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SCARED WITLESS

Our fear of crime has produced political quick fixes that cost a lot, fix nothing and threaten to tip the scales of justice

Essay by Donald Sevener

NordicTrack, the exercise equipment manufacturer, reports that a customer survey revealed fear of going outdoors among the factors fueling a 250 percent jump in sales of treadmills.

It's a relevant metaphor: Our fear has us running to nowhere. We're scared out of our wits.

Scared Witless

The trouble is, fear makes a lousy motivation for public policy. When lawmakers respond to the passions of the moment, they respond from emotion feverish with the compulsion to appease the apprehensions real and imagined of a public eager for quick fixes. Tough-on-crime has become not just a useful campaign mantra, but an increasingly misguided and extravagant force of social policy. The irony is that it is not tough on crime at all; tough on taxpayers maybe.

But the fear-driven impulse to lock more and more people up for longer and longer sentences is an expensive folly. In its ignorance of history, its failure to grasp the nature of deviant behavior and its unwillingness to recognize the cultural context of crime, tough-on-crime is little more than public relations masquerading as criminal justice. Worse, in their zeal to answer our fears, lawmakers threaten to topple the scales of justice, removing, just from our criminal justice system.

The story of crime, notes historian Lawrence M. Friedman, author of The History of Crime and Punishment in America, begins with the premise that "judgments about crime, and what to do about it, come out of a specific time and place." In other words, Friedman says, the system that defines and punishes crime arises from a social structure (the way society is organized) and from social norms (the attitudes, ideals, customs and values of that society) rooted in a cultural context.

Hence, when political figures today decry "witchhunts," they are condemning, figuratively, the snooping into matters they believe bear no justification for snooping. But there was nothing figurative about hunting witches in Salem, Mass., in the late 1600s, however unwarranted the fear of the supernatural looks to modern eyes. Similarly, adultery is now a staple of prime-time television; three centuries ago it brought the penalty of death in the Massachusetts Bay colony. Indeed, wrongdoing in colonial America hierarchical societies organized to promote religious orthodoxy was largely equated with sin; the wrongdoer was considered a person of weak character; the object of punishment was confession, repentance and redemption. Punishment was brutal and shaming the whipping post, the pillory in a time and place closely tied socially and legalistically to the motherland.

But the American Revolution precipitated not only a political break with England but a rupture in the social norms and legal precepts that defined the culture. The theme of the "republican era," as Friedman calls it,

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was to Americanize criminal law to make it less capricious and more humane than English common law, and to build into a codified system of criminal justice new concepts of criminal behavior and punishment.

The authors of the Constitution, reacting to the arbitrary power of English jurisprudence, wrote protections into the Bill of Rights to guard against unreasonable search and seizure, self-incrimination and cruel and unusual punishment.

This impetus for reform carried into the 19th century, a period that redefined the nature of deviant behavior:
less a weakness of character than the influence of a fraying social fabric family stresses, the evils of urban life, the strains of an industrializing mobile society.

These new ideas about the sources of crime led in turn to fresh notions about punishing it. A person corrupted by society should be removed from society, a conviction that led to privatizing punishment, as Friedman puts it, and the rise of penitentiaries, one of the most significant reforms of a reform-minded era. Capital punishment, throughout colonial America a public spectacle, went behind closed doors in the 19th century, and most northern states enacted laws to limit its use to clearly defined, egregious offenses.

Now we are moving the other way. The 1994 crime bill proposed by President Bill Clinton and enacted by Congress expanded the death penalty to 60 categories of crimes, including murder during a carjacking, murder for hire and murder of "an important" government official.

The Illinois legislature last spring added age and disability as aggravating factors that qualify a crime for capital punishment; killing someone 60 or older or a disabled person "in an exceptionally brutal manner" now can result in the death penalty.

The about-face is instructive. The present era is one of fear, both fed and exploited by a political culture eager to latch onto any issue that can readily be condensed to the sound-bite attention span of modern public discourse.

Notes Friedman: "In periods of high crime, at times when the articulate public is scared to death of crime, the American system tends to shift its emphasis from the offender to the offense. When fear of crime is reduced from a boil to a slow simmer, professionals can put through programs of reform and rehabilitation. But in an age of paralyzing fear, [the] middle class gives off as it were a great shout: 'We don't care who these people are, and what excuses they give, or what their backgrounds are. We want them caught, convicted and put away!'"

This modern era of fear and retribution dates perhaps to Herbert Hoover, the first president to label crime a national problem and the first (but not the last) to appoint a blue-ribbon commission to study it. Anti-crime commissions have since been as plentiful as overcrowded prisons, but still our fear persists, stoked to a large extent by politicians from Barry Goldwater chanting "law and order" to George Bush making Willie Horton a television star.

Fear is a potent force and, in the 1970s, it combined with frustration to provoke a backlash against reforms, many of which had been mandated by federal courts that the public perceived as going soft on crime. Ever vigilant to public mood swings, politicians responded with a series of tough-on-crime measures aimed especially at so-called "indeterminate sentencing," which gave judges discretion in sending criminals to the slammer.

In Illinois, Gov. Jim Thompson fulfilled a 1976 campaign pledge by shepherding "Class X" determinate sentencing, which mandated minimum prison terms for certain classes of offenses, through the legislature. The goal was to send a message to criminals: You do the crime, you'll do the time. The result? Friedman says one study that examined the effects of Class X sentencing on criminal attitudes and behavior "found no impact at all." No matter, he says. "Like so much else in criminal justice history, nobody seemed to care about the practical effect; once the political passion had spent itself on getting the change, the polity somehow lost interest.

"It is easy for people to vent their anger on crime," Friedman says. "The anger is justified after all. But it is also a way to vent feelings against poverty, race and other issues for which crime is a convenient stand-in.

"Politicians pick up these fears and emotions on their antennae and broadcast what they think their people want to hear."

Glenn Poshard has his antennae out. If elected governor, Poshard says, prison inmates would lose the "perks" of life behind bars in Illinois, such luxuries as televisions inmates buy for their cells, R-rated movies on cable, free weights in the gym and cigarettes anywhere behind penitentiary walls.

"I don't think we're allowing prisoners to experience the consequences of their choices against society," Poshard told reporters at the Statehouse last summer. It will probably take more than this for the southern Illinois congressman to be elected governor, but Poshard certainly has a keen sense for the public mood. Folks want prison inmates to suffer, an understandable tendency in the age of fear.

What this has to do with criminal justice is less clear. Having once experienced the deprivations of life without Monday Night Football, Marlboros and dumbbells, the ex-con will what? think twice about scoring a drug deal?

It would not be so bad if such silliness were the only, or even the principal, consequence of public policy in the age of fear. But most responses to the fear of crime, most retributive impulses have more severe defects: They are short-sighted, costly, unworkable and unjust.

Take, for instance, the "three strikes" legislation that Illinois lawmakers have considered, a measure that is a close cousin to the "truth in sentencing" law the General Assembly has enacted.

In January 1994, Time magazine reported poll results showing crime was regarded as the nation's most serious problem: 19 percent of respondents, a nearly five-fold increase from a year earlier, considered it concern

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number one. (A similar poll by the Knight-Ridder newspapers last year found the same result.) The Time poll also asked respondents what they would do about crime: 81 percent favored passage of a "three-strikes" law, mandating life imprisonment for anyone convicted of three serious offenses.

Before 1994 was out, 13 states had enacted three-strikes laws. California's law was even ratified by voters, hence requiring a two-thirds vote of the legislature to enact any changes in it.

On the surface, three-strikes seems to make sense. A "three-time loser," as the incorrigible often is labeled, is a person who has failed to get the message, deliberately defying a society that has twice gone to the trouble and expense of convicting him of violating its accepted code of conduct. Moreover, ostensibly there seems to be some connection between the penalty and the goal of reducing crime; a person facing a third felony conviction is like a one-man crime wave. Lock 'em up and throw away the key.

But a closer look reveals that three-strikes, like other mandatory sentencing laws, is a political response to a social problem, one aimed more at convincing a scared public that politicians are on the case than at dealing with a complex social phenomenon in an effective and cost-effective manner.

"The idea of incarcerating repeat offenders for very long prison terms, including life without parole, has certainly caught fire in the public imagination," notes a study published in May 1997 by a task force of the American Society of Criminology.

A RAND study of California's three-strikes law concluded that, over the next 25 years, it could reduce crime by 28 percent below what would be expected to occur without the law. But researchers also found the reduction in crime would come with a high price tag: $5.5 billion a year, or a total of $137.5 billion over 25 years, or $16,300 per crime averted. A more recent study by the California Legislative Analyst's Office found several subsidiary problems:

Blind fear a danger to the criminal justice

The vast majority (70 percent) of defendants charged under the three- strikes law were not violent criminals but offenders accused of petty theft and drug possession;

Plea bargaining rates had plummeted (there was no incentive for a defendant to cop a plea when that meant a mandatory life sentence), thus clogging court dockets with jury trials and virtually shutting out civil cases from California courtrooms;

Overcrowded jails have become congested with three-strikes defendants who often are denied bail, thus literally shoving other inmates out the door early;

The criminal justice system judges, prosecutors, juries and even crime victims "find ways to circumvent the intent of the three-strikes legislation ... because they perceive injustice in certain cases and think that the punishment simply does not fit the crime," according to the research study;

California is expected to need 15 new prisons by 1999 to accommodate the anticipated 70 percent growth, to 211,000 prisoners, in its corrections system.

These findings are consistent with results of other research that have looked at mandatory sentencing provisions: their cost is out of all proportion to their effectiveness. A study by the National Institute of Justice found that mandatory sentencing laws: do not achieve certainty and predictability in sentencing because they contain loopholes officials use when they believe the results of the mandatory laws would be too harsh; are unnecessary to rule out probation in serious cases because such cases result in prison terms anyway; are arbitrary when applied to minor cases; and occasionally are unduly harsh in punishing a marginal offender.

Even so, they remain popular. "These laws are a rapid and visible response to public outcries following heinous or well-publicized crimes," the Institute of Justice report said.

Another Democratic gubernatorial candidate, John Schmidt, who could easily stake his claim to the left of center turf among candidates so far in the race, says he believes sentencing laws sending "serious offenders away for longer periods of time are positive." In a June 1997 profile of Schmidt in Illinois Issues, he added: "We need to build whatever jails or prisons are needed in order to carry out appropriate sentences."

Then he had better be willing to pay the price. Notes the Institute of Justice report:

"The full fiscal impact of this legislation, akin to Pandora's box, will not unfold until well into the first quarter of the next century, and a prolific source of fiscal trouble it will bring, indeed."

Yet the price will be more than can be measured in dollars and cents. Our blind fear poses an additional danger to the criminal justice system: It threatens to tip the scales of justice.

"Mandatory sentencing laws ... enacted in the late 1970s and 1980s

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have transmogrified the criminal law from a justice system to a crime control system," says former Pennsylvania Judge Lois G. Forer, who resigned from the bench in 1989 rather than obey an appellate court order to sentence a defendant to a prison term she believed was unjust. Such harsh and inflexible sentencing laws, she says in A Rage to Punish, "have exacerbated racial hostilities and have widened the gulf between the affluent and the poor. We are now a nation divided between them, the prisoners who are largely poor and nonwhite, and us, who are not incarcerated and who are largely white and nonpoor."

In one sense, this is the natural order of things. The story of criminal justice in America is, as Friedman points out, a history of power.

He notes that criminal justice has served as society's "strong arm of the stratification process," a sorting out function that "made subordination real. And subordination was real, most notably, for American blacks; also for members of other minority races; and for the poor, the deviant, the unpopular. Indeed, criminal law was (and is) part of the official process of labeling and identifying who is in and who is out, who is deviant and who is mainstream."

The most famous symbol of justice, Friedman says, "is a blindfolded woman, holding in her hands the scales of neutrality."

But the law is hardly neutral, in either its creation or administration. "Law is a fabric of norms and practices in a particular society; the norms and practices are social judgments made concrete: the living, breathing embodiment of society's attitudes, prejudices and values. Inevitably and invariably, these are slanted in favor of the haves."

One can see the slant of society's attitudes, prejudices and values on death row, which is disproportionately populated by the poor and the minority. It is also visible in federal drug laws, which penalize the sale of crack, the drug of the ghetto, far more harshly than the sale of cocaine, the drug of the suburb.

According to a report of the National Institute of Justice, an analysis of federal sentencing guidelines "found that African Americans received longer sentences than whites, not because of differential treatment by judges but because they constituted the large majority of those convicted of trafficking in crack cocaine a crime Congress had singled out for especially harsh mandatory penalties." Congress rejected a recommendation of the U.S. Sentencing Commission that the legal disparity between crack and regular cocaine be eliminated. And it is apparent in sentencing guidelines established under the one-size-fits-all approach to criminal justice.

"The theory was that these laws would eliminate disparities in sentencing and be fair," says Forer. "But the implementation of sentencing guidelines has increased the bias of the criminal justice system against poor females and poor black males. Street crimes are graded more heavily than white-collar crimes" by the U.S. Sentencing Commission that determines guidelines for sentences.

With crime rates rising during the '70s and '80s, a "counter reformation," in Forer's words, took hold, replacing the view that criminals could be rehabilitated with one that regarded longer prison terms as the "just deserts" for criminal behavior.

Forer: "The philosophy of just deserts gave new impetus and respectability to the rage to punish. Prior to the counter reformation, the emphasis was on rehabilitation, education and crime prevention. Retribution or vengeance is now recognized as a legitimate motivation in sentencing. The criminal sanction and punishment are the preferred mode of dealing with difficult social, medical and economic conditions."

Vengeance is a feel-good emotion. It doesn't take our fear away, but seems rather the natural extension of it. Still, the cost of fear is high. Paying it may be our just deserts.

A challenge for Illinois: Shaping the future

Illinois Humanities Council

This is the seventh and final essay in a special series launched by the magazine in 1994.

The premise of the series is that our major institutions have an inadequate understanding of the profound changes that are challenging today's leaders.

Consequently, our institutions are not addressing current issues effectively and seem incapable of considering our future creatively.

Illinois Issues asked a group of distinguished Illinois leaders and thinkers to address, within their areas of expertise, the ways in which this problem is reflected in our major institutions. Those institutions include business, education, philanthropy, organized religion and the family.

Historian Douglas Wilson of Knox College in Galesburg contributed the first essay. He provided perspective on the ways we misread the past.

Other writers were William Clossey, John E. Corbally, Martin Marty, Nancy Stevenson and Sara Paretsky. Several essays in this series including this one by Donald Sevener were funded by the Illinois Humanities Council.

The Editors

Illinois Issues November 1997 /17


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