-
https://clinton.presidentiallibraries.us/files/original/8aaa68de9ac9e038846fc5b8052984e9.pdf
93416a72c0e374994c74a4fe9f0d9ac8
PDF Text
Text
FOIA Number: 2006-0466-F
FOIA
MARKER
This is not a textual record. This. is used as an
administrative marker by the William J. Clinton
Presidential Library Staff.
Collection/Record Group:
Clinton Presidential Records
Subgroup/Office of Origin:
Speechwriting
Series/Staff Member:
Jonathan Prince
Subseries:
OA/ID Number:
10441
FolderiD:
Folder Title:
1994 Crime Academic Articles
Stack:
Row:
Section:
Shelf:
Position:
s
91
7
1
3
�What To Do· About Crime
1
·James
Q. ·wilson·
~0~
Few of the major problems facing 4mdican society .today are entirely new, but in recent years
most of them have either taken new fo,im~.. or reached new levels of urgency. To make matters·
more difficult, in many cases the solution~Jormerly relied upon have proved to be ineffective,
leaving us so frustrated that we seize desf/erately on proposals which promise much but deliver
little.
In the hope of bringing greater Clarity to the understanding of these problems, and of framing workable solutions and policies, we are inaugurating this new series of articles. Like James
Q. Wilson's below, each subsequent piece in the series will begin with a reexamination of a
particular issue by a writer who has lived with and studied it for a long time and who will then
proceed to suggest "What To Do About" it. Amoni those already scheduled for publication in
the coming months are Charles Murray and Richard ]. Herrnstein on welfare;' Gertrude
Himmelfarb on the universities; William]. Bennett on our children; Robert H. Bork on the
First Amendment; and Richard Pipes on Russia.
··
JAMES Q. WILSON, professor of management and public policy at UCLA, is the .author of
many books and articles on crime, including Thinking about Crime; Varieties of Police Behavior; and Crime and Human Nature (written with Richard]. Herrnstein). 'He is also the editor
of Crime and Public Policy and co-editor, with Joan Petersilia, of Crime (forthcoming from
ICS Press).
''
the Un~ted State~ exp:rienced
declining during most of the 1980's in the United
·
the great mcrease. m cnme that
States, they were rising elsewhere. 1
·
began in the early 1960's and continued through
America, it is true, continues to lead the industhe 1970's, most Americans were inclined to at~ · trialized world in murders.· There can be little
tribute it to conditions. l}nique to this country.
doubt that part of this lead is to be explain"ed by
Many conservatives blamed it on judicial ·rethe greater availability of handguns here. Argustraints on the police, the abandonment of capiments that once might have been settled with
tal punishment, and the mollycoddling of offendinsults or punches are today more likely to be
ers; many liberals blamed it on poverty, racism,
settled by shootings. But guns are not the whole
and the rise of violent television programs. Eurostory. Big American cities have had more homipeans, to the extent they notiCed at all, referred
cides than comparable European ones for almost
to it, sadly or· patronizingly, as the "American"
as long as anyone can find records. New York and
problem, a product of our disorderly society,
Philadelphia have been more murderous than
weak state, corrupt police, or imperfect welfare
London since the early part of the 19th century.
system.
This
country has had a violent history; with reNow, 30 years later, ~my. serious discussion of
spect
to murder, that seems likely to .remain the
. crime must begin with the·. fact that, except for
case.
homicide, most industrialized nations have crime
But except for homicide, things have p,een
rates that resemble those in the United States. All
getting
better in the United States for over'a'dethe world is coming to look like America. In 1981,
cade.
Since
1980, robbery rates (as reported in vic~
the burglary rate in Great Britain was much less
tim
surveys)
have declined by 15 percent. And
than that in the United States; within six years
even with regard to homicide, there is relatively
the two rates were the same; today, British homes
good news: ir ~ 0 CJO, the rate at which adults killed
ar< .. m:_e likely to be burgle9 than Ameri~an
one
another was no higher than it was in 1980,
ones. In 1980, the rate at which automobiles were
and in many cities it was considerably lower.
stolen was lower in France than in the United
This is as it was supposed to be.· Starting
States; today, the reverse is true. By 1984, the burglary rate in the Netherlands was nearly twice that
lThese comparisons depend on official police'·statistics·.
in the United States.' In Australia and. Sweden
There are of course errors in such data .. But essentially' the
certain forms of theft are more common than·
same pattern emerges from comparing nations on the basis
they are here. While property-crime rates were
of victimization surveys.
.
W
HEN
25
.•
{ :1~~ p.. ,..-<.-t.
~ ~.(.~~- ~~
'"t>ll
�rs
'1
£1
sa
r , a
ttrrt m · · ·
·zmff'r tldi%¥
r•·rttt·sser "$if'tr. -,,.,..
, , _. -. e1round 19,80, t:Wo things happe~ed tliat ought to ·grated the markets for clothes, music, automo-· :, .have reduced most forms of crime. The first was · biles-and drugs. · ·
. :- ·,-._:/ .._.the passing·into middleag~ of the postwar baby' ,. There are >only two restraints on behavior:-:>. ·:-:;. -,:,:boom. By 1990; there were 1.5 million fewer boys morality, enfo'rced by individual conscience or ,
.. ' ... ·_:·between the ages -of fifteen and nineteen than
soCial rebuke, and law, -enforced by the police
. ~ ·_-:< there.had be~riin 1980, a drop that meant that' . .and the courtS. If society is to maintain a behav_.·. this'.)routhful fraction of the population fell' from
ioralequilibiium, 2nydecline in the former must
,,,,.-:', 9.3 perceiJtto 7.2 percent ofthe total: · · ·
be matched by a rise in the latter (or vice versa).
-·In ·addition;' the ·great increase iii' the size of.
Iffamilial and traditional restraints on wrongful
the prison population, caused iri'part by the grow- . 'behavior are eroded, it becomes necessary to in- .
ing willingness_ of judges to send offenders to jail,
crease the.legalrestraints. But the enlarged spirit
meant that the dramatic reductions in the costs
of freedom and the heightened suspicion of the
of crime to the criminal that. occurred in the
state have made it difficult or impossible to use
1960's and 1970's were slowly (and very partially)
the criminal-justice system to achieve what cusbeing reversed. Until around 1985, this ·reversal •tom and morality once produced.
involved almost exchisively. real criminals and
This is the modern dilemma, and it may be an ·
parole violators;it-was not until after 1985 that'
insoluble one, at least for the West. The Islamic
_.·' more than' a small part of the growth in prison
·cultures of the Middle East and the Confupopulations was made up of drug offenders. ·
cian culture~ of the Far East believe that they have
Because of the combined effect of fewer young
a solution. It involves allowing enough liberty for
people on the street and more offenders in
economic_, progress (albeit under general state
prison, many scholars, myself included, predicted _ direction) while reserving to the state, and its
a continuing drop in crime rates throughout the - allied religion, nearly unfettered power over per1980's and into the early1990's. We were almost._ sonal conduct. It is too soon- to tell whether this
right: crime rates did decline. But suddenly, start-_
formula-best exemplified by the prosperous but
ing around 1985, even as adult homicide rates
puritanical city-state of Singapore-will, in the
"!efe. remaining stable or dropping, youthful holong run, be able to achieve both reproducible
micide rates shot up. .
·
,
affluence and intense social control.
Alfred Blumstein of Carnegie-Mellon UniverOur other crime problem has to do with the
. 'sity has estimated that the .rate at which young
.kind of felonies we have: high _levels of violence,
males, ages fourteen to''seventeen, kill people has
especially youthful violence, often occurring as
gone up significantly for whites and incredibly
part of urban gang life, produced disproportion_·for blacks. Betwee-n 1985 arid: -1992, the homicide . ately by a large, alienated, and self-destructive
rate for:young white males went up by about 50. underdass: This part of the crime problem, .
though not uniquely American, is more impor\ percent but for young black males it tripled. •
· · The public p~rception that to day's crime prolr
tant here than in any either industrialized nation:
·1em is different from and more serious· than that _ Britons, Germans, and Swedes are upset about
·of earlier decades-· is thus quite corr~ct. Young- , the insecurity of their property and uncertain
sters. are shooting at people at a far higher. rate
about _what response to make to its theft, but if ·
than at any: time in recent history. Since young '• Americans only had to worry about their homes
people are more likely than adults to kill strangbeing burgled and their autos stolen, I doubt that
_ers (as opposed to lovers or spouses), the risk to
cdme w:ould be the national obsession it has now
. innocent bystanders has gone up.' There may be
become.
some comfort to be had in the fact that youthCrime, we shouldrecall, was not amaj~r issue
ful_ homicides are only a small fraction of all kill·in the 1984 presidential election and had only
. ings, but given their randomness, it is not much , · begun to be one in ·the 1988 contest; by 1992, it
solace.
· · · . -,
·
ohallenging the economy as a popular conJ...,.
cern and today it dominates all other matters:
U,nited States, then, does not ·have - .- Tlie.. reason, I think, is that Americans believe .
. a crime problem, it has at least two. ' soinetpin'g fundamental has changed in our patOur high (though now slightly declining) rates - ternsof ~rime. They are right_. Though we were
of property crime reflect a. profound; w:orldwide -' unhappy about having our property put at risk;
cultural change:.prosperity, freedom, and mobil~
we adapted with the aid of locks, alarms, and se~ .
it)' have emancipated people almost everywhere -· 'curity guards. But we are terrified by the prosfrom_ those ancient bonds of custom, family,- and
pect of innoc~nt people being gunned down at
village that _oriee held in check both some of our · tandom,without warning and almost without mo- -·
better and many of our worst impulses. The
tive, by youngsters 'who afterward show us the ·
power of the state has been weakened, the .status .;.-, blan~-, uriremorseful faces of seemingly feral,_
._. of children elevated, and the. ~pportunity- for · presociaL~eings. :. -·
· · ·
.. ·
. adventure' expanded; as a consequence; we have
. ' " - .-- -.:..- ' ..
--· .
. •experienced- an explosion of artistic. creativity;' •. , _, ; ·-,'' ~-,, -CkiMINOLdGY has le,afned a great~eal
entrepreneurial zeal, political experi_mentation-. · , _ : .• ·"<· _ , ·- •· about· who these people· are.· In:
-_and criminal activil:)i.A global economihas inte~. ·studies·· both here and abroad it has been estab---
was
_.-THE
-
.·'J·
(;
�··""'c·.o·c,,.,., .
OUT,CRI~~s<~0~~;;~~:.·~t~t~~~~\~f:·.
· . urban·
,
llf:!ighbor.hoods-make the lirie very long and the ground
:. for
.. · en t ert:ors,:. · ·is:.' r·eni<ir:J<.able··:~jciw:_ ·. :·-~ . Unde.rfqot ~opgh and __treache:f9.us . . :-~~-··
·· ~
consistent 'i:hi~ f9r~ulci.:'is:_j P.~~se~_!;caus,es?O,.~.:.· ·.:.···, .
.<. -;-.' ':.: ·--~. ~.
·· · ·
drugs,· automobiles,. disorganized
I
. , - •·
'\.>" :. - . .
.· : '
~~~f:;;i~h~~:~~~~~l,~&~~~a:;::sa~~9;:ri~:.;:·_·:~::;. .~Mu~~~~~~~t;r~i~:~r~~~7;lif~e~~~~·:
·.··•···
.
por~nt to .. 'lmderstand exa~tly ~~at we are up·
. County, California.· . · •: : . ': ':,: .:. :·'··:_.~'t:,"·,:
We also have learne~ alot about the character~ ... agamst when we try. Prevenuo~, If.It c~n.be made
isiics of the 6 percent. They tend. to havt.!'criiJ:linal
to work at all, must start very early m life, per~aps .
parents, to live-in cold or discordari'tfarriilies (or
a8 early a.S the first two orthr.ee yea~s~ and giVen .
pseudo~families), to have a low verbal-mtellige~ce
the odds it faces~hildhood Imp~lslVlty: low ver-.
·. quotient and to do p~orlfin school, .to b~; emo- . _hal facility, incompetent parentmg: d~sorderly
tionally cold and temperamentally impulsive, to .· .. neighborhoods~it must also be massive m scope.
abuse alcohol and drugs at the earliest~pp(;\itu~
Deterrence;· ifit can be made to work better (for
nity, and to reside in poor; disorderly cofruriunisureiy it already works to some degree)' must be
ties. They begin their misconduct at an early age,
applied close to the moment of the wrongful act
. often by the time they a\e in the third grade. . .•
or else the present-:<>rientedness of the youthful These characteristics tend to be found not only
would~be offender. will .disc dun t the threat so
among the ciiminals'\Vho. get caught (and w~o
much that· the promise of even a small_' gain will
might, owing ,to bad luck, be an unrepresentative ·.. outweigh its large but' deferred costs. . .
..
sample of all high-rate offenders), but a~ong
· · In this country, however, and in most Western
those who· do not get_ caught but reveal the1r benations, we have profound misgivings about dohavior on questionnaires. And the same traits can
ing anything that would give preventioh or deterbe identified. in advance among groups. of ran- . renee a chance to make a large difference. The
domly selected youngsters, long before. they co~family is sacrosanct; the family-preservation move-.
rriit any serious crimes-not with enough preCImerit is strong;. the state is a clumsy alternative.
sion 'to 'predict which individuals will co,mm~t · "Crime-prevention" programs, therefore, usually
crimes, b~t with enough accuracy to be a fa1r.
take the fcirtn of creating summer jobs for adolesdepiction of the gr~mp ~sa whole. 2 ·
' . · . • .·
cents, worrying about the unemployment rate,,or
Here a puzzle ans~s; 1f6 perc~::n't of. the ~ales·
(as iri · the proposed. 1994 crime bill) funding
caus~s so large a fraction of our collectiVe rnlsery,
midnight basketball leagues~ There may be some~
and 1f young males are .lessnume~ous than. ~n~~
thing t~ be. said for all these efforts, ~ut cr~me .
was the case,why ~re cnm~ rates h1gh a~d nsmg.
prevention. Is not one of them. The typiCal highThe answer, I conJecture,_Is that the traits ofthe
rate offender is well launched on his career be6 pe:cent ~ut them at;high.risk fC?r whatever
fore he becomes a teenager or has ever encouncnmmoge.mc forc.es operate m s?c1~ty. As the-.. ten~d the labor market; he may like basketball,
costs of cnme dechne or the benef1~s mcrease; as
but who pays for the lights arid_ the ball is a mat-·.
drugs and guns become. more available; as the . ter of supreme indifference to him. - . ·. ., .....
glorification ?~violence b.ecomes more common. Prompt deterrence has' much to recommend
place; as fam1hes and neighborhoods lose s?me
it: the folk wisdom that swift and certain punish-·.
of their restraining powe~-as all these thmgs
'ment is more effective than severe penaltiel) is
happen~ almost all· of us Will cha?f?ie our ways to
.almost surely correct. But the greater the swiftsome degree:; .. For the .most law-abldmg among us,
ness iu1d certainty, the less ~ttention paid to the
the change will be q':l1te modest: a few moretoo!s · procedural safeguards. essential to establishing
s~olen from our empl~yer, a. few. more t:afflc . guilt. As:a result, despite their good instincts for
hghtsrun when .no pohc~ offi<;:er_ IS watchmg, a,. the right answers, mo~t Americans, frustrated by .
few Ill ore. expenm~nts''\Vlth fashlo?able drugs, . . the 'restrai[lts (many wise; some foolish) on swiftand a few more busmess d~al.s on which we cheat.
ness and certainty, vote for proposals to inciease
But for ~he least la~"abldmf?i among us, t~~
severity: if the penalty is 10 years, let us m:lke 'it
. ~hange will ?e dramatiC: they Wl_ll get d~unk dally . 20 or 30; if the penalty is life imprisonment? let.
mstea~I of JUSt on ~~turday .mght, ·try p~p or
us make it death; if the penalty is jail, let us make
crack mstead of manJuana, JOm gangs mstead of
· ·
·
·
· .·.
·
marauding in ·pairs, and buy automatiC weapons ··.it ~~i~;; mor~ dtaconian'the s~·ntenc~, ih~ 1~-ss· · .· ~.
instead ofrriaking zip guris:· ·
. .
· · .
. (on the aver~ge)the chance of its b~ing imposed; .
·. A metaphor: when. children play the s~ch,ool- ·.... plea bargains see to that. And the inost drawn ian
yard gam~ of crack-the-whip, the child at the head
sentences will, of necessity,. tend to fall. on adult '·.
of the lin. e scarcely moves but the child at the far_
offenders nearing the, end o( their criminal caend, racing .to keep his footing, often stumbles · · ·
·
h ·
· th
and falls, hurled to the ground by the cumulative . . reers and not ~m the yo~ng ones w o are m . eii
..... ·;
. force' of inany ~maller movements back along the.
, . z Fe~ale high-rate ~ff~nders a;e much le~s comm~n ~h~n
line ..WJlen a changing culture escalates c.rimirial-- . male ones. But to the extentthey exist,thetdisplay mostof
ity, the at-nsk boys are ~t the end of the hne, and . ··. thes~ traits. · · ·
... '· · . .
· .•
·'' · _ , . : ~·,~~(r:
. :, :_,··. ·,'-'. ·_
.
~,._
~~~'
.
.&
eua
-.
¥1 ii'Y
.
ii&h
.
···~:: :
'-::.· ..
··.:: .
L$b&&
'
�~~;~i1~!~f:;~~~'; ' - . ·- -. -. _: .- "• - \. . .,_. ~-.-, .-:.;,,,:::<·,,:
_, -' _ _ :...-···.';.
-·-- -- -··, __.- .. 28 I COMMENTARY-SEPTEMBER 1994 _;.._.:; ...
·.- . :.
-;· ~ . ;_ -. ~. _:.:~:;. '. :/· ( :_.·~ . : . . ·.. ~: -:. . ,........ ·..1··,:·· . ..'~ .
- ..
;._.,
.~
:
·:'
,. _',' cdmin~lly most p~odl.lctive yeatL.(Th·e-peak ages -~ · to ideil.tify,, with the aid of citizen groups, probofcriminality ate be~een_ sixteen and eighteen;; ---~-lems that can be solved· so as to prevent criminal. :~ ,th~_- average_ ~ge:o~ pri~o-~·--inrnateS.iis:·te~ ,rea,rs(.;?)ity,_' and. not on~y- to respon~ ·~o .it: This is often
_;:·older.) I say _o(necessity ·because almost every- .... called commumty-based pohcmg; It seems to en.,: judge will give fir8t~ •. ~~cond~,-;~or- even -~hird-t~me _:' '_'tail something more than feel-good meetings with _. offenders a _break, reserving; the _.:heaviest- sen-.:: . horiest citizens, bu't something less than allowing
._.· tences for t110se men who 11<tve•(iriallyexh~nisted· -: :. ·neighborh.oods to assume contro~ :')Lthe police
- judicial patience or optimism:· / _ · ··· · . - · ·. . '
function.
.
Laws that say "thr.ee striked.nd yt:lu're out" ~re ' . · · _The n~w .strategy ~ight better be call~d prob:an effort to change. this, but they sufferfrom an . km-oriented policing. It requires the police to ''
-·. iriheren t contradiction. If they are carefully .. engage in directed, not random, patrol. -The goal
drawn so as to target only the most serious offen-' . of that direction should be to· reduce, in a man, ders, they will probably have a minimal impact
ner consistent with fundamental liberties, the
on the crime rate; but if they are broadly drawn
· opportunity for high-risk persons to do- those
·so as to make a big impact on the crime rate, they . thirigs that increase the likelihood of their vicwill catch many petty repeat offenders who few 'of
timizing others.
us think really deserye life imprisonment. _
. _ For example, the police might stop and pat
- Prevention and deterrence, albeit hard to aug~ . · down ersons whom the reasonably suspect may
ment, at least a~e plausible strategies. Notso with_ be·carrying illegal guns. 4 The Supreme ourt as
many of the other favorite nostrums, like reduc_upheld such frisks when an officer observes "unusingthe-amount of violence on television. Teleual conduct" leading him to conclu-de that ~crimi
vised violence may have some impact on ci-imi- _. nal activity may be afoot" on the part of a person
nality, but I know of few scholars who think the·
who may be "armed and dangerous." This is all
effect is very large. And to achieve everi a sma}l · rather vague, but it can be clarified in two ways._
difference we might have to turn the dock. back
_ First, statutes can be enaCted that make certain
-· to the. kind of programming wehad around1945, _· . persons, on the basis .of their past conduct and
because the few studies that correlate-program~- . present legal status, subject to pat-downs for·
ming with the rise iri violent crime find the bigweapons. The statutes can, as .is now the case in
gest changes occurred between· that ·ear and
several states, make all probationers and parolees
1~
ot er avorite, boot camp, _makes good.
subject-to non consensual searches for weapons as .
copy, but so far no one has shown thatitredutes_ ·_ a condition of their remaining ori probation or
the ·rate at which the former inmates commit
-parole. Since three-fourths of all convicted _offencrimes. ·
_
.
,_
. _
_
ders (and a large fraction of all felons) arein the
Then, of course~ there is•gurt control. 'Guns · community rather than in prison; there are on
are almost certainly contributors to the lethality . an iven day over three million criminals on the
of American violence, but there is no politically
streets un er correct10na su ervlSlon. any ·are
or legally feasible way to reduce the stock of guns
likdy to· become reCI Ivists. Keeping them from . ·
now in private possession 'to the point where their · carrying weapons.will materially reduce the chances
· availability to criminals would be much affected.
that they will rob or kill. The courts might also
And even if there were, law-abiding people would _declare certain dangerous street gangs to be conlose a means of protecting themselves long betinuing criminal enterprises, membership in ~
fore criminals lost a mearis of attacking them.
which constitutes grounds for poljce frisks.
_
As for rehabilitating juvenile offenders, it has
Second, since I first proposed such a strategy,
some merit, but there are_ rather few success sto- : ~ P,ave learned that there are efforts underway in ..
-· ries. Individually,' the .best (<'md best-evali'tated)
public: and pr,ivate research laboratories to de- · ·
programs have minimal, .if_ any, effects; collec-- _velop technologies that will permit the police to
tively, the best estimate of the crime-redUction
de~ectlfrom a distance persons who are carrying~_
value of these programs is quite modest, someconcealed weapons on the streets. Should these
thing on the order of 5 or 10 percent. 3 -~
effor-ts bear fruit, they will provide the police with
the grounds for stopping, questioning, and patHA!, th~n, is to_·~e don_e? -L~tus be,._ ting dowr{even persons noton probation or pagm with pohcmg, smce law-en_role or obviously in gangs. _ _ · .
, forcement office~s are that part of the criminal~ · Whether or noi: the· technology works, the pojustice system which is closest to the situations' ·
·
·
3
where criminal activity is likely to occur. _ . __ ._·
Many individual programs il!volveso few. subjects that -a
_ _ -It is now widely accepted that, howeve-r impor- ___ g<iod,evaluation will reveal no positi~e. effect even if one·-
.. ·<': -
*·
W
-
·
·
·
occurs. By a technique ·called meta~an:llysis;· :scores ofindi- ·
:. -. tant it is-for offic~rs to ~rive arou~d waitin.g for·.-:. vidual studies can be pooled into one mega-evaluation; be-., .
:_ 911 calls summomng their help, domg .thaus not. ___--::·cause there are now hundreds or thousands of subjectS, even >- _,,
. enough. As a supplement to such a reactive strat~ . .: :small gains can be identified. The best of these meta-imaly- - :•_:
- egy....:..-comprised of random preventive -patrol and· -: ses, such as the one by Mark Lipsey, sugg('!st-modest'p~siti-:e "•' _, ·
1
-_.the investigation of crimes that have already oc-: . : eff~clts. d _ f 11 ·: - - -. I : h - 1.
· ") ' - T k... _:_,
d
- ·. ·
-•· ._ ·-,-·· _-,.rna eau erargumentaongt ese_mes1n ust :a e- · .. _-'::
. · curre -::-many leader~ and~ students of _law: en~;: _ . Away Their Guns," ip the New Yo:k· T-imes Magazine, March::
~orcement now urge the pohce to be "proactiVe":
_20, 1994.
·
- -
:_.i
,-.
-------------------------------------------------------------------------------------~
�-- ·.·. _' ·. ·;:>~;~};::_-"·:~ ~-(::(;.~,:~~.[~::;~;,·:;~--~~1~~J~\"j'~r;:, ,.,~.,"' -~,., .,._.
.c .
.
•.
• • ·"'
_ . • : ,.
. . -_.
·~. -~:·. E.t{~~~)~!~~):.~;~~fT~-~b~:r~~~;~~~@!?~~;4~~£~~~'-:.1/ ·: :·.·
. lice can also o~fer ;implediate. cash rewards to. ' . much closer surveillance· than the.~egular pr_oba-. '-'
people who. provide information about individu-'· ., :tioriers', the_· f()imer. were .bmind to
caught: -'
als Illegally carrymg weapons:.~pending $100 on ··breaking the law J?Ore frequentlythanthelatter.
each good tip will have a bigg~r impact on dan- ._ It is thus possiblethat a. highe·r .fraction of t~e
.,· gerous gun use than will the _same ilmo\n:lt spent'; '' '•crimes committed 'by the I~P.th,ail· ofth~ FOntrol. -,·. , ' .
on anotherpopular nostrum-buying back guns·. ··group were detecte<f andresuited ina return to·,
..
from law-abiding people. 5 : _.. , • ._ .. · •. .
·.
-prison, which would, mean, if true; a net gain· in _
Getting ·illegal_ firearms off the streets'\vill_ re- ~- · public safety. '_For· another thing,· "intensive". su-_ ·
quire that the police pe moti_vated to do a:ll of _. pervision was inma11y cases not alLthat inten- ·
these things. But if the legal, 'technologi<;:al, 'imd · sive-:-"in five Cities; 'contaets-wi'th the probation~
motivational ·issues can be resolved, ~>Ur streets.' . ers only t<,>ok place aboutonce a week, and for ~1~
.· can be made safer even' without sending many
cities drug tests occurred, on average, about once
. more people to prison.
··
a .month. Finally, there is some indiCation that
··
·
·
participation in treatment programs was assoCiHE same directed-patrol St~ategy
ated with lower reCidivism rates.
. .
might ·help keep known offenders
Both anti~gun and anti-drug police patrols will,
drug-free. Most: persons jailed in big cities are
if performed systematically, require big changes
. found to have been using illegaldrugs within the
in police and court procedures arid a signifiCant .
day or . two preceding their arrest. When conincrease in the resources devoted to both, at least' -victed, some are given probation on condition
in the sh;rt run. (ISP i~ not cheap, and it ~ill
· that they enter drug~treatment programs; 'others
become ,even more expensive if it is done in a
ani sc;:nt to prisons where (if they are lucky) drugtruly intensive fashion.) Most officers have at
treatment rrograms operate, But in many cities
present no incentive to search for guns or enthe enforcement of such probation conditions is
force drug tests; many jurisdictions, ·owing _to
casual or nonexistent; in many states, parolees
crowded dockets or overcrowded jails, are lax
'are released back into drug-infested communiabout enforcing the conditions of probation or
ties .with little effort to ensure that they par:ticiparole. The result is that the one group of high~
.pate ·in. whatever treatment programs are to be
risk people over .which society al~eady has the
found there~. '
. . ..
legal r~ght to exercise substantial control is often
Almost everyqne agrees that more treatment
out of control, "supervised," if at all, by means of
programs should exist. But what ma.ny advocates
brief monthly interviews with overworked' probaoverlook is that the key to success is steadfast partion or parole officers. _
·
_
ticipation and many, probably most, offenders
Another promising tactic is to enforce truancy
have no incentive to be steadfast To cope with
and curfew laws. Th_is ~rises from the fact that
-~ this, patrol officers could enforce random drug
much crime is opportunistic: idle boys,,usually in
tests on probationers and · arolees on thei beats;
small groups, sometimes find irresistible the op~
· •. . faihng to ta e a test when ordered, or failing the
portunity to steal or the challenge to fight.'Deter- •
test when taken, should be grounds forimmediring present-oriented youngsters who .want to
.ate revocation of pr<?bation or parole, at least for - appear fearless in the eyes of their comrades
a brief pe'riod of confinement.
.· · . ·
while indulging their thrill-seeking natures is ·a
The goal of this tactic is not simply to keep
tallorder. While it is possible to deter the crimes
offenders drug-free (and thereby lessen their inthey commit by a credible' threat ofprompt sanccentive to steal the money need<;!d to buy drugs
tions, it is easier to reduce the chances for risky
and reduce their likelihood of committing crimes
group idleness in the first place.
because they are on a .drug high); it is also to
In Charleston, South Carolina, for example, .
diminish the demand for drugs generally and
Chief Reuben Greenberg instructed his officers·
thus the size of the drug market.
to return all school-age childrc;:n to the sc_hools
-Lest the read'er embrace this idea too quickly,
from which they were truant and to return all
iet me add th:at as yet we have no good reason to
youngsters violating an evening-curfew agre,e·.· think that' it will reduce the cdme rate by very
ment to their parents. As a result, group~ of
much. Something ~kin to this strategy, albeit one
school-age children were no longer to be found
using probation inst~ad of police c_:>fficers, has
hanging. out in the shopping malls or wandering·
beeri tried under the name of "intensive-supervi- ·the streets late acnight.
.
sion programs" (ISP), involving a panoply of drug
There has been no careful evaluation of these
t~sts, house arrests, frequent ~urveillance, _and
efforts in Charleston (or, so far as I am aw:Jre;·in
careful records. By means of a set of randomized
any other big city), but the ·r:ough figures· are.
experiments carried out in fourteen cities, Joan
impressive-the Charleston crime rate in 1991
Petersilia and Susan Turner, both then at RAND,
was about 25 pe,rcent lower than the, rate in
compa~ed the rearrest rates of offenders assigned
· ·
··
·.
to ISP with those of offenders in ordinary P!'Oba-.
. 5 In Charleston South' Carolina 'th~ olice pay a reward. X
· tion. Ther~ was rio diffe.rence.
· ·
to anyone 1 entifying a student carMng a weapon to school,
be
T
Still, this study does not settle the matter. For
· , one. thing, since the 'ISP participants were under
or .to some school event. Because many. boys carry guns to -
. school in order to display or brag about them~ the motive to
carry disappears once,any displa~ alerts a potenti~_l informer.
·.:: ·. '
·. I
e::dk .21 UZC£.44i£L a ..&mJ aim&2a:i:ai.
1
C&WA1M4ZJ;g;ZC&JI&JL&
IMW9tiih i&&ld
JJ£
·. ~:.
. : ·.
,
&& I I i iiM/IIIIMfiiMI
�30/COMtiENTARYSEPTEMBER i"99.4 .
/
-
·_::: .
;_·
·...
-
-.
;'
..
~
.. ~
.
·' so·uth Caroliri'a;s' other prin-cipal ;titie~ ·. a~d, for;;·.:: the largest. ~nd most. iinmediate iinpact. on the
most ·offen·ses '(incl~ding burglaries >nd lard:quality of urban life. But given the vast gulf benies),· lower than what that-city .reporied,:twericy <':<·tween what the public. believes and what niany
.· years earlief.'
· · · ..· ·.· .. · - • • •} : -~ · '·' <: ·.
experts argue should be our penal policy, a few .
. . All these taCtics have in common--putting the··. comments are ~ssentiaL· . .
.·
. .
police, .as the crimiiJ.ologis~- La:wre·nce. -~herm:Cl:~c·<- ~ .- ·.T~e _ptil;>lic. Warits more people s·ent a~ay· f~r
·.of the U1-1iversity of Maryland phrases it,. ,:fhere:, .. longer sentences; many (probably most) crimi- .. ·
the "hotspots" are. Mostpeople need no police ·: nologis'ts think we use prison too much and at
attention except for a response to'their calls for . too great a cost and that this excessive use has
help. A small fraction oLpeople (and -places)< had little beneficial .effect on the crime rate. My
need constant attention. Thus, in Minneapolis, ··views are . much closer to .those of the publiC,
all of the robberies during one year occurred at
though I think the average· person exaggera!eS
just 2 percent of the city's addresses. To capitalize· ·the faults of the present system and the gains -of
on ~his fact,. the Minneapolis police began devot- ·~orne. altern':Hive (such as "three strikes and
ing extra patrol attention, iii brief but frequent . you're out':').
··
.
bursts of activity; to those locations known to be ..··
The expert view, as it is expressed in countless
trouble spots. Robbery rates evidently fell by as
op-ed essays,· often goes like this: "We have been
. much as 20 percent and public disturbances. by
arresting more and more people and giving them
even more. .
·
longer and longer· sentence~. producing no deSome of the worst hot spots are outdoor drug
crease in crime but· huge increases in prison
markets. Because of either limited resources, a
populations. As a result, we have become the most
fear of potential corruption, or a desire to catch . punitive nation on earth."
.
only the drug kingpins, the police in some cities
Scarcely a phrase in ~hose sentences is accu(including, from time to time, New York) neglect
rate. The Erobability of being.arrested for a given
s,treet-corner dealing. By doing so, they get the·· crime is lOwer today than· jt was jn 1974. The
worst of all worlds.
'
-amount of time served in state prison has been
.The public, seeing the police ignore drug deal~. ·.·declining more or less steadily since the 1940's.
-ing that is in plain view, assumes 'that._ they are
Taking all crimes together, time served fell from
· corrupt whether or not they are. The drug kirig25 months in 1945 to 13 months in 1984. Only·
pins, who are hard to catch and are easily refor rape are prisoners serving as Il}UCh time today·.
placed by rival smuggler~. find that their.essential
as they did in the 40's.
·
·
retail distribution system remains intact. Casual
· The net effect oflower arrest rates and shorter
. or first-time drug users, who might not use at all
.effective sentences is that .the cost to the aduit
if access to supplies were difficult; find acc~ss to :perpetrator of the average burglary felL from 2Q..
be effortless.and so increase their consumption.. . days in 1960 to 15 days in 1980 That is to say, ·the
. People who might remain iri. treatment programs
:chances of .being caught and convicted, multiif drugs were hard to get drop out upon learning . plied by the median time served if imprisoned,
that they are easy to get. InterdiCting without
was in 1980 less than a third ofwhat it'had been
merely displacing drug markets is difficult but · in 1960.6
not impossible, though it requires motivation
Beginning around 1980, the costs ofcrime to
which some departments lack and' resources
·the criminal began to inch up again---'the result,
which many do not have.
.
.
chiefly, of an increase in the proportion of conThe sheer number of police on the streets of a
victed persons who were given prison terms. By
city probably has only a weak, if any, .relationship.
1986, the "price~ of a given ·burglary had· risen
with the crime nite; what the poljce do is more
to 21 days. Also beginning around 1980, as I not- ·
important than how many there are, at least' ed.at the outset, the crime rate began .to decline.
a"6ove some minimum level. Nevertheless, patrols
. )t would. be foolhardy to explain this drop in'rdirected at hot spots, loitering truants, late-night
cdine, by the rise in imprisonment rates; many ·
wanderers, probationers, parolees, and possible
other factprs, such as the aging of the population·
gun carriers, all in addition to routine .investiga- . and the sc;lf-protective .measures ofpotentialvic- ·
tive activities, will require. more officers in many· tims, were also at work. Only a controlled expericities. Between 1977 and 1987; the number of· ·ment (for example; randomly allocating pris.on
police officers declined in a third of the 50 largterms for a given crime amohg the state~) could
est cities and fell relative to population in many
hope to untangle .the causal patterns, and. hapmore. Just how far behind police resources have
pily ·the Constitution makes such experiments .
lagged can be gauged from this fact: in 1950 there
unlikely.:
.
. . . · .
, :)
was one violent ·trime. reported for every police
Yet it is worth noting that nations with differ~.
officer;_ in 1980. there were three violent crimes
· ent. penal policies have experienced differeni. ·
reported for e':ery' officer.
6
said little so far about penal
.
.
.
policy, in part,because I wish to focus
. attention on those things that are likely to have
I
HAVE
I take these
co~t
calculations
fr~in ·M~rk·: Kleiina~·,
·_
et al., ~Imprisonment-to-Offense. Ratios," Working Paper·.:
89-06-0_2 of the-Program in Criminal justice Policy and Man< :·
agement at the Kennedy Scho.ol of Goverl].ment; Harvard. ·'. _·: •...
University (August 5, 1988).' .·
·
'·
· ·
�. -..
-
...
'···
~ .'
·'
·'
_;-::.-
.We ai-e left, ·then;. ~ith ·the prob
. .
cdme rate-s. According to David Farri~gtoil.
Carribiidge University, property-crime rates rose . · ing the demand for drugs, arid that in turri re:, ~- . < ·.
in England and Sweden at a tiine when both the. •· quires either prevention programs on· a scale · .,_' ·
imprisonment r:ate and time served-fell sub.stan~_ · h_~retofore :uniinagined. qr __ tr~atment program,.s~.·>:·i~~:.:·. :
,wtth .a lev~l of effecttv,ene_s~t heretofpre, ,un~ · :·~:-, ... ·
tially, while property-crime rates declined .in the.
United States at time when the imprisonment . achieved. Any big gains in prevention and tieat~· ·.,'·· ···
rate (but not time served) was increa~ing~ . ·-...· . . men~ will probably have to await further basic :....
research into the biochemistry of addiction ,and .. ~
Though one cannot measure the· effect of
. prison on crime with any accuracy, it certainly
the development of effective arid attractive drug
has some effects. By 1986, there were 55,000 more . antagonists that redu'c~ the appeal of cocaine arid
· ·.
·
. ··
·· ·
robbers in prison than there had .beeri in .1974 .... similar substances. 7 · .·
Assume that each imprisoned robber woul~ comIn the me~ndine, it is necess~ry either to build .
mit five such offenses per year if ftee ori ·the · much mo~e prison space, find some other way of '" '
street:- This means that in 1986 there Were
disciplining dAtg offenders, or both. There is very
275,000 fewer robberies in America thai] tlj~re
little to. be gained, I think, from shortening the
would have been had these 55,000 men beeri"left
terms of existing non-drug inmates in order to
on the street.
free up more prison space. Except for .:ifew eld.Nor, finally,· does America use prison to ·a de~
erly, nonviolent offer:tdeni serving very long
gree that vastly exceeds what is found in any other · · terms; ther:e are real risks associated with short-· ·:
ening the terms of the typical inmate. '
civilized nation. Compare the chance ofgoing to
prison in England and the United States if one is
Scholars disagree about the magnitude of
convicted of a given crime. According to Farthose risks, but the best studies, such as the one
rington, your.chances were higher in England if· of Wisconsin inmates done by John Diiulio of
you 'were found guilty of a rape, higher in
Princeton, suggest that the annual costs to sociAmerica if you were convicted of an assault or a . e.EJ in crime conimjtted by an offender on the
burglary, and about the same if you were .con- . street are probably twice the costs of putting him
victed of a homicide· or a robbery. Once. in·
in a cell. That ratio will vary from state to state ·
prison, you would serve a longer time in this'
because states differ in what proportion of con- ·
country than in England for almost all offenses
_victed persons is imprisoned....;,:some states· dip
· save murder..
·
.
. .
. deeper down 'into the pool of con:victees, thereby
James Lynch of American Urtiversity. has
imprisoning some with minor criminal habits.
reached similar Conclusions from his comparaBut I caution the· reader to understand ·that.
tive study of criminal:iustice policies: His data
there are no easy prison solu1:ions to crime, even
show that the chances of going to prison and the
·if we build the additional space. The state-prison .
time served for homicide and robbery .. are
population more than doubled between 1980 and
roughly the same in. the.lJnited States, Cana<:fa,
1990, yet the victimization rate for robbery fell by
and Enghmd. ·
·
· ·
·
only23 percent. Even if we assign all of that gain · ·
to the increased deterrent·and in capacitative ef- .:
feet of prison, which is implausible, the improve· o F LATE, drugs have changed American· penal practice. In 1982, only
ment is not vast. Of course, it is possible that the
about 8 percent of state-prison inmates were servvictimization rate would have risen, perhaps by a .·
ing time on drug convictions. In 1987, that.started · large amount, instead of falling if we had. not
to increase sharply; by -1994,. over 60 percent of
increased the number of inmates. But we shall
all federal·and about 25 percent of all state prisnever know.
Recall my discussion of the decline in ~he costs
oners were there on drug charges. In some states,
such as .New York, the percentage was even
of crime to the criminal, measured by the numh;gher.
·
·
· ·
ber of days in prison that result, on average,
This change can be attributed largely to the
from the commission of a given crime. That cost
advent of crack cocaine. Whereas snorted cocaine
is vastly lower today than in the. 1950's. But ~uch
of the decline (and since 1974, nearly all oflt) is
powder was expensive, crack was cheap; whereas
the former was distributed through networks cathe result of a drop in the probability of being
. tering to dite tastes, the latter was mass-marketed
arrested for a crime,. not in the probability of
being imprisoned once arrested.
·
on street corners. People were rightly fearf~l of
·: Anyone who has followed my writings on crime
what crack was doing to their children and demanded actio"'; •:\s a result, crack dealers 'started
·knows that I have defend~d the use of prison both
going to prison in record numbers.
·to deter crime and incapacitate criminals . .I continue to defend it. But we must recognize two ·
Unfortunately, these penalties do no,t have the
facts. First, even modest additional reductions in .
same incapacitative effect as sentences for· robbery. A robber taken off the· street is not re. 7 I anticip~te that at this ~oint so~e readers will. ca!l··ro~
placed by a new robber who has suddenly found .
·legalizing or decrimimi.lizing drugs.as .the "solution" to the
a market niche, but a drug dealer sent away is
problem. 'Before telling me this, .I hope they will read what I
replaced by a new one because an. opportunity
wrote on that subject in the Febru'ary 1990 issue of COMMENTARY. I have not changed· my mind.
·
has opened up~
·
a
.-·
,·.-·.
\
�mtrtrzrm n11 rr•r rr .
._
·~:·:-~:~I?:~~~:\,S-:::; ;~ ;t~~/,_-V/:~:!,;:~:}£;;;t{i~~~~f};~~~Efi1'?~"- --- - 32; CoMMENTARYSEPTEJ\fBER 1994
../
·.·. ; .
,·crime, coinp'arable' to,' the 'ones achieved in 'the ; ' high-~~t'e: cri'~in~is' at~ time ~hen thei; ~ffense~'
early 1980's, will require ~ast increases in correc--- <Were l1?t yettoose7i~us)Perhaj:>s earl~ andswift,
, tional costs and encounter bitter judicial resis-_ < though. not'necessanly~sevt:re, sanctions-could
tance to mandatory sentencing laws: Second,
deter soine budding ho9dlums; but we have no
America's most troubling crime problem:_the
evidence of that as yet. _. _-: · · - .
·increasingly violent behavior of disaffected and
,.
·• impulsive.youth-:-may_ be especially hard to con·'•po~ ·a~ -lohg ~s- I can rem~mber, the - ·
trol by mean's of marginal and delayed increases '
. ' ,deba:te over crime has been· between ''
in the probability of punishment.
. those who wished to rely on the_ criniinaljustice
· Possibly one can mak~ larger gains by turning
system and thcise who wished to attack the root
our attention tO'the unexplored area of juvenile
causes ofcrime. I have always been in the former
justice. Juvenile ( o( fc:tmily) courts deal with
group because what its. opponents depicted as
young people just starting their criminal careers
"root causes".:_unemployment, racism, poor
and with chronic offenders when they are often
housing, too little schooling, a lack of self-esat their peak years of offending. We know rather :.teem-turned out, on dose examination, not to
little about how these courts work or with what ' ' ' be major causes of criine 'at all.,· '
'
. Of late, however, there. has been ashift in the
, effect. There are few, if any, careful studies of
· w:hat happens, a result in part of scholarly neglect! ·debate. I~creasingly those who wani: to attack root
and in part· of the practice in ·some states of
causes have begun to point to real- ones-'-~
shrouding juvenile records and proceedings in
Eerament earl famil ex eriences, and nei hsecrecy. Some studies, such as one by the Los
borhood effects. The sketch I gave earlier o t e
Angeles Times of juvenile justice in California,
typical high-rate young offender suggests that
suggest that young people found guilty of a serithese factors-are 'indeed at the root of crime. The
ous crime are given sentences tougher than
problem now is to. decide whether any can be
8
those meted out to adults. This finding is so'
changed by plan _and at an acceptable price in
counter to popular beliefs and the testimony of
money and personal freedom.
,
many big-city juvenile:=court judges that some
If we are to do this, we must confront the fact
caution is required in interpreting it._•_
that the critical years of a child's life are ages one
There are two problems: The first lies in definto ten, with perhaps the most important being
ing the universe of people to whom sanctions are
the earliest years. During il:wse years, some chilapplied. In some states, such as California, it may
dren are put gra~ely ai' ris}< by some combination.
well be the case that a juvenile found guilty of a
of heritable traits, prenatal insults (maternal drug
· ser'ious offense is punished 'with greater rigor_ and alcohol abu~e or poor diet), weak parentthan an adult, but many juve'niles whose behavior·
child attachment, poor supervision, and disorought to be taken seriously (because they show
derly ·family environment. ·
··
signs of being part of the 6 percent) are released
If we knew with reasonable confidence which
by'the police or probation officers-before ever
'children were most seriously at risk, we might
seeing a judge. And in some states, such as New
intervene with soll}e precision to supply either
York, juveniles charged with having committed
medical therapy or parent training or (in extreme
certain crimes, including serious ones like illecases) to remove the _child to a better home. But
gally carrying a loaded gun or committing an asgiven our present knowledge, precision is impossault, may not be fingerprinted. Since persons · sible, ;:trid so we must proceed carefully, relying,
with a prior record are usually given longer senexcept in ,the most extreme cases, on persuasion _
tences than those without one, the failure to finand iricentiveSt
·
·
gerprint can mean that the court has no way of
We do, however, know enough about the early
knoWing w~ether the John Smith standing before
ca_ust;s of conduct disorder and later delinquency
it is the same John Smith who was arrested four
to· know _that the more risk factors exist (such as·
times for assault and so ought to be sent away, or
parental crimimtlity and poorsupervision), the
a differentJohn Smith whose clean record engreater the peril to the child. It follows that pro1 '
titles him to probation. '
grams aimed at just one or a few factors are n<;>t
The second problem arises from the definilikely to be successful;, the children most at risk
tion of a ~severe" penalty. In California, ajuveare those who require the most wide-ranging and
nile found guiltY of murder does indeed serve a
·. fundarrie~cil changes in (their: life circumstances .
. loJ1ger sentence than ~n adult convicted of the
The goal of these changes is, as Travis Hirschi of
same offense-60 mo'nths for the former; 41
the University of Arizona has put it, to teach self- .
.·months fo~ the latter. Many peophled
w ilfl. be
control.
· ,
· .
·
.
··.
.
. ,
· puzzled by a n.ewspaper account t at e mes
Hirokazu Yoshikawa of New York University has
··five years in prison for murder as a "severe" sen~ecently summarized what we have learned about
tence; and angered to 'learn that an adult serves . programs that attempt to inake large.and lasting
less than'fo_ ur years for such a c. rime.
·
h
· ·
h"ld'
· c ·
d
c . anges !n. a c .I .. s prospects ~or Improve . conThe key, unanswered question is whether
/'prompt and more effective early intervention
8 "A Nation's Cliiidre1:1 ill Lock-~p;" Los Angeles Times,
.Would stop high-r~te delinquents from becoming
·August 22, 1993. ··
·
·
·'
.·
�::_;.
0
. .. .:< . . .. . .··:··:;:;);:-'·}J::;,:;(·}f.ij.~;j.{}?~-6:~,\:j;.{·t~~~~:{.;f~\~tr-~j-~:~)1;;~~~~~~;._~;,,,,:, ~ ~y.:,;: :~ "' ":;:•.,-;-,
·...·'·:
·duct; better school behaVior, and lessened deliri7·> . ·trouble with the law; .arid
. c_Ju_JLuuLu
quency. Four such programs in partkular seemed · and physical problems. 9 Pr~dticing illegitimate ·
valuable-'-the Perry· Preschool Project in Ypsi- .•. ·. children is not an "alternative life-styI~~ or ~imply 0:. :•·;-:: .
· lanti, Michigan; the Parent-Child. Development
. an imprudent action; it is :a curse. _Making mo_th~_s:::'. '
Center in Houston, Texas; the Family Develop- · :,ers .work will_ not· end the curse; _under curiehf:::? ..,
ment Research Project in Syracuse, New York; . proposals, it Will.not even save. :money.''· ::,_· .<)1'~'-~i:;__ :~:
and the Yale Child Welfare Project in New Haven,
. The absurdity of divorcing ·the welfare-:prol).:' ':· ··
Connecticut.
. 1 ·..
lem from the child-development· problel_ll be~--- ···
All these programs had c~rtain features in. -·· comes evident as soon as we think seriously about~
common. They dealt with low-income; often mi- . what we want to achieve. Small¢r welfare eX:p~n~ :: · _ ..
nority, families; they intervened during· the first
ditlires? Well, yes,. but not if it· hurtS children:·.
five years of a child's life and contin~edfor be-·
More young mothers working? Probably not';_
tween two and five years; they c_ombi~ed parent
young mothers ought to raise their 'young chil-.
training with preschool education for th(! 'cl).ild; _ ·· dren, and work interferes with that unless two
and they involved extensive-home visits, All w,ere
. pare~ts can solve some difficult and expensive.
evaluated fairly carefully, with the follow-upsJast- , problems.
ing for at least five years, in two cases for- at least
What we really want is fewer illegitimate chitten, and in one case for fourteen. The programs
dren, because· such children, by being born out
produced: (depending on the project)· less fight·of wedlock are, except in unusual cases, being~:
ing, impulsivity, disobedience, restlessness; <;heat~
given early admission to the underdass. And fail~.
ing, and delinquency. In short, they improved
ipg that, we want the children born to single (and
self-control.
·
typically young and poor) mothers to have a
They were experimental programs, which
chance at a decent life.
means that it is hard to be confident that trying·
Letting teenage girls set up their own housethe same thing on a bigger scale in many places
holds at public expense neither discourages ilwill produce the same effects. A large number of
legitimacy nor serves the child's best interests. If
. well=otrained and highly motivated caseworkers
they do set up their own homes, then. to reach
dealt with a relatively small number of families,
those with the fewest parenting skills and the .
most difficult .children will require the kind of
.with the workers knowing that their efforts wer.e
being evalu(lted. Moreover, the programs oper-< , expensive and intensive home visits and familyated in the late 1970's OF early 198Q's before the
support programs characteristi<;. of the four sueadvent of crack cocaine or the rise of the more
· cessful experiments mentioned earlier.
lethal neighborhood· gangs. A national-program
' .One alternative is to tell a girl who applies for
mounted under current conditions might. or
welfare that she can only receive it on <:ondition _.:u_
might not have the same result as theexperimenthat she live either in the home of two CO!Jlpetent r
tal efforts..
_ .
parents (her own if she comes from an inta~dam. Try telhng that. to la~makers. What happens
il ) or in a group home where com etern su er-.
wheri ~>Oliticians encounter exp~rimental suev 1s1on an parent trammg w1 .. e prov1 e
y.
cesses IS amply revealed by the history of Head
adults unrelated to her. Such homes would be
Start: the_r expan?ed the p~ogra~ quickly with~rivately managed but publicly funded by poolout assunng quahty, and stnpped It down to the
-ing welfare checks, food stamps, and housing alpart that was the most popular, least e?Cpensive,
lowances.
and easiest to ruri, namely, preschool educati?n:
A model for such a group home (albeit one
·Absent from. much of Head Start are _the htgh · run without public funds) is the St. Martin de
t~~cher-to-ch1ld case loads, the ~x~ensiVe home
Porres House of Hope on the south side of
. VIS.Its, and the elaborateparent trammg~the very
Chicago, founded by two nuns for. homeless
thmgs that probably acc_ount for much of th:e young women, especially those with drug-abuse .
success of the four expenmental programs.
problems. The goals of the home are clear: accept personal responsibility for your lives and
N THIS country we tend to separa~eprolearn to care for your children. And these g.bals, .
. grams designed to help ch~ldr~n
in turn, require the girls to follow rules, stay in
from those that benefit their parents. The former
school, obey a curfew, and avoid alcohol and
are called "child development,'~ the latter' "wel- · drugs. Those are the rules that ought to gover:n a
fa,re reform." This is a great mistake. Everything
group home for young welfare mothers. '
..
we know about long-term welfare redpientsindi-.
Groun h0mes funded by pooled welfare hem!- ·
cates that their children are at risk for-'tli.e very
fits wouid make the task of parent training much ·
problems that child-helping programs later try to ·
.·easier and provide the kind of structured,· consiscorrect.
tent, and nurturant environment that children
The evidence from a variety of studies is quite ··
need. A few cases might be too difficult for these
' clear: even if we hold income and ethniciry con·-.
homes, and for such children, boarding sch~ol~
.stant, children (and especially boys) raised· by a
9 I summarize this evidence in "The Family-Values Desingle mother are rriore _likely than those raised
·,bate." ·coMMENTARY, April 1993:
·
by two parents to have difficulty ip school, get in
0
:: ·
I
·,
~s:Uc
'·
a ::::w:;:;iC4Wa4&as:
maz:.aM: .am:: _;;;u
AJJQS
2 2
::ow
t &JJUUih CLZW&Q!Z.W::W 11
I&M .
�once common in American. cities
-·di~advan:. theory mak~justice ·.~wifter and ~ore certai~~ b~t. ' . • ·.. ·.
taged children; bU:t now ahnost extinc:t~:.:might: ' we will not ·accept the restrictions on libertyand' .
be revived.
... •
. . . .. , . ..
. ·.. 'the weakening of proc~dural safeguards 'that t,his · · .
Group homes also. make·. it easier . to supply_·· .. would entail. We· could _vastly improve the way il} ·•·.. ·
quality medical care to young mo~hers a~d: their'' ' which our streets are· policed, but some of us will
children. Such care has taken .on added'· irripor- · . not pay for it and the reStofus ~ll not t~letate it. · ·
tance in recent years with discovery of the lasting . We could. alter the way in which at-risk children
damage that .:aa be done ,to· a child's prospects
experien<;;e the first few years oflife; but the op- .·
from being born prematurely and with a very low
ponents of this~welfare-rights ilCtivists, family,
birth wdght, having a mother who has abused . preservationists, budget cutters, and assorted
drugs or alcohol, or being exposed io- certain
ideologues-are numerous and the bureaucratic
dangerous metals. Lead poisoning is now widely
problems. enormous. .
.
acknowledged. to be a source of cognitive and
Unable or unwilling to do such things, we take
behavioral impairment; of late, elevated levels of
refuge in substitutes: we debate the death penmanganese have been linked to high levels ·ofvioalty, we wring our hands over television, we lobby
lence. 10 These are all treatable conditions; in the.. to keep prisons from being built in our neighbor~.
case of a_ mangan~~e ,imba~arice, easily treatable.. . hoods, and .we fall briefly in love with trendy
·nostrums that seem to cost little· and promise
y 'FOCUS on changing 'behavior will
mu'ch.
··
·
.
.
,
·annoy some readers. For them the
.
Much of our ambivalence is o.n display in the
problem is poverty and the worst feature of single1994 federal crime bill. To satisfy the toughparent families is that they are inordinately poor.
minded, the list of federal offenses for which the
Even to refer to a behavioral or cultural problem
death penalty can be imposed has been greatly
is to "stigmati~e" people.
.
·
. enlarged, but there is little reason to think that
Indeed it is. Wrong behavior-neglectful; imexecutions, as they work in this country·(which is
mature, or incompetent parenting; die producto say, after much delay and only on a few offend. c tion of out-of-wedlock babies-ought to be stigers), 'have any effect on the crime rate and no
matized. There are many poor· men of all races . reason to think that executing more· federal priswho do not. abandon the women they- have im- . oners (who account, at best, for a tiny fraction of
pregnated, and· many poor women of all races
all homicides) will reduce the murder rate.· To·
who avoid drugs and do 'a go-od job of raising
satisfy the tender-minded, several billion dollars
their children. If we fail to stigmatize those whq
are earmarked for prevention programs, but
give way to temptation, we wi~hdraw the rewards
there is as yet very little hard evidence that any of
from those who resist them: 'Jhis becom-es all the · · these will actually prevent crime.
_·
.
more important when entire communities, and
· In adding more police officers, the bill may
notjust isolated households, are dominated by a
make some difference-but only if the additional
culture .of fatherless boys preying on innocent
personnel are imaginatively deployed. Arid Wash. persons and exploiting immature girls.
.
.. iiigton will pay only part of the cost initially and
We need not merely stigmatize, ,however. We
none of it after six years, which means that any
can try harder to move children out of those
City getting new officers will either have to raise
communities, either by drawing them· into safe
its own taxes to keep them on the force oraccept .
group homes or facilitating (through rent supplethe political heat that will arise from turning
ments ahd housing vouchers) the relocation of
down "free" cops. Many states also desperately
them and their parents to neighborhoods with
need additional prison space; the federal funds
intact social structures and an ethos of family
allocated by the bill for their construction will be
values. ·
.
welcomed, provided that states are willing to meet
Much of our uniquely American crime probth:e cpnditions set for access to such funds.
7
lem (as opposed to the worldwide problem of
.'Meanwhile, just beyond the horizon, there'
general thievery) arises, notfrom the failings of
lurks 'a cloud that the winds will soon bring over
individuals but from the concentration in disorus. "the population will start getting younger
derly neighborl1oods of people at risk offailing.
a~ai~. ~;the end of this decade there will be a·.
milhon more people .between the ages of four_:That coilcentr.ation is partly the result of prosperteen and seventeen than there are now. Half of
ity and freedom (functioning .families long ago
this extra million willbe male. Six percent of
seized the ~pportunity to move out to the periphthem will become· high-rate; repeat offendersery), partly the result of racism (it is. harder for
30,000 more muggers, killers, and thieves than ·
some groups to inove than for others), and partly
Welia~e now.
the result of politics (elected officials do not wish
Get.re~dy.
t() see settled constituencies broken ~P):
fo;
.
,
.l
M
. .
I SE~IOUSLY doubt that this.country has the will
to address either of its two crime problems, save
by acts of individual self-protection. We could in
.
,
I"'
10 It-is not clear why. manganese .has this effe~t, but we
ktiow that it diminishes the availability of a precursor of
serotonin, a neurotransmitter, and .low levels of serotonin
are now strongly linked-to violent and impulsi~e behavior.
-
· - - - - - - - - -
�,
03/21/95
~
.
'
TUE 09:18 FAX 617 330 1016
BBJ
14]001
200 High Street7 Boston, MA 02110 (617) 330-1000
FACSIMILE TRANSMISSION COVER SHEET
~
To: ~THt\f) ~ltJu;?
r---------------~-----,
BosmN BusiNESs
. JoURNAL. EnrroRIAL.
~A v N·a·
.·
: ;:-· ~ 3··3·o··· 10··1· 6
From: CtfTHtt'fkl ~1tJ6EI2..
Date: J· z.t· .q5
1....,~
.:4.~
.: ...-: ./•·
•I
:I ·
•I
.. ~ ...~·
~L-~-------------------~
•
TOTAL NUMBER OF PAGES INCLUDING COVER SHEET:
8::.·
IF YOU DO NOT RECEIVE ALL OF THE PAGES, PLFASE CALL (617) 330-1000.
,taoQl.lOTHER FAX NUMBERS: ADM][NISTRATION AND ADVERTISING:
330-1015.
' .
i
FAX.. DESTINATION NUMBER:
;104-
'()(p-
53:0Df
�03/21/95
TUE 09:18 FAX 617 330 1016
141002
BBJ
Moral Credibility
and Crime
by PAUL Ill. ROBINSON
Moral authority, rather rhan rehabilitatio-n or
deterrence, may be the key ingredient in a
criminal-justice system that can reduce violent crime.
That authority has been deeply eroded by
the system's otvn rules and procedures,
the author contends, and he offers
ten major cases in point .
W
bi Uion of public spending in the same
E are in a panic over crime.
of new data but of realized frustra·
category. By 1990 annual private extion-i·eminding us of the monkey who
Legislators compete with one
penditures for security had risen to $52
works methodic<llly to free himself
another to propose the tough·
est anti-crime legislation. The $30 bil·
billion. The rate of crime has stabilized
from a uap and goes berserk only when
because we increasingly diminish the
he reaHzt:s he can't escape. Frustration,
lion federal anti-crime bill got strong
support in the midst of a deficiHeducquality of our lives to avoid it. The .innot crime, has boiled over.
To many, our situation is intolerable.
tion drive. In the states "three strikes
jury of crime escalates even where ils
and you're out" proposals are trUmped
incidence does not.
Five years ago, before the current panby "two su·ikes" proposals.
The other important fact is that
ic, 82 percent of those polkd in one
Clearheaded commentators point out
crime has dramatically increased over
study believed that crime was getting
that the panic is unjustified: crime rates the longer term, albeit in increments worse; 34 percent fell "_rruly desperate"
sufficiently small that no single rehave not in fact increased recently, they
about rising crime.
correctly note. But a complete descripported increase has justified panic. In
tion of our situation includes two other
I 955 fony-six robberies occurred anWhitt We
important pieces of information. First,
nually per 100,000 in the population;
Have 'fried
one reason that crime has not increased
today the rate is more than 270-a
sixfold increase. Rape rates have more
HE steady worsening ()f the
recendy is that we have altered the way
we live in order to avoid it. We no
crime problem i.s not the result of
than tripled. Murder per capita has
inattention; rather, it .has OC·
longer go out at night We no longer let
more than doubled. The aggravatedour children walk to a friend's house to
assault rate has increased more than · curred despite our best effort:> to halt it.
play. We install locks, cany Mace, and
sixfold. Overall, taking into account ln the 1950s we thoughl we could best
readily pay more for apanment build- · both urban and n1ral areas, rhe majorstop crime by not just imprisoning
ings with security. In 1980 private eJtcrime rate is more than four times
criminals but rehabilitating them. Today
penditures on security were $20 bilwhat it was four decades ago.
we would call it aHacking the root
lion-i:onsiderably more than the $f4
Perhaps the current panic is bom not
cause of the problem: offenders have a
T
72
fllustralion! by Bdun Cairns
~~,,It
c; II
I 1J II 5
�·.···:\,
03/21/95
TUE 09:19 FAX 617 330 1016 .
BBJ
141003
···-:
disease: we will trcar it.
The logk of the rehabilitative model dictated
that sentences for all felonies be indeterminutc
-from one day to life,
depending un the treatment needed and how
the offender responded.
But Robert Mallinson, a
sociologist, concluded
in his 1974 survey article "What Works?,'' in
The< Public interest, ''1
am bound Lo say that
these· data, involving
over two hundred studies and hundreds of
thousands of individuals
as they do, ure the best
available and give us
very little reason to hope
that we have in fact
found a sure way of
reducing recidivism
through rehabilitation."
Deterrence became
popular as an alternative. Potential otTenders would be dissuaded from commiuing offenses by
the threat of serious penalties. The
greater the threatened penalty (the
longer the prison term), the greater the
disincentive. The high, cost of imprisonment would normally put a natural
limit on the severity of the deterrent
threat, but the threat could be made
dramatic without courting fiscal crisis
if longer sentences than would actually
be served Were publicly imposed. The
idea was that the deterrent benefit
would be fully realizcdt;at the moment
of public imposition, and that offenders could later be quietly released by
parole boards (conveniently left over
from the rehabilitation approach). Typical was the federal :;ystem, in which
offenders could be eligible for release
immediarely, and which generally required release after serving a third of
the sentence_
But in our open society the shell
game was soon seen for what it was.
The public came to understand that a
twenty-year sentence really meant a
maximum of seven years and often
'f II E . A 1' L A
,_ .,
I (;
M 0 Ill 'I' 11 I, ¥
punishm~nl appli~s 10
tlll11.:rs bu1 nut w thclll.
Unlik~· the nllll'l'
guy.
1he_1· will :1void JL'IL't:ti<~ll by t:d,;ing '!"~ ••~·l:o·
sary pr~'~:<tution:-.. Thrr~
r:VL'Il th<~s<.: who might
think ab<)ll\ lite L~lJII~r:
~JLll'lll:I.!S of !IH:ir <ll·tiOIIS
d~' 111 H think Ill; II till' thr<:at
ul'
(lllllishtnetll ;qlplil'S
"' tlictll.
But
if nHhl nfknd..:rs thought th..:
Lhn.:,.t did <lpply to thr:m,
whut Wlllild b~ til~~ natur~· ,,r til..: thr..:~11 tll..:y
e\'l'll
faced'! An a~tuunuing
llUi'IIO~I'
oi'
J'r:nS<!S, <II\!
;;t:riou.~ nJ'--
LI<.'V<.T
w th<.: poli..:c
rcpPriL:U
(!'ur c.X<IIII-
ph::. :Z I pt.~r,·.:nl or rap.:,,
ltnd 40 p<.'l'~:cut of bur ..
glaric.~l. <Jul nt' ,·ntl:arr:..lssment. liUI of kar OJ'
rr:prisltl. nr in tllr: h('li..:J'
lhill lh<! pollcl~ an: imp<>tent to do anything. F~>r
the offenses repllrted, clearance rates
(the ralt:s at which the pt:llice identify
and arrest suspects) have been dropping
steadily for decades_ The nationwide
clc<trance rate for horllicidt:. which was
93 perc~.:nl in 1955, h:ts steadily t.kclined to 67 pen.:cnL. That for rape has
declined ti·om 7'-J LO 52 percent, and thal ·
for burslary frotn 32 Ill 14 p.;:n;cnt:
And, as our realistic potentiul ol'fc.nder knows, being arrested is a far
cry fl'_om being punished. The uyerall
conviction ralc among those urrt!sted
for the most serious offense~ is 30 pi!l'cent. Fewer than half of th(>se convicted of a felony ~re semcnc~d Lo prison.
Finally, the median time served by
those actually l:cntenced to :;tatt: pris·
on ranges from 5.5 years for mur-der 10
2.2 years for kidnapping LlJ 1.4 yciln:
much less. To counteract this discountipg of sentences, judges imposed
ever greater sentences. sometimes of
hundreds of years. But this only increased public skepticism, because the
potential discount also increased; evt::n
a sentence many times as long as the
human life-sp•m could end in release
afrer a few years if the parole board so
chose. Many states are following the
lead of Lhe federal system, which recently shifted to "real-lime" sentencing, under which offenders must serve
at least 85 percent of the term i 111posed. With time, sentencing will
regain credibility.
But does imprisonment deter crime?
Deterrence requires that' potential offenders think about the consequences
of their actions, as many fail to do.
More important, deLr;:rrence requires · foi· arson.
that those who do think about the eonThe cumulative effe.:t of Lh~ many
sequences set some real risk that they
escape hatche~ from puni:;hmcnt leaves
will be caught and punished-a risk a deterrent threar that looks like this:
that must outweigh the bend"ils they
Homicide offers a less than 45 percl!nt
e~pect from the crime. Unfortun~tt~;Jy
chance of being caught, mnvicted. and
for deterrence, potential offenders
imprisnned, rap~: a 12 pcrr.:em dtaiK'c.
Lhink that the thn:at of captttrc and
robbery <s four percent chw1cc. Assault,
�.'
' ' .:.
TUE 09:19 FAX 617 330 1016
BBJ ·
141004
... :
"
burglary, larceny, and motor-vehicle
theft arc each a hundred-to-one shot.
Our potential offender may not be
cowed by these threats. These statistics also explain why longer prison
terms can have only a limited effect in
deterring crime: if a robber faces a
mere four percent chance of going to
priso~. why should it matter to him
whether the likely sentence is two years
or ten years?
Our fallback crime-control policy
has increasingly been to keep in prison those offenders we think may commit another crime. W~ know this
works (at least to protect the publicviCtimization of other prisoners is an·
other matter). Unfortunately, we are
no better at predicting future dangerousness than we are at rehabilitating.
In a monograph published by the National Institute of Mental Health, John
Monahan, a psychologist, summarizes
swdies indicating that we are wrong
about two out of every three people
predicted to commit a serious offense.
In other words, as many as two thirds
of the prisoners detained for dangerousness are detained needlessly. Besides its obvious unfairness, this approach makes the incapacitation
strategy wildly expensive. And even at
its best, the value of incapacitating
dangerous offenders is limited to
avoiding further offenses while the
person is in prison. It does nothing to
avoid offenses after imprisonment
This is a truly depressing picture. Is
this the future of mankind: ever increasing numbers of people in prison? Can't
we do something to prevent people from
committing crimes in the first place?
Moral
Credibility
a!!
Crime Control
W
E tend to think of criminals
as a distinct class of people.
This image is reinforced by
reports that one group of offenders is
responsible for a disproportionately
large share of crimes. If we could only
do something with lhcse criminal
types in our society, the logk goes, we
could solve our crime problem. And
I
',•,I
..
.74
then the standard punishmen £-versus-prevention debate is off
and running: should
we keep more of these
folks in prison·, or
should we target this
group for more social
services, or should we
strike some balance
between the two?
Some offenders tru·
Jy are career criminals.
But the greater truth is
that no offenders. except for a small group
of the mentally ill, arc
irrevocably driven to
crime. For nearly any
criminal, whatever the
p~rson' s age·, race. social background, or
economic status, one
c:an identify hundreds
of thousands of people·
with essentially l~e
same characteristics
who have chosen to
act differently and to
remain law-abiding.
People who commit
crimes arc people like
us who have chosen to
do bad things. The
study Ordi,wry People
and bxl;aordinary Evil
( 1993), by the sociologist Fred Katz. shows
how ordinary people in
d1e course of everyday
choices can come step
by step to unde~ake serious u.:rongdoingeven hQrrendous acts
like those of the Nazi
Holocaust and the My
Lai massacre.
Asking "How should
we deal with our criminal class?" distracts
us from the po:sitive inquiry "Why do
people obey [he law?" Why, even in
difficult situations of need and temptation, and even when they are unlikely to be caught and punished, do the
vast majority of people remain law- ·
abiding? Perhaps if we better understood what makes a person choose not
to commit a crime, even when temptation and opportunity present themselves, we could develop and enlarge
Lhal inlluence.
�03/~1195
TUE 09:20 FAX 617 330 1016
BBJ
141005
personal moral commitment] makes a
significant, independent contribution to
the e;\:plained variance I the rate of
criminal behavior]."
As to social disapproval spccilically,
the sociologists Robtn Mci~.:r and Weldon Johnson found in a l Y77 study that
"despite contemporary predispositi<Jn
toward the importance of legal S<Hll:tions, our findings are ... consistent
with the accumuluted lireraturc concerning the primacy of interpersonal
intluence [that is, soci;il di~approvall"
over legal sanction.
As to moral commitment spedlkally, the social psychologist Tom Tyler
concluded in Why People Obey the
Law ( 1990) that "the mDsL important
incremental contribution is mude by
personal morality."
This high level of normative l'lllnmitment t() obt:yin~ the law offers
an important ba.~i~ r~lr the dl..:ctin:
of authority by legal n1Ticials. People clearly have a strong
predisposition toward fnllowing the
luw. If authorities can tap inw ~uch
feelings, their decisions will be
more widely f~lllowt:d.
<:":.llt:n:is~.:
Can legal uuthurities tap inlo Lhcsc
powerful force:; for compliam:c? If Lhi.ly
can, the potential benefits are enormous.
First. as th~.: studies quoted above suggest. both the fear
social disapproval
by one's group and one's own moral·
r...
,.,
~ ...
,_.,_,
or
or
'''f:'i'Fi~;~.·
=~
:.: ;: .·..~· '
I
Here is what preliminary social-sci·
ence research hints at: beyond the threat
of legal punishment, people obey the
law because they fear the disapproval
of their social group and because they
generally see themselves as moral beTllll A1'LAN'riC MON'I'UI.\'
commitment have strong effects on
compliance-stronger than the prcs~.:nt
deterrent thn::at of kgal punishmenr.
Second, unlike the thrcut
le~;ll
punishment, these souic~.:s of complianct: do not require the likelihood or
being arrested, convicted, and imprisoned to be high. A person's fami 1y or
friends may suspect that he is committing crimes even if the authorities do
not, or cannot prove it. In any cuse, rhe
person. always knows about his crimes.
Thus reinforcing lhe compliuncc pow·
ers of the social group and personal
morality could reduce crime even if
policing and prosecuting functions cannot be made more effecti vc.
Finally, neither of these sources of
compliance is as staggeringly expensive as large-scale incarceration is. Nor
ings who want to do the right thing as
they perceive it. In a 1980 study the sociologists Harold Grasmick and Donald
Green concluded, ''Each of the three in·
dependent variables (threat of legal
punishment, social disapproval, and
75
�-
-------------------------
.
03/21/95
141006
BBJ
TUE 09:22 FAX 617 330 1016
',•
.,
~·'
..
do they require the increased intrusions
on privacy that more-effective crime
inve:;tig:uion would require, or the in·
creased errors in adjudication rhat easier rules of prosecution might cause. In
other words, they offer the best of both
worlds-signifka.ntly better compliance at lower cost.
But one key condition must exist if
personal moral commitment and the
power of social disapproval are to be ·
harnessed: criminal law must be seen
by the potential offender and by the potential offender's social group as an authoritative source of what is moral. of
what is right-much as, within a functional family, a parent m•lY be seen as
such an authoritative source. More
specitlcaHy, the social-~cience studies
suggest, the extent of the law's power
to gain compliance depends upon the
eMent of the law's moral credibility.
By ''moral credibility'' and "moral
auihority" I mean criminal law's reputation for punishing those who deserve
it, under rules perceived as just; pro. tecting from punishment those who do
not deserve it; and where punishment
is deserved, impo~>ing the amount deserved-no more and no less. I do not
underestimate how complex a matter it
is to determine liability rules that will
be perceived as just. But, as John Darley and I show in our new book, Jus·
rice, Liability, and Blame.- Community
Views and rhe Criminal Law, shared
community intuitions on morally just
principles of punishment can be dettr"
mined and aniculated.
I wciuld argue that people in our present society do not see the criminal-jus- ·
tic.:e system as having a moral authority
even loosely comparable to that which
operates within, say, a typical functional family, or within a voluntary association. The criminal-justice system has
been shaped over the years by forces
that have litcle to do with moral desert
or, somctim~.:s, common sense, and
everything to do with legal abstractions, procedural expediency, and the
criminological theory of the day. The
result is a system in which the dynamic
of moral authority that works in successful families and small groups is
sadly lacking.
76
What can we do to increase the moral
authority of the criminal-justice system?
What current rules and practices undercut the system's mor.tl credibility? Full
answers would require a derailed review, but in this brief space I can at least
touch upon the highlights.
First a caveat. Some failures of the
system are inevitable. Less-tllan-pcrfect clearance rates by the police, for
example, admittedly limit the system's
ability to do justice. But most people.
understand that not every offender can
be caught and punished, that policing
and prosecution have practical limits.
Failures of the system due to these
limits may be frustrating in the individual case, but over time they are not
likely to hurt the system's credibility.
What can hurt is failures of justice that
are avoidable.
Avoidable
Failures of
Justi~e
D
DES the system regularly fail
to impose deserved punishment
when lt has the power to do so?
Does it sometimes appear to have chosen a course that frustrates justice? Let
me suggest five instances in which the
answer is yes.
First, the American criminal-justice
system routinely excludes reliable evidence under what is called the exclusionary rule. This suggests a system
less strongly committed to doing jusrice than to discouraging overreaching
by the police. But one may ask, 1f that
discouraging hurts the system's moral
credibility and therefore its power to
encourage compliance, can't police
overreaching be discouraged by other
means? Why not discourage police
misconduct by making officers directly
liable or by helping victims to get compensation from municipalities? If limiting overreaching by the police is ~;uch
an important goal, why not attack it
head-on rather than "punishing" the offending officers by letting the criminal
go free-which pUJ:Iishes society rather
than the officers?
Pie~ ha~:gaining is a second prac.:Lice
seen by m~ny as illustrating the: sys-
tern's moral poverty: an offender who
gets a "bargain" does nor geL justice.
Some plea bargains reflect genuine
disputes over the facts, but in many
cases-the vast majority in some jurisdictions-plea bargains are struck
for reasons of expediency. lf we arc
willing to spend an additional $30 bil-.
lion to fight crime, why not spend a
small portion of the money to fight
crime by doing justice?
. Arbitrary limits on police power are
a: third reason why the system lacks
credibility. Police power is properly
limitt::.d in the name of individual freedoms. But many will argue that in a
democracy the majority ought to be
free to choose, ror exumplr.:, kss privacy in e:x.change for less crime. If a maj()rity of resident~ in a public-housing
project want periodic gun sweeps of
their building, should their preference
be frustrated by the courts? Why not at
least allow those who prefer gun
sweeps to live together in a building
where sweeps are p~rmitted, leaving
those who oppose sweeps to live to- ·
gether and lO bear the burden of their
choiCe?
Fourth, che law recognizes non-exculpatory defenses. Diplomatic immunity, the stature of limitations, and the
entrapment defense, for t:xamplc, allow blameworthy offenders to remain
exempt from criminal liability. Efforts
to reduce the ~cope of diplomatic immunity fac.:c: practical ob~Lades. For
ont thing, diplomatic.: immunity is
mandated hy international treaty. But
no such obstacles prevent our length·
ening the periods of limitation or rc- .
stricting the entraprn~.:nt dcfcn:;c to instances of duress (for which a separate
defense.already cxisLs) or to instances ·
of unconstitutional poJice conduct
(which, like exclusionary-rule violations, might better be deterred by
methods other than letting criminals
go free).·
One more feature of the system
which undermines its moral credibility
is sentences that arc perceived as soft
.or as no punishmcnL at all-probation,
for example. When properly and stlcC·
tively applied, non~incarcerative saneLions can be a source of real punish~~U(;II
1UU5
�03/21/95
TUE 09:22 FAX 617 330 1016
BBJ
ment that costs much less than prison.
But to ri\ii'ny reformers, lhe intermediate-sanctions movement, as it is called,
is just another opportunity to avoid im-
had in the Hinckley case, the defendant could be given the burdtn of
proving insanity by a preponderance
posing earned punishment. If non-incarcerative sanctions are to succeed,
the total punitive bite of the sanctions-as the.: community perceives
it-must match the amount of punishment the offender deserves.
.B
Avoid ltbl e
Injustice
UT doing justice_ is only half of
earning moral authority. As important, if not more so, is that
the system does not do injustice. Does
the system sometimes seem to have
chosen
permit injustice? Here are
five instances.
First, American jurisdictions have
to
increasingly defined as criminal actions
thin do not require proof of a defendant's culpable state of mind. Criminal
Does the
justice system
regularly fail to
i1npose deserved
punis4m.ent when
liability can be imposed for an honest
a.nd reasonable mistake or an unavoidable accident. A person can be criminally liable for killing migratory birds
even if the person has done everything
possible to prevent their death. One can
. be criminally liable for statutory rape
even if any reasonable person would
l
similarly have thought the partner was
of legal age. In lhe same spirit, almost
no American jurisdiction recognizes as
a defense one's reasonable mistake in
understanding the Jaw. Liability without culpability may ease the burden for
prosecutors, but it also dilutes the
moral sigruficancc of a successful prosincarcerated, given the limitations im"
ecution. Every criminal conviction posed by courts upon their civil comwithout a showing of blameworthiness
mitment. But if limitations on civil
inct'eases the likelihood that subsecommitment are the problem, those
quent criminal conviction!.> will fail to
limitations ought to be attacked directinspire moral condemnation.
ly. Abolition is also fueled by highSecond, and similarly, some states
profile insanity acquittals in controvcr·
have abolished their insanity defense,
sial cases-for example, the acquittal
others are moving in that direction.
of John Hinckley for the attempted asand still others have achieved de facto
sassination of President Ronald Reaabolition by allowing a verdict of gan. But such acquittals could be
"guilty qut mentally ill," which enavoided shnply by narrowing the
courages juries to convict even when
scope of the defense or by shifting the
an offender is insane. Abolition of the
burden of proof. Instead of giving the
insanity defense is touted as necessary
prosecution the burden of proving santo keep dangerous mentally ill people
ity beyond a reasonable doubt, as it
it has the power
·:·'·,
to do so? Does it
sornetimes appear
to have chosen
a course that
frustrates justice?
·'
141007
of the evidence. Th~ number of insum:
offenders is too ~mall for abolition or
the defense to lead to 1:\rg~-scale injustiCe, but the t!Tcct of th~ abol itiou
trend is to cn::atc the impression that
the system does not cure· whether an
offender is blam~.:worthy ur 110L
Third. criminal law is increu~ingly
used again~t purely regulatory ofl'en~
es, such as those involving the activities permitted in pu bl k parks, Lhe
maintenance procedures at warehouses, and the foodstuffs that may be imported into a state. The move is understandable: refonners seek to enl.ist the
moral force implicit in criminal conviction for the sake of deterrence-a force
that civil liability does not carry. But
the use of criminal conviction in the
ab~ence of serious criminal harm that
deserves moral condemnation weakens
that very force. As the label "criminal"
is increasingly applied tO minor violations of a merely civil nature, criminal
.liability will increasingly become indistinct from c.:ivil and will lose its particular stigma.
A similar effect occurs when purely
legal entities are criminally "convicted."
Legal fictions like corporations cannot
make immoral choices; only Lhe human
beings within thern can. To criminally
convict a legal fiction is to undercut the
claim that criminal conviction ought to
bring moral condemnation.
A fourth source of damage to the
system's moral credibility is the cun-ent
slate of correctional facilities. When
made a prisoner, a person is stripped of
the ability to defend himself and to
avoid place~ and situations of danger.
Prison authorities take complete control and, with it, responsibility for protection. Given this responsibility, and
given the considerable authority ,granted to officials to meet it, a single assault on a prisoner by another prisoner
is objectionable. Currently more than
15,000 prisoners arc assaulted eac.:h
year in our prisons.
The criminologist Robert Johnson,
in Hard Time (1987), wrote, "From
the mid-60's to the present, a new
Tllll ,\TLANT••; MONTIItl'
77
'•,
.....
:
..
,·
·.. ,,
.. ~ ...
�03/~1/95
.·,
TUE 09:23 FAX 617 330 1016
prison type has emerged. It is defined
by the climate of violence and predation on the part of the prisoners that
often marks·its yards and other public
areas." The trend is borne out by statistics. In California in 1973, for example,
289 assaults on inmates were reported.
By I 983 the prison population had approximately doubled, and the number
of assaults had nearly quintupled, to
1,438. In Texas in 1973 there were 130
prison assaults. In 1982 the prison
population was a bit more than twice
as large, and the number had grown
to 887-a tripling of the assault rate
in less than ten years. The next year
in Texas 3,411 assaults were reported: one in ten prisoners in Texas was
the victim of an officially reported assault. Imagine the daily fear th•n these
statistics suggest. Imagine those prisoners' views of the system's moral
authority.
One final damaging practice, and
one of rhe most pervasive, is a point
touched on earlier-setting punishment
according to the perceived dangerousness of an offender rather than according to the t;~ffender's deserts. Under the
assumption that a prior offense proves
long-terin dangerousness. prior offenses are widely used to increase the term
of imprisonment under so-called recidivist statutes, including the "three
strikes and you're out" rules of current
refonns. The same rationale is used by
parole boards in setting release policy
and by sentencing commissions in setting guidelines. The United States Supreme Court has approved such practices as constitutional. In Rummel v.
Estelle, for e~ample, it approved a life
term for a third fraud conviction, for
passing a bad check for $120.75 (the
two previous offenses involved an $80
credit-card fraud and a forged check
for $28.36).
Even assuming that past offenses
are a good predictor of future dangerousness, one simply cannot deserve
punishment for an offense not yet
committed-for an act that oth~::rs
only think will be done. This is why
the law req~jrcs, ·for example, that a
78
14Joos
BBJ
person must perform some act before
he or she can be held liable for even
an offense like attempt. Thinking
about committing a crime, we have
said since criminal law existed, is not
enough to establish ciiminal liability,
because moral lapse occurs only when
one chooses to act upon the intention.
Yet under recidivist statutes we routinely punish people fo!' offenses they
have not yet even thought of.
Certainly society must be able to
protect itself from. dangerous people,
but .to criminally commit a person because of a predicted future offense is to
undercut the law's moral authority. If
we feel we must incarcerate people to
protect ourselves against crimes not yet
committed, civil rather than criminal
commitment ought to be used, just as
we civilly commit the mentally ill and
persons with contagious diseases when
they pose a threat. Civil commitment
has requirements that criminal commitment does not. First, because commitment is based on present dangerousness rather than a past offense, periodic
reviews test for continuing dangerous·
ness. Second, because commitment is
for our protection rather than for de·
served punishment, its conditions are
nonpunitive in nature. The detainee's
liberty is restricted only to the extent
required for our protection.
Last year a New York Times op-ed
piece criticized a jury's death verdict
that jurors justified on the grounds that
a life sentence would have allowed for
the possibility of release. The writer
was much offended that the jury could
return a death verdict without concluding that the offender actually deserved the death penalty. But the logic
of the verdict is entirely consiStent
with the increasingly common practice of Amerkan criminal justice. If
we are offended because the death
penalty is impo~;ed on the basis of
dangerousness rather than deserts,
then we ought also to be offended by
the hundreds of cases resolved each
day in which prison terms are set ac·
cording to dangcroUI';ness rather than
deserts. Indeed, the argumen[ against
basing sentences un dangerousness is
stronger with regard to imprisonment.
Incarceration under ci vii commitment
provides society with protection identical to that available through criminal
commitment:whcrcas the death penalty provides a level uf pn>tection that
civil law cannot match.
W
E have lost much ground in tlie
past forty years in figl~ting crime.
Ironically. that same period has been
one of significant efforts to revolutionize the fight against crime. Our rccellt
insights into the law's moral authority
as a force for compliance may help explain our past failures. By setting sentences that would best rehabilitate
offenders or would best deter other po·
tential offenders or would best incapacitate dangerous offenders, each of our
past programs distributed punishment
in a way that could be seriously disproportionate to an offender's blameworthiness. The cumulative dTcct of
these policies has been to divert the
criminal-justice system from. doing justice. and public perception of that shift
has undercut the:: system's morul authority. Our past crime-conrro1 rel'om1s may
well have increased ralher than decreased crime.
The research is incomplt:Lc. We do
not y;;t fully understand the int~.>rac
tion between the system's moral credibility and crime. How much decrease
in credibility cause~ how much increase in crime? Is the relationship a
continuous one, or can we find credibility trigger points bdow which crime
increases dramatically'! Will research
confirm my speculations about the
practices that most undercut the system's moral authority?
We do know thal human beings
share a desire forjustice, and giving it
to them seems to carry little risk. lffurther research suppons the conclusions
of the preliminary studies, the search
for effective crirnc control as well as
for justice will demand that we re-ex<~mine every practice that contributes to
the moral poverty of the American
criminal-justice system. t&>
�RETHINKING PUBLIC SAFETY
1995 President's Agenda
Public safety is everyone's priority and everyone's concern. When our
residents don't feel safe on our streets, in our neighborhoods, in our
schools, or in their homes, government has failed.
As local elected leaders, we know that public safety is our most important
local responsibility. We also know that ensuring public safety requires
cooperation. Public safety isn't just city hall's job. Building safer
communities requires commitment by families, neighborhoods, schools,
churches, businesses, and community groups, as well as collaboration
among city agencies and different levels of government.
We need to revisit and rethink what we mean by public safety. We must
redefine basic roles, develop a positive strategy, and establish clear,
broadly-supported responsibilities to make it happen. We need to work
together to build trust between our citizens and their government. Every
single agency in government -- and every single resident in our
communities -- must play a role in establishing both a feeling of safety and
a reality of safety in our cities and towns.
I invite you to join me this year to rethink public safety both in your own
communities and as part of the NLC family so that, together, we can
ensure that our communities are truly safe and secure.
Carolyn Long Banks
President
Councilwoman-at-Large
Atlanta, Georgia
1995 Public Safety Objectives
During 1995, the National League of Cities will carry out an action plan to:
.I
Refocus policy discussions and action strategies into a positive framework
directed toward improving public safety as a community and a national goal in
its own right, instead of a narrow approach of working against crime.
�.I
Provide information resources to communities across the nation to assist them
in achieving public safety goals .
.I
Create new partnerships that will broaden the dialogue, encourage creative
thinking, and maximize sharing of information, knowledge, and experience .
.I
Increase public awareness of the important role of civic responsibility and
citizen action in ensuring safe communities.
Our ultimate goal is safe, secure communities.
1995 Public Safety Actions
To accomplish these objectives, NLC will implement a multi-pronged program in 1995.
NLC will provide information, training, and technical assistance to assist local leaders
in their communities and will encourage program planning, strategic thinking, and
policy development by committed NLC members and representatives of other groups
that share NLC's agenda.
Specific activities will include:
o
Policy development and strategic thinking on public safety, spearheaded by
NLC's newly-established Public Safety and Crime Prevention Policy Committee,
chaired by Mayor Paul Helmke of Fort Wayne, Indiana.
•
Continuing discussions with national leaders and advocacy work on behalf of
cities and towns to ensure that actions at the national level support and
complement local initiatives in productive ways.
•
A national conference on Your City's Families that will focus on the link
between strong families and safe communities. The conference will be held
September 14 - 17 in Atlanta.
•
An innovation awards competition that will recognize cities and towns for their
efforts in rethinking public safety. The awards will be presented at NLC's
Annual Congress of Cities in Phoenix, Arizona, November 29 - December 2.
•
General sessions and discussions on public safety at both of NLC's annual
conferences -- the Congressional City Conference in March and the Congress
of Cities in November.
•
Regional workshops on specific aspects of public safety, in collaboration with
state municipal leagues and other state and national groups with important
perspectives on public safety.
�•
Publication and distribution of regular features and news articles on rethinking
public safety both in NLC's newspaper, Nation's Cities Weekly, which reaches
28,000 readers across the country, and in local, state, and national media.
•
Participation in forums and dialogues sponsored by other organizations that are
involved in and committed to exploring public safety issues in order to share
NLC's agenda and to establish new partnerships that will help achieve mutual
objectives.
President's Commitment
During the year, I intend to carry NLC's commitment to this agenda
throughout the country in my role as your President. It will be. a recurring
theme in my message to state league meetings, in my discussions with
other organizations, and in my home town of Atlanta. It will be a priority
in my opportunities to represent NLC in Washington, D.C. with both the
Congress and the President. /look forward to working with you to begin
to make a significant difference this year and to build our capacity to
continue this effort beyond 1995.
(signature)
Carolyn Long Banks
�------------------------
•
(sidebar)
ElEMENTS OF A HEALTHY, SECURE COMMUNITY
These 1 0 elements of a healthy, secure community were compiled by NLC' s Advisory
Council during its year-long study of public safety in 1994.
1.
Strong and loving families with high expectations for their children's personal
and community behavior.
2.
Education that prepares students to act responsibly.
3.
Streets, parks, public facilities and shopping areas that are safe, clean, welllighted, and provide adequate parking.
4.
A variety of community activities that are exciting, intelligent, wholesome
alternatives to boredom, vandalism, and violence.
5.
Neighborhoods that take friendly pride in themselves combined with a public
works philosophy that engenders neighborhood pride.
6.
Emergency services and disaster relief plans that are coordinated and work
quickly when a crisis occurs.
7.
Workplaces that are healthful and promote safety.
8.
A stead supply of decent and rewarding jobs with opportunities for increased
personal skills, fulfillment, or wages.
9.
People who agree among themselves to obey and uphold the laws, combined
with laws that are fair and a criminal justice system that is both prompt and
fair.
10.
A community strategy with positive public safety goals to make people
stakeholders and give them something to work for, rather than against.
�'
..
(sidebar)
STRATEGIES FOR SAFER COMMUNITIES
Understand that public safety is an individual, family, and social responsibility, not just
city hall's job.
Emphasize that both enforcement and prevention are necessary and each can
incorporate elements of the other.
Realize that behaviors are learned, and the United States has more violent crime than
other industrialized nations.
Establish policies and publicity that promote strong families and friendly, stable
communities.
�
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Jonathan Prince
Creator
An entity primarily responsible for making the resource
Office of Speechwriting
Jonathan Prince
Date
A point or period of time associated with an event in the lifecycle of the resource
1993-1998
Is Part Of
A related resource in which the described resource is physically or logically included.
<a href="http://clinton.presidentiallibraries.us/items/show/36296" target="_blank">Collection Finding Aid</a>
<a href="https://catalog.archives.gov/id/7763293" target="_blank">National Archives Catalog Description</a>
Identifier
An unambiguous reference to the resource within a given context
2006-0466-F
Description
An account of the resource
Jonathan Prince served in various capacities during the two terms of the Administration. He was one of President Clinton’s speechwriters, Deputy Assistant Secretary of State, and directed the public relations effort related to the fallout from the bombing of refugees by NATO forces during the war in Kosovo. This collection consists his speechwriting files which contain speech drafts, handwritten notes, memoranda, correspondence, publications, and schedules. Prince wrote most of President Clinton’s radio addresses from 1993-1997. He also specialized in dealing with domestic issues such as crime, gun control, unemployment, urban development, and welfare.
Provenance
A statement of any changes in ownership and custody of the resource since its creation that are significant for its authenticity, integrity, and interpretation. The statement may include a description of any changes successive custodians made to the resource.
Clinton Presidential Records: White House Staff and Office Files
Publisher
An entity responsible for making the resource available
William J. Clinton Presidential Library & Museum
Extent
The size or duration of the resource.
187 folders in 11 boxes
Text
A resource consisting primarily of words for reading. Examples include books, letters, dissertations, poems, newspapers, articles, archives of mailing lists. Note that facsimiles or images of texts are still of the genre Text.
Original Format
The type of object, such as painting, sculpture, paper, photo, and additional data
Paper
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
1994 Crime Academic Articles
Creator
An entity primarily responsible for making the resource
Office of Speechwriting
Jonathan Prince
Identifier
An unambiguous reference to the resource within a given context
2006-0466-F
Is Part Of
A related resource in which the described resource is physically or logically included.
Box 3
<a href="http://www.clintonlibrary.gov/assets/Documents/Finding-Aids/2006/2006-0466-F.pdf" target="_blank">Collection Finding Aid</a>
<a href="https://catalog.archives.gov/id/7763293" target="_blank">National Archives Catalog Description</a>
Provenance
A statement of any changes in ownership and custody of the resource since its creation that are significant for its authenticity, integrity, and interpretation. The statement may include a description of any changes successive custodians made to the resource.
Clinton Presidential Records: White House Staff and Office Files
Publisher
An entity responsible for making the resource available
William J. Clinton Presidential Library & Museum
Format
The file format, physical medium, or dimensions of the resource
Adobe Acrobat Document
Medium
The material or physical carrier of the resource.
Reproduction-Reference
Date Created
Date of creation of the resource.
12/15/2014
Source
A related resource from which the described resource is derived
42-t-7763293-20060466F-003-019-2014
7763293