Jennifer E. Walsh
October 4, 2012
For the first time in nearly a century, debate about the proper response to crime has largely vanished from the public square. This is remarkable because much of the second half of the last century was characterized by an ongoing deliberation by public officials who were desperate to reverse—or at least halt—crime's steady increase. Between 1960 and 1990, rates of violent crime increased nearly five-fold and the rates for property crimes nearly tripled. If these upward trends were not troubling enough, sudden spikes in crime in the 1960s and early '90s only served to further exacerbate public fear and apprehension.
Initially, lawmakers invested heavily in preventative—and rehabilitative—oriented programs only to discover that they were ineffective. When crime surged again in the early 1990s, both Democrats and Republicans lent their support to more conservative policy ideas based on theories of deterrence and incapacitation, such as "zero tolerance" policing, reduction in "good-time" credits for inmates, increased penalties for drug and gun crimes, and mandatory "three strikes" sentences (stiffer penalties for three or more felonies) for career criminals. Such policies seemed to work; within just a few years, crime rates decreased sharply. Violent crime across the U.S. dropped by nearly 65%; in the nation's two largest cities, New York and Los Angeles, violent crime dropped even further. What's more, between 1990 and 2009, the rate of homicide decreased in New York by 82% and in Los Angeles by 71%, and burglary rates in these cities declined by 86% and 68% respectively. Statistics like these led lawmakers to declare victory against crime and turn their attention to other pressing matters.
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Still, if the latest titles released by academic presses are any indication, there are many who remain unconvinced that last century's criminal justice reforms represent veritable policy successes. For law professor Franklin Zimring, chair of the Criminal Justice Research Program at the University of California, Berkeley, it remains an open question as to what caused much of the dramatic decline in New York. His analysis of the city's law-and-order policies, detailed in his latest criminal justice volume The City that Became Safe: New York's Lessons for Urban Crime and its Control, is heavy on statistics but admittedly light on explanations. He posits that more than half of New York's crime reduction is likely attributed to "mysterious" national patterns, which cannot be explained by examining socioeconomic and demographic variables commonly invoked by positive criminologists to explain delinquency and criminal behavior. When other variables, such as rates of incarceration and narcotic use, are included in his models, Zimring estimates that less than 10% of New York's 80% crime reduction can be attributed to altered economic, demographic, and institutional conditions.
Zimring does suggest, however, that the "New York difference" could be attributed to the changes made in policing priorities and strategies in the early 1990s. These reforms, which were introduced simultaneously, included an increase in manpower—nearly 5,000 police officers were added during the 1990s; the introduction of Compstat, a computerized tracking program that helped to prioritize the allocation of policing resources; the concentration of policing resources in "hot spots" identified by central command; a crackdown on public drug markets; and the introduction of "aggressive" street policing that emphasized "stop and frisk" searches and targeted minor offending behavior. He suggests that the combination of these efforts likely accounts for nearly 40% of New York's crime reduction, but he cautions that the data are insufficient to effectively evaluate the crime reduction benefits of each change. Strategies that targeted "hot spots" and intentionally disrupted public drug markets "almost certainly reduced crime." The Compstat computer program and increased manpower are "probable successes" as well.
Nonetheless, Zimring is openly critical of the aggressive street policing strategy modeled after the late James Q. Wilson and George Kelling's "Broken Windows" theory (which posited that ignoring smaller crimes like vandalism encourages more crime)—partly because he could find no convincing evidence in his statistical analyses that demonstrated its success, and partly because he believes it disadvantaged residents in poorer communities who were stopped and frisked more regularly. He also contends that the New York experience, which relied more on preventative policing and less on mass incarceration, effectively refutes the legitimacy of incarceration-based policies. For those familiar with Zimring's work, this critique comes as no surprise; several of his most recent works have been indictments against sentencing policies like "three strikes and you're out." In this evaluation, however, he overlooks the similarities of an "aggressive" policing strategy and a "get tough" sentencing policy: both seek to deter would-be offenders. But, his failure to find any incapacitative effect may be related to his use of ineffectual aggregate data rather than a real failure of prisons to provide such benefits. It is even more concerning that Zimring neglects to acknowledge that incarceration is used primarily to punish wrongdoing—not merely to incapacitate would-be criminals. Some might argue that imprisonment is primarily valuable as a preventative measure for crime, but in our constitutional system, we punish offenders for what they have done, not for what they might do in the future. Punishment may only be imposed as a just response to a crime that has occurred. Crime reduction through incapacitation is often a secondary benefit of just punishment, but it can never properly be the primary reason for sending someone to prison.
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Promoting justice is also the concern of the late William Stuntz, Henry J. Friendly Professor of Law at Harvard Law School, who states in The Collapse of American Criminal Justice that the dramatic reduction in crime, accomplished mainly through "get tough" sentencing measures, represents merely a pyrrhic victory. Compared to historical rates of imprisonment, the current inmate population, estimated to be 1.5 million in federal and state penitentiaries and another 800,000 in local jails, is three-and-a-half times higher than the previous historical high set in 1939. More significantly for Stuntz, the black community bears the brunt of this increase: for white men, the present rate of imprisonment is nearly 500 per 100,000; for black men, the rate exceeds 3,000. He predicts that if the present trend continues, nearly one-in-three black men with no college education will spend time behind bars.
Despite these statistics, Stuntz does not argue that imprisonment is morally wrong. On the contrary, he blames much of the urban riots of the 1960s and '70s on our refusal to view punishment as a moral necessity. The anarchy that stemmed from punishing too little led to the current extreme of punishing too much. Instead, Stuntz is concerned that we have stripped local communities of the ability to govern themselves, which has created a dysfunctional system characterized by the collapse of the rule of law, discrimination against minorities, and a system that has forgotten that "legal condemnation is a necessary but terrible thing—to be used sparingly, not promiscuously."
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Stuntz argues that the system we have today is the product of a series of unintended consequences. In the past, city police, county-level prosecutors and judges, and neighborhood juries were accountable to neighborhood residents, which helped to balance the natural tension within communities between a desire to keep crime under control and an aversion to imposing unduly harsh punishments on their neighbors. However, the due process reforms ushered in by the Warren Court changed the focus of the system from substantive criminal law—that is, determining what ought to be crime and what its consequences ought to be—to a near-exclusive focus on criminal procedure. As a result, the task of investigating and prosecuting crimes became much more costly for police and prosecutors. Prosecutors, in turn, began to pressure defendants to accept plea bargains in order to quickly resolve cases that might otherwise be dismissed for technical violations. Although in the past taking a case to trial was commonplace, today it is rare: in most jurisdictions, 95% of all criminal cases result in a plea bargain.
Moreover, the 1962 Model Penal Code initiative sought to reduce the ambiguities of common law crimes in order to make the criminal justice system more efficient and exact. Prosecutors would no longer have to prove the element of mens rea,or show that the defendant had a "guilty mind," and juries need not bother with determining whether the defendant was morally at fault. But, in removing the common law's vagueness and moral complexity, reformers made it more difficult for juries to acquit and thereby removed much of the protection that insulated residents from overzealous prosecutors.
According to Stuntz, the combined effect of these changes has had a devastating impact on minority communities. Today, we have too much law, made mostly at the county and state-wide levels, with enforcement selectively applied according to the priorities of county officials who are often elected by affluent white voters. This means that residents of high-crime minority neighborhoods have "less ability than in the past to govern the police officers and prosecutors who govern them."
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His solutions are not easy. if people are to govern themselves once again, local democratic institutions like the neighborhood police force will need to be made accountable to city residents and their elected leaders. Furthermore, Stuntz suggests that funding for criminal justice institutions ought to be reversed. Instead of having the state cover the cost of corrections and cities absorb the cost of local law enforcement, he proposes that states invest more heavily in law enforcement and cities contribute to the cost of incarcerating their residents. Doing so would give state lawmakers an incentive to invest more in community policing initiatives; it would also make incarceration costlier for local governments. This might encourage prosecutors to be more selective in their prosecutions and induce judges to consider more merciful sentences.
Stuntz believes that increasing the police presence within troubled neighborhoods would also facilitate greater justice within minority communities-black-on-black crimes, for example, would receive greater attention—and a Broken Windows style of neighborhood policing would restore order and help local residents to feel safer and more empowered. He also believes that it could help rebuild trust in minority communities eroded during the recent "tough on crime" era. Recognizing that that is not likely to be enough, Stuntz also asserts that ensuring equal treatment of blacks and white, and imposing judicial remedies on those institutions which continue to discriminate, will create neighborhoods that are "more peaceful, and more just."
While both Zimring and Stuntz argue for the benefits of community-based policing, successful law enforcement is just one component of an effective crime-control strategy. Undoubtedly, having more officers on duty in crime-prone areas would help, but it would not address the concerns about prison overcrowding nor remedy the racial and ethnic disparities within our correctional system. Like the problem of crime, these concerns are multi-faceted and lawmakers at the local, state, and federal levels must explore ways to ameliorate some of their worst effects. In doing so, however, lawmakers should not discount the public safety benefits of past reforms. Increasing punishment for violent offenders, incarcerating career criminals, and strengthening parole requirements have helped to protect residents and make neighborhoods safer, and these policies should be preserved.
Assuredly, the respite from deliberating crime and justice issues is about to end. Concern over crime is increasing; media reports about inner-city violence are becoming more prevalent; in many states, prisons are severely overcrowded; and many municipal officials are threatening to cut public safety spending in order to meet public pension obligations. Although it remains to be seen whether crime rates will actually rise, the debate about crime and punishment is certain to return to the public square.