A Critical Assessment of Sanders' Freedom Model

Critically Assess Sanders' Freedom Model

Criminal justice theories are concerned with criminalisation, enforcement, and punishments with a primary aim of dispensing justice. Although theorists agree in the aim of criminal justice practice, their assertions on how it should be attained differ given the difference in the values and the interests of the criminal justice. As a result, there are different theories of criminal justice each advocating for a different way of promoting justice. For example, consequentialism theorists weigh the gains in crime reduction against the costs of the punishment policy to determine if criminal punishment is effective to the realisation of justice (Herring 2014). Consequentialism values have been used for several years in the criminal justice system but the freedom-based approach to criminal justice has challenged the applicability of consequentialism. This paper provides criminology dissertation help by critically assess Sander’s freedom model in relation to how it has changed the criminal justice system. The main aims of Sander’s freedom model are to convict the guilty, protect the innocent from wrongful convictions, protect victims, maintain human rights, maintain order, secure public confidence in policing and prosecution, and cut the costs and the consequent harm to other public services.

Sander’s freedom model holds that freedom should be the ultimate objective of the criminal justice processes thus all the actions by different actors should be geared towards realisation of freedom (Sanders, Young and Burton 2010). The achievement of this objective is somewhat challenged. According to Ashworth and Horder (2013), human rights frameworks establish different inviolable rights to every type of situations and every category of persons which poses an outright threat to freedom in that the high number of rights increases the scope in which some rights conflict with others resulting in violation of some rights. Similarly, strong and legally obtained evidence cannot be overlooked in bringing cases to trial and convicting which threatens some freedoms. For example, a case involving a conflict between the right to a fair trial and to privacy would result in trump over the latter in that the former has strong rights. Though Sander’s freedom model advocates for the freedom of all, it fails to outline how absolute, strong, and qualified rights can be balanced thus not effective in granting freedom to all.

Sander’s freedom model advocates for the freedom of victims as well as that of the people accused of crime (Sanders et al. 2010). The model opposes the adherents of the crime control perspective who argue that suspects and offenders should be given fewer freedoms than victims. Though well aligned to the ultimate objective of promoting freedom, Sander fails to realise that all applications of state power reduce freedom in the short run, which implies that all parties will not be given equal freedom. According to Fletcher and Gilmore (2010), the harm of a crime is irreversible thus the state power can do nothing to redress the balance. This statement is factual: less than one-tenth of all stop-searches lead to arrest while less than one-half of all arrests lead to prosecution (Fullfact 2019). Stop-search is among the applications that significantly reduce freedom and their gain is insignificant. If all the stop-search led to arrest and all arrests led to prosecution, the freedom of victims would be promoted while that of offenders would be reduced. Similarly, innocent stop-search result in reduction of freedom for the suspects, which erodes more freedom than it enhances. To overcome this limitation, the use of power must be justified every time it is granted in principle and exercised an area where Sander’s freedom model fails to offer guidance.

Sander’s freedom model advocates for placing equal weight on the freedom of victims and that of offenders (Sanders et al. 2010). Law enforcement is expensive given the financial cost incurred. According to House (2015), police activity against suspects and offenders costs freedom of those suspects and community resources. This implies that if similar weight was to be placed on victims’ freedom, the costs would be doubled making law enforcement even more expensive. It is among the aims of Sander’s freedom model and those of the state to cut cost in law enforcement, which implies that more weight will be placed on victims’ freedom, which significantly fails to enhance the freedom of suspects and offenders. Therefore, Sander’s freedom model is not applicable in assessing the weight to be placed on freedom of victims and that of the suspects.

Sanders holds that freedom is a simple remedy to the problems influenced models of criminal justice (Sanders et al. 2010). On the other hand, Worrall (2014) writes that actions and personalities are as a result of many factors such as age and health some of which are beyond human control, which implies that some of these actions might be wrongful but the offender cannot be termed a criminal in that the actions were not voluntary. For example, young children and mentally ill persons may perform some wrongful actions influenced by their peculiar factors (young age and illness) thus they cannot be held morally responsible for their actions. Advocating for freedom as the primary objective of the criminal justice process, Sanders fail to identify the social practice of restoring order when people commit crime under the influence of factors they have no control over. Therefore, Sander’s freedom model does not offer direction to enhancing and protecting freedom in cases where offenders act under influence of factors they have no control over.

Summarily, Sander’s freedom model has dominantly challenged the models of criminal justice stressing on the importance of freedom in the criminal justice process. Nonetheless, the model has its deficiencies which favour other models of criminal justice. First, the freedom model does not outline how absolute, strong, and qualified rights can be balanced for fair treatment of all. Second, the model is blind to the influence of state power in reducing freedom. Third, the model fails to recognise the additional cost in balancing the weight of victims’ freedom and that of the offenders resulting in greater weight being placed on the freedom of victims. Finally, the model remains silent on how freedom should be enhanced in cases where offenders act under influence of factors they have no control over.

The Constructs of Freedom Approach

Only a few people would maintain a divergent view against a need to convict the guilty and granting protection to the innocent and the entire community from any oppressive treatment. Many individuals are in support of a conception that criminal justice system should indeed confer dignified treatment to criminal justice victims and ensure this is undertaken proportionately and efficiently. The challenge with this is the nature of the societies we are residing which is not an ideal place, and consequently the contemporary justice approaches in place cannot be 100% efficient (Sanders, 2010). The best approach to tackle this problem of imperfect world is to formulate and develop approaches and practices which elevate justice systems as close to optimum as possible. Besides, it is important to comprehend that always the justice models will always be conflicting due to differing goal priorities and other considerations pursued when selecting such goals.

According to Sanders (2010), the interests and values of any given criminal justice model are different, and that Packer’s proposed two models of criminal justice try to ascertain capture as many interests and values as possible. Nonetheless, the two models normatively unacceptable and indeed have some missing links which deter them from meeting criminal justice obligations, suggests Sanders. From the perspective of human rights, there ascends a need to formulate models to fill in the discrepancies existing in current criminal justice models. Moreover, Sanders criticises Packer’s tow models, saying they have not been comprehensive to apply while comprehending, and perfecting criminal justice domain.

Sanders (2010) believe `the only healing to the gaps created by the previous criminal justice models is reinforcing and supporting crime repression pursuits from the freedom spectrum. As a result, freedom then should become the sole aim of any given criminal justice practice, and various deeds perpetrated by various criminal justice proponents ought to embrace this, consequently providing freedom a sort of unified currency. Sanders believes that the fundamental aim of protecting offenders, victims and other persons affected by the crime is to safeguard or enhance the interests of freedom. Freedom protection should be deemed as a general quest in isolation, but also as an avenue to the fate leading to fostering of peoples’ freedoms.

The constructs of freedom model are founded on the grounds of human rights, but equally comprises more than merely safeguarding the minimal “safety net rights” (Bretherton, 2015). The precepts of the human rights have offered a fundamental rapport from which criminal justice enforcers conduct crime controls and inquisitions. Nevertheless, human rights underscore a key purpose in the aftermath the combination of these processes. Besides, freedom approach pursues the absolute framework which combines efforts exerted into various justice models to enhance and derive more favourable quests by the society, which is to ever reside in a crime-free society.

Sanders further suggest freedom model inclines towards considering the impacts of committed crime and alongside the approaches followed to pursue and extract justice. Through freedom approach, law enforcers critique the extent by which freedom would be suppressed by an act before deciding upon the sort of action to make concerning the crime under question. Sanders (2017) propose that through intent and equitable choice of elements to be considered in a court hearing, it is plausible arranging the challenges based on the order of importance. As a result, justice is gauged in accordance to the freedom designated to it. For instance, if a committed crime is inferred to a particular person, it implies this person is alienated liberty to enjoy that which is taken away, or that which made them unconditionally suffer. Freedom approach aims to motivate judges to conceive their verdicts on the scale by which the criminal acts extend.

Sanders’ development of the freedom approach was therefore inspired by the existing gaps exiting in previous models. Hebert Packer’s conceptualization of the “Two Models of the Criminal Process” in 1964 triggered more concerns about criminal justice. Just like Packer’s model, Sanders’ Freedom Model has offered fundamental way of coping with the sophisticated nature of criminal process. The model permits for further simplification of major themes to a single truth. The freedom model helps serve different functions. For instance, Weitekamp and Kerner, 2012) suggest the model offer a guiding framework to weigh the positive and actual operations of justice system.

Sanders’ freedom model as a way of solving challenges about goal prioritisation is equally a conception requiring a critical review. In his proposal, Sanders define justice as a legal state-coercion (Sanders, 2010). His definition constitutes a huge advantage being succinct and challenging simultaneously. The definition reflects on that which ought to be deemed an objective function of criminal justice the UK and beyond, as opposed to the internal and bureaucratic practices of criminal justice. From this perspective, Volgler (2017) see Sanders’ definition of justice as a political and sociological thinking rather than a technocratic definition.

By virtue of Sanders’ definition of criminal justice as a “legal state-coercion”, he shares a portion of common ground with what Daly (2012) terms a Marxist or radical view of criminal justice. Sanders’s position is equally conceivable from liberalism, as a descriptive term as opposed to derogatory one. Reflecting on the liberal model, criminal justice becomes a technical bunch of reactions for dealing with identifiable challenges of contemporary society-crime. Consequently, Sanders articulates various criminal justice goals in his proposed Freedom Model, which this study finds worth unravelling for a deep mastery of how the model operates. These criminal justice goals include; crime prevention, reduced re-offending, subjecting offenders to justice, protecting the innocent and respecting witnesses plus victims (Weitekamp and Kerner, 2012)

Ashworth and Redmayne (2010) are amongst a few individuals disagreeing with Sanders’ list of the criminal justice goals. The scholars observed “actual criminalisation of criminalisable events … is a very rare event indeed … non -criminalisation is the rule, criminalisation the rare exception.” Given this belief, one is inclined not to ask if many offenders are introduced to justice, and if most victimisation does not in practice go unaddressed.

Perceiving the goal of justice system as revolving around protecting and enhancing freedom, will in principle resolve the challenge of deciding between different potentials of conflicting criminal justice principles, suggests Sanders (2010). Sanders propose that the most fundamental thing is prioritising the goal which can grant freedom the most. Under the premises of freedom approach, Sanders maintains “the freedom of victims as well as the freedom of people accused of crime is valued.” This proposition intends to quantify different potential benefits and harms of a given criminal justice strategy considering the computation of extents of freedom and “unfreedom” accrued to different parties engaged.

Daly (2012) views that operationalizing the freedom model will have to discontinue particular punitive policies in force, and more just and cost-effective policies introduced. One of the major claim why freedom model may be hard to operationalise is because peoples’ experience if and relationship to various deleterious acts presently confined as crimes, alongside the peoples’ convictions and experience in criminal justice intrigues are significantly affected by actual inequalities of opportunity, wealth and power which are characterizing the modern British society.

Fundamental Values of Criminal Justice

To effectively comprehend the extent of freedom model’s efficiency in criminal justice system, Daly (2012) suggests it is wise to compare and contrast its relationship with the 3 fundamental values of any justice system namely, democracy justice and the 3E’s (economy, effectiveness and efficiency). These core values are the major tenets above which valid criminal justice model are constructed.

The concept of justice has drawn varied meanings based in the context in which it is harnessed. Weitekamp, and Kerner (2012) study showed different opinions on what the respondents deemed justice to be. Whereas to others it encompassed retribution, to others they believed justice encompass acknowledgement of the wrongs done. Others maintained that the prospects of safety of the whole society are what justice constitutes. However, contemporary research has established two major from which justice is underscored and perpetrated to the victim and the offender alike. The discussion on the constructs of freedom is important to the understanding of whether a criminal justice system is what the society expects it to be. Sanders (2010) propose the principles of justice ought to be anchored to equality, moral righteousness, fairness and entitlement. Because of this, any perceived form of justice defies not only normative thresholds but also how the 3 precepts are actualized and implemented.

In his push for the operationalization of the Freedom Model, Sanders writes that fairness and justice ought to be embraced to the optimal level as a component of human freedom maximization quest. This conception is inclined to lean towards the principle of consequentialism, which is mainly concerned to the view that particular deontological values and justice norms are so basic that they must be safeguarded and promoted as intrinsic values (Quirk, Seddon, and Smith 2010). These deontological values and justice norms would integrate the equal dignity and worth of people and respect granted to each. Sanders’ proposed freedom model ensures all persons are treated equally within the same justice process by orienting outcomes on normative human rights and an all- inclusive criminal analysis and policy. This implies that general freedoms of the accused and the victim and the society at large are granted attention, and rulings aligning to the betterment of our societies are met within the standard practices and reign of justice (Garside, 2015). Despite the view that freedom model assumes all-inclusivity approach, and therefore democratic; it cements law enforcement parties to their various roles and duties. In the ultimate fate a criminal case, the victim is positioned to show satisfaction with the served justice and the justice system should be at a position to claim that the verdict serves the best interests of the community.

Concerning the principle of democracy, as a core value of criminal justice system; (Sanders, Young, and Burton 2010) observe that for a criminal justice system to be progressive in justice must permit those bearing a lot of costs and time in crime and punishment exercise relatively more power over those enforcing law and serving out accompanying punishment. As a result, any professional practice or policy in criminal justice system ought to permit for the contribution of necessary knowledge, experience and wisdom of individuals it affects. According to Sea (2013), democracy assists in the enhancement of democratic citizenship by advocating for responsibility, skills promotion and neighbourliness of those affected concerning a professional practice or policy. According to Seo (2013), democracy in criminal justice system should be objective in enhancing ethical conduct within the community establishment. Further, an ethical life focuses the values upheld by society’s public deliberations, as long as the deliberations under question do not oppress any societal member in practice.

A major principle if the freedom model is that it takes cognizance of the values of proponents engaged in the justice model. The model draws vital consideration for the freedoms and rights of the society at large, which is a key indicator that the model esteems the democratic segment of justice. Sanders maintain freedom typologies which the criminal justice system ought to propagate comprise of those of the larger society and in equal measure. Another pillar of freedom approach is that it incorporates elements of society that encroach on the criminal justices envisage to safeguard. The inclusionary model integrates others’ perspectives and conformity to the law as actualized by experience, explanation, example and discussion (Terrill, 2015).

In the spectrum of 3E’s (efficiency, effectiveness and economy), criminal justice’s responsiveness relies on its performance. When performances are poor, they provide a big question to criminal justice processes, but when the performances are excellent, the success is commonly attributed to sound processes within the criminal justice system. According to Feeley (2017) dispersed lines of performance accountability for excellent performance in criminal justice system makes it prone to criticism and slow adopting mechanisms ensuring its efficiency. A community which depends on criminal justice system to make itself get safeguarded tend to incline toward undermining the authority and credibility it assign an institution if in any case they view that it cannot meet social expectations of timeliness, fairness and transparency in the execution of justice. As a result, Bassiouni (2012) argues that any justice system unable to be effective and efficient in conducting responsibilities make it less responsive to peace building, crime prevention and public safety.

The freedom model is both cost-effective and efficient. Bajpai (2013) noted that each and every criminal justice system is fuelled by tax payers’ money to procure necessary resources required to ensure security in the country of operation. Freedom model seeks to enhance high recidivism rates by ensuring safety and justice issues are addressed optimally. According to Sanders, cost and time constraints are major obstacles inhibiting effective crime control. Further, Sanders note that expecting tax payers to incur additional expenses unnecessarily to punish individuals through correction system inhibit the freedom of the society as they have to allocate more for paying services indirectly or directly. The freedom approach give room for law enforcement departments to weigh and come up with the most responsive approach to crime control, while at the same time laying deliberate considerations on costs imposable to the judicial system in the future (Sanders, Young, and Burton, 2010).

In the theoretical perspective, a criminal justice system which attains deterrence, control and control through the application of strategies provided to offenders and delinquents are deemed a compared to freedom approach (Sanders, 2017). The reason for this premise is that the inhibition of criminals provides a vivid impression that the entire societal members enjoy their freedoms, say property ownership, which is an aim freedom model seek to achieve. Consequently, under the construct of freedom model, the criminal justice system will intend to apply existing resources in a way which assures the achievement of criminal justice goals. Feeley (2017) argues that since freedom approach’s aim is to also ensure recidivism does not happen, it can therefore be concluded that it meets the third component of the three E’s (effectiveness).

Criticism of Sanders’ Freedom Model

One of the major criticisms of this approach ascends from the discourse of whether the model is as operational as Sanders insinuates. According to Garside (2015), the model does not clarify how the law enforcement entities are going to establish differential freedoms and “unfreedoms”. For instance, would it be unfair not convict a thief with six children but imprison the thief without dependents at all? This example gives a clear impression that the freedom model may be cumbersome to operationalize based on the view that peoples’ experiences are relationships to criminal deeds are shaped by their position in power, wealth and opportunity inequalities. However, Sanders swiftly comes in to protect his theory, and says that this point is out to diminish the application of his model. The utmost respect for human rights must also render respect for human dignity in an equal measure. Feeley (2017) writes the core centre of human rights lies on the threshold of democracy, dignity and legality principles. Sanders maintains that dignity is symbolized by autonomy (capacity to practice human agency), real choice which more often demands a minimum education level, resources and health; and each person must possess the freedom to exercise the options. Respect for human dignity and therefore rights demands that justice proponents in criminal justice system not erode its elements while motivating individuals to pursue such elements. Bassiouni (2012) proposes that criminal justice ought to be a subject of social justice and law enforcement officers ought to strife not to allow social inequalities inhibit the ideals of fairness and social justice. This can be enhanced by balancing social justice priorities with correlate with Sanders’ freedom model.

Sanders’ model of freedom approach borrows from John Rawls’ concept of political liberalism. This is ascertained since the model lays a basis for which law enforcers and scholars conduct significant reflection of that which would provide criminal justice an impetus it requires to achieve success. In John Rawls’ view, there are two major principles underlying fair justice. First, individuals possesses rights and freedoms afforded to them; secondly, economic and social inequalities exist under two conditions namely; people holding positions ought to be in office and must provide their services with utmost fairness and equity of opportunity, and secondly that the major fundamental advantage should be directed to the most disadvantaged. Consequently, the freedom model requires that law enforcers conduct their duties and make decisions paying attention that the minority might be underrepresented on the social policies which construct the law (Sanders, Young, and Burton, 2010)

Conclusion

This work is an evaluation of Sanders’ freedom approach of criminal justice system, and as demonstrated above has analysed its principles and application. From the above discussion, it is evident that freedom approach meets the core values in the criminal justice domain, and therefore is a legitimate framework applicable in the justice system practice. The study has unravelled how Sanders compares his model to a rule-consequentialism analogy. The societal values are maintained by this model, with tight orientation to the norms and regulations maintaining social order. Further, the democratic precept of justice is equally fabricated with freedom model based on the inclusivity element of the model. Besides, the freedom model has been found effective, efficient and cost-effective. These conceptions assist in conceptualizing the model by demonstrating its interconnectedness with major values attributed to free and credible justice. Despite fulfilling the core values, freedom model is plunged into various criticisms. These criticisms are a reminder of that which the application of the model should look at, to ensure the model optimally responds to the needs inside the trajectory of criminal justice system.

References

• Ashworth, A. and Horder, J., 2013. Principles of criminal law. Oxford University Press.
• Ashworth, A. and Redmayne, M., 2010. The criminal process. Oxford University Press, USA.
• Bajpai, G.S., 2013. Locating the Crime Victim in Criminal Procedure Ideologies. Available at SSRN 2332566.
• Bassiouni, M.C., 2012. Introduction to international criminal law. Brill Nijhoff.
• Bretherton, L., 2015. Democracy and the Criminal Justice System. Political Theology, 16(3), pp.273-278.
• Daly, K., 2012. Aims of the criminal justice system. Crime and justice: A guide to criminology, pp.289-406.
• Feeley, M., 2017. Two models of the criminal justice system: An organizational perspective. In Crime, Law and Society (pp. 119-137). Routledge.
• Fletcher, M. and Gilmore, W.C., 2010. EU criminal law and justice. Edward Elgar Publishing.
• Fullfact 2019. Stop and search in England and Wales. [Online] Available at https://fullfact.org/crime/stop-and-search-england-and-wales/ [Accessed 14 November 2019]
• Grande, E., 2013. Comparative criminal justice. Cambridge companion of comparative law, pp.191-209.
• Herring, J., 2014. Criminal law: text, cases, and materials. Oxford University Press, USA.
• House, F., 2015. Freedom on the Net 2015. Obtenido de https://freedomhouse. org/sites/default/files/F OTN, 202015.
• Quirk, H., Seddon, T. and Smith, G. eds., 2010. Regulation and Criminal Justice: Innovations in Policy and Research. Cambridge University Press.
• Sanders, A., 2010. Reconciling the Apparently Different Goals of Criminal Justice and Regulation: The “Freedom” Perspective. Quirk, H. et al., Regulation and criminal justice, pp.42-71.
• Sanders, A., 2017. The CPS, policy-making and assisted dying: towards a ‘freedom’ approach. Journal of Criminal Law.
• Worrall, A., 2014. Punishment in the community: The future of criminal justice. Routledge.