Notable Speech: Legitimizing Criminal Justice Policies and

Practices
By Mark H. Moore, Ph.D.
Dr. Moore, a professor at the John F. Kennedy School of Government, Harvard University,
delivered this address as part of the Perspectives on Crime and Justice Series sponsored by
the National Institute of Justice.

I'd like to speak about the legitimation of the criminal justice system in the United States. It is a
subject that I take very seriously because we could easily take for granted that the system will be
legitimate and, therefore, fail to do the work that will legitimate it in the eyes of citizens. As
citizens, we ask a great deal from the criminal justice system. We ask it to protect us from
criminal attack not just from the reality but also from the fear of being victimized. When
criminal attacks occur, we want the system to soothe our indignation by catching the crooks and
giving them their just desserts (while protecting their constitutional rights). We expect it to
achieve these ambitious goals without reaching too deeply into our privacy and freedom. We
also want reassurances that the money and authority entrusted to criminal justice agencies will be
used fairly, allocated toward need rather than an ability to pay, and used to enforce the law
without fear or favor. Increasingly, we ask them to take a step further; and in the words of
Attorney General Janet Reno, "Help to reweave the fabric of community."

My purpose is to discuss how criminal justice agencies-police, prosecutors, public defenders,

courts, and correctional agencies can meet these ambitious goals. In discussing this topic, I'll
adopt the point of view of those who manage these agencies and look for some concrete ways to
use the resources entrusted to them to accomplish their broad and diverse goals. But my focus
will not be on the common concerns of management: downward and inward management of
personnel policies and procedures. I will focus instead on the efforts criminal justice agencies
can and must make to legitimate themselves in the eyes of the citizens they serve. That includes a
focused effort on the encounters that criminal justice agencies have with citizens, in particular:

1. Ensuring quality in encounters with citizens, not only when they are providing service to
citizens who appeal to them for help but also when they engage in what I would describe
as an "obligation encounter"-when they ask citizens to stand still for the orderly processes
of justice.
2. Rendering their organizations transparent and accountable to citizen overseers and their
representatives, who demand assurances that the agencies are achieving their complex
purposes in an appropriate way.
3. Engaging citizens as coproducers of crime control and justice in operations designed to
help criminal justice agencies achieve goals that they cannot achieve alone and must have
citizen input to accomplish.
Finally, and most important, is to extend the effect of all three of these kinds of citizen contacts
with a kind of moral leadership that teaches people what it is that justice requires in a democracy
and, through that device, to help reweave the fabric of the community that is gradually becoming
tattered.

In short, I am most interested in how managers of criminal justice agencies engage external
actors through political and legal processes. In the past, the goal of enhancing the legitimacy of
criminal justice agencies and the specific efforts required to accomplish this goal have been
badly neglected and, to some degree, misdirected. This failure has not only weakened the
standing but also the real performance of the criminal justice system. Finally, I will argue that
much of the increased focus on community justice should be understood as increased efforts to
legitimate criminal justice agencies and capture the substantive operational benefits that come
from such efforts. Let me start, however, by recalling the important work that the President's
Crime Commission did in the late 1960s to frame society's understanding of the operations of
criminal justice agencies and in setting an agenda for reform. One of the most enduring products
of the Crime Commission's work was the image of the criminal justice system as a large funnel
that channeled criminal justice cases to their ultimate disposition. This image scythed through a
tangle of institutional complexity and local variability to create an enduring schematic image of
how criminal justice agencies were supposed to operate.

Everyone understood, of course, that this was not a system in the sense that the agencies were
being explicitly directed toward a particular objective by some coherent centralized authority. It
was only a system in the far more limited sense that the different agencies were linked together
through a process in which one agency's outputs became the next agency's inputs.... Now, this
so-called criminal justice system was judged to be valuable to society in two broadly different
ways. First, it was an instrument of practical purposes. As an instrument of practical purposes,
this system was thought to be accountable for the efficient and effective reduction of crime. The
criminal justice system was thought to accomplish this result largely through four distinct
mechanisms: deterrence, both general and specific; incapacitation; and rehabilitation. That
practical goal and those practical means were what the system as a whole seemed to be designed
to do, and that was what the citizens who paid to support the system wanted as a result. That
makes up frame one, the practical frame.

But the criminal justice system was also considered important in an entirely different way-not as
a practical instrument for achieving specific results but also as an instrument of justice, a way of
holding offenders accountable for their crimes while also protecting their constitutional rights.
It's important to understand that the second idea the criminal justice system is there to produce
justice, not just crime control could constitute a stand-alone justification for criminal justice
system processing. From this point of view, the system did not have to show that it was
producing any practical effect such as reducing crime; it was enough that it produce justice.
There were widely varying views about what constituted justice, of course, both in general and
individual cases; but the point is that the idea of creating justice is quite different than the idea of
producing crime control. Further, the production of justice could constitute a separate and
complete justification for the operations of the system.
These two different evaluative frames laid out the different ways in which individual agencies in
the criminal justice system and the system as a whole could legitimate and justify themselves in
the eyes of the citizenry. The system could legitimate itself as an effective and efficient means of
reducing crime, or it could establish itself as an important instrument of justice, a means for
ensuring that citizens live up to their responsibilities to one another and society. Since both were
important, the goals of reform advanced on both fronts simultaneously: To make the criminal
justice system more efficient and effective and to make it more fair and just.... One important
feature of the funnel diagram was that the central drama it evoked was whether a particular case
and an associated offender would make it all the way through the process, that is, to prison. This
seemed to suggest that the whole point of the exercise was to ensure that offenders were
ultimately incarcerated. This orientation ignored, of course, two important facts. First, most cases
did not, in fact, make it all the way through the system. What was to be done with cases that
couldn't be solved or with offenders that couldn't be convicted? Second, the funnel diagram
seemed to ignore that most of the actual work of and expense to the criminal justice system
occurred both before and after the moment of adjudication. In short, a majority of the work in
which the system engaged involved assisting the community to cope with the facts that some
cases could not be resolved and that most offenders would be returned to the community sooner
or later. Obscured was the important reality that we live with crime and live with offenders.

Second, because the diagram made the processing of cases to imprisonment so important, it
naturally tended to focus attention on serious criminal cases, primarily adult felonies. Lesser
cases, such as misdemeanors or juvenile offenses, would not be worth the trouble of such
elaborate attention nor the expense of a prison sentence.

Besides, a sharp focus on serious offenses and offenders seemed closely allied to the goals of
producing an efficient and fair criminal justice system. It seemed obvious as a matter of
efficiency and effectiveness that scarce resources should be reserved for the most serious
offenses and offenders. It also seemed important that the aggressive use of state authority should
be limited to crimes that were bad in themselves, not simply bad because they were prohibited.
Such policy ensured consistency and integrity, as well as economy, in the enforcement of laws.
Third, the funnel diagram presented a fundamentally reactive view of crime control and thereby
underemphasized some potentially important preventive opportunities. Of course, the Crime
Commission did not ignore prevention. Deterrence, after all, is a preventive concept. It seeks to
dissuade people from committing crimes by threatening them with bad consequences if they do.
Incapacitation and rehabilitation can also be seen as preventive ideas. They may not prevent a
potential offender's first crime, but they might well have an effect on future offending. And given
the importance of criminal recidivism and overall patterns of crime, preventing future crimes by
those who have already committed one would be an important preventive contribution. It also is
true that the commission insisted that the root causes of crime included poverty, economic
inequality, and racism; and that crime could only be reduced significantly by alleviating these
broad social conditions the ultimate preventive argument. Still, in retrospect, it seems that there
were some important opportunities for preventing crime that could have been noted more
prominently, specifically those that lay between the limited reactions of the criminal justice
system on one end and broad social actions directed at the root causes of crime on the other....
Perhaps the most important omission of the Crime Commission, however, was that in focusing
attention on the publicly supported agencies of the criminal justice system, it necessarily
deemphasized the role that private individuals and institutions of civil society--families,
community groups, churches, merchant associations--play in controlling crime, both by
themselves and as adjuncts to the criminal justice system. The funnel diagram did not emphasize
the central role that victims and witnesses play in activating and focusing the attention of
criminal justice agencies on particular crimes. Nor did it point to the important role played by
citizens who make individual and collective efforts to guard their own property and intervene
with fellow citizens who behave badly. Nor did it draw attention to the role local merchants
might play in seeking to enforce orderly conditions on the streets that fronted their stores or in
providing jobs to neighborhood kids. Nor did it emphasize the role of church groups in giving
support to single parents struggling to supervise and raise their children. Such private efforts
were viewed as beyond the boundaries of the criminal justice system--they might have an effect
on levels of crime and disorder but are largely independent and beyond the reach of agencies of
the criminal justice system. This omission was, in my view, particularly important given the fact
that many offenders would never be taken from the community or would be quickly returned into
the community for handling.

The neglect of actors outside the criminal justice system related to the last omission of the Crime
Commission and most closely relates to the subject of this talk. Namely, there were important
sources of legitimacy for the criminal justice system beyond the pursuit of efficiency and
lawfulness that were not only neglected but implicitly rejected by the Crime Commission as
important sources of legitimacy. That is the kind of legitimacy that is rooted, on one hand, in
moral passion and, on the other, in the political and individual responsiveness of the criminal
justice system. To the Crime Commission, moral passion and politics were viewed with great
caution. Behind moral passion, they saw the lynch mob. Behind political responsiveness, they
saw the threat of political control of the system by the powerful against the weak. Thus,
establishing important links between criminal justice processing on one side and moral passion
and politics on the other was viewed not as a way to anchor and legitimate the system but,
instead, as a way of exposing the operations of the criminal justice system to powerful tides of
ignorance and bias. Rather than being sought out, these were to be avoided. To do their work, it
was better that the agencies of the criminal justice system be insulated from both moral passion
and politics. Their legitimacy could be established in law and professional competence rather
than in responding to the moral passions of individuals and politicians.

The paradigm constructed by the Crime Commission proved to be a powerful one. Over the next
two decades, agencies of the criminal justice system pursued the agenda laid out for them with
great enthusiasm. They made significant progress in increasing their professionalism and
technical knowledge and in reducing the amount of racial and class bias in the operations of the
criminal justice system.

By rights, this should have increased the standing and overall effectiveness of the system. It
seems to me, though, that what happened was that the criminal justice system agencies found
that their overall effectiveness and standing weakened over this period. The popular legitimacy
of the system faded even as the system was becoming fairer and more effective. Legislatures
took discretion back from the hands of the sentencing judges. Community groups demanded the
establishment of civilian review boards, and they removed the civil service protections of police
chiefs. Increasingly, citizens turned to private security arrangements to meet their desires for
protection.

The criminal justice system, even as it was becoming fairer and more professionally competent,
seemed to be becoming increasingly irrelevant to citizens' efforts to guarantee their own security
and satisfy their appetites for justice. The system's role in producing social justice seemed less
and less important.

So the question that faces us now, 30 years after the Crime Commission's report, is how we can
restore the standing and effectiveness of the criminal justice system as a social institution that
can not only guarantee our safety but also help us understand what our obligations are to one
another in a conception of justice.

The loss of popular legitimacy for the criminal justice system produces disastrous consequences
for the system's performance. If citizens do not trust the system, they will not use it. If citizens do
not want to use the system, the expensive apparatus we constructed will be useless where it
depends fundamentally on citizen mobilizations. Moreover, to the extent that confidence in the
system is illdistributed, with poor, racial minorities more suspicious of the system than wealthier
majorities, the capacity of the system to act fairly is undermined, along with its future legitimacy
and effectiveness and its capacity to teach what we owe to one another. The system's ability to
mobilize citizens to comply with laws voluntarily also will be undermined if citizens view it as
inefficient or unjust. Without proper legitimacy supporting criminal justice operations, instead of
having a collectively established criminal justice system helping to enforce a widely shared
conception of a just moral order, we will live in a world of gated communities, each with its own
conception of right conduct and each enthusiastically excluding citizens from other communities
from moving into their own. To avoid this result, we must find a way to restore the popular
legitimacy of the nation's criminal justice system.

Legitimacy could be viewed as an abstract value, an ideal to be achieved. Viewed from this
vantage point, what particular individuals and groups actually think about the system and its
operations would be viewed as irrelevant. What is important is the extent to which the system
could realize a particular set of values, such as fairness or efficiency. Its successes in doing so
would be registered through technical professional evaluations, not in popular sentiment.
Alternatively, one could think of legitimacy as something that exists in the minds of citizens.
This perspective looks for what citizens really think about the system-whether they think it is fair
or efficient or responsive to their conceptions of justice. From this vantage point, we could learn
about the system's legitimacy not by looking at its performance and comparing it with some ideal
but by finding out what people really think about it and on what basis they have formed their
views.

From an operational and managerial perspective, this second category is the more important type
of legitimacy--the kind that exists in the minds of citizens the system is supposed to serve. That
may be very different and require different kinds of performance than the first kind of
legitimacy. Indeed, some worry that the ideals that many think should define the legitimacy of
the system are not, in fact, embraced by ordinary citizens. In this view, we face a stark choice
between legitimating the system through political responsiveness on one hand, which threatens
the ideals of justice, or trying to make the system meet the standards of efficiency and fairness on
the other. Yet, the facts are that many of the system's most important ideals are embraced by the
populace. The populace, too, likes procedural fairness. Citizens like a sense of proportionality.
They like efficiency and economy. And, even if they did not like those things (which give us an
enormous advantage), the problem that we as leaders and managers of the criminal justice
agencies would face would be to help them come to love those things rather than not. The reason
is that in the end, the system cannot operate without the support of the citizenry for its
fundamental tenets. This, then, defines the problem to be addressed. How can we enhance the
popular and moral legitimacy of the system while at the same time enhancing the legitimacy that
comes from being technically proficient and aligned with important legal virtues, such as fairness
and restraint? My answer to this is a simple one. As managers of criminal justice agencies, we
must pay attention to the quality of the interactions we have with citizens in three distinct roles:
as clients, as overseers, and as co-producers of justice. In managing these interactions, we must
stand for the important democratic values of fairness and restraint. This seems to be consistent
with the challenge of establishing community justice and using the nation's criminal justice
institutions to reweave the fabric of the community.

Let me explain why. Abrecht, writing to America's corporate executives about how to improve
the performance of their organizations, develops the idea that success lies in paying attention to
the quality of what he calls "moments of truth," the particular moments when customers
encounter an organization's operation and begin forming impressions about the company and its
product. From my point of view, labeling such mundane events as being put on hold when one
calls to order a product as a moment of truth seems a little grandiose. But even in the commercial
world, this grandiosity helps to focus attention on the details of these all-important customer
contacts.

The concept, to me, seems far less out of place when we are talking about the ways the nation's
criminal justice agencies might legitimate themselves in the eyes of citizens they serve. These
contacts really do qualify as important moments of truth. These are moments when citizens
encounter a criminal justice agency as clients asking for help or being obliged to stand still;
moments when, as citizens, they contemplate the work of the criminal justice system and decide
whether it is performing well or badly; and moments when they are asking to participate in the
production of justice either as part of a community-based patrol or as part of a jury. These three
moments of truth are what we have to pay attention to.

The most obvious points of contact between citizens and criminal justice agencies consist of
those moments when citizens call the system for help. We imagine victims and witnesses calling
the police for emergency aid or demanding justice from prosecutors. This is, of course, an
important client group that criminal justice agencies must serve. If anyone qualifies as a "retail
customer" of a criminal justice agency, it must be these individuals. And it doesn't take much
experience in a radio patrol car or even in a prosecutor's office to learn that many citizens want
things from criminal justice agencies other than the prosecution of criminal cases. We all know
that citizens call the police for many things other than the response to serious crime. One of the
most important ideas associated with community-oriented policing is to view these noncrime
calls for service as worth a response, rather than as a distracting nuisance. The idea is that these
calls may represent opportunities to intervene earlier in situations that might escalate to crimes.
Or, even if they are not, they may be an opportunity to establish a relationship with a citizen that
can become a bankable asset in the future.

Similarly, prosecutors have figured out that not only do they have to attend carefully to victims
and witnesses to maintain their cases through the long process of adjudication but also that it
pays to give close attention to the less serious crimes adjudicated in misdemeanor as well as
felony courts.

Agencies of the criminal justice system have important "retail" contacts, if you will, with another
groups of clients, as well. These contacts consist of not just those who call for help but also those
who become the focus of enforcement efforts. In addition to alleged criminal offenders, it also
includes those who have been stopped for traffic offenses or asked to cooperate in some kind of
crowd control. It has long been accepted that there is little chance of pleasing these clients of the
system and little prospect that they could become supporters. The reason is that unlike the clients
identified above who need help from the criminal justice agencies, this group of clients is
obligated to do something they did not choose to do or are punished for something they should
not have done. As recipients of obligations and penalties rather than service it seems unlikely
that these clients could be satisfied. In any case, it seems improbable that satisfying these clients
should be the goal of the enterprise. Consequently, with respect to these encounters, the primary
goal is to satisfy others that the encounters proceed properly--that a subject is, in fact, reasonably
suspected; that a traffic stop is made in accord with the law; that the person is sentenced without
fear or favor.

More recently, however, this pessimistic view of how we should interact even with our
"obligatees" has changed. Some who manage criminal justice agencies believe that arrestees,
defendants, and prisoners can tell the difference between being treated well and badly, or fairly
and unfairly, and that this difference should matter to their colleagues throughout the system.... It
is also worth noting that citizens want things from criminal justice agencies as groups, as well as
discrete individuals. Particularly important are those groups that form around residential
communities. Sometimes there are particular interest groups that become important, as well, such
as small-business associations, women who fear domestic violence, or parents who fear their
children will become involved with drugs or gangs. One can easily imagine that it might be
important to think of such groups as having an account with criminal justice agencies, and that it
would be important for those who manage criminal justice agencies to attend to the character and
quality of the relationships they are maintaining through those accounts.

From the perspective of this speech, what is important about these encounters with clients, both
those receiving aid and those receiving obligations (individuals as well as groups), is that all such
encounters leave a residue of experience and feelings-that these in turn become the bases for
diminished legitimacy of the system. Citizens, like customers in commercial transactions,
remember when they have been treated well and badly, and they respond with more or less
loyalty and interest. They may even come to identify and value the aims of those who treated
them well and learn to suspect and despise the aims of those who treated them badly. Thus, these
interactions form the basis for communicating values, as well as for building support and
legitimacy for criminal justice agencies.
While the most intense moments of truth between citizens and criminal justice agencies may
occur when citizens have discrete transactions with the system that involve their particular
interest, the most common moments of truth may be those when citizens hear something about
the performance of the system and decide whether it is performing well or poorly. These are the
moments when they interact with the system as overseers, not as either clients or coproducers.
The views of citizen overseers may be important not only because they affect their willingness to
support the criminal justice system with taxes and grants of authority, but also because their
views about whether the system is just may affect their willingness to obey the law. Citizens
want to know that the system has written rules that are fair, that the laws are enforced equitably,
that the system can respond to some important differences among individuals, and that the whole
system is designed to operate to good effect.

The views of citizen overseers, however, may be profoundly influenced by the concrete
experiences they had as clients of the system. They may also form their views based on the
experience of their friends and families. For this reason, client contacts are very important.... The
point I want to make about citizen overseers, however, is that if we wish to engage citizens as
effective overseers of criminal justice systems, it is important that we find ways to make our
operations transparent to citizens and to present our operations in a comprehensive, consistent,
and reliable way. Many in the criminal justice world have been reluctant to take on that
responsibility for fear that their operations would become too exposed and too vulnerable to
political interference. But I think that many officials have now had the experience that, when
they make the effort to expose and render transparent their operations, they win a grant of
support and enthusiasm from the citizens that would stand them in good stead in those moments
when, occasionally, the system fails. However, it takes a certain amount of courage to decide to
make your organization transparent and accountable to citizens. That turns out to be crucial for
getting the most out of that particular moment of truth, when a criminal justice agency relates to
a citizen as an overseer.

Citizens also make contact with criminal justice agencies through their important role as
coproducers of justice. Victims and witnesses are important co-producers, as well as clients and
customers of the system. Their efforts are essential to making the system work. One can even
imagine some offenders are coproducers, in the sense that they have to do a great deal of work
on their own to allow rehabilitation to succeed. Beyond this, we can imagine many other ways in
which citizens can become coproducers. They are asked to serve on juries. They often organize
themselves in block groups. They are sometimes asked to serve on sentencing councils, to
provide mentoring to kids, or to help monitor offenders released in communities. Indeed,
families of offenders might turn out to be important allies in efforts to reduce future offending,
and not only in juvenile cases. That idea, that there are people in the communities who are
coproducers, is advanced most prominently by the ideas of community justice. People are
inventing new ways to engage citizens in the concrete operations of the system, and in doing so,
they not only increase the power and impact of the system, but they also increase its standing
with communities. If managed well, these contacts with citizens as coproducers provide an
opportunity to increase the legitimacy of the system. Each contact forms an impression; each
contact provides an opportunity to express and advocate a particular set of values through the
operations of the system. When the police arrest suspects and read them their rights in front of
victims and witnesses, when prosecutors explain how a particular case will be handled and why,
when defense attorneys explain the case against their client, when citizen-jurors are given their
instructions by a judge, citizens are being taught about the basic values of the criminal justice
system. These include: measured indignation about criminal offending tempered by respect for
the rights of citizens, the need to share responsibility in the exercise of social control, and the
ambition to be fair. It is from this material that we can construct a constituency for justice and
the criminal justice system.

Aristotle observed that the first virtue of a state was the quality of justice it could produce among
its citizens. There is an important meaning of justice in that idea, of right relationships among
individuals, as well as between individuals and the society and state. Within this broad notion of
justice, right reactions to criminal offending are only one small topic. But in many ways, this is
the most exacting test of justice, the hottest crucible, the place where our commitments to and
understanding of one another are tested very sharply. Thus, it may be that an important base for
all these other interactions with one another is established by the quality we can produce in these
particularly demanding relationships.

I believe it is the task of criminal justice agencies to take on the burden of producing quality
justice in society's response to crime and criminal offending. In doing so, it falls to the nation's
criminal justice agencies to teach two of the hardest lessons that citizens in democracies have to
learn. The first is the most obvious: that it is wrong to give offense to other citizens and you must
practice restraint--you have to respect other people's lives and properties. The second lesson is
far less obvious but potentially as important: namely, that it is wrong to take offense too easily or
to respond to offense disproportionately. It is the second lesson that carries the burden of forcing
us to be tolerant, and in many ways, it is a much more "inhuman" act to be tolerant than to be
offended when one is attacked.

By building a constituency for these values, we not only increase the legitimacy of the criminal
justice institutions and enhance their efficiency, we also accomplish the broader goal of
reweaving the fabric of a liberal community--"liberal" in the old-fashioned sense. We can teach
what we most fundamentally owe to one another. After all, it is in the interstices created by the
restraint we impose on ourselves and the wide latitude we give to others that the maximum of
liberty and security is found. And it is that maximum we seek through the various initiatives that
comprise the movement for community justice. If we are to produce justice, we must learn to
love it, and that is what the movement to create community justice is all about.