ARTICLES
A LIBERTY-BALANCING APPROACH TO CRIME
Sheldon A. Evans*
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 depriva-
tion of liberty from offenders through our punishment system. But modern crimi-
nal policy, most often associated with the problems of overcriminalization and
mass incarceration, has wholly abandoned any such delicate and nuanced bal-
ancing. 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 exer-
cise that defines and protects a narrow set of individual liberties. In turn, protect-
ing these individual liberties must be contextualized within the 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.
INTRODUCTION 156
I. OVERCRIMINALIZATION AS AN IMBALANCE . . . . . . . . . . . . . . . . . . . . . . 161
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
* Professor of Law, Washington University School of Law. I thank Lisa Bernstein, Erin Blondel, Jacbo
Bronsther, Bennett Capers, Adam Davidson, Daniel Epps, Paul Gowder, John Inazu, Randall Johnson, Benjamin
Levin, Nancy Levitt, Daniel Morales, Erin Murphy, Farah Peterson, Stephen Smith, Brian Tamanaha, and
Vincent Southerland for helpful thoughts and comments. In addition, I extend my thanks to the community of
scholars that provided valuable comments and feedback at Cornell Law School, the University of Chicago Legal
Scholarship Workshop, University of Houston Law Center, University of Missouri-Kansas City School of Law,
NYU Law Goldstock-Jacobs series, Lutie/Langston Midwest Scholarship Workshop, and the John Mercer
Langston Workshop. I also thank Michael Allain and Sydney Everett for their excellent research assistance.
© 2025, Sheldon A. Evans.
155
A. The Big Picture Imbalance . . . . . . . . . . . . . . . . . . . . . . . . . . 162
B. Discriminating Liberties . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164
C. Statutory Overcriminalization . . . . . . . . . . . . . . . . . . . . . . . . 167
D. Mandatory Minimums . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
E. Liberties of Incarceration . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
II. BALANCING LIBERTIES IN CRIMINAL PUNISHMENT . . . . . . . . . . . . . . . . . 173
A. Individualism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
B. Traditional Minimalism. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
C. Criminal Legal Liberties . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
D. Legitimate Communitarianism. . . . . . . . . . . . . . . . . . . . . . . . 188
E. The Balancing Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192
III. CRIMES WITHOUT LIBERTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
A. Proxies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
B. Drugs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
C. Firearms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202
IV. THE LIMITS OF LIBERTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211
A. Personhood . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212
B. Legitimizing Deprivations . . . . . . . . . . . . . . . . . . . . . . . . . . . 216
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219
INTRODUCTION
If defining and protecting liberty is one of the fundamental foundations of law,
then its deprivation is the cornerstone of crime. American law is in a crisis of lib-
erty that challenges the very legitimacy of its legal institutions. In just the past few
years, the Court has attempted to balance diverse liberty interests in areas such as
reproductive rights, affirmative action, free speech, religious freedom, and sexual-
orientation with the clumsiness of a bludgeon.
1
Criminal law is no different.
Decades of broadening police power, prosecutorial discretion, legislative preroga-
tives, and harsh sentencing have led to a crisis of overcriminalization that priori-
tizes public safety at the expense of punishing offenders fairly and effectively.
This Article intervenes by reconceptualizing the substantive criminal law accord-
ing to its roots in balancing diverse liberty interests. This Liberty-Balancing
Approach necessarily calls for a radical reframing of punishment ethics and
1. See Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 231 (2022) (returning the issue of women’s
reproductive rights to obtain an abortion to the states, pitting the liberty to control one’s body in reproduction
against the state’s interest to protect the liberty of the unborn); Students for Fair Admissions, Inc. v. President
and Fellows of Harvard College, 600 U.S. 181, 230 (2023) (overturning affirmative action policies that gave
preference to African-Americans and Latinxs in higher education admissions, pitting the liberty to be admitted to
an institution of higher education based on objective merit against the liberty to form diverse and inclusive
student bodies); 303 Creative LLC v. Elenis, 600 U.S. 570, 591–92, 601–03 (2023) (upholding free speech rights
for religious web designer that declined to create a website for a gay couple’s wedding, pitting expressive and
religious liberty against liberties to not be discriminated against); see also Richard H. Fallon, Jr., Strict Judicial
Scrutiny, 54 UCLA L. REV. 1267, 1306–08 (2007) (discussing a balancing of free speech and religious freedom
doctrine).
156 AMERICAN CRIMINAL LAW REVIEW [Vol. 62:155
practical reform in decriminalization and decarceration. By doing so, these forgot-
ten principles of criminal law seek to achieve consequentialist goals of increasing
liberty for all by restoring balance between the individual victim, the individual of-
fender, and the broader community.
This Article draws from constitutional principles and political theory to build
and substantiate the Liberty-Balancing Approach. Positivist legal institutions oper-
ate to prescribe and proscribe behavior to facilitate functioning societies, which
necessarily define the scope of individual liberties and limit them appropriately
when they intrude on the liberties of others or impact the entire community.
2
Consequently, principles of balancing liberty interests enjoy a rich history and
application across the law, especially in constitutional jurisprudence.
3
As an exam-
ple, these constitutional principles fuel constant theoretical and practical discus-
sions in criminal procedure and national security; these debates are often
characterized as a salient balancing of liberties between the state’s interest in
detecting offenders and keeping society safe while maintaining individuals’ liber-
ties of privacy and freedom from law enforcement agency (LEA) intrusion.
4
However, LEA power has vastly expanded over the past fifty years in ways that
have facilitated the overcriminalization crisis.
5
This pattern of LEA empowerment represents a consistent practice across a
number of criminal legal institutions that have all contributed to overcriminaliza-
tion that need not be rehashed here. It is enough to briefly state that mass incarcera-
tion facilitates the deprivation of liberty of nearly two million people, including
many of whom that have not been convicted of a crime or are being incarcerated
2. See DAVID HUME, A TREATISE OF HUMAN NATURE 351 (Lewis A. Selby-Bigge ed., Oxford: Clarendon
Press, 1896) (1739) (ebook) (“Society is absolutely necessary for the well-being of men; and [laws] are as
necessary to the support of society.”).
3. See Chad Flanders, Compelling Interests and Compelled Speech 6–7 (Sept. 20, 2023) (unpublished
manuscript) (on file with author) (criticizing 303 Creative for whittling down traditional constitutional scrutiny
that balances interests and instead simply boils down to declaring one right as superior to another); id. at 10–12
(discussing how the Court may be moving away from the traditional balancing of interests in constitutional
scrutiny analysis, and instead is picking winners according to originalism based on developments such as
New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 22–23 (2022)); see also Kate Weisburd, Rights
Violations as Punishment, 111 CAL. L. REV. 1305, 1308–12 (2023) (arguing that depriving a person of their
liberty under criminal punishment should trigger constitutional scrutiny analysis).
4. These liberties are enshrined in constitutional law, showing just how important they are to prevent the
abuse of government power in the criminal legal system. See U.S. CONST. amend. IV; see, e.g., Orin S. Kerr,
Searches and Seizures in a Digital World, 119 HARV. L. REV. 531, 536 (2005) (recognizing existing doctrine that
seeks to balance “law enforcement needs with individual interests in the deterrence of abusive law enforcement
practices”); Arnold H. Loewy, Search and Seizure in a Post-9/11 World, 1 ELON L. REV. 181, 181 (2009)
(questioning how the Fourth Amendment can “balance the rights of innocent citizens to be free from criminals,
on the one hand, and [for citizens to be free from] police on the other” in a post-9/11 world that has seen
increases in state surveillance).
5. See MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE OF COLORBLINDNESS
60–71 (2010) (describing the expansion of the LEA powers as an intentional tool to facilitate overenforcement
and mass incarceration).
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