Scholarship@WashULaw

Document Type

Article

Language

English (en)

Publication Date

2025

Publication Title

American Criminal Law Review

Abstract

At its core, the criminal legal system is an ecosystem of institutions that seek to balance liberty interests. The insightful theories and complex practices of crime policy coalesce around questions on how crime impacts the liberties of individuals and communities to be safe, and how this correlates with the deprivation of liberty from offenders through our punishment system. But modern criminal policy, most often associated with the problems of overcriminalization and mass incarceration, has wholly abandoned any such delicate and nuanced balancing. Instead, the system thrives on sacrificing the liberties of offenders in a perverse and ineffective regime that leads to a net loss of liberty for all.

This Article argues for a new theoretical framework that prioritizes the liberty-balancing function rooted in criminal punishment. This Liberty-Balancing Approach incorporates contributions from constitutional and political theory to argue that substantive criminal laws should be conceptualized as a political exercise that defines and protects a narrow set of individual liberties. In turn, protecting these individual liberties must be contextualized within broader community interests of public safety and building public trust. Finally, these criminal laws and ultimately their punishments must be properly balanced with depriving only as much liberty from the offender as is necessary and legitimate to achieving these social outcomes. This return to first principles in criminal law also explores the practical impacts of the Liberty-Balancing Approach, including rethinking victimless proxy crimes, crimes against organizations, and the liberty impacts on communities of color.

Keywords

Liberty-Balancing Approach, Overcriminalization, Crime Policy, Mass Incarceration, Punishment, First Principles, Substantive Criminal Law, Ethics of Punishment, Decriminalization, Decarceration, Overbreadth, Freedom of Movement, E-Carceration, Public Safety, Public Trust, Probation, Proxy Crimes, Guns, Firearms, Drugs, Minimalist Principles, Political Philosophy, Communitarianism, Malum Prohibitum, Balancing, Mandatory Minimums

Publication Citation

Sheldon Evans, A Liberty-Balancing Approach to Crime, 62 Am. Crim. L. Rev. 155 (2025)

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