Posted: July 14, 2014
A review of Crime and Public Policy, edited by James Q. Wilson and Criminal Justice Reform: A Blueprint, edited by Patrick B. McGuigan and Randall R. Rader
rime in the United States has become a pervasive and troubling problem. Data published by the Bureau of Justice Statistics, an agency of the U.S. Justice Department, reveal the enormity and seriousness of the problem. In 1982, almost a third of all American households (nearly 25 million) were victimized by at least one crime of violence or theft. Many households were touched by more than one crime, and thus the total number of victimizations for that year exceeded 39 million.
Americans fear crime, and for good reason. The chances of being the victim of a violent crime are one and a half times greater than the chances of being injured in a motor vehicle accident. This fear is clearly reflected in public opinion polls. A February 1984 Field poll reveals, that the public is more concerned about crime than any other issue; 73 percent of those interviewed indicated that "crime and law enforcement" is a matter about which they are "extremely concerned."
Nonetheless, the public can take some encouragement, for crime rates are likely to fall for at least the next decade. One reason is demography; that part of the population most likely to engage in criminal activity (i.e., the male population from the age of puberty to about age 25) will steadily shrink throughout the remainder of the 1980s and well into the 1990s. A second reason that crime rates are likely to decline is that we have learned a great deal during the past two decades about crime and how to respond to it.
What we have learned is thoughtfully and lucidly presented in James Q. Wilson's Crime and Public Policy. In what is sure to become a standard source for criminal justice policy makers as well as for citizens, Wilson has brought together leading scholars from a variety of fields to reflect on the latest research being conducted on the problem of crime and on failed and promising efforts to address it.
Wilson's volume complements Patrick B. McGuigan and Randall R. Rader's Criminal Justice Reform, which proceeds on the basis not of academic research but of practical experience and which directly presents the policy prescriptions of a cross-section of leaders. These two volumes are very similar in both their premises and recommendations and therefore demonstrate how completely the "adversarial relationship" between scholars and practitioners-for so long the hallmark of criminal justice policy debates-has disappeared.
For example, both volumes reject the view that crime is the product of social injustice, and both advocate reforms that presuppose individual responsibility and that seek to restructure incentives so everyone's objectives can be achieved. Further, they both recognize that no panacea exists to solve our nation's crime problem. Speaking for all his contributors, Wilson remarks in his concluding essay: "We offer no 'magic bullet' that will produce safe streets, or decent people. But neither do we think that nothing can be done. What needs to be done is difficult, complex and costly, and the gains will be deferred and moderate. But they may be all the more lasting because they have been achieved by linking scientific knowledge and practical wisdom to the interests of both citizens and public officials. Though we cannot find a magic bullet, neither do we counsel despair or mere cosmetic surgery."
What have we learned from this scholarly research, and what policy implications does it have? First, we have learned that much of the conventional wisdom concerning the causes of crime is baseless. For example, it is commonly asserted that unemployment causes crime. Yet, in his essay for Wilson's volume, Richard B. Freeman reviews scores of quantitative studies bearing on this issue and finds the connection to be weak at best.
Recent findings from the National Crime Survey bear him out. From 1981 to 1982, total victimizations in the United States dropped from 41.5 million to 39.8 million, a decline of 4.1 percent. Yet 1982 was also the year in which the United States experienced record-high postwar levels of unemployment. In 1983, unemployment rates dropped dramatically, but both property and violent crime rates for the same reporting period have dropped even more sharply (10 percent).
We have also learned that, besides unemployment, all simply environmental explanations for crime are suspect, for evidence is mounting that a predisposition to crime can be inherited. In Crime and Public Policy, Richard J. Herrnstein points to three kinds of inheritable characteristics that correlate closely with crime and delinquency. First, criminals are more likely than the public generally to have a mesomorphic (squarish and muscular) physique. Second, criminals have IQs that are typically around ten points lower than the average among the population as a whole. Third, they tend consistently to have personalities characterized by impulsiveness, extroversion, and hyperactivity. As Herrnstein points out, there is very little dispute that these characteristics are inheritable-this is the case even for personality, because adopted children are far more likely to have the personality traits of their natural parents than of those who raise them.
Herrnstein is, however, quick to point out that "neither the data nor any theory built around them justifies the Lombrosian conception of the born criminal, if that means an inevitable descent into a life of crime." Rather, what is at issue is a "susceptibility" that may or may not lead to crime.
Part of the susceptibility to crime has to do with the family. Its role, contends Travis Hirshi (in Crime and Public Policy),has been slighted by policy makers. Typically, they present the family's role in teaching acceptable behavior in a wholly nonproblematic manner. According to the Oregon Social Learning Center, all that parents must do is "1) monitor the child's behavior; 2) recognize deviant behavior when it occurs; 3) punish such behavior." As Hirshi points out, however, this is not as simple as it may seem. If parents cannot monitor or recognize or punish behavior, the process of inculcating standards will be interrupted.
For Hirshi, the policy implications are clear: So important is the family to successful child-rearing that "when we consider the potential effects of any governmental action on crime and delinquency, we should specifically consider its impact on the ability of parents to monitor, recognize, and punish the misbehavior of children. When we conclude that the action would have an adverse impact on the family, we should be extremely reluctant to endorse it as a crime-prevention measure."
In addition to presenting what we have learned about the social milieu of crime and what policies we ought to adopt to respond to it, Wilson's book also presents research findings concerning the criminal justice system's response to crime. To begin with, we learn from Brian Forst that for every 100 people arrested on felony charges, only 65 are brought to a district attorney; of these only 40 are prosecuted; of these only 34 are brought to trial; of these only 32 are convicted; and of these only 9 are sentenced to prison. The deterrent effect of the criminal justice system is inconsequential.
Forst seeks to reform our prosecution and sentencing systems to increase the deterrent effect of the criminal justice system. He advocates greater use of sound management principles and statistical information now available to prosecutors and judges. In addition, he proposes various sentencing reforms and outlines the development of a "crime-control oriented prosecution system" designed to generate "data indicative of defendant dangerousness." Daniel Popeo, inCriminal Justice Reform, goes further and advocates the use of "Court Watch" projects designed to promote public scrutiny of prosecutors, judges, and parole boards who may be too lenient with criminals.
"Defendant dangerousness" is not only important at prosecutorial screening but should also be a factor in determining prisoners' bail. Steven R. Schlesinger reports in the Wilson volume that somewhere between 7 and 20 percent of persons under pretrial release commit crimes, and for some crimes the figure is as high as 60 percent. Since the data likewise make it clear that the ranges are highest for the most dangerous crimes, Schlesinger advocates a policy of preventive detention. This proposal is repeated by a number of the contributors to the McGuigan and Rader volume.
Schlesinger's proposals for bail reform are not limited to preventive detention. He also advocates much wider use of release of defendants on their own recognizance. This reform, he argues, would end one of the social costs of the present bail system by eliminating discrimination against the poor.
Schlesinger further proposes major reforms of the exclusionary rule. This rule renders evidence obtained in violation of legal or constitutional requirements inadmissible in a criminal proceeding. As Schlesinger skillfully argues, the rule benefits only the guilty, promotes police perjury, drains the limited resources of the courts, and undermines public respect for the legal and judicial systems. It also frees large numbers of criminals.
In place of the exclusionary rule, Schlesinger favors the admission of all probative evidence, regardless of the means used to obtain it, and the use of disciplinary proceedings against offending police officers. This will deter illegal seizures and provide a means for awarding compensatory damages to innocent victims of illegal searches and seizures. Schlesinger, who is the only person to contribute essays to both volumes, expands upon this argument in Criminal Justice Reform.
The reforms recommended in both books will put increased pressure on our prison systems. This pressure will be further intensified by demographic shifts. The same demographic shift that bodes so well for a reduction in crime rates bodes ill for prison crowding. As Alfred Blumstein observes in Crime and Public Policy, this is so because of the difference between the peak crime ages (16 to 18) and the peak imprisonment age (the mid-twenties). Blumstein identifies various strategies to deal with this dramatic increase in the prison population.
One promising strategy that Blumstein considers but rules out because of its many technical, legal, and ethical problems is selective incapacitation. This strategy would have law enforcement personnel and prosecutors focus the criminal justice system's scarce resources on the small percentage of offenders responsible for disproportionate numbers of crimes. Identification and imprisonment of these high-rate or "career" criminals would, its adherents believe, help reduce overall crime rates.
Given the prodigious amount of crime that high-rate offenders commit, Jan and Marcia Chaiken rightly observe that every effort should be made to "interrupt" and "terminate" these criminal careers. Herein, however, lies the difficulty, for the task of identifying the high-rate offender is difficult and controversial. Arrest records are often not helpful in distinguishing "careerists" from others. Because of the large number of "false positives" (i.e., individuals who share traits with high-rate offenders but who are, in fact, not active criminals), many individuals who do not need to be imprisoned to have their criminal activity "interrupted" or "terminated" may, in fact, be incarcerated, and scarce prison space will be consumed with no decrease in crime or increase in public safety.
Even with an improved prediction model, proposed by Peter Greenwood, the problem of "false positives" remains, as Greenwood himself concedes, as well as the technical difficulty of finding the "right" sentence. Furthermore, the legal, constitutional, and ethical questions arising from sentencing policies that rest on statistical forecasts of future behavior rather than on particular punishments for particular crimes likewise remain unresolved.
It is unfortunate that none of the essays in Criminal Justice Reform directly addresses this issue. In this debate, the voices of policy makers must join those of the research community. Since selective incapacitation is identified as a "hard-liner" issue, it is important to hear from hard-liners of the kind represented in the McGuigan and Rader volume and to learn from them whether they generally embrace this policy. What intelligent and articulate hard-liners on crime questions think, needs to be known, and Criminal justice Reform can be faulted for failing to instruct us on these matters.
The McGuigan-Rader book deserves high praise, on the other hand, for its extensive treatment of the victims' assistance issue. Articles by Senator Paul Laxalt and by Frank Carrington and Linda Duggan remind the reader that it is, of course, because of what happens to the victim that the criminal justice system is brought into play. Far too often, however, the victim is all but forgotten and is subjected to such callous and insensitive treatment by the criminal justice system that he undergoes a "second victimization."
Both of these essays not only review what recently has been done at the federal and state levels to improve the plight of victims but also identify what reforms remain to be made. These measures include the preparation of victim impact statements to be considered by the judge at sentencing, penalties for victim and witness intimidation, programs to insure victim and witness notification as the case proceeds through the system, requirements that victims be afforded the opportunity to be heard at sentencing and parole hearings, initiation of restitution and victim compensation programs, and the provision of greater civil remedies for victims.
It is important to recognize that those who will benefit principally from victims' assistance legislation are young male blacks. Statistics reveal that they experience much higher rates of victimization than any other segment of society. Their victimization rates for crimes of violence are almost four times that of the U.S. population as a whole, and their victimization rates for crimes of property are about twice as high. Accordingly, they will be the principal beneficiaries of the victims' assistance movement and, hence, of the law-and-order spirit that animates this movement. Research and statistics can thus show that a concern for victims and for law and order need not be a cover for racism but, in fact, can be an expression of American society's deep-seated commitment to civil rights and to full enjoyment of these rights by all, without fear of crime and violence. Regrettably, the Wilson volume is deficient in this respect, as it offers no research findings on this timely issue.
Wilson remarks in his introduction to Crime and Public Policy that the book could not have been written 15 years ago. This could be said of the McGuigan and Rader volume as well. Not only do we now know more about crime and how to respond to it, but (and this is central) we have also regained our confidence in the United States as a fundamentally just regime. In 1970, Ramsey Clark could write in Crime in America that crime was caused by society and that criminals were really victims-victims of poverty, prejudice, and unjust political and social institutions. It is a measure of the extent to which moral order has been restored that Crime in America is today the volume that could not be published. Today, solicitude is extended to the victim, not the criminal. The offender is understood to be responsible for his actions, and society is understood to have an obligation to protect innocent members of the public from victimization and to assist them when they are victimized. Scholarly research now supports policies that will strengthen and improve criminal justice agencies so that they can better deter crime and more efficiently and justly punish the criminal they cannot deter. This represents a third reason (and perhaps the most important) the public should be encouraged about American society's ability to deal with the crime problem. Not only does it have demography and greater knowledge on its side, but it has leading researchers, policy makers, and practitioners-of whom the contributors to these books are representative-who believe that American society is just and worthy of a strong law-and-order defense.