The Problem with the ‘Criminal Legal System’

How best to make sense of Donald Trump’s victory? Every day since the election has brought dozens of new takes trying to explain why Kamala Harris and the Democrats lost.  

A fair number of these election postmortems have focused on how the Democrats and affiliated activist groups have embraced a new set of vocabulary — “Latinx,” “unhoused,” “pregnant person,” “BIPOC” and such — that many Americans either do not understand or find off-putting. Mike Pesca, in The Atlantic, called the Democrats the “HR Department” of political parties, while Joe Klein, the author of “Primary Colors,” branded the Democrats “the party of euphemism.”

Writing before the election for the New Republic, Harry Cheadle identified the problem as “style-guide liberalism.” He suggested that the progressive fixation on the use of correct terminology is “well-intentioned but inevitably creates a murky layer of jargon between speaker and listener, writer and reader. However egalitarian its aims, it inevitably results in an in-group and out-group.” 

The field of criminal justice is not immune to this problem. For example, in many quarters, people are no longer referred to as defendants or inmates (and certainly never criminals) but as “justice-impacted individuals" or “justice-involved individuals” instead. The ungainliness of this phrasing is matched by its opacity. Is a crime victim a “justice-impacted individual”? A witness? Aren’t we all “justice-impacted” at some level?

While the awkwardness of the new language, which replaces a single word with three, is hard to defend, the underlying motivation is not. Those who seek to move away from words like “felon” and “offender” do so because they want to humanize the people who have traditionally been branded with such labels, in much the same way that “the handicapped” became “people with disabilities.” Words may not be able to change the fundamental reality — someone with a criminal record still has one even if he or she is no longer referred to as an “ex-con”— but words do matter. The desire to use destigmatizing language is, in most respects, laudable and these kinds of considerations should sometimes carry the day.

But given how confusing and alienating it can be when activist groups attempt to jettison standard terminology that has been used for decades, there should be limits. Less is definitely more, particularly if language reformers are interested in winning over skeptical audiences. In an era of widespread misunderstanding and misinformation, we should all take pains to speak as plainly as possible and not create barriers to comprehension, to say nothing of needless provocations.

A case in point: Around about 2020, left-wing groups like the Brennan Center for Justice and the Center for American Progress began to pepper their communication with the expression “criminal legal system.” This was meant to replace the use of “criminal justice system,” which many activists believe is a misnomer. The basic argument is simple: How could a system that does so much harm, particularly to racial minorities, deserve the label “justice”?  

Thus, the campaign to spread “criminal legal system” springs from a very different impulse than “justice-impacted individual” — instead of seeking to affirm a long-suffering population, in this case the goal is to tear down a venerated institution. 

The expression is now in fairly wide circulation among academics, journalists and advocates — and is increasingly employed by mainstream politicians like Elizabeth Warren. 

In fairness, critics have long raised questions about the use of the word “system” in “criminal justice system.” The idea that disparate agencies with different incentives and different organizational cultures — including some that are diametrically opposed to each other, like defense attorneys and prosecutors — could constitute a coherent system is indeed a bit of a stretch. 

But the language reformers have kept the word “system” and merely replaced “justice” with “legal.” That’s a pretty subtle change. Like Paul Newman tapping his nose in “The Sting,” it’s the kind of gesture that seems primarily designed to signal who is in the know — and to separate them from the rubes.

Worse than being exclusionary, “criminal legal system” reads as a pejorative to those who staff the system. One wonders why responsible voices on the left, which traditionally has sought to argue in favor of greater investment in government, would deliberately, and with such a broad brush, try to undermine one of our most important democratic institutions. 

It is of course true that the American justice system has been responsible for numerous miscarriages of justice over its long history. But many of our most important systems — think about the health care system or the child protection system, for example — often fail to live up to their appellations. Despite its shortcomings, no one is arguing for the education system to be re-named “the social advancement system.”  

Justice is, of course, an aspirational goal. Not even the system’s fiercest defenders would claim that it achieves justice in all cases. But having this goal as a north star gives the system — as fractured and beleaguered as it is — a sense of identity and purpose.  Don’t we want our law enforcement, community supervision and correctional agencies to at least strive to achieve justice? No one is motivated to go to work to try to achieve “criminal legal.”

Also, note the inconsistency: if “criminal legal system” is meant to undermine the idea that the system works toward justice, why then is “justice” the operative word in “justice-impacted individual”?  Shouldn’t it be “criminal-legal-impacted individual”? Perhaps there are some formulations that are just too infelicitous to contemplate.  

There is no evidence that any polls or focus groups were organized to solicit feedback from the men and women who staff the justice system before “criminal legal system” was introduced. Perhaps as a result, there is also no evidence that this new vocabulary is being adopted by the lion’s share of judges, cops, probation officers and other officials. It’s a tool of, by and for critics.

It is unlikely that activist-driven linguistic change will stop with “criminal legal system.” Indeed, it is not hard to imagine a future in which those who work within the system and their external critics will use an entirely different set of words to describe the work of apprehending suspects, trying cases and meting out punishments. If this comes to pass, the chances of outside critics meaningfully reforming the behavior of system actors will diminish to the vanishing point. Why should anyone bother to listen to people whose language is designed, at least in part, to communicate contempt?

For all these reasons, we should seek to limit the spread of “criminal legal system.” Is this a feasible goal? Probably not. But the good news, if you disapprove of “criminal legal system,” is that you probably won’t have to wait long until it is replaced — after all, today’s linguistic innovation is tomorrow’s conventional wisdom in need of overturning. The advocates pushing for “criminal legal system” should prepare themselves for the inevitability that they will be dismissed as retrograde by the next generation of linguistic reformers. Given the speed of change these days, the time may be coming sooner than they think.