|WORKS DISCUSSED IN THIS ESSAY
David C. Anderson, Crime and the Politics of Hysteria: How the Willie Horton Story Changed American Justice (Times Books, 1995).
Diana R. Gordon, The Return of the Dangerous Classes: Drug Prohibition and Policy Politics (W.W. Norton, 1994).
Wendy Kaminer, It's All the Rage: Crime and Culture (Addison-Wesley, 1995).
The self-reinforcing effects of a criminal career are a staple of criminological lore. Felons commit crimes, which plunge them deeper into criminal networks; they go to prison, where their ties with other criminals are reinforced; they bear the stigma of ex-convict, which limits their legitimate opportunities.
America today, however, has a new vicious circle--not of crime behavior but of crime politics and policy. The symbolic politics of crime demand stiffer penalties, which lead to increased spending, which enriches the enforcement and penal bureaucracies. These groups, in turn, contribute to the campaigns of politicians who play upon fears of crime and build public support for a growing enforcement-corrections complex.
So, crime policy, not just crime itself, has become a study in the interplay of passion and self-interest. As three recent books by David C. Anderson, Wendy Kaminer, and Diana R. Gordon illustrate and argue, America's crime policies today are being driven less by considerations of evidence and logic than by symbolism, culture, and political advantage.
The story of Willie Horton, as David Anderson tells it in his lucid and powerful book Crime and the Politics of Hysteria, exemplifies the triumph of symbolism over a certain kind of rationality--in Anderson's words, the "triumph of expressiveness" over beliefs in "rational crime control and rehabilitation." The case also spotlights the dilemma of a policy that is rational at a societal level, but indefensible at an individual level--indefensible, at least, to someone who ends up on the cost side of the economic equation.
Willie Horton was sentenced to life in prison for participating in a robbery that resulted in the murder of a teenager, Joey Fournier, who worked as a gas station attendant. After 10 years, Horton was released for the first of three successful furloughs, which Massachusetts law authorized for such purposes as visiting a critically ill relative, attending a funeral, or receiving specialized medical treatment or social services.
Furloughs--sometimes called home leaves or temporary community release--were part of a policy of "risk management," aimed at reintegrating convicted felons into communities to which they would eventually return. By 1975, Corrections magazine reported that more than half the prison systems in the United States used furloughs, which totalled more than 250,000 per year. Instead of sending felons out directly from prison to freedom, furloughs were supposed to acclimate them to civilian life, prepare them to adjust after their permanent release, and thereby act as a deterrent to future criminality. Prison administrators also saw the policy as a management tool especially for long-term inmates, who, it was thought, would be motivated to behave in and out of prison in order to continue getting a periodic taste of freedom.
Economic analysis, usually thought to be conservative, supported furloughs: Their benefits, according to corrections experts, outweighed the costs. And, indeed, research published in 1991 on the furloughs of the 1970s and 1980s confirmed that they sharply reduced recidivism, producing a net prevention of crime.
Furlough programs, like parole policies, present an obvious dilemma. The best predictor of future behavior is past behavior; most of those who are imprisoned, especially for violent crimes, have a history of criminality. Offenders are less likely to commit crimes, however, as they age; thus, the risks of release should diminish after felons have spent longer periods in prison. Massachusetts prison administrators understood, of course, that convicted criminals, whether on furlough or parole, might commit crimes or try to escape. To minimize that risk, they took certain precautions before furloughing prisoners, requiring them to be monitored by assigned sponsors. From 1981 to 1986, after lifers were required to serve 10 years before applying for furloughs, only 3 out of 2,434 escaped, for a rate of .012 percent.
Still, it is one thing to have a rational policy, another to carry it out without any mistakes. Horton was released because prison officials seemed almost too eager to furlough him the fourth time--and indeed, in his case, the process fouled up. When Horton's first sponsor complained about being unable to control him, authorities released Horton to a second sponsor, a relative who had no positive influence over him. Horton simply escaped, eventually landing in Maryland, where he managed to remain free for nearly a year until he decided to burglarize the house of Angela Miller and Clifford Barnes.
Anderson's book opens with a chilling account of the crimes of assault, torture, and rape that Horton committed against this innocent young couple. Had Clifford Barnes not managed to escape and call for help while Horton was raping Angela, Willie Horton would almost surely have murdered them. Anderson tells a complicated and ironical story of how Angela and Clifford, who married after the crime, made the public aware of Willie Horton, largely because they were treated with bureaucratic indifference when they asked prison authorities for information about Horton.
As Angela and Clifford related their story to newspapers and on talk shows, Republican strategists realized how valuable Willie Horton could be to a faltering Bush campaign in the 1988 election. Anderson tells how the infamous campaign commercial featuring Willie Horton was developed through focus groups organized by Republican strategists, especially Lee Atwater and Roger Ailes.
Willie Horton's crimes touched a nerve that no cost-benefit analysis could overcome. For example, on one radio program featuring Cliff and Angela Barnes, a young woman who had acted as a furlough sponsor for a prison inmate tried to justify the furloughs, arguing that it didn't make sense to get rid of a largely successful program because of one bad person. "It's very unfortunate," the sponsor said, "that I find myself arguing against your pain, which I really feel for. . . . We all wish that what happened with William Horton had been prevented."
Clifford Barnes was adamant: "How do you use statistics and ratios when you're dealing with human lives? You're not talking about how much your CDs yield. If he had killed, would that have been proof enough?"
The sponsor persisted in defending the furlough program (though not the release of Horton)--as I would have, along with most corrections officials and criminologists--maintaining that without furloughs, more people would die, because the recidivism rate is much higher in places that do not have furlough programs. The studio audience, Anderson reports, "gasped in disbelief." And so did the focus groups. The Willie Horton commercial exploited the deepest fears and, since Horton was an African American, the deepest prejudices, of enough voters to turn around the poll numbers and the election.
Unlike Anderson, who tells a compelling story, Wendy Kaminer, a former public defender and accomplished advocate and writer, has written an analytical book, grounded in issues of agency and accountability that undergird the criminal law. But unlike ordinary lawyerly writing on such topics, Kaminer writes with a lively, contemporary voice that makes reading her book sheer pleasure.
Kaminer argues that recent trends in American criminal justice are neither rational nor consistent. Fear of crime, she says, has supplanted fear of communism, although the latter was a more abstract apprehension. Fear of crime is not necessarily irrational, but the political and policy responses to it, she argues, are emblematic of toughness, more symbolic than real in controlling crime, which has no facile solution. "Any progress we make," she writes, "will be discrete and incremental; only the symbols have sweep."
Kaminer is a staunch defender of constitutional criminal procedure and a skeptic when considering what have come to be called victim's rights. "Victims have moral claims to be treated fairly," she writes, "but they don't have rights, exactly, because they're not being prosecuted: the state isn't threatening their liberty." She understands that this distinction may seem academic to victims and those who identify with them, living in fear because of visions of victimization. "But," she argues, "a trial is supposed to be a principled process, governed by a set of rules devised to implement a set of ideas about justice and the relationship between individuals and the state." She then goes on to present a lucidly written theory of the American adversary system based on due process.
Yet, well grounded and presented as her argument is, I found myself uncomfortable with it. For me, it showed too much of the theory and too little of the shortcomings of the adversary system. How many Americans, watching the trial of O.J. Simpson, can believe that the criminal justice process is all that principled? Watchers, mostly white, who shared the anguish of the Brown and Goldman families and believed Simpson to be guilty, felt that a murderer had escaped justice. To them, clever and well-paid defense attorneys and jury consultants knew how to play to the feelings of jurors who ignored logic and evidence. Other viewers, mostly African American, believed that the prosecution had indeed rushed to judgment and used a brutal and lying police department to frame an innocent man. Few, if any, Americans watching the trial came away believing that the American criminal trial process was principled.
The Simpson trial was, of course, scarcely representative of American criminal trials. But neither are trials representative of American criminal justice. Most criminal cases do not go to trial. They are settled behind the scenes through plea bargaining, which may vary considerably depending upon the predilections of local prosecutors. Kaminer does not focus on the guilty plea, although many criminal justice scholars regard it as among the most important features of the system. It doesn't have the symbolic bite of capital punishment, and even the critics of crime policy are not immune to the allure of symbolism.
Of all the issues in criminal justice, capital punishment most clearly symbolizes the moral standards of a community, but it is simply not that significant in the everyday business of criminal justice. Whether capital punishment deters murderers has been the subject of much debate, but it must be the rare killer who costs out the marginal difference in pain between the penalty of death and that of life imprisonment without possibility of parole. Of course, most murderers don't think they will be caught, so the death penalty is unlikely to deter them. Moreover, if Willie Horton had been "rational" in the economists' sense, he would have murdered the Barneses, since dead victims, like Nicole Brown Simpson and Ronald Goldman, cannot identify their murderers. Nonetheless, whatever the true effect of the death penalty, it persists as a major symbolic issue: The very survival of some horrendous murderers is interpreted as a failure of justice.
The simplest arguments for and against the death penalty are grounded in morality. Death penalty proponents say that murderers deserve to die; opponents say it is morally wrong for the state to kill. Kaminer opposes capital punishment (as I do) on the grounds enunciated by Justice Harry Blackmun, who wrote that the death penalty is a failure because it "remains fraught with arbitrariness, discrimination, caprice and mistake." Capital punishment fails as a system. Many prisoners on death row are poorly represented at trial and say they are innocent. Most are lying, but we can't tell the liars from the truth-tellers until years later. And the true killers who are selected to die are no worse than thousands of others who remain on death row. As Kaminer argues, there is no prospect of a fair system of capital punishment.
On the whole, Kaminer's voice, although clearly liberal, is of moderation and consensus, a nuanced vision of crime control. She says that the eradication of neither social inequality nor law enforcement will effectively control crime. No sensible person can believe that crime problems will be solved "either by burning down prisons or by dismantling social programs, although we could alleviate the problem by improving both the prisons and the programs."
Much of what is going on today she dismisses as "virtue talk," of which we seem to have developed an overabundance, especially on the best-seller lists. Virtue talk is the notion that crime is primarily attributable to bad character rather than social or economic underpinnings. Obviously, those who murder, rob, rape, and steal have bad character, so the question becomes how to build character. Liberals tend to identify structural underpinnings, like work and opportunity. Conservatives focus on the family and religion. Kaminer sensibly sees the need for both, but most of all disputes the basis of public fears and the policies thought likely to solve the underlying problems.
Liberal and conservative criminologists do not differ all that much about the causes of street crime. Conservatives tend to focus on individual social pathologies such as single-parent families, drugs, and defects of character and genes. Liberals stress structural, systemic features such as economic and social inequality. Conservatives stress incapacitation as a preventive, but liberals also understand that seriously dangerous and threatening criminals need to be locked away for long periods, even for life without possibility of release. Liberals tend to view crime from a longer lens, worrying about the next generation of criminals, but so do some conservatives, such as James Q. Wilson and John DiIulio, who are keenly aware of the demographics of crime.
On the whole, there is a major gap between what we know about crime causation and the policies we employ to control crime. Yet sensible people from various political persuasions know that we cannot ignore either prevention or punishment. And, as Kaminer argues, unless we're transformed into a police state, law enforcement alone cannot do the job. Like Anderson and Gordon, Kaminer understands that emotional and self-interested responses to the problem of crime hinder rational consideration of evidence and alternative policies.
Diana R. Gordon's The Return of the Dangerous Classes: Drug Prohibition and Policy Politics echoes key themes of Kaminer's book but applies them with a vision grounded in sociology and political science rather than law and psychology. Gordon, who teaches political science and criminology at the City College of New York, explores the politics of symbolism well known to political and social scientists through the work of Murray Edelman, and especially as applied to crime, through the work of Stuart Scheingold. Like Scheingold, she argues that "the messy and complex politics of street crime can be understood only in the context of broader cultural values and social conditions of American life--our punitive morality, our reliance on individualistic answers to social questions, the inequalities of race and class that we tolerate." Her book applies that perspective to the politics of drug prohibition. Since about 25 percent of state prisoners and 60 percent of federal prisoners are charged with drug crimes--indeed, in California 25 percent are charged with possession or use of drugs alone, not sale--drug prohibition policies and practices should be a principal focus for anyone who wants to make a difference in improving crime policy.
Violent crime, although controversial, is relatively straightforward. Liberals and conservatives may disagree about "risk management," but we don't have different feelings about violence. In one sense, Willie Horton's was an easy case. He was convicted of murder, escaped, and brutally assaulted an innocent couple. In my view, Horton clearly qualifies for a "lock 'em up and throw away the key" response.
But we cannot throw away the key to the cell of every prisoner. We have no choice but to weigh benefits and costs in formulating any rational crime policy. California's broadly drawn Three Strikes Law fails to distinguish between dangerously assaultive crime and such minor felonies as the theft of a bicycle and, as a result, will eventually require either raising taxes or cutting the budgets for higher education, environmental cleanup, or other programs Californians hold dear. The inmate boom is affecting prisons and jails all over the country. The number of inmates in local jails, for example, has risen from 223,500 in 1983 to 490,000 in 1995. These jails once housed low-level offenders until they made bail, were tried, or served short sentences. Now they house hardened criminals because state and federal prisons are overcrowded.
Some state officials facing a surge in new inmates are beginning to consider alternatives. Wisconsin Governor Tommy G. Thompson, who cut spending and taxes and overhauled welfare, has said he will build no new prisons. In New York, where prison building proceeds apace, Governor George E. Pataki has proposed that the state's most violent and disruptive inmates be housed two to a cell as part of an expansion plan to build three new maximum security prisons by the year 2000--this despite protests by the same prison guard union that supports the construction of the new prisons. But to his credit, Pataki favors release of low-level drug offenders.
By force of necessity, policy-makers are beginning to distinguish more carefully among murderers, robbers and rapists, and nonviolent offenders. Of all the policies for dealing with criminal offenders, the most controversial and puzzling are those imposed for drug use and sale. At bottom, the criminal law is a punishment system based on shared moral sentiments. Most of us would agree--intuitively--that those who commit intentional homicide should receive the most severe punishment possible, although we might disagree about whether that punishment should be death. Somewhat lesser, but still severe punishments should be given to robbers and rapists. But there are no such shared intuitions about how much punishment, if any, is appropriate for smoking marijuana. Similarly, what should the punishment be for selling 50 grams of crack cocaine? It is surely not the ten years mandated by federal sentencing guidelines. It is to such offenders and the sometimes bizarre policies governing them that Diana Gordon turns her informed attention.
Gordon says that her book is not a critique of drug prohibition so much as an examination of the forces that sustain the policy. But, of course, the two cannot be separated, since the sustaining forces are what accounts for the policy. The book begins with "snapshots" of American drug prohibition at work. Michigan, for example, now imposes a nonparolable life sentence for possession or distribution of more than 650 grams--about a pound and a half--of a mixture containing hard drugs. Seattle prohibits "drug traffic loitering" and provides that the requisite intent can be found if the suspect is witnessed "repeatedly beckoning to, stopping or repeatedly stopping pedestrians."
Based on these observations, Gordon argues that although the public is surely concerned about drugs, it doesn't necessarily support prohibitionist policies. And when it does, she argues, the concern isn't really about drugs--alcohol and cigarettes are dangerous too--but about the "dangerous classes," a term employed by Charles Loring Brace in a book published in 1872 to describe immigrants and the lower classes in the mid-nineteenth century. "The sins of the latest dangerous classes as they are exemplified in the 'drug problem,'" she writes, "go beyond the immorality of promoting or participating in habits of self-destruction and harm to others. They are also challenges to the value of hard work and initiative or, in the case of dealers, perverters of the dream of free enterprise." That's true, but these perverters can also be violent and dangerous. As I write, this morning's newspapers in New York report a nine-year-old boy seriously injured in a shoot-out between drug dealers on the Upper West Side.
Underground economies invite violence. Illegal drug dealers cannot rely on legal remedies for breach of contract or sale of adulterated goods. Arrests of dealers destabilize markets and retail outlets. Consequently, drug dealers in possession of easily available automatic weapons shoot to enforce perceived breaches of contract, to maintain fear and respect, and, ultimately, to control market share and retail space. If drugs were legal, shoot-outs would be a thing of the past. Paradoxically, the violence stemming from illegality has, in a sense, stigmatized drugs in the public mind and justified the most severe penalties.
Harsh drug penalties for selling crack cocaine fall disproportionately on minorities. The Anti-Drug Abuse Act of 1986 mandates that anyone convicted of selling 50 grams or more of crack cocaine--or possessing that amount with the intent to sell--must receive no less than ten years in prison. But those who sell the same amount of powder cocaine are subject to no minimum sentence. Powder cocaine dealers need to be convicted of selling 100 times the amount of crack to trigger the same penalty. The nation's policy jams federal prisons with small-time vendors and addicts, offers big-time powder cocaine merchants a break, and--since crack is marketed more heavily in minority communities--produces exceptional racial disparity. Local law enforcement officials have also been diverting low-level black dealers into federal courts to impose longer mandatory sentences under federal sentencing guidelines. Of the 60 percent of federal prisoners incarcerated for drug offenses, the sentences for blacks and whites differ substantially--102 months for blacks versus 74 months for whites, a 37 percent spread.
After extensive study, the U.S. Sentencing Commission published a report in February 1995, strongly criticizing the congressional approach to sentencing cocaine offenders. The report highlights the anomaly in the 100-to-1 ratio: Retail crack dealers are given longer sentences than the wholesale distributors who supply them with the powder cocaine to produce their crack. Recognizing that crack and powder cocaine are pharmacologically the same, the report advises that the 100-to-1 ratio cannot withstand scientific scrutiny and concludes that it has had a disparate, prejudicial impact on African Americans.
Despite the report, the U.S. Justice Department urged Congress to maintain these disparate sentencing practices. Attorney General Janet Reno defended the sentencing disparity, saying that equalizing penalties for selling equal amounts of crack and powder cocaine would "fail to reflect the harsh and terrible impact of crack on communities across America." Nobody denies that crack has had a terrible impact. Nevertheless, Attorney General Reno's remarks reflect what Diana Gordon calls a "shadow agenda" behind America's drug policies. The Clinton administration has to appear "tough on drugs" no matter how overblown and discriminatory the policies might be.
To her credit, Gordon's concluding chapters on drug prohibition are sensitive to the difficulties of formulating a rational drug policy. She presents an informed discussion of European "harm reduction" practices but acknowledges that there are no simple solutions. She offers a thoughtful critique of drug legalization as an antidote to crime, pointing out, for example, that illegal drugs offer economic opportunities that would be cut off with legalization--and so rates of robbery and theft might actually increase if drugs were legalized. Instead, Gordon urges a more modest approach, suggesting that we adopt Canada's sensible reversal of our budgetary priorities--70 percent for prevention and treatment, 30 percent for law enforcement and interdiction.
What are we to make of the themes generated by these books? All of the authors are informative, intelligent, measured in their approaches--and pessimistic. Politicians who live in the age of the sound bite will do everything they can to not appear soft on crime. Other hot-button symbolic issues, such as abortion, welfare, and medical care, generate competing political constituencies, but there is no such thing as a criminals' lobby (though we could think of a few lobbies that are criminal). When politicians can play on fear, they produce needlessly protracted and mandated sentences, especially for nonviolent criminals. Contrary to the popular mythology, judges--most of whom are former prosecutors--are not soft on crime, and most of them deplore the rigidity of mandated minimum sentences. On the one hand, we have the realities and complexities of crime control; on the other, we have the symbolic politics of public safety and the simplistic and expensive policies that come with it. The authors of these books show the disconnect between the two.
Maybe the public will eventually awaken to the impact on their tax bills of current policies, especially drug enforcement. But I'm not optimistic, only in part because of the symbolic bite of crime and drugs as an issue. As I suggested at the outset, there is also big money in raising criminal penalties. Law enforcement and corrections officials have become increasingly numerous and well supported. In turn, they support hefty budgetary allocations to back up three-strikes laws. Law enforcement lobbies, like those of defense contractors, have become among the most influential and generous sources of campaign contributions for governors and legislators--especially, but not only, Republicans.
The emerging trends in crime will give the enforcement-corrections complex much material to work with. Although crime rates in cities ranging from New York to Houston to San Francisco have dropped significantly, there has been no decline in youth violence. Between 1985 and 1992, the homicide rate for young white males (aged 14 to 17) rose by 50 percent, while it tripled for blacks. Demographers estimate that by 2005, we will see 23 percent more 14- to 17-year-old males killed, with increases of 28 percent for blacks and 50 percent for Latinos. As the income distribution becomes increasingly unequal, we can be confident that we will have the criminals to fill the vast expansion of prisons and jails. It's a growth industry.
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