Thinking About Crime
Thinking About Crime: Sense and Sensibility in American Penal Culture
By Michael Tonry, Oxford University Press, 278 pages
Reviewed by Heidi Boghosian for The Federal Lawyer
When the chief justice--not exactly an emblem of lenience--slams Congress for limiting judicial sentencing discretion, it’s time for a closer look at penal policy-making. When voters, judges and even prosecutors in California urge flexibility in the state’s harsh “Three Strikes” laws, while legislators don’t budge an inch, the time to find out why such policy has little proven success is long overdue.Eminent criminologist Michael Tonry devotes considerable analysis to the subject and doesn’t disappoint.
In his latest book, “Thinking About Crime: Sense and sensibility in American Penal Culture,” Mr. Tonry reveals how American sensibilities and emotions stirred by “moral panics” have resulted in anger-driven and increasingly punitive policies. Rather than heeding recommendations from experts in the field, lawmakers respond to moral panics often in response to traumatic, high-profile events. Basketball play Len Bias’ crack cocaine overdose prompted the federal 100-to-1 crack cocaine sentencing laws, the leading cause of racial disparities in sentencing. Polly Klaas’ kidnapping and death in California contributed to passage of the three strikes law and similar legislation in other states that lock away offenders for 25 years to life for a trivial third felony, while first-time rapists or robbers get less. Mr. Tonry is persuasive in his reasoning that such lawmaking is ill-advised, costly and mean-spirited in practice.
Sensibilities, however, are vulnerable to what historians observe as recurring cycles of “tolerance and intolerance.” In the 1960s, for example, legislators were more tolerant of the complexities of drug use, and money was invested in treatment programs. With the current, one-dimensional “Say No to Drugs” campaign, in contrast, less money is available for treatment, and disproportionately harsh sentences for drug offenses do little to address root causes. Several practices driven by the sensibilities of their time are now reprehensible, writes Mr. Tonry, such as slavery, the internment of Japanese-Americans, and the sterilization of the mentally ill. A consequence of emotion-based policies is record-length sentences that incarcerate one out of every 80 African Americans, typically for non-violent offenses, with no proven benefit and with guaranteed economic and psychological wreckage to families and communities.
Mr. Tonry explains how public anxieties related to crime and offenders are actually the result, not the cause, of politicians’ and the media’s emphasis on crime control. While the public has supported strict penal laws, public opinion (what people say off the top of their head) differs from public judgment (what people say hen they know enough to have an informed opinion). When armed with the facts necessary to reach an informed decision, public judgment is that crimes are the result of poor moral choices, disadvantaged backgrounds and often the effects of substance abuse.
The public calls for both punishment and rehabilitation and is more willing to see tax money go to treatment programs than to building prisons. Such public judgment is congruent with data that lengthier incarceration does not deter crime: crime rose from 1985 to 1992, well after imprisonment rates had started their ascent. Illegal drug sales have remained steady even while the imprisonment of drug offenders has grown to a staggering 75 percent of all those entering federal, and 35 percent of those entering state, facilities. Criminal justice professionals concur, according to Mr. Tonry: “Few corrections officials, judges, or informed scholars … support broadly defined three-strikes laws, mandatory minimum sentence laws, or sexual psychopath laws in the forms in which they are typically adopted….Such laws seldom achieve their nominal purposes--there is no credible evidence that they are significant deterrents to crime--but generally generate serious unintended consequences.
Mr. Tonry, who founded the MacArthur Foundation-United States Department of Justice Program on Human Development and Criminal Behavior and directed the program from 1987 to 1990, shows how decades-long shifts in crime rates occur independently of enforcement policies. Since the 12th century, crime rates have fallen steadily until the mid-20th century. In the 1950s and 1960s violence rates began to increase, but started to decline in the 1990s in the United States and in most other Western countries. While it is too soon to tell if the mid-century increases marked a change in hundreds of years of long-term trends or were just “short-term perturbations” as in previous upturns related to wars and periods of unrest, Mr. Tonry prefers the latter theory. Crime rates changed in every Western country, regardless of wide differences in laws, incarceration rates and sensibilities on punishment and in every state and city in the United States, unrelated to adoption of new, harsh laws. Mr. Tonry urges a radical shift in who sets policy in this country to the European model where judges and prosecutors are career civil servants, appointed based on professional merit and removed from political influence:
The institutional organization of the American criminal justice system and its close connection to electoral politics conduce to punitive excess. In every other Western country I know, the prevalent view among public officials and criminal justice practitioners is that sentencing and punishment should be insulated from short-term emotionalism and swings in public opinions. This means that discretion over individual cases should be left in the hands of judges and corrections officials who are close enough to the facts of the individual crime and the circumstances of the individual criminal to deal with them sensibly and justly.
That the overwhelmingly high number of incarcerated citizens in the United States is composed of working class, poor, disproportionately African-American and non-violent offenders, is a glaring failure of sensibilities-based policymaking. Diminished chances of post-release employment and self-sustenance, fractured families and communities add to the long list of collateral costs. Abundantly clear to other countries, and perhaps clear to this country in years to come, is that our emotion-prompted penal policies on generations of non-violent defendants of color has, as Mr. Tonry says, halted in its tracks the gains of the civil rights movement. Legislators especially will benefit from reading “Thinking About Crime.” It should encourage a courageous few to begin repairing the decades-old damage wrought by policies based on self- predicated and ill-conceived interest.