who seek academic positions.
There are, of course, limitations to the applicability of the NRC report to forensic psychology. Two of the clearest such limitations involve the emphasis on laboratory practice and the delineation of specific techniques that are not within the domain of psychology

reading the report's recommendations that go beyond this level of specificity

(e.g., DNA analysis). However, clearly (almost all of them)

points toward the conclusion that it is remarkably applicable to the field of forensic psychology.
 Excludes forensic psychology
Forensic psychology is distinct from forensic science
Murphy 19 (Sandra Murphy, clinical research associate at IQVIA. Master’s degree in Toxicology.
Bachelor of Arts in Psychology. Certified in Forensic Psychology and Criminal Investigation. Expert in
Offender Profiling, Crime Scene Investigation, Interviewing and Deception, Criminal Minds, and
Behavioural Analysis. "Forensic Science Vs. Forensic Psychology," Career Trend, 9-10-2019,
https://careertrend.com/facts-5871496-forensic-science-vs--forensic-psychology.html)
Forensic science and forensic psychology are two distinct disciplines . Although the two are often
thought of as one, each of these sciences has its own educational requirements, fields of study
and career applications.
Forensic Science
According to Michigan State University, which offers a forensic science master's program, forensic
science focuses on applying scientific processes and methods to criminal or public matters.
Forensic Psychology
Although often confused with police psychology or criminal psychology, forensic psychology focuses on
an accused person's ability to stand trial or to participate in his own defense.
Career Opportunities
Many forensic scientists work in crime laboratories in the areas of forensic chemistry, forensic biology and
criminalistics.
Forensic psychologists can be employed in large police departments or other type of law enforcement
agency that has a behavioral science unit.

Forensic science exclude forensic psychology

Stevenson ND (Sarah Stevenson, expert in behavioral psychology. "Forensic Psychology – Five
Myths And Truths," All Psychology Schools, No Date, https://www.allpsychologyschools.com/forensic-
psychology/forensic-psychology-myths/)
1. Forensic psychology is the same as forensic science
Although many people with an interest in forensic psychology have a parallel interest in forensic science,
the two terms are not synonymous.
Forensic science has a foundation in the “hard” sciences and involves laboratory-based investigation of
crime scene evidence, such as DNA collection and analysis, taking fingerprints, and examination of
firearms and bullets.
Forensic psychology, on the other hand, is defined by the American Board of Forensic Psychology as “the
application of the science and profession of psychology to questions and issues relating to law and the
legal system.” Essentially, forensic psychologists specialize in applying psychological knowledge to
situations within a legal context.