Freedom is a core value deeply ingrained in American culture and identity. It’s right there in the Declaration, that we are endowed by our Creator “with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” Since freedom, rights, and liberty are often used interchangeably which can be confusing, I distinguish them. People have the liberty make individual choices about their life, beliefs, and actions without undue government interference, to self-determine.
Rather than a list of “rights,” people first have liberty. Liberty extends to what you think and say including the liberty to think nothing, say nothing. It extends to participating in government. It extends to the opportunity to pursue economic goals, own property, and engage in free enterprise. It extends to what you do for housing, clothing, and what you eat including being homeless, naked, and starving.
The government can limit liberty to the degree it has a government function to do so. Considering the two most suspect liberties above, the government can limit people’s nakedness in public. It can also limit free enterprise. It is a government function to restrict the manufacturing and distribution, for example, of methamphetamines. People, too, can impose limitations on themselves. Most people decide for themselves to put on clothes before venturing outside. Most people choose not to manufacture “meth” because use results in severe health issues, including dental problems (“meth mouth”), skin sores, and increased risk of infectious diseases due to needle sharing. In a group, the quality of liberty is directly proportional to people’s choices to accept personal responsibility and satisfy their obligations.
For many Americans, liberty, including the liberty of self restraint, is the defining characteristic of their national identity. This emphasis on liberty has deep historical roots, from the motive energizing immigration to the New World to the American Revolution’s fight against British rule.
When a person is found guilty of a crime in the United States and sentenced to prison, the primary consequence is the deprivation of their liberty. A person in prison is told when to get up, when and what to eat, when to shower, and when to go to bed. Whatever liberties might remain are severely restricted. The restriction is intended to create a safe environment inside the prison walls. It is also intended for retribution.
Retribution is the concept that people found guilty of a crime should be punished. Their punishment is the deprivation of liberty. When punishment is proportionate to the gravity of the offense, it serves as a form of justice for the victim and society at large.
Where a judge intends to exact punishment beyond confinement, they can order specific form of punishment. A historic example is “hard labor.” A judge could simply order a person to serve three years in prison or they could order three years in prison at hard labor. Hard labor is a punishment where prisoners are required to perform difficult and physically demanding work as an additional punishment for their crimes. Hard labor as punishment has been banned in many countries but is still practiced.
In the context of prisons, the phrase “conditions of confinement” refers to the living environment and treatment of inmates within a correctional facility. Where the quantity of a criminal sentence is simply a number of years, the quality of a criminal sentence are based on conditions of confinement. The quality of a three year sentence is very different if it is three years at hard labor versus three years with no labor. Where courts do not order certain conditions of confinement, what do we intend for those conditions to be? Do we, for example, intend for people in prison to be
- subjected to temperatures above 100 degrees Fahrenheit or below freezing?
- starved?
- placed in a room with so many others that it encourages disease and violence (on a July visit to an Alabama jail, I saw six men in one six foot by 8 foot (6’x8′) cell with a shared toilet)?
- routinely assaulted (beaten, cut, stabbed)?
- extorted?
- raped?
- murdered?
I suggest that whatever our intention is, it should be written into the court order. And if a court resists or refuses to write it out, it should be scrutinized as punitive excess.
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- The Distinction Between Freedom and Liberty in the Context of the Federalist and Anti-Federalist Papers - September 20, 2025
