Crime, Justice, and Social Control [2 ed.] 1793513082, 9781793513083

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Crime,Justice, andSocialContro

Revised Second Edition

Crime,Justice, andSocial Control EDITEDBY STUARTHENRY, JEFFREY VANDERSIPAND DESIRJ.M. ANASTASIA San Diego State University and Denver

SAN

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CONTENTS

Preface to the First

Edition

xiii

Preface to the Second Edition Introduction:

What Is Social

ParT I

ChaPTEr 1

xv Control?

xvii

PERSPECTIVES ONINFORMALSOCIAL CONTROL xxviii Introduction 1 WhyPeopleBanBehavior STUARTHENRYANDLINDSAY M.HOWARD What Kinds of Behaviors

Are Banned?

Banning Ideas, Thoughts, Banning

and Beliefs

Appearances

Banning as Informal

Banning

4

5 Social Control

6

Behavior as A Social Process

Banning

Behavior: Symbolic

Motives

The

Creation of

The

Mass Media and Public Policy

Moral Panics

From Banning Behavior to

Summary Further

10

11 13

Making Laws

and Conclusions Reading

7

8

Moral Entrepreneurs

ChaPTEr 2

3

15

17

17

MoralPanic

21

ERICH GOODEAND NACHMANBEN-YEHUDA Concern

22

Hostility

22

Consensus

22

Disproportion Imaginary

23

Threats

23

Exaggerated Claims Other Harmful

23

Conditions

24

v

vi

CRIME, JUSTICE,

AND SOCIAL

Other

CONTROL

Times,

Other

2

Places

Volatility

25

Actorsin the

Moral Panic

The The

25

Media and the Internet Public

25

Law Enforcement Politicians

26

and Legislators

Action Groups and Social

Three Theories

26 Movements

26

of Moral Panic

References

ChaPTEr 3

25

26

28

ModesandPatternsof SocialControl: Implicationsfor HumanRightsPolicy 29 INTERNATIONAL COUNCIL ON HUMAN RIGHTS POLICY Executive Summary 1. Introduction:

29

The

Research

2. Key Findings of the

Report:

Underlying Forces and Contexts

4. AdditionalConclusions

33

1.

Control and

Human

Rights

What Is Social Control?

30 32

34

34

Human Rights and Social Control:

References

Tensions and Complementarities

Introduction 4

37

39

LAWASFORMALSOCIALCONTROL

ParT II

ChaPTEr

Modes and Patterns of Social Control

3. Key Findings of the Report:

I. Social

II.

29

40

41

Lawin Context

45

STUART HENRY Law Creation and the

Origins of Law

Where Does Law Come From? The

Emergence

of a Socio-Legal

Blacks Sociology of Law

Durkheim, The

Weber, and

Movefrom

Durkheims

Status to

Division

Organic

Solidarity

and

46 Perspective

on the

48

Marx on Law Contract

of Labor

Mechanical Solidarity

45

49

49

50

and Repressive Law Restitutive

Law

50 50

Origins of Law

47

CONTENTS

Max Weber,Ideal

Types, and Legal Pluralism

Webers Theory of Domination

52

Webers Theory of Legal Development

52

WebersLegal Pluralism and Modern Law Conflict Theory,

Marx, and

Critical

MarxistTheorists of Law

53

Approaches to

Law

54

55

Austin Turks Law and Ideological Domination

References

51

56

57

ChaPTEr 5 CriminalJustice:Systems,Models,andIssues

61

STUART HENRY

Models of Criminal Justice:The Social Control

61

References

ParT III

Tension Between Human Rights/Due Process and

64

POLICING AND INVESTIGATIONS

66

Introduction

67

ChaPTEr 6 PoliceDiscretion LARRY

The

K. GAINES

AND

E. KAPPELER

Nature of Police Discretion

Administrative Enforcement The

VICTOR

71

Police

The

73 74

Discretion Discretion

76

Decision-Making

Process

Decision to Invoke the Criminal Justice Process OffenderVariables

79

Situation Variables

81

System Variables Discretionary

82

Situations in Law Enforcement

Domestic Violence

Vice Crimes

83

87

Prostitution and Human Trafficking Pornography Gambling The

76

94 96

Investigation

Policing

91

of Vice

Hate Crimes

97 98

Disenfranchised Populations The

Homeless

The

MentallyIll

102 103

102

83

78

vi

viii

CRIME, JUSTICE,

AND SOCIAL

Controlling

CONTROL

Police

104

Discretion

Understanding the Needfor Control Mechanisms

10

Internal Control Mechanisms 105 108

External Control Mechanisms 110

Summary

111

References

ChaPTEr 7 RacialProfiling

117

MICHAEL E. BUERGER

Two Perspectives

118

118

Disparity or Discrimination? Profiling Generally

119

Basic Legal Foundations General

History

Contemporary The

119

121 History

Flagship

Cases

121 122

Four SalientIssues

123

1.The Legitimacyof Suspicion 2. Scientific Proof

125

3. Balance of Harms

126

4. Precisionof Application Research on Racial Profiling

Conclusion

123

127 127

129

Referencesand Further Readings

129

ChaPTEr 8 UndocumentedPeople(En)CounterBorderPolicing: NearandFarFromthe USBorder 131 DENISE BRENNAN

Methodology Individual

132

Law Enforcement

Challenging

State Surveillance

Conclusion Notes

and

Decision-Making Violence

133

135

136 136

References

ChaPTEr 9

Agents

137

Managing the BoundaryBetweenPublicand Private Policing 141 MALCOLM K. SPARROW

CONTENTS

141

Introduction

143

Background Values at Stake

147

Four Scenarios

149

DecisionSequence Conclusion Notes

160 161

References

163

Author Note

ParTIV

150

164

COURTS, ADJUDICATION, AND SENTENCING166 Introduction

167

ChaPTEr 10 AmericanCourts

171

CASSIA SPOHN

Supreme Court Decisions and American Courts 172

The Rightto Counsel Jury Selection

172

Capital and Noncapital Sentencing The

Sentencing

Reform

174

Movement

Determinate Sentencing

175

176

PresumptiveSentencingGuidelines

177

The Impact of SentencingGuidelines Specialized The

or Problem-Solving

A Focus on Drug Courts

179

179

The Effectivenessof Drug Courts Policy Implications

177

Courts:

Drug Court Movement

180

181

Discussion Questions Notes

171

181

182

References

183

ChaPTEr 11 The MentalHealthand CriminalJusticeSystemsas Agentsof SocialControl 187 MELISSA THOMPSON

Mental Illness

or Crime?

Deinstitutionalization Theories

187

or Transinstitutionalization?

of Gender, Race, Mental Illness,

and Criminal

190 Labeling

192

i

x

CRIME, JUSTICE,

AND SOCIAL

CONTROL

Research Questions

193

Chapter Review Questions

ChaPTEr 12

193

WrongfulConvictions in the UnitedStates RONALD

C. HUFF

WhatIs the Frequency of Wrongful Conviction in the United States? What Are the

Conviction

in the

Causes of

Overzealousor Unethical Police and Prosecutors

197

Eyewitness Error

Wrongful

Inappropriate UseofJailhouseInformants or Snitches IneffectiveAssistance of Counsel

Adversarial System

Recent and Current

Developments

198

199

200

200

InnocenceProjectsandInnocenceCommissions The DeathPenalty

198

199

The Innocence Protection Act

201

202

203

Cases Cited

204

ChaPTEr 13 TowardRestorativeand Community Justice MICHAEL BRASSWELL, JOHN FULLER, AND BO LOZOFF

Underlying The

Principles

of Restorative Justice

Promise of Community

Victim-Offender

210

Reconciliation Programs (VORP)

Family Group Conferencing

211

Victim-Offender Panels(VOP) ReintegrativeShaming

Corrections

211

212

Some Recent Developments

213 213

Community Justice and Peacemaking Questions Notes

214 215

206

208

Forms of Restorative Justice

Faith-Based

19

199

Forensic Errors, Incompetence, and Fraud

References

United States?

196

197

False and CoercedConfessionsand Improper Interrogations

The

195

214

210

205

CONTENTS

ParT V

CORRECTIONAL POLICIES ANDISSUES Introduction 217

216

ChaPTEr 14 Foreword: ChallengingMass Incarceration

221

MARC MAUER An Alternative The

Scenario

Rejected

Racial Dynamics of

222 223

MassIncarceration

The Impact of MassIncarceration

224

Seeking a New Direction for Public Safety Notes

225

226

ChaPTEr 15 UnlockingAmerica

227

THEJFAINSTITUTE Prologue

227

Notes

230

Crime and Incarceration

230

Whythe Prison Explosion? Did Prison Expansion The

Negative

Three The

230

Cut Crime?

Side Effects

of Incarceration

Key Myths about

Punishment

Recommendations

that

and Treatment

Should Fit the Crime

Will Reduce

Recommendations that

Estimated Impact ofThese

Concluding

241 Programs

246

250

253

Our Orienting Idea:

Two Additional

Rehabilitative

Cost Savings, and Public Safety

Recommendations

Four

240

Crime and Incarceration

Limits of Prison-Based

Decarceration,

238

Remarks

Prison

253

Population

256

Bear on Humane Justice

Recommendations

on Prison Populations

260 262

264

ChaPTEr 16 Reflectionsand Perspectives on Reentryand Collateral Consequences 267 MICHAEL PINARD I. Introduction

II. Reflections

267

270

III. The

Present Focus on Reentry Issues and Collateral Consequences

IV.The

Future

V. Conclusion

Challenges of Reentry and Collateral 276

Consequences

272 275

x

xii

CRIME, JUSTICE,

AND SOCIAL

CONTROL

JUVENILE JUSTICE

ParT VI

Introduction

278

279

ChaPTEr 17 Preparingfor Prison?

28

PAUL J. HIRSCHFIELD

Abstract

281

Key Words Three

281

Dimensions

of School

Four Extant Interpretations

The

Role ofObjective

The Subjective The

Independent

Conclusion Notes References

Conclusion

301

Criminalization of School

283

Criminalization

Structural Conditions

286

289

Influence of Social Structure on School Criminalization Role of Justice System 294

295 296

Agents

293

291

PrEFaCETOThEFIrSTEDITION

T he focus

of this text is crime, justice, and social control.

Our purpose is to demonstrate that

law and the criminal justice system are set in a wider context of social control. Thus,

rather

than the formal system oflaw, courts, and police being the only ways members of society are

held together in a social order, weshow that there is a plurality This idea of a plurality the

moresubtle

our actions in everyday relationships.

In fact,

norms and sanctions

the church, but also through the formal institutions

broader view of informal

the context

needed to understand

control. This

is important

of social groups and institutions

discretion

companies,

and workplaces.

of social settings and situations,

control that reflect the

Rather than

justice fits

aberrations,

ways control is exercised in the

book, therefore, starts

types of social control through in

how criminal

with an introductory

and the system or subsystem behavior.

It concludes bylooking

Following the introductory analysis of criminal justice

overview,

criminal justice settings such as police

these are integral

formulate

justice

their

before

at the importance

and the philosophies of criminal justice

behind

policy issues

system. weinclude

academics,

allow students to understand the complexity the criminal

mechanisms of social

It reviews the social context and origins of law,

a selection

of articles that provide a sociological

and social control, and articles focused

justice

of social

wider society.

system discussed in the introduction.

discussed by criminal

theory

with

made clear, but we

social control and medical social control,

social control.

and alternatives in each area of the justice

areas of the formal

provides students

with a comprehensive

models of the courts and sentencing, the system of law enforcement, the system of corrections.

of

overview that explores the origins and different

sections on informal

more depth on formal

and social

We deviate and violate the

and non-state systems of social control

mechanisms operate within formal

and plea bargaining.

non-state systems

like family, schools, and

because, not only is the vast scope of social control

can also see how informal

focusing

most social control comes through

of which we are a part takes action to curb our untoward

This

This

police us, channel us, and even punish or correct

rules and private justice systems of organizations

such as medicine, insurance

norms, rules, and laws in a variety society

our behavior.

of control systems is often taken for granted because we often do not see

ways that groups and organizations

such as the informal

of systems that control

policy

The

more specifically

on the different

articles raise key questions

makers, and elected officials today. The

being articles

and range of challenges faced by all those involved

process, give them an opportunity

views about social control, taking into

to think

critically

consideration

about the alternatives,

research

in and

and policy analyses

presented by experts in the field.

Christine

Curtis and Stuart September

Henry, 30, 2012

xii

PrEFaCETOThESECOND EDITION

I

n the 7 years since the first

criminal justice

edition

of this text

was assembled some of the dimensions

have changed, and others have become controversial.

the contents of this text to better reflect the current framework Overall the fundamental

institutions,

referred to collectively

I have tried to include

control that occurs

public realm.

within formal

that outlines the framework ban behavior. It highlights others through

implications

As in the first

edition

of social control,

as well

Part I looks

After a comprehensive

at the fundamental

section

also explores

introduction

issue of why societies

process that shows how some interests of certain

social

are elevated above

behaviors and how these fears can

morality and social control

and social

for human rights.

Part II looks at law as aformal consistent

shaped by the culture ideologies

systems.

institutions

agencies of criminal justice.

moral panics. The

of state and non-state

However, the text also covers aspects of informal

for the book, the political

of social control.

of social control

creating fear about the consequences

be whipped into

as a logically

as a plurality

As a result, I have revised

a combination

articles that cover a range of formal

as those outside the formal

controls

pattern of social control remains

of formal

institution

of social control. It describes the shift from seeing law

set of rules enforced and structure

by government

of the society in

and policies on the criminal

sanctions to the social context

which it develops. The

justice system is also explored

influence

by contrasting

oflaw

of various the different

models of the system's operation. Part III

examines issues arising from the police as agents of social control

some of the informal the role, function, in the

practices such as police discretion,

and relationship

courts,

of adjudication

courts that include

in the courts,

drug courts,

and so on. It also explains the intertwining

health system. informal

Recognizing that adjudication

practice

of plea-bargaining

and community

of our criminal

justice

perfect in the formal

its formal

courts,

public

prostitu-tion

system and mental system and that the

due process principles,

section concludes

with a review

the section

of alternatives

justice.

Part V addresses issues relating to corrections Drugs and Three

area as,

which has witnessed a significant

homeless courts, family

is far from

compromises

discusses the issues of wrongful conviction. The such as restorative

is an important

policing has grown to be larger than

having as much as 2:1 ratio between private and public police.

Part IV explores the system expansion to specialized

private

on

policing the borders and

between public and private police. This

United States and many other countries,

policing and, in some countries,

racial profiling,

and concentrates

Strikes Law have contributed

and how certain to

policies such as the War

on

what has become known as massincarceration.

It then discusses how America can get out of its obsession

with prison and how prison populations

can be reduced,

ways through

before turning

to explore some of those

community

corrections,

x

xvi

CRIME, JUSTICE,

AND SOCIAL

effective reentry justice

CONTROL

and reintegration

of released convicts,

at the criminalization

but previously that

impact

of restorative

practices.

Part VI concludes the second edition alook

and the as-yet limited

byfocusing

on the juvenile

justice system, beginning

of the schools and the school-to-prison

overlooked issue of the traumatization

of youth

with

pipeline and the important

whofind

themselves

at the end of

pipeline. Ofthe 17 readings in this second edition, seven are new to this edition, four are updated versions

of articles that appeared in the first I hope that you find

these readings

edition,

while only six remain the same asin the first

engaging, thoughtful,

and informative

edition.

and that this revised

volume of Crime,Justice and Social Control stimulates your critical awareness about taking a broad view of the complexities

surrounding

our plurality

of social control systems.

Stuart

Henry,

April 6, 201

INTrODUCTION WHAT IS SOCIALCONTROL? All social groups enforce them.

make rules and attempt,

at sometimes,

Social rules define situations

them, specifying

some actions as right

under some circumstances,

and the kinds of behavior appropriate

and forbidding

others as wrong.

is enforced, the person whois supposed to have broken it

to

to

When a rule

maybe seen as a special kind of

person, one who cannot betrusted to live by the rules agreed upon by the group. He[or she] is regarded as an outsider. Butthe person whois thus labeled an outsider mayhave a different view of the matter. He[or she] may not accept the rule by which he[or she] is beingjudged and may not regard those whojudge him [or her] as either competent orlegitimately entitled to do so. Hence asecond meaning of the term emerges:the rule breaker mayfeel his[or her]judges are outsiders.(Becker 1963, pp. 12)

S

ociologist

Howard Becker (1963) explains that rules

based on social norms, customs, or traditions.

may beformal,

codified

In effect, rules are cultural imperatives

how people should act. Becker observes that all rules are founded

their

violation.

Social norms are standards

and are not formulated For the

process oflegislation

justice

based on the failure

of other,

Black (1976) argued that the amount social control

law in any society is greatest

Austin

expectations identification, smoking,

societies

with culture: (Deflem,

But the need for Donald

depends on the amount

when informal

control

mechanisms

where the relational

about deviant

legalization

of law

have less law

and social

will be relatively

low.

of

Where people

He says that the

morelikely they are to uselaw to settle disputes. to describe the process through

behavior are transformed

detection, and control. This

societies

distance between persons is great.

the amount

used the term

simpler

have moresocial control.

2007). Black (1976) claims that the quantity

distance between persons, the

Turk (1972)

social control.

mechanisms of social control.

with higher degrees of stratification

or close relationships,

greater the relational

constitute formal

moreinformal

of laws and the sanc-tions

moreformal law is needed (see also, Friedman 1975; Schwartz,

also vary directly

more differentiated

enjoy intimacy

with enforcement

of law and formal justice in a society

1954). Black proposes that societies Law and social control

written

to establish them.

and its effectiveness, suggesting that

break down or become ineffective,

control than

by social groups but are not explicitly

we are concerned

by the state, which taken together

laws is partially

of informal

expected

by the state through

written, with consequences specified for

by persons approved by governments

most part, in criminal

imposed

and explicitly

for

on some level of consensus

within a social group. Laws are a special kind of rule, ones that are sanctioned a specific governmental

aslaws, or infor-mal

into

which nor-mative

official laws for the purpose

has also been called criminalization.

which was once seen as medicinal, then seen as a social stimulant,

of

A good example is and in recent years has

xvi

xviii

CRIME, JUSTICE,

AND SOCIAL

been banned in certain

CONTROL

areas and subject to fines

and other penalties.

is seen as less harmful, the crime is decriminalized, as has happened

with

Vermont and Mississippi,

with penalties

marijuana possession for recreational

District of Columbia, and, such as California,

Colorado,

Washington. In some states, including Missouri,

New Hampshire,

being reduced

Massachusetts, Connecticut,

New York, North

be prosecuted.

priority,

So,it is important

can move from

being subject

or removed,

with police using their

Maryland,

Ohio, and Rhode Island,

pen-alties

of marijuana possession laws

discretion

controls,

Alaska,

Michigan, Nevada, Oregon,

Delaware, Illinois,

Carolina,

to understand the continuum merely to informal

when behavior

usein several states including

have been reduced and, in several cities, and states enforcement has been designated alow

Conversely,

as to

whether a case should

of social control

and how behavior

and then to formal

social control,

and

vice versa, as behavior can be decriminalized.

DefiningSocialControl Social control, in its broadest sense, is a meansto encourage,

persuade, or coerce individuals

to

conform to societal norms, rules, and laws. In his classic 1901 book Social Control, Edward A. Ross saw social control group.

as a way to

He said this

mold an individuals

was partly achieved though

which he described as the purposeful and acts of the individual. which fulfills

afunction

exercised both formally spontaneous

social

in the life of a society

as one of the

waysit

as: Social

maintains itself

within the individual,

producing an artificial

social order are designed to unremittingly

by belief (Hertzler, argued that belief law to be: The

1951, p. 604). wasfar

Although

more influential

mostspecialized

which is intended

Ross saw social control

Hesaw society as a living

social control

to distinguish

by

organism

natural order, and external

mechanisms of this externally

operated

Rossidentified

pro-duced

disciplinary

by the state, and supplemented

33 different types

more formal

and highly furnished

being

between internal

socialize each new generation through

than

and

as alive and well.

which can produce atemporary

mechanisms embodied in the engines of social control

con-trol,

on behalf of society, and informally

Ross was the first

social order. The

social

of the group over the aims

domination

(Ross, 1901, p. viii).

of government

In discussing the grounds for social control, controls exercised

and partly through

and conscious ascendancy

Ross defined social control

by the instruments

influence

agencies that serve social interests (Ross, 1901).

and social control

controls

desires and feelings to suit the needs of the

of social control,

he

mechanisms. Yet he also considered

engine of social control

employed by society

(Ross, 1922, p. 106). This

same theme

of the broad span and generalized reach of social control is found in later

writ-ing.

For example,Joseph S. Roucek,in SocialControl(1947, p. 3), definesit as:Those processes, planned or unplanned,

by which individuals

are taught,

persuaded to conform

to the usages and

life values of groups. Sociologist George C. Homans,in The Human Group(1950, p. 291), defined social control

as: the

process by which, if a man[or

woman] departs from

degree of obedience to a norm, his [or her] behavior is brought back toward

his [or her] existing that

degree or would

be brought back if he [or she] did depart. Black (1983) involves

provided

a good illustration

of the broad scope of social control,

any process by which people respond to

which he says

what they see as deviant behavior. This

includes

INTRODUCTION such diverse phenomena from

an organization,

hospital, a riot,

as a frown

or a scowl, a scolding

an arrest or lawsuit,

or a military reprisal.

concerning

the impact

or a reprimand,

an expulsion

a prison sentence, commitment

to a mental

But this concept entails no assumptions

of social control

else, nor does it address the subjective

upon conformity,

or implica-tions

social order, or anything

meanings of social control for those

who exercise or

experience it (Black, 1983, p. 39).

However, some have criticized

this broad-brush

approach to the concept.

For example, Stanley

Cohen(1985), in Visionsof Social Control,describessocial control as a Mickey used to include

all social processes, ranging from infant

social policies,

whether called health, education,

control is: all sponsored

organized responses to crime,

directly

prevention,

or welfare.

delinquency

by the state or by institutions

designated as treatment,

socialization

punishment

describing

or adjustment

all

regulation

(2007,

and formal

or legal control.

Informal:

Influencing

interpersonal

or whatever

(Cohen, 1985, p. 102).

of social

and whether

since the 1920s, has been the general

the coordination,

integration,

regulation

of conduct ... synonymous

social control into three categories: informal,

with medical,

relationships;

Medical: Changing human behavior using Formal/Legal:

and all

of deviancewhether

work and psychiatry

or groups to some ideal standard

p. 16). He characterizes

definition

such as social

manner of activities involving

of individuals

His more focused

and allied forms

According to sociologist James J. Chriss, social control, concept for

Mouse concept

to public education

medicine, psychology,

Enforcing laws and punishing

and psychiatry;

offenders.

Crime as Social Control Interestingly,

in Crime

as Social

Control,

classify as crime are similar to the behavior to control

or punish others in an informal

see as a wrong. For example, by committing

adultery,

member, it can be for

Black (1983) argued that of self-help

be an illegitimate

or punish

what they the family

When a gang member shoots a rival gang

disrespect, or to serve justice for a previous gang murder.

students, it can be to correct

attempt to control

or to correct

kills his daughter for dishonoring

he is exercising social control.

we

management, in which people act

attempt to bring about justice

when a Pakistani father

spouse kills her husband, it can be to control his fellow

conflict

many of the behaviors

him for abuse.

perceived injustices

When an abused

When a bullied

and humiliation.

kid shoots

So, crime itself

attempt at self-help social control, just as social control is an informal

can

or formal

crime and deviance.

Typesof SocialControl Systems of social control seem to be particularly (public,

as in formal

can be considered to operate along germane.

criminal

First,

justice),

multiple dimensions.

Two dimensions

we have whether the system of social control is state run or private,

1983;1987). I have argued that such non-state

or a non-state system of social control

systems of social control should

(Henry,

betermed Privat

xix

xx

CRIME, JUSTICE,

Justice,

AND SOCIAL

CONTROL

and I suggested that they include

bodies, boards, and councils associations

of industrial

and

mutual aid groups. Private

maintain the normative

concept of social control

by these agents

as the disciplinary

professional

autonomous

voluntary

Justice comprises those institutions (Henry,

denotes that all interaction

use of sanctions,

organizations,

of relatively

order ofinstitutions

are agents of the group, organization,

of such institutions

and commercial

and unions, to the peer sanctioning

like self-help that

the practices

socialization,

of social control

1987, p. 89). From this perspective, the

is subject to a degree of control

community,

and trade

associations,

by others

who

and society, and it is social in that it is limited and the

manipulation

of symbols (adapted from

Wolf,1964, p. 650). Asecond dimension systematic,

and written downor

(Gurvitch, law,

of social control

1947).

which recognizes

formal

concerns

alternatively,

developed

one plane, running organizational formality.

that there

are

draws

multiple forms

for conceiving

of forms

horizontally,

are the range

of different

we can consider

are

many different

kind of law.

organization,

subtypes

On a vertical

This

of organization

schema shows that informal

control, police

of the state or formal

such as criminal discretion

procedurally

formal,

are settled. The

planes.

On of

from the indi-vidual

of intermediate

types,

of social structure,

there

of groups,

each

of law at each level For Gurvitch

with its

own

of organization,

(1947), the formal

is

whereas the informal

and intuitive. law is not the exclusive control

organization.

mechanism of the group but

Conversely, formal

Even characteristically

have aspects that are informal.

informal

ranging

and planned in advance,

negotiation;

courts

yet plea bargaining,

and informal

reality is that both formal

and informal

any systemeven (Henry,

justice,

involves

law,

based on the level

with a variety

many subtypes

exists to a greater or lesser extent in any kind of law. mechanism

and informal

plane are the levels of

continuum

to informal.

written, fixed,

spontaneous,

of law

On a vertical

Within any one type

and

ranging from formal

by being organized,

is unorganized, flexible,

structures,

plane, and existing for each type

is the degree of formality, characterized

types

of living

most are not part of the

of law as existing in two

a horizontal

in between.

and spon-taneous

(1913) idea

between formal

and scale on which they operate.

Gurvitch,

community,

and that

the relationship

to group to societal to global collective including

of law

in organized,

unorganized,

on Eugene Ehrlichs

a framework

complexity

Adapting

whether it is informal,

Georges Gurvitch

legal system. In order to comprehend

Gurvitch

whether the system is formalas

law is not the exclusive formal

Policing is highly formalized,

and trials negotiations

are highly rule-governed

but and

are how 95 percent of cases

systems of social control

in private systems, such as disciplinary

systems of social

justice in universities

work together in or corporations

1983; 1994).

While their level of organizational

development

formal law, they also develop a rudimentary (1971) called legal reinforcement

pluralism

or in conflict,

even the formal

whose different laws reinforcing

typically

formal law. This

precludes small groups having highly web of control is what Leopold Pospisil

may exist in harmony, symbiosis,

or undermining

the informal

mutual

of other subsystems and

law of the state.

Table 1 is a synthesis

based on typologies

of systems of social control

(1991, p. 131), Henry (2015, p. 809), and Kokswijk (2010). The organization,

law

and

from individual

(micro) through

organizational

derived from

Ellickson

schema shows the level

(meso) to societal/global

of social

(macro) i

INTRODUCTION

xxi

TABLE1. Systems of Social Control Norm/Rule/Law

Control Agent

Sanction/Response

System Type Formal

Informal

Micro-level Rule violator/deviant first party)

Personal ethics & (indi-vidual values Contracts/infor-mal agreements

Victim/person violated (individual second party)

Self-restraint

Self-control

Individual self-help (can be punitive or nonpun-itive)

Victim-enforced control

Meso-level Group social context/ environment (third-party control)

Social norms

Collective victim (third-party control)

Conflict norms

Organization/Communal (third-party control)

Group sanctions, sham-ing, exclusion

Communal self-help; justice as social control

Groupself-help sanctions (collective aggression, crime asself-help, negotiation, settlement-directed talking)

Informal Organizational disci-pline, Privatejustice organizational sanctions system: Organi-zational controls control/ professional association

Organizational rules

Organizational/Communal

Informal social control; com-munity justice

Conflict norms

Professional standards/

victim(third-party control)

Organiza-tional Professional as-sociation

counter guide-lines control/public pressure

Competitiveshaming

Macro-level

Government/State

Law(state,statu-tory, Stateenforcement/

(third-party control)

commonlaw)

Formallegal

sanctions

Informal dis-cre-tion/

system plea bargain-ing

Global/International (third-party control)

a vertical

plane, but it also acknowledges

and the informal The

for each organizational

characterization

and formal

underbelly

of social control

mechanisms of control

a public formal

the first

Treaty/Interna-tional law

the insights

that permeates through

as it includes

both the formal

presented in Table 1 suggests that there are both informal

both at the

to the

of Gurvitch,

Noncompliant resistance

level of social control.

system of social control

two types in the continuum

Cooperative enforce-ment Formal legal system

meso-and

macro-levels.

operating at the

meso-and

of social control,

Criminal justice is predom-inantly

macro-level, but with an informal

micro-levels. The following

sections

based on Chrisss (2007) three-part

describe mode

xxi i

CRIME, JUSTICE,

AND SOCIAL

that includes informal

CONTROL

(predominant

and formal/legal

at the

micro-meso-level),

social control (predominantly

the focus of subsequent sections

at the

medical (predominant

at the

macro-global level). The

meso-level)

third types is

of this book.

Informal Social Control Chriss (2007)

describes the

moretraditional

practices of everyday life that encourage

view of informal us to follow

social groups, or the larger society. Sociologists

use the term socialization

by which welearn the rules, norms, and expectations first introduction

to social control.

many waysin

in, or your employer student

If you think

your friend

of the

mechanisms and

set forth

by family,

to describe the process

world around

by others. Your mother

us. Socialization

is our

maysend you an article

may advise you on how to dress for a party so you willfit

maytell you that you shouldnt

Chuck Vincent,

asthe

about your social networks today, you can identify

which your behavior is influenced

on the dangers of smoking,

social control

the rules and traditions

make personal calls at work. Consider college

who was subject to social control from

his peers for not drinking

enough

while out partying. When certain

drinking

norms are enforced it is not easy to resist them.

not acceptable to fall behind in drinking. on man. You are two shots behind. everyone gets behind the up

at work. But in

up to do.

At this

point

man has to slam the two shots in

catch up the person is reminded

that hes a lightweight.

the rules are set forth for you, such as policies, procedures

and guidelines

many cases, the norms, or social rules, are shared through interaction

and are not as clearly of your friends

observation

are received like: Come

1999, p. 98)

In some instances,

reaction

Youve got some catching

man and the behind

order to stay even. If he doesnt (Vincent,

If you do so comments

For instance, it is

defined.

You may only find

out that you violated a rule

or family. In the classroom,

of others or instruction

by teachers

you have learned

certain

with others

when you see the behaviors

over the years. For example,

based on

many instructors

would prefer that you raise your hand before speaking in class. But the rules are not the same in every classroom

and in some classes, rules are more vigorously

Rules can be enforced for a variety think

of social control,

wethink

of behavior

can also be exercised over physical extreme, illogical,

of different forms

racist, fundamentalist,

social group.

of deviance.

Most commonly,

that is deviant or offensive.

appearance

(too obese, thin,

eccentric,

a social actor in all these settings, the individual

enforced.

or codified into

Many norms are passed on informally An overriding

question

what is normal?

with all types

etc.), ideas (too

(gay, vegan, loner).

As

needs to understand the norms and values of each

Norms are rules for behavior or a guide for conduct (Chriss,

Norms need not be explicit

However, social control

pierced, tattooed,

etc.) and even lifestyle

when we

2007).

polices or laws;

through

socialization.

of social control,

Who defines the norms of society?

including

socialization,

is

Who defines the norms

who deter-mines of a group

INTRODUCTION

Sociologist moral

Howard Becker called those

xxiii

who mobilize others and whip up support to ban behavior

entrepreneurs.

It is important onalbeit

to realize that the exercise of social control

often looselyby

a group, community,

are referred to as an audience process. The

that is

audience (1) identifies

involves

or society. Those

made up of group

ideas,

from the group norm; (2) judges the difference to be significant; be negative (Henry

& Howard,

may act to exercise social exhibiting It is

the deviant

2019). If all three

control

to the vitality

regulation,

as posing a threat

the norms

or lifestyle)

that is different

and (3) judges the behavior to occur, then the audience

social actor

or over the group of actors

behavior.

define as deviance is a surveillance

agreed

who engage in a three-step

of these elements

over the individual

worth noting that difference

is seen to contribute

who determine

members

behavior (appearance,

a set of norms

culturally

of ideas, style, or food and creativity

of modern society.

unacceptable

sanction,

level

of difference

or penalty by societys

to the social fabric

preference is respected

(Sumner,

In contrast,

what audiences

that is subject to suspicion,

social control

2006, p. 126).

as a right and

agencies because it is seen

As such the social norms are cul-turally

bound; consider the norms of American academic culture compared to say those of Chinese academic culture. the

While questions

American classroom, in

discuss. The questions

Chinese classrooms

result can be that

nor participate

and even discussion

are expected

of students

students are there to listen,

when Chinese students study abroad in

in discussion.

Whatis conforming

of grade reduction for lack

As mentioned

previously,

of participation

the criminal

justice

behavior in the

(Zhong,

system

offense. Police departments

of referral to probation, in some other

way learn from their

the juveniles

as delinquents

efforts as a form

mistakes.The

of socialization,

similar to

and informal

service, or in

would avoid labeling

more serious offenses. within families

programs in lieu

community

hope was that the program

what occurs

control

were often treated infor-mally

diversion

write an essay, provide

and avoid escalation into

Chinese classroom

2019).

in the 1970s developed

which the youth could

or

maysuffer social control

has both formal

mechanisms. In the juvenile justice system, for example, young offenders for the first

not ask questions

America, they neither ask

becomes deviant behavior in the American classroom and visiting students in the form

by professors in

One could view these

or in schools.

MedicalSocial Control Medicine is becoming the repository

a major institution

more traditional

institutions

of social control, of religion

and law. It is becoming the new

of truth; the place where absolute and oftenfinal morally neutral, objective

made, not in the name of virtue not occurring

judgments

experts in the name of health.

or legitimacy,

through the political

nudging aside, if not incor-porating,

And these judgments

but in the name of health.

power physicians phenomenon

are made by sup-posedly

hold or can influence

an insidious

and often undramatic

accomplished

daily living,

by making medicine and the labels healthy

part of human existence. (Zola, 1972, p. 487

but is largely

by medicalizing

and ill

are

Moreover, this is

much of

relevant to an ever-in-creasing

xxiv

CRIME, JUSTICE,

AND SOCIAL

Samuel Cartwright first medical social control. and social problems functions

CONTROL

coined the term medicalization

According to

are redefined

Cartwright,

or normalize,

recently,

deviant

behavior

and

medical problems

(Cartwright,

Peter Conrad and Joseph Schneider (1992, of medical intervention

as deviant

with

Psychiatry

medication, psychoanalysis,

and treatment

at the individual

ways medicine

medical social control

modify, isolate, or regulate corresponding

and other forms level

minimize

1851, cited by Chriss, 2007, p. 64). p. 242) defined

that seeks to eliminate,

and the

by using medical meansto

medical means,in the name of health. The

mechanisms include

for

medicalization is the process by which personal

as psychiatric

... to secure adherence to social normsspecifically,

eliminate

variant

in 1851 to describe the foundation

promote

More as a

behavior defined

medical social control

of treatment.

pro-social

adjustment,

and public

health operates at the group or societal level to prevent disease, prolong life, and promote health: in modern or post-modern regulations

pertaining

array of risky

society, there are increasing to the reduction

behaviors, including

stalking,

has attached itself to these and The

case of hyperactivity

behavior

by young boys

overactive,

which

by pediatricians,

might have been described

Wed

psychologists,

off the shelves. It

teacher referred

other activity

Buds sister

change in behavior

Although

his attention span. The

with the administration but one that

(Bennett,

Buds hyperactivity

hyperactive.

goes virtually

He will be labeled,

was afraid

1990, p. 103).

Debbie explains: who specializes in hyper-activity

and this same deficiency is asso-ciated Ritalin to Bud he became

It also helped him screen out

use of Ritalin

made great differ-ences

Bud to better deal with these situations. which

1990, pp. 104106) of the drug Ritalin

was valued by the family,

moral culpability

to

disability is caused by a lack of

whether the drug wasthe cause. Importantly,

problems helps to take away the

labeled

in particular)

with teachers, the level of social

therapist ...

word retrieval.

and aggression. (Bennett,

have been a necessary intervention, she is not certain

seen by their parents

Bud recently, I have noticed a change in his behavior in situations

used to produce conflict The

would not have been

drugs (Ritalin

When Dr. Marsden prescribed

effect of Ritalin has allowed

or

were diagnosed as hyperactive

and

Buds learning

Ritalin helped Buds

so as to increase

... the calming In observing

...

of pizzazz,

my back for a second. If I did, I

within the family

mom to afamily

had told her that

aggressive

whose mother describes him as hyperactive:

chemicals in the brain that helps him retain information a new person ... The

by parents; it

made mefeel crazy

medical and drug intervention.

with hyperactivity.

generation,

having a lot

and prescribed

was afraid to turn

From attempting to deal with the issue

... the therapist

as naughty,

agents) as overly aggressive

and psychiatrists,

he would start pulling everything

Buds first-grade

2007, p. 72).

In a previous

of sanctions

behavior. Take the case of Bud Bennett,

escalated to

(Chriss,

However, beginning in the 1970s, children

go to the grocery store and I

control

drug use, sexual promis-cuity,

and so forth ... the discourse of addiction

many other social activities

social control

or quasi-legal

and death, but also an ever-expanding

serves as a good illustration.

might have resulted in a variety

and teachers (primary

oflegal, administrative

aggression and violence,

watching television,

diagnosed as a medical condition.

control their

of accident, injury

gambling,

using the Internet,

numbers

the

was perceived not only to as his sister attests, though

medicalization

of the behavior

of both Bud and his parents: unnoticed

now ... he will continue to be

not least because our parents

mayfear their

ow

INTRODUCTION labeling

asinadequate

parents.

Because hyperactivity

our parents are not condemned (Bennett,

a medical disorder,

but given sympathy. The label is comforting

for us all.

1990, p. 107)

From the

medical social control

perspective, it is important

behavior resulted in the acceptance himself that he has a biologically by all parties and supported

by teachers, therapist,

determined

mentalillness

by the child

to understand

family

his behavior as mental illness

child, such that science takes over from control is that it renders

allows

members, friends, This

and even Bud is confirmed

drugs have suppressed the disruptive

himself

who stated, he

way the parties come together to arrive at a common

reality that treats

how deviant childhood

called hyperactivity.

by the fact that administered

behavior and is even acknowledged issue is the

is considered

xxv

cant

definition

help it.

A critical

and how this version of

medical social control to beimposed

moraljudgment.

Indeed, the characteristic

on the

of medical social

deviant behavior a nonmoral issue, and in doing so removes responsibility

from those subject to the label. The

behaviors that are considered

(2007)

notes that homosexuality

Diagnostic and Statistical

with the

medical

context and treat individuals of the individual. public health individual

conditions,

in the

dropped from the

Chriss

Associations

as sexual deviance, then as

DSM altogether.

modelis that experts

accordingly,

vary over time.

American Psychiatric

Mental Disorders (DSM), first

when it

Whilethe criminal justice

define

what is normal

may not be appropriate

within a medical

or in the best interests

system provides due process rights to individuals,

model is proactive and is interested

rights.

or psychiatric

has been characterized

Manual of

mental illness, then subsequently A concern

illnesses,

in the greater good, sometimes

Chriss (2007) suggests that there is a potential

dark side to

the

at the expense of

medical social control,

which includes the following: Behavior is redefined responsibility People

problem

and individuals

may not take

behavior;

mayassume that

promoting There

for

as disease or a psychiatric

medical providers

are neutral

or selling sickness (e.g., prescriptions,

may be an over-reliance

on experts

when they have a vested interest in

procedures, services); without

evaluating

their

qualifications

and recommendations; Social problems

may be defined asindividual

problems

without consideration

of the effects

of social policies and politics. In

many cases, a medical response is initiated

by individuals

or families to resolve a perceived

problem (an intervention

with a drug addict to encourage treatment

attention deficit disorder).

But there is some overlap between

control

under the criminal

(i.e., police officers, courts) from

a 72-hour

commitment

justice system (Thomson, may use the

2010).

or a prescription

and legal/formal

With legal control,

agents of the state

medical model to address public safety problems, ranging

for psychiatric

evaluation for someone

whois behaving strangely in

public and deemed a potential threat to others, to domestic violence and drug courts, treatment criminal

for offenders convicted justice

of spousal abuse or drug offenses.The term

system is therapeutic

used to study the extent to

of a drug for

medical social control

jurisprudence,

in

which mandate

used by some in the

which social and behavioral

which legal rules or practices promote the psychological

science is

well-being

o

xxvi

CRIME, JUSTICE,

participants

AND SOCIAL

in the criminal

CONTROL

justice

system.

heavy use of medicine and scientific In

Part II of this text

control

Well see later that criminal

justice

experts are described as operating

wefocus

on the law as the

main institution

as a medical of formal

but before doing so, the readings in Part I build on this introduction

the fundamental

human process that

systems that

make

model.

system

of social

to give usinsight into

maintains compliance to norms, even where laws do not exist.

References Becker, H.(1963). Outsiders: Studiesin the sociology of deviance. New York, NY:The Bennett,

D.(1990).

Coping

with hyperactivity.

their deviant behavior, (pp. 102107). Black, D.(1976).

The Behavior of law.

Black, D.(1983).

Crime as social control.

Chriss, J. J. (2007).

Social control:

Cohen, S. (1985).

In S. Henry (Ed.).

Salem,

New York,

Visions of social control:

Degrees of deviance: Student accounts of

WI: Sheffield Publishing. NY: Academic

American Sociological

An introduction.

Free Press.

Cambridge,

Crime, punishment

Press. Review. 48, pp. 3445.

UK: Polity

www.csun.edu/~e-godard/readings/Black-19

Press.

and classification.

Cambridge,

UK: Polity

Press.

Conrad, P., &Schneider, J. W.(1992). Deviance and medicalization: From badnessto sickness. Philadelphia, PA: Temple

University

Press.

Deflem, M.(2007). The concept of social control: Theories International Universit

Conference on Charities asinstruments de Haute Bretagne (Rennes

and applications. Paper presented at the of social control in nineteenth-century

2), Rennes, France,

November

2223.

Available

Britain,

via: www.

mathieudeflem.net Ehrlich,

E. (1913, 2002).

Fundamental

principles of the sociology oflaw.

New Brunswick,

NJ: Transaction

Publishers. Ellickson,

R. C.(1991).

Order without law:

How neighbors settle disputes.

Cambridge,

MA: Harvard

Univer-sity

Press. Friedman,

L.

M.(1975).

The legal system:

A social science perspective. Englewood

Cliffs,

NJ:

Prentice-Hall. Gurvitch,

G(1947).

Henry, S. (1983).

The sociology of law.

Private justice:

London:

Toward integrated

Routledge

& Kegan Paul.

theorising in the sociology of law.

London:

Routledge

&

Kegan Paul. Henry, S. (1987). The

construction

and deconstruction

of state law and private justice.

of social control: Thoughts

In J. Lowman,

Essaysin the sociology of social control (pp. 89108).

on the discursive

R. Menzies, & T. Palys (eds.)

Aldershot,

UK:

pro-duction

Transcarceration:

Gower Press.

Henry, S.(Ed.) (1994). Social control: Aspectsof non-statejustice. Aldershot, UK: Dartmouth. Henry, S. (2015).

Legal systems:

Private. In J.D.

Wright (Ed.), International

behavioral sciences, 2nd edition, Vol 13 (pp. 807811). Henry, S. & Howard,

L.

M.(2019).

Hertzler. J. O.(1951) Edward

Social deviance. 2nded. Cambridge,

Alsworth

Ross: Sociological

encyclopedia of the social

UK: Polity

pioneer and interpreter.

Press. American Sociological

Review 16(5), pp. 597613. Homans,

G. C.(1950).

The human group.

New York,

&

Oxford, UK: Elsevier.

NY: Harcourt,

Brace, and

World

INTRODUCTION Kokswijk,

J. van. (2010).

(pp. 239246),

Social control in online societyAdvantages 2010 International

Conference

on Cyberworlds

of self-regulation conference.

xxvi i

on the inter-net

Singapore,

October

2022. Pospisil, L. (1971). Anthropology of law: Acomparative theory. New York, NY: Harper & Row. Ross, E. A.(190,11922.). Social control: Asurvey of the foundations of social order. New York, NY: Macmillan

Roucek, J. S.(1947). Socialcontrol. New York, NY: Van Nostrand. Schwartz,

R. D.(1954).

Social factors in the development

of legal control:

A Case study

of two Israeli

set-tlements.

Yale LawJournal 63, pp. 471491. Sumner, C.(2006).

Deviance. In E. McLaughlin &J. Muncie (Eds.), The Sagedictionary of criminology.

2nd ed. (pp. 126127).

Thompson,

M.(2010).

TX: LFB Scholarly

London:

Sage.

Mador bad? Race,gender, and mental disorderin the criminal justice system. El Paso, Publishing.

Turk, A. T.(1972). Legalsanctioning and social control. U.S. Department of Health, Education, and Wel-fare. National Institute

of

Mental Health.

Washington,

DC: U.S. Government

Printing

Office.

Vincent, C.(1999). Pressure to drink. In S. Henry & R. Eaton (Eds.) Degreesof deviance: Student accounts of their deviant behavior 2nd ed. (pp. 97100). Salem, WI: Sheffield Publishing. Wolf, K. H.(1964). Social control. In J. Gould & W.L. Kolb (Eds.), Dictionary of the social sciences(p. 650). London:

Tavistock

Publications.

Zhong, M.(2019). Adaptation to American academicculture. San Diego, CA: Cognella. Zola, I. (1972).

Medicine as an institution

of social control. Sociological Review 20(4): 487504

ParT I

Perspectives on InformalSocial Control

xxvii

Introduction

A

s shown in the introductory

This first

set of readings starts

daily lives. To borrow

and social interaction. Behavior, informal,

chapter

(1913) famous

Henry and Lindsay

look at the social process for defining but it can also be political,

book, the scope of social control is broad.

with an exploration

Ehrlichs

Stuart

of this

law

M. Howard in the reading, Why behavior as unacceptable. This behavior

who break the rules.

perceived threats that have certain characteristics. The

of daily life People Ban

process can be

or ideas that are deviant and

Henry and

concept of moral panic in their article on banning behavior.

results in a reaction that

control that occurs in our

phrase this is the living

publicly identifying

developing rules for handling those

of informal

Howard also introduce

the

Moral panics are societal reactions to

moral panic, often fueled by media cover-age,

maybe based more on myth than fact. The

concept

wasfounded

by

Stanley Cohen(1973) in his book Folk Devilsand MoralPanics,to explain the panic over Mods and Rockers and conflicts condition,

who were two

in England in the 1960s.

media ... socially evolved or (more

its nature is presented in a stylized

accredited experts

culture

in various clashes

Erich

Goode and

elements of a moral panic.These

entrepreneurs

Norman

include

Ben-Yehuda (1994),

and threatening

arises, peaks and then declines. Critcher (2003; panics because it identifies

defining

a broader

Human Rights Policy in the article, Modes aspects of control

by the criminal

justice

based on their

approach in

book, build on

which they identify

of the threat

and the cyclical

toward

key

percep-tion

the perpetrators

posed by the behavior; pattern in

2017) calls this the attributional

characteristics,

Cohen, but it is clear that there is considerable at social control from

2009: 9). In addition

2017).

to society, hostility

of the perceived threat;

mass

ways of coping are

heightened concern over a cluster of behavior;

of the behavior, a shared consensus about the harmfulness and exaggeration

(Cohen,

by the

were active agents creating a panic in

public (Critcher,

a social constructionist

that the behavior is harmful

fashion

pronounce their diagnoses and solutions;

and a concerned

the idea of moral panic by taking

Looking

and stereotypical

often) resorted to; the condition then disappears

of a control

In their article

distortion

were involved

Cohen presented the idea of moral panic as a process: A

mass media, Cohen saw that moral

the context

that

episode, person or group of persons emerges to become defined as a threat to societal

values and interests;

to the

kinds of youth subcultures

which a panic model of moral

as opposed to the processural

model

of

overlap in the two approaches. global perspective,

the International

Council on

and Patterns of Social Control, includes the formal system, the health system, the

welfare system, and

2

CRIME, JUSTICE,

AND SOCIAL

CONTROL

urban planning entities. They focus on the impact justice system, there is a tension

of social control

on human rights. In the criminal

between public safety and due process rights of individuals,

is also relevant to view formal legal and government

actions from the perspective

References Cohen, S. (1973, 2009). Folk devils and Critcher,

C.(2003).

Critcher, C.(2017). criminal justice.

moral panics. London:

Moral panics and the

Moral panics. In Oxford:

Oxford

media. Milton

H. Pontell, (Ed.) University

Paladin.

Keynes, U.K.:

Open University

Press.

Oxfordresearch encyclopedias: Criminology and

Press. http://oxfordre.com/criminology/view/10.1093/

acrefore/9780190264079.001.0001/acrefore-9780190264079-e-155 Ehrlich,

E. (1913, 1936). Fundamental

Publishers,

New Brunswick,

NJ: Transaction

2002.

Goode E. &Ben-Yehuda, Blackwell

principles of the sociology oflaw.

N.(1994;

2009).

Moral panics:

The social construction

but it

of human rights.

of deviance.

Oxford:

ChaPTEr

WhyPeopleBan Behavior

1

STUARTHENRYANDLINDSAY M. HOWARD

I

n the previous chapter

we saw how deviance is variously

defined and how the

audienceplays a significant role in the deviance construction

Stuart

Henry

Howard, Behavior,

chapter,

wefocus

on the social process involved

in defining certain

as deviant, a process that is nothing if not political, (and/or

process.In this

condition)

interpreted

is publicly

as different,

as violations deserving of condemnation

1993: 85). Rule-making to control.

signified

also involves

in

behavior

which peoples behavior negatively

evaluated,

and control (Pfuhl

defining rule violators

and

pp. 24-44. by Polity

Why

an Lindsay People

Social

M. Ban

Deviance,

Copyright

2019

Press Ltd. Reprinted

with permission

and Henry,

as deviants, subject

Together, defining behavior as deviance and designating certain

people

as deviantsis referred to as banning. Perceived differencesthat are negatively eval-uated are the source of much banning. the difference

perceived

As we have seen in the previous chapter,

may be in behavior, ideas,

or appearance. Identifying

and defining a behavior draws it out from the vast array of possible behaviors as a special kind: one about

ajazz

which something

needs to be done.

Howard S. Becker,

musicianand sociologist, observed in his book Outsiders:

Social groupscreate deviance by makingthe rules whoseinfractions consti-tute devianceand applying those rules to particular people andlabeling them outsiders. From this point of view devianceis not a quality of the act a person commits

but rather a consequence

by others of rules and sanctions to an offender. The whom that label behavior that

has been successfully

applied;

of the application deviant is one to

deviant behavior is

people so label. (Becker, 1963: 9)

WhatKinds of Behaviors Are Banned? As we outlined in the first deemed unacceptable

chapter, the objects of banning are not only behavior

or offensive but also ideas and ideologies,

appearance and 3

4

CRIME, JUSTICE,

lifestyle.

AND SOCIAL

Lifestyle

CONTROL

usually contains

these before turning

elements of the other three.

to the social control

Well look

more closely at each of

process.

Banning Ideas, Thoughts, and Beliefs Not only are behaviors seen as deviant, but also ideas judged to betoo extreme are banned. and fascism

are two obvious examples; Satanism and cult

accepted, paranormal

Beliefs

dominant institutions,

a negative reaction from scientists (Goode,

are deviant if they fall outside the norms of acceptability

eccentric,

or dangerous in a given society

given society from

worship are others. Though

beliefs are deviant according to societys

challenge the view of science and invoke

(Perrin,

an instructors

or by the

widely

because they 2000). Indeed,

and are deemed wrong, irrational,

members of a particular

collectivity

within a

2007: 1140). Even within academic higher education, ideas that are deviant

line

of thinking

are often subject to censure, and students

quiet in classes where they suspect the instructor ideology.

Commu-nism

Exam answers

may be altered from

presented through instruction,

regardless

is partial to either

have learned to be

a strong left-or

right-wing

what might have been written to ascribe to the view

of alternate

views held by the student

or asfound

by the

students in published research. Consider the case of Harley Sanchez, a graduate student in alarge for her

masters degree in

marriage and family

one of the best in the country, of the

University

top professional

and so, already

of California (UC), graduate

program

schooled in critical social theory, in the issues that confronted

and the programs

cry from the critical thinking

marginalized

racism.

Harley found that the faculty favored education.

When Harley began to interject

their ideas. The

collective

opposition to her thought

other students and complaints

to the program

workshe

director

was a straight A

said in classes and via email that to be thrown officer,

out of the degree program.

Even her now

wanted wasfor

reformed.

Interestingly,

result

went all the

which intimidated

about

other students.

Harley wastold that anything she offensive

would cause her

way to the universitys

was objected to by other students,

ways that affirmed their

Harley to convert

for saying things

and

disciplinary

was extreme self-censure for fear that she would be

minimal participation

her to participate in the discussions in they really

And this

by

behavior.

when she wasreprimanded

other students in the program found

who endorsed the decision. The

in trouble.

in the program,

students simply

about her offensive

studentbut

racism embedded in practices and curriculum

As part of the conditions for her continuation

Over the course of three

her fellow

resulted in hostile and controlling

wasa shock to her, but nothing like the shock she experienced

institutionalized

what created the conditions

had to deal with, other students reacted.

challenging

not for poor

multiculturalism

students either reflected it or adopted it. In either case it was afar

Harley became the outcast in her classes and offended

put on probation,

campus

theory, and was well versed

by institutionalized

semesters,

This

aflagship

she was well suited to the challenges that a

her comments into the discussion and share her different ideas about

emails from

program is considered

degree from

critical race and feminist

of her UC undergraduate

for the problems that therapists

study-ing

would offer. Being of Latino heritage, at Berkeley she had been

Early into her program of study, however, and integration,

Her graduate

having a bachelors

Harley thought

particularly

those

therapy.

Midwestern university

to their

view of reality.

way of thinking

who wanted

It seems that

what

and show that she had been

Harley has since graduated and is now a supervising therapist in Santa Cruz

Chapter 1 |

Not only does such treatment

cause extreme stress and anxiety

and anger, it also shows that, even in the program,

incorrect

authoritative

thinking

Why People

Ban Behavior

and generate feelings

most mundane settings of a university

can be subject to banning and sanctioning

through

of frus-tration

educational

collective

and

social control.

Banning Appearances Similarly, appearancescan be banned and stigmatized. Obvious examples are people with disabilities, such as the blind, the crippled, the disfigured, or tattoos.

As Heitzig says, appearance

appearance

weidentify

and those

is a form

who wear outrageous clothes, hairstyles,

of nonverbal

ourselves to others and allow them to identify

society, this can be particularly

controlling

color, and pattern, are taken

Accessories such as shoes, purses/bags, communication development, violation to

of appearance.

make an identification

Indeed, simple

or deviance. (Heitzig,

with dyed jet-black

the restaurant

sanctions

want to shock yet they a preppie

university

want respect. student.

black eyeliner and ripped her ear didnt

of anothers

Consider the fol-lowing

pale skin and

Kelly wasin

Her hair

black tights

help ... The

appearance

clothes.

McDonalds

one

wasa black and straggled with some sort of black

scene resulted in afist fight How can someones

mini

outside dress

1999: 160)

as different

and offensive can lead to control

or

on the perceived offender. In this sense, appearance can be compared to behavior in that

it has a performance

effect on others.

children, it can be a powerful might be disturbing Sullum (2001) [b]anning

to those

Whenthat effect is negative, and particularly

weapon in the banning worried about the rising

process. For example, problem

if it is applied to

being obese in public

of obesity. In this context, Jacob

proposed: fat people from

Ideally, though, potential role Im

at social control.

on the end and they stay out of the

which brought the police and ended in arrest.

interpretation

1996: 353)

go to great lengths to pick and choose their

and appearance lead to so much trouble? (King, The

weight, muscle

wearer and the observers

hair or a bouffant,

hair until it stands straight

cross hanging from

wearer.

caused by a teens goth appearance:

mousse and gel their

mop. She had shocking

of the

as

are also part of the symbolic

allows both the

of sex.They

crap from

of clothing,

meaning as well ... the adherence to or

make-up, regardless

night taking

our

Because of our gendered

such as height,

appearance can result in censure and attempts

sun at all costs.They

t-. The

with

norms of appearance

Most of them are dressed in black

They

gloves, and jewelry

Physical characteristics

of conformity

account of the trouble

black

meaning. Items

as clues to the identity

breast size, and tans are imbued

of these informal

us.

... Through

of women:

Of course, clothing itself is a major source of symbolic well as cut, fabric,

communication

public parks,

where they set a bad example for the kids ...

we should be moving toward models who normalize

not talking

about a complete

a world in

which no child is exposed to

obesity and cause overeating to be approved ban on obesity. People would still

behav-ior.

befree to befat in

6

CRIME, JUSTICE,

AND SOCIAL

CONTROL

the privacy of their own homes (provided

they have no children);

allowed to go out in public until they slimmed

So, from this perspective, to banning childrens this doesnt

Weightis something your temple,

shaming

access to the Internet

Team

that

not be

down.

effects; this is similar

or suppressing their ability to view mutilated bodies. But

An Oregon church came under fire

Guidelines

exercising

would just

appearance is seen to have negative behavioral

apply just to children.

in its Worship

they

under the title of grooming

many people have to deal with. and eating properly

(New

for including

and hygiene: No

the following

Excessive weight.

Make sure that you are taking

Creation

Church, 2014: 4). In

(Andersen,

2014), and the newspaper

minister, she would ban fat

The

fat

has Steve Miller, presenter of the Sky TV show Fat Families, reported as stating: Fast

food restaurants should ban obese people from gorging on junk food to shock start their

prime

care of

England,

point is that

columnist

Katie Hopkins says that, if she were to become

people from the country

(McGeorge,

2015).

we make meaning out of appearance just as we do out of behavior

if these are viewed negatively in their effects, then a behavior, idea, or appearance stand out as different values.

weight loss

we seek to ban them.

or ideasand,

Clearly, what makes

or deviant depends on the audience and their

Whether a behavior is banned also depends on a social process.

Banning asInformal Social Control Wetend to think

of banning

as a formal

offended by behavior or appearance, process by vocal individuals their

power and privilege involves

example, consider

high-school

process in

which communities

but most banning starts out and continues

or groups of people

mostcommon

and rural

of which are jocks, preps, geeks, and nerds.

gamers, goths, gangstas, and posers (see tend to top the high-school valued. The following

social hierarchy in popularity

account illustrates

the social typing

or who is hot

in junior kids

werefull

of football

Othersinclude

are typically

The jocks

and to determine

linked

types,

dorks, dweebs, freaks, and cheerleaders what behaviors

process at work in this former

are inextricably

through

are

students

whois in

with others of about the same popularity

players and cheerleaders

with mild cases of Downs Syndrome,

retards

United States.They

As an

and

and whois not:

high school ... kids only ate lunch

A-tables

others.

according to various social

www.urbandictionary.com).

school and shows how deviance and conformity who is out,

part of retaining

policing the boundaries that separate them from

students in the suburban

are

as part of an infor-mal

with power and privilege;

organized into a social hierarchy of peers who rank themselves the

or whole societies

and so on, E-tables contained

what in the language

of the time

... the

we called

... Everyone in the school knew exactly how popular everyone else was,includ-ing

us... Other kids opinions becometheir definition of right, notjust for clothes, butfor almost everything they do, right down to the waythey walk. And so, every effort they maketo do things right

is also, consciously

or not, an effort to be more popular. (Graham,

2003;

emphasis added) Those prevailing

who are popular set the values that others should follow, socio-cultural

norms about

masculinity.

So, in

which tend also to be shaped by

US high schools, physical strength

an

Chapter 1 |

attractiveness

are valued, as are certain

in attracting Boys who dont themsuch

good-looking

female students,

as being weak in physique,

mayfeel they are empowered to select.

having acne, studying,

being obsessed with computers

well have more to say about the social construction

and then control

Hereit is important

them

behavior or appearance is different. They

ways that contradict and

groups social interaction.

the effects of social exclusion on the excluded. establish the norms

whom they

of manly success or behave in

excluded from the popular

In later chapters,

Ban Behavior

kinds of style and dress. Boys also value being able to suc-ceed

possess these characteristics

technologyare

Why People

by attacking,

what is the process that leads groups or individuals

to recognize that powerful

taunting,

do this informally

of social stereotypes

groups

and disparaging those

and, ultimately,

to ban and condemn

and

whose

can do so formally.

So,

others

behavior, ideas,

and intention,

often to prevent

or appearance?

BanningBehavioras A SocialProcess Banning

may be accomplished through

asserting a positive direction

health hazards and protect people from example,

banning

harmful

may be done to protect

from environmental

consequences that

usfrom

hazards or food-borne

human cloning

contaminants.

of banning as a reactive rather than a proactive

behavior,

as unhealthy

appearance,

unorganized around

peoplesuch

ordinary

community

interests

groups, and self-help

Coalition to

prostitution),

and

or appearance such as obesity,

student example.

or for advocacy, or mutual-aid

as with

NORML (National

offended,

example. They

or unsettled. They

to their

are people

of

educational, UP (AIDS

group organized to Marijuana

Laws).

banning actions create, as wesaw

who perceive harm or feel threatened,

be noted that, for organizations

which are

associations,

Health), ACT

for the Reform of

see banning behavior that they find

problem. It should

and

Old Tired Ethicsa

Organization

exam-ple,

made up of groups

members of residence

Such audiences are no less social types than the social types their with the high-school

to think

However, they can also be formed

on Smoking

Off Your

or

by audiences against some

groups organized to lobby for their

COYOTE (Cast

For

altered foods

more common

Audiences are often

causes. Examples are ASH (Action

Unleash Power),

However, it is

Banning, then, is action taken or imagined.

as our high-school

citizens

moral, or political

legalize

and deviant.

or threatreal

or genetically

process, and often both are combinedfor

when banning extends to behavior such as smoking both treated

might arise in the future.

unacceptable

powerless,

as part of the solu-tion

such as COYOTE

and NORML,

their objective is decriminalizing a behavior they believe is acceptable, since they consider that the law criminalizes

what they claim is victimless

significant

changes in the laws banning

including

Colorado,

legalized

Oregon,

its recreational

Washington,

Alaska,

and rule-making

may begin

sense of danger and a belief among the fearful Moreover, the problematic

can be accomplished enforcement.

California,

By 2016 NORML

had contributed

to

United States, where several states, and the

District of Columbia,

have

use.

The process of banning

away by itself.

behavior.

marijuana use in the

by creating

new rules

with fear but quickly

moves to a shared

that the behavior in question is not going to go

behavior is believed or by strengthening

controllable, existing

and its control

ones through

extra

8

CRIME, JUSTICE,

AND SOCIAL

Well look first

CONTROL

at the people who create rules and ban behaviorcalled

then at how they create moral ban.

panics in furtherance

Well then examine the way the

mass and social

moral

of considering

entrepreneursand

the behavior they seek to

media partner in the rule-creating

process.

Moral Entrepreneurs Howard

Becker eloquently

enterprising

moral

describes the rule-making

by

entrepreneurs:

Rules are not made automatically. sense to the group in

Even though

a practice

may be harmful in an objective

which it occurs, the harm needs to be discovered

People must be madeto feel that something the publics

process used by audiences as being led

attention to these

and pointed

ought to be done about it. Someone

matters, supply the push necessary to get things

must call

done, and

direct such energies as are aroused in the proper direction to get the rule created. is a product

out.

Devi-ance

of enterprise in the largest sense. (Becker, 1963: 161)

Moral entrepreneurs

make rules

and by presenting these,

by changing

the

meaning that activities

with the help of pressure groups, through

media in a way that gains the publics attention. This of the behavior to create fear and concern.

have for their the

is usually by exaggerating

An example is the banning

par-ticipants

mass and social an extreme form

of alcohol consumption

on

the beaches of San Diego, California. The

year 2008 saw the culmination

that had sought to ban drinking in southern

California,

residents,

supported

incidents,

including

(Mothers

some folks

as the beach

alcohol at the beach. As part of the social activity

and bar owners,

publicly

alcohol-free

beaches.

closely linked

to violence.

neighborhoods,

by several prominent interest

Officers

Association. These

Using government Drawing

statistics,

on local

of the entire citys

on the beaches was undermining residents

problems.

have complained

which led to the

groups gave several reasons for supporting they claimed that Alcohol

police crime

alcohol-related the community

of public urination,

Oceanside, Carlsbad, Imperial

consumption

data, they asserted that the

arrests. They

claimed that alcohol con-sumption

and using excessive police resources:

vandalism,

noise, and other alcohol-related

Beach, and LaJolla have banned alcohol consumption officials report a reduction

problems, as well as more diversity in the composition

of beach crowds

org/beaches.shtml;

website no longer

was also a statement that teen parties

alcohol, presumably

on the beach, were associated associated

sexual assault, suicide,

active). There

(www.alcoholpolicypanel.

with youth alcohol problems are unwanted and

pregnancy,

HIV and other STD transmis-sion.

Beaches provide appealing settings for underage drinking. The

on

in alcohol-related

with a host of problems:

homicide, scholastic failure,

is

Mission

arrests asthe rest

public beaches with positive results. Law enforcement

Some consequences

of

groups, such as MADD

Beach and Pacific Beach areas of San Diego had three times the rate of violent

Beach

and beach cul-ture

Driving), the San Diego County Policy Panel on Youth Access to Alcohol,

and the San Diego Police

of the city and one-fifth

booze ban,

was a series of what were argued to be rowdy

urinating in surrounding

ban was supported

Against Drunk

known locally

alcohol had been consumed in public for years. A growing concern

by restaurant

banning campaign. The

of a campaign,

beach atmosphere i

using

Chapter 1 |

a major contributor

to the drinking

culture

of San Diego. Allowing

Ban Behavior

alcohol consumption

on our beaches encourages a dangerous social norm of complacency and binge drinking.

Why People

towards

To make matters worse, police officers often cannot

underage

be certain

which

drinkers are and are not 21and over. Researchillustrates that banning alcoholfrom beaches is an effective wayto reduce alcohol-related problems,especially among youth ... making our local beachesalcohol-free is an example of good public policy based on a public health and safety necessity. Experience shows that once bans are in place, drunk and disorderly behavior is greatly diminished, and the beach becomes a serene and safe place where families and others can enjoy the ocean environment. Pleasejoin law enforcementofficials, community groups, and San Diegoresidentsin makingour beachessafer and healthier placesto live in and visit for all! (San Diego Alcohol Policy Panel, 2009)

In the spring columns

of 2008, alcohol ban advocates appeared

and on local

with drinking

TV and radio talk shows debating the issues.

advocates in newspaper

Drinking

advocates argued to

no avail that previous bans had concentrated the problems into afew areas where bans did not exist, thus exaggerating them, and said there rowdy local

behavior. The

were already laws that governed problems associated

moral entrepreneurs

eventually

councils to support the ban, and this

celebrated

by the advocacy

succeeded in their

was eventually

a truly

group:

momentous victory in the fight

in San Diego County ... providers decade.

with

by persuading

secured by the passage of a proposition

It has been along road, and the passage of Prop Dthe initiativeis

campaign

Our panel

San Diego alcohol-free

against underage and binge drinking

members, community

partners,

and staff have been advocating for alcohol-free

Weencountered

many obstacles along the

beaches

way,including

county-funded beaches for

the defeat of Prop Gin

2001. True social norms change takes time. If it werent for your tireless, collective over the yearsmobilizing

local

neighborhoods

in the face of heated public oppositionwe

and speaking to the

wouldnt

that united to put public health and safety first.

about alcohol ... The

in

efforts

media time and again

be here celebrating

a diverse city

Today we can all applaud

the single greatest achievement in the San Diego County prevention efforts to change the environment

pre-vention

well over a

what may be

systems coordinated

which young people gain access to and

make deci-sions

open bar that is the beach, is now closed. (San

Diego Alcohol

Policy Panel, 2009) As we have seen, similar assisted suicide, abortion,

campaigns

have been waged against smoking in public places, as well as

and drug use in general. The

those seeking to ban various behaviors forces in a political

are right

point here is not whether the arguments

or wrong but how these interest

campaign to bring about the resulting

moral campaigns to create or change laws against certain and symbolic

goals.The instrumental

as well as some that are implicit.

motives.

changes in public policy. These behavior have both instrumental those stated explicitly

of

marshal kinds of goals

in the campaigns,

In the case of the beach booze ban, this includes increasing restau-rant

and bar trade, because alcohol symbolic

goals are typically

groups

must be consumed

on licensed

premises.

Less obvious are the

10

CRIME, JUSTICE,

AND SOCIAL

CONTROL

Banning Behavior: Symbolic Motives The

symbolism

respective

of underlying

supporters

rule-making

activity

often hasto do with status conflicts

and defenders of the ban. Here, the goal

a social groups position in the society, asJoseph in the case of the early twentieth-century a status economic

marker for

middle-class

dominance

law

Womens Christian

which groups are in control

of a smoking

pattern to the San Diego California also reflects the different

to a smoke-free

environment.

class, including

were representatives

California,

middle class. Clearly there

groups in the social order: smoke damages

occupational

Ultimately,

of the prestigious

strata

smoking in public facilities, including

of status quo defenders,

was an instrumental

was stigmatized

quality to the

virtues

Whether it is instrumental

or symbolic,

public issues is necessary if their In this

candidates in a political

campaign.

are those bans claimed to increase

ban symbolically

amplified the pur-ported

and Holmes, 2006: 158)

the conversion

partner is the

mobilizing public Moral entrepreneurs

health or freedom.

the

the communitys

of some groups

private to

warrant

moralities into moreformal

media, which, as we shall see later, can act for agitating it.

moral support is as wide as that available to can promote their case for a behavioral

by associating their proposed rules with positive values or benefits to society.

for those advocating for un-banning,

ban-ning

ban symbolized

demonstrating

either as a forum for the display of concern or as an instrument Clearly the range of strategies for

with the less edu-cated,

as a public health hazard

concern is to gain sufficient legitimacy

process, a principal

in the Shasta

associated

and bars.The

visibly

behavior. Further the smoking

of the abstinent lifestyle. (Tuggle

damaging to

was codified in the ordinance

restaurants

deviant status of cigarette smokers, the prohibition of their

knowl-edge

crusade. In contrast the small

alifestyle

and targeted for coercive reform. Its deviance status

condemnation

have a consti-tutional

moral entrepreneurs

many respects, the status conflicts involved

ban were symbolic ...

less affluent, lower

shows a similar

below reveals, the ban

and bar owners stance, because they saw the ban as potentially

County smoking

may be taken

members officials from the local chapters of respected

of the national anti-smoking

business interests ... In

may

their argument in the principle that people have a right

who were at the core of the opposing coalition

the traditional

of a new

and Henry, 1993: 89). For example,

ban in Shasta County,

ban campaign

at the forefront

business owners,

(Pfuhl

wherever and whenever they seefit ... The

among their

their

though it

ones values and interests

Status quo defenders countered that smokers

who engineered the smoking

rule-making.

would threaten

moral order of a society: Even

and social statuses of the competing

grounding

right to indulge

their

of the

crusading for the ban argued that secondhand

public health, implicitly

restaurant

social and

Movement, they pushed to have alcohol

beach booze ban, but, as the account

economic

Moral entrepreneurs

represented

Temperance

moral stature or social status

of the implementation

organizations

were passed more as

Catholic immigrants

merely having alaw on the books reflecting

as a measure of a groups analysis

demonstrated

the United States. In such cases, a change in law or the implementation

maysymbolize

not be enforced,

the

laws. These laws

or under-pinning

Americans to demonstrate their continued

in the face of their fear that Irish

moral control. Through banned throughout

Gusfield (1963) hasforcefully

US Prohibition

Protestant

between the

may be about establishing

Importantly,

asin decriminalization

Particularly

ban

popular

the same strategies can be used

Chapter 1 |

The

case for legalizing

medical

marijuana

compared

marijuana, for example,

as well as on the overstated

with the effects of the legal

by associating the continued threat to the

marijuana legalization

members of society or by recruiting

when

can be achieved

with negative values, pointing to its

society.

Again, the advocates against

from the public

their testimonies,

to legalize

Campaign to

included

Arizona,

co-founder from

the Vermont senator

legislation

Other supporters

with

themselves.

the Brady Bill. Snoop

Regulate Marijuana Like Alcohol.

hurt to have support

marijuana includes

Sanders, who introduced

alliances

or even the individuals

marijuana in

president of Facebook, PeterThiel,

George Soros. It cannot

by establishing

Heston and Clint Eastwood were drawn in to support the National

the initiative

Marijuana Policy Projects

of legalizing

powerful impact

attack on attempts to ban assault rifles through

an advocate supporting

Parker, former

A similarly

of organized

can draw respectability

For example, the actors Charlton Rifle Associations

health benefits of

negative effects on social users, especially

drug alcohol.

or moral fabric

Ban Behavior

madethese kinds of arguments.

Moral entrepreneurs respected

was based on the positive

existence of questioned behavior

mental, physical,

Why People

in 2015 that the former

which was backed by the Other advocates are Sean

of PayPal, and the billionaire finan-cier

public elected officials,

which in the case

and 2016 US presidential

would have ended the federal

governor

Dog was

of

candidate prohibition

Minnesota Jesse Ventura,

Bernie of mar-ijuana.

whose book

Marijuana Manifestoadvocatesthe legalization of marijuanafor both medicaland recreational purposes, and the prime that

would

minister of Canada Justin

make recreational

marijuana legal in

Canada

In the case of banning behavior, any endorsement towards

a complete

ban. Any myth-making,

aspects of the behavior social types

or fake

or to help hang the activity

will help their cause.The

of the populationin

strategy

Donald Trumps

Trudeau,

who in 2017 introduced

by early 2018 (Williams,

2017).

by public officials takes the rule-making news,

case

which can be employed to exaggerate

on the backs of already recognized

of creating moral

case,

legislation

Muslims and

panic

undesirable

and of demonizing

Mexicansis

sec-tions

also used and can

be based on fact or myth.

The Creation of Moral Panics In the previous chapter

weintroduced

the concept of moral panic,first

coined by the British sociol-ogist

Stanley Cohen(1972) in his Folk Devilsand MoralPanics. Cohen described the demonization through the

mass media of the 1960s Mods

claimed to threaten idea that certain

valued

British cultural

groups are folk

devils

and Rockers,

teen rebel groups whose behavior

norms. In general,

doing evil, regardless

moral entrepreneurs

was

promote the

of whether any serious harm exists.

According to Erich Goodeand Norman Ben-Yehuda(1994), in MoralPanics: The Social Construction

ofDeviance, moralpanicsaresocietalreactionsto perceivedthreats, whichhavecertain characteris-tics. They

have volatility

and alife cycle in which they suddenly appear in the

among large sections of the population, panic around child abuse

US private and abusing

blood-drinking,

and then decline just as rapidly.

day-care providers their

cannibalism,

was claimed,

One example is the 1980s

were engaging in satanic

ritual

very young charges in satanic rituals that included such practices as

and human sacrifices

began in 1983 and ended in 1991 and involved wereinvestigated,

who, it

media, spread rapidly

charged, and in

(de Young, 2006: 163; 1997). These

over 100 day-care centers

many cases convicted

nationwide,

accusations whose staff

and given long prison sentences.

1

12

CRIME, JUSTICE,

AND SOCIAL

An important entrepreneurs,

issue in considering and social

deviant. The

Claims-makers

the rule-creation

Ray Surette describes how this claims

are the promoters,

in forwarding

activists,

professional

are ascribed to those

condition

a process of claims

different

claims-makers authorities

problems.

social condition,

can be constructed

implies

as many different

detect disease, and criminal

presenting these claims aslegitimate

justice

to significant

social roles and ideologies

HIV/AIDS. Third,

historical

involves

seen as morally problematic

supported

defining strategies, tactics, and mobilizing the support

moral panics also gain public legitimacy in discerning

cases of the feared was comprised

claimed to be able to identify

determining

the satanic

business people, politicians,

professed expertise

by a newly generated

body of materials.

borrowed from

paganism and witchcraft ... They

of social

workers and mental

menace by reframing

... in identifying

child

therapy ... a burgeoning

and counterclaims

Following the initial of the behavior, one California

victims,

revelations,

preschool

members (de Young, 2006: 165).These

a wholly synthetic

indicator

lists

lists

disseminated

via local

who appeared

mysticism,

to guide the course of their

was deeply dividing the professional field

a moral panic spreads through

into

1667)

an increased identification

In the case of satanic ritual

news medias sensational on television

out of

to assist other profes-sionals

and spread to over 100 child-care facilities

the experts

officials and was

diabolism

makers, believers and skeptics. (Ibid.:

which build into a wave.

words

Mary de Young describes the process:

and symptom

critical literature

the

as well as against

eclectic sources on Satanism, the occult,

constructed

and policy.

of key groups.

behavior in question. In

was bolstered by attorneys and law-enforcement

developed and widely disseminated

materials haphazardly

claims-makers

and family

how to

through the emergence

as young as two years of ageinto accusations against their providers,

Professionals

and, second,

least through the news media. In

a moral problem involves

abuse, this group of experts

health professionals. They

professionals

a

beach campaign, the issue wastied to teenage suicide,

contesting counter-claims

who profess to be authorities

others, including

medical

moments but also involves, first,

audiencesnot

a key task in framing

Goode and Ben-Yehuda say that

of children

where moralists see sin,

personnel see crime. (Surette, 1998: 89)

address the problem to bring about a desired outcomeby

the case of satanic ritual

of

So, in the alleged day-care sexual abuse example, the

wasto Satanism. In the alcohol-free

of experts,

draw attention

can gain moretraction for the veracity of their assertion if the questioned

behavior is tied to other issues of concern.

Fourth, claims-making

but which char-acteristics

do morethan

of problems;

not only occurs at certain

this process, claims-makers

process determines

social problems ... and each construc-tion

policy courses and solutions. The

then,

works.

Social problems emergebecome making.The

Claims-makers

process of assembling claims about behavior or conditions

sex, and

moral

they shape our sense of what the problem is. Each social

affect their characterization

Claims-making,

linkage

making

which phenomena come to be designated as social problems,

to a particular

groups,

experts and spokespersons

specific claims about a phenomenon.

a focus for concernthrough not only

process is how interest

movements establish claims about the behavior that they consider to be

criminologist

involved

CONTROL

abuse, accusations nationwide. The

coverage of the latest revelations,

of cases began at

concern

was

supported

by

talk shows and news magazines and testified

as exper

Chapter 1 |

witnesses at trials. Joining them formed

anti-child

werethe parents of the allegedly victimized

abuse interest

Moral panics such asthis produce an intense

1

children, some of whom

as witnesses in criminal

trials).

hostility towards the accused, who are depicted as

As enemies, they are then persecuted. In the alleged child abuse example, this

resulted in public vilification sentences.

Ban Behavior

groups, such as Citizens Against Child Abuse, Believe the Children,

and CLOUT (which lobbied for children to be allowed to testify

enemies of society.

Why People

via the

media and convictions

Moral panics also feature

seriousness of the threat. In

by the courts resulting

systems to assess the

moral panics, there is typically

moral feeling

in long prison

of the public about the

a disproportional

fear relative to actual

harm caused.Indeed, Jeffrey Victors study of child abuse,reported in SatanicPanic(1993; 1998), shows that deviants,

moral panics need not be based on reality. They whose existence gains credibility

claim expert knowledgeparticularly these panics are likely to occur authority,

in the eyes of the public

when authorities

of science or medicinelegitimize when competing

bureaucratic

based on imaginary and those

the accusations.

which organizes Finally,

in an existing

Moreover,

agencies are vying for jurisdiction

offlaws

critics had exposed 1993).

demonology. That

serves as a master cognitive

problems, gives meaning to them, explains them,

moral panics tend to unravel

the exposure

in identifying

of

majorflaws

begins to emerge. In the child

in the process and accounts that had silenced its to the death of the panic, including

workforce and in day-care licensing

and operational

many of the charges against alleged offenders

were overturned panicsto

on appeal.

Overall, the phenomenon

abuse case, the most vocal critics

changes in the number

practice, such asinstalling

were dropped

on their

ability to

mass media play a significant

make credible claims,

1997).

and previous convic-tions

of moral entrepreneurs

establish rules and laws as a means of controlling

frame

occurs, or when

video cameras and making day care more open and accessible (de Young, 2006: 1678; In the end,

with

and offers solutions.

when a backlash against the persecution

the problem

Other factors contributed

of women in the

the

who

when methods of detection result in errors, and when there is a symbolic resonance

a perceived threat identified

(Victor,

can be constructed

creating

what they see as undesirable

and that too is a political

moral behav-iordepends

process in

which

role.

The Mass Media and Public Policy Ray Surette (1998) is reciprocal,

has pointed out that the relationship

with each affecting the other and

change to reflect culture

and society.

between the

with the

media evolving

massand social

and popular culture,

where they are used not only to inform,

(Altheide,

with social and cultural

Competing claims about a social issue or problematic

are played out in the entertainment

mass media and social culture

behavior

media. Crime and deviance comprise alarge part of television

2007: 1107). Some of the

as in news,

most popular television

but also as a source of shows are crime, police,

or court dramas, such as The Sopranos, Law and Order, CSI, Boston Legal, Bones,Castle, Criminal Minds, The Hunt, Dexter, Breaking Bad, Hannibal, The Sopranos, The Wire,etc. Network news is aforum in which claims-makers the

media themselves

are a collection

of competing interest

each vying for the top stories and using the tried Indeed,

news media and televisionespecially

and sensational

stories

compete for the publics attention.

about problems

groups,

and tested formula

local news mediaare and issues related to

particularly

However,

the news

media,

that, if it bleeds, it leads. interested in dramatic claims

major cultural

tropes.

As a result,

14

CRIME, JUSTICE,

AND SOCIAL

CONTROL

not all news is covered; news editors filter or organized

sponsors,

that form media relations these interest including

and

groups is to

likelihood

visual and auditory

of emotionally

loaded

positive values,

nurtures

Part of the job

of

with regard to

presentational

of coverage, and the orientations definition

style,

of those

(meaning)

linking

public

media by powerful

claims influence

interest

own aims

by linking

groups, supported

where a senior politician

policy to reflect the views

sought

dramatic,

a cause with (or disas-sociating

try to denigrate the opposition

are tied to the claims

of claims to policies involves

a simplified,

use

it

with with neg-ative

Henry, 1993: 95)

particularly

and solutions

with or contradictory

positive values ... In addition to aligning their

of the

is designed to shape

or decrease the

may also be generated by careful

words or images, and selectively linking

and

spin-doctors,

stimuli it is possible to increase

will perceive a situation to be consistent

moral entrepreneurs

manipulation

(Surette,

that

particularly

a variety of strategies, including

or principles ... Legitimacy

existing

values. (Pfuhl

The

media exposure,

positions, the amount

that an audience

it from)

The

news releases and expert sources. of their

media. Orga-nizations

specialty

By altering these elements, the image and the desired

standards

Policies

Without powerful

ties, it is difficult to break into the

managethe quality

to recognized

through

others.

may be affected:

Further, by varying

This

channels for

of contradictory

and promote

must develop a public relations

critical facts, through

the facts.

of an issue

public issues

and establishes

the sequencing reporting

without journalistic

around

or excluding

out some items

claims

or president is spin-doctor-in-chief,

of these groups. of the successful

As Ray Surette notes, winning

construction.

makers who often describe a social problem in

worst-case scenario launching the formation

by and facilitated

media-based

moral crusades and panics.

of social policy, and the solutions

1998: 11). Surette says there is research

evidence showing

that are seen as workable that the greatest impact

the

media makeis on raising the fear of crime among the population and on shaping criminal justice policy, called agenda

building.

Surette argues that the 1930s view, that the inject information

models of the effects of mass media campaigns media was a hypodermic

and attitudes

media merely reinforced belief emerged that the

pre-existing

existing

by its

opinions

medias impact

the notion that the types of people influenced

attitudes, it could

kinds of media affected

By the 1970s the

also (1) form

attitudes

around

held attitudes

weakly held

with new facts; and

(Surette, 1998: 200). The important

point is that

citizen awareness and attitudes

the kind of awareness and attitude that

were

and strengthen-ing

new issues; (2) change

selected attitudes; (4) change strongly

including

whether they

medias effect is strongest in reinforcing

mass medias impact is seen to be greatest in generating

new problemsprecisely

be used to

was affected by social and social demographics,

(5) suggest new responses and policy directions the

mechanism that could

to a view in the 1950s and 1960s that the

held by members of the public.

who viewed different

messages. Although the

attitudes; (3) strengthen

needle-like

directly into the public,

on the public shifted from

moral entrepreneurs

about

are intent

on generating. Surette says there are three the significance

of crime

areas of importance.

and deviance

The first

is the role of the

as a public issue relative

to other issues,

media in raising which is called

agenda setting. The second is shaping the publics beliefs and attitudes about crime, called agend

Chapter 1 |

building,

which resonates

of crime victimization

with the activities

encourages

of moral entrepreneurs.

Why People

Ban Behavior

Here, a disproportionate

1

fear

moral crusades against specific crime issues, heightens public

anxiety about crime, and pushes or blocks other serious problems ... from the public agenda (1998: 203).The

third significant

empirical

connection

entrepreneurs

area is the

medias influence

between the fear of criminal

on criminal justice

victimization

and

policy.

Given the strong

mass media influences,

moral

who emphasize and exaggerate the fear of crime have an obvious and clear strategy

to bring about changes in policy. The

relationship

reciprocal

one in

between claims-makers, which the

of policy formation.

In other

ongoing relationships public officials

words, the

with other local

(Surette,

and policy-makers,

public opinion

mass media are themselves

draw on the cases that

justice

including

moral entrepreneurs

policy

policy

policy

process involves journalists

each of whom co-produce

policy is a cooperative,

making actors in the politics

media shape criminal

claims-makers

1998: 214).This

and public

claims

outcomes,

by

establishing

makers, lobbyists

collaborating who canand

and

with officials dochoose

to

with their

own

bring before them and that resonate

policy aspirations. It is important come through

to point out the changing form of news and entertainment,

social

media. Some newspapers

have

which hasincreasingly

moved from traditional

print to fully

digital

content(e.g.the ChristianScienceMonitor),and othershavebeenlaunched only online(e.g.the Voice of San Diego).Regardless of the shift in form, these news organizations still rely on links through reporters to influential experts, and the processof makingthe newsto changeideas, views, or policy towards

banning behavior is as we have described it in this chapter.

Ironically,

the Internet itself

has also become a subject for

want it banned or controlled views, or violence.

While many use social

topics, those opposed putting

moral panic, as some

mediato follow trends

comes from phishing,

in

even adultsat which the social

risk.

moral entre-preneurs

having access to pornography, or learn

extremist

more about current

might argue that it allows for complete strangers to interact

unaware childrenor

information

to stop children

news

with each other,

Another risk that feeds the desire for control

media user is seduced into

providing

compromising

that the phisher exploits.

From Banning Behaviorto Making Laws Ultimately, as indicated

in the case of Prohibition,

powers of the state can be captured, question. This societyon

will empower the

will be metif the

meaning that laws are passed to criminalize

the behavior in

majorlaw-enforcement

behalf of those groups

be said to have established

the goal of banning a behavior

with immediate

agencies to actin

concerns.

the name of the whole

At this point, the interest

an official ban against the behavior.

To accomplish

this,

group can moral entre-preneurs

need to use power. Sofar,

we have beenlargely

using behavior as an example of the banning

seem too far-fetched

to consider the banning

state of

where House Bill 282, sponsored

Mississippi, salesman,

madeit to the

would have banned restaurants 30 (for example, for

from

of appearance.

However, this

by Representative

Mississippi State House in January serving

people

a person of 5ft 9 in. tall, this

with a BMI (body

process, and it

might

was proposed in the

Mayhall, a retired 2008. The

proposed law

massindex)

would be anyone over 203 lbs).

phar-maceutical

higher than

Under the bill,

16

CRIME, JUSTICE,

AND SOCIAL

CONTROL

restaurants

would be monitored for compliance

in violation

of the law

by the State Department

of Health, and those found

would have their business permits revoked:

State of Mississippi HOUSE

BILL

NO. 282

An act to prohibit

certain food establishments

is obese, based on criteria

prescribed

the department to prepare

written

determining

from serving food to any person who

by the State Department

of Health; to direct

materials that describe and explain the criteria for

whether a person is obese and to provide those to direct the department

with the provisions

to

materials to the food estab-lishments;

monitor the food establishments

of this act; and for related purposes.

for compliance

Beit enacted by the legislature

of

the state of Mississippi: SECTION (1) The

1.???

provisions

of this section shall apply to any food establishment

to obtain a permit from the State Department (f), that operates primarily

that is required

of Health under Section 41-3-15(4)

in an enclosed facility

and that hasfive

(5) or more seats

for customers. (2)

Any food establishment

to

which this section applies shall not be allowed to

serve food to any person who is obese, based on criteria Department

of Health after consultation

Prevention The

and

Management established

State Department

Afood written

Mississippi Council on Obesity

written

materials that describe

whether a person is obese, and shall

materials to all food establishments

establishment

by the State

under Section 41-101-1 or its successor.

of Health shall prepare

and explain the criteria for determining provide those

with the

prescribed

to

which this section applies.

shall be entitled to rely on the criteria for obesity in those

materials when determining

whether or not it is allowed to serve food to

any person. (3) The

State Department of Health shall monitor the food establishments to which

this section appliesfor compliance

with the provisions of this section, and may

revoke the permit of any food establishment that repeatedly violates the provisions of this section. SECTION This The

2.

act shall take effect and bein force from and after July 1, 2008. Mississippi Bill

wasin fact defeated. But Japan that same year passed the Metabo

based on the fear of metabolic rising

health resulting

health costs for the obese elderly.

government-mandated attend a combination and motivational

withfines

Now 40-to

waistline (33.5 inches for of counselling sessions,

support.

measurements of the entire time,

syndromepoor

from

75-year-old

Japanese

men and 35.4 inches for

monitoring through

Obesity is policed through

an annual

population,

arefined

and employers

going to fund elderly care (Anderson,

obesityand

law,

the conse-quent

muststay below a

women) or be required

to

phone and email correspondence, mandatory checkup

of the waist

if employees are overweight

2014; Oda, 2010: 2645)

over

Chapter 1 |

However, even if law is not the outcome as science, religion,

education,

and public

in the social construction and agencies are themselves whether these interests

opinion

of deviance.

groups

emerges is some compromise

and they

such

for

protag-onists

that these institutions

may divide on the issue, depending

by the existence

to graft their interests

Ban Behavior

institutions

accomplishment

must not be forgotten

or threatened

positionnot

process, captured

are a significant

But it

with interests,

are advanced

very least, such groups are likely

in

of a banning

Why People

of a proposed

onto the proposed

ban. At the

ban such that

necessarily the one that the original

what

advocates

had

mind. Not surprisingly,

the chances of resisting the ban are considerably

in the behavior, or those campaign.

improved

who wish to see us remain free to choose it, engage in a counter

In this context,

controversy,

rather than

consensus,

political

can be claimed. In such circum-stances,

the law becomes a weapon in the battle between competing interest conflict

if those engaged

groups and can create

by being a resource to be won.

Summary and Conclusions In this

chapter,

selection cliques

we have seen that

of what it finds or

different

more powerfully

enforce their

rules

are created to ban behavior

and offensive.

organized

can occur through

a hierarchy

involves

process of escalation

a political

or unacceptable.

of domination that

entrepreneurs

mobilize the

claim through

moral panic and fear of harm

through

enacting

or decriminalization with the example

law. It should

of the legalization

what causes people to behave in

follows

groups. In either

and exclusion.

officials

For

groups, this groups, it

to create public interest

the same political

ways that others find

case, they

more organized

process,

in their

un-banning

process, as we have indicated

USA. In the next chapter, offensive

Moral

of banning the behaviorpref-erably

that the reverse

of marijuana in the

social

problem to a public issue.

with the objective

not be forgotten

organized

In the case of informal

moves a private

mass media and public

or legalization,

banning in the first

Audiences can be informally

official interest/advocacy

view of what is acceptable

based on an audiences

and that

we will see

many believe causes

place.

Further Reading Becker,

Howard (1963)

Outsiders,

pp. 118 in

The Outsiders: Studies in the Sociology of Deviance. New

York: Free Press. This

is the first

chapter

of Beckers

establishes that actors

classic work that laid the basis for labeling

who break social rules are labeled

may be outsiders in the eyes oflabeled

Becker based hisideas on studying piano in ajazz

band.

actors. Thus,

outsiders

by audiences

author

but that audi-ences

he pointed to the relativity

of deviance.

marijuana use by jazz musicians while he was himself playing

He showed that engaging in a deviance

symbolic reorganization

theory. The

can result in labeling

followed

of the self into a masterstatus, and eventually a deviant career.

by a

1

18

CRIME, JUSTICE,

AND SOCIAL

CONTROL

Chriss, James J. (2013) Social Control: AnIntroduction. 2nd edn, Cambridge: Polity. This

book takes a broad view of social control in the deviance-making

criminal

justice

is only one form.

and education,

especially the

Chriss shows how social control practices

other forms

such as psychiatry,

of mental illness,

contemporary

examples from

social

work,

as medical social control.

permeates society, from the highest structures

of small groups, and includes

and racial

Erikson,

It also considers

diagnosis and treatment

process, of which law and

of power to the

anti-terrorism,

hate crime,

profiling.

Kai T.(1966)

Wayward Puritans: A Studyin the Sociologyof Deviance. Boston: Allyn & Bacon.

Erikson usesthe Salem witchcraft trials in the Puritan settlement of the seventeenth-century Bay Colony as a setting to demonstrate how designating

deviance

can establish, reaffirm,

can be fused into common courts

martial,

or psychiatric

and celebrate these.

moral values through

criminal

Mas-sachusetts

of moral boundaries

and

He shows how private senti-ments

trials,

excommunication

hearings,

case conferences.

Goode, Erich, and Norman Ben-Yehuda(2009) edn, Chichester:

the societal functions

MoralPanics: The Social Construction of Deviance. 2nd

Wiley-Blackwell.

The authors build on Stan Cohens classic Folk Devilsand MoralPanicsto expose the role of public fear, moral entrepreneurs, the mass media, and the significance of experts in substantiating truth claims about emerging on contemporary shootings, flag

waves of perceived

examples, including burning,

work in showing

This

terrorism,

how deviance is socially

public

the 9/11 attack on the

and the early 2000s resurgence

Henry, Stuart (2014) Deviance, Thousand

deviance that threatens

well-being. They

draw

World Trade Center, school

of the sex slave

scare. This

is a central

constructed.

pp. 2615 in Encyclopedia of Criminal Justice Ethics, ed. Bruce A. Arrigo.

Oaks, CA: Sage.

brief overview

of the

way deviance is defined and constructed,

which includes

a review

of

ethical issues in social control, considers controversial issues around deviance, such asthe role of positive deviance

and social change and the debate over the death of the study of deviance.

Henry, Stuart, and Mark M. Lanier, eds (2001)

Whatis Crime? Controversiesoverthe Nature of Crime and

Whatto Do aboutit. Boulder, CO: Rowman & Littlefield. This,

the first

cultural,

book-length

treatment

social, social constructivist,

postmodernist,

in the editors integrated Holstein, James 40(12): This

A. (2009)

Defining

approaches to defining

crime, considers legal,

critical race, and anarchist

definitions.

It cul-minates

modelof the prism of crime. deviance: John

Kitsuses

modest agenda,

American

Sociologist

5160.

article explores John

social constructionist

Kitsuses

place in defining

analysis of social

perspective

on deviance.

not identical

approaches.

practices

of the different

problems,

deviance.

but his early

Kitsuse

wasthe founder

work helped establish the labeling

Holstein shows how Kitsuse, Becker, and Lemert Kitsuse

of social controllers

wasinterested

in creating

in examining

deviance

of the

had both similar

the social control

yet

process and the

Chapter 1 |

Lanier,

Mark M.,and Stuart

Why People

Ban Behavior

Henry (2007) Crime, theories of the definition of, pp. 3316 in Encyclope-dia

of Law and Society: American and Global Perspectives, Vol. 1, ed. David S. Clark.Thousand

Oaks,

CA: Sage. This

is a short version the

of the authors

multiple dimensions that

severity

of societal reaction,

which

media obscures crimes

classic arguments

constitute

the consensus

about the prism of crime

the phenomenon. These around the behavior

of the powerful,

range from

which consid-ers severity

as harm producing,

of harm,

the extent to

and the role of power in the crime-defining

process.

1

ChaPTEr

MoralPanic ERICH GOODE AND NACHMAN BEN-YEHUDA

A

moralpanicis an episode of exaggerated concern about a threatening, or

supposedly threatening,

condition

which many members or sectors of a

society blame on folk devils, or deviants. Whatdefinesan episode of

moral panic is that the concern the public, or sectors of the public, and the

media

express is substantially aboveand beyond whatevidencesuggestsis the actualthreat

Erich

Goode

Ben-Yehuda,

Deviant Bryant,

Panic,

Handbook

of

Behavior,

ed. Clifton

pp. 46-52.

Copyright

2011 by Taylor Reprinted

and Nachman Moral

The Routledge

2

& Francis

D.

Group.

with permission

or danger ofthe condition that generated the concern. Stanley

Cohen used the term moral

panic

(coined

Young) in 1972, in a study of social reactions to mods youth groups. committed

Roving crowds of rowdy

acts of vandalism,

episode shocked the country, British social order. 1986;

and Linders,

by the volume of research, of the

mostinfluential

The

representing

While critics of the

Cornwell

rock-and-roller

causing the police to

a year earlier

and rockers,

teens and young adults

make a hundred arrests. This

the disintegration

of the traditional

moral panics concept abound (e.g., 2002;

publications,

concepts produced

Waiton, 2008), in fact,

at large; the

enforcementthe In a given

Wad-dington,

measured

and citations it has generated, it is one by a sociologist.

moral panic is conveyedor expressedby the following actors:

or society

by Jock

two British

media and the internet;

politicians

police and the courts; and social

the public

and legislators;

law

movements or action groups.

moral panic, concern is expressed among one or more of these social

actors, or any combination

of them; and for all of these actors,

between this concern and the imputed

we observe a dis-crepancy

threat that that concern reflects.

In sum, the moral panic is a social episode that contains the following

elements:

substantial concern about athreat or putative threat; hostility toward a deviant or folk devil; a degree ofconsensusamong the public, or sectors of the public, that the threat is real and caused by designated deviants; disproportion between the threat and the concern; and volatility in the concerna in its intensity

substantial rise and fall

over time.

21

22

CRIME, JUSTICE,

AND SOCIAL

CONTROL

Concern The

concern that ourfive

relevant

actors or sectors of society feel is expressed in overt actions.

First, the public expressesindignation, its feelings in opinion

engagesin informal chatter

polls, supports

and votes for politicians

address the threat, reads or watches media accounts about the threat andvery

occasionallyvents

or talk about the issue, ver-balizes

outrage in the form

of collective

who propose legislation

and the designated folk

violence.

to

devils,

Second, as cause and/

or consequence ofthe publics concern, the mediarun news stories embodying, expressing, and stoking

up the threat and the concern, and, in addition,

buzz. Third,

the surveillance

form threat

social

and regenerates a

behavior. Fourth, law enforcement steps uplegal control by increas-ing

and arrest of suspects,

and the courts increase the likelihood

of convicting,

and handing down stiffer sentencesfor the relevant illegal behavior. Fifth, activists movement organizations

and the actions offolk

These

broadcasts

politicians makespeeches about folk devils and propose legislation to criminalize

the presumably threatening imprisoning,

the internet

march, demonstrate,

and hold rallies

devils.

actors usually justify the acts that express their concern

Action should

protesting the relevant

within a rationalistic

be taken, they believe, to ensure that the damage the threat

Actors argue that the immoral

acts they try to prevent cause or represent

or more serious behavior. They

framework.

causes be minimized.

objectively

harmful

con-ditions

explain their acts as reactions to a very real, concrete, and

present threat; hence, the concern they express and act out should not be referred to or dismissed as mere panic.

Hostility In a moral panic, sectors of the society express an increased level of hostility toward the group or category said to engage in the behavior or cause the threatening are designated astheor is seen as objectively

atleast anenemy

harmful, threatening

condition

in question.

of decent, respectable society. The

deviants

to the values, the core beliefs, the interests

Folk devils behavior

ofthe society.

Moral panic actors tend to stereotypefolk devils in exaggerated, demeaning ways(Cohen, 1972).

Consensus To qualify

as a moral panic,

a minimal level societythat

the threat

group and their

harmful

way need not be universal some gripping

we must see a substantial

of agreementeither

in the society

exists, that it is serious, and deviant or even

widespread consensus: that is, social sectors

and that it is caused by specific

behavior. The

proportion

make up a majority.

most members of society, and others

social circles, groups, or categories.

and fairly

as a whole or in certain

of the population

of the

members of a that feels this

Moral panics come in different sizes, with

more localized

Alarge number of individuals

to one or

more communities,

might be panicking,

but if they

are scattered haphazardly throughout the society, as a sociological phenomenon,this is not a moral panic.

However, if there is consensus that a threat exists and should

be dealt with, and if this grip

Chapter

2|

Moral Panic

alarge proportion of a particular group or residents of a certain community, this is a moral panic. Hence, by consensus, we meanthat fairly social categoriespossibly, threat,

and that something

widespread agreement exists among membersof identi-fiable

but not necessarily, society as a wholethat

should

there is a problem or

be done to address it.

Disproportion Sociologists

who use the

moral panic concept

do not argue that

certain

actions that generate

panics are harmless.The lynchpin of the moral panics conceptis disproportionthe between concern determined,

2002).

and threat.

Some critics

have argued that

that it rests on a value judgment

disproportion

rather than scientific

cannot

disparity

be objectively

criteria (Cornwell

and Linders,

Weagree that, for someissues, the relationship between concern and threat is difficult to

measure; but in fact, for

most, disproportion

can be roughly

calibrated.

Here are several indicators

of disproportion.

Imaginary

Threats

Afew supposed threats that generate a great deal of concern, even fear and great anxiety, do not even exist; they are entirely imaginary.

During the 1980s,

Satanists kidnapped

murdered tens of thousands

States and the services.

and ritually

UK in loathsome,

Careful examination

gruesome ceremonies

satanic kidnappings,

the European

Renaissance (1400s1600s), practicing

witchcraftmainly,

whatsoever to support itno

of people,

with the devil.

took place, and the concern and fear, as manifested by these executions, that such accusations generated, when wefind

the conjunction

were unwarranted

of great concern

know that a moral panic is taking

and

During

mostly women, were

Clearly, no such action

along with the

misplaced (Ben-Yehuda,

with the complete

United

a mockery of Christian

by Satanists (de Young, 2004).

of thousands

consorting

believed that

each year in the

that represented

or murders of children hundreds

Christians

of children

of the claim has produced no evidence

satanic rituals,

put to death for

manyfundamentalist

masspanic

1985). Typically,

absence of an actual threat,

we

place.

Exaggerated Claims If the evidence cited to measurethe scope ofthe problem is grossly exaggerated, the criterion disproportion

has been

of harm to the victims, an Israeli that

politician

attention,

how

percent (Ben-Yehuda,

representatives

schoolchildren

but careful, 1986)so

spending

of dollars to find

only three (Markon,

moral panic on our hands.

or more slaves these 2007).

victims,

of victims,

claim attracted

aflurry

that the actual figure

wasin the order of ten times. are pouring

into

law enforcement

Claims as discrepant

extent

cost to the society. In 1982,

of the police released figures

studies indicated

the exaggeration

yearly, 50,000

able to locate

may reside in number

used hashish. This

systematic

have claimed that, millions

of a claim

widespread the harm is, andfinancial

and several

half of all Israeli

public

met. Exaggeration

of

the

to the

media

of media and wasjust

3 to 5

Spokespersons

United States. After

and the government

as these suggest that

were

we have a

2

24

CRIME, JUSTICE,

AND SOCIAL

CONTROL

Other Harmful Conditions Someless harmful conditions, dangers, or threats attract vastly moreconcern, fear, anxiety, and attention than

do other,

released periodically

more harmful

by the federal

Centers for

States every year. In contrast, illicit 2008).

Why has drug abuse stirred

and Ben-Yehuda, 2009), Likewise,

conditions.

up intense

the country like

sweeping

been invaded most dangerous

moral panics over the years (Goode

of media attention focused

Weare awash

on the spread

in

methand

drug

was

the East Coast has

In August 2005, Newsweekproclaimed methAmericas

harmful

as methamphetamine

most popular

drugs, and hospital and coroners

and non-lethal

meth (Goode,

is, surveys indicate that its use remains

2008).

reports indicate

and alcohol in combination

overdosesyet

those

below that of the

that, every year, cocaine,

with other drugs cause substantially

drugs have attracted

vastly less

media hysteria

Clearly, in recent years American society has experienced

with the concern and fear expressed about the threat is

(Goode,

drug.

heroin, sedatives, antidepressants, than

people annually

United

by the drug. In 2004 and 2005, the Oregonianran some 250 stories proclaiming that

weare in the midst of a methepidemic.

more lethal

people in the

abuse and the harm that the drug causes to users.The wildfire.

to figures

panics pale in comparison?

beginning in the late 1980s, a huge volume

supposedly

countrys

20,00030,000

and recurrent

while cigarette smoking

(meth)

according

Disease Control, kills 440,000

drug abuse kills

of methamphetamine

In truth,

Why? Tobacco smoking,

much greater than

a meth panic,

objective evidence suggests

warranted.

Other Times, Other Places Often, when we compare

one time

or place with another,

the objective threat is lower, and less concern shootings,

a horrific

phenomenon

wefind

more concern

when and where

when and where the objective threat is higher. School

that has caused the deaths of hundreds of children in the

Anglo-phone

world provides an example here. Between the late 1990s and early 2000s, school shootings and killings

attracted

an immense

volume of media attention at precisely the time

when their inci-dence

wasactually declining(Cornell, 2006). In

March 2001, after an incident involving

others,

CNN proclaimed

an epidemic

Incidents in Schools Rise Sharply. The shootings

in the country

the deaths of two teenagers and the injury

of school shooting. The

headline

of thirteen

of its story read: The

CBSEvening Newsagreed, withits anchor saying: School

have become an epidemic.

According to sociologist

during the late 1990s the number of stories about school deaths increased

Joel Best (2002),

eight times;

but between

1998 and 2001the actual number of violent deathsin schools droppedfrom 35to 15. Dewey Cornell (2006),

aforensic

psychologist, found that the number ofjuvenile

arrests for

3,284 in 1993 to 973 in 2002; the number of victims of school homicides to 8in 2001, 2in 2002 and 4in 2003. For schoolchildren bethan their high-profile

nationwide,

own homes, and they are becoming increasingly cases of violence do not represent the country

dropped from

42 in 1993

schools are safer places to

safe. Asmall number of newsworthy,

as a whole; and school violence actually

substantially declined between the 1990s and the 2000s.There is no epidemic When the

murder declined from

of school violence.

media used this exaggerated, overheated term, they not only expressed but contributed

to a moral panic of school shootings

Chapter

2|

Moral Panic

Volatility By their very nature, moral panics are volatile: they erupt fairly suddenly (although they maylie latent for long periods and reappear from time to time)

and subside just as suddenly.

Some moral

panics become routinized or institutionalized: after the panic has run its course, the concern about the target behavior results in, or remains in place in the form legislation,

enforcement

transgressors. social fabric

Other

and informal

moral panics vanish,

interpersonal

almost

impact

mechanisms are instituted or not, the hostility

of collective

norms or practices for

no different from the

as a consequence

wayit

of its eruption.

punishing moral, and

was before; no

But whether it has a

generated during a moral panic tends to be fairly temporally

limited. The fever pitch that characterizes the trajectory over along stretch

movement organizations,

without trace: the legal, cultural,

of the society after the panic is essentially

new social control long-term

practices,

of, social

of a moral panic is not typically

sustainable

of time. In that respect, it is similar to the fad and the craze, and, hence, aform

behavior.

Actorsin the MoralPanic The Media and the Internet Prior to the institutionalization word of mouth, religious disseminated generators

sermons, and religious

more slowly than they

and conveyors

the internet

of newspapers,

past generation

and television,

and imperial

do today. The

wrongdoing

or so, the sources and diversity

decrees and proclamations. Thus,

of humanity.

with exaggerated

we have a good idea that theres

moral panics developed

media and the internet

of moral panics in the history

address a story about

and stereotyping,

radio,

are the

of the

they

most effective

Whenever the

attention, inventions,

a moral panic erupting

by

media and distortion,

or in process. In the

media have proliferated

and ramified

to the

point wherewefind competing claims about a supposedthreat; indeed, competing moralpanics. Welive, in other words,in a multimediated world (McRobbie andThornton, sources agree with one another, so a diversity This

tendency

has increased

widespread communicability competing

definitions

with little

of threats

the number of (albeit smaller)

of panics

with the development

may break out among different

of the internet,

or no professional filter

and folk

1995). Not all media

on verifiability.

devils, plus the explosion

audiences.

which combines instant

and

It is possible that

of the internet,

mayincrease

moral panics, not decrease them.

The Public For a classic, full-blown public, or sectors

moral panic to erupt, there

must be some potential

of the public, to react to an issue. The

some sectors of the public.

A media campaign cannot

which the public at large is initially

indifferent.

issue

on the part of the

must have resonance

whip the public into afrenzy

In September 1989, following

with at least

over an issue to

a series of speeches

by President Ronald Reagan pumping up several proposed drug bills, a NewYork Times/CBS poll revealed that number-one

nearly two-thirds

(64%)

problem facing the country

of the

American

at that time.

public thought

that

drug abuse was the

Given the other, objectively

more serious

2

26

CRIME, JUSTICE,

AND SOCIAL

problems the country

CONTROL

faced, this

of aless serious problem.

was an unlikely

assertion;

hence, it represented

Onthe other hand, word-of-mouth

rumors,

an exaggeration

usually in the form

of urban

or contemporary legends, both convey and energize moral panics, but they often spread without being reported

or valorized

panicsometimes

by the

independent

media. Hence,the publics concern is one dimension

from, yet often codependent

of the

with, the others, especially the

moral media.

Law Enforcement In addition to the press and general public, the actions of formal moral panic is taking of legal surveillance

place. During a moral panic, police officers and law enforcement,

often on less provocation. convicted

of a crime to jail

and often increase its intensity:

or prison rather than

of illegal immigrants

probation

and stepped-up

that is, they arrest

that a more

when judges send persons

or the suspension

United States and the

demonstrate

make efforts to broaden the scope

In addition, the courts step up social control

wesee such forces at work in both the deportation

social control

of a sentence.

Today,

United Kingdom in an increase in the

surveillance

against the possibility

of terrorism.

Politicians and Legislators In a moral panic, legislators 1988, the

Anti-Drug

causing someones ignite legislation: anti-porn

escalate proposing and enacting legislation

Law called for the death penalty for

feminists

major drug traffickers

death during the course of committing all the laws

a felony.

proposed against pornography

failed to be sustained

by executive

to curb a putative threat. In as well as anyone

Some panics, however, fail to

in the late 1980s and early 1990s by

or judicial

review (Goode

and Ben-Yehuda,

2009).

Action Groups and Social Movements At some point, organizations

moral panics generate appeals, campaigns, and,finally, or action groups

fully fledged

which arise to cope with the newly existing threat.

social

movement

Social movement

activists are moralentrepreneurs who believethat existing remedies areinsufficient, that something must be done to remedy the threat. The

emergence of such social action groups in the heat of the

moment is one sign that a moral panic is developing.

Three Theoriesof MoralPanic Why do moral panics occur? and action groups in a particular

Why do the public, the society at a particular

media, law enforcement

time express intense concern

phenomenon, issue, behavior, or would-be threat thatas would revealdoes

over a condi-tion,

a sober assessment of the evidence

not merit such concern? Scholars have proposed three

the emergence of moral panic

agencies, politicians,

main theories to explain

Chapter

2|

Moral Panic

Ofthe many dimensions along which we might array theories of moral panic, the grassroots versus elitism dimension comes mostreadily to mind. Are manyactors responsible for the creation and maintenance of the panic orjust afew? Doesthe panic start from the bottom and progress up, or doesit workfrom the top down? Or,to cite athird possibility, of societys

status and power hierarchy rather than from the elite at the top or from the undifferen-tiated

general grassroots agencies, associations, The

explanation

powerful

might a panic begin in the middle

public: from

and interest

that

directors

of middle-level

organizations,

groups?

moral panics are caused at the top of the society

actors, usually on behalf of their

elitist or elite

and administrators

engineered theory. The

own, typically

by a small

economic, interests,

explanation that

number

of

might be called the

moral panics arise out of the genuinely

felt concerns of the public atlarge might belabeled the grassrootstheory. Andthe explanation that moral panics emerge out of the efforts of representatives of a specific,

organized

clientelesuch

that advocate the ideology

asteachers, the

Catholic Church, gun owners, physicians,

labor unions, veterans, the mediaitself, and so onmight The classic orthodox

trivial

something interests.

will gain some

model, elites fabricate,

threatusually

be called the interest group theory.

Marxist approach is the elitist model. It argues that elites orchestrate

moral panics so that they According to this

one about

material or status orchestrate,

or ideological

advantage therefrom.

or engineer a panic from

which they themselves feel little

a nonexistent

moral concernin

of value or divert attention away from issues that, if addressed,

or

order to gain

would threaten their

own

Advocates of this theory see the general public or grassroots as possessing relatively little

independent

agency; instead,

they are manipulated from

not stampede into a scare; their

participation

in

of the state,

which is conceived

coordinated

above.

On their

own, the public

moral panics is a result of the

rich and the powerful (Hall et al., 1978). In this

machinations

would of the

model, big businessinterests control the actions

of as a more or less homogeneous

entity, acting in a more or less

fashion.

In contrast, advocates ofthe interest group theory hold that occupants of the power in a society act independently material, ideological organizations,

advantage.

institutions,

labor

groups: the concern that

felt by owners, publishers, efforts do not always

their

work.The interest

seemingly

groups, social

democracy.

movement organiza-tions,

media may make up one of

express in a panic

motives may simply group

moral panics originate associations,

(Jenkins, 1992).The

mediafigures

or journalists;

the top nor as an open or grassroots

associations, religious

organizationsmiddle-level

of every description

middlelevel of

maximize their own political,

Moreover, they argue that

middle strata: professional

educational

groups, and institutions these interest

of the elite either to express or to

or professional

somewhere in societys

their

and interests

may not even be

beto stir up a story;

moreover,

model sees society as neither controlled

Members of middle-level

from

groups, organizations,

and associationsofteninitiate crusades,panics, and campaignsin the face of elite opposition and (sometimes)

societal

or grassroots indifference.

The grassroots modelargues that moral panics are initiated from the bottom up and, concomi-tantly, that

morality and ideology

grassroots theorist,

are dominant

motives for activists

moral panics are more or less spontaneous

part of large numbers of people about a given threat not be a majority of the entire substantial

population.

numbers (1 percent of the

eruptions

be a small

equates to three

To the

of fear and concern on the

or putative threat. This

In fact, it could

US population

and concerned citizens.

large

minority

number

need

yet still comprise

million people).

2

28

CRIME, JUSTICE,

AND SOCIAL

CONTROL

Often a particular issue willinflame Christians, in

conservatives,

homosexuals,

many legends, tales, and rumors

conspiracy rank

theories

andfile

membersof particular sectorsof society, such as evangelical or feminists. The

exemplify

panic and exaggerated fear expressed

a genuinely

grassroots

dynamic.

are populist in nature and express fears that begin in societys

(Ramsay,

Likewise,

most

socioeconomic

2006).

References Ben-Yehuda, Nachman. 1985. Devianceand Moral Boundaries. Chicago, IL: University of Chicago Press. .

1986. The

Sociology

of

Moral Panics: Toward

a New Synthesis.

Sociological

Quarterly,

27 (4):

496513. Best, Joel. 2002. Monster

Hype.

Education

Cohen, Stanley. 1972. Folk Devils and Cornell,

Dewey

Cornwell,

Moral Panics. London:

G. 2006. School Violence: Fears versus Facts.

Benjamin

and

LSD Prohibition. de Young,

Next, Summer:

Annula

Linders.

2002. The

5155. MacGibbon Mahwah,

Myth ofMoral

& Kee. NJ: Lawrence

Panic:

Erlbaum.

An Alternative

Account of

Deviant Behavior, 23 (4): 30730.

Mary. 2004.

The Day Care Ritual Abuse Moral Panic. Jefferson,

NC:

McFarland.

Goode, Erich. 2008. Drugsin American Society(7th edn). New York: McGraw-Hill. Goode, Erich and

edn). Oxford: Hall, Stuart,

Nachman

Ben-Yehuda.

2009.

of Deviance (2nd

Wiley-Blackwell.

Chas Critcher,

Tony Jefferson,

John Clarke, and Brian

the State, and Law and Order. London: Jenkins,

Moral Panics: The Social Construction

Philip. 1992. Intimate

Enemies:

Roberts. 1978. Policing the Crisis:

Mug-ging,

Macmillan.

Moral Panics in Contemporary

Britain.

New York:

Aldine de

Gruyter. Markon, Jerry.

2007. Human

Trafficking

Evokes

Outrage, Little

Evidence.

Washington Post, September

23: A1ff.

McRobbie, Angela and Sarah L.Thornton. Worlds.

British Journal

1995. Rethinking

Moral

Panic for

Multi-Mediated Social

of Sociology, 46 (4): 55974.

Ramsay, Robin. 2006. Conspiracy Theories. New York: Barnes & Noble. Waddington,

P. A. J. 1986. Mugging

as a Social Panic: A Question of Proportion.

British Journal of

Sociology, 37 (2): 24559. Waiton, Stuart. Routledge

2008.

The Politics of Antisocial

Behaviour:

Amoral Panics.

New York and London:

ChaPTEr

Modes andPatterns of SocialControl

3

IMPLICATIONSFOR HUMAN RIGHTSPOLICY INTERNATIONAL COUNCIL ON HUMAN RIGHTS POLICY

Modes and Patterns

ExecutiveSummary

Control: Implications Rights Policy, 79-80,

1.Introduction: This

The Research

contemporary

patterns

regulations defined

of social controlhow

define, construct

as undesirable,

policy areas reflecting

laws,

policies

criminal

or socially

a wide range of contemporary

of

Council

Human 5-11, 2010 by

on Human

Rights Policy

and administra-tive

and respond to people, behaviour

dangerous,

83. Copyright

International

report is the outcome of an enquiry into the human rights implications

pp. iii-ix,

of Social for

or status

problematic.

policy concerns

Five

were chosen

for specific examination: 1. Policing and surveillance; 2. Punishment

and incarceration;

3. Urban spaces and the poor; 4.

Migrants and non-citizens;

5. Public health and infectious

disease control.

A case study of the Roma in Europe

was also commissioned.

1.1.approach and Focus The

report approaches the idea of social control in terms

of its role in securing

conformity

with established

norms by preventing,

adjudicating,

sanctioning

non-compliance.

It focuses on formal

mechanisms of social control

that

deal with crime,

including

the criminal

urban planning

dangerousness,

For a detailed

authorities. These

description

and

and other social problems,

justice system, the health system, the welfare system and are broadly state-centred

and operate at national, regional

1

delinquency

remedying

of how the concept

and transnational

of social

control

or privatised func-tions

levels.1

is used in the report,

see p. 5,

below.

29

30

CRIME, JUSTICE,

Asocial the logic

AND SOCIAL

control

perspective

underlying

cumulative

impact

engagement

CONTROL

is valuable to human rights

practice insofar

the policy and practice of relevant institutions on human rights.

asit throws light

that impose

controls

Using such a perspective, this report invites

on

and their

a human rights

with questions, such as the following:

How do changing ideas of crime, criminality What purposes do prisons serve in

and risk shape social policy?

modern society, and why does incarceration

continue

to be a preferred sanction? How are public health and urban planning How do surveillance

and data-gathering

Given their significant from

human

becoming regimes of discipline and punitiveness? technologies

rights implications,

order and organise social relations?

such questions

demand serious

attention

human rights advocates. A social control

social

problem

how individuals

perspective

or a crime. or their

of intervention

reviews

how a behaviour

It involves

behaviour

consideration

Within the context

to them and, ultimately,

on the dynamics

with larger socio-political

The

transfer,

of the forces that shape attitudes and

political, including

both new

and old (such as probation regimes or imprisonment) and social policy (e.g.,

how human rights standards

and universality As a contribution

report is

methods

managerialism,

and

privatisation,

medicalisation).

also considers

indivisibility policies.

of surveillance)

drive changes in governance

report

how

of the policy areas chosen for this project, this perspective focuses attention

(such as new technologies

transnational

as a

processes and institutions.

on policies and patterns that are broadly social rather than narrowly the forces that

comes to be constructed

of how these categories are produced and

come to be attributed

are selected. It throws light

policy and their relationship

or activity

might be applied to test and evaluate contemporary

to a continuing

debate that involves

written for all who are concerned

human rights advocates

or as professionals

urban poverty,

penal sanctions,

policing,

and principles such as equality,

many communities

with human rights, with an interest

whether they

in specific

dignity,

social control of practice, the

view themselves

areas like

public

as

health,

migration, etc.

2. Key Findings ofthe Report: Modesand Patterns of Social Control 2.1. Criminalisation and Sanctions The

influence

reductionist

of the crime

control

view of the criminal

model on social

justice

deserve closer human rights scrutiny,

system (which

especially

policy and the diffusion

considers security to beits primary

because they push impoverished

groups onto a slippery slope of management, control and criminalisation. policy around fear of crime based on uncertain

criteria

permits a dangerously and increasing

of an increasingly

and vulnerable

In particular, constructing

wide range of state interventions

the risk of enforcement

goal)

and sanctions

being disproportionate,

discrim-inatory

and arbitrary. Increasingly,

control

status or behaviour infectious behaviour

measures embedded

within civil

or administrative

categorised as social problems (e.g., homelessness,

diseases).

While the consequences

of controls

law target

drug use,irregular

on individuals

and status subject to controls is widening. It is vital to determine

persons, migra-tion,

vary, the spectrum how such controls

of ar

Chapter

enforced

and against

influences

whom, again, underlining

on vulnerable

vagrancy

groups. For instance,

measures and to assess them

criminalised,

monitor the impact

human rights

reasonableness,

Atthe same time, asthose

of both criminal

least restrictive

human rights analyses of crime and criminality

marginality

and structural

on prison conditions

rights law that

of sanctions,

remains important

prison systems should

of concerns about the exclusionary that distinguishes

and non-criminal including

or intrusive

constructed

tests

means and

are morelikely to be

musttake full account of the

while the traditional

wayin

and their relationship

needs

nature of contemporary from

enshrined

prison and post-prison

punitive

approach

of

in human

more vigorous advocacy in the face

beyond even rehabilitative

constructive

civil liberties

to defend, the principle

be rehabilitative

are good human rights grounds to look philosophy

and responses

exclusion.

Whenit comes to the imposition focusing

criminalise

often produce the

principles,

who are poor and disadvantaged

which crimes, social problems, victims and offenders are socially with

and significant

narrative of crime and criminality

against relevant

non-discrimination,

non-arbitrariness.

measures or policies

Control

poverty.

Onthe one hand, it is critical to

of proportionality,

of Social

while the number of laws that explicitly

There is an urgent need for a human rightsbased to crime.

Modes and Patterns

that such policies have differential

may be in decline, a set of new administrative

same effect of criminalising

control

3|

treatment

regimes. There

models and at a penal

measures and recognises the importance

of social justice. Non-custodial forms because imprisonment and

of punishment

remains the norm against

Measures(CSMs),

technical

that are so intrusive

reasons leading to

merit close human rights

monitoring, especially

which other sanctions, such as Community

are assessed. Such practices

to them is not subject to questionable conditionalities

themselves

Sanc-tions

must be monitored to ensure that access

assessment of the risks involved

and that they do not contain

or onerous that there is a high likelihood

of violating them for

more penalties.

2.2. Segregation Segregating those considered of segregation

undesirable or dangerous includes the act of imprisonment,

are also embedded in urban planning, treatment

to irregular

migration. Societies are being re-segregated

both judicial

and administrative

of people in terms

mechanisms. The

of dangerousness

of infectious

but modes

diseases or responses

using private as well as public

adoption

of risk

means and

models and the categorisation

has had a range of adverse human rights consequences in a

number of contexts. The report

stresses that the premise that segregating

those

presumed

social

policy and criminal

undesirable

dangerous

populations

imprisonment manage

make our society

Prisons are increasingly

rather than to enable rehabilitation

not just a tool of repression

or punishment

a significant

safer is increasingly becoming

portion

of

influencing

warehouses to segregate

and reintegration,

thus render-ing

but also a meansto

produce and

marginality.

In a rapidly of segregation, structures,

can, by itself, justice.

or confining

urbanising crippling

not to

world, urban planning social trust

and inhibiting

mention undermining

practices are promoting the construction

human rights

the institutionalisation

of inclusive

of poorer populations.

social

network

3

32

CRIME, JUSTICE,

AND SOCIAL

CONTROL

2.3. Surveillance Focusing on risk has created an insatiable intensify

surveillance.

related that the

appetite for information

proportion

on which to base policy and to

of security-related

matters, especially in surveillance

activities

are focused

on non-crime

of persons and spaces, based on the assumption

more data, the better.

Contemporary because they and

Anincreasing

sociological

studies of surveillance

demonstrate

a broad concern

manage social relations; convergence

anonymously

while syndromic

a human rights perspec-tive

as a means to order, control

Gathering

surveillance

to the construction

control. The involvement commercial

with surveillance

as a means of social sorting.

and tracking

contributes

are valuable from

of notions

of personal

that compiles

and ideals

of private entities also blurs the distinction

data facili-tates

health information

of normality,

furthering

between governmental

and

surveillance.

Human rights

monitoring

of surveillance

can be more effective

range of concerns

and analyses surveillance

as a tool of control

rights are critical,

but the range of issues has broadened,

account of this and consider issues such asthe interests corporations, technologies

have in using such technologies,

in socio-economic

when it highlights the broader

and social

management.

Privacy

and human rights advocacy should take that public and private institutions,

their accountability

espe-cially

and the use of surveillance

contexts that are often very unequal.

3. Key Findings of the Report: Underlying Forces and Contexts 3.1.Political Economy It is vital to situate social controls state as well as non-state. The cultures

within the context of wider political, mechanisms that legitimate

that shape responses to social

exclusion

over universal

marginality.

welfare and inclusion,

Polities with greater socio-economic

system to solve social problems and failures of state functions

(particularly

social control

Given the overwhelming

only on state regulation

of governance. In

the growth

criminal

justice functions,

for example,

on those at the

margins.

many contexts, the increasing

of the private security

power and influence

of private actors

more controls

tend to be morelikely to look to the criminal justice

emphasis on managerialism is also critical in determining regimes.

are tied to the political

Wheneconomic and social policies tend towards

they impose

inequalities

social and economic forces,

sector) closely tied to an

the nature and consequences of private capital and industry,

may beinsufficient. The legitimacy must be challenged

priva-tisation

of control depending

of privatising

certain

on human rights grounds.

3.2.TransnationalandInternational regimes International

and transnational

technologies

of control. International

accompanied

by an international

actors like large global knowledge

There

the transfer

co-operation

transnational

or even epistemic

complexity

and opacity

of policies and

amongst States, often

regimes include

communities

non-state

of experts, ferrying

of policy transfer

raises serious

and accountability.

are also problems ofcoherence. The

or health, for example,

facilitate

formal

normative framework;

spaces. The

monitoring

and informal)

regimes involve

private corporations

across different

concerns related to

regimes (formal

human rights protection regimes in relation to

have different foundations

from those of the International

migration

Organisation fo

Chapter

Migration (IOM)

or the International

3|

Health Regulations (IHR),

Modes and Patterns

which typically

and criminal justice regimes, including If human rights

advocates

transfer, they could the technologies including

receives insufficient

make a significant

and know-how

private corporations.

which such regimes

as equality,

universality

and

contribution.

Office on Drugs and Crime (UNODC).

map regional

This

that are transferred

and global regimes

also includes

monitoring

of policy

and mapping of

and the State and non-state

Beyond seeking to ensure that such policies comply

human rights standards in a procedural extent to

monitor

Despiteits significant

attention in global and regional policing

the United Nations

were to

Control

take an approach that

constructs their subjects as problems in need ofmanagement rather than protection. expansion, the human rights framework

of Social

actors involved, with international

sense, advocates could play a vital role in highlighting

are premised on respect for human rights, calling

the

on principles such

and indivisibility.

3.3risk and Security Ideas of risk and danger are a majorinfluence national, regional prediction

and international

and prevention

dangerous individuals

level.

of future

of more liberty-depriving migration policy. security,

There controls

populations

which necessarily of risk

concerned

entails the identification

models has also undermined

Moral

panics

of different

of such panics is important

of reha-bilitative

favour the imposition

also encourage the erosion of procedural

in a number

with the

contexts, from

public

in understanding

and victim rights can themselves generate and perpetuate

safeguards health to

how ideas

control

of

mechanisms

rights.

is a need for a stronger are justified

human rights narrative to counter the argument that increasing

on grounds

claims that are advanced to justify not mask afailure

of security.

by the State to fulfil its

of security,

Human rights

the imposition

to recognise the danger that securitising rubric

acts,

adoption

in the prison context.

An understanding

protection

that undermine

criminal

sanctions. They

of suspect

public discourse and policy at the

Policing, for example, is increasingly

via risk profiling. The

approaches to punishment

and the creation

on contemporary

advocacy

of restrictions

needs to interrogate

and controls to ensure they do

wider human rights responsibilities. rights (i.e., grouping

as embodied in ideas like human security)

risk

It is also important

a range of human rights

under the

presents.

4. Additional Conclusions The report suggests that there are key areas in which the human rights analysis of the underlying forces that shape controls. The in the imposition

of controls

and the way in

wayin

movement could deepen its

which human rights abuses result

which those controls themselves

violate human rights

warrant equal attention. In seeking to limit human rights

of controls and to strengthen the benefits they

advocacy can draw on principles

exist in international least restrictive

the negative impact

governing limitations

human rights law (i.e., proportionality,

or intrusive

means, and non-arbitrariness)

on the exercise of rights that

non-discrimination,

reasonableness,

and apply these to the exercise of controls.

With regard to the States positive duty to protect and its negative duty to refrain from principle

of non-discrimination,

policies of control

in particular,

may bring,

can be applied to highlight the differential

on access to social and economic as well as civil and political rights. The

abuse, the impact

of

principle

3

34

CRIME, JUSTICE,

AND SOCIAL

of non-discrimination economically

CONTROL

can also help signal policies disproportionately

vulnerable.

In the context

targeted

of the least restrictive

or least intrusive

might be used in other contexts to prevent policies of control that restrict

are imposed The

could themselves

and

of drug use and drug dependence, the harm reduction

approach serves as an example of how the principle

At the same time, the political

at the socially

and social forces that influence

be challenged

with principles

aim of this project is to encourage co-operation

advocates, social scientists, social policy analysts,

rights.

modes of control

of universality,

political

and how they

equality

in this endeavour

practitioners,

means

and indivisi-bility.

between human rights

activists

and others.

I. Social Control and Human Rights 1. WhatIs Social Control? In sociological

dictionaries,

and methods that conduct This norms

report

control

is defined to include

produce (or attempt to produce) conformity

of its

adjudicating,

and sanctioning

responses

anchors

delinquency

health system, immigration

of this form

conformity

and col-lective

of social control

It focuses

and corporations

problematic,

undesirable,

are institutions

and other social problems, including

with established

non-compliance.

by state authorities

or status that are perceived to be criminal,

or troublesome. The dangerousness,

processes, institutions

or regulate the individual

of its role in securing

remedying

planned and programmed

behaviours

all social

members.2

considers social control in terms

by preventing,

intentional,

social

on

to activi-ties, dangerous

that deal with crime,

the criminal

justice system, the

and border control, the welfare system and urban planning authorities.

For purposes of human rights

policy, this enquiry is concerned

Forms of social control that are state-centred:

with:

criminal justice (criminal

prisons) and other systems oflegal and administrative

regulation

law, policing, courts,

(e.g., immigration

controls,

welfare, urban planning); Privatised systems of formal

social control

and security, such as private prisons or policing;

National, regional and global regimes of control and regulation (e.g., IHR, the IOM, Less explicit but significant such as the The

report

social control

media or institutions

gives little

purview (such as socialisation,

dimensions of other state or non-state institutions,

engaged in education,

attention to forms

Europol);

of informal

and health and welfare.

social control that are outside

shame, gossip, public ritual,

measures and of related non-state actors is undeniable,

planning,

the States

peer pressure). The importance

of such

but it was beyond the scope of this research

to look at them in any detail.

2

Such definitions to

public

anthropological

are both too

executionand sense

too

broad for

the purposes

abstract. The

report

of this reportthey therefore

cover

does not use social

anything control

from

infant

in this

socialisa-tion universal

or

Chapter

The

report

be traced social

and the research

back to critical

control theory

The

approach

Modes and

or radical

sociology control

at the end of the 1960s.3 It

analysis

condition

of social

are undesirable

Control

that can

will be referred to as

or threaten

problems.

It assumes that

(e.g., the existence of homeless people, undoc-umented

migrants, sexual offenders) and also a subjective behaviours

of Social

perspective.

a social constructionist

social problems consist of an objective

certain

Patterns

on which it relies draw on an approach to social control

or as the social

adopts

3 |

dominant

condition (i.e., the perception that values or interests).

A social

problem

goes through

stages of claims-making

which run from the initial

creation

categorisation

(e.g., as a crime,

a human rights violation)

to a method of intervention

(punishment,

treatment,

an illness,

or political

of a problem

to its

action).

For example, consider the category of anti-social

behaviour

Crime and Disorder Act (1998) declares that behaviour

in the United Kingdom (UK). The

causing (or likely to cause) ... harassment,

alarm or distressto one or morepersons... can becharacterised legally as anti-social.The anti-social character of an act does notlie in the actitself butin the reaction of othersto it. Parmetsignals how important public

it is to understand the social construction health theory

and international

the nature and extent of health risks,

of risk, and address it in policy, arguing that

law overlook the role that social factors

play in determining

as well as how risks are perceived and

what interventions

are chosen.

A social control perspective questions how a behaviour or activity comes to be constructed asa social problem or crime and seeksto throw light on the forces that shape attitudes and policy formation, shifts in those forces, and their relationship withlarger socio-political processesandinstitutions.

Naming

a category can be controversial. This

the descriptors workers

women

each imply

in sex work,

different,

political

or moral positions.

person

who uses drugs

women

versus drug

abuser

aspect of subjective

behaviour

US, commenting

has sex with his 15-year-old

funny)

3

predators,

girlfriend

For guides to this approach,

see

workers,

that reflect

can be significant

of prostitution,

where

or commercial

distinct

sex

worldviews

rather than illegal

and

migrant,

or

in exactly the same way. mustthen be attributed

is that at different times and in different

to them.

An

places the same working

with

on changes of attitude (that now a 17-year-old teenager

who

or a drunk

whereas a man exposing

wonders how we come to fear

sex

migrant

may be perceived and responded to in quite different

sex offenders in the

as sexual

irregular

people and behaviours

attribution

discussions

in the sex trade,

often nuanced understandings Use of the term

Once categories have been created, important

is clear from

ways. A psychologist

who exposes himself in public

himself on a popular

and hate what we once found

Cohen (1985)

and Blumberg

and

TV show

may be categorised was once considered

pathetic or even humorous.4

Cohen (eds.) (2004).

For a current introduction,

see Innes (2003). 4

A Letter to the

Editor

of the

Reno Gazette-Journal

in

Nevada,

USA, from

Steven Ing, a psychologist.

Available

onfile

35

36

CRIME, JUSTICE,

AND SOCIAL

Categorisation

determines

liable to be articulated

controls to identify do this

the police, immigration

These

as criminal

law and governance

and organisations

Some agencies that

Others (e.g.,

who is labelled

in criminal

personnel, expertise and non-judicial

CONTROL

been the focus

and border control

authorities,

of judicial

enforcement).

of human rights attention,

and parts of the criminal

urban planners)

is then

of procedures,

and application

people and behaviours that fit categories (rule

work have long

increasingly

practices.5 A vast apparatus

is now devoted to the selection

welfare agencies, the health service,

institutions

or dangerous, and this judgment

including

justice

system.

have been scrutinised

far less.

employ private agencies to whom States have devolved the delivery

of certain services. Individuals

or groups

may be regulated

is perceived to be threatening

by or subject to social controls

or to lie outside the dominant

deviant or dangerous, not necessarily for traits they criminal,

possess. deviant,

Non-compliant

measures of social control

norms of society: they are considered

or status, or its consequences,

or even a human rights violation6

may be considered

and

may be subject t

as a result.

In Visionsof Social Control (1985), Stanley Cohen traces four key changesin control that occurred in the course of the nineteenth The locus Deviants

of social control were classified

examination

existence

what they have done, but because of who they are or the

behaviour

or a social problem,

because their

and the

moved from informal and differentiated

mid-twentieth

social institutions

in various

modes of social

centuries: to the State;

categories, each

meriting scientific

and expertise;

Different types

of custodial institutions

emerged;

Policy focused

on changing the hearts and

minds of offenders rather than on infliction

of

physical suffering. In the 1960s, a counter-discourse deprofessionalisation,

emerged,

decarceration

which, according to Cohen, called for decentralisa-tion,

and decriminalisation.

downplayed

due process in favour

correctional

justice

mechanisms.

Cohen and other scholars have documented

had the unintended

consequence

of excluding

of control they espoused

did not replace

result, the range of controls to the rights of people

of non-intervention,

Such destructuring

inclusionary

targeted

5 The

research

of categories

6

subject

later in this

to

constantly

justice

process in

different

was overtaken

practices.

contexts.

movement measures

system.

in the penal

during the 1990s and early poses to potential

Governments focused increasingly

Oberoi refers to the role that

while Leman-Langlois

As a

An upsurge of interest in

Concern about the risks that crime

and others, for example,

human

rights law

on

plays

and Shearing refer to the enlargement

surveillance.

report,

human rights law framework

with risk.

shift in social control

papers refer to this migrants, refugees

As discussed

the criminal

which people could be subject broadened.

by a preoccupation

of people

that this

who became enmeshed in the criminal justice system (particularly

victims caused a significant

in categorising

controls and pursuit of alternative

groups because the alternative

but only complemented

context), apparent in the second half of the 20th century, 21st century

movements

human

rights

violations

defines human rights

change and develop, reflecting

socio-political,

and abuses

violations

are also socially

constructed.

and abuses, but interpretations

moral and other factors.

The

interna-tional

of these definitions

Chapter

finding

effective forms

and deviance.

hard

expansion

of exclusionary

measures), including mental illness

tagging,

imprisonment

of inclusionary

home confinement,

insecurity

Groups

especially

in a criminal

of Social

Control

features:7 detention (often referred to as

context

detention for irregular practices (soft

but also civil commitment migration, etc.;

measures), such as CSMs, electronic

etc.;

Emergence of pre-emptive inclusionary Justification

by the following

practices,

or drug dependence,

Continued expansion

Modes and Patterns

prevention and paid less attention to the causes of crime

Social control today is characterised

Continued for

of control and crime

3|

controls,

notably the use of surveillance;

of the above policies in terms of protecting the public from crime, immigration more generally (especially

may be subject to social controls

after the terrorist

attacks in the

USin September 2001).

because they are perceived as a threat

deviant or dangerous, not necessarily for

and

or abnormal, consid-ered

what they have done, but because of who they are or the

traits they possess.

II. Human Rightsand Social Control: Tensionsand Complementarities The

over-riding

aim of the project (as reflected in the research

modes and patterns of social control from however, can itself

be viewed as aform

a human rights

of social control.

mainly by the State, but in so doing it creates new forms violations

enforcement

abusers, war criminals).

and state-approved

mostconcrete and best-known form

of ways in

human rights edifice,

It seeks to regulate the exercise of power, of deviance and crimes (e.g., human rights and new deviants and criminals

Similar social processes are at work (rule creation, rule

punishment

of rule breakers) in the regimes of both social control

and human rights. In both cases, rule creation is aform The

perspective. The

and abuses, crimes of the State, crimes against humanity)

(e.g., perpetrators,

papers) is to view contemporary

of social construction.

of rule creation is criminalisation.

There

are a number

which human rights relate to criminalisation:

It categorises

behaviour

violence, torture) It advances

that

as a human

values that

had previously

been normalised

or tolerated

(e.g., domestic

rights violation;

can be used by others

to

support

either

criminalisation

or decriminalisation; It promotes both decriminalisation of particular

7

Blumberg

and

(e.g., of HIV status or homosexuality)

actions (e.g., abuse or discrimination);

Hay (2007)

and criminalisation

37

38

CRIME, JUSTICE,

AND SOCIAL

It regulates surveillance

CONTROL

and limits

state authority

by asserting the right

to construct

wary of state intervention

history.

For instance,

in general. This

wasloosely

movements of the 1960s (as described above). not the business of the State or crimes alcohol abuse, abortion, was seen as ineffective,

pornography, corrupting,

streak

enforcement

without victims

gambling). The

concept of victimless

or crimes

of the State

progressive impulse of new laws. The roll-back

wastowards

early libertarian

of the State; applying the

was criticised,

damage).

became common.

drug-taking,

and abusive of civil liberties.

support for conservative

greed and environmental

declared as pri-vate,

law into these areas

and there

of sexual abuse and domestic violence; and new

(of state violence, corporate power

of criminal

changed. The

to such areas as pornography

widening the criminalisation

were calls for

victims

werefound

More generic terms like abuses

Methods of social control

Human rights campaigns

such as war crimes, genocide and torture violence

perpetrated

by non-state

be seen as the protector ensuring

protection

of the

The

entities, such as multi-national

weak and vulnerable

through law-making

use successful criminalisation role of criminalisation

(i.e., rule creation)

discussed. The by individual

research focuses

as a more general index

of human rights

more on ordinary

crime

responsible

come to

of success.

or crimes

of social control;

of the State are not

(i.e., offences primarily

context

rights values were seen as somehow

human rights

ofthe

Cold

War;it

transcending

specific abuses and campaigned

Human rights organisations today include

social, economic

human rights violations

rules or regulations

concerning

movement concentrated was primarily

concerned

primarily

and cultural

report invites

political ideology

to remedy them.

rights. They

welcome this

8 9

See p. 13, below. Gearty (2008)

and

Douzinas (2007)

Many observers

widening of theory

advocates to deepen analysis

of surveillance)

rights to

have also engaged more with the root causes of

and patterns that are broadly social rather than ones (e.g., new technologies

Human

and choices, and advocates

and the status of human rights as a social problem.

human rights

on

with violations

have widened their remit beyond civil and political

and outside the human rights community This

com-mitted

or sexual abuse, or against

of civil and political rights and claimed neutrality about the contested political conflict itself.

identified

for

crimes.

years, the international

abuses defined in the political

and

The law came to

movements have increasingly

the government in an abstract sense, such as breach of immigration

In its formative

corporations.

citizens against each other, such as theft, violence,

movement) rather than political

violations

offences of discrimination

discussed below8 in the overall repertoire violations

to universal

of gross

and the State as ultimately

processes. Social

is further

however, generic categories of gross further

have raised the visibility

and also (more recently)

of

became increasingly

judged in terms of preventing harm and damage, achieving social justice and conformity human rights standards.

were

with the destructuring

(e.g., homosexuality,

of some existing laws or the creation

crime

in line

were variously

extension

expensive, criminogenic

was denounced for its unwitting

human rights advocates

Whole areas of life

By the 1980s, however, the emphasis radically the stronger

norms (e.g., it restrains

to privacy).

Positions have also changed over recent originally

laws or enforce

narrowly

and practice.9

of and engagement

political. This

and old ones (e.g., probation

within

includes

with poli-cies both new

regimes, imprisonment).

Chapter

It also includes privatisation,

the forces that drive changes in governance transnational

Conversely, theorists standards

3|

and principles

transfer,

and social policy (e.g.,

of Social

Control

managerialism,

medicalisation).10

and practitioners

of social control

such as equality,

to test and evaluate contemporary

Modes and Patterns

areinvited

dignity, indivisibility

social control

to consider how human rights

and universality

might be applied

policies.

References Blumberg,Thomas

and Stanley Cohen(eds.), Punishment and Social Control, New York, Aldine de

Gruyer, 2003.

Blumberg,Thomas Human and

Conor

Cohen, Stanley. Douzinas, Gearty,

and Carter Hay.Visions

Rights: From

Gearty (eds.),

Conor. Doing

Justice,

Willan Publishing,

Visions of Social

Costas. Human

Control,

2008.

David

Polity

Press and Blackwell

Routledge-Cavendish,

Publishers

www.conorgearty.co.uk/pdfs/Doing_Social_Justice.pdf.

Martin. Understanding Social Control, Berkshire, Open University Press, 2003.

10

research

discuss in detail

papers (available many specific

at either

problems

that

Ltd, 1985.

Age, Las Casas Centre on Social

Innes,

The

Chinkin

2007.

Rights: Social Justice in a Post-Socialist Available at:

in Crime, Social Control and

Downes, Paul Rock, Christine

2007.

Cambridge,

Rights and Empire,

Human

25 November

of Social Control revisited,

Moral Panics to States of Denial,

www.ichrp.org

or on the

merit closer human

rights

CD-ROM scrutiny

accompanying

the

printed

report)

39

ParT II

LawasFormal SocialControl

4

Introduction

A lthough

most people are subject to informal

often than formal

social control (Henry,

mechanisms far

1994, 2001, 2013), legal control

more

or gov-ernment

social control through the criminal justice system symbolizes the power

of the state over social institutions. from

social control

specialized

Formal

controls separates those instituted other than the state

controls involve

agencies and organizations. The

(Clinard

Formal social control

by the political

organized

systems of reac-tions

main distinction

between these

state from those imposed

by agencies

& Meier, 2008, p. 31).

consists of the following

subsystems:

Law Police and enforcement Courts and the administration Corrections, including In traditional

community-based

modern industrial

increasing

has increased.

of social institutions.

technological

crimes and new behaviors that into

The

by police and the courts.

For instance,

and sentencing

probation,

and parole

was on socializationlearning

Families, kin, and social groups enforced the rules. In

world and the postmodern

formalization

into laws enforced

adjudication

corrections,

societies, the emphasis of social control

the norms, values, and traditions. the

of justice, including

information

society, there

norms and

mores have been codified

And the number

of acts defined as crimes

advances have created new ways to commit

may be offensive to others or present a high risk.

a computer to gain accessto account information

to commit theft is one example.

has been

Hacking

in order to steal someones identity

Banning the use of handheld cell phones

while driving

is another. Legal philosophers

have long

debated the essential

components

of a legal system.

H.L.A. Harts (1961) classic work, The Conceptof Law, defineslaw as a union of primary and secondary through

rules.

According to

which the basic conditions

Hart, primary

rules are informal

of social existence are satisfied. They

considers right and wrong. It is possible to live by primary stable, close-knit, informal secondary

face-to-face

primary

rules of obligation

communities.

rules cannot

Under

are what a soci-ety

rules alone in extremely

more complex and diversified

cope with the changing

conditions.

soci-eties,

In response,

rules develop. 4

42

CRIME, JUSTICE,

AND SOCIAL

CONTROL

Based on Harts (1961) analysis, 1.

Declarations

of rules (Harts

2. Administration primary

legislation

of rules (Harts

4. Enforcement 5. Sanctioning

rules (Harts

rules for recognizing

occasion, a primary

secondary

elements:

rules)

rules, including

that empower individuals

whether, on a particular

Methods of changing

of primary

secondary

rules, rules of adjudication

about 3.

we can describe alegal system as having five

to

authoritative

make authoritative

judg-ments

rule has been broken)

rules of change)

of rules; of rule breakers (rules authorizing

the application

of penalties

where primary

rules are violated) Each of these elements is carried institutions. by courts

out in the formal

criminal

So, rules that become laws are declared

when they set precedent or by appeals courts

varying levels are responsible for administering procedures.

justice

system by different

by legislators, and the

the rules through

though

U.S. Supreme

also sometimes Court.

a constitutionally

be interpreted

by superior

courts

and by appeal courts,

whole system is responsible

action

This

it is the system of corrections

is not the place to delve deeply into

which make rulings that, in effect, change

that implements different types

in depth in law courses.

and common law. In looking specifically

of formal

law.

as specified

This

section focuses

in

at the formal

criminal

who are represented

and adjudication

sanctions

Law

Context,

distinguish

between

justice system,

we are dealing

officials and the relationship

with public law,

between individual

also includes

constitutional

and regulatory law, executive orders, etc.). Criminal law and procedure address

harms against individuals prosecution

of law, and these are dis-cussed

and procedural law; (c) civil and criminal law; and (d) civil

Criminal law is one of several types of public law (which

law, administrative

of violating

However, just as wesaw

Here,it is enough to know that legal theorists

at the duties and powers of government

and the state.

is

the sanctions.

that there are different types of social control, so there are different types

(a) public and private law; (b) substantive

or can

for enforcing the rules, but this function

exclusively the role of the police. Finally, although the courts sentence those convicted the rules/laws,

Courts at

governed set of

Rules can be changed, by being repealed or reenacted through legislative

the law. In one sense, the

govern-ment

by the state, which acts against offenders through

in courts, to control

their

behavior through

imposing

a variety

of

article I look

at

within the law. on two aspects of law as formal

social control.

In the first

which refers to the waylaw emerges within society and discusses the

from the idea of law as a formal, to the sociopolitical

context

review classical sociological

self-referential

of laws

system of government

origins. I trace the

perspectives on law from

rules enforced

movement toward

Emile Durkheim,

movement

by sanctions,

a sociology

of law and

Max Weber,and Karl Marx.

In the second article I look at the whole system of criminal justice, its policy and practice, asshaped by various ideas and ideologies

captured in

models ofjustice.

References Clinard,

M., B., & Meier, R. F. (2008).

Sociology of deviant behavior (13th ed.) Belmont,

Thompson-Wadsworth. Hart,

H. L. A. (1961).

The concept oflaw.

Oxford,

UK: Clarendon

Press

CA:

Part II |

Law as Formal

Social

Control

Henry, S.(Ed.) (1994). Social control: Aspectsof non-state justice. Aldershot, UK: Dartmouth. Henry, S.(2001). Informal

social control. In C. D. Bryant (Ed.), Theencyclopedia of criminology and devi-ant

behavior, Vol 1 (pp. 182185.). Henry, S.(2013). The

sociology

New York, NY: Routledge.

of deviance

and social control.

The encyclopedia of sciences and religion (pp. 631635).

In

A. L. C. Runehov

Dordrecht,The

& L. Oviedo (Eds.),

Netherlands: Springer.

4

4

ChaPTEr

Lawin Context STUARTHENRY

T

his article provides a brief overview

of the sociology

oflaw. It reviews the

origins of law in society and movesto examine how ideas about the origin of law cannot

the wider society in

be separated from the social context of law as reflective which it is embedded.

in law from anindependent

As such it traces the sociological

of

move-ment

set of logical rules to afully social theory

oflaw.

Law Creationandthe Originsof Law There

are two

concerns

basic kinds of law: substantive

what behavior is prohibited

law deals with the rules governing

and what is allowed,

definitions

substantive law) vary between individuals

and across social and cultural

humans, based on ethics, customs, traditions,

Canadian

developing to the newfield Hilliard

and sometimes

a harm-based

of zemiologythe

& Tombs, 2017).

officials, those legislators

2003). This

by

consensuseven what

groups (Henry

&

has led to some crim-inologists

approach to defining crime study of social harm (Hilliard

which has led et al, 2004;

Whilethe laws that define crime are enacted by elected are open to pressure from lobbyists

actions that are defined by criminal

laws are determined

earlier that laws are enacted as part of a political of a governmental

groups.

At other times,

of powerful interest

Law Commission,

in

that it is created

within the group agrees with the definitions.

counts as crime is based on the influence Lanier, 2001;

whereas procedural

of right and wrong (embodied

as crime is a social constructmeaning

if not everyone

Substantive law

how substantive laws are to be applied, admin-istered,

enforced, and changed. The Whatis viewed

and procedural.

and others. Assuch,

by the powerful.

process by legislators

process. But where do these definitions

I said as part

of crime embodied in

4

46

CRIME, JUSTICE,

AND SOCIAL

law come from? Those

CONTROL

who study the origins of law have developed different

models, or theories,

to answer this question.

WhereDoesLaw ComeFrom? Until the

modern era, there

approach

saw all laws as being divine

god, then law the

basic approaches products;

was seen as emanating from

will of humans.

a product law

were two

universal essential

Aquinas saw law as bound

the

between divine law and natural law (Halsall,

U.S. Supreme

Thus,

Court adopts this

lawbreaking

we know

what is

idea of universal

by philosophical that all laws

morality.

moral values. Natural

thinkers

these supernatural known collectively

were, or should be,logical

was known as the legal

positivists.

nature and the

John

Kelsen (1930, 1941, 1967), also alegal

procedures.

He pointed

shared normthe

Kelsen, explains the systematic stipulated

as legal

by the constitution

or at the very least,

with these theories is, how do

formalists.

with rational ideas about law These

philosophers

believed

with each other. One group of legal formalists

Austin (1832), for example,

distinguished

Austin saw law as an independent,

developed the theory

because they are formed out that these laws grundnorm

between law

isolated, logical,

wrong are irrelevant.

was commanded

was known as the command

positivist,

that customs or norms only become laws legislative

of

who decides this?

wasthe only type of rules that

on pain of sanctions. This

a broad basic, commonly

was not muchto

Clarence Thomas

humanity,

system of rules and believed that the ethics of right and

Law, unlike customs and norms, a sovereign ruler

God and/or

beliefs were replaced

and consistent

and other rules such as morals and customs. and self-consistent

Chief Justice

A major difficulty

God-given or what is natural, and secondly,

With the Enlightenment,

was

position.

wasseen as an offense against

against the underlying

was beyond whereit

up with human

1996).

One

Gods law. If not a specific

power. In either case, law

general plan of life; if this plan was seen as governed by divine reason, then there distinguish

of law.

approach, saw law as natural,

of life and represented

such asThomas

of the origins

was essentially

a supernatural

Asecond, and equally essentialist

of the continuous flow

philosophers

law

to the study

on a subject

theory

of Pure

of law.

Law.

its sys-tematic

were based on, and consistent grundnorm,

unity of law. It is the idea that people ought to behave in the of a state and by laws authorized

Hans

He argued

by the state, through

or grand norm. The

by

with, says manner

by its constitution.

Legal positivists such as Austin and Kelsen were criticized for: (1) ignoring the will of the people in shaping law; (2) failing to see that social and human factors recognizing law is

that judges, as well aslegislators,

made or in

makelaw; (4) failing to identify

whose interests is the basic norm; and (5) assuming that

had no law (even though they clearly then, there is atension

have mechanisms of social control).

between the systems of social control

of formal law that serves a societal-level from informal

affect the application

mechanisms of social control.

in whose interests the nonindustrial

and the creation

Yetlaw also has a degree of differ-ence

Indeed, the sociological

perspective increasingly

addresses not only this tension, but recognizes that both systems are interdependent system of social control

societies

From our perspective,

used in all societies,

social control function.

of law; (3) not

with the

wider

Chapter

4|

Law in

Context

The Emergenceof a Socio-LegalPerspective

onthe Originsof Law In introducing

the concept of social control

Eugene Ehrlichs through of legal

process that are found in law

are not peculiar to law but afeature

development

society itself

we mentioned the concept

view, it is neither god nor nature that is the source oflaw.

government

says sanctions

earlier,

lies

(Ehrlich,

not in legislation, cited by Trevio,

of living

of group

positivists,

membership: [The]

Ehrlich

center of gravity

science, nor in juristic

2011, p. 124). Indeed,

In

Noris it rules developed

books. In contrast to legal

nor in juristic

law.

decision

but in

he states in his classic 1913 text,

Fundamental Principles of The Sociologyof Law: The

social association is the source of the coercive

norms, of law ... law, chiefly

Man[or

power, the sanction,

of all social

Woman] therefore

conducts

himself [or herself]

according to

madeimperative

by his [or

her] social relations.

In this respect

because this is

the legal norm does not differ from the other norms. The

state is not the only association

that exercises coercion; there are an untold number of associations in society that exercise it

much more forcefully

to that law

than the state ... This

then is the living

law in contradistinction

which is being enforced in the courts and other tribunals. The living law is the

which dominates life itself

(Ehrlich,

1936, pp. 6364)

Ehrlichs

concept of law,

which it is derived

even though it has not been posited in legal propositions.

with its origins in custom, also exists in tension

because it takes time to change law,

Ehrlich saw law as the surface crust of a series of layers propositions

of formal

Ehrlichs

positive law to the spontaneous

which reached

of the formalists.

carried

on in accordance

manner and administrative a person in

process

order to constrain

and to deter him [or her] from

organized

Pound argued that it individual

society

with a body of authoritative

context in Pound

which it

of

precepts applied in ajuridical

him [or

her] to do his [or her] part in upholding

anti-social

conduct; that is conduct at variance through

the systematic

civilized

society

with the postulates

application

of the force

(1942, p. 83).

makes no sense to say the law is independent day-to-day

operation

He argued that good law cannot

than simply recognizing

suggesting that law should

of any social context and in the actual

because

working

of

be made without knowing the social

patterns.

be an instrument

Because of this,

the relationship

while Pound started

between law and its social con-text,

of social change to adjust society to the new and

his approach

view of law, or as he himself described it, functional Pound, said that

highly specialized form

will operate.

went further

changing societal

and

(Pound, 1942, p. 41). Pound says that law exerts pressure on

actions are necessary for the laws

the legal system in society.

which was a major

Drawing in part on the work oflegal formalists

of social order (1942, p. 18). Law is social control of politically

down from the abstract

jurisprudence,

in part on the work of Ehrlich and Ross, Roscoe Pound defined law as a social control

of custom.

living law in the group and association.

and Rosssideas led to the emergence of sociological

challenge to the legal positivism

with the custom from

which lags behind the living law

was referred to as a social

jurisprudence.

engineering

Alan Hunt (1978), a critic

off with the right idea, he ended up abandoning

of

any search

4

48

CRIME, JUSTICE,

AND SOCIAL

for the social foundation

of law and eventually

Hunt says despite Pounds because he didnt

CONTROL

really

continued

was concerned

writings, sociological

with the effect of law on society.

jurisprudence

diminished

school wasrooted in the ideas of Oliver

view of law

was known as legal realism.

Wendell Holmes (1897) and developed byJerome Frank

(1930; 1949) and Karl Llewellyn (1930; 1960). Realists were sympathetic to the jurisprudence

but complained

their concerns law as the

that it needed to be more activist. The

with law in action

to

or specific

will do in fact.

made byjudges, arguing that if judges systematically

written laws, then it

Benjamin

made no sense to call their

decisions law.

a prediction

if its authority is challenged.

of these laws shows a bias toward because the content of laws

law-in-action

waschanged, this

advocated to improve

and law-in-the-books.

because it suggests that informal

the

wasinsignificant

way law

operated

practice of plea

authorized

most of the time

and to

by enforcement

practices are the basis

that the

U.S. Supreme

bargaining). but it

within

Court has

Moreover, legal realists

must also be used regularly,

agents is not law.

theorists,

have been criticized for failing to see

make decisions is not only dependent on their individual

but is part of a wider social context these informal

minimize the gap between

perspective, this is very important

use of force,

Realists, however, like sociological jurisprudence that the way judges and courts

was different from their content.

practices are themselves law. If informal

must have orderly,

arguing that just

if the actual practice of applying the

From our social control

now set some rules to govern the informal

since law that is ignored

laws, but if the actual opera-tionalization

sociological jurisprudence,

of legal outcomes, then they are, in effect, the law (not surprising

point out that law

principle or rule of conduct

race or gender in their application in the courts, then

Realists criticized

by the day-to-day decisions ofjudges and law enforcers

Legal realists

Reallaw, according

with reasonable certainty that it will be enforced by the courts

For example, there are antidiscrimination

the real laws allow discrimination.

ignored legal

what the law books say happens.

Nathan Cardozo (1924, p. 52) defined law as a

so established asto justify

laws in reality

Holmes (1897, p. 461) defined

Hecriticized legal positivists for not paying

Holmes, is what actually happens whenlaw is applied, rather than Similarly,

messageof sociological

core ideas of legal realists are

rather than the law in the books.

prophecies of what the courts

attention to the actual decisions theory

after 1918

break from legal formalism.

Athird school of thought leading to a fully sociological This

only

which judges

operate. They

failed

decisions

to recognize

that

practices and failures to enforce some laws but enforce others are part of a political

process involving In summary,

powerful then,

took, sociological

groups.

whereas legal

jurisprudence

while legal realists

positivists

theorists

were concerned

were concerned

focused

with the logic

on the content

with the actual administration

and form that law

and social context and application

of the law,

of the law.

Blacks Sociology of Law One of the

most prominent

of recent sociologists

of law,

who tries to draw these

various ideas

together, is Donald Black (1976), in his book, The Behavior of Law. Black takes a position that is not dissimilar

to that taken

he also acknowledges forms

of social control;

to the study of law

by both legal

anthropological though

positivists

and legal realists.

and sociological

ideas

But unlike these theorists,

by accepting the existence of other

critics point out that he eventually

rejects these as being irrelevant

Chapter

Consistent

with several of those

as government litigation,

we have examined,

Law in

Context

with the development

Black (1976, p. 2) defines law

Hesees law as one special type of social control

of nation states.

because it involves

from these other forms Like legal realists, of legal officials

Black says that law is different from

government, is formal

only by focusing

separately

on the behavior

Black (1976) sees four styles of law, each corresponding

and punishment;

obligationsubject

to giving victim restitution;

treatment;

Conciliatory:

to a style of

(2)

Compensatory:

(3)Therapeutic:

the deviant represents

offender violates a contractual

deviant broke normsneeds

one side of a conflict in alarger

help,

dispute and

or settlement.

While Blacks theory

of law is considered

sociological jurisprudential full sociology

of social

four styles of social control in law: (1) Penal: offender violates a prohibi-tionsubject

to condemnation

needs resolution

other forms

and must be understood

Black argues that law can be understood

Heidentifies

and (4)

and rational,

which develops only

of control.

and citizens.

social control.

of law

sociological,

it really

builds on the formalism

approaches, rather than the classical sociology

we need to go back to the roots of sociology

envisaged law and formal

and look

and

of law. To understand at the

a

way its founders

social control.

Durkheim, Weber,and Marxon Law As Alan fully

Hunt (1978) has argued, the shift from

sociological

perspective

Weber, and Karl

Marx. Each was writing at atime

law in the context social structure

a social jurisprudential

draws on the classical sociological

changes, from afeudal era to an industrial of the social structure

and organization

turn, can shape the structure stable social institutions interrelated

perspective

theorists

when societys structure

society. In different of a society. The

mile

on law to a

Durkheim,

had undertaken

Max

massive

ways, each of these theorists locates

major idea of these theorists is how the

of society shapes its system of law, and how systems and law, in

of society. This

occurs because the whole society comprises relatively

such as law, government,

education, family,

religion,

etc., and each part is

with the others, so that a change in one part produces a change in the others.

The Movefrom Statusto Contract One of the first to observe this relationship

wassociologist

Ancient Society, which he based on analysis of law in Hunt (1978)

points out,

Maine described this shift

to that based upon contract. began as the commands sovereign,

position

Henry Sumner

of the head of each isolated as the customs

Maine (1863) in his book,

Greek, Roman, and Indian civilizations.

asthe

movement from law

Maine saw law emerge in an evolutionary

which became codified

elites.

4

social control ... the normative life of the state and its citizens, such aslegislation,

and adjudication.

control,

whose ideas

4 |

As

based upon status

three-stage

process. Law

household; it became the rule of the patriarchal and texts

of state rulers

and latterly

of adminis-trative

Maine believed that progressive societies changed from laws based upon ones social

or statussuch

and duties determined and not inevitable

as family

member, serf, slaveto

by free agreement

(Scala, 2011).

and voluntary

a system based upon contracted consent,

but this progress

rights

was complex

50

CRIME, JUSTICE,

AND SOCIAL

CONTROL

Durkheims Division of Labor One of the first

sociologists to examine

how forms

of law are related to social structure

Durkheim in Division ofLabor (1893). Division oflabor society to survive into separate tasks performed divided, it becomes

more specialized;

other tasks.

Durkheim

having their

own characteristic

those

was mile

meansthe division ofthe work neededfor a

by separate individuals

who develop specialized

considers two types of society corresponding

and groups.

Once work is

skills are less able to perform to two historical

periods, each

type of law.

Mechanical Solidarity and Repressive Law The first

labor,

of these periods analyzed

by Durkheim

was preindustrial

with repressive law.

Ancient societies and preindustrial

meaning that their

members do similar

the society.

As a result,

bond. Durkheim

solidarity. common

Under

of similarity

relationships,

consciousness.

punitive law; blame and the communitys resists. These

small-scale

form

by tradition,

and they

friendship,

multiplex (multi-stranded) Violation

values, such that it shocks the collective would have a repressive

or

would be heaped on the offender in order to express

of law is

manifest as a collective reaction to the threat, and must be the common

collective

societies have little tolerance for the rule breakerthey

society. Justice is directed toward an isolated individual.

which produces a

and norms of the group.

said these societies

conscience that is attacked, it

order over the individual,

clarifying

conservative Durkheim

moral condemnation

displeasure. This

since it is the common

maintaining

societies, everyone knows everyone

and they are involved in

where each member knows the rules, customs,

or common

of

way members are held

or collective sentiment,

members are bonded together

of norms presents a threat to the societys sentiment,

social order, or the

and shared beliefs. In such small-scale

else, members exist in face-to-face relationships,

have a minimal division

described this kind of society as being held together through mechanical

mechanical solidarity,

understanding,

societies

which he saw as asso-ciated

most share tasks necessary for

members are replaceable. The

together in such a society, is by the spirit common

work;

society,

reaction that

emphasize social

deny a person a place outside of the social status they hold in

the person as a social status in a social context rather than toward

Repressive law serves the society

by bringing together the community,

by

its rules, and by maintaining social order.

Organic Solidarity and Restitutive Law The

second period

resulted in scarcity

Durkheim identified of resources,

meansto achieve goals.

people became dissimilar

industrial

society, says Durkheim,

and there of labor,

was a lack

asindustrial

by dividing

Here, people developed specialized

a result,

values.There

is that characterized

which was overcome

ofinterest

was held together

which increased

in contrast to those in the preindustrial was no longer

held together

in, or understanding

by the principle

of differentiation.

to each other and the groups or different

by similarity,

efficiency.

communal

common interests,

skills

kind of society, Because their were dependent

As

era.The

of, people doing other specialized

was no common consciousness to be shocked. This

indispensable

skills

society. Population growth

work tasks and using rational

and

tasks,

with a high division work functions

were

on each other, the

Chapter

needed each other to sustain the by organic

mutual interdependence

developed restitutive and separate.

things to how they

contract

said this

law,

ofits

which is rational

to serve the growing

law.

restitutive

of

who is described as a structural expand in order

needs of the society.

density that suggests the moreinteraction,

of labor, there are several additional growth

results in an even greater need for law; (3) 1967; Black, 1976), implying contacts

that divisions

movefrom of labor

and the more conflict, the

settlement-directed

relations,

others

behavior,

and specialization

which

(Gluckman,

actually reduce the number reduces the number

with the result that in simplex societies

morelaw is needed; and (4) inequality

produces differential accessto the law and those

talking,

multiplex to simplex relations

we have with others, but that this simultaneously

we have to control

social

and the need for coordination;

the more conflict,

morelaw, the less people solve problems through

single-stranded

valuable skills and does

these legal institutions

structure factors that shape law. These include: (1) population

occasions

asisolated,

law is designed to return

retains their

Durkheim,

develops in complexity,

Others have argued that in addition to the division

of face-to-face

by organic sol-idarity

As a result of these social system demands, the law

main vehicle of restitutive

argues that as society

morelaw; the

Context

was character-ized

and designed to protect individuals

Since people are not replaceable,

valuable resources.

emerged as the

(2) interaction

kind of society

members, a society characterized

were before the norm or law violation. This

not waste the societys functionalist,

Durkheim

Law in

solidarity.

Because of the

specialized,

whole society.

4|

of

with their

across class, race, and gender lines

who are excluded areforced to use other mechanisms.

Max Weber, Ideal Types,and LegalPluralism Max Webers view oflaw is defined through standard

other collective

norms. For

units and organizations aimed at bringing

guaranteed

be exercised by a staff of people especially a shopping

A norm is a

order, but so too are custom and

that develop their own rules.

about conformity

order.

or subset of society, and a normative

Weber,law is a normative

will be called law if it is externally coercion

guards,

of the normative

pattern of behavior accepted as typical for a society

order is a body of enforced

order

his conception

Weber(1954, p. 5) says: An

by the likelihood

that (physical

or psycholog-ical)

with the order, or at avenging its violation

holding themselves

ready for this purpose.

For exam-ple,

mall, with rules about dress and behavior, policed by a staff of uniformed

would be a normative

order.

However, formal

orders in that: (1) pressures to conform

law is distinguished

must come externally

from

in the form

will

security

other normative

of actions or threats

of

action, regardless of whether a person wants to obey the law or not; (2) external actions or threats always involve law

coercion

or force; and (3) those

who have the authority

enforcement calls the form For

(e.g., police). of normative

to enforce

who administer

coercion

orders and who have official

are a staff specialized in

positions in organizations

When these people are part of an agency of political order state

authority,

while they do involve rules and a duty or obligation to conform, of disapproval,

are not law, says

Weber

law.

Weber,customs are not law because there is no sense of duty to follow them.

for the implementation

for

and sanctions in the form of expres-sions

Weber(1954, p. 27) because they lack

of coercive power.

Conventions,

Nor do stateless nonindustrial

specialized

personnel

societies havelaw because

5

52

CRIME, JUSTICE,

AND SOCIAL

CONTROL

they do not develop specialization is not law, informal

controls

group such as private normative

or organization.

used by private associations,

police and a disciplinary

order is at the root of his definition

presents societys

While informal

control

where these are carried

board, are laws.

Because

of law, it permits legal

each having their own normative

the emergence of law in terms

The first

pluralism,

explaining

of the development

is a theory

of industrial

which as wesaw

of domination

multiple

Weber saw several struc-tural

economic,

Weber presents two theories

about

in

Durkheim, trying to explain

society.

the emergence and change in law, including

and social status or prestige.

of the

order.

Weber,in his book On Law, Economyand Society(1954), was,like

religious,

out by a special

Webers definition

members with competing legal demands because of their involvement

groups and associations,

factors

without organization

political, technical,

of law and legal development.

why people obey the law and the second is an analysis of

models of law and legal systems.

Webers Theory of Domination Weber calls the probability coercive

domination;

group exercises force:

that commands

and (2) legitimate

monopolistic

will be obeyed domination, domination.

power. Coercive domination

(i) physical; (ii) economic; or (iii) psychological.

explain

why people obey the law irrespective

under legitimate

(i)

charismatic

Legitimate

domination is different. It tries to

of the consequences to themselves.

which is characterized

two types: (1)

exists when a person or

can be the result of one or more kinds of

domination is a result of authoritative

domination

and identifies

Coercive domination

power,

Webersays confor-mity

of which there are three types:

by: (a) exceptional

qualities

of leader;

and

(b) allegiance to person; (ii)

traditional

domination

which is characterized

by: (a) customary to follow the position; and

(b) allegiance to the office; (iii) legal domination

which is characterized

allegiance to rules (independent Thus,

legal domination

by: (a) following

the rules or principles;

(b) having

of person or office).

is not related to other influences;

we obey the law

because it is the lawbecause

of the principles it represents.

Webers Theory of Legal Development Weber was concerned

with the factors that lead to the growth

of law) in the process of modernization.

of rational justice (or rationalization

Weber said rational law

only occurs

when four factors

coincide: (i) trade and commerce resulting from capitalist interests; (ii) competition, the use of money, and the need for the nation-state

predictability;

(iii) the rise of monarchical interests,

and its associated bureaucratic

of alegal profession, legal procedures, is its reliance

on impersonal

Weber distinguishes refers to the extent to

administrative

form

the development

of government;

and techniques. The importance

of

and (iv) devel-opment

of rational justice

rules rather than personal authority.

between two dimensions oflaw: (i) formality; which lawmakers,

and those

and (ii) rationality.

who enact the law,

use standards

Formality internal

t

Chapter

the system. This

dimension

results in two types

of law: (a) formal,

Law in

Context

in

which all the rules and all

from

within the system; and (b)

procedures

necessary for decision

substantive,

in which there is reference to external criteria, such as ethics, ideology, emotion, politics,

etc. Rationality

distinguishes

making are available internally,

4|

between two types

like cases are treated equally;

and (b) irrational

of legal processes: (a) rational

law, in

the same kind of case can result in different outcomes Combining four logical

these two

possibilities

dimensions, or ideal types

law, in

which like cases are treated and low

5

which all

differentlyi.e.,

predictability.

the degree of formality

and the degree of rationality

gives

of legal system. See Table 4.1 below.

Webers Legal Pluralism and Modern Law Webers theory pluralist.

of law, therefore,

sees several types of law existing simultaneouslyi.e.,

His analysis is complex and

types of law: (i) formal rational

multifaceted

law; and (ii) substantive irrational

which goes by the book on the basis of rules legal formalism, the particular

but is typically

norms and sanctions

law is

and by the social relationships

of custom and that

to considering

law. Formal

madein advance, similar to

i.e., written law. Substantive-irrational

circumstances

simplified

rational

two

law is law

what we discussed under

moreflexible

involved,

heis alegal

and is influenced

by

which is similar to informal

which we discussed earlier as a realist

view of law,

i.e.,

what people do in practice. In reality, formal when ordinary Sally

rational law and informal

people use the law,

working-class

in terms

Americans experience the actual practice

of its formal-rational

sense. But she found that

Americans also believe that the law is awesome and powerful, truth,

applying laws firmly,

American society (the The

and providing justice.

mainideas conveyed

central ideas of formal law and justice

moral rights, such as property to be free from insult,

For example,

we see that law is open to both of these two basic interpreta-tions.

Merry (1986) shows that until

of law, they understand it primarily

substantive law coexist in any society.

rightsthe

capable of uncovering the

Merry calls this the dominant

legal ideology

by elite groups and accepted bythe

right to use and retain

harassment, threats,

majority of society).

or violence

possessionsand

without provocation;

enforced

by the state through

and courts that are accessible to all; and (iv) the state takes infractions

personal rights

(ii) these rights are a system of police

of these rights seriously.

TABLE4.1 WebersIdeal Typesof Legal Systems FORMAL (Internally validated and based upon rules) Charismatic Justice differ-ently) Unpredictable e.g., magic, oracle

RATIONAL (Like cases treated similarly)

of

are that: (i) people have broad legal rights that shade into

equal for all persons; (iii) these rights are routinely

IRRATIONAL (Like cases treated

work-ing-class

RationalJustice Predictable e.g.,ideal of U.S.justice

SUBSTANTIVE (Externally validated and situationally based) Kadi Justice whichis Unpredictable e.g.,jury decisions

EmpiricalJustice Partially Predictable e.g.,Englishcommonlaw

54

CRIME, JUSTICE,

However,

AND SOCIAL

CONTROL

when working-class

Americans experience

cases to court, they discover that an ideology does the legal realist substantive

law.

(ii) lenient;

(iii)

justice

position

personalistic;

and (iv) produced

and social and ethnic identity; (iii)

offender, the extent of injury;

ideology

justice

that it is: (i) situationally

based;

of situational and

generally, interpersonal

bottom-up

by as

or context in

which the incident

mutuality of the conflict,

cases are not considered

by the participants; ideology

must be triggered

assault) are not all considered

who you are; whether you have money, a job, a

between the parties, the

Merry calls the dominant

of situational

about

of laws is not automatic; it

with the law; and (b) the situation

are severe penalties incurred

standards.

of anthropologists

equally; they depend on a persons history, character, rank,

(ii) the enforcement

occurs, such as the relationship

and rarely

law find

all cases with the same label (e.g., harassment,

for being in trouble

prevails. In practice, not only

within alocal setting. The ideology

equally serious; (iv) seriousness depends upon (a) reputation

justice

(i) rights are viewed as embedded in social relationships

rather than being distributed

complaints;

with the law in practice by taking

but so too do the ideas

Americans encountering

has a number of components:

situations,

of situational

have some truth,

Working-class

dealing

the intent

of the

worthy of afull trial

and (v) behavior is judged

of formal justice top-down

by custom-ary

ideology

and the

ideology.

Conflict Theory, Marx,and Critical Approachesto Law Karl

Marx was a philosopher

radical theories

of law.

critical race theory,

and sociologist

Marx influenced

who also provided

the foundation

a variety of critical theories, including

and feminist legal studies.

for conflict

and

critical legal studies,

While we cannot consider these developments

within

the scope ofthis volume (but see the related volume in this series Lawin Society),it is important to understand their foundations Marx(1911), like

in

Durkheim

how its economic mode

and

of production

An essential difference between the private ownership

Marxist theory.

of property

Weber, was concerned shaped and influenced

Marx and other theorists asthe dominant

proletariat). The corporations

earn income

dependent

on for their ability to

control it.

As Friedrich

Engels,

Marx saw the fundamental

and owners of labor (working and capital,

particularly

of conflict

that

Marxs collaborator,

the productive capitalist

The

class, on the one hand, strives to

maximize

class (bourgeoi-sie)

of the fruits

of this

struggle is process.The

maximize profit from the unpaid labor

working class. Its income lies in rent, interest, on the other hand, strives to

different roles,

and the law needed to

economic site of this particular

process; it occurs over the distribution

and industrial

profit. The

and

who they are

says:

In capitalist societies the basic class struggle is between the capitalist and the working class (proletariat).

of these

produces both crime

class or

companies

by selling their labor to capitalists,

work in exchange for a wage. As a result

the two classes exist in a relationship

one of which is law.

which generates vast inequalities

class struggle.

from investments

that they own; the latter earn income

society and

wasthat he saw capitalist society based on

between owners of wealth (capitalists)

former

capitalist

its institutions,

driving interest,

of wealth for owners of capital, leading to an economic division in society

with explaining

of the

working class,

wages.It attempts to do so by reducing the lengt

Chapter

of the

working day, by compelling

concessions from the capitalist security. The

employers to pay higher

class as health insurance,

goals of the capitalist

4 |

Law in

Context

wages, and by wresting such

work-safety regulations,

class and the working class are thus

and job

mutually exclu-sive.

Typically, the one maximizesits return from the productive process at the expense of the other. (cited by Beirne and Messerschmidt, 1991, p. 340)

This

basic economic relationship

of production,

or the infrastructure,

called the superstructure.

The

As one of those institutions class to

between capitalists and workers constitutes the economic

maintain their

which lays the basis for the rest of societys institutions,

infrastructure

of the superstructure,

society

disappear

class to

(1)

of the capitalist

Law is a product of evolving economic

maintain its power over the lower

of the future, law, as an instrument

of social control,

classes; (3) in

will wither

away

and

(Vago, 2012, p. 49).

As we will see, however, to the lower

to serve its interests.

law is seen to serve the interests

on law into three assumptions:

forces; (2) law is atool used by the ruling

finally

shapes the superstructure

position of power and control in society over the workers. Steven Vago sum-marizes

Marxs position

the communist

mode

maintain its legitimacy,

law actually

classes, and so is seen as valuable to both dominant

becomes one of the institutions

through

which, and over which, the conflict

each class struggles to capture the resources of the nature of interests, the state, and labor,

protects some of the interests

and subordinate

of the law to further

particularly

have led to a different

of interests is fought,

its interests.

how they see economic

of

classes. Assuch, law as

Different interpreta-tions

power divided between capital,

emphasis in conflict theories

oflaw.

Marxist Theorists of Law There

are two

Marxist views of law that differ, based on who has power and how power is distrib-uted:

(i) Instrumentalist Instrumentalist

Marxist; and (ii) Structural Marxists such as Richard

that law is an instrument by, a dominant, theory

of repression monolithic

argues that this ruling

class structure is the and who head the p. 53).

Quinney (1973; 1975;

economic

elite.

corporate,

capitalists, banking,

Monopoly capitalists, says Quinney, totally

capitalists. lieutenant

These capitalists

justice

dominant

as a coercive apparatus to criminalize Structural

would simply ignores

Marxists such as

elite.They

major units of the economy,

institutions

William

1973,

which he calls lieutenant companies.

Together, the

of the state act to repress the subordinate

their superior

Chambliss (Spitzer, 1975;

justice

system

position in the social order. Greenberg, 1981; Chambliss

arguing that if such a view of society

elites to legislate

change the law to suit their interests. between capitalists

(Quinney,

use the states law and criminal

those threatening

would be unnecessary for powerful

conflicts

andfinancial

manageless powerful

apparatus

& Seidman, 1982) criticize this crude instrumentalism, accurate, it

who own

domination

At the top of the

control the state and orchestrate its every action

groups own or

and the criminal

or heavily influ-enced

major groups.

also delegate power to a subclass of elite,

subordinate

classes on behalf of the ruling

directed,

Quinneys (1973; 1975, 1977) elite

elite is divided into two

more powerful monopoly

through the legal system. They

Krisberg, 1975) have argued

used by the state (government)

economic

most powerful

Marxists.

against their

own interests; they

Further, they say that the instrumentalist

and cannot explain conflicts

over legislation

were

view

on noneconomic

5

56

CRIME, JUSTICE,

AND SOCIAL

issues such as abortion, early capitalist supplanted The in

CONTROL

drugs, and so on.

production,

coercion

by the silent compulsion

While the instrumentalist

position

becomes less necessary as the of the

mode of domination

by subordinate

of having to compete in situations

classes as natural.

of exploitation

and autonomous

As a result, the state can take aless coercive role, reserving its

monolithic economic

of independence

discipline

in order to survive is accepted

repressive apparatus for usein exceptional cases of riot and collective protest of a dominant

becomes

market (Young, 1981, p. 296). Einstadter and Henry say,

capitalist system of production serves asits own system ofregulation

which the reality

may better apply to

elite, structural

(2006,

p. 245). Instead

Marxists argue that the state has some degree

from the owners of capital and can be described as semi-autonomous.

The law

provides a degree of real protection to the working class. If the laws did not have these protections, there

would be aloss of governing legitimacy.

is semiautonomous,

Structural

meaning that it is influenced

but the state also exists independently some control

elites: an economic

class and a governing

exploitation,

the long-term

class.This

its

interests

of those threatening

consensusthe

dampens the resistance

and corporations

and

but contains

as a tool of class domination

custom into its rules, thereby

Austin

This

threat can come

behavior threatens to powerless.

the language

of universal

By focusing

deceiving

on rights, such asthe freedom as a whole. Individual

group to the state destroys local

state domination.

So, by promoting

mass of those in a similar

people into thinking

Turk adds a further

dimension

Marxists, he says law is

to this

Diamond

leaders are stripped

social units,

that law is

class can defuse any

of the individual,

the individual

class position

Stanley

than it is in exercising simple force

By making law appear to contain customs, the ruling

Austin Turks Law and Ideological Structural

While this

Marxist perspective, it is the behav-ior

of the poorer classes by obscuring its real imbalances.

more effective

from the local

separated from the

allows capitalist

to labor, the concession is enough to

had the power to gain support for resisting the class interests

from

of legitimating

Henry, 2006, p. 238).

that hold power (if their

interests,

of

worst excesses

Henry, 2006, p. 238). As

and protests of the economically

promote ruling-class

is created that law serves the population

individual

the

idea that law is for all the people. The idea that law serves everybody

because it can incorporate

of authority

and

the overall system of capitalism that is criminalized.

Law, then, does not just

organized resistance.

(Einstadter

of two

model produces an appearance

(Einstadter

From the structural

expose the system) asit can from the resistance

in all peoples interests.

model of society comprising

mediating influence,

losses for capital in relation

of capitalism.

as muchfrom the very individuals

(1971) says law is

protection laws, food and

neutral element in the power structure,

without obvious challenge

dona-tions),

and is able to exercise

and the crises these create, are controlled in the interests

may result in short-term

serve the long-term

justicei.e.,

powerful

dual power

to the system. Through

state, as an allegedly

to prevail

system

this dual power

maintenance of the system of inequality

a result, then, the inequality

power (e.g., through lobbyists,

of the economically

and Henry summarize

that adds legitimacy

of economic

by economic

over their excesses (e.g., health and safety laws, consumer

drug laws). Einstadter

neutrality

Marxists argue that the state (government)

of local

the impression groups

who once

of that power. The flow which could

protect the

as the basic unit, people are

and collective

opposition is splintered.

Domination

notion

of a more subtle form

more effective at producing ideological

of domination.

domination

Like

than it is a

Chapter

a coercive

mechanism for domination.

Turk (1969) summarized

power that legal systems can give those force as an available economic activity,

meansfor getting

power to those e.g., tax. Third,

this argument into five

First, law transfers

who control it because it creates rewards

environment

power. So, by capturing

law,

power to established

promoting

compliance.

dominant interests

without the need for coercion,

groups emerge as more powerful. These

subordinate

and more autonomous containing

Fourth, law

law

In summary,

is challenged

Overtime, this authoritysubject

adjustment relationship

view of law, indicating

of both coercive, though

means of production.

Marx and

century

as gender (feminist

legal theory), race (critical

and gender (intersectional postmodernist

perspective

theory).

that truth is an illusion,

race theory)

Other critical theorists

arguing that all laws and law

set of ideas or ideology,

depending on the

Marxist conflict theorists,

in favor

different critical theories

shifted the focus from economic class bases of power to other dimensions

control,

serving the

of those

and as part who own the

of law emerged,

which

of societal structures

such

and those based on all three, class, race, came from

a social constructionist

making are biased toward

that there is no basis in fact, only a competition

and

one or other

of truth

claims,

and that ultimately the problem is the exercise of power by some over others.

only wayto challenge that system of power is the deconstruction

some follow

that as various social

mystifying its contradictions,

maintaining the system of class exploitation In the late twentieth

arrangements

Weber saw law tied to a variety

ultimately ideological,

of maintaining the system of capitalism,

of the state apparatus,

The

becomes less coer-cive

of reality.

of its generative normative order. In contrast, for

broad interests

over others,

of these groups to

are born into the existing structural

whereas Durkheim took a functionalist

law emerged as an institution

powerful

relationship

processes and that different types oflaw could exist simultaneously,

characteristics

or under-mined. particular

argues that people have to learn to deal

change, so law changes to fit the needs of the new order,

of structural

favoring

arrangements,

an authority

results in a permanent

as new generations

provides diversionary environment

when the legitimacy

Turk (1969)

preexisting laws, rules, and definitions

structures

the use of physical

political institutions.

Andfinally,

groups command

over them. This

to those in authority.

kinds of

for economic

can create an ideological

except

become subject to their control.

with others having authority

Context

and punishments

Turk (1969; 1976; 1982) believes that under these social-structural

who in turn

Law in

what is wanted to those who control the law. Second, law gives

law gives political

provides an ideological

their interests

who control them.

4|

deconstruction

with a more optimistic

reconstruction

of all claims to truth.

Although

of practices and policies that are

designed to reduce the harm produced by excessive investment

in power, regardless of where that

comes from (See

1996).

Milovanovic,

2003;

Henry and

Milovanovic,

References Austin, J. (1832).

The province ofjurisprudence

determined.

London: John

Murray.

Beirne, P., &Messerschmidt, J.(1991). Criminology. New York: Harcourt, Brace, &Jovanovich. Black,

D.(1976).

Canadian Cardozo, Chambliss,

The behavior of law.

Law Commission B. N.(1924).

Academic

Whatis a crime?

The growth of the law.

W., & Seidman,

Addison-Wesley.

(2003).

New York:

R. B. (1971. 1982).

Press.

Ottawa,

Canada:

Canadian

New Haven, CT: Yale University

Law Commission.

Press.

Law, order and power. 2nd ed. Reading,

MA:

5

58

CRIME, JUSTICE,

AND SOCIAL

CONTROL

Diamond, S.(1971).The rule of law versus the order of custom. Social Research:AnInternational

Quarterly

34(4), pp 4272.

Durkheim, . (1893,1964.). The division oflabor in society. New York, NY: Free Press. Ehrlich, E.(1913, 1936, 2002.). Fundamental principles of the sociology oflaw. New Brunswick,

NJ: Trans-action

Publishers. Einstadter,

W.J., &Henry, S.(2006).

Criminological theory: An analysis of its underlying assumptions. New

York, NY: Rowan & Littlefield. Frank, J. (1930). Law and the modern mind. New Brunswick, Frank, J. (1949, 1973). Courts on trial:

NJ: Transaction Publishers, 2009.

Myth and reality in Americanjustice. Princeton,

NJ: Princeton Uni-versity

Press.

Gluckman,

M.(1967). Thejudicial processamongthe Barotseof Northern Rhodesia, 2nd ed. Manchester,

UK: Manchester University Press. Greenberg, D.F.(1981,1993). Crime and capitalism: Readingsin

Marxist criminology. Palo Alto, CA:

Mayfield. Halsall, P.(1996). Aquinas onlaw (SummaTheologica,

III,

Questions 9097).

Accessed September 30,

2012. www.fordham.edu/halsall/source/aquinas2.html. Henry, Stuart, and Mark M. Lanier (eds.). (2001).

Whatis crime? Boulder, CO: Rowman & Littlefield.

Henry, S. & Milovanovic, D.(1996). Constitutive criminology: Beyond postmodernism. London: Sage. Hertzler. J.O. (1951). Edward Alsworth Ross:Sociological pioneer and interpreter.

American Sociological

Review16(5), pp. 597613. Hillyard, P., Pantazis, C., Tombs S., & Gordon, D.)(2004). Beyondcriminology: Taking harm seriously, London:

Pluto Press.

Hilliard & Toombs, S,(2017). Social harm and zemiology. In A. Liebling, S., Maruna & L. McAra (Eds.), The Oxford handbook of criminology, 6th ed., ed. (pp. 284305).

Oxford, UK: Oxford University

Press. Holmes, O. W.(1897).The

path oflaw. Harvard Law Review10, pp. 45778.

Hunt, A.(1978). Thesociological movementin law. London:

Macmillan.

Kelsen, H.(1930, 1949.). Law and the modern mind. New York, NY: Coward-McCann. Kelsen, H.(1941).The pure theory of law and analytical jurisprudence.

55 Harvard Law Review, pp.

4470. Kelsen, H.(1967). The puretheory of law. (Trans.

M. Knight). Berkeley, CA: University of California

Press. Krisberg, B.(1975). Crime and privilege: Towards a newcriminology. Englewood Cliffs, NJ: Prentice-Hall. Llewellyn,

K. N.(1930, 1960). Thebramble bush: Onour law andits study. Dobbs Ferry, NY: Oceana

Publications.

Maine, H. S.(1863). Ancientlaw. London: Dent,1917. Marx, K.(1911). A Contribution to the critique of political economy. Trans. N.I. Stone. Chicago: Charles H. Kerr and Company.

Milovanovic, D.(2003). Sociology oflaw, 3rded. Boulder, CO: Lynne Rienner. Pound, R.(1942; 1997). Socialcontrol through law. New Brunswick,

NJ: Transaction Publishers.

Quinney, R.(1973). Critique of the legal order. Boston: Little, Brown, 1974. Quinney, R.(1975). Crime control in a capitalist society. In I. Taylor, P. Walton, &J. Young(Eds.). Critical criminology (pp. 181201).

London: Routledge & Kegan Paul

Chapter

Quinney,

R.(1977).

Class, state, and crime.

Scala, D.,J. (2011). On

Henry Sumner

New York:

Trevio,

Law in

Context

McKay.

Maine ancient law. In A.J. Trevio

and society (pp. 319). 2nd ed. New Brunswick, Spitzer, S.(1975). Towards

David

4 |

(Ed.), Classic writingsin law

NJ: Transaction Publishers.

a Marxian theory of deviance. Social Problems 22, pp. 63851.

A.J. (2011). Classic writingsin law and society. 2nd ed. New Brunswick,

NJ: Transaction

Publishers.

Turk, A.T.(1969). Criminality and the legal order. Chicago,IL:

Rand McNally.

Turk, A. T.(1972). Legalsanctioning and social control. U.S. Department of Health, Education, and Wel-fare. National Institute

of

Mental Health.

Washington,

Turk, A. T.(1976). Law as a weaponin social conflict. Turk, A. T.(1982). Political criminality:

DC: U.S. Government

Printing

Office.

Social Problems 23, pp. 276291.

The Defianceand defenseof authority. Beverly Hills, CA: Sage.

Vago, S.(2012). Law and society. 10thedition. New York, NY: Routledge. Weber, M.(1954). Onlaw, economy and society. Cambridge, MA: Harvard University Press. Young,Jock. (1981)Thinking

seriously about crime: Some modelsof criminology. In

M.Fitzgerald,

G. McLennan, &J. Pawson(eds.). Crime and society: Readingsin history and society (pp. 248309). London: Routledge & Kegan Paul.

5

ChaPTEr

CriminalJustice SYSTEMS,MODELS,ANDISSUES

5

STUARTHENRY

L

aw as a system

sanctioning,

of social control includes

which together

the formal

that criminal

criminal

justice

by a multiplicity

comprised

of policies.

sub-systems.

with different combinations

By several, I

justice

mean that

while

of the criminal

models of criminal

justice,

of models and emphases, depending on the agency

policies.

system as a maze,

and practices shaped

make up key institutions

system, they operate according to prevailing

and the prevailing

might seem

Moreover, there is not so much one criminal

system but several interconnecting

and com-prise

run by the state, but in actuality it

of rules, procedures,

the courts, the police, and corrections justice

of adjudication

and corrections,

system. From the outside it

justice is one large bureaucracy

is a series of subsystems

a system

with law enforcement

As a result, some have described the criminal justice

with many entrances but difficult to find

exists (Rollo, 2016).

Modelsof Criminal Justice: TheTension BetweenHumanRights/DueProcess and Social Control As operated by the criminal

justice system, formal

social control is aframework

of different subsystems that are shaped by the prevailing ideas about how social control should operate. Atits simplest, ideologies

of criminal

justice.

wecan see the existence of two contrasting

Oneis based on the idea that the

role for the criminal justice system is to protect the public from crime. This

public

order

until proven innocent. The

mostimportant harms caused by

model of justice takes the view that a person is guilty opposing

view, the due process

model, on which

6

62

CRIME, JUSTICE,

the

AND SOCIAL

U.S. criminal

individual

justice

rights

CONTROL

system is based (as is the

until proven guilty. The

is to protect the rights

of individuals.

whole purpose

Herbert L. Packer (1964) describes these two due process to crime

stresses the possibility

control.

on the fact-finding on a continuum

rights. The

of the probability

process, and the primary of social control,

and a tension

analysis.

and records), the Status

as a system of shaming

and redefining

sees criminal

by exercising social control functions

justice

of a person into

Model (concentrating a different

over the lower social strata).

to

a non-punitive

or

Model justice

and the Power

maintain the status

quo

models of how the court

& Brent, 2011)identified

actual system of criminal

more models

on criminal

social status),

Kings (1981) six

models, such asthe Postmodern

Kent Roach introduces

models and he states, any

goals.

the Bureaucratic

noting that each has a different emphasis. Some of Kraskas

Taking a different approach

The

are the two extremes

Model (emphasizing individual

as a system used by the powerful

those of Packer and King, and other

of the

Passage

are shown in Table 5.1. Peter Kraska (Kraska

of criminal justice,

at four

Medical

pro-cess,

with few restrictions

Michael King (1981) added four

the

model

model pays attention to

or guilt,

diagnosing causes of crime, and prescribing treatments),

on efficiency

Model (which

crime control

ofinnocence

often exists because of their very different

of criminal justice to Packers original two, including

(focusing

that

adversarial fact-finding

aim of crime suppression. These

Others have built on Packers two-model

social pathology,

process, a dichotomy

According to Packer (1964), the due process

of errors in the system and insists on aformal,

and an early determination

people

of the due process system of justice

models of the criminal

with rules designed to protect the defendants efficiency

is the view that a persons

must be protected from the power ofthe state and others with powerthus,

are assumed innocent

ranges from

U.S. Constitution),

models overlap

Industrial

victims

eight frameworks with

Complex, are new.

rights approach to arrive

justice is bound to reflect aspects of all

models (Roach, 1999, p. 713). point here is not to detail each of these different approaches, system, it operates in different

but to indicate that even though

we have one criminal

justice

different ideological

models prevail at which point of time. It is also the case that several

might operate simultaneously

or become

ways, depending upon

more or less focused

depending

which of these models

on the particular

courts

or circumstances. Indeed, at different times in history, the emphasis of the formal depending

upon prevailing

emerging recognition

and emerging ideologies

of criminal

social control system has changed, justice

of the idea that societies rather than individuals

an emphasis on rehabilitation

and community

corrections,

policy. The

1960s saw an

were pathological, leading to

which is a social pathology version of the

medical model. Starting in the 1970s and for the next 30 years, with an emerging concern for equal justice

against an increasingly

was an increasing focus

on crime control

career criminal incapacitate in

wide range of different sentencesoften

emphasis on social control with the reinstatement

programs targeting

offenders (crime control

many states. In 2004, there

and punishment.

of the death penalty in

model), with laws such as three

was a renewed interest in rehabilitation and the revolving

of 60 to 70 percent. This

a high impetus

of the number

reached

of state prisoners

strikes

of prison sentences to at the federal level and

and reintegration

because of

prison door, which produced recidivism

in 2010 in

under

we saw an increasing

many states, the advent of

repeat offenders, and increases in length

the high cost of massincarceration

a reduction

for the same crimesthere

In particular,

California,

when the courts

what wasreferred to as realignment.

rates

ordered Man

Chapter

5|

Criminal

Justice

TABLE 5.1 Kings Six Process Models of Criminal Justice: The Court

Criminal Justice Process Model Due Process Model

Social Function

Features of Court

Justice

-Equality between parties -Rules protecting defendant against error -Restraint of arbitrary power -Presumption ofinnocence

Crime Control Model

Punishment

-Disregard oflegal controls -Implicit presumption of guilt -High conviction rate -Unpleasant experience -Support for police

Medical Model

Rehabilitation

-Information-collecting procedures -Individualization -Treatment presumption -Discretion of decision makers -Expertise of decision makers or advisers -Relaxation of formal rules

Bureaucratic (Admin-istrative) Management of Crime Model and Criminals

-Independence from political considerations -Speed and efficiency -Acceptance of records -Minimization of conflict -Minimization of expense -Economical division of labor

Status Passage Model

Denunciation and -Public shaming of defendant Degradation(Sham-ing) -Priority for community values -Agents control overthe process

Power (Radical)

Maintenance of class domination

Model

-Reinforcement of class values -Alienation and suppression of defendant -Deflection from issues of class conflict -Differences between judges andjudged -Contradictions between rhetoric and performance

(Adapted from King, 1981: 13).

states also saw a pause or suspension in the use of the death penalty because of increasing of wrongful possible if the It

convictions, wrongfully

based on DNA evidence and the resulting convicted

might seem problematic

around the institutions that the very informal practices. They

social control

mechanisms that

are the reality

which was not

had been put to death.

to have these various

of formal

exoneration,

evidence

and often conflicting that

we call criminal

we described earlier

of law, as the realists

would remind

philosophies justice,

circulat-ing

until you realize

underlie the formal

policies and

us. One manifestation of this i

63

64

CRIME, JUSTICE,

discretionary

AND SOCIAL

justice,

CONTROL

where individual

serious enough to require formal Discretion

over what should

unfair treatment.

and defense attorneys

be the recommended

For example,

by prosecutors for

sentence. This

is a more informal

plea bargaining

of plea agreements to increase transparency In the courts, judges

discretion

Over time,

and

laws

has been a significant

experts in the field consideration Proposition

argue that sentences

place or

of the crim-inal

guidelines

documentation

have

provided

may be excessive

crimes.

mandatory sen-tencing

However, the effect of these

and prison

overcrowding.

Some

when ajudge is not allowed to take into

of a case, such asthe third-strike

the case of three strikes, the result of simply

and

exists in 26 states. One goal of these

of stay in prison

36 passed in 2012, could be any felony

offense, which in

such as petty theft

California,

until

with a prior petty theft. In

using the broad category of felony

for the third

strike

such a diverse range of offenses that sentences of 25 years to life can be given

for crimes as different as homicide and shoplifting, contradictions

more stringent

by truth-in-sentencing

of offenders for similar

increase in length

the circumstances

wasthat it included

is

in the process.

has been limited

wasto ensure equal treatment

takes

adjudication

more complete

laws such asthree strikes, a version of which currently statutes

plea bargaining

over the charges brought against the defendant

case which, in the past, was not well documented. been established

whether an incident

action.

can lead to unequal,

between the prosecutor

police officers, for example, decide

led to reformers

successfully

if one of these is the third felony

campaigning

to

offense.These

modify the law.

References King,

M.(1981).

The framework

Kraska, P., & Brent, J. J. (2011). IL: Packer,

of criminal justice.

London:

Theorizing criminal justice:

Croom

Helm.

Eight essential orientations.

2nd ed. Long

Grove,

Waveland Press. H. L. (1964).

Two

models of the criminal

justice

process.

University of Pennsylvania

Law Review,

113 (1), pp. 168. Roach, K, (1999).

Four

models of the criminal

process. Journal of Criminal

Law and Criminology,

89(2), pp.

671716. Rollo,

N.(2016).

VA: Impact

A mapthrough the Publications

maze: A guide to surviving

the criminal

justice system.

Manassas Park,

ParT I II

Policing and Investigations

6

Introduction

P

olice agencies in the United States evolved into formal with the Boston Police Department in 1838.The

Peels police force in England,

force

with powers of investigation

have identified

three

were appointed the 1930s, there

model was based somewhat

and arrest and some degree of discretion. starting

beholden toelected

with the political

bureaucratic

Several historians (Chriss,

2007). In

model of policing

policies and procedures, specializa-tion,

Officers patrolled in vehicles responding to radio calls, which created distance

would drive their

the communities

on Robert

era, when police chiefs

was a moveled by August Vollmer to develop a professional

between citizens and police, who had previously police

spoils

officials, leading to corruption

with more distance between city officials and chiefs, formal and training.

in the 1800s, beginning

which established a professional, paramilitary,

eras of policing,

byand

institutions

beats or precincts

walked a beat.This led to reactive policing,

waiting for calls, rather than proactively

where

engaging in

they served.

ModernTrendsin Policing The

distance between police and citizens that had been a part of 1950s-era

social unrest in the 1960s, brought policing (COP), in

about a paradigm

which police learned

developed closer ties to those communities, (Chriss,

2007). In this third

incidents,

about the communities

model in

problems

as well as

they served,

more proactive in responding

of reactively

responding

police agencies began to develop a model of problem-oriented

to solve community-originated the current

and became

era of policing, instead

policing,

shift in policing to a model called com-munity-oriented

to crime

to public reports

policing. The idea

before they escalated into crime and violence. This

many areas, but budget shortfalls

have limited

the ability

of was is

of police to be as

proactive as they once were. In 2006, Braga and Despite the promises not reduce crime,

Weisburd evaluated the effectiveness of some of these new police strategies. of community-oriented

policing, they conclude that these programs

but in some cases, they improved

one of the goals. Problem-oriented

policing focused

citizen satisfaction on solving specific

with police, crime

which was

problems

some cases reduced crime in a specific area. Examples of successes cited by Braga and (2006) include reductions in burglaries in apartment

did

and in

Weisburd

complexes and convenience store robberies, 6

68

CRIME, JUSTICE,

AND SOCIAL

CONTROL

and effectiveness

of what is referred to as hot-spot

on data regarding

crime patterns.

GIS computer

crime

hot spots,

areas before crimes can escalate into

model of criminal

change over time.

justice.

So,it is not surprising

that as a whole, police practices

to operate according to their own

and restorative

justice

with the crime-control

model, yet others may operate

approach (see Stamper, 2005).

One of the reasons that law enforcement

agency practices vary is that they are not centrally

Another is that they are managed by a police chief or sheriff

of police

of the total crim-inal

justice. Just like courts, these vary over time and between different jurisdictions.

with a rehabilitative

policy priorities

deploy police

agencies operate is shaped

However, it is also the case that police agencies, as subsystems

Some police agencies will operate consistently

controlled.

whose job it is to use

more serious problems.

justice system, have a degree of autonomy (semi-autonomy) model of criminal

areas based

with a view to rapidly

Asindicated in the previous discussion, the way that law enforcement by the prevailing

crime-prone

Police agencies now employ crime analysts

mapping systems to identify

resources to high-crime

policing that targets

whose personal views or

can make a major difference in the emphasis of a department. Third,

discretion,

or the informal

practices of policing,

the institution

can create a unique and specific set

of agency practices. Historically,

police discretion

has been an issue in the criminal justice system becauseit can lead

to disparate,

unequal treatment

enforcement

decisions regarding

the intent

of suspects and defendants. Joseph enforcement

of crime control statutes.

of all violations

because of resource limitations Full enforcementthe resources,

Actual enforcementsome

which is unrealistic

in part

and due process restrictions of

expectations and enforcement

is not consistent

daily police logs to determine the level of discretion

drug offenders

or distributors.

asfollows:

of the law,

offenders are not prosecuted,

offenses: drug enforcement, felonious for

with

of legislation

Goldstein (1960) reviewed is leniency

that are not consistent

offenses that police are expected to enforce based on limitations

budgets, and community

with the intent

that lead to discretion

He categorizes enforcement

Total enforcementenforcement

Goldstein (1960) describes law

assault, and gambling.

used for three

One example of the impact

or street dealers who provide information

Goldstein states that in addition to being contrary

of discretion

on higher-level

suppliers

to the law

offenders are not offered treatment; the practices negates deterrent effects of the law; the drugs problem In

has not been significantly

more recent years, there

on new laws or professional For example, in

were standardized releasing

with enactment

suspects at the time

California, with the law

California

of some law enforcement

developed by organizations

of Chiefs of Police or the Commission California.

reduced.

has been standardization

standards

and

practices based

such asthe International

on Police Officer Standards

Asso-ciation

and Training (POST) in

and other states, responses to domestic violence incidents

of laws requiring

of the incident,

arrest of suspects, rather than counseling

as had been the practice in

POST provided training to all law enforcement

many jurisdictions.

and In

officers in the state to ensure compliance

Part III |

Finally it is important increasing

attention

and Investigations

to recognize that public policing extends beyond cities to its borders

being paid to policing the border. Similarly,

resulted in a closer interface problems,

Policing

the growth

between public and private policing,

with

of private policing

has

which has created concerns

and

but also new possibilities.

Readingsin Policing andInvestigations Law enforcement criminal Larry

justice

arrest decisions determine system,

K. Gaines and

enforcement,

who will be subjected to formal

which can lead to disparate treatment. The Victor

including

E. Kappeler provides

the nature and types

social control in the

article Police

a more extensive review

to

by

of discretion

in law

discretion

used by

of discretion, factors influencing

officers, and policies and procedures departments implement

Discretion

minimize abuses, such as excessive

use of force. Racial profiling is an issue in policing that is related to inappropriate has been used in law enforcement identify

perpetrators.

and enforcement

for years to develop profiles of offenders to help investigators

Michael E. Buerger, in Racial

policing, the history Racial profiling

of racial

profiling,

Profiling,

has been tied to the implementation had previously

discusses the role of profiling

key legal cases, and research findings. of immigration

been the responsibility

have enacted laws to control immigration

Denise Brennans US Border

their strategies of invisibility that community highlights

undocumented

research from the perspective

and know

peoples encounters

situated and quick decisions that can border

policing

by

Malcolm

discusses the growth

K. Sparrow Managing

policing as the

provision

the normal course of their with neighborhood or employ their

of security

patrols)

guards).

highlights arguing

model good citizenship.

Brennan

agents, and the effects of their

up to 100

She argues that

milesinside the border.

Between Public and Pri-vate

number of persons employed as private in public

policing.

Sparrow

Sparrow argues that

contract

policing

may be public (as

with private security firms

private investments

in security

rapidly expanded even as budgets for public policing stall or decline. As a result he says that moved away from the separate operations of the two sectors to considerable partnerships

and situations

between the two. private

where police executives

He provides

policing

an overview

structures.

Sparrow

defines

or policing services other than by public servants in

He says the clients for private

or private (as when corporations

own security

United

to their communities,

the Boundary

of officers involved

public duties.

policed. It

peoples lives forever.

of private policing. The

police officers now exceed the numbers private

with law enforcement

change undocumented

Near and

experience in the

of those

workshops,

happens far from the border and in communities

Finally, the article Policing

your rights

of immi-gration.

Border Policing:

peoples everyday lived

as well as their generous contributions

caretaking

but some states

or the criminalization

People (En)Counter

undocumented

States and is based on ethnographic

law

at the state level, suggesting that the federal government

article Undocumented examines

policy. Immigration

of the federal government,

has not been effective. Some have referred to this as crimigration

Far from the

Profiling

However, if that profile is based solely on race, the result is selective enforce-ment

and discrimination. in

use of discretion.

deal daily

of the types

we have

overlap, public-private

with some aspect of the boundary

of private providers

discusses concerns

have

and the range of dif-ferent

over private policing that include

6

70

CRIME, JUSTICE,

AND SOCIAL

the unnecessary practices, agents.

CONTROL

use of force, abuses of power, denial of access to public spaces, dishonest business

unequal access to security He also provides comparison

partnerships

and examines a variety

provision

and weak accountability

of the potential

benefits and risks

mechanisms for

private

of public/private

police

of case studies.

References Braga, A. A., & Weisburd,

D. L. (2006).

Police innovation

and crime

prevention:

Lessons learned

from

police research over the past 20 years. Paper presented at the U.S. National Institute of Justice Police Research Planning

Workshop.

Washington,

DC.

Chriss, J. J. (2007). Social control: Anintroduction. Goldstein, J. (1960). Law Journal, Stamper, Nation

Police discretion

Cambridge, UK: Polity Press.

not to invoke

the criminal

process:

Low visibility

decisions.

The Yale

69 (4), pp. 543594.

N.(2005). Books

Breaking rank:

Atop cops expos

of the dark side of American policing.

New York,

NY:

6

ChaPTEr

PoliceDiscretion LARRYK. GAINESAND VICTORE. KAPPELER

D

iscretion is at the heart and soul of policing. In fact, it is the very foundation

Chapter Goals

ofour criminal justice system. It is an inescapable part ofour justice process.

administrative discretion

Discretion is whenthe effectivelimits ona publicofficials powerleave him

or her free to

make a choice among a number of possible courses of action. It is

child pornography

virtually impossible to provide employees with rules and regulations governing how every aspect of ajob is to be performed jobs.

Workers on an automobile

their jobs,

except in the

assembly line

are encountering

criminal justice practitioners different situations,

to use good judgment

everyone in the criminal police

be investigated,

justice

demeanor

warrant a citation.

some guidance through

training,

and exercise discretion. system

discrimination

makes discretionary

deci-sions.

be arrested,

violation is

Even though a police department

can provide

rules, and supervision,

which the police officer does not have ample official

domestic violence due process model

there are situations in

guidance,

and the officer

when proceeding.

police are not the only participants

disenfranchised populations

must decide if a case is to or if a traffic

must make decisions or use discretion

discretion

we must depend on the police

makethese decisions everyday. They whether a suspect should

severe enough to

deinstitutionalization

guidance in every situation becausethere are so many

and to even attempt to do so would result in a set of rules that

and other practitioners Indeed,

crime control model

new, unique situations. It is impossible to provide

would be too voluminous to comprehend. Therefore,

The

court control

have few choices about how to do

but police officers, prosecutors, and judges deal with human behavior

and constantly

The

civilian review boards

most mechanistic, repetitive

Larry

within the criminal

justice

system

K. Gaines and Victor

Kappeler,

Police

Policing in

who exercise discretion.

Prosecutors

decide how to proceed on individual collected victim,

exercise immense criminal

cases.They

by police officers, analyze the circumstances

discretion

when they

Copyright

examine the evidence

surrounding

the offense,

Science Reprinted

E.

Discretion,

America,

pp. 231-280.

2008 by Else-vier and Technology. with permission.

and suspect, and then decide whether to dismiss, plea bargain, or prose-cute

the case. Historically, severely criticized or plea-bargain

prosecutors

have been

when they refuse to prosecute

a case. But, prosecutors generally

One can pass onresponsibility, but not the discretion that goes withit. Benvenuto

Cellini

7

72

CRIME, JUSTICE,

economic status and discretion

AND SOCIAL

CONTROL

dismiss or plea bargain cases only enough to obtain a conviction.

enforcement discretion

is

Judges also exert discretion. They as to the admissibility

gender and discretion

progresses. incarcerate the length

human trafficking

discretionary

probation

control

mentalillness models of criminal justice offender variables in discretion

race and discretion

discretion

motions as a trial

Even when a judge

must exercise criminal

discretion

justice

decides to

when deciding

can be viewed

when an officer ponders

an arrest until a suspect is ultimately

as a series of

whether to

released from the criminal

on

make

justice system.

which discretion is used, it appears that there are two

aspectsthat should be considered: judgmental and contextual. The judgmental context refers to whether discretionary decisions should be made.Prior to the 1950s, it

was assumed by almost everyone that discretion

the criminal

justice

observed violations would then

system (Walker, of the law, they

wrote a citation

prosecute the case to the letter sentences that

wasnonexistent

1993). Supposedly, or

within

when police officers made an arrest.

Prose-cutors

of the law, and judges

would

werethe same for every offender regardless

of station in life or circumstances.

prejudice prostitution

or incarceration.

decisions commencing

hand down inflexible pornography

of various

aspects of the trial, judges exercise discretion

of the sentence. Thus,

Given the setting in legislative

offense

use discretion in the

decide on the applicability

an offender, the judge

homeless

controls

plea to alesser

of evidence. Judges exert substantial

Beyond the technical

when they consider

internal

guilty

Here, prosecutors

of justice.

gambling

hate crimes

A plea-bargained

much better than a not guilty verdict.

best interest external controls

when they feel that the evidence is not strong

Even though all, criminal discretion

no one would admit to the existence of discretion,

justice

practitioners

exercised

was viewed as being improper

within the criminal justice system,

discretion.

most, if not

However, the practice of

and in some cases, illegal.

which wasrampant at the time,

Corruption

wasconsidered

situational variables in discretion

to be the result of officers straying

away from the strict standards

criminal justice system supposedly

operated. Indeed, any deviation from accepted

system variables in discretion

standards for any reason

vice crimes

legal foundation

whatsoever

was viewed asinappropriate.

was also viewed as being extralegal, insinuating and therefore

wasimproper.

some called for the abolishment Friends Service

Committee,

By the 1960s, discretion is a way criminal

justice

that it had no constitutional

1971). came to be viewed as a necessary evil.

practitioners

wide range of behaviors in a variety

can counteract bodies. That

very loosely.

is, laws frequently

the context in

are passed

must use discretion

a

when

work. In some instances

while in other cases, the same law

may be applied

police officers

must consider

which laws are applied.

The contextual framework for applying examining

or

Police officers encounter

make the laws

Because there is not always an exactfit,

Discretion

some of the imprudent

of situations. They

behaviors to

mayapply alaw strictly,

or

its exis-tence,

of discretion in criminal justice (American

unworkable laws passed by legislative

they

Discretion

Rather than recognizing

in a vacuum to address a narrow range of behaviors.

applying laws to different

by which the

Packers (1968) two

discretion is best understood

models of criminal justice. The

by

due proces

Chapter

modelemphasizes due process and individual ensuring that

people receive some

6|

Police

Discretion

rights. Its goals revolve around the individual

measure of fundamental

fairness

and

when they come into con-tact

with the criminal justice system.The crime control model,on the other hand, focuses on the rights and protection power to important

maximally

of society

as a whole and gives the police larger

protect society. The

apprehension

than due process within the framework

have been criticized

for adhering

violate suspect rights.

strike

stronger

and prosecution

of the crime control control

On the other hand, proponents

the police for not taking constantly

to the crime

measures of discretionary

how officers use discretion

when they

of the crime control

more

neglect or

model have criticized

and criminals. Thus,

the police

must

and due process.

One way to better understand the concept of discretion is to explore (1991) examined

is far

model. Typically, the police

model, especially

measures against crime

a balance between crime control

of criminals

and found

how police use it.

that officers, in order to apply

correctly, should possesscertain qualities. First, officers should becurious.They

Guyot

discretion

musthavethe will

to inquire into situations, especially those that are unusual or suspicious. Second, officers mustbe ableto perceivedanger. The ability to evaluate asituation in terms of dangerousnessis critical to the safety of police officers, but officers tend to view often results in an overreaction

on their

many nondangerous situations

part (Skolnick,

1994;

Kappeler

as dangerous, which

& Potter, 2005). Third,

Guyot maintainsthat officers musthave what Muir(1977) characterizesas atragic perspective. In essence, officers

must be empathetic

and have a compassionate

situations they police. Bureaucratic responses

understanding

of the people and

do not always lead to just outcomes.

Fourth, officers

mustbe decisive. Whenconfronted with a situation, officers mustbe able to readily identify a work-able solution. Fifth, officers mustexercise self-control. Officers mustalways be aware oftheir roles, responsibilities,

and duties. Vigilantism

has no place in law enforcement.

Finally, officers mustlearn

to use varied approachesto unique problems. Here, problem-solving rules the day. Officers mustbe able to analyze situations

and solve them, rather than treating

these six qualities, they should In this chapter The

wayin

role adopted

be able to exercise discretion in ajust, fair

we review the nature of police discretion

by a particular

every facet of policing,

department

of discretion

certain situations

domestic violence,

hate crimes, and drug enforcement. exercised,

and the police decision-making

we conclude

activities. The

results in different styles of policing

used by officers.

While decision-making

are thought to involve

vice crimes, problems

If officers possess

way.

which police view their role guides how they focus their

the type and amount

would include

their symptoms.

primary

which, in turn,

affects

is required in almost

more discretion than others. These

of disenfranchised

populations,

Having discussed the nature of police discretion

with an examination

pro-cess.

of how abuses of discretion

policing

and how it is

can controlled.

The Natureof Police Discretion Discretion can have both positive and negative connotations. operations

we discussed the difficulties

resources to respond when it prioritizes arrest everyone

In the previous

faced by police departments

that

to every request for service. In effect, the department

calls for service or selects a patrol technique. who has committed

chapter

do not have sufficient exercises discretion

It would be virtually

a crime. Seldom are the police criticized

on police

impossible

to

by people who benefit

7

74

CRIME, JUSTICE,

from

AND SOCIAL

a discretionary

criticized

CONTROL

decision not to arrest them.

by the victim,

bystanders,

Under the same circumstances,

officers

may be

or by the public for their lack of action.

Discretion also holds the potential for abuse. Decisions to perform a duty or refrain from taking action can be based on inappropriate political

preference,

criteria, such as gender, age, race, religion,

or other prejudices

held by the officer (Kappeler,

not discretion that is harmful to a department of discretion.

decisions

While discretionary

must be guided by ethical considerations decisions can reflect consideration

or are based on existing legal requirements,

basis of prejudice

and

mayrepresent

& Alpert, 1998). It is

in

which the legal solution is

that are discussed in

may be inappropriately

action.

of ones values and attitudes that develop through

an individual is

or their

Chapter 8.

While researchers

made on the will disagree as

to how prejudice is developed, mostseparate it conceptually from discrimination. reflection

the socialization

Prejudiceis a

process.

Weprejudge

behavior on the basis of what we believe is normal or acceptable.

most often spoken of in negative termswhen

use

of factors that are appropriate in a given

others

a discriminatory

Sluder

rather it is the inappropriate

Because police officers often deal with circumstances

not clear, their

situation

and community;

physical appearance,

someone is against

While prej-udice

somethinga

person

can also be prejudiced in favor of something. Discrimination results when an officer acts overtly on the basis of their

prejudices,

and this overt act results in negative consequences for the person

who wasthe object of the prejudice. An example

may help to illustrate

believing their

members are all criminals

Whenthey come in contact

behavior, their

distinction.

Officers

or, that certain

with a member of the

of their prejudice, such as to always

same officers

this

may prejudge a minority

conduct typifies minority and

a particular

prejudices,

may make decisions using factors

and reflect

other than their

race or eth-nicity.

make decisions on the basis

make an arrest or to ignore the conduct

decisions are based on their

because it is typical

a discriminatory

action. The

prejudices, such asthe seriousness

of the offense or the absence of probable cause to

make an arrest, and these actions

reflect

in evaluating

discrimination.

This

illustrates

the difficulty

same decision

mayrepresent

either an appropriate

discrimination.

If officers act on the basis of their

upon other reasons that are appropriate

group,

a police officers

use of discretion, prejudgments,

or

behavior. The

may be the result of overt

it is discrimination.

under the circumstances,

would not

If they act

it is not discrimination.

Administrative Discretion It is possible to establish and operational organizational structure policies

personnel. The

structure

distinction existence

hierarchy. The

and procedures that guide the actions for such activities

budgeting. These expected

these activities

activities

duties.

discretion

of administrative

as: planning,

As such administrators operational

which uniform

policies

exercised

discretion

typically function

of operational

personnel. That

organizing,

staffing,

ensure that

have substantial decisions

directing,

discretion

is, administrators coordinating,

and

personnel

perform

in how they

perform

Administrative

develop.

in the

a bureaucratic

is designed to establish

operational

and dictates.

and procedures

by adminis-trators

is implicit

reflect

administrative

are how administrators

and their final

the vehicle through

between

of police agencies. Police departments

with a well-defined

are responsible

their

a conceptual

Although

discretion administrator

is

Chapter

exercise a choice among options, street-level uniform

officers theoretically

translate

6|

Police

their

Discretion

decisions into

activities.

Administrative discretion is exercised in determining the role orientation of the agency.This should reflect the administrators

perception

of the needs and expectations

of the community

whole and the various neighborhoods that exist within the larger community. underfiscal Through

constraints

and it is not possible to

the types of services offered, thereby

department

a decision

locked their

Allocation

previous

performed

department

problems

The

constraints,

it removed

areas is another

When administrators

allocate

by deciding

one of the primary

the various

to balancing

officers, their

problems

of administrative primary

is, the

of a lesser

patrol, a different

of officers

magnitude. In the

directives

will influence

policing.

If a

pattern

will

enforcement

between random

resource,

most import-ant

patrol strategies that can be utilized in

the number

and attending

example

upon priorities. That

than

assigns the bulk of its officers to random

and directed

the amount

patrol.

of discretion

to the officers.

Administrators by establishing

may also affect discretion

an unofficial

are expected to

by directing

policy of not enforcing

officers to focus on particular

others. In the current

make arrests for almost every drug offense.This

ago when officers were permitted, and release the offender for

byfiscal

receive greater resources

manner of assignment

available

against the department for damage to the vehicles.

and geographic

discretion

wereviewed

evolve as compared

In one

by patrol officers.

decisionmaking.

chapter

on different activities.

by the cost of answering the high number of requests

was motivated primarily

they in essence are utilizing or critical

are able to prioritize

role and focus of the agency. Funding

which personnel concentrate

was prompted

of officers to programs

discretionary

administrators

establishing the primary

for this service and the number of lawsuits filed

service activities

expenditures,

was madeto discontinue the practice of opening vehicles for people who had

keys inside. This

While the decision

Every agency operates

meet all the demands for services that are requested.

the process of budgeting and controlling

levels for programs reflect the degree to

as a

public-order

political

crimes, or

climate, officers

is a dramatic change from

30 years

often encouraged, to seize or dispose of small amounts of mar-ijuana

with a warning.

crimes, such as disturbing

Agencies may encourage

the peace, byfirst

issuing

officers to use discretion

a warning and resorting

to

arrests only if the behavior persists. Administrators they

do it.

not only attempt to control

For example,

result in traffic

crashes,

these crashes involve and possibility pursuits

innocent

third

of civil litigation,

have reduced

pursuits

Dunham (1990) found

parties or police officers.

police administrators are to proceed.

except only in felony

the number

that

with a majority of the pursuits for

can occur and how they

discouraged officer

Alpert and

what officers do, they also attempt to control

minor traffic

of police pur-suits

violations.

Given the relative

have established

dictating

pursuitsthey

when

have completely

where there is a threat to life. These

with police

Many of

dangerousness

rules

In some cases, departments

situations

of crashes associated

nearly one-third

how

rules

have also reduced

discretion.

Along these same lines,

Fyfe (1979) studied the incidence

Hefound that the Citys restrictive 30 percent reduction consequences

policy governing

in the number of instances as a result of the policy.

of police shootings in

New York City.

police use of deadly force resulted in an almost where officers shot citizens. There

Crime did not increase,

were no neg-ative

nor was there an increase in

7

76

CRIME, JUSTICE,

AND SOCIAL

assaults on police officers. is a critical

component

Administrators parameters

around

CONTROL

Administrators

of administrative

control

officer discretion that, basically,

discretion.

must constantly

use discretion

what operational

personnel can or cannot

discretion is exercised through for operational

can successfully

to guide their

policies and direction

agencies. Their

decisions

do. From this perspective,

place

adminis-trative

and by establishing goals and objectives

units.

Enforcement Discretion Administrators

attempt to control

officers

discretion

by establishing

policies and providing

direc-tion

through orders and supervision. Evenso, officers still have substantial enforcement discretion in terms

of how they enforce the law, provide services, and otherwise

discretion in

making a variety

attorney for the filing

an official report

can be ignored proactive.

of formal

into a particular

whether to stop and interrogate by officers

who are essentially

While many circumstances

or whether to refer cases to the

charges. An officer can, in

or conduct an investigation

in deciding

Officers use

of decisions, such as whether to enforce specific laws, to investigate

crimes, to stop and search people, to arrest or detain an individual prosecuting

maintain order.

many cases, decide not to file

crime.

Discretion is routinely

or search individuals. reactive

or

exer-cised

Suspicious circumstances

may be investigated

would permit an arrest, officers

by those

who are

may decide an alternative

course of action is preferable. Although experiments

discretion

can be abused,

in law enforcement,

if they are to be responsive use discretion number

more effectively.

of different

police procedures. while

when properly structured,

such as community

to needs of the community.

Indeed,

Community

that

policing requires

responses to problems. The Todays

it can be very positive.

policing, require

police environment

focus

of their

requires

Recent

officers to be given discre-tion officers

mustlearn

officers consider

how to

and utilize a

behavior is outcomes, not codified

officers

who can exercise good judgment

making such decisions.

The Police Decision-Making Process The

nature of police

work requires

process will be initiated. the criminal

justice

officers to

In effect, this

system (Alpert,

make decisions

power of discretion

Dunham,

& Stroshine,

decide whether to act when they observe someone ignore the situation

altogether

a person has committed

a crime they

makes them the gatekeepers

2005).

further. Their

may decide to

investigation

make an arrest or

Even after the arrest, their

process is considerable.

Officers

may decide not to seek formal

aless serious charge. In

making these decisions officers effectively

justice

Officers have wide latitude

or that someone else has committed

type of disposition is warranted.

criminal

whether the criminal

who appears to be violating the law. They

or decide to investigate

to believe no crime has been committed,

about

process, hence their role as gatekeepers.

jus-tice of to may

maylead them

it. If they determine

may believe some other

power to influence

the criminal justice

charges or mayrequest thefiling determine

of

who is subject to the

Chapter

6|

Police

Discretion

FIGURE 6.1 Arrests, by Offense Charged and Gender (7,911agencies; 2005 estimated population 148,665,653)

Percent distribution1

Number of persons arrested Per-cent Offense charged

Total

Male

Female

Male

Percent Female

Male

Fe-Total male

7,723,696

5,859,492

1,864,204

75.9

24.1

Murder and non-negligent 7,379 man-slaughter

6,632

747

89.9

10.1

0.1

0.1

*

TOTAL

100.0

100.0

100.0

Forcible rape

13,193

13,031

162

98.8

1.2

0.2

0.2

*

Robbery

72,073

64,032

8,041

88.8

11.2

0.9

1.1

0.4

Aggravated as-sault

249,572

196,158

53,414

78.6

21.4

3.2

3.3

2.9

Burglary

159,661

135,844

23,817

85.1

14.9

2.1

2.3

1.3

Larceny-theft

712,539

431,647

280,892

60.6

39.4

9.2

7.4

15.1

83,941

69,238

14,703

82.5

17.5

1.1

1.2

0.8

8,358

6,935

1,423

83.0

17.0

0.1

0.1

0.1

342,217

279,853

62,364

81.8

18.2

4.4

4.8

3.3

Motor vehicle theft Arson Violent crime2 Property crime2

964,499

643,664

320,835

66.7

33.3

12.5

11.0

17.2

Other assaults

710,869

534,579

176,290

75.2

24.8

9.2

9.1

9.5

Forgery and coun-terfeiting 64,874

39,436

25,438

60.8

39.2

0.8

0.7

1.4

Fraud

120,631

69,497

51,134

57.6

42.4

1.6

1.2

2.7

Embezzlement

10,341

5,099

5,242

49.3

50.7

0.1

0.1

0.3

Stolen property; buying, receiving, possessing

75,620

60,376

15,244

79.8

20.2

1.0

1.0

0.8

160,608

132,695

27,913

82.6

17.4

2.1

2.3

1.5

112,585

103,526

9,059

92.0

8.0

1.5

1.8

0.5

Prostitution and commercialized vice

59,411

19,463

39,948

32.8

67.2

0.8

0.3

2.1

Sex offenses (ex-cept forcible rape and prostitution)

47,261

42,669

4,592

90.3

9.7

0.6

0.7

0.

Vandalism Weapons; carry-ing, possessing, etc.

77

78

CRIME, JUSTICE,

AND SOCIAL

CONTROL

Percent distribution1

Number of persons arrested Per-cent

Drug abuse violations

Fe-Total male

13.3

14.2

10.3

6.5

0.1

0.1

*

Male

1,025,810

834,053

191,757

81.3

18.7

6,969

6,516

453

93.5

Gambling

Female

Male

Percent Female

Male

Total

Offense charged

Offenses against the family and children

42,192

28,338

13,854

67.2

32.8

0.5

0.5

0.7

Driving under the influence

629,620

504,372

125,248

80.1

19.9

8.2

8.6

6.7

Liquor laws

348,779

257,745

91,034

73.9

26.1

4.5

4.4

4.9

Drunkenness

349,468

296,973

52,495

85.0

15.0

4.5

5.1

2.8

Disorderly conduct

430,347

319,765

110,582

74.3

25.7

5.6

5.5

5.9

20,815

16,674

80.1

19.9

0.3

0.3

0.2

2,038,271

1,568,194

470,077

76.9

23.1

26.4

26.8

25.2

1,208

944

264

78.1

21.9

*

*

Curfew and loiter-ing law violations

99,936

69,720

30,216

69.8

30.2

1.3

1.2

1.6

Runaways

61,365

25,341

36,024

41.3

58.7

0.8

0.4

1.

Vagrancy All other offenses (except traffic) Suspicion

4,141

*

1 Because of rounding, the percentages may not add to 100.0. 2 Violent crimes are offenses of murder, forcible rape, robbery, and aggravated assault. Property crimes are offenses of burglary, larceny-theft, * Less than

motor vehicle theft, one-tenth

Source: FBI (2006).

and arson.

of 1 percent.

Crime in the United States, 2005. Washington, DC: U.S. Department of Justice.

The Decisionto Invokethe CriminalJustice Process While police work is a complex of police work. It is carryout

their

mix of different roles and functions,

mostfrequently

duties and responsibilities,

the objective sought by officers and detectives asthey and it is the activity

the successful completion

of a police endeavor. It is

the citizen subjected to it.

As such, it is prudent to examine

when making arrests. research

concludes the

the arrest is perhaps the quin-tessence

that

most certainly

many citizens an import

the offense, other elements influence

factor

affecting

an officers

the decision-making

Offender variables include

considerations

to

While almost all

discretion is the seriousness

process.The

of

various decision elements

can be grouped in three broad categories: (1) offender variables, (2) situational system variables.

police function

with

how police officers exercise discretion

Numerous studies have examined the decision to arrest. mostsignificant

associate

variables,

and (3)

of gender, age, race, socioeconomic

Chapter

status, and demeanor.

Situational

of the offense, actions.

whether officers

System variables

group relationships,

variables

were summoned

would include

community

affecting the decision

such factors

attitudes,

6 |

may revolve

Police

Discretion

around the seri-ousness

by someone else or the visibility as the officers

department

philosophy,

perception

of their

of the law,

and the systems

peer

capacity to

process legal violations.

Offender Variables Offender variables are attributes identified

of the offender that influence

several factors that affect officers

an arrest or issue a traffic

citation

officers to take action.

decision-making.

These

or to allow the offender to go free

Research has

can be the decision to

make

with a mere warning.

aGE Research conductedontherelationshipbetweenageandthe decision to arrestindicatesoffi-cers take adults

complaints

more seriously than those

made by juveniles.

if the victim is older and the offender young (Dunham

& Alpert, 1989).

that younger suspects are more likely to be arrested (Sherman, more likely to be treated previous 1970;

with leniency

police contacts

Cicourel, 1976).

(Forsyth,

are more likely to be arrested (Carter, as to

that age is related to the demeanor with the police and therefore

raCE find

2001), one study found

to be treated

adults

more harshly

that race does not

influence

a police officers decision to search, ticket,

Despite this single study the vast

enforcement

decisions based on a review

race and gender had a significant a legal sanction. were less likely police are

notfinding

Africana

decision. It

made. It

may also be possible

may appear to be more cooperative

male drivers

morelikely

to stop

(Moon

whites (Powell,

1990;

make a difference in the decision to arrest majority of research indicates or make an arrest.

that race does

One recent study of police

stops found that a, drivers

decision to search a driver/vehicle

were more likely

Africana

by police than

of over 10,000 traffic

effect on officers

to receive a legal sanction

any evidence,

Minorities are

than

White drivers to be searched, but

& Corley, 2007). This finding

motorists to fish

more likely to allow them to leave

and invoke

for evidence without taking

could indicate

of criminality

and,

enforcement

action.

more likely to be stopped by the police based on less evidence of a violation

than

white counterparts.

The

explanations

treatment

for greater police use of force and race vary. Some contend that

is due to discrimination

Others argue that

directed at the individual

while Africana citizens

against them, force is governed by factors & Visher, 1981).The their

decisions are

of those involved;

1996).

1964).

Terry, 1967; Black & Reiss,

or that they are in a better position to cause

enforcement

(Klinger,

their

with

Manystudies haveexamined the effect of race on officers behavior. While moststudies

Brooks,

that

offenders are

receive better service or more lenient treatment.

people of color are likely

traffic

suggests

that juveniles

why age would affect an officers

seems that adults are perceived to be more credible when incorrect

while elderly

2006;

more likely,

Other research

1993). Research also indicates

One can only speculate

problems for the officer

1980)

An arrest is

perception

racial composition

disparity in

because of their race (Piliavin

& Briar,

are morelikely to be arrested or have force used

other than race (Black

of a community

of acceptable behavior or the potential

& Reiss, 1970; Fyfe, 1980; Smith

mayaffect officers

discretion

by clouding

danger to officers. In predominantly

white

7

80

CRIME, JUSTICE,

AND SOCIAL

neighborhoods,

CONTROL

officers are viewed as being

more punitive toward

Africana neighborhoods, they exercise greater discretion (Powell, 1981). Other research (Bayley

and are likely to react

moreforcefully

Regardless of the perceptions

research

difficult to explain the over-representation the

majority of those

who deliver

in Seattle are white; blacks are the

the result of three cause of racial

disparity

does exacerbate racial And, third,

outdoor

factors.

drug markets are not treated

concentration

of law enforcement

way in

which

practices.

Beck-ett,

terms. They

ecstasy, powder cocaine,

explain

and heroin

who deliver only one drug: crack. Yet, 64 per-cent drugs is black. This

disparity

appears to be

First, the focus on crack offenders is an important

Second,

diverse

with

in Seattle found that it is very

wefind

that the focus

but that blacks are also overrepresented

receive far less attention than racially geographic

methamphetamine,

in drug arrests. disparity,

disparity in enforcement

on drug enforcement

one of these five

main organizational

they view the residents

of minority arrests in race-neutral

majority of those

of those arrested for delivering

therefore,

officers research suggests that the

police resources are used and deployed can ensure racial

that,

whites

to situations.

of individual

Nyrop, and Pfingsts (2006:129)

but are more punitive toward

& Mendelsohn, 1969) indicates that police officers generally

feel they are in greater danger in a minority neighborhood; suspicion

Africana citizens. In predomi-nantly

alike: Predominantly

markets located

on outdoor

among indoor

white outdoor

downtown.

resources is a significant

drug activity arrestees.

drug markets

It thus appears that the

cause of racial disparity.

SOCIOECONOMICSTaTUS Socioeconomicstatus hasbeenshownto affectthe mannerin which police respond to requests for service (Black, being arrested (Black, 1971; Reiss, 1971).Those receive

more attention from the police

Those

in the lower

socioeconomic

officers (Riksheim

1980; Smith in the

when they file

strata are

& Klein, 1984)

middle-or a complaint

morelikely

and the probability

upper-income

of

brackets generally

and are less likely to be arrested.

to receive

harsher treatment

when en-countering

& Chermak, 1993).

DEMEaNOr Citizensand offenders whoshow deferenceto the police by cooperating are more likely to be treated fairly. taken

as seriously

suspects

When citizens are antagonistic

and the officer is less likely

who are uncooperative

toward

to initiate

formal

officers, their actions.

are more likely to be arrested than those

complaints

are not

Most research finds

that

who are respectful

(Pil-iavin

& Briar, 1964; Black & Reiss, 1970; Ericson, 1982) while others claim that demeanor is not a significant factor in the decision to arrest (Klinger, of research

over the past four

that demeanor is a substantial

1994).

decades as well as reexaminations

observations

areas (Rochester, involved

showed

of citizen-police

encounters from

New York; St. Louis,

the Police Services Study (PSS) data that

Missouri; and Tampa-St. Petersburg,

Worden and Shepard found that the likelihood

disrespectful

unpublished

was an important suspected

or hostile demeanors. Likewise

data from the

Midwest City Police-Citizen

Lundmans

Lundman

metropoli-tan

Florida). The

PSS

or hostile behavior at several stages of arrest increased

when citizens

(1996) examination

of previously

Encounters Study concluded that demeanor

factor in arrest decisions even when controlling

of committing.

older studies finds

24 police departments in three

observation of citizen demeanor in terms of disrespectful

of the encounters.

of data from

factor in police arrest decisions.

Worden and Shepard (1996), for example, reexamined included

Despite this later claim the vast majority

for the type of crime a citizen

also noted that although the effects of demeanor

was

varied, othe

Chapter

extralegal factors like race and class affected police arrest decisions. The finding police enforcement law

practices put the issue quite well, police tend toward

when a violation

occurred

6|

strict enforcement

and the offender failed to show appropriate

are more likely to be arrested

Discretion

of a recent study on

contrition,

and deference (Schafer, 2005:270). In essence, the decades of research that finds disrespectful

Police

still holds accurate (Carter,

of the

cooperation,

citizens

who are

2006:605).

GENDEr Intuitively, one wouldbelievethat gender would makea differencein how officersreact to complainants

and suspects. The

research indicates

research

that gender has little

on this issue has achieved

mixed results.

or no effect on police discretion (Klinger,

Some early

1996; Smith

&

Visher, 1981) while other studies have found that females are less likely to be arrested than their male counterparts

especially

& Simpson, 1998).

when they commit

crime typically

seen as male

offenses (Sealock

One study of police officers decisions to issue traffic tickets found that females

are morelikely to receive

morelenient treatment

bythe police than

are males(Liu

& Cook, 2005).

Situation Variables Situation

variables

are the nuances of the interaction

variables are the context in situation

which officers perform

variables that affect the officers

between

officers and citizens.

police activities.

Situational

Research has also examined

decisionmaking.

SErIOUSNESS OF OFFENSE Almosteverystudy ultimately reachesthe conclusionthat the sin-gle mostimportant

factor in officers

decision

making is the seriousness

more likely for serious offenses than for relatively four

decades of research

to arrest

(Carter,

2006:596;

readily justify ignoring action

explaining

the effect of situational

Sherman, 1980;

a relatively

when a serious crime

minor ones.This

Riksheim

minor situation,

Also, there is a general expectation

(LaFave,

decision

offenders action.

may be further

by the public,

prior criminal

record. The

Research indicates

crimes than

influenced

Visibility

1965;

government,

and police officials that

formal

to

belief that property

crimes

1982), or that

& Mendelsohn, 1969). nature of police

make decisions that are often concealed from the general of or reviewed

by their superiors.

that are not likely to become known afford officers

more discretion. The

guided by the probability

the ability to control

of a complaint

official

actions for property

a copy of the report (Ericson,

mediation (Bayley

decisions are often not known

of assistance.

officers

such as the presence of a weapon or the

of the event and the presence of others is another consideration. The

someone. Their

& Visher,

with arrests in serious crimes.

may result from their

companies for

crimes are best handled through

more

do not always exist for less serious crimes.

by factors

minor crimes against persons. This

view. These

the availability

Officers can

Wilson, 1968; Smith

that police officers are morelikely to initiate

work affords officers the opportunity publics

1993).

decisions

presence of a weapon generally results in officers taking

will generate requests from insurance interpersonal

on police officers

& Chermak,

and success on the job

make arrests in serious crimes. Such expectations The

variables

is

from

while they feel compelled to take some type of

has been committed

1981). Officers tend to associate importance

of the offense. Arrest

is an established finding

beingfiled,

Decisions

decision to arrest

may be

others at the scene, and

Officers may be subjected to criticism for either arresting or not arrest-ing

decision to arrest or release

may be influenced

by their

belief that a particular

8

82

CRIME, JUSTICE,

AND SOCIAL

CONTROL

course of action is the least likely to result in a citizen complaint. the officer to take

In the presence of larger crowds,

mayfeel it necessary to arrest the offender to prevent any further

more official, bureaucratic

responses

problems.

Officers tend

when witnesses are present.

OFFICErINITIaTED aCTIONS aND CITIZEN CaLLSFOr aSSISTaNCE How officers become involved

in an event affects their

when summoned

by a citizen

communications

discretion.

One would assume that

because they

must report the disposition

center, but research indicates

more likely to result in aformal

report

officers have less discretion

the contrary.

of such complaints

Activities initiated

or arrest than those initiated

already decided to calls in

make an arrest.

which no law

has actually

Another explanation

by the police are

by a citizens

1968; Black, 1971; Reiss, 1971). It seems that officers do not initiate

to the

complaint

(Wil-son,

actions unless they have

is that there is a large number of citizen

been violated.

System Variables System variables

are the idiosyncrasies

to exercise their

of the criminal

justice

system that

discretion for reasons other than those already

mayinfluence

discussed.

officers

Often mentioned as a

justification

for discretion is the lack of system capacity to arrest, prosecute, and incarcerate

individual

who commits

inequities

in the law

a crime.

Even beyond the systems

and the justice

obsolete, or are contrary

system that stem from

to the communitys

increased the penalty for the failure

to

the criminal

justice

perception

statutes that are overreaching,

needs and expectations.

believed that the penalty

of

ambig-uous,

For example,

wear a safety belt and the volume of traffic

declined. It seems that officers refused to invoke

capacity is the officers

every

Florida

citations imme-diately

wastoo severe and subsequently

process.

COMMUNITYEXPECTaTIONS The communitysexpectationsandstandards willinfluencean officers interpretation officers typically

and application

of the law. Some laws are seldom

make decisions to enforce the law based on their

Police officers are more tolerant The

department

size and structure

(Mastrofski, and fewer

Ritti

supervisors,

officers in smaller

perceptions

of discretion

have more latitude

departments that are more tightly controlled.

who perceive the courts as being too lenient in an effort to secure a more harsh punishment have also been known to attempt to flood

of-ficers

have more anonymity

in decisionmaking

than

do

Onthe other side of the coin, offi-cers

may stack or jack-up

the charges against citizens

for the offender (Kappeler

the criminal

ex-pectations.

are tolerant.

exercised by individual

Officers in large departments

the officers

Police

of community

of minor offenses if they believe residents

will affect the amount

& Hoffmaster, 1987). and therefore

or never enforced.

justice

system

et al., 1998). with tickets

Officers

or arrests

when they are pressured to increase their productivity.

COMMUNITY SUPPOrT aGENCIESThe existenceof alternativesto arrestthat are departmen-tally approved

will affect the officers

social service resources

discretionary

decisions. In communities

such as mental health facilities

an alternative to arrest that fulfills may makethe officers

their

or detoxication

order-maintenance

that

have sufficient

centers, officers are pro-vided

role. The

existence of these re-sources

more willing to intervene in situations that do not warrant an arrest

Chapter

but nevertheless require that some action officers are morelikely to intervene, not available. The

officer

be taken. If a detoxification

relative to those jurisdictions

may avoid the situation

and do nothing

6|

Police

center is readily

where detoxification

Discretion

8

available, centers are

unless it escalates to the point at

which a serious crime is committed

DEParTMENTaL CULTUrEPolicedepartments haveuniqueculturescreatingnormsthatguideoffi-cers decisionmaking. While the formal The

Both the formal and informal

norms ofthe department affect an officers actions.

norms are taught in the police academy, the officers peers convey informal

peer group can influence

norms.

subtly or bring direct pressure on an officer to behave in a certain

way

(Westley, 1970; Lundman, 1979; Ericson, 1982). By granting or withholding their approval, peersindi-cate what actions are acceptable (Kappeler norms, places limits

et al., 1998). A departments

on police discretion byidentifying

Officers often consider these norms

culture, through the creation of

activities that areimportant

when deciding to

and not important.

make an arrest or intervene in a situation.

COMMUNITYPOLICING The philosophyof a policeorganizationor a unit withina policede-partment can effect officers

arrest decisions.

Smith, and Engel (2002:91) looked policing beat

(COP)

An interesting

at the differences officers and their

officers are more likely to use indicators

hostile demeanor use discriminatory

when making their

study conducted

between traditional

beat

use of discretion. These

by

such as minority status, gender, intoxication,

decision to arrest.

when making their

Whereas, COP

and

officers are less likely to (including

decisions to arrest ... Furthermore,

are more likely to act on the preferences of the victim to the community

and com-munity-oriented

researchers found that,

factors (such as race or gender) and signs of nonconformity

and hostile demeanor)

Novak, Frank,

officers

or a witness, indicating

intoxi-cation

COP officers

they are

more re-sponsive

that they serve.

Discretionary Situationsin Law Enforcement While decisionmaking is required in almost every facet oflaw enforcement, certain situations are thought to involve

more discretion

than others. These

and problems encountered

include

with disenfranchised

areas and the types of discretionary

domestic violence, vice crimes, hate crimes,

populations.

decisions officers

In this section,

we will explore these

must make.

Domestic Violence Domesticviolenceis crimethat resultsin physical harm orthreats of harm by oneintimate partner against another. An intimate partner.

partner is a current

Violence between intimates

by partners

(BJS, 2006:1). The

primary focus,

levels of violence in these relationships. States are murdered by intimates these

includes

homicides, rapes, robberies

girlfriend

or same-sex

and assaults committed

however, has been on spouses because of the high

On average 30 percent of all women murdered in the

(BJS, 2006;

murders. Every year, about 475,900

victim to violence by intimates

or former spouse, boyfriend,

(BJS, 2006).

Catalano, 2006).

Husbands or boyfriends

women or 5 percent of females in the

United commit

United States fall

84

CRIME, JUSTICE,

AND SOCIAL

CONTROL

FIGURE 6.2 Community-Related Written Policy Directivesin Local Police Departments, by Size of Population Served

Agencies with a written policy directive pertaining to: Discre-tionary Citizen com-Populationarrest Domestic plaints powers disputes

served

Allsizes

77%

Homeless persons

Mentally ill persons

Juveniles

58%

85%

25%

94%

44%

100%

82%

57%

1,000,000 or more

100%

69%

500,000999,999

100

92

100

46

100

96

250,000499,999

100

82

100

42

100

94

100%

100,000249,999

95

75

95

36

97

83

50,00099,999

98

70

98

32

97

83

25,00049,999

96

74

96

33

94

76

10,00024,999

92

64

96

30

95

72

2,5009,999

83

64

90

26

87

62

Under 2,500

65

49

76

21

72

43

Source: Reaves, B.A. and A.L. Goldberg (2000).

Local Police Departments, 1997. Washington, DC: U.S. Department of Justice.

In the past, arrest tions.

was the least-used

alternative in domestic

Police officers viewed domestic quarrels

all likelihood

as private affairs that

only be made worse by official intervention

parties through the criminal justice system.

violence situa-Number

and by processing the

Victims were viewed as uncooperative,

because they often were seen as being reluctant to sign complaints to follow through of victims

would in

and unwilling

with prosecution if an arrest was made.

Many states followed the common law rule that prohib-ited

2,000

officers from Female

they had actually

1,500

substantially

making a misdemeanor arrest unless witnessed the crime taking

reduced the probability

would take any action

Male

There

1,000

officers

place.This

that police officers

whatsoever.

are a number of factors that influence decisions to arrest in domestic

police

violence cases.

Buzawa and Buzawa (2003)

note there

are situational

and incident

victim traits,

500

traits, 0 1980

1985

1990

1995

2000

which intervene and incident

the suspect FIGURE 6.3 Homicide ofIntimates

by Gender of Victim

Source: BJJ (2005). Intimate Partner Violence,19762004. DC: U.S. Deptartment

of Justice.

Washing-ton,

characteristics,

in officer

called the police (victim weapons, injuries,

decisionmaking.

characteristics

was present

include

when officers or third

and children.

and suspect

party),

Sit-uational

whether

arrived,

who

presence of

Victim traits includ

Chapter

6|

Police

Discretion

85

FIGURE 6.4 Violence byIntimate Partners, byType of Crime and Gender of Victim

Intimate partner violence

Overall violent crime

Number

Rate per 100,000 persons

691,710

3.0

41,740

0.2

Rape/sexual assault Robbery

60,630

0.3

Aggravated assault

117,480

0.5

Simple assault

471,860

2.1

Note: The difference in victimization

Male

Female

Total

male and female intimate

Rate per 100,000 persons

Number

5.0

588,490

103,220

0.9

0.4

16,570

0.1

0.7

36,350

0.3

3.6

50,310

0.5

0.4

41,740 44,060

81,140 421,550

partner victimization

Number

Rate per 100,000 persons

rates is significant at the 95%-confidence level

within each

category presented.

Based on 10 or fewer sample cases. Source: Rennison,

C.M. (2003).

victim-offender

Intimate

Partner

relationship,

Violence, 19932001.

victim

preference for

arrest, drug or alcohol involvement and victims

demeanor.

terms of criminal

Washington,

DC: U.S. Department

You canlearn

of Justice.

more about domestic

by the victim,

violence by contacting the violence

Suspects are evaluated in

history, relationship

with victim,

against women office of the department

drug or alcohol usage, and demeanor. Police officers often weigh a number of factors of intervention

into a domestic

groups

violence.

began a campaign

officers to

that resulted in a television of the Torrington, from

her abusive

wounds and officers stood

make arrests. In a nationally movie, Tracey Thurman

Connecticut, husband.

abuse on several

by and

have failed to

Support for the

Police

Department

During a 1983 assault,

Minneapolis

occasions.

watched as Tracey

many other victims officers

they sought to limit

successfully for failing

sued officers to protect

received

was brutally

strategies

was provided

police

beaten. Sub-sequently,

have filed suit against police departments

mandatory intervention

her

13 stab

whom she had reported

make an arrest or protect a victim from

Domestic

incident

During the disturbance,

Thurman

cycle

police dis-cretion

publicized

Thurman

was kicked in the head by her husband,

to the police for

to change the police

Pointing to the dangers of the recurring

of violence that occurs in domestic situations, and force

at http://www.usdoj.gov/ovw/

disturbance.

In the late 1970s, citizen response to domestic

of justice

when deciding type

physical

when harm.

by the results of

Violence Study. For a period of 18 months, officer

86

CRIME, JUSTICE,

AND SOCIAL

CONTROL

were required resolve

to randomly

select one of three

misdemeanor-level

mediation, or requiring an eight-hour the victims

family

violence cases: arrest,

the offender to leave the home for

period. Interviews during the six

werethen conducted

months following

to determine if any additional were not arrested

the incident

abuse occurred. Those

committed

subsequent assaults on their victims as did those

who were

study concluded

with the finding

of their

position (Sherman

Under political domestic

or

mandatory

limited

a domestic violence report.

with threat

were quick to enact presumptive

arrest laws.

Relying

on the proof

Minneapolis experiment,

of the

they legislatively

officers discretion in an attempt to reduce domestic

violence. States required was evidence studies,

Omaha, Charlotte, and

dramatically

different

results

officers to

of physical

of assault.The

or abuse. Subsequent

Minneapolis experiment,

Milwaukee.

were reached:

make arrests whenthere

violence

which replicated the

conducted in

fewer subsequent incidents

& Berk, 1989).

and facing the ever-increasing

legislators

well-publicized

as vindication

pressure from citizens concerned

violence

of lawsuits,

that arrest

& Berk, 1984).

Womens advocates welcomed thesefindings

Mark C.Ide

who

as many

alone produced a deterrent effect (Sherman

completes

with

almost two times

arrested. The

Police officer stands by as woman

options to

were

Using similar research designs,

making an arrest did not result in danger to the victim is not increased

or decreased by an officers choice to use mediation, to separate the parties, or to arrest the offender (Dunford,

Huizinga

& Elliott, 1986).

Other studies

have

reached different conclusions. Dugan (2003)

examined the effects of mandatory arrests and found the laws

reduced the incidence police.

of domestic violence and reporting

Although the incidence

be the result

of domestic violence

of a decrease in reporting.

of such incidents to the

declined, the decline

may

Moreover, Dugan, Nagin, and Rosenfeld

(2003) found that cities with mandatory arrest laws had a higher rate of spousal homicide as compared to cities without such laws. This arrest laws

may,in some cases, lead to

home. Buzawa and Buzawa (2003) but they are the

most effective

suggests that

mandatory

more violent spousal confrontations

note that

in the

mandatory arrest laws areflawed,

means of dealing

with the problem.

It appears that only about half of the domestic violence cases are reported the police (Dugan,

2003). Felson,

Messner, and

Hoskin (2002)

factors that encourage and discourage reporting. The factors are fear of reprisal

have identified

discouraging report-ing

and a desire to protect the offender. If the police arrest a

batterer there certainly

will be court costs,fines,

have a vested interest in protecting their at work is involved.

to

and possibly jail time.

batterer, especially

Onthe other hand, the factors

Victims

when the loss of time

motivating victims to repor

Chapter

violence are desire for incident

protection,

is not trivial.

experience

Victims

weigh these factors

with the batterer and the police

While there is sufficient officers

belief that the violence is not a private

philosophical

would treat other forms

in reducing

justification

violence is at best uncertain

ultimate

for treating

decision.

domestic violence as seriously

evidence as to the effectiveness

(Felson,

Ackerman

the police to effect arrests, police still have atendency

a study of domestic determine

a random

sample

variables, that non-domestic

of police reports.

and non-domestic

consider

or non-domestic

domestic

been achieved cases (Fyfe,

of injuries

victims

kinds of assaults. The even

has relatively

little to do with arrest in

police officers

of the arrests.

discretion, they often did not arrest the female. police power to

Hickman (2006:312)

impacts

women

of the legislation

of domestic

of cities and found

both

have

violence

increase

Chesney-Lind

that sometimes females

Mandatory arrest laws require of gender.

officers to

When officers had

initiative

to expand

offenders as a result

expectations, it did not

make more

More recent research into this issue examined the Bouffard and Laura

police arrest powers positively

cases that resulted in arrest ... arrest rates increased similarly

male and female

more than

2002).

make arrests for domestic violence. Simpson,

found that a legislative

affected the percent of reported

the researchers

were more willing to

of mandatory arrest policies as a result of a significant

when there is evidence of physical harm, regardless

for

minor

when weapons were used. Similar results

violence arrests in a number

accounted for about one-quarter

significantly

to experience

violence cases are morefrequently

& Flavin, 1997).

the domestic

affect of expanding

for situ-ational

violence cases than in

in the number of women being arrested for domestic violence (Chesney-Lind,

an arrest

researchers

when controlling

who have examined the police handling

Finally, there has been criticism

examined

to

other assaults and to deter-mine

were more likely

of domestic by itself

assaults as real assaults only

Klinger

from

police department

to arrest in domestic

assaults. It appeared that

by other researchers

violence

were about equally likely to be present in cases of arrest

while victims

of minor violence, the level

pressure brought on

enforce domestic

Midwestern

Results revealed,

assault, although

in domestic assaults. Thus,

domestic

in different

police officers are less likely

cases. In addition, injuries

for domestic

either

in a medium-sized,

affect police decision-making

Research also

and Kappeler (1996) conducted

whether police handled domestic assaults differently

examined

victims

to differentially

as

of mandatory arrests

& Gallagher, 2005).

Eigenberg, Scarborough,

violence enforcement

what factors

injuries

assaults.

Discretion

matter, and belief that the

suggests that despite changes in the laws on domestic violence and the political as compared to non-domestic

Police

when deciding to call the police, and victims

will affect their

of violence,

6|

of the legislative

appear that expanding

change.

and

Contrary to

police powers to arrest necessarily

men. Nor are black women at a greater risk for arrest as a consequence

than are white women.

Vice Crimes Vicerefers to criminal

activity that is against the public order or public morality, but they are

also enacted to curtail

the economic

benefits of these activities.

prostitution,

pornography,

the illegal sale of alcoholic

gambling,

drugs and narcotics.

Such crimes are victimless,

Vice includes

activities

such as

beverages, and the trafficking

as parties involved

in such activities

in

participate

8

88

CRIME, JUSTICE,

willingly.

AND SOCIAL

CONTROL

Also, because the activities

complicates their investigation.

are consensual, there are no complaints,

Vice activities consist of three types of activities: (1) illegal selling of

goods or services, (2) illegal consumption & Cernkovich,

are enacted to regulate

by which persons are protected believe such activities

from their

result in spiritual

or control

morality. They

own behavior.

vice behavior,

more conservative, individuals

and even bodily

religiously

fundamental

with crime (Geis,

1979). The

Some groups are moretolerant

be strictly

groups are less tolerant

are quick to point

enforcement

However,

not necessarily

equate

often depends on which group comes

power.

enforcement

of vice laws is controversial

of enforcing

unpopular

and problematic for the police. Because there is not

or unenforceable laws.

a number of problems associated

with the enforcement

1.The laws are almost unenforceable. The peripheral individuals

or persons

reported

are placed in the untenable

McCaghy and Cernkovich (1987) identify of vice laws.

police, when enforcing

vice laws,

must depend on

who might have been a witness to such an act and was

offended as a result of the act.This

2.There

Generally, the

of vice activities.

a clear consensus in our society about such laws, the police frequently situation

regulated.

out that sin should

of vice crimes

notes that some

harm to those engaging in them. The

while others believe that it should

opposed to vice laws

to political

(McCaghy

are seen as instru-ments

Sheley (1985)

of vice laws is the result of group conflict in our society.

or condone

The

of goods or services, or (3) illegal performance

1987).

Vice statutes generally

legislation

which substantially

leads to a very small number

of vice activities

being

to the police.

is no uniformity

them as opportunities

in the

manner in

which vice laws are enforced.

avail themselves.

Police officers enforce

Enforcement tends to be discriminatory,

sporadic,

and ineffective. 3. Vice laws encourage illegal activities and entrapment

by police officers. Illegal searches, planted evidence,

are some of the techniques

that officers sometimes

employ to enforce

vice statutes. 4. Enforcement

of vice laws is extremely time-consuming

are any witnesses or victims, to informants,

enforcement

and expensive.

tactics include

and stakeouts. These tactics

undercover

are labor-intensive

Because there seldom operations,

payments

relative to investigations

of

street crimes. 5. Vice laws encourage police corruption. The with organized

crime activities

6. Vice laws encourage organized rural criminal

secrecy and large amounts of money associated

continuously crime.

groups are involved

lead to police corruption.

Organized crime groups ranging from the

extensively in vice activities

Mafiato

because they are lucrative

and

difficult for the police to investigate. Vicelaws constitute in

only a small portion

Figure 6.5, vice violations

arrests

of police enforcement

accounted for

only small

percent

activities.

For example, asshown

of all arrests,

and

most of those

were for drug violations.

Crimes of vice, prostitution, levels of attention

pornography,

by society, policymakers,

referred to as the oldest

profession,

gambling,

and narcotics

and the police throughout

has always

have received

different

history. Prostitution,

been subject to varying levels

of interest

often an

Chapter

6|

Police

Discretion

FIGURE 6.5 Estimated Number of Arrests,aby Offense Charged, United States

Estimated Number of Arrestsa

Offense Charged

14,004,327

Totalb Murder and nonnegligent

14,004

manslaughter

26,173

Forcible rape Robbery

109,528

Aggravated assault

440,553

Burglary

294,591 1,191,945

Larceny-theft

147,732

Motor vehicle theft

15,557

Arson

590,258

Violent crimec Property crimed

1,649,825

Other assaults

1,285,501 119,410

Forgery and counterfeiting

282,884

Fraud

17,386

Embezzlement Stolen property; buying, receiving, possessing

129,280

Vandalism

276,543 177,330

Weapons; carrying, possessing, etc. Prostitution and commercialized

90,231

vice

91,395

Sex offenses (except forcible rape and prostitution)

1,745,712

Drug abuse violations

10,916

Gambling

125,955

Offenses against family and children

1,432,524

Driving under the influence

613,922

Liquor laws Drunkenness

550,795

Disorderly conduct

683,850 36,082

Vagrancy

3,836,877

All other offenses (except traffic)

3,554

Suspicion (not included in total) Curfew and loitering law violations

138,685

Runaways

118,966

a Data are based on all reporting b Because of rounding, figures

agencies and estimates for unreported areas. may not add to total.

Total does not include suspicion.

c Violent crimes are offenses of murder and nonnegligent d

Property Source:

crimes

Sourcebook

are offenses of criminal

of burglary, justice

larceny-theft,

statistics

Online.

manslaughter, forcible rape, robbery, and aggravated assault. motor

vehicle

theft,

and arson.

http://www.albany.edu/sourcebook/pdf/t412004.pdf

8

90

CRIME, JUSTICE,

AND SOCIAL

enforcement. These chicken

ranch

BestLittle

efforts are governed

by community

of La Grange, Texasmade

Whorehouse in Texaswas

thrust into the limelight ultimately

CONTROL

famous

by the Broadway

enforcement

reporter. The

officials to intervene

public attention

generated by the

and close its operations.

learned

officers

a brothel in exchange for free services.

changed in the last sexual favors (Australian,

decade. In 2006, two

that at least a dozen

On the other

New York Police

New York police officers

media

Department

Nothing

much has

were arrested for accepting

brothel owners in exchange for protecting

their illicit

business

2006).

Most activities are not initially commonly

in protecting

and free drinks from

The

musical, and later the film,

side of the coin, in 1998 investigators were involved

condemnation.

depicted as a benign enterprise that existed for decades until

by an investigative

forced law

values and citizen

of law enforcement

agencies aimed toward

based on a complaint

asserted that these types

research indicates

the contrary.

agencies that regulate

of businesses and activities

oriented

businesses. This

ranged from

oriented

or other governmental

Ruiz (1996) reported findings

sexually

businesses in these jurisdictions

from citizens

sexually

business, however,

agencies and while it is

generate additional from

a survey

research found

nude dancing to prostitution

crime, some

of 18 Texas police

that sexually

oriented

and the sale of obscenity.

None of police agencies, however, reported that these businesses generated serious crime in the area or in the neighboring

community.

Likewise,

to these businesses because of citizens law enforcement

action

while common sense suggests that

complaints,

police responded

the researcher found that the vast

majority of

was based on officer initiatives.

FIGURE 6.6 Drug and Vice Enforcement Functions of Local Police Departments, by Size of Population Served Percent of agencies

Population served

with responsibility

for the enforcement

Druglaws

Vicelaws

88%

51%

1,000,000 or more

100%

100%

500,000999,999

100

100

250,000499,999

100

100

100,000249,999

99

99

50,00099,999

99

94

25,00049,999

95

91

10,00024,999

93

75

2,5009,999

90

56

Under 2,500

82

33

Allsizes

Source: Reaves, B.A. and A.L. Goldberg (2000).

Local Police Departments, 1997. Washington, DC: U.S. Department

of Justice

of:

Chapter

6|

Police

Discretion

Prostitution and Human Trafficking Prostitution,

as stated earlier, is often referred to as the worlds oldest profession.

For example, the term hooker, the Civil

War when Union General Joe Hooker employed

and his army (Winick traditionally

problem in

major cities. For the objectives

moreabout this topic go to:

www.bayswan.org/polpage.html

with prostitution.

prostitution

police

prostitution,

prostitutes for himself

Tolearn

most of Americas

when dealing

it. The

and

most part, the police have

First, the police enforce to control

dates back to

& Kinsie, 1971). Prostitu-tion

has been an enforcement

order-maintenance two

which is usedto refer to prostitutes,

laws in an effort

will never be able to elimi-nate

but through

enforcement

attempt to confine it to specific

areas or

they can make it less

visible to the public. Second, the police are responsi-ble for investigating

and preventing

crime

associated

with prostitution. Traditionally,

there

are several

different

types

of

prostitution. Streetwalkersare commonly found in a citys

vice or drug district. They

stairwells,

cars, and cheap hot

work out of alleys,

sheet

hotels. They

are

vulnerable to problems such as diseases, arrests by the police, and physical They

abuse by customers

Police officers talking with prostitute on city sidewalk. Mark C.Ide

and pimps.

receive little economic reward for their efforts, and

generally are poverty-stricken

women who are attempt-ing

to exist or support a drug habit. Bar girls (b-girls) and taverns

most often

sell patrons expensive, B-girl operations

work in bars, restaurants,

with the consent of management. The diluted

drinks

are often found

Brothels, or houses of prostitution,

before offering adjacent to

b-girls attempt to

or selling their sexual ser-vices. military bases and factories.

are where clients can choose a specific type of

Violent

crime:

nonsexual

23%

Violent

crime: 10%

sexual

Nonviolent

64%

crime:

sexual

3%

Nonviolent

crime:

nonsexual

FIGURE 6.7 Offenses Committed

Against Juvenile Victims in Prostitution Incidents

Source: Federal Bureau of Investigation,

19972000;

Finkelhor,

Juveniles; Patterns From NIBRS. Juvenile Justice Bulletin.

D. and Ormrod, R.(2004).

Prostitution

Washington, DC: Office of Justice Programs

of

91

92

CRIME, JUSTICE,

AND SOCIAL

CONTROL

sexual service and partner. massage parlors, of alegitimate

Manybrothels have been replaced by escortservices,

photographic

business

for citizens to recognize

studios,

makesit

operations.

Using the cover

more difficult for the police to

or tanning

make arrests and

that prostitution

Prostitution is a compelling

exists.

social problem because ofthe number of underage

people engaged in prostitution.

Some authors

estimate the number

prostitutes in the U.S.to be between 100,000 and 300,000 (Flowers, (1986) estimated that in prostitutes

(chicken

is a significant long

New York City alone there are 10,000

hawks).

Many female

prostitutes

histories of sexual and physical abuse by family

The They

& Finkelhor,

underage

Prostitutes

members often beginning

1988).

use reverse stings to arrest clients, or johns. Reverse

stings, sometimes referred to as operations, crackdowns, have been conducted

in

Czar, Juliette and

You can review the st. paul web page by

The

Georgia a task decoys

within one week 22 men had been arrested... city touted

a conviction

& Williams, 2005:3).

prostitution_photos_current.html

prostitution

Tolbert began using female

rate of 95 percent for

men apprehended in these stings

going to http://alpha.stpaul.gov/police/

problem.

John stings and round-ups,

many urban areas. In Savannah,

headed by Prostitution

male

often have

police have used a variety of tactics to deal with the prostitution

sometimes

force

2001). Hagan

are underage, and there

clientele that prefers underage prostitutes.

at the age of 10 or 12 (Hotaling

of juvenile

(Dodge,

Another

Starr-Gi-meno

way to control

prostitutes is to eliminate their customers. In Aurora, Colorado the city council

police to purchase advertising pictures of arrested johns. Department

space in a local

In a more controversial

passed an ordinance newspaper

and publish the

program the St. Paul Police

created a web page that shows the pictures

prostitution.

allow-ing

of people arrested for

Many of these people have yet to be convicted

of a crime and the

practice raises serious legal issues. More recently public and police attention has turned toward the international

trafficking of human beingsto service the sex industry. The human trafficking as a social and legal problem in the

U.S. can be traced as far back as passage of the

Mann Actin 1911, which madeit illegal to transport purposes of prostitution. human trafficking

Even though,

and paid little

historically

women across statelines for local

attention to it as alocal

police knew little

about

police problem. In the

United States, until the passageofthe Trafficking Victims Protection Act(TVPA) in 2000, human trafficking

was approached

meant that police viewed trafficking

(Newman, trafficking

2006:1).The

as an immigration

problem,

which

as afederal rather than alocal responsibil-ity

Trafficking Victims Protection Act defines human

as:

1. sex trafficking coercion,

or in

in

which a commercial

sex act is induced

by force, fraud,

which the person induced to perform such an act has not

attained 18 years of age

or

Chapter

2. the recruitment,

harboring,

services, through servitude,

Wilson, modern form Estimates

transportation,

the use of force, fraud,

or obtaining

Police

of a person for labor

or coercion for the purpose

Discretion

or

of subjection to involun-tary

peonage, debt bondage, or slavery.

Walsh, and

Kleuber (2006:14950)

instruct

of slavery that is one of the fastest

are that 700,0001

globe, 50,000

provision,

6|

of them

million

are imported

that,

growing forms

women and children

into the

Trafficking

USA.The

in human

of crime throughout

are trafficked

beings is a the

world.

each year across the

USA has become a majorimporter

of sex

slaves. However, these numbers are only estimates since human trafficking

is a hidden transnational

commerce that occurs in private homes or under the faade

businesses.

local

police are more likely to confront

of these crimes than

both the victims

are federal law enforcement

of legitimate

of human trafficking

officials (De

Even though

and the perpetrators

Baca & Tisi, 2002), they are ill

TRAFFICKING

TRAFFICKING

TRAFFICKING

FOR

RAPE,

FOR

LABOR

PROSTITUTION

MIGRATION

MIGRANT

ASSAULT MIGRANT

DOMESTIC

ABUSE

SMUGGLING

ABUSE EXTORTION,

FORCED

ROBBERY

LABOR OF

PEONAGE

MIGRANTS

ETC.

ETC. SALE

OF

CHILDREN

CONSENT

LABOR

MIGRATION

FIGURE 6.8 Relationships Among Exploitation, Trafficking, Migration, Smuggling, Labor, and Consent Source: Newman, G.R.(2006). The

Exploitation

of Justice: Office of Community

of Trafficked

Women. Problem-Specific

Oriented Policing Services, p. 59

Guides Series Guide No. 38. U.S. Depart-ment

93

94

CRIME, JUSTICE,

AND SOCIAL

CONTROL

prepared to recognize

human trafficking

crime problem ... local

police agencies view trafficking

and for other

law enforcement

(Wilson,

involved

problem, the

in human beings is best

Walsh & Kleuber, 2006:158).

of prostitution,

cannot

or investigate

this emerging

as a problem elsewhere

agencies. Consistent

was not really alocal law enforcement that trafficking

victims

with the attitudes that this majority of agencies believed

addressed byfederal law enforcement Human trafficking,

be seem as a victimless

unlike some views

crime since

in this trade are force into the sex industry

and

most of the

workers

many are children.

Pornography Pornography

is a complex law enforcement

varying levels exhibited

issue primarily

of public acceptance. In terms

because there

of public acceptance,

the

are

morals

by the residents of Los Angeles, Las Vegas, or New York City are very

likely to be quite different than those of the residents of the Bible belt or cities that have large concentrations

You canlearn

groups.There

more about the issues

in

of free speech by going to the thomas jefferson

center for the protection

is little

most jurisdictions.

fundamentalist

of fundamentalist For example,

groups oppose

merchants and business

of

religious

agreement about pornography conservative,

pornography,

people frequently

while do not

oppose it because it attracts business to the commu-nity.

free expression at http://www.tjcenter.

A 1985

org/

Gallup poll indicated

of the people polled favored X-rated X-rated should

movie; 68 percent favored

movies; and 53 percent believed that not be banned (Newsweek,

that

60 percent

being able to go to an being able to rent

magazines showing sexual relations

1985). The

shows that less than 38 percent of the public

General Social Science Survey

would support

making all pornog-raphy

illegal to all people. The

United States Supreme

Court attempted to provide legal guidelines for

the regulation of pornography in the caseof Millerv. California (1973).The opted to leave definitional attempt to establish

problems to each local community,

a national standard

used to enforce obscenity laws is, that the community, enforcement. 1. The find 2.The

discretion

standard norms of

and little consistency

of

Specifically, the court established three standards:

average person, applying contemporary the

what is obscene. The

which violates the prevailing

which results in substantial

work, taken

community

would

way, sexual conduct

defined by the applicable state law.

work, taken value

standards,

as a whole, appeals to prurient interests.

work depicts or describes, in a patently offensive

specifically 3.The

asto

Court

declining to even

as a whole, lacks serious literary,

artistic,

political,

or sci-entific

Chapter

There

is also disagreement

over the harmful

effects of pornography.

6|

Police

95

Discretion

In 1970,

the National Commissionon Obscenityand Pornography concluded that exposure to pornography

did not cause antisocial

anti-pornography laws be eliminated.

behavior

and recommended

that

most

However,the Attorney Generals Commis-sion

on Pornography(Meese Report) (1986) recommended differently. Although the

Commission

could notfind

a direct link

sex offenses, it recommended

strict

in cases where the pornography should also be noted that

between

enforcement

of obscenity

depicts violence

and harms women through

as objects to be controlled

by menfor their

by both

and violent

laws, especially

or is degrading to

many groups are particularly

because it: (1) subordinates promotes

pornography

women. It

opposed to pornography sex, (2) portrays

women

own pleasures, and (3) it not only

violence against women, but portrays it as pleasurable and gratifying men and women (MacKinnon,

Although

1984).

there is general social acceptance

acceptance of child pornography.

of pornography,

there is little

Child pornography is the exploitation

and abuse

of minors. Affording children legal protection from sexual exploitation

is relatively

modern develop-ment.

You can review the meese commission

As late asthe 1880s in the United States, the age of consent for girls

only two states had legislation the use of children

that specifically

(Wortley,

child pornography

2006:4)

kiddy porn industry

and delivering

recently,

was passed in 1978, and the first and child

but there

pornography

laws

were passed in

of child

pornography

has also been a growth in the industry. The

is estimated at morethan

$1 billion

making children

annually. It is linked

to

available for sexual relations

rings have extensive networks for recruiting

a variety

Public attention

cultronix/califia/meese/

has been a steady tightening

pedophile rings that are involved in with adults. These

outlawing

material. The first

referred to computers

1988. Since that time, there laws

specifically

in obscene

federal law concerning

report by going to http://eserver.org/

wasjust 10 years. In 1977,

young children

of sexual services.

was brought to the issue of pedophiles

Child exploitation

when veteran San Francisco police Officer Donald 23%

Rene Ramirez

was arrested in Phnom

having sex with a 14-year-old reportedly

shot himself.

girl.

Penh for

allegedly

While in jail, the offi-cer

According to

Gary

4%

Adult

Juvenile

victim

Delagnes, 73%

President

of the

knewabsolutelywhat wasever

Police

Officers

Association,

Everyone

he was going over there for...

Noth-ing

written up, but they called him on the carpet

and told him to knock it off, was basically, Its

Delagnes said. His

response

N = 2,469

Incidents

mytime and I can do whatever the hell

I want (San Francisco Chronicle, 2006:B1). More attention is being paid to the issue of child exploita-tion especially because of the Internet.

Police have also begun

using reverse stings to catch would-be child pedophiles over

FIGURE 6.9 Types of Pornography Incidents Reported by NIBRS Source: Finkelhor,

D. and

Ormrod,

R. (2004a).

Child

Por-nography:

Patterns From NIBRS. Washington, DC: Office of Justice Programs

96

CRIME, JUSTICE,

the Internet.

AND SOCIAL

CONTROL

Detroit three

men were arrested for soliciting

In

teens over the Internet. boy.The

In one case the operation involved

officer began talking

the agent to

online

with a sheriffs

deputy

pornography In

who he thought

to the investigators

(Angel,

was a 14-year-old

girl. In still

girl, assigned to the states Internet

2006).

most widely publicized

case, Polk County undercover

online profiles to catch would-be child pornographers investigations

U.S. Department

of Homeland Security

was a 14-year-old

conversations

girl. Detectives

with the undercover

said

detective,

deputy press secretary

her to buy a

Web camera so she could send graphic images

arrests nationwide

detective sexually

of pornography

aggressively investigate

exploit

has traditionally

children.

several offices that attempt to intercept

digital

profile on

movies and encouraged

of herself to him, officials said. The made more than 1,300

2006).

been alocal issue, federal and state officials in

making and distributing

For example, the

child

United States Postal Service attempts to

explicit

(Edwards,

and prosecute those involved

and attempting to sexually

explicit online and telephone

Images Task Force, meanwhile,

in 2004 related to such crimes

Whilethe problem

with a person

whom he contacted after reading the girls

Doyle sent the undercover

Innocent

Brian J. Doyle was

explicit conversations

Doyle had sexually

the Internet.

Federal Bureau of Investigations

detectives created ficti-tious

and pedophiles. In the course of their

arrested on about two dozen felony charges for having sexually

distribute

and when suspect propositioned

Children Task Force arrested a man when he solicited sex online and e-mailed adult

perhaps the

hethought

were

case, a man was arrested for soliciting

another case, a U.S. Secret Service agent, posing as 13-year-old Crimes against

people they thought

an undercover agent posing as a 13-year-old

with suspects on the Internet

meet him for sex, he was arrested. In another

sex while chatting

sex from

pornography

child pornography

United States Customs Service has

asit enters the

United States, and the

monitor and prosecute individuals

who use the

mails to

pornography.

Gambling Gamblingincludes a wide variety of activities, all of whichinclude the element of chance. Bets or

wagers are risked

law enforcement State-supported legalized 1964.

by a player

issue

because

gambling

gambling

includes

many states, especially to operate gambling

on the

casinos.

the founding

used to fund the

Gambling

Scandals in the administration development

lottery

began in

years.

Nevada has had New Hampshire in

to have casino gambling, it is now legal in where states have allowed riverboats

has played an important

of the American

in recent

bingo, and lotteries.

state-supported

City were the first

odds. It is an ambiguous

have been legalized

Mississippi and Ohio rivers

Revolutionary

clearing the wayfor

win by beating the

of gambling

horse or dog racing,

since 1931 and the first

While Nevada and Atlantic

helpedfinance

who hopes to many forms

Coloniesmoney

role in our history.

Lotteries

generated from local lotteries

War. of state-run of illegal

lotteries

eventually

led to their

number and policy games (Abadinsky, amount

of illegal

being outlawed, 2006).

Although

the exactfigures

are not known, there is a substantial

and races in the

United States (Reuter, 1983). Lower-level illegal gambling also exists, including

activities

was

as craps games, card games, and wagering pools associated

wagering on sporting

with sporting

events.

events such

Many of

these small operations are run out of the backs and basements of bars, barber shops, and restaurants

Chapter

Much of the literature

on gambling focuses on large-scale

between it and organized

crime. This

apparent

control

legal and illegaloften

forms the basis for enforcement

(Rose,

Prohibition,

2006). Since crime,

the

main target

operations

of gambling

by organized

governments

focus

on organized

crime

anti-gambling

profits by these groups realized from gambling. evidence to believe illegal

wasfor

crimeboth

laws

has been orga-nized (Rose, 2006:1).

many years directed

Some scholars question

gambling is controlled

by traditional

Discretion

2006) and legislation

which often seems to be beyond the power of state law enforcement

The federal

Police

and makes a connection

policies (Abadinsky,

of federal

6|

at limiting

the

whether there is sufficient

organized

crime groups like the

Mafia (Reuter, 1983). With the advent in the

manufacture,

of the war distribution,

been a renewed interest police departments, websites taking

and no priority

(Rose, 2006:1).

gambling.

gambling,

priority

in

most

Even with, thousands

who were also taking

of state-supported

of

sports

gambling existing in

especially in light

of the

most

many other

offenses are misdemeanors and substantial

police departments

has

25 people have ever been pros-ecuted

Most were bookies

view it as being harmful,

were involved

Today, even though there

it receives a low

wagers each year, fewer than

Because most gambling

to investigate

substances.

groups that

many departments.

With some form

states, few police officers or citizens

is required

whatsoever in

of dollars in

problems facing society.

shifted to those

because of the Internet,

United States for online

bets by telephone

priorities

or sale of controlled

in gambling

billions

in the

on drugs,

effort

are not willing to devote the resources

necessary to control it.

TheInvestigation of Vice The

basic investigative

narcotics

are similar.

and wiretapping some of the

techniques

to enforce laws against prostitution,

Each of these crimes requires

or surveillance.

most convincing

wiretapping

required

and

officers, informants,

Whilethe use of wiretaps and physical surveillance

may produce

evidence of a crime, they are expensive to conduct and in the case of

are subject to strict legal requirements

catch-22 situation. They

the use of undercover

gambling,

and controls.

Officers mayfind

cannot obtain a wiretap order from the court

convince the judge that a crime is being committed.

Without the

themselves in a

without sufficient

wiretap, it is impossible

evidence to to develop

the evidence necessary to show that the crime is being committed.

Moreover, a number of states do

not allow state and local officers to conduct

complicates the investigation

vice activities.

Regardless, police departments frequently

crimes that result in fines

a different lifestyle

that thrusts

would otherwise

beillegal. This

from family, friends,

illegal

activities.

undercover

many problems for the department.

them into the criminal

activities,

of dollars to investigate

New York City undercover

Officers are forced to assume

where they officers

must do things that who must be sepa-rated

members for extended periods. They

and officers

may begin to become corrupt.

sting operation.

subculture

extracts a heavy price from individual

and other department

in undesirable

long a period

spend thousands

of

ofless than $500.

Undercover operations present

to participate

wiretaps, which further

who remain in undercover

Even worse, the department officers ran a pornographic

Officers, as a part of their

are required

positions for too

can become involved

in

bookstore as a part of an

undercover investigation,

purchased 1,200

9

98

CRIME, JUSTICE,

AND SOCIAL

pornographic films

and resold them for a considerable

arrested severalfilm

After eight

operations cause or result in additional

of a Birmingham

caused a substantial had not existed,

profit.

undercover

anti-fencing

operation,

no market would have existed and criminals

the commission

undercover

operations

of a crime, they generally

are subject to strict scrutiny

Informants

would have stolen less.

because police

significant

network, amount

officers

requires

exercised in determining determining

Allowing

police to

must sometimes

overlook illegal

decisions to ini-tiate

Narcotics users or lower-level

mayfind

of vice crimes. They

acts committed dealers

make cases against their suppliers. it necessary to cooperate

a number of discretionary

what activities

by informants

may be allowed to

In order to

with dealers

decisions.

will be pursued.

who will be targeted for investigation.

or target specific types

subject to the factors

move up the

who are selling

a

Mostforms

Operational

possession of even small amounts

discretion

discretion

is

is exercised in

only particular

types

process for vice crimes is

mostimportant

criterion for officers is the

of vice, when considered political

they enforce

decision-making

discussed. The

However, under the current

Administrative

Because police do not have the resources to

of offenders. The

we have previously

seriousness of the offense. minor crimes.

make discretionary

Because

the results

has been the subject of much criticism

every crime, they engage in selective enforcement;

of violations

a crime.

authorization,

of drugs.

Vice enforcement

investigate

someone to commit

helpful and often necessary in the investigation

violating the law in order to

distribution

Whileofficers can dothings that

magnitude of the problem, the FBI now requires that large-scale

in order to pursue their investigations. continue

As a result of

bereviewed bytheir Criminal Undercover Operations ReviewCommittee.

are particularly

are problematic

activities.

he concluded that the operation

without prior judicial

based on a mere suspicion

1986). Recognizing the

undercover operationsfirst

may not induce

may be initiated

by the court.

undercover investigations (Schoeman,

criminal

amount of crime by creating a market for stolen goods. If the police operation

Any undercover operation is subject to claims ofentrapment. facilitate

months, officers finally

distributors (New York Times,1977). Furthermore, Langworthy (1989) postu-lates

that some undercover his analysis

CONTROL

climate,

alone, could be viewed as relatively which emphasizes

of drugs is viewed as serious.

zero

tolerance,

Officers are therefore

muchless

likely to exercise discretion in their decision to arrest in drug cases. With the exceptions

of drugs and child

of vice crimes as a waste of time. There effect on limiting

these activities,

Officers not specifically and not initiate

pornography,

maycome to view enforcement

is no evidence that their enforcement

and the penalties received for conviction

assigned to vice control

any formal

officers

units

may be more likely

actions, preferring to resolve immediate

efforts

will have any

are relatively to exercise

problems through

minor.

discretion

other means.

Policing Hate Crimes The

April 19, 1995 bombing of the federal courthouse in

September 11, 2001 attacks on the aware of the existence context

within

Oklahoma

World Trade Center in

City and again with the terrorist

New York the nation

was made acutely

of hate groups and hate crimes. In the past, the police tended to dismiss the

which hate crimes occurred. That

is, an assault that

wasthe result of a hate crime

wasviewed simply as an assault. However,in 1990, Congress passedthe Hate Crime Statistics Act

Chapter

which forced the police to collect statistics on crimes of a victims origin.

race, religion,

sexual orientation,

Police

Discretion

99

motivated because

ethnicity,

Crimes against persons with disabilities

6|

or national

became an element of

hate crime statistics with passageofthe Violent Crimeand Law Enforce-ment Actof 1994. In 1996, the Church Arson Prevention Act wassigned into law extending

data collection to the destruction

about 12,417 law enforcement

of churches. Today,

agencies in 49 states provide information

regarding hate crimes to the HateCrime Data Collection Program. Hate crimes are crimes that

manifest evidence of prejudice

group characteristics.

Assuch, hate crimes are not separate, distinct

crimes; instead, they are traditional

offenses motivated by the offenders

bias. An offender, for example,

may damage or vandalize

because of his/her

bias against the owners (victims)

sexual orientation,

ethnicity/national

origin,

wasthe result of the offenders is imperative

in that it

whether the offenders bias (FBI,

actions

with certainty

whether

bias. Law enforcement

must reveal sufficient were motivated, in

Many right-wing

groups as enemies. There number of bias crimes on terrorism

whole or in part, by

and the

each of these

Ku Klux Klan ceremonial cross-burning. Nathan Benn/CORBIS

will be an increase in the

Muslims and Arabs as a result of the war

wars in Iraq and Afghanistan.

are currently the

are the groups that are

groups identify

more than likely

directed toward

morethan

United States (Southern include:

inves-tigation

evidence as to

2006:1). mostfrequently.

There

race, religion, Because

Clearly, Africanas, Jews, and homosexuals targeted

property

or disability....

motivation is subjective, it is difficult to know a crime

based on certain

American

800 active hate groups in the

Poverty

Law

Nazi Party,

Center,

Arizona

1%

2007). They

Patriots,

Disability

Religion

Aryan 17%

brotherhood,

Aryan

Patriots

Nations, Christian

Defense League, Chris-tian

Defense League, Identity

Church

Movement,

Ku Sexual

Klux Klan, Posse Comitatus,

and skinheads

addition, there are more than 200

to name a few. In

14%

orientation

55%

Rac

militias operating in 39 states. 13%

Many of these

militias have racist ties,

ties (Southern the

Poverty

bulletin

boards

and

that link

and individuals.

Almost all of

tendencies. There

other forms

of hate

of criminal

Some openly

Ethnicity

are com-puter

of sophisticated

various groups together. Their

range from the dissemination and commission

many have neo-Nazi

Law Center, 2007).

militias have anti-government

communications

while

goals

FIGURE 6.10

materials to the coordi-nation Source: acts against target

espouse the over-throw

groups

Motivation For Hate Crimes of

Single-Bias Incidents Federal Bureau of Investigation

(2005).

Hate

Crime Statistics, 2005. Washington, DC: USDJ

Watch the video

of the government. The

rationale

crimes is that enforcement

for

police involvement

one of their

or reinforcement

primary

in hate

roles is the

of community

values.

You can view a video on hate crime at: http://www.youtube.com/watch?v=dbq0dctlgoe

100

CRIME, JUSTICE,

Even though e.g., graffiti, reality, it

AND SOCIAL

a particular

CONTROL

hate crime

may be relatively

simple assault, or disorderly

conduct, it

may be a much graver offense because it

victim or the community of people, a neighborhood, constitutionalism

minor and unorganized

may attack the very fiber

or a whole community. They

undercut

of our social order.

decisively to hate crimes to ensure that public confidence is the community

1996),

of a community.

In

mayresult in special or unusual effects on the

as a whole. Hate crimes have a compounding

that is the very foundation

(Martin,

effect that touches a group

our idea of justice, fairness, As such, the police

maintained and that

and

must react

deterioration

of

does not occur.

FIGURE 6.11 Bias Motivationin Hate Crimes Knownto Police, United States

Bias Motivation

Incidents

Victimsa

Known offendersb

Total

7,163

8,380

8,804

Race Anti-white Anti-black Anti-AmericanIndian/Alaskan Native Anti-Asian/PacificIslander Anti-multi-racial group

3,919 828 2,630 79 199 183

4,691 935 3,200 95 231 230

4,895 975 3,322 97 240 261

3,913 963 2,581 73 163 133

Ethnicity Anti-Hispanic Anti-other ethnicity/national origin Religion Anti-Jewish Anti-Catholic Anti-Protestant Anti-Islamic Anti-other religious group Anti-multi-religious group Anti-atheism/agnosticism/etc.

944 522 422 1,227 848 58 57 128 93 39 4

1,144 660 484 1,314 900 61 58 146 102 42 5

1,228 722 506 1,405 977 61 58 151 106 47 5

1,115 691 424 580 364 22 32 89 54 18 1

Sexual orientation Anti-male homosexual Anti-female homosexual Anti-homosexual Anti-heterosexual Anti-bisexual

1,017 621 155 195 21 25

1,171 713 180 228 23 27

1,213 743 186 233 23 28

1,138 715 146 237 18 22

53 21 32 3

53 21 32 7

54 21 33 9

54 21 33

Disability Anti-physical Anti-mental Multiple-bias incidentsc a Mayinclude b Known

persons, businesses, institutions,

offender

does not imply

distinguishing c

Offenses

or society as a whole.

the identity

of the suspect is known,

rather

that

an attribute

of the suspect

has been iden-tified,

him/her from an unknown offender.

A hate-crime incident

two offense types

that

6,804

in which two conditions

must be motivated by different

Source: Sourcebook of Criminal Justice Statistics

must be met: morethan one offense type

must occur in the incident

biases. Online. http://www.albany.edu/sourcebook/pdf/t31132005.pdf

and atleast

Chapter

6|

Police

Discretion

FIGURE 6.12 Bias-Motivated (Hate) CrimesKnowto Police, By Offense,United States

Total Crimes against persons Murder and nonnegligent Forcible rape Robbery Aggravated assault Simple assault Intimidation Otherd

manslaughter

Crimes against property Burglary Larceny-theft Motor vehicle theft Arson Destruction/damage/vandalism Otherd

8,380

8,804

6,804c

5,317 6 3 127 1,062 1,566 2,539 14

5,344 6 3 154 1,062 1,566 2,539 14

5,646 17 3 289 1,381 1,957 1,974 25

2,982 136 221 18 39 2,528 40

3,376 165 232 19 48 2,869 43

1,391 88 146 14 32 1,072 39

81

84

Otherd a Mayinclude b Known

persons, businesses, institutions,

offender

c

d

him/her from an unknown

of the suspect is known, rather that an attribute

Includes

morethan once. Therefore subcategories offenses

other than

those listed

that

primary

law enforcement

as part of the

National

crimes

mount enforcement

by thoroughly

activity

the bias crimes in

them.

in three or moreinvestigative

1996),

in such cases to the perpetrators, fail to adequately report

and investigate

underreporting

of the problem.

responses to hate crimes including Officers are

more likely to

and they are morelikely to

Garofalo (1991) found

and documenta-tion authorities

reports

cannot

to eradicate such that 90 percent of while 76 percent of

and only seven percent of the non-bias crimes resulted New York City Police Department

which hopefully, victims,

communicated

and community.

hate crimes (Nolan

However,

Martin (1995; 1996) investigated

the types

was exerting

the departments

& Akiyama,

which results in

determinants

of police

made by officers.

against persons than for property sexual orientation

police tend to exert greater efforts

com-mitment

many jurisdictions

2002),

of bias and subjective judgments

make an arrest for hate crimes involving

& Ruback, 2003).

System.

must exhibit a commitment

make an arrest for crimes

compared to other types of bias.The severe (Wilson

police

For example,

reports. Indeed, the

extra effort in bias cases (Martin,

Reporting

and documented,

New York City resulted in three or more investigative

the non-bias crimes resulted in no reports

significant

Incident-Based

relative to hate crimes is the reporting

actions. The

investigating

and are

Online. http://www.albany.edu/sourcebook/pdf/t31122005.pdf

of such crimes. If these crimes are not properly reported successfully

more than one offense perincident

will not add to total.

are collected

Source: Sourcebook of Criminal Justice Statistics

The

of the suspect has been iden-tified,

offender.

The actual number of known offenders is 6,804. Some offenders, however, committed

counted

11

or society as a whole.

does not imply that the identity

distinguishing

Known offendersb

Victimsa

Offenses

crimes,

and race as

when the crimes are more

101

102

CRIME, JUSTICE,

AND SOCIAL

CONTROL

DisenfranchisedPopulations Alarge segment

of the

the rest of society

American

population

because of our political

to these people.This

has been disenfranchised

economy

and the stigma

from

we attach

presents a special challenge for the police. Disenfranchised

peopleinclude the mentallyill, public inebriates, drug abusers, and the homeless. Although

many of the people in these categories experience

homelessness, society

tends to deal with them asthe homeless.

The Homeless The

best estimate of the number of homeless people wasdone by the National

Law Center on Homelessnessand Poverty which found that approximately 3.5 million people, 1.35 million of which are children, in any given year (National National

Coalition for the

will experience

Law Center on Homelessness and Poverty, 2004; Homeless, 1996). Estimates also indicated

1 percent of the U.S. population

experience

families

with children.

17 percent are single

home-less

a single group or a single

them as such is an oversimplification.

of the homeless are children,

that about

homelessness each year.The

are a diverse group of people and do not constitute social problem, treating

homelessness

About 39 percent

women, and 33 percent are

While almost all homeless people are poor,

employed.

Poverty and a lack

thread that

unites the people we call homeless.

many are

of adequate shelter seem to be the only binding

Lumping all disenfranchised

people into a single group is ineffective,

decep-You

tive and results in the police having to deal with these problems rather social service

canlearn

more about the issues

the

most part, homelessness, and

associated with the homeless by going

mental illness

Conference

to the international homelessdiscussion

agencies and public

of

programs.

drug abuse, alcohol-ism,

are intermingled.

Mayors (2005) found

or drug problem, disorders. This

comp/homepages.htm. this site has

The

over three

problem for the

million homeless and only about 100,000

shelter beds available to the homeless in the

Melekian (1990:2) identifies encounter the homeless: (1)

United 2004).

when they

over the use of public facilities,

(2) public

action against activities that are often only

marginally

and (3) the need to provide

feel threatened

decreasing (USDHUD,

three areas of concern for the police

conflict

mental

that it is estimated that there are

States(Orr, 1990) and their numbers are currently

class of people.

U.S.

that about 30

and 22 percent had severe

becomes a significant

police considering

morethan 450links on the topic.

criminal,

For

percent of the adult homeless had an alcohol disorder

list at http://homepages.dsu.edu/nelsonj/

demands for enforcement

than

police service to an economically

Citizens complain

about the homeless because they

by their appearance or annoyed by their panhandling.

request that the police remove them

disen-franchised

Merchants

because shoppers refuse to frequent

thei

Chapter

6|

Police

Discretion

90 80 80 73 70

61 60

Victim

50

Deaths

48

of

42 40

Non-lethal

35

30

Number

25 21

21

17

20

15

12

13 9

10

0 1999

2000

2001

2002

2003

2004

2005

FIGURE 6.13 Hate Crimes and Violence Against People Experiencing Homelessness Source: Nation Coalition for the Homeless (2006). for the

stores

Hate, Violence, and Death on Main Street USA. Washington, DC: National Coali-tion

Homeless.

while they are present.

Other citizens,

and demand that the police do not harass

however, empathize or abuse them.

with the plight of the homeless

Regardless, the Santa

Monica Police

Department found that calls relating to the homeless accounted for 26.9 percent of all police calls. The

homeless accounted for 35.4 percent of all bookings in the jail. but the homeless remain

a significant

Santa

Monica is probably atyp-ical,

problem for police agencies.

The MentallyIll Persons who are mentally ill account for a significant however, been pointed out that, mental is a medical and social services problem. with people

number of the calls for police service. It has,

illness is not, in and of itself, a police problem.

Obviously, it

However, a number of the problems caused by or associated

with mental illness often do become police problems

(Cordner,

2006:1). The

problem

has grown larger dueto the deinstitutionalization policies ofthe 1960s and 1970s, whenthousands of mentally ill commitment

patients

were released from

of mentally ill people were enacted.

become the agency responsible socioeconomic

state hospitals,

for

handling the

segments of our society.

Consequently, the police in mentally ill. This

While all socio-economic

the poor are most affected by its consequences. These to private care so they call the police to forcibly who cause them problems. The large police department mentally disoriented

and laws restricting

manyinstances

have

is especially true in the lower groups experience

segments of the population

obtain health care for family

mental illness,

do not have access members and people

problem is significant for the police. LaGrange (2000) surveyed

and found that 89 percent of the officers in the department

had contact

one with

persons in the previous year. Cordner (2006:1) reports that seven percent

police contacts in jurisdictions

with 100,000

or more people involve

the

study found that 92 percent of patrol officers had at least one encounter in crisis in the previous Lincoln,

the involuntary

mentally ill.

over 1,500

mental health investigation

Athree-city

with a mentally ill person

month, and officers averaged six such encounters

Nebraska handled

of

per month.

Police in

cases in 2002, and spent

more

103

104

CRIME, JUSTICE,

time

AND SOCIAL

CONTROL

on these cases than on injury

traffic

accidents,

burglaries,

or felony

City Police Department responds to about 150,000 emotionally Similar

difficulties

public intoxication

exist

with people

coupled

with these individuals.

with jail

who are chronic

overcrowding

haslimited

either discourage

few alternatives.

In areas where public intoxication

the only alternative.

If facilities

is still a crime,

police from

facility. There is a general lack of adequate detoxification

the ability

arresting

New York

persons calls per year.

public inebriates.

In areas where public intoxication

room to house them. They

disturbed

assaults. The

Decriminalization

of

of police to do anything many jails

do not have

or refuse to admit them to the

centers in this country, leaving

is no longer

police with

a crime, these centers are often

are not available, the police generally

must allow them to remain

on the streets. Handling the

disenfranchised

persons, particularly

those

most part, officers do not receive adequate training citizens.

were qualified to handle

(1988) found that the police tend to use informal

on recognizing

and handling

dispositions

using a civil commitment

& Miller, 2004).

result of alack of adequate training,

disenfranchised

inadequate

in

Teplin

such as calming the person down or

making an arrest in 17 percent of the cases and persons to another jurisdiction

which raises a number of legal and ethical issues.The and facilities

mentally dis-turbed

in 12 percent of the cases. King and Dunn (2004) identified

where officers essentially transported

For

of the officers participating

mentally ill persons (Ruiz

taking them home in 72 percent of the cases, while

programs

mental illness, is problematic.

Onerecent study found that only about half (53.2%)

the study believed they

them,

with

use of informal

departmental

instances and dumped

dispositions

often is the

policies, or the absence of community

to deal with these individuals.

Controlling Police Discretion There

has been considerable

to which it should

discussion since the 1960s about use of police discretion

be controlled.

to officers in important

Even today,

which discretion

A number

of objections

wishing to control

through

their

decisions.

their

is an important not on limiting how to

police traditionally

policy

police

procedures,

or

must examine the

are commonly

raised

by those

have been viewed as a ministerial agency

by elected officials or the courts.

or establish the boundaries enforcement

have a tremendous

Use of discretion

of legal versus illegal of the law,

amount

conduct

which in turn leads

of power that includes

the

Critics are quick to show that the police have a history of exceeding

and abusing citizens (Kappeler

et al., 1998).

who oppose attempts to restrict

and necessary function discretion,

administrators

use of discretion

Discretion allows for arbitrary

Equally vocal are those

Instead,

guidelines

or controlled.

policies established

practices. The

to use deadly force.

authority

discretion.

to the unstructured

allows them to form

to discriminatory authority

to eliminate

can be regulated

or eliminate it. The

responsible for implementing effectively

do not provide formal

areas such as the decision to arrest, patrol and investigative

the use of force. It is impossible manner in

many departments

and the extent

make decisions properly.

Decisionmaking

of the police. Attempts to reform the system should focus

but on improving

between the law-enforcement,

the use of discretion.

officers

capacity for judgment

Focusing on the control order-maintenance,

and teaching

them

of police discretion ignores the relation-ship and service roles. These

roles cannot

b

Chapter

compartmentalized

into separate activities.

Of necessity, they are often performed

Each requires some degree of discretion. The law-enforcement, cannot

order-maintenance,

be controlled

process.

arguments

a particular

Discretion

simultaneously.

situation from the

a discretionary

decision that

aside, it is not possible in a practical sense to eliminate

question becomes one of how to structure

While both internal

that

decision to approach

or service perspective is itself

Police

without a great deal of regulation.

Leaving the philosophical discretion. The

6|

and external

control

measures designed and implemented

the success of any attempt to control

and control the police decision-making

mechanisms can beimposed, it is generally by the police are the

most effective.

police discretion rests on the willingness

con-ceded

Ultimately,

of officers to comply.

Understanding the Needfor Control Mechanisms Police officers become involved in situations ranging from

where they use badjudgment

to where they commit illegal acts. In some cases, the behavior is deliberate, it is accidental

or unintentional.

of such activities supervisor

Internally,

and take immediate

mayinitiate formal

made, some form

have an obligation and effective. of lodging

may observe or otherwise

action to correct it. If the transgression

may believe that officers treated

in some of these cases,lodge formal are

complaints

prompt and fair

become aware

is severe enough, a

him or her improperly.

against the officer

of investigation

or inquiry

with the department.

usually

to ensure that officer behavior, agency procedures,

One aspect of meeting this obligation is allowing

complaints

while in other cases

charges against the officer in question. In other cases, a citizen

observe the behavior, or a citizen complaints

supervisors

or indiscre-tion

against the department

may

Citizens, Once such

ensues. Police departments and actions are reasonable

citizens a readily accessible process

and its officers. This

process must be conducted in a

manner to create citizen confidence (USDJ, 2001).

The idea of citizen complaints

came to the forefront

Angeles police officers beat Rodney and police officers remained

in

March 1991, when America witnessed Los

King on national television. The

a top news story for several

begun to collect and report statistics regarding

confrontation

months. Only recently

inappropriate

police behavior.

between

King

have departments However,

Whitaker

(1982) found that 13.6 percent of the respondents in his survey felt the police had mistreated them. Only about 30 percent of these peoplefiled Civilian

Review Board (1990) reported

to alow of one per 10,000,

complaints

complaint

with the police department. The

rates ranging from a high offive

depending on the neighborhood.

New York

per 10,000 resi-dents

Fyfe and Kane (2005:67)

that in single year, the Internal

Affairs Bureau of the

NYPD processed 25,091 complaints

officers, 1,203 of which involved

allegations that could haveled to criminal

report against

charges or terminations.

Internal Control Mechanisms Police departments Civil liability departments

must actively establish and the national

comprehensively

policies and other guidelines to control

movetoward

examining their

to ensure that they are consistent

with real-world

what officers do; they also provide guidance

departmental

accreditation

policies and operating

has resulted in

procedures

necessity. Policies and procedures when officers are confronted

officers

and taking

behav-ior. many action

not only control

with situations

where

10

106

CRIME, JUSTICE,

AND SOCIAL

CONTROL

they need assistance. In the absence of such policies, wished to resolve a situation.

Such alaissez-faire

officers conceivably

attitude

has resulted in substantial

in the past, especially in areas such as domestic violence, pursuit force (Kappeler,

2006).

could do anything

Policies have been used to provide

they

civil liability

driving, false arrests, and use of

officers direction

and reduce

depart-ments

liability. Policies that or authority

directly

include

affect the departments

requirements

that

ability to detect and correct

officers and interested

report them. In order to encourage the reporting (2001:78)

recommends

1. Law enforcement

parties

officers should

of police abuses, the

be required

have in place appropriate

of Justice

to report

misconduct by other officers that they misconduct should

be subject to

protection

against retaliation

for officers

who

misconduct.

3. Law enforcement

officers should

they are: arrested or criminally regarding

on-duty

conduct;

where the allegations (e.g., improper

be required

inappropriate

Simply issuing supervisory

duties

whenever a court or a prosecutor

misconduct in the course of criminal or dishonest conduct,

investigations

or improperly

arrest, assault on an officer, or disorderly

or

charged an

conduct in an attempt to

use of force).

policy directives is not enough.

Departments

mechanisms to ensure that the policies are properly

While the training

conduct

or discrimination).

proceedings (e.g., engaged in false testimony

justify

off-duty

ability to perform law enforcement

agencies should seek to be notified

with resisting

which

named as a party in a civil suit

or named as a party in a civil suit regarding

concludes that an officer engaged in individual

to report to their agency any instance in

charged for any conduct;

are related to the officers

force, fraud,

4. Law enforcement

retrain

U.S. Department

discipline.

2. Agencies should report

who witness abuses should

that:

witness or of which they become aware. The failure to report appropriate

abuses of discretion

should

begin

officers in the field.

must also train

officers and provide

communicated

and implemented.

with recruits in the academy, it is also necessary to continually

Agencies must be willing to supervise

employees consistently.

Many

agenciesare adopting the EWS(Early WarningSystem)approachto monitor officers behavior (Alpert, Dunham justified

& Stroshine,

2005;

or not, to identify

of complaints,

their

Kappeler et al., 1998). The

officer behavior

patterns.

removed from the department.

following

difficulties

on shootings

2. arrests, traffic

may be an unjustified

problem

a number

areas and provide

attempt to have an officer

Others mayreflect early signs of substance abuse, marital problems,

about officers, supervisors, and use of force;

stops, searches and seizures;

3. citizen complaints

of all complaints,

When officers begin to accumulate

that can be addressed if identified

types of information

1. information

keeps track

entire record is reviewed in an attempt to identify

early assistance. In some cases, the complaints or emotional

department

and commendations;

4. criminal

charges and traffic

5. lawsuits

against officers

violations;

early enough. and

managers:

Many EWS collect the

Chapter

6 |

Police

Discretion

6. misconduct allegations; 7. disciplinary 8. training

actions and remedial

and job

performance

actions;

history;

9. on-duty traffic accidents; and, 10. use and abuse of sick leave (U.S. Department ofJustice, 2001).

Brandl, Stroshire, and Frank (2001) investigated the characteristics receive complaints officers

and found that numbers of arrests, officer age, and officer gender differentiated

with high numbers

of complaints.

Females receive fewer

they tend to use reason and dialog in confrontational citizens.

One explanation

are more active

of officers who mostfrequently

for

situations. They

why younger officers receive

making larger

numbers

complaints,

because

often are less threatening

more complaints

of stops and arrests. They

probably

to

is that they generally

also are morelikely to useforce

relative to older officers.

Perhapsthe

mosteffective internal control a police department can useto ensure that officers

are not abusing their investigation complaints

discretion

of citizens and actual

or authority

complaints.

discourtesy

complaints

McCluskey and Terrills

police behavior

to predict behavior. Their

is the development

are also moreinclined

of how these types of complaints

(2005:525)

on the streets shed light

research suggests knowing

of an adequate

Affairs

investigation

of citizens

to use higher levels of force

complaints

to have a full and fair investigation Department

of Justice (2001:7)

In other words, such complaints

recommends

of the form should

forms

to dissuade a civilian

meet with or speak 3. Complaints Complaints

to initiate

from filing

should be accepted from

should be accepted from third

most effective internal

control

and control

of such

alone is insufficient.

to ensure proper police conduct.

U.S.

by facsimile

be offered, but comple-tion

Individuals

should

be able to

agencies.

from refusing to accept complaints,

a complaint.

or

Civilians should not be required

including

for filing those

parties to ensure that

misconduct, canfile

discretionary

methods of controlling

form should

a complaint.

all individuals,

a process of policy formation,

begin to restrict

by mail, by telephone,

officer as a requirement

Figure 6.14 shows the complaint investigation Through

A complaint

be prohibited

with a supervisory

as well as victims

in-person,

at places other than law enforcement

2. Officers and other employees should attempting

by the Internal

that:

complaints

not be required

complaint

of

process citizens should be provided the opportunity

or, where possible, by e-mail.

obtain andfile

and more severe forms

into their grievance against the officer or department. The

1. Civilians should be allowed tofile transmission,

may change the dynamic

against the police is usually handled

In this

citizens

of using com-plaints

that officers with a greater number of

are perceived by administrators.

Unit of the police department.

research into

on the importance

may offer a warning sign that simple verbal disrespect leads to coercion, it. The

process for the

to

a complaint.

who request anonymity.

witnesses of abuse or mis-conduct,

complaints.

procedures used by the Boston Police department.

training,

and adequate supervision,

decisionmaking.

departments

can

Although it is generally conceded that the

police behavior are those imposed It is necessary to utilize external

by the police themselves, methods of control

as a way

10

108

CRIME, JUSTICE,

AND SOCIAL

CONTROL

Complaint

Received

Resolved at Intake

IAD

Determines

or IAD

District

Investigation

District

IAD

Investigation

Investigatio Investigator and

Submits

Recommends

Investigation IAD

Reviewed

Chain

Reviewed

by

of Command

by

Legal

Police

Report Finding

Department Advisor

Commissioner

Issues

Finding

Employee Notified

Complainant

of Finding

Notified

of Finding

Community

Hearing

Appeals

Board

FIGURE 6.14 BostonsInternal Affairs Division(IAD) Flowchart

External Control Mechanisms Unlike internal

control

mechanisms that reflect

an attempt

by the police to address inappropriate

behavior, external control mechanisms are imposed on the department by other agencies or indi-viduals who may or

may not have an understanding

can be achieved through

civilian

of the police role and functions. This

review boards, legislative

oversight, or through

control

the court system.

Controlbythe Citizens External control

of policing is usually associated

with civilian

review

boards (CRBs).

Many were

created as a result of community outrage over police misconductin the 1960s. Civilian review boards were created to (1) maintain effective citizen complaints

discipline

against officers, (3)

police administrators

by providing

of the police, (2) provide satisfactory

largest

cities: (1)

by sworn finding

where fact finding

officers, but dispositional

and dispositional

of

maintain citizen confidence in the police, and (4) influence

feedback from

citizens (Maguire,

they can assume several roles: oversight, rule and Bumphus (1992) have identified

resolution

three

making, investigative,

and judicial.

of func-tioning, Walker

distinct types of CRBs in their survey of the nations 50

is performed

by civilians,

recommendations

recommendations

1991:186). In terms

are

are

(2)

where fact finding

made by civilians,

made by civilians to civilians

is performed

and (3)

where fact

who have ultimate

Chapter

authority

over the final

of judicial review

disposition. The

or dispositional

boards

were resented

most controversial

power over police officer by the police,

6|

Police

Discretion

10

CRBs are the ones that have a mea-sure

wrongdoing.

Almost from their inception

who viewed them as an unwarranted

intrusion.

Many

officers believed that they reflected alack of trust on the part of the public and did little to improve police-community

relations.

who were the recipients

Police officers saw the

of police actions and feared that citizen review

a method of retaliation

against them (Goldstein,

are no more punitive than internal (Walker

1977).

police boards

as coming from citizens boards

would be used as

Research, however, indicates

when determining

that

CRBs

guilt or meting out sentences

& Bumphus, 1992).

Many of the power. Police

majority of complaints

CRBs have been ineffective

Many served in an advisory Department is illustrative

In response to Although investigative

capacity

citizen

Officers could

complaints,

findings

tool that

experience

the board

powers. The

had to be tolerated. The

Oakland

& Bayley, 1986).

a citizen review

board

was provided

wasformed.

with almost no which sub-stantially

police viewed the board as nothing city

manager routinely

of the board, citing alack of evidence in the cases hereviewed. The

do little to control

of the

not be compelled to appear before the board,

hampered the boards investigative than a public relations

had no effective

faced by these boards (Skolnick

of the police department,

with investigating

resources.

met with failure. They

with few resources. The

of difficulties

widespread criticism

charged

and have

more

failed to uphold

board essentially could

police behavior.

The

number of cities utilizing

largest

cities have CRBs (Walker

have met with failure, number is indicative

CRBs is increasing,

and today,

& Bumphus, 1992). It should

and there are many that are performing that legislative

more than two-thirds be noted that

effectively

of the 50

not all of the

CRBs

and the increase in their

bodies have found them to be effective.

Legislative Control The legislative

branch of government can affect the exercise of discretion in three ways:(1) enactment

of laws, (2) allocation discretion

of funds,

by writing laws clearly.

diverse interpretation,

or eliminate

of states now require

law governing

Rev. Stat., 1989) is illustrative

more room for

discretion.

oflegislative

When called to a disturbance,

attempts to control to the residence

written report that details their reasons. the primary The

A court

or engaging in further

the law gives officers the authority to

Mis-souris

violence (Mo. order

may be

acts of abuse or make arrests, even

person, they

must submit

When a second call is received at the residence

must make an arrest if there is probable cause and they can determine

a

within 12 who is

aggressor.

law seeks to limit

actions can be reviewed. manner in

domestic

discretion.

have

circumstances.

violence situations.

by the court to prevent

if they did not witness the offense. If they do not arrest the offending

hours, the officers

they are subject to

In recent years, legislators

make an arrest in domestic

orders issued

issued to prevent an abuser from returning harassment.

Legislators can decrease an officers

an officers discretion to arrest under certain

officers to

protective

oversight.

When statutes are written in broad terms,

which creates

enacted laws that restrict A number

and (3) legislative

officers

discretion

One of the difficulties

which the law is

and to impose reporting with legislative

requirements

attempts to limit

written. In our example above, there is another

so that their

discretion is the

paragraph in the law

that stipulates that officers must make arrests whenever an act of abuse occurs. Some argue that this

110

CRIME, JUSTICE,

completely

AND SOCIAL

CONTROL

removes an officers discretion,

under the 12-hour

rule.

Determining

probable cause are, in themselves, Through

the budgetary

priorities to beinitiated Legislative

while others

whom the primary

discretionary

can effectively limit

Specific instructions

oversight as a method to control

Whileit is common for the federal

agencies.This

review

can control

administrative

discretion

of funds, thereby

in the law as to

estab-lishing

which programs

would otherwise

are

be permissible.

has not been the subject of much research.

to hold oversight

are given the authority

to affect the overall operation

hearings, some states also use

to review the activities

process is designed to ensure operational

power of the committee

is, and whether there is

expenditure

discretion that

government

this process. Legislative committees

aggressor

discretion

decisions.

process, the legislature

for law enforcement.

maintain that they have limited

of government

efficiency and integrity. The

of an agency

will determine

relative

whether this

method of oversight is effective.

Control by the Courts The

courts are perhaps the

police.

While appellate

also have the authority it is enforced is the

courts are responsible for to govern procedural

by the police.

manner in

normally

most visible bodies of external control

One difficulty

often lengthy

approach

and in

possible

the

what they

of alaw, they manner in

attempt to control

which the decisions are reported.

when deciding an issue. The

which

discretion Courts

will

written decisions are

and difficult to understand, leaving room for various interpretations.

court tell police specifically

exercised by the

the constitutionality

aspects of the law and to limit

that arises in the courts

which cases are reviewed

take the narrowest

determining

over discretion

Seldom does the

may or may not do. One notable exception is the now famous

Miranda v. Arizona (1966) decision. In this case,the United States Supreme Court specifically set forth the steps that her constitutional The

criminal

must be taken

and the language that

privilege against self-incrimination. courts are generally restricted to dismissing cases or refusing to admit evidence as

remedies for inappropriate

exercise of discretion.

Civil courts

mandamus to require agencies to do particular things, committing

certain

to lawsuits,

which can require

the proliferation boundaries

must be used to advise a suspect of his or

acts.

of lawsuits

of discretionary

Officers and departments the payment

have the option of issuing

or issuing injunctions that

of enormous

that prohibit them from

make inappropriate

decisions are subject

damage claims (Kappeler,

against police, agencies are likely to take additional decisions in an attempt to limit their

a writ of

2006).

With

steps to define the

civil liability.

Summary Discretionary the

enforcement

allows officers to

make decisions asto what course of action

most desirable outcome in a given situation.

of the criminal justice unethical,

When used improperly,

used, discretion

can be a positive aspect

it results in actions that are discriminatory,

or illegal.

Use of discretion Through

system.

Properly

will produce

their

by administrators

discretionary function

that are translated

into

uniform

is implicit

administrators

activities

in the bureaucratic

structure

of police agencies.

are expected to develop policies and procedures

by street-level

officers.

Operational

personnel typicall

Chapter

exercise

more discretion. This

the least amount

of training

is felt to be problematic and experience.

process. Research consistently is the seriousness

Many factors influence

is required

While no one seriously

as to limit its harmful

decisionsparticularly

proposes eliminating

effects.

with

decision-making process a case

review

boards, the legislature

thought to be the

most effective. In the final

willingness

no effective limits

mostfeel it should

be structured

by the department

External controls

Of these

so

through

controls

an officers

are

discretion

For most activities in law enforcement,

behavior other than those imposed

by

may beimposed

methods, internal

analysis, any attempt to control

of the officer to comply.

on officers

domestic violence and vice

internally

and supervision.

or the courts.

certain situations

and control the use of discretion

discretion,

Discretion can be controlled

of policies, procedures, training,

rests on the

an officers

in almost every area of law enforcement,

crimes. In recent years, attempts have been madeto structure

by citizen

Discretion

because these are generally the officers

shows the primary factor in the decision to formally

more readily lend themselves to discretionary

development

Police

of the offense.

While decisionmaking

police.

6|

there are

by the officers themselves.

References Abadinsky, Alpert,

H.(2006).

G.P., Dunham,

IL:

American

CT: Greenwood

Friends

Service

C.(2006).

3

Generals

Printing

(2005).

Police Pursuit

Driving:

Controlling

Committee (1971). Struggle for Justice.

Commission

Webstings.

and Change. Prospect

Heights,

Responsesto Emergency Situa-tions.

on Pornography

New York,

NY: Hill & Wang.

Detroit Free Press, November 16, 2006. (1986).

Task Force. Washington,

DC: U.S. Government

Office.

D.H. and

Free Sexfor Shielding Brothels.

H. Mendelsohn (1969).

Drug Delivery

Arrests.

Black,

D.(1980).

Black,

D.(1971). The

Black,

D. and

Criminology,

Social

S., M. Stroshine,

Organization

between

Free Press.

44(1):105137.

of Arrest.

Stanford

Control of Juveniles.

and J. Frank (2001).

Relationship

NY:The

Drugs, and Policing: Understanding Disparities in

The Manners and Customs of the Police. New York,

A. Reiss (1970). Police

of the

Australian, March11, 2006.

Minorities and the Police. New York,

Beckett, K., Nyrop, K. and L. Pfingst (2006). Race,

Brandl,

Policing Continuity

Press.

men arrested in

Australian (2006). Cops Bayley,

M.S. Stroshine

G.P. and R.G. Dunham (1990). Westport,

Attorney

R.G., and

Waveland.

Alpert,

Angel,

Organized Crime, Eighth Edition. New York, NY: Wadsworth/Thomson.

Police

Who

Are the

Officers

NY: Academic

Press.

Law Review, 23:10871111.

American Sociological

Review, 35:6377.

Complainant-Prone

Attributes,

Arrest Activity,

Officers?

An Examina-tion

and Assignment.

Journal

of Criminal Justice, 29(6):521529. Brooks,

L. (2001).

Police

Discretionary

Behavior:

A Study of Style.

Critical Issuesin Policing, pp. 117131. Prospect Heights, IL: Bureau of Justice

Statistics (2006).

DC: U.S. Department Buzawa,

E. and

of Justice,

C. Buzawa (2003).

Carter, T. J. (2006).

Police

Behavior, 27:591627.

Intimate

Partner

Bureau of Justice

R. Dunham

& G. Alpert (ed.)

Violence Declined Between 1993 and 2004.

Washington,

Statistics.

Domestic Violence.Thousand

Use of Discretion:

In

Waveland.

A Participant

Oaks, CA: Sage. Observation

Study of Game

Wardens.

Devi-ant

11

112

CRIME, JUSTICE,

AND SOCIAL

CONTROL

Catalano, S.(2006). Intimate Partner Violencein the United States. Washington, DC: U.S. Department of Justice,

Bureau of Justice Statistics.

Chesney-Lind, Policiesfor

M.(2002). Criminalizing

Victimization: The

Unintended Consequences of Pro-Arrest

Girls and Women. Criminology and Public Policy, 2(1):8190.

Cicourel, A.(1976). The Social Organization of JuvenileJustice. New York: John Cordner, G.(2006). People

with MentalIllness.

Wiley and Sons.

Problem-Oriented Guidesfor Police Problem-Specific

GuidesSeries No. 40. Washington, DC: U.S. Department of Justice, Office of Community Policing

Oriented

Services.

Davis, K.C.(1969). Discretionary Justice: A Preliminary Inquiry. De Baca, L. and A. Tisi(2002). Working

Westport, CT: Greenwood Press.

Together to Stop Modern-Day Slavery.

The Police Chief,

7880.

Dodge, M., D. Starr-Gimeno, and T. Williams (2005). Puttin Perspectives on Reverse Prostitution

on the Sting:

WomenPolice Officers

Assignments. International Journal of Police Scienceand Manage-ment,

7(2):7185. Dugan, L. (2003).

Domestic

Violence

Violence, Police Involvement

Legislation:

Domestic Violence Resources on Intimate F.W., D. Huizinga,

Police Experiment.

Its Impact

on the Likelihood

of Domestic

and Arrest. Criminology and Public Policy, 2(2):283312.

Dugan, L., D. Nagin, and R. Rosenfeld (2003).

Dunford,

Exploring

Exposure

Reduction

or Retaliation? The

Effects of

Partner Homicide. Law and Society Review.

and D.S. Elliott (1986). The

Role of Arrest in

Domestic

Assault: The

Omaha

Criminology, 28(2):183206.

Dunham, R.G. and G.P. Alpert (1989). Critical Issuesin Policing: Contemporary Readings, pp. 135136. Prospect

Heights, IL:

Waveland Press.

Edwards, A.L. (2006). Polk

Takes Lead on Computer Crimes: Detectives Create Online Fictitious Pro-files

in a Search for Child Pornographers and Others Breaking the Law. Orlando Sentinel, April 9, 2006. Eigenberg,

H.M.,

K.E. Scarborough,

and V.E. Kappeler (1996).

Contributory

Factors

Affecting

Arrest in

Domestic and Non-Domestic Assaults. American Journal of Police,15(4):2754. Ericson, R.(1982). Reproducing Order: A Study of PolicePatrol Work. Toronto, CN: University of Toronto Press.

Felson, R.B., Ackerman, J.M. and C.A. Gallagher (2005). Police Intervention

and the Repeat of Domes-tic

Assault. Criminology, 43(3):563588. Felson, R., S. Messner,and A. Hoskin (2002). Reasons for Reporting and Not Reporting Domestic Vio-lence to the Police. Criminology, 40(3):617648. Flowers, R.B.(2001). Runaway Kids and TeenageProstitution: Americas Lost, Abandoned and Sexually Exploited Children. Westport, CT: Praeger/Greenwood. Forsyth,

C.J.(1993). Factors

Discretion.

Influencing

Game

Wardens in Their

Interaction

with Poachers: The

Use of

FreeInquiry in Creative Sociology,211:51.

Fyfe, J.J.(1980). Geographic

Correlates of Police Shootings: A Microanalysis.

Crime & Delinquency,

17:101113. Fyfe, J.J. (1979). Administrative

Interventions

on Police Shooting

Discretion:

An Empirical

Examina-tion.

Journal of Criminal Justice, 7:309324. Fyfe, J.J., D.A. Klinger, and J.M.

Flavin (1997). Differential

Violence. Criminology, 35(3):455473

Police Treatment

of

Male-on-Female

Spousal

Chapter

6|

Police

Discretion

Fyfe, J.J.and R. Kane(2005). Bad Cops: A Study of Career-Ending Misconductamong New York City Police Officers. Unpublished: Final Version Submitted to the United States Department of Justice, National Institute of Justice February 2005. Garofalo, J. (1991). Racially

Motivated

Crimes in

New York

City. In

M. Lynch and E. Patterson (eds.)

Raceand Criminal Justice. New York, NY: Harrow and Heston. Garofalo, J. and S. Martin (1991). The

Law Enforcement

Response to Bias-Motivated

Crimes.

In

R.

Kelly (ed.) Bias Crime: American Law Enforcement and Legal Responses.Chicago,IL: University of Illi-nois at Chicago.

Geis, G.(1979). Notthe Laws Business. New York, NY: Schocken Books. Goldstein, H.(1977). Policing a FreeSociety. Cambridge, MA: Ballinger Publishing Company. Guyot, D.(1991). Policing asthough People Matter. Philadelphia, PA: Temple University Press. Hagan,J. (1986). Introduction to Criminology: Theories, Methods,and Criminal Behavior. Chicago,IL: Nelson-Hall.

Hotaling, G.and D. Finkelhor (1988). The Sexual Exploitation of Missing Children. Washington, DC: U.S. Government

Printing

Office.

Hurst, J. (May 26, 1977). ChildrenBig Kappeler, V.E.(2006).

Profit Item for the Smut Peddlers. Los AngelesTimes.

Critical Issuesin Police Civil Liability, Fourth Edition. Prospect Heights,IL:

Wave-land

Press.

Kappeler, V.E. and G.W. Potter (2005). The Mythologyof Crime and Criminal Justice, Fourth Edition. Pros-pect Heights, IL:

Waveland Press.

Kappeler, V.E., R. Sluder, and G.P. Alpert (1998). Forces of Deviance: Understanding the Dark Side of Policing,

Second Edition.

Prospect

Heights, IL:

King, W.and T. Dunn (2004). Police-Initiated

Waveland Press.

Transjurisdictional

Transport of Troublesome People.

Police Quarterly, 7(3):339358. Klinger, D.A. (1996). Demeanor

or Crime? WhyHostile

Citizens Are More Likely to Be Arrested.

Criminology, 32:475493. LaFave, W.(1965). The Decisionto Take a Suspectinto Custody. Boston, MA: Little, Brown and Company. LaGrange,

T. (2000)

Distinguishing

between the

Encounters with Mentally Disordered.

Criminal

and the Crazy:

Decisions to

Arrest in Police

Paper presentedat the American Society of Criminology, San

Francisco.

Langworthy,

R.(1989). Do

Stings Control Crime? An Evaluation of a Police Fencing Operation. Justice

Quarterly, 6:2845. Lehman, A.F. and D.S. Cordray (1993). Prevalence

of Alcohol, Drug, and Mental Disorders among the

Homeless. Contemporary Drug Problems, 20(3):355383. Liu, P.W. and T.A. Cook (2005).

Speeding

Violation

Dispositions in

Relation to Police

Officers

Percep-tion

of the Offenders. Policing & Society, 15(1):8388. Lundman,

R.(1979). Organizational

Work with Traffic Violators. Lundman,

R.J.(1996).

Demeanor

Norms and Police

Discretion:

An Observational

Criminology, 17:159171. and

Arrest:

Additional

Evidence from

Previously

Journal of Researchin Crime and Delinquency, 33(3):306323. MacKinnon, C.A. (1984). Not

Study of Police

a MoralIssue. Yale Law and Policy Review,2:321345.

Unpublished

Data.

11

114

CRIME, JUSTICE,

AND SOCIAL

CONTROL

Maguire, M.(1991). Complaints

against the Police:The

British Experience. In A. Goldsmith (ed.) Com-plaints

Againstthe Police: The Trendto External Review. Oxford, England: Clarendon Press. Martin, S.E.(1996). Investigating

Hate Crimes: Case Characteristics and Law Enforcement Responses.

Justice Quarterly, 13(3):2749. Martin, S.E.(1995). A

Cross-Burning Is NotJust an Arson: Police Social Construction of Hate Crimesin

Baltimore County. Criminology, 33(3):303326. Mastrofski, S., R. Ritti, and D. Hoffmaster (1987). Organizational The

Determinants of Police Discretion:

Caseof Drinking and Driving. Journal of Criminal Justice, 15:387401.

McCaghy, M.C. and S.A. Cernkovich (1987). Crimein American Society. New York, NY: Macmillan. McCluskey,J.D. and W.Terrill (2005).Departmental

and citizen complaints as predictors of police coer-cion.

Policing: AnInternational Journal of Police Strategies & Management,28(3):513529. Melekian, B.(1990). Police

and the Homeless. FBI Law Enforcement Bulletin, 59(7):17.

Miller v. California, 413 U.S.15 (1973). Miranda v. Arizona, 384 U.S. 436 (1966). Missouri Revised Statute

455.085 (1989).

Moon, B. and C. Corley (2007). Driving

across Campus: Assessingthe Impact of Drivers Raceand

Gender on Police Traffic Enforcement Actions. Journal of Criminal Justice, 35(1):2937. Muir, W.(1977). Police: Streetcorner Politicians. Chicago, IL:

University of Chicago Press.

National Coalition for the Homeless(2006). How Many People Experience Homelessness? Washington, DC: National Coalition for the Homeless. Nation Coalition for the Homeless(2006).

Hate, Violence, and Death on Main Street USA. Washington,

DC: National Coalition for the Homeless. New York Civilian Complaint Review Board (1990). Annual Report. Author. Newsweek(1985). The

Waragainst Pornography.

New York Times (Jan. 6, 1977). Police Newman, G.R.(2006). The

Sell Porn.

March18, 5867. Author.

Exploitation of Trafficked

Women. Problem-Specific GuidesSeries Guide No.

38. U.S. Department of Justice: Office of Community

Oriented Policing Services.

Nolan, J. and Y. Akiyama (2002). Assessing the Climate for

Hate-Crime Reporting in Law Enforcement

Organizations: A Force-Field Analysis. Justice Professional, 15(2):87103. Novak, K.J., James F., Smith, B. W.and R.S. Engel(2002). Revisiting Beatand Community

the Decision to Arrest: Comparing

Officers. Crime & Delinquency, 48:70.

Orr, L. (1990). The Homeless: Opposing Viewpoints. San Diego, CA: Greenhaven Press. Packer, H.(1968). The Limits of the Criminal Sanction. Stanford, CA: Stanford University Press. Piliavin, I. and S. Briar (1964). Police

Encounters withJuveniles.

AmericanJournal of Sociology,

70:206214. Powell, D.(1990). A Study of Police Discretion in Six Southern Cities. Journal of PoliceScienceand Administration, 17:17. Powell, D.(1981). Race,

Rank, and Police Discretion. Journal of Police Scienceand Administration,

9:383389. Reiss, A.(1971). The Police and the Public. New Haven, CT: Yale University Press. Rennison, C.(2001). Intimate

Partner Violence and Age of Victim, 19931999.

Special Report. Washington, DC: U.S. Department of Justice. Reuter, P.(1983). Disorganized Crime. Cambridge, MA:The

MIT Press

Bureau of Justice Statis-tics

Chapter

6|

Police

Discretion

Riksheim, E. and S. Chermak (1993). Causes of Police Behavior Revisited. Journal of Criminal Justice, 21:353382. Rose, N.(2006). Gambling

and the Law: An Introduction

to the Law of Internet

Gambling.

UNLV

Gaming Research & ReviewJoumal, 10(1):114. Ruiz, J.(1996). Regulation

of Sexually Oriented Businesses. TELEMASP Bulletin, 3(4):111.

Ruiz, J. and C. Miller (2004). An of Angerousness andTheir

Exploratory Study of Pennsylvania Police Officers Perceptions

Ability to

ManagePersons with MentalIllness.

Police Quarterly,

7(3):359371. San Francisco Chronicle (2006). Within sex with children.

SFPD, little surprise over allegations that officer visited Asiafor

San Francisco Chronicle, November 5, 2006, B1.

Schoeman, F.(1986). Undercover

Operations: Some Moral Questions. Criminal Justice Ethics,

5(2):1622. Sealock, M.D. and S.S. Simpson (1998). Unraveling

Biasin Arrest Decisions:The

Role of Juvenile

Offender Type-Scripts. Justice Quarterly, 15:427. Schafer,J.A. (2005). Negotiating

Orderin the Policing Of Youth Drinking.

Police Strategies & Manage-ment,

28(2):279300. Sheley,J.F. (1985). Americas Crime Problem. Belmont, CA: Wadsworth. Sherman, L. (1980). Causes of Police Behavior:The

Current State of Quantitative Research. Journal of

Researchin Crime and Delinquency,17:69100. Sherman, L.W. and R.A. Berk (1989). The Impact of Research on Legal Policy:The Violence Experiment.

Minneapolis Domes-tic

Law and Society Review, 23:117144.

Sherman, L.W. and R.A. Berk (1984). The

Specific Deterrent Effect of Arrest for Domestic Assault.

American Sociological Review, 49(2):261272. Simpson, S.S., L.A. Bouffard, J. Garner, and L. Hickman (2006). The Influence of Legal Reform on the Probability of Arrest in Domestic Violence Cases. Justice Quarterly, 23(3):297316. Skolnick, J.H. (1994). Justice without Trial: Law Enforcementin a Democratic Society,Third

Edition.

New

York, NY: Macmillan. Skolnick, J.H. and D.H. Bayley(1986). The New Blue Line: PoliceInnovations in Six American Cities. New York, NY:The

Free Press.

Smith, D.A. and J. Klein (1984). Police

Control of Interpersonal

Disputes. Social Problems,

31(4):468481. Smith, D.A. and C. Visher(1981). Street

Level Justice: Situational Determinants of Police Arrest Deci-sions.

Social Problems, 29:167178. Southern Poverty Law Center(2007). Active Southern Poverty Law Center(1995). Over

U.S. Hate Groupsin 2005. Intelligence Project. 200

Militias and Support Groups Operate Nationwide.

Klan

WatchIntelligence Report, #78. Teplin, L.A. (1986). Keepingthe Peace: The Parameters of Police Discretionin Relationto the Mentally Disor-dered. Washington, DC: National Institute of Justice. Terry, R.(1967). Discrimination

in the Handling of Juvenile

Offenders by Social Control Agencies. Jour-nal

of Research in Crime and Delinquency, 4:218. Turque, B. and J. Stoffel (1989). Fury

over an Unholy Alliance: How Cleveland Cops Teamed Up with a

Drug Dealer. Newsweek,113(May 8):26.

11

116

CRIME, JUSTICE,

AND SOCIAL

CONTROL

U.S. Department of Housing and Urban Development (2004). Strategiesfor Reducing Chronic Street Home-lessness. Washington, DC: Office of Policy Development and Research. U.S. Department of Justice (2001). Principlesfor Promoting PoliceIntegrity: Examplesof Promising Practices and Policies. Washington, DC: U.S. Government Printing

Office.

Walker, S.(1993). Tamingthe System. New York, NY: Oxford. Walker, S. and V. Bumphus (1992). The

Effectiveness of Civilian Review: Observations on Recent

Trends and NewIssues Regarding the Civilian Review of the Police. American Journal of Police, 11:126. Westley, W.(1970). Violenceand the Police: A Sociological Study of Law, Custom, and Morality. Cam-bridge, MA: MIT Press. Whitaker, G.(1982). BasicIssuesin Policing. Washington, DC: U.S. Government Printing Wilson, D.G., Walsh, W.F. and S. Kleuber (2006). Trafficking

in

Office.

Human Beings: Training and Services

among US Law Enforcement Agencies. Police Practice and Research,7(2):149160. Wilson,J.Q. (1968). Varieties of Police Behavior. Cambridge,

MA: Harvard University Press.

Winick, C.and P.M. Kinsie (1971). The Lively Commerce: Prostitution in the U.S. Chicago,IL:

Quadrangle

Books. Worden, R.E. and R.L. Shepard (1996). Demeanor,

Crime, and Police Behavior: A Reexamination of the

Police Services Study Data. Criminology, 34(1):83105. Wortley, R.(2006). Child

Pornography on the Internet.

Problem-Oriented Guidesfor Police Problem-Spe-cific

GuidesSeries No.41. Washington, DC: U.S. Department of Justice, Office of Community Policing Services

Oriented

ChaPTEr

RacialProfiling MICHAELE. BUERGER

R

acial profiling is a disputed term, embodying either a pernicious police

Michael

practice or anintelligent application of police investigative skills, depend-ingProfiling,

uponideological perspective.It is mostcommonly understoodin the

groups for greater scrutiny and intervention,

based solely upon the belief that

E. Buerger, Racial 21st Century A Reference

ed. J.

former context, a shorthand for unfair police targeting of persons of minority

Mitchell

Crimi-nology: Handbook,

Miller, pp. 741-749.

Copyright Sage

7

Publications.

2009

by

Reprinted

with permission.

membersof their ethnic group are moreinclined to engagein criminal activity. The contemporary term has aspecific history anchoredin druginterdiction efforts (Buerger

& Farrell, 2002), but its informal

brown), predates druginterdiction,

synonym, driving

while black (or

stemming from the racial and ethnic animus

of earlier eras. The debateis defined at one pole by a belief that racial prejudice leads to dis-parate

treatment of minoritycitizens. Atthe other pole,the fundamental beliefis that disparate attention by the authorities is fully justified by the different patterns of conduct by different groups, specifically documented rates of criminality.

A

third, complicated rationale lies between the two: alegacy of belief, embedded in police socialization and reinforced by selective perception, that are moreproneto criminality. That

minority groups

middleground ignores class distinctions that

are maskedby visible racial or ethnic identity. Morerecently, the concept of racial profiling (as either allegation or practice) has expanded beyond its original framework to include anti-terror activities and

immigration law enforcement,as wellasscrutiny by privatesecurityin shopping mallsand other venues. Scientific inquiry intended to confirm or refute the exis-tence of bias has a widerange of methodological difficulties, and studies to date have produced mixedempirical evidence.

11

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CRIME, JUSTICE,

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Two Perspectives Police andtheir supporters assertthat profiling represents alegitimate practice grounded in criminal behavior, to which race is incidental.

Profiles arose from patterns of observable behavior, verified

and sustained by convictions in courts oflaw. Successful searches based upon the profiles validate the general application of profiles as aninvestigative tool. The

police continue to make periodic

seizures oflarge quantities of uncut, bulk drugs during motor vehicle stops, whichin their eyesis proof that the profile technique is a valid law enforcement tool.

Opponents tend to regardthe successfulinterdictions aslittle morethan the blind squirrel stum-bling across an acorn by chance.

While not rejecting the importance

of drug interdiction,

critics

hold that the greater dangerlies in rampant, unjustified, and unrestricted government intrusion into the lives of citizens. They independently

note that the verification of the profiles accuracy has never been

verified, and insist that the occasional triumphs

must bejudged in the context of

the larger number of stops that yield no results whatsoever. Critics also point to a growing body of testimonial evidence that police stop vehicles with none ofthe attributes ofthe operational profile save that of the drivers race. A morecritical figure,

the number ofincidents based upon closer

matchesto the profile and still yielding no drugs or contraband, has not yet been quantified.

Disparity or Discrimination? The central problem in racial profiling is whether disparity of treatment constitutes discrimination. In that respect, the issue mirrors many other debatesin American life and jurisprudence. Disparity can occur at multiple levels of police-initiated contact with citizens. The level occursin the act of being selectedfor police inquiry about alaw violation.

mostbasic

While motor vehicle

stops are almost always supported legally by athreshold level of probable cause(a violation ofthe

motorvehiclecode,however minor),the greaterissueshingesupon mattersthat occur afterthe stop. Discrimination stronger inference

may beinferred from unequal numbers, but disparate treatment supports a when persons of a minority class suffer a disproportionate burden than compa-rably

situated majority citizens. In motor vehicle stops, requestsfor permission to search the vehicle in the absence of specific probable cause are the primary categories examined. In the absence of a search, police may more often issue tickets instead of warnings; written warnings (which

may

influence future actions) instead of verbal warnings, which simply addressthe immediate infraction; or conduct lengthier detentions for investigative purposes, including ordering the occupants out of the vehicle. For pedestrian stops, the length and character of the detention, and being frisked for

weapons,are majorcategoriesof disparateactions. For any type of police-initiated contact, both verbal and nonverbal police behaviors can carry suggestions of bias as well(language choice, tone of voice, even body language that conveys feelings of contempt).These attributes are not recorded in official reports of the contact, and are observed only rarely byindependent researchers, butthey canleave alasting negativeimpression in the minds ofthe citizens.Those feelings can shape citizens interpretation of official statistics and explanations. A comparable set of behavioral cuesis embedded in the police evaluation of the people they stop, however. Evasive answers, disrespectful language or gestures, even body postures elevateth

Chapter

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Racial

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11

initial level of suspicion, and can both prolong a contact and lead to a harsher outcome than was originally contemplated.Though

defenders ofthe police point to these behavioral cues asindicative

of criminal behavior, a rival hypothesis centers negative reactions to the police in alonger history of mistrust based upon mistreatment by the police in earlier contact. That

history

may be both

personal and vicarious.

Profiling Generally Profiling compiles behavioral attributes linked to specific criminal activities, creating a rudimentary sketch of as-yet-unknown

persons who mightbe morelikely than othersto commit the crime.The

serial killer profiling developed by the FBI makesuse of crime scene evidence that suggests the personality ofthe perpetrator, and helps narrow the scope ofinquiry. It wasbased upon extensive interviews

with 33 convicted killers, afactual grounding comparable to the drug courier profile of

Operation Pipeline (below). Racial profiling results when a complex set of factors (which can include race) comprising a specific criminal profile are stripped away in practice, transformed into an unjustified oversimpli-fication:

Minorities are morelikely to havedrugs[or commit other crimes]than are whites.That stereotype overwhelms the elements of individualized facts required for probable cause. Whileit is the police who have borne the brunt of the criticism, the practice also exists in the operations of private sector security and asset protection (Meeks, 2000). Sincethe attacks of September11, 2001,racial profiling

has been extended to persons of Middle

Eastern origin or descent. Asingle factor shared with the 19 hijackers of 9/11their or physical features that appear to be ofthat regioncasts

region of origin,

suspicion ofterrorism upon thousands of

law-abiding citizens and visitors.They are morelikely to be pulled asidefor moreextensiveinquiries at airport security checkpoints and other sensitive areas.The

historical antecedent mostfamiliar to

Americansis theinternment ofJapaneseAmericansafterthe attack on Pearl Harbor, while members of the German Bund (a pro-Nazi organization) in America remained free and largely unmolested.

BasicLegal Foundations The consent searchis integral to the racial profiling controversy.The Fourth Amendmentto the Con-stitution protects citizens from unreasonablesearch and seizure oftheir persons, property, and effects, but alarge volume of caselaw continually refines the operational understanding of what constitutes

anunreasonable search. Asaresult, a numberof exceptionshavebeencreated,relaxingthe general rule that the police mustobtain a warrant before they search. Amongthem are searchesincidental to alawful arrest, exigent (emergency) circumstances, hot pursuit, searches at ports of entry into the country, inventory searches ofimpounded vehicles, inevitable

discovery, and whenthe owner

of a property gives voluntary consent to the search. Mostchallenges to consent searches center on whetherthe consent wasin fact voluntary, or wasinfluenced by coercive policetactics or deception. American police havethe powerto detain citizens briefly, andto inquire oftheir actions, whenthe police havereasonable, articulable suspicion that something maybe wrong. Most motorvehicle stops

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are supported by some violation of a motorvehicle law, and court cases allow for brief detention to makefurther inquiries, such asto identify passengers,if the articulable Police havethe power to arrest citizensa

suspicion threshold is met.

lengthier and moreintrusive detentiononly

when

they have probable cause. Probablecauseconstitutes a set offacts and circumstances that wouldlead a reasonably prudent person to believe that a crime has been,is being, oris about to becommitted. For certain crimes, including

drug dealing, the courts have acknowledged that a reasonably

pru-dent

and experienced police officer can detect criminal activity that might escapethe notice of a citizen.This recognition oftraining and experience underlies the police assertion that their sixth

sense understandingof crime should berespected bythe public as well. Although citizens have morelimited

expectations of privacy in their vehicles than in their

homes, police do not havethe authority to search a car based upon whim or meresuspicion.The line that separatessuspicion from probable causeis constantly tested in court proceedings.Though the racial profiling debate centers on searchesfor drugs, contraband

includes other categories of

items that are illegal to possess or transport: smuggled cigarettes, loaded firearms,

explosives or

other controlled ordnance, child pornography, evenillegal aliens. If the police have probable causethat a crime is being committed in their presencesuch

as

the smell of marijuana, or the existence of drugs, paraphernalia, or weaponsin plain sightthey

can arrestthe occupantsof a car and conductafull searchincidental to that arrest.They

mayalso

impound the vehicle and conduct an inventory search of all contents, for the mutual protection of the vehicle owner and the officers. In the absence ofthose circumstances, however, a police officer mayonly request permission from the driver or owner to search the car for contraband. Consentis arecognized exception to the Fourth Amendment warrant requirement: Police need not obtain a search warrant if the rightful owner of a property gives free and informed consent to the search. In the context of racial profiling, the central issue is whether any such consent is vol-untary under the circumstances of the stop. Police assertthat all adult citizens ofthe United States know that they have the right to decline to give such permission, and so all consent is voluntary.

They offer no explanation of whyso manypeople whoarecarrying contraband voluntarily consent to having their vehicle searcheda

statement contrary to interestexcept

to note that we dont

catch the smart ones. Opponents assert that the nature of the stop and the inherently coercive presence of the police effectively evisceratethe right ofrefusal.The implied threat offurther detention, coupled with vague suggestions of consequences

for refusal, coerce compliance.

Opponents also point to instances

whereprobable cause suddenly aroseas soon ascitizens declinedto give consent;they consider such incidents further evidence that mostconsent

claimed by the police is involuntary,

alegalfiction.

Another objectionable category involves illegal police actions, searches conducted over the

objections ofthe vehicle occupants.Though rare, suchintrusions areinsulated from sanction on two fronts. Searchesthat yield no evidence usually end with the release ofthe vehicle and driver. The

ability of the aggrieved driver to seek redress is expensive, and often futile in the absence of

independent evidence. Whenillegal searches are successful, the discovered contraband weightsthe casein favor ofthe police account of the incident (again in the absence of independent verification of the drivers version of the event). As more and more police agencies adopt in-vehicle recording devicesfor vehicle stops, such incidents arefewer and farther between, but suspicion remains in the eyes of many citizens

Chapter

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Profiling

General History The overall history ofrace relations in the United Statesremains pertinent to discussions of racial profiling. The second-class citizenship of black Americans wasenforced by white police officers throughout the Jim Crow era, and extralegal suppression of the rights of citizenship continued well beyond the Brownv. BoardofEducation ofTopeka, Kansas(1954) decision. Passageofthe 1964 Civil Rights Act coincided with the rise of black militancy, and continued conflict between blacks and whites continued wellinto the decade of the 1970s.

While mainstream Americanculture haschangeddramaticallysince the long, hotsummers of racial conflict in the 1960s, police culture changes slowly. There is alingering suspicion that both police training

and the police socialization process subtly perpetuate outmoded racial atti-tudes

from that era. Whenracial profiling first

emerged as a public issue, this view wasreinforced

by revelations in the high-profile cases discussed below.Though longer a white

boys club, that observation

Americas police forces are no

merelytransfers animusif

any existsfrom

a white

prejudice to a police prejudice.

Contemporary History The

U.S. Customs Service originally developed a profile of air travelers of being a drug mule.

who had elevated prob-ability

Like their equine namesake, drug mules were not drug lords, but

beasts of burden: persons unconnected with a drug cartels invisible to police narcotics intelligence) their luggage on international flights,

membership(and therefore relatively

were paid on a one-time basisto carry drug packagesin

and deliver it to cartel personnel soon after their arrival in

the United States. Specific conditions and behaviors weretip-offs to Customs personnel to inquire and examine carry-on luggage

itinerary, flying

moreclosely: Lone travelers

with luggage inappropriate

to their

withtickets purchased with cash, andseveral other elements werecentralto the

original airline passenger profile. In 1984, Operation Pipeline adapted the practice to police highway drug interdiction,

which

sought to intercept bulk drugs in transit from southern points of entry. Seizing bulk drugs before they could be delivered, cut, and distributed in northern drug markets wouldreduce supplies for the street markets,deprive the drug syndicates of profits, and perhaps drive moreaddicts into treatment. Operation Pipeline arose from police awareness that vehicle stops yielding large quantities of drugs shared certain characteristics. The

vehicles werenorthbound at high rates of speed, usually

occupied bytwo black or Latino malesin their late teens or early twenties. Vehicleinteriors contained

fast-food wrappersand pillows and blankets(both indicative of nonstoptravel), and detergentor other strong-smelling substances to maskthe odor of drugs.The trunk a valet key for the drivers; there

might belocked, with only

might betool or burn marks or other indications that drugs had

been secretedin hidden compartments. Road maps mightindicate places and timetables to call the drivers

monitor (Buerger

& Farrell, 2002).

The profile alone did not constitute probable causefor the policeto conduct a warrantlesssearch. It wasonly a prompt for officers to pay closer attention to the vehicle, to develop probable causeif possible, orto obtain consent to search the car in the absence ofspecific probable cause.

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The Flagship Cases Three

casesexposed the police application of the drug courier profile concept to scrutiny. In April

1998, two

NewJersey State Troopers initiated a vehicle stop of a van on the NewJersey Turnpike

that resulted in the shooting and wounding ofthree offour young minority men. The profile cited as one reason for the stop, even though the vehicle wassouthbound.

was

No drugs or other con-traband

werefound in the van, and there weresignificant discrepancies between the official police report of the incident and other evidence.

The Turnpikeshootingcaserevivedscrutiny ofNewJerseyStatePolicepracticesthat hadlanguished since the 1996 caseof StateofNew Jerseyv. PedroSotoet al. In that case,a NewJersey court overturned 17 drug possessioncases brought by a state police druginterdiction team working another section of the NewJersey Turnpike. The

defendants produced evidence that the team stopped and searched

minorities,particularly African Americans,almost 5times morefrequently than they did white drivers. Though

black drivers wereonly 15% of the violator

group (people driving at excessivespeed,

or committing other observable moving violations), vehicles driven by blacks comprised almost half of the stops made by the interdiction

unit. By comparison, a state police unit doing speed

enforcement in the same area ofthe NewJersey Turnpike stopped drivers at rates muchcloser to

the observedproportion of highwayuse. The differencestronglysuggestedthat the druginterdiction team equated racial identity

with a greaterlikelihood

of participation in illicit distribution of drugs.

Acivil case, Wilkinsv. MarylandState Police(2003), usedthe same analytical technique employed in the Sotocase.Though

whites comprised almost three quarters of drivers and speed violators,

only 20% of the cars searched were driven by whites. Blacks madeup 17% of the driving popula-tion, and slightly more ofthe violators, but werealmost 73% of all persons searched. Atotal of 4 of every 5 drivers searched by the

Maryland State Policeinterdiction

team wereof minority status.

If minority drivers wereindeed morelikely to have drugsthan their white counterparts, astronger argument might be madethat the observed disparities werejustified.

However,the

Maryland case

revealedthatthe proportion ofblack and whitedriversfound to becarrying drugs waspracticallyequal: 28.4% of blacks, and 28.8% of whites(other sources cite aslight difference: 34% of blacks and 32% of whites;the differenceremains marginal).The

NewJersey proportions wereevenlower: 13% ofblacks,

10.5% ofwhites, and 8% ofLatinos carried drugs.The in other early studies; the

NewJersey proportions are closerto thefindings

Maryland hit rates are the highestin thatfirst round of profiling inquiries.

Moretelling, none ofthe casesstudied suggestedthat the drugsfound in profile-based searches werepre-market bulk quantity (the quantum envisioned by the drug courier profile). NewJerseys post-Soto review explicitly noted that almost all seizures were of small amounts, consistent with post-market personal use(Verniero

& Zoubeck, 1999); the conclusion is implicit in the absence of

any discussionof the quantum of seizuresin other studies.The inherent differencein the danger posed by market-quantity shipments, in contrast to personal-use quantities, is a potential limit on the latitude to be allowed government agents, and afundamental

problem with the game theory

school of proof (discussed below). Further inquiry into the NewJersey State Police practices in the wake of the April 1998 Turn-pike shooting revealed that the states training regimen included

materialthat essentially equated

minority citizens with greater criminality, effectively directing troopers to focus on minority motor-ists (Verniero

& Zoubeck, 1999)

Chapter

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Racial

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12

Both Maryland and NewJersey enteredinto consent decrees withthe U.S. Department of Justice to amend their practices, monitor trooper performance, and revise training that had perpetuated the racial stereotype. Those findings jurisdictions.

established racial profiling as a fact,

In the public sphere, anironic reversal of positions occurred.

but only in the two Wherethe police had

tacitly assumed the actions of a small group of drug couriers weretypical of the minority com-munities, the public now assumed that the practices of two agenciesrepresented police practices everywhere. The generalizability

distinction remains central to the debate over racial profiling in any guise:The oflocalized findings (or enterprise-specific profiles) to larger groups sharing only

superficial aspectsofthe offending groupsis limited. The police insist that profiling is alegitimate tool ofinquiry, practice.The

public points to the

that it is merelya moderncontinuation prose.The scientific

well grounded in the experience of

Maryland and NewJersey statistics, standingfirm

in their belief

of racial prejudice, now dressed up with pseudo-scientific

questions that have arisen in the wake of the Soto and

Wilkinscases have

examined a wider range of police activities and actions in numerous other venues.They embody an attempt to discern whether and wherethe fact specific milieu of the interstate highways in

of racial profiling by police exists beyond the

NewJersey and Maryland.

Overall,four issues are salient.The first is whether criminal

propensity is morelikely in one

groupthan another, witha collateral questionof whatpurported proofsshould beconsideredvalid. The second areainvolves the continuing refinement of methodology,and the factors to be considered whenexamining aggregate police datain vastly different locations for evidence of racial bias. Acon-temporary assertion, promulgatedin different fashion by the police and by the econometric school of criminology, is that the criminal

propensity point can be proven by a variation ofgametheory, based

upon the results of consent searches without regard for any other considerations (including those of civil rights).The third is alegalistic consideration of whether elevated government intrusion justified againstlarge-scale harm (proliferation of drug markets,or another 9/11-type attack) can be applied equally to smaller gains(seizure of personal-use drug amounts). Afourth operational issue rests upon

the degreeof precision with whichthe profileis appliedby policeofficersand otheragentsofthe state.

Four SalientIssues 1. The Legitimacy of Suspicion For practitioners, the validity ofthe component of race rests upon personal experience and upon the evidence of aggregate crime statistics.The

police arguments rest upon two separate but related

features of police deployment.The first is accumulated personal and vicarious experience, in which

minority offendersplay majorroles.The secondis arreststatistics,the collective constructthat is the cumulative result ofindividual

decisions by police acrossthe nation, over time.

Experience Officers assert a claim for a police intuitionessentially

an accumulated knowledge of subtle

behavioral cuesthat operates below the conscious thresholdthat

properly targets criminals. In

this view, the fact that those who draw police attention are membersof one or another minority is incidental to their demeanor and behavior, and irrelevant to the police decision to focus onthem.

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CRIME, JUSTICE,

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A second component of the argument is essentially defensive, madeby officers who work in districts heavily populated by minority groups.Their that the vast majority ofindividuals

pointwhich

is valid at the individual levelis

with whomthey have contact during the day are residents and

visitors who are minorities. To apply the template usedin the highway studies to local police work, they argue, unfairly paints officers as racist becausethe disproportionate

number of minorities

they stop reflects the area rather than police decision making. Such comparisons are valid only in areas wherethere are significant opportunities to choose between minority and nonminority persons to stop.The

argument is particularly acute in minority-populated areas, because minority-status

victims arefrequently the complainantsin the casespoliceinvestigate:The policeareincensed by accusations of racism whenthey arein fact defending the interests oflaw-abiding A variant objection by the police is the hours

minority citizens.

of darkness defense.This assertion deniesthat

officers can have knowledge of a drivers race whenthey pull up behind a car during the nighttime. Whileintuitively logical, the defense has been countered on severallevels. In the Sotocase,a practice called spotlighting

revealed the race of turnpike

drivers: Parking a cruiser perpendicular to the

road, with the high beams and spotlight on, created a zone oflight that permitted the troopers to identify the race of the driver despite the brevity of illumination

(the practice wasindependently

examined by the NewJersey Attorney Generals office and wasconfirmed).

Oncity streets, vehicles

passingthrough intersections provide a comparableopportunity. In the context oflocal policing, vehicle models,vehicle condition, and personal adornments (bumper and window stickers, certain styles of air fresheners, and other ephemera) are correlated strongly enough with specific groups to provide proxyidentifications in lieu of visual confirmation. They pro-vide no probable cause, but serve to draw the attention of officers; probable causefor a pretext stop likely

would soonfollow, given the many possibleinfractions of the expansive motor vehicle code.

Different sets of proxy identifications

exist for pedestrian stops at night, whereslower speed

and ambient light allow for the observation of race, bearing, and other factors. This is especially salient whenthe police are looking for a suspect whofits The

Descriptionoften

an African

American maleof mediumbuild, undeterminedage,and dressedin astyle common to hundreds of residents of the area.

Crime Statistics Supporters of police profiling efforts point to the disproportionate presence of African American malesin arrest, conviction, and imprisonment

statistics. Those facts are presented as proof that

the police properly focus their enforcement efforts on groups that demonstrate a greater propensity for crime. A corollary argument points to the racially homogeneous character of high-level drug gangsfrom

Jamaican possesto

MS-13,from the

Nicky Barnes organization to the Crips and

Bloodsas a valid rationale for the policeto focus on ethnicity orracein directing their drug-and crime-suppression efforts. Opponents point to severalflaws in the assertions that crime is a product of group characteris-tics. The

history ofracial prejudice created situations ofreal disadvantage:The arrest statistics and

other perceptions of crime are morea reflection of class distinctions than group tendencies (see, e.g., Stark, 1987). Further, the fact that the upper echelons of a gang or criminal enterprise are of a common racial or ethnic heritage does not generalize their criminality to all whoshare their skin color or ethnicity

Chapter

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Racial

Profiling

12

In this view, both the police experiences and the criminal statistics reflect the impact oflarger social forces rooted in Americas sordid history ofslavery, Jim Crowlaws, and racial segregation. Despitethe tremendous gains madeby the civil rights movement,race-based isolation continues to be afactor for substantial numbers of African Americans. Isolation by geographywhether in Jim Crow segregation or the economic necessity ofliving in public housinghas

based

had a negative

influence on the employment and educational opportunities ofthe African American and Hispanic immigrant

communities.

Economic necessitycompels residents of manyurban neighborhoods to participate in their areas

underground economy,evenif they havea stablejob and homelife (Venkatesh,2006); alarge seg-ment ofthat underground economy revolves around the drugtrade. Street-level drug dealing has a relatively low capital entry threshold, and provides areward structure far greater than comparable accessiblelegitimate employment. It is also a highly visible activity,

morelikely to come to police

attention than corresponding drug trafficking in the suburbs.

2. Scientific Proof Criminologists seek a scientific justification for police actions, in lieu of normative reliance upon

unverifiablesixth sense justifications.The contemporary scholarlyfocus on racial profiling rests upon a debate regarding whether a variation on game theory can provide such a foundation. Onethrust ofthe early racial profiling research took up the question of whether disparity alone constituted defacto discrimination, or could occur innocuously. Various studies identified different usesof the highway for minority groups based on employment opportunities and recreational pur-suits (Meehan

& Ponder, 2002a). Another documented disproportionate representation of young

minority malesin the population of high-speedlaw violators on the NewJersey Turnpike, inferring the legitimacy

of atleast one assumption of the original profile (Lange, Johnson, & Voas, 2005).

The contemporary debate centers on a proposition by scholars drawing from thefield of econo-metrics,

assertingthat the questionof disparity or discrimination can beresolvedbythe application of a variation of game theory (Engel, 2008; Persico & Todd, 2008).This solution hinges on an examination ofthe hit

rate (rate of discovery of contraband)

of police searches, independent

of any other concerns (Persico & Todd, 2008), treating the populations of white and non-white drivers as urns

that can besampled.This

view posits that rational choice underlies the options

of drivers to carry contraband (in the present discussion, drugs), and the choice of police officers to conduct investigations for drugs. Rational police officers wouldfocus their efforts on groups most likely to carry drugs. In essence,this econometric argument takes the side ofthe police,tacitly accepting the argument

that group characteristics do exist, and can beinferred at the individual level. Furthermore,the acceptance of group-specific criminality (drug use,in this instance) assumesfacts notin evidence. It is a hypothesis in the classic methodological sense,to be proved or disproved by scientific testing that cannot be conducted, and thus remains hypothetical. Methodologically, the hit rate proposal encounters several difficulties. Police searches are con-ducted under a variety ofsituations, including searchesincidental to arrest, inventory searches when a vehicleis towed, and in circumstances when probable causeis developed at the sceneindependent ofthe original reason for the stop. In addition, searches are conducted for a variety of motives,not

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just drugs (Engel & Tillyer, 2008). As a result, analyses based solely upon the hit rate for drugs mustbe able to discern those stops and searches motivated by an officers desireto maximize probability of ahit

the

(Persico & Todd, 2008). Afurther complication arisesin the need to distin-guish

personal-use hits from the bulk drug seizures arising from the proper application ofthe drug courier profile, although the modern debatefails to pursue that distinction. The

proposition of hit-rate analysis has the advantage of being theoretical, unconnected from

the larger concerns ofthe criminal justice system.The individuals

who comprise the urns

that

police officers supposedly sample are not research subjects, but citizens of a country that presumes

their innocence.They are defendedbyrules and expectationsof conduct by agentsofthe statethat do not allow random selection for the purposes oftesting. Basic civil rights preclude the use ofthe motoring public (or the ambulatory public) as alaboratory.

3. Balance of Harms American law is moretolerant ofintrusive state action whenthe harm to beaverted is great. Lower-level violations ofthe law aretolerated, if tacitly, by the rules of criminal procedure that erect barriers to their discovery.Though the Supreme Court has expanded police powersin the cases of Atwater

v. Lago Vista(2001) (permitting custodial arrestfor conduct normally subject only to a citation) and Whrenet al. v. United States(1996) (allowing the use ofthe pretext stop), the presumption of innocence remains a bedrock procedural right for American citizens. Americans have a reduced expectation of privacy when driving a vehicle in public space, or when walking off their property. Nevertheless, a presumption of privacy remains, to be overcome only by an articulable dangerto the public peace.Judicial tolerance ofthe consent searchfor drugs is one ofthe central questions in the racial profiling debate. The

original drug courier profile had a narrowly targeted objective: Intercept bulk shipments

ofillegal drugsin transit, before they could be cut and distributed to the public.That

profile arose

from a specificfact pattern,closely matchingobservablecharacteristics withsearchesthat found bulk drugs. Preventing illegal drugs from reaching the street hasfar wealthan a seizure of post-market, individual-use

more protective value to the public

drugs. Post-market seizures occur only after the

drugs have been distributed, and the profits returned to the middlepersons and the kingpins ofthe drug trade. The

harm to the individual,

and to society as a result of the individuals

drug-induced

actions, is muchsmaller than the aggregate of such harms embodied in the bulk shipment. They are also more hypothetical at the individual level, insofar as recreational drug useis notinevitably a cause of further criminality.

The contemporary debatesembodyingthe hit rate hypothesisreflect an operational change from the bulk-drug courier profile to a broader anyone carrying illegal drugs foundation. That is a methodological convenience, in part: Many drivers and passengerscarry small amounts of drugs for personal use; relatively few areinvolved in transporting

pre-market bulk drugs.The

numbers

demanded by social science hypothesis testing can only be achieved by expanding the focus to personal-use quantities, at a sacrifice of the greater harms presented by drug couriers. As profiling shifts to other areas of criminal conduct, the public interest in deterring harm also changes. Preventing masscasualty events like those of the September 11, 2001, attacks obviousl

Chapter

7|

Racial

Profiling

12

meetsthe test of great social harm. However, whenthe harm remains hypothetical, unsupported by articulable facts and conditions, the harm intrusion.

argument aloneis insufficient to justify governmental

Advancesin technology will continue to test the proposition, particularly as data-mining

techniques draw conclusions from the electronic traces of everyday activity.

4. Precision of Application Moreimportant to the populations at risk is the degree of precision with which police employ the

drug courier profile.The epithet racial profiling embodiesa beliefthat the profileitself is merely a sham, providing faux legitimacy for decisions that are actually based upon racial prejudice. Profiles are like fingerprints:

They

are composites of particular characteristics

collectively, provide enhanced confidence of an identification. is of a known individual identification

Forfingerprints,

which, taken

that identification

matchedto an unknown sample (the latent print). In criminal profiles, it is

ofthe behaviors or characteristics asindicative of probable criminal behaviors. In both

cases,the greater the number of matches,the greater confidence can be hadin the identification. The public outcry against racial profiling is embodied in numerous testimonial cases,in which the only characteristic the individual stopped by the police shared with the drug courier profile was

that ofrace. Suchevidenceis not collected on a scientific basis,butits cumulative weightcreatesa viable presumption.Though there have beeninquiries into public perceptions of racial profiling, a viable study of personsstopped and released as aresult of profiling activities has yetto be published. Atleast one court caseexamined the profile itself: the 1993 Colorado case of Whitfieldv. Board of County Commissionersof Eagle County. In a caseinvolving a highway vehicle stop based solely upon a drug courier profile, the court dissected the profile point by point,finding criminality

no correlation to

of the various components (rental car, out-of-state plates in an area heavily dependent

upon tourism, radar detector, tinted windows, and soforth). The court then concluded that the only remaining variable wasthe drivers race, which wasinadmissible.

Examining eachindividual

vari-able

in the profile, rather than the collective weightof all the components,is an unusualapproach, but the evidence of the resulting search wasnevertheless suppressed.

Researchon Racial Profiling In the wake ofthe 1998 NewJersey Turnpike shooting, a fairly broad scholarly effort ensued to establish whether or not police engagedin racial profiling in other jurisdictions. stop and frisk

In major cities,

questioning of pedestrians also fell under the racial profiling umbrella. Dozens

of studies havebeenconducted,yielding mixedresults.In the earliestround ofinquiry, mostrep-utable studies indicated that minorities werestopped in numbers disproportionately

higher than

their representation in population statistics (Engel, Calnon, & Bernard, 2002). Later studies have been mounted after the controversy spurred reform of practices and greater scrutiny; the results of emerging studies also document disparities, but generally areless inclined to conclude that dis-crimination drives them. However,the later studies also occur in a climate where police and civic officials are well aware ofthe racial profiling debate. Police agencies are morelikely to havetaken stepsto minimize disparity, and arelikely

more politically astutein their interpretation

offindings.

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CRIME, JUSTICE,

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Whethersuch disparity represents police prejudice or is the by-product of patterns of civilian behavior has yet to be answered definitively. Becausepolicing is locally based, practices differ by jurisdiction.

Onecomprehensive study indicated wide diversity of practices across the 127 different

jurisdictions in

Massachusetts(Farrell,

McDevitt, Bailey, Andresen, & Pierce, 2004).That study

also uncovered evidence of a possible gender biasin some jurisdictions (i.e., the propensity of male officers to stop single, young, female drivers), an artifact not pursued in other studies. Studying racial profiling hasseveral methodological hurdles. First is establishing an appropriate population baseline against which to compare the proportion of minority stops. Secondis the lim-ited

number of variablesavailablein officialrecords,the mostcommon source of datafor profiling studies. Becauseof these limitations, the mostdifficult task is determining

whether any disparities

are grounded in prejudice, or are a product of real (rather than presumed) criminal conduct. The

original

NewJersey and Maryland turnpike

cases wererelatively easy:The

proportions

of drivers on the highway could be established by direct observation, as could the proportions of speeders and other motor vehicle code violators. Observablevehicle code violations constituted the sole basisfor initiating

a stop; the choice to request or initiate a search wasless directly observable.

Awayfrom limited-access highways, the question becomes morecomplex. Police officers working in neighborhoods populated by minorities rightly arguethat mostof the people they encounter will

be of minoritystatus, whetherthe officersare prejudiced or committed to equality. Furthermore, police investigative stops in cities and towns are often prompted by citizen complaints, providing specific descriptive information that is far moredetailed than a profiling hunch. Studies note disparate patterns of highway use(both by time and route) by minority drivers, with differenceslinked to residential, employment, and recreational patterns (Meehan & Ponder, 2002a). Certain highways aretransportation corridors from exurbs and suburbs into the core cities, andthe commuting drivers mayrepresent different ethnic proportions from the towns resident populations. One post-shooting study in NewJersey suggested that young minority malescomprised a much greater proportion of drivers using excessivespeed (Lange et al., 2005). It retroactively provided

nominal supportfor the original profile, butremains untestedagainstactual vehiclestop practices. Another study found that even within a single jurisdiction,

racial disparity in stops increased

with distance from the city border. Minority drivers werefar morelikely to bestopped in homoge-neous white suburban neighborhoods farthest from the city line, where black or brown faces stood out. Police activity wasrelatively race-neutral in areas abutting a core city, where a heterogeneous population

mix wasthe norm (Meehan

Morecritical to the interpretation

& Ponder, 2002b).

of police stop datais the nature offormalized record keeping.

Most police records systems were designed to facilitate casetracking and offender identification. Evenin those jurisdictions that have adopted morerigorous tracking by race and ethnicity, either

prospectively or in responseto consent decreesor public criticism, few forms reveal the actual motivation of the officer.The

Supreme Court decision of Whrenet al. v. United States(1996) has

legitimized the police use ofthe pretext stop, initiating action onthe basis of a violation unrelated to the officers real intent to conduct aninvestigation.

Almost all vehicle stops meetthe low threshold

for probable cause (a moving violation or equipment defect), and are therefore legal. Police records systems generally record only the fact of a stop, not its context.

Computer

analysis of aggregate stop datais insufficient to establish motivation becausesuch information is not recorded. It remains difficult to determine whether disparate patterns represent overt bias

Chapter

7|

Racial

Profiling

subtle bias, or a statistical artifact of police deployment based on crime and call patterns, or other localized phenomena. Analyzing stop data atthe aggregatelevel avoids any scrutiny ofindividual

officers work habits.

Suchtechniques have political benefits, butif officersin small groups engagein prejudicial behaviors unrepresentative of the agency practices, the bias maybe maskedstatistically in the larger agency patterns.The impact of their actions upon the

minority citizens will remain vivid, however, and

the gap between whatis experienced by citizens and what can be demonstrated statistically

will

remain a cause offriction.

Conclusion Central to the ongoing debate regarding racial profiling is the balance of the protection of public safety withthe protection ofindividual liberty. In the original context, the potential gains in public safety to be realized by intercepting bulk drugs before they could be distributed tightly controlled use of an otherwise intrusive

police tool. The

mightjustify the

contemporary focus of research

ignores quantity, focusing instead on the appropriateness of a hit rate based on any quantity of

drugs asajustification. A decade after the NewJersey Turnpike shooting that revived the racial profiling controversy, the use of profiling continues, and continues to be problematic. Questions ofthe accuracy and pre-cision of application remain unanswered: Giventhe local control of police agencies, the questions are revisited on a case-by-case basis. Moreover,it is likely that the police have become moreastute, both politically and scientifically, in their ability to articulate the reasoning processesofindividual officers, and the patterns of agency-wide actions. the police have become better liars, identifying

Whilethat possibility invites the reaction that

it is equally possible that the police are becoming better at

and articulating the subtle behaviors that they observe, giving a morevalid operational

definition to the prized sixth sense ofthe street cop.

Referencesand Further Readings Atwater v. Lago Vista, 532 U.S. 318 (2001). Brown v. Board of Education Buerger,

M. E., & Farrell, sources.

Engel, R. S. (2008).

of Topeka,

A. (2002). The

Kansas, 347 evidence

US 483.

of racial

profiling:

Interpreting

documented

and unof-ficial

Police Quarterly, 5(1), 272305. A critique

of the outcome

test

in racial

profiling

research. Justice Quarterly,

25(1),

136. Engel, R. S., Calnon, J.

M., & Bernard,

T. J. (2002) Theory

and racial

profiling:

Shortcomings

and future

directions in research. Justice Quarterly, 19(2), 249273. Engel, R. S., & Tillyer, test. Justice Farrell,

R.(2008,

March). Searching for equilibrium:

tenuous

nature of the outcome

Quarterly, 25(1), 5471.

A., McDevitt, J., Bailey, L., Andresen,

and Gender Profiling University.

The

Project: Final report.

C., & Pierce, E. (2004, Boston: Institute

May). Massachusetts Racial

on Race and Justice,

Northeastern

12

130

CRIME, JUSTICE,

AND SOCIAL

CONTROL

Harris, D. A.(2002). Profilesin injustice: Lange, J. E.,Johnson,

Whyracial profiling cannot work. New York:The

New Press.

M. B., & Voas, R. B.(2005). Testing the racial profiling hypothesis for seemingly

disparate traffic stops. Justice Quarterly, 22(2), 193223. Meehan, A.J., & Ponder, M. C.(2002a).

How roadway composition

mattersin analyzing police data on

racial profiling. Police Quarterly, 5(3), 306333. Meehan, A.J., & Ponder, M. C.(2002b).

Raceand place:The ecology of racial profiling

African American

motorists. Justice Quarterly, 19(3), 399430. Meeks, K.(2000).

Driving while black. NewYork: Broadway Books.

Persico, N., & Todd, P. E.(2008). The

hit rates test for racial biasin motor-vehicle searches. Justice Quar-terly,

25(1), 3753. Schafer,J. A., Carter, D. L., Katz-Bannister, A.J., & Wells, W. M.(2006).

Decision makingin traffic stop

encounters: A multivariate analysis of police behavior. Police Quarterly, 9(2), 184209. Stark, R.(1987). Deviant places: Atheory of the ecology of crime. Criminology, 25(4), 893909. State of NewJersey v. Pedro Soto et al., 324 N.J.Super. 66, 734 A.2d 350 (1996). Venkatesh, S. A.(2006).

Offthe books: The underground economy of the urban poor. Cambridge, MA: Har-vard

University Press. Verniero, P., & Zoubeck, P. H.(1999). Interim report of the State Police Review Teamregarding allegations of racial profiling. Trenton: NewJersey Attorney Generals Office. Whitfield v. Board of County Commissioners of Eagle County, Colo., 837 F.Supp. 338 (1993). Whren et al. v. United States, 517 U.S.806 (1996). Wilkins v. Maryland State Police, Civil Action No. CB-93483 Withrow, B.(2004).

(2003).

Race-based policing: A descriptive analysis of the

and Research,5, 223240

Wichita Stop Study. Police Practice

ChaPTEr

Undocumented People (En)CounterBorder Policing NEARANDFARFROM THE US BORDER DENISEBRENNAN

W

KEYWORDS hether living along the border or deep within the USinterior, undoc-umented border zone people know that their lives could be upended by a traffic

stop or by employers, landlords, or partners blowing the whistle on

their legal status.The three

migration

border may not be everywhere, butits policing is.

Over racial profiling were deported from the United States during Presi-dent undocumented Obamas two terms, prompting the migrant rights community to refer to million individuals

him as the Deporter-in-Chief.

President Trump has taken policing to a new

level by makingall undocumented migrantsa priority

United States

for deportation. Every

undocumented adult and child is now a walking target.

USImmigration

and

Denise Brennan,

Customs Enforcement (ICE) agents have already made65,000 arrests since the Border

inaugurationa

40% increase since this time last year (The

White House 2017).

The president has vowed to continue this deportation spree in order to forcibly For this inaugural

Policing:

from the

Berghahn

Near and Far

US Border,

and Society 156-163.

remove over 11 million people.

Undocu-mented

People (En)Counter

Copyright Books.

Migra-tion

vol.1, no.1, pp. 2018 by Reprinted

edition of Migration and Society with the theme of hos-pitality with permission.

and hostility, this article offers reflections from ongoing ethnographic field research throughout the United States with undocumented people on the

lived experience of beingwanted. The ethnographic project calls attentionto how undocumented people confront state surveillance and criminalization

with

tactics to live undetected. Atthe same time that they avoid the attention oflaw enforcement, undocumented people, however, arefar from hiding. Under assault, they try to live apart from the nations security state while they live as part of vibrant communities.

Myongoingfield research highlights the tension between

this simultaneous invisibility

and obvious presence of undocumented persons

throughout the country.1 131

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CRIME, JUSTICE,

This

AND SOCIAL

CONTROL

article focuses, in particular, on encounters with law enforcement in alegal system that

criminalizes immigration. Since manyofthese encounters begin with racial profiling, the article uses Orisanmi Burtons assertion that policing in the United Statesis always already about racialized policing

whosefunction is to protect and serve whiteness, as aframe through

which to read the

stories below about racial profiling of undocumented people (Burton 2015: 3839).2 I also turn to Didier Fassins research on how state agentslearn to implement the law.The is comprised of individual rationalities

state agents whointerpret

deportation regime

what Fassin aptly describes asthe diverse

of the state. Wesee the everyday workings of the state through what its agents do

underthe multipleinfluences ofthe policiesthey implement, the habitsthey develop,the initiatives they take, and the responses they getfrom publics (Fassin 2015:ix). In so doing, these state agents makethe state visible asthey exercise atremendous degree of power. This research project on everyday life without documentation grows out of myprevious book that follows thefirst

recipients oftrafficking

visas to remain in the United States(Brennan 2014).

Whatis largely unknown about trafficking in the United Statesis that a paltry number of traf-ficking visas have beenissued to date.3 This low number is inextricably tied to the racial profiling of people assumedto be undocumented. I argue that this form ofimmigration

relief for

migrants

who have been so severely exploited that they qualify as trafficked has been underutilized in part

becauselaw enforcementare notscreeningfor trafficking.The key argumentin this articleis that law enforcement agents biases,perceptions, and actions whenthey encounter migrantsshape how they exercise the immense discretion they havein these moments of determination.4 enforcement agents encounter individuals

Whenlaw

whothey believe might not have documentation, they

decide, often in split seconds, whether, for example, to issue a ticket for driving without alicense or to pull in the firepower

of the federal government and alert Border Patrol or ICE. They

have the authority to decide whether to proceed with a trafficking determination can put undocumented

screening.These

migrants on a path towards immigration

also

moments of

relief or towards

deportation. Agents decisions madein the heat of the moment affect peoples lives forever.

Attackson migrantcommunities cannot be viewedin isolation from attacks oncommunities of color through violent policing and massincarceration (Alexander 2010; Browne 2015; Rios 2011). Immigrant enforcement policies have dramatically shaped dailylife in migrant communities. Nearly one quarter of Latinos in the United States personally know someone who has been detained or deported (Hugo Lopez 2011). Associologist Douglas Masseyhas observed,it is thefirst time since the Civil Warthat so many people have so few rights (Massey 2017).

Methodology Overthe past three years I haveinterviewed statusfamilieswho

undocumented individualsor

live in interior communities (in

members of mixed

New York, Maryland, Washington, DC, Vir-ginia,

North Carolina, Texas, California, and Oregon) as well asin southern and northern border communities (New York, Florida,

Alabama, Texas, Arizona, California) inside the 100-mile

border zone, an enhanced immigration United States (American

enforcement zone that spans the entire periphery ofthe

Civil Liberties Union [ACLU]

2015).5Those living inside the 100-mile

border zone experience particularly intense surveillance and policing. Border Patrol checkpoint

Chapter

8|

Undocumented

People (En)Counter

Border

Policing

13

(usually over 30 milesfrom the actual border) on roads out of southern and northern border com-munities maketravel further into the interior of the United Statesrisky for undocumented people. As a result, community leaders inside the 100-mile border zone report high rates of workplace exploitation, domestic abuse, unwanted pregnancies, and untreated illnesses because of restricted mobility (Griffin

et al. 2014; Heyman 2016; Montalvo-Liendo et al. 2009; Queally 2017; Sacchetti

2017; Salcido and Adelman 2004).6 This

ethnographic field

research forms the basis for a book I am currently

Criminalizing Everyday Lifein the United States.The

writing, Undoc-umented:

book also draws from interviews

with community organizers, attorneys, social workers, domestic violence counselors, medical professionals, teachers, school counselors, and faith leaders. AndI havesought outinterviews individuals

who witnessfirst

of undocumented peoples lives in the United States. For example, I haveinterviewed owners about police and ICE arrests outside their store fronts; back of their vehicles to undocumented farmworkers professionals whofind

with

hand the workings ofthe deportation regime as well asthe deeproots grocery store

women who sell food out of the

whofear driving to get provisions;

medical

creative waysto help undocumented patients (or parents of sick children)

accessspecialized care beyond interior

Border Patrol checkpoints; faith leaders in the Sanctuary

movement; hotline operators whofield

calls from families looking for loved ones who set out on

the migranttrail; ranchers whoseproperty is onthe migranttrail; Border Patrolagentsand their spouses; and young people in mixedstatus families

who grew up crossing the border for school.

In addition to formal interviews, I have beenin a variety of spaces where migrantleaders have exchanged knowledge, offered support, strategized, and fought for justice. I have attended rights workshops and empowerment

meetings with domestic worker,farmworker,

and daylabor orga-nizers;

domestic violence survivors; youth leaders; andleaders in the LGBTQ community. In these settings, I explore everyday transactions that documented individuals take for granted but which become exceedingly risky or challenging for undocumented people. Although I haveinterviewed undocumented people who arefrom all over the world,the bulk of myfield research has been with

individuals originally from Latin America,sincethey comprise over 96% of deportations.

Individual Law EnforcementAgents Decision-Making When examining

examples of individual

with undocumented

law enforcement

officers

decisions in encounters

people, it is clear that the agents do not act in lockstep.

reminds us,the state is

morethan a bureaucracy with rules and procedures.

of personal values, professional principles, and public debates influence

and do. Asthey makedecisionsatthe microsocial level,

As Didier Fassin Rather, a range

whatthe agents think

weseemoral subjectivities at work

(Fassin 2015: x). An undocumented activist in Los Angeles recounts being in the back seat of her aunt Carmens van when a police officer pulled them over and askedfor her aunts license. Seeing a baby and an elementary school-aged child (the activist) in the back seat, the police officer

madethe decision to give Carmen a ticket and impound

at Carmen (in Spanish) for risking

driving.

the car, all the while yelling

After handing the officer her car keys, Carmen

grabbed the dozens of cupcakes they had baked for a school fundraiser of the

wayto school

and walked the rest

with her niece and the baby in her car seat. Later, she realized she had

134

CRIME, JUSTICE,

AND SOCIAL

CONTROL

forgotten to take her bed-ridden sons specialized retrieve the carand

the wheelchairCarmen

wheelchair out of the trunk.

instead

Too afraid to

madethe calculation to begin saving

to replace them both. In the Rio Grande Valley in Texas, Alma tells of getting stopped by a local police officer who claimed she had run a red light.

Whenshe could not produce a drivers license at his request, she

explained that she wason her wayto take her son, who hasautism, to see a specialist. Like the police officer in Los Angeles,this officer madethe decisionto issue aticket for driving without alicense and to not run herfingerprints

through the federal databaseto seeif she wasundocumented. Instead,

heimpounded the car. Alma and her son waitedat a Stripes gasstationfor a documentedfriend to pick them up.This

police encounter could have ended differently:

with Alma in the back ofthe

officers vehicle and her friend taking her son home. Following this encounter, Alma wasshaken up. Terrified of being separated from her children, she and her husband adopted whatI refer to as border improvisations

to reduce the likelihood

of run-ins

withthe police. Alma nolonger travels

for specialized medical care for her son, and she has stopped going to English-language classesin a nearby town. I

cant risk getting stopped again.

has also significantly

What would myson do without me? Her hus-band

altered his daily routine. Ever since President Trump waselected, he

has been staying on the ranch where he works during the week,instead of driving back and forth

every day. Stayingoff the road as muchas possible,he has beentrying to minimize his exposure to driving-related police encounters. The trade-offs are not easy. Alma single-handedly takes care of their six young children. Border Patrol agents park atthe only entrance and exit to their colonia (unincorporated

When

neighbor-hood),

she asks documented neighborsto pick up afew items for her at the supermarket. Essentially a blockade, residents in colonias are trapped when Border Patrol agents decideto monitor all traffic into and out of their neighborhood. We colonia. No

are in lockdown,

explains another

motherin a nearby

one can get to work or school. Since the election, many undocumented

members of

the community talk of not driving at night, whenlaw enforcement can allegethat they are driving

without head or tail lights. Explaining how the election changed daily choices and rhythms, an organizer said: If

you run out of milk at night, your children dont have milk with dinner.

Her

improvisation is simple: she stays off the road. The

police know which residential communities have a high concentration

individuals.

of unauthorized

By driving through them regularly, parking, and setting up checkpoints, they intimidate

and create a chronic sense offear and insecurity. These checkpoints have been happening for years, before President Trump waselected. Staff at a Spanish-speaking community-based organization in Winston Salem, North Carolina, for example, described periodic police checkpoints (while Presi-dent Obama wasin office) atthe entrance to a neighborhood comprised mainly of Latino residents.

Whencheckpointsgo up,residentscannotenter or exittheir neighborhood withoutspeakingto the police officers. A young mother whose parents are undocumented described worry(ing) since her mother and father haveto drive to getto work. Anything

can happen.

Trump in office, her mother now does notleave the house withoutfirst

every day

With President

checking Facebook to see

if there are any posts about police or ICE activity. She also signed upfor PaseLaVoz, a free service that sendstext alerts about police activity. These safety plans are essential in towns like

Winston

Salem where,asthe organizer describes, police checkpoints go up a block from a Spanish-speaking mass,or near a quinceaera at arestaurant or a barbecue in the park

Chapter

8|

Undocumented

People

(En)Counter

Border

Policing

Challenging State Surveillance and Violence Israels encounter with a Border Patrol agentin asleepy beachtown onthe outskirts ofJacksonville, Florida captures not only how state agents makechoices but also resistance to racialized policing and a rejection of the criminalization construction firm

of migrants. Asuccessful businessman, Israel runs his own

and employs over a dozen workers. Hislarge gleaming red pickup truck and three

white vans are signs of hisfinancial

security and business acumen. Hiscollision with Border Patrol

began when an agent drove up alongside one of Israels white vans.The agent signaled for Israel to

pull over. HeoverheardIsraeltell histhree employees(in Spanish)to not sayanything. It is atthis point that the agent heated up and the situation escalated quickly. Israel explained: He got red in the face. He kept on asking mefor IDbut

he didnt

wantthe drivers license I handed him.

He wantedsomeform of MexicanID. Incensed by the valid license, the agentthen openedthe van door and put handcuffs on Israels left wrist.These two menin control oftheir worldstussledfirst verbally and then physically.The agent said what wason his mind:I Israel tried to talk him down, asif we

know you are animmigrant.

werein line together atthe grocery store, offering: I dont

know what you are talking about because weare all immigrants.

In a rage, the agentthen tried to

pull Israel out of the van by yanking his arm, banging his cuffed arm against the van door multiple

times. Israel bledall overthem both. Unknownto the agent,Israel had been filming the event on his phonethe wholetime. Later, whenthe agent realized he had beenrecorded, hetold Israel, I given consent for you tofilm

hadnt

me. To which Israel replied, I didnt give consent to bein your car.

Israel insisted on naming the agentEdwinand

requested that I usethe agents real name as

well. In so doing, he underscores Fassins point that state agents are not faceless interpreters and enforcers of the law and state power. In fact, Edwin madeassumptions when hefirst and then took action. Israel explains: Border

saw the van,

Patrol immediately chase whenthey see white vans.

Look at the way he pulled meover. He wasin the fast lane. Border Patrol doesthis. They immedi-ately chase whenthey see white vans. In a soft measuredvoice, he calmly observed that the local

police dothe same.They regularly stop Hispanos.Andthen they call Border Patrol. Just a week earlier, the police had stopped a documented friend ofIsraels

who also had been driving a white

van. Hetoo understood the hunt for whatit was. But he and his undocumented co-workers were ready for this possible scenario. They saw the police vehicle following them. My friend told his buddies,If they put their lights on, you guys run.

Whenthe police did stop the van, Israels friend

stayed in the van while hisfriends ran off. These orchestrated dragnets often yield a random group of individuals to send to detention. Onceprofiled, Israel landed in detention for three weeks.7 Heand his wifeconcocted a cover story to tell their three childrenthat

Israel was working on ajob site out of state. They are usedto me

coming home every day.They still dont know what happened. DespiteIsraels calmlogic in the face of racial profiling, fury, and abuse, whetherfamilies like his can stay living under the same roof hinges onlaw enforcement officers has had other interactions help the community. ladder

whims, temperament, and ability to control their anger. Israel

with officers who,in sharp contrast, decided to usetheir authority to

A highway patrol officer pulled him over, for example, to let him know that a

wasabout to fall off his vans roof.

In Jacksonville I also metJuan, whois close to securing his papers through

marriage. On an

out-of-state construction job in Georgia,a police officer ran Juans plates while he waspumping gas

135

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CRIME, JUSTICE,

AND SOCIAL

CONTROL

Like Israel, he confronted the officer and asked why hesingled him out when he wassimplyfilling his gas tank. The

police officer told him: Because no one drives in

mycounty without a drivers

license. (Juan did have a valid drivers license at the time.) The officer took him to the local police station wherethe front desk officer warned, You are going in and not coming out. Despite multiple run-ins

with law enforcement, Juan refused to limit

his job choices or his

mobility. There are many Border Patrol around here. Wehave no choice but to seethem all the time. I cant hide and live like a criminal. Stuff like this happens all the time.

Wehave no rights.

Hecontinued, Sometimes I get depressed and paralyzed byfear. If his paperwork does not come

through, he willleave the United States.If I haveto go back,I wantit to be on myown. Rather than get sent back.They treat you like animals.

Conclusion Edwins decision to stop Israel, muchlike the police officers decision to stop Juanas

well asthe

officers decisionto impound Carmens carin Los Angelesand the Rio Grande Valley officers decision to do the same to Almas cardemonstrates

how state agents strategically usetheir power to hunt

for people whothey assumedo not haveauthorization.These calculated arrests, whichare made possible through rampant and unchecked racial profiling, help account for the record-high levels of deportation. Arrests

happen all the time, Israel said. We

and taking people outoften

hear about ICE knocking on doors

notthe personthey werelooking for.They just golooking for people.

These experiences with racial profiling and abuse of power echo whatI have heardin communities throughout the United States,notjust in border communities. Asalawyer in northern Virginia laid out, Look, they get whothey get.There is always room in the back ofthe van. DENISE BRENNAN is an anthropologist

who writes about migration, trafficking,

and

labor. Sheis Professor and Chair of the Department of Anthropology at Georgetown Uni-versity. Her mostrecent book, Life Interrupted: Trafficking into Forced Laborin the United States(Duke

University Press, 2014),follows the lives of thefirst trafficking survivors in

the United States. Sheis currently conducting research on life without documentation in the United Statesfor a new book, Undocumented: Criminalizing Everyday Lifein the United States.

Notes 1.

Over half of undocumented adults have citizen children and havelived in the United Statesfor than 10 years (Center

for

American

chant proclaims, undocumented 2. Todays immigration the

history

of arresting

the internment Kanstroom

continues

2009;

and forcibly

removing

Moloney 2012;

along

Bonilla-Silva

of Japanese-Americans 2007;

United States is their

home.

Asthe protest

migrants are here to stay.

enforcement

United States (Bayoumi

Progress 2017).The

more

history

2003;

individuals

and Operation

Ngai 2004)

of racial

Cacho 2012;

profiling Hernndez

and discrimination

in

2010), particularly

assumed to be born outside

of the

a

USsuch

Wetback in the 1950s (Hahamovitch

2011;

as

Chapter

3. Eventhough the law, the Trafficking

8|

Undocumented

People (En)Counter

Victims Protection Act (TVPA),

Border

Policing

allows upto 5,000 T visas to be

issued each year, fewer than 10,000 have been given out since the passageof the legislation in 2000. Sincethe USgovernment estimates that between 14,500 and 17,500 individuals trafficking, it is clear that efforts to look for and protect exploited

arein situations of

migrant workers havefallen short

(Brennan 2014, 2017). 4.

Writing about the enormous

discretion that law enforcement agents exercise,legal scholar Dina

Haynes worries about the inadequate training on how to use the

power that comes with that dis-cretion

(Haynes 2007: 370). Two of thefirst attorneys in the USto work with trafficking Kathleen Kim and Charles Song, alsofind that bias law enforcement determines who 5.The

ACLUs

is at playshaped

survivors,

bylabor sector and genderwhen

counts asa victim and who does not (Kim et al. 2009: 44).

mapof the border zone shows how many people live inside this border

zone: https://

www.aclu.org/know-your-rights-governments-100-mile-border-zone-map. 6. Border communities in the Rio Grande Valley,for example, are among the mostmedically areas in the nation

with gapsin public

under-served

health services, poor accessto care, significant health

effects of environmental factors (water treatment, pollution, crowding) and high rates of chronic dis-ease (Castaeda

2015:109).

7. Luckily, Israel and his wife were working with an attorney at a universitys immigration secure a U visa for his wife (her previous husband had abused her).This

clinic to

attorney secured bail$2500and

Israel, unlike many who are profiled andjailed, hadthe moneyin the bank.The caseis ongoing since Israel filed

a case of abuse against Edwin.

References Alexander, The

Michelle. 2010. The New Jim Crow:

MassIncarceration

in the Age of Colorblindness.

New York:

New Press.

American

Civil Liberties

100-Mile

Union (ACLU).

2015. Fact

Sheet on Customs and Border

Protections

(CBPs)

Rule. https://www.aclu.org/sites/default/files/field_document/14_9_15_cbp_100-mile_

rule_final.pdf.

Bayoumi, The

Moustafa. 2009. How DoesIt Feelto Bea Problem? Being Youngand Arabin America. New York:

Penguin

Bonilla-Silva, Brennan,

Press.

Eduardo. 2003.

Racism without

Denise. 2014. Life Interrupted:

Duke University Brennan,

MD: Rowman

& Littlefield.

Trafficking into Forced Labor in the United States. Durham,

NC:

Press.

Denise. 2017. Fighting of Rescue.

Racists. Lanham,

Human

Trafficking

Wake Forest Law Review 52 (2):

Today:

Moral Panics,

Zombie

Data, and the Seduc-tion

477496.

Browne, Simone. 2015. Dark Matters: Onthe Surveillance of Blackness. Durham, NC: Duke University Press.

Burton, Orisanmi. 2015. To Cacho, Lisa

Marie. 2012. Social Death: Racialized

New York: Center for

Protect and Serve Whiteness. North American Dialogue18 (2): 3850.

New York

American

University

Righteousness and the

Criminalization

Press.

Progress. 2017. The

Facts on Immigration

Today: 2017 Edition.

https://www.americanprogress.org/issues/immigration/reports/2017/04/20/430736/ facts-immigration-today-2017-edition/.

of the Unprotected.

13

138

CRIME, JUSTICE,

Castaeda,

AND SOCIAL

CONTROL

Heide. 2015. Mixed-Status

Families in the Rio Grande Valley of Texas: Health Disparities

and Life along the US/Mexico Border. In Living Together,Living Apart:

MixedStatus Families and US

Immigration Policy, ed. April Schueths and Jodie Lawston, 106118. Seattle: University of Washington Press. Fassin, Didier. 2015. Preface:

Can States Be Moral? In Atthe Heart of the State: The Moral Worldof

Institution, ed. Didier Fassin,ixxi. Griffin,

London: Pluto Press.

Marsha, Minnette Son, and Eliot Shapleigh. 2014. Childrens

Lives onthe Border.

Pediatrics 133

(5): e1118e1120. Hahamovitch,

Cindy. 2011. No Mans Land: Jamaican Guestworkersin America andthe Global History of

Deportable Labor. Princeton, Haynes, Dina. 2007. (Not)

NJ: Princeton University Press.

Found Chained to a Bedin a Brothel: Conceptual, Legal, and Procedural

Failures to Fulfill the Promise of the Trafficking

Victims Protection Act. GeorgetownImmigration

Law

Journal (21): 337382. Hernndez,

Kelly Lytle. 2010. Migra! A History of the US Border Patrol. Berkeley: University of California

Press. Heyman, Josiah McC. 2016. Unequal Society: Production, Reproduction,

Relationships between Unauthorized

Migrants and the

Wider

Mobility, and Risk. Anthropology of Work Review 37 (1):

4448. Hugo Lopez,

Mark et al. 2011.As

Deportations Riseto Record Levels, Most Latinos Oppose Obamas

Policy. Pew Hispanic Research Center. December 28. Kanstroom, Daniel. 2007. Deportation Nation: Outsidersin American History. Cambridge, MA: Harvard University Press. Kim, Kathleen C., Charles Song, and Srividya Panchalam. 2009. Conversation

with Two Anti-Trafficking

Advocates: Kathleen Kim and Charles Song, Reported by Srividya Panchalam.

Los AngelesPublic

Interest LawJournal 1: 3164. Massey, Douglas. 2017.Americas of International

Immigration

Policy Fiasco. Presentation at the Institute for the Study

Migration, Georgetown University,

Washington, DC, 29 March.

Moloney, Deirdre M. 2012. NationalInsecurities: Immigrants and US Deportation Policysince 1882. Chapel Hill: University of North Carolina Press. Montalvo-Liendo

N., D. W. Wardell,J. Engebretson, and B. M. Reininger. 2009. Factors Influ-encing

Disclosure of Abuse by Womenof Mexican Descent. Journal of NursingScholarship 41 (4): 359367. Ngai, Mae M.2004. Impossible Subjects:Illegal Aliensand the Making of Modern America. Princeton,

NJ:

Princeton University Press. Queally, James. 2017.Fearing

Deportation,

Many Domestic Violence Victims Are Steering Clear of

Police and Courts. Los AngelesTimes, 9 October. Rios, Victor

M. 2011. Punished: Policingthe Lives of Black and Latino Boys. New York: New York Univer-sity

Press. Sacchetti,

Maria. 2017.A

Just Suedfor

Girl with Cerebral Palsyis Being Heldin Immigration

ACLU

Her Release. WashingtonPost, 31 October.

Salcido, Olivia, and Madelaine Adelman. 2004. He Undocumented-Immigrant 162172

Detention:The

Has Me Tied with the Blessedand Damned Papers:

Battered Womenin Phoenix, Arizona.

Human Organization 63 (2):

Chapter

The

White House. 2017. Press

8|

Undocumented

Gaggle by Director of Immigration

People (En)Counter

Border

Policing

13

and Customs Enforcement Tom

Homan, US Attorney for the State of UtahJohn Huber, and Principal Deputy Press Secretary Sarah

Sanders. Press Release.https://www.whitehouse.gov/the-press-office/2017/06/28/press-gaggle-director-immigration-and-custom (accessed 1 November 2017).

ChaPTEr

Managing the Boundary BetweenPublicand PrivatePolicing

9

MALCOLM K. SPARROW

Malcolm the

K. Sparrow,

Boundary

and Private

EXECUTIVESESSIONONPOLICINGANDPUBLICSAFETY

Policing,

of Justice, of Justice,

Managing

Between

Public Depart-ment

National

Institute

pp. 1-24, 2014.

Thisis onein a series of papersthat will be published asa result ofthe Executive Session on Policing and Public Safety. Harvards Executive Sessionsare a convening ofindividuals ofindependent standing whotake joint responsibility for rethinking andimproving societys responses to anissue. Membersare selected based on their experiences,their reputation for thoughtfulness and their potential for helping to disseminate the work of the Session. In the early1980s, an Executive Session on Policing helped resolve manylaw enforcement issues of the day.It produced a number of papers and concepts that revolutionized policing. Thirty yearslater, law enforcement has changed and NIJandthe Harvard Kennedy School are again collaborating to helpresolve law enforcement issues of the day. Learn more about the Executive Session on Policing and Public Safetyat: www.NIJ.gov,keywords Executive Session Policing www.hks.harvard.edu,keywords Executive Session Policing

Introduction The boundary between public and private policing is messyand complex. Police executives deal with some aspect ofit almost every day. Private investments in security continue to expand and public/private

partnerships of myriad types

proliferate, even as budgetsfor public policing stall or decline. 14

142

CRIME, JUSTICE,

AND SOCIAL

This

CONTROL

paper provides police executives an opportunity to explore the critical

issues that arise at this boundary. The

analysis here starts with a number of

assumptions: First, that it is no longer possible for public police to ignore the extent and pervasiveness of private policing arrangements. Second,that beingin some general sense for

or against

private security is not helpful, assuch views

are inadequately nuanced or sophisticated given the variety of issues at stake. Third, that the interests of private parties will rarely, if ever, befully aligned with public interests. Fourth, that it is not sufficient for public police agencies simply

to deal withthe private security arrangementsthat existtoday; rather, public police have arole to playin influencing future arrangements andin makingsure those arrangements serve the public interest. Forthe purposes of this discussion, private policingis broadly construed and meansthe provision of security or policingservices other than by public servantsin the normal courseof their public duties. The clientsfor private policing maytherefore be public (as with neighborhood patrols) or private (as whencorporations contract with private security firms

or

employ their own security guards).

The providersof private policing mayinclude: Volunteers.

Private individuals

acting as unpaid volunteers (e.g.,

neighborhood watch). Commercial

Sparrow, Malcolm K., Ph.D. Managingthe Boundary

Security-Related

Enterprises.

For-profit commercial

enterprises that provide some aspect of security/policing

services (e.g.,

security companies, hired guards, hired neighborhood patrols, private investigators, alarm companies).

Between

Specialist

Employees in Private or Not-for-Profit

Organizations.

Employees who have specialist policing, security or risk-management

Public and Private

roles within organizations

Policing. New

security. These personnel maybe employed by corporations as security

whosecore missionis something other than

officers, by a retail establishment as store detectives, by a private uni-versity

Perspectives in Policing Bulletin. Washington,

DC:

U.S. Department of Justice,

NationalInstitute of Justice, 2014. NCJ247182.

as membersofthe universitys own police department,1 or by the owners of other commercial premises (e.g., shopping

malls) as guards

or patrols. Non-specialist Employees in Private or Not-for-Profit

Organizations.

Employees with moregeneral duties who are nevertheless asked to pay attention to security issues (e.g., store clerks watching outfor shoplifters, airlineflight

crews observing passengersfor suspicious behaviors).

Public Police. Circumstances in which public police are paid by private clients for specific services. In some situations, the officers are off duty or working overtime for a private purchaser (as with paid police details). In other cases,police officers are on duty but committed to aspecific policing operation paid for at the agencylevel by a private client (e.g., policing a majorsporting event)

Chapter

Bayley and Shearings

9|

Managing

the

Boundary

Between

Public

and

Private

Policing

143

NIJ-commissioned study (2001) described the plethora of structural

permutations that wereemerging around the world at the boundary between public and private policing.2They reported that the distinguishing features ofthe reconstruction

of policing were(a)

the separation of those who authorize policing from those who doit and (b) the transference of both functions away from government.3 Manytypes of structure are now familiar.

Weseeinformation-sharing

networks straddling

the public and private sectors. Wesee subsets of public policing functions being contracted out to private industry.

Wesee public police officers workingfor private clients under a variety of different

arrangements. Weseenot-for-profit associationsforming, with membership from public and private organizations, allied around some common security-related purpose. Public police also cooperate on a daily basis with security guards and patrols operating in privately owned or quasi-public spaces, such asshopping malls,industrial complexes, private universities or gatedresidential areas. Alsothis is not so new, but nevertheless at the boundary of public/private

policingpolice

routinely

rely on private individuals, co-opted as confidential informants, to assist in their investigations. Giventhe range of different structures, putting together reliable statistics on the overall size of private policing seems an almost impossible task, as any estimate will depend heavily on the definition of whatis covered. One European study (2013)4 estimates an overall European ratio o

31.11privatesecurity personnelper 10,000inhabitantsonly

slightly lower than the public police

ratio at 36.28 per 10,000 inhabitants. In the United States,the number of private security guards overtook the number of uniformed public law enforcement officers in the early 1980s, exceededit by 50 percent by the late 1990s,5 and is now projected to grow from roughly 1 million in 2010to 1.2 million by 2020.6 In Australia, the number of private security personnel outnumbered public police by 2006, and now the ratio could be as high as 2:1.7In Israel, the ratio was between 2:1 and 3:1 20 years ago. Sklansky (2011) and others remark how difficult it is to generate valid estimates for the scale of private policing, and for a variety of reasons: Private police are hard to count, their organizations have atendency toward secrecy, statistics tend to undercount employees who have

somesecurity functions, and calculations omit altogetherthe increasingly ubiquitous practice of public police engaging in private duty.8

Background Skillful

management of the relationships

between public and private policing constitutes a core

competency for police executives. Realizing this and accepting it, however, hastaken the policing profession a good long while, and the route followed to arrive at this point varies by country.

In the United Kingdom,public policefor decadessteadfastlyresisted any association with pri-vate security. Adam White(2010)9 provides a detailed history of private security in Britain from 1945 onward and reveals the decades-long obdurate refusal by the Home Officeto recognize the industry. The emerging industry itselfcomprising security patrols for commercial premiseswanted

mostlylarge firms

that provide guards and

desperately to be regulated. Regulation would

signal recognition and approval and might even provide governmental quality assurancefor estab-lished firms,

whichthey could use as a marketable stamp of approval. Establishing standards for

144

CRIME, JUSTICE,

AND SOCIAL

CONTROL

qualification and conduct would help keepirresponsible or incompetent players out of the market, thereby enhancing the credibility and reputation of the establishedfirms. Butthe British government perceived commercial interests and private involvement as athreat to the essential stateness

of security provisiona

belief deeply embedded in British culture, asin

the cultures of Canada and Australia.10The concept of stateness reflects the view that only state (civic) institutions

can betrusted to provide security whilejudiciously

often conflicting rights of different groups orindividuals.

balancing the multiple and

Anyform of government recognition for

the private industry could compromise or distort the public policing mission;and the government,

even by playingthe role of regulator, wouldbeseenastaking responsibility for the conduct of an industry

whose motivations and competence it regarded asinherently

Things

changed significantly

the role offree

during theThatcher

untrustworthy.

era (19791990).11 Thatcherism

markets and advocated privatization

of state functions.

emphasized

A belief in the merits of

privatization required a higher level of appreciation for the capabilities of the commercial sector and a greater degree of trust in the ability of competitive The

New

Labour

philosophy12 (19942010),

Gordon Brown, carried forward

marketsto sort out the good from the bad.

espoused by Prime Ministers Tony Blair and

many of the themes ofThatcherism,

economics, deregulation and privatization.

Public/private

which endorsed

market

partnerships became all the rage as

mechanismsfor efficient and effective delivery of public services, and so it became natural for government to embrace private security as partners in thefight against crime. Thus endedthe British governments reluctance to engageconstructively withthe private security industry. For the London Olympics in 2012,the contract with G4S,at the time the worlds largest international

security corporation,

wasso extensive that the bungling

became clear that G4Scould not provide enough guardsbecame

of the contractwhen

an international

it

spectacle and

led to the resignation of G4S Chief Executive Nick Buckles.13 According to

White,the United States was never so concerned with stateness

and always

displayed a greater appreciation for the role of commercial enterprise. ... in the USA private security companies are ableto act as ordinary commercial orga-nizations selling ordinary commoditiestheir

activities do not seem to be structured by

state-centric expectations about how security ought to be delivered ... . ... deeply embedded capitalist free-market ideology [...] seemsto permeate most aspects of American life, including the domestic security sector.This ideological persua-sion meansthat marketsignals in the American domestic security sector are not bound up with moral and normative considerations asthey arein many other countries.14

Greatercultural acceptance of private policing does not mean,of course, that concerns do not arise. Concerns arise in the writings of legal, constitutional and democratic theorists seeking to clarify

whatsocietal aspirations the United States should hold, even if its history is different.

Concerns arise as a result of failures, scandals and abusesin the industry, eachinstance of which provides another opportunity to appreciate the risks associated with private policing. Concerns arise when new technologies in the hands of private actors affect civil liberties or privacy in ways that ordinary citizens had not anticipated orimagined. Concerns arise as private policing continues to grow apace, becoming ubiquitous and touching the lives of ordinary citizens on a daily basis.1

Chapter

9 |

Managing

the

Boundary

Between

Public

and Private

Policing

14

Concernsthat have arisen, and which have been discussedin the literature, include the unnec-essary useofforce, abuses of power, denial of accessto public spaces, dishonest business practices, unequal accessto security provision and weak accountability

mechanismsfor private agents.

Nevertheless, as Elizabeth Joh (2006) explains, prevailing official attitudes in the United States have portrayed such problems not as fundamental faults inherent to private policing, buttechnical issues amenable to improved regulation.16

Many of these criticisms, after all, are often directed at

public police agenciesalso. ButJoh, in her examination of private policing, expressessurprise at the superficial nature ofthe attention that concerns about private policing havereceived: Whatis striking, however, is that evenin embryonic form, these concerns hardly regis-ter in discussions about partnerships,

which... are typically

presented with unalloyed

enthusiasm.17 Other commentators point to subtle problems that relate very specifically to the character of private policing. Gary Marx,aslong ago as1987, pointed out the importance of revolving door effects: The [private security] industry,

particularly at the moreprofessional and leadership levels,

is composed ofthousands of former

military, national security, and domestic police agents

for whom public service wasa revolving door. Somefederal agentsleave whenthey face mandatory retirement at age 55. Manylocal police retire at arelatively early age after 20 years of service. However,limited

mobility opportunities and morelucrative private-sec-tor

offers attract many otherslong before retirement. These agents wereschooled and experienced in the latest control techniques while working for government, but are now muchless subject to its control.They

mayalso

maintain their informal ties to those still in public policing. Aninsurance company execu-tive, in explaining the rationale behind hiring former police officers for investigative notesthat if the latter cannot gain direct accessto the neededinformation,

work,

there are their

friends. This opens upthe doorsfor usso wecan work both sides ofthe street.18 Marxreferenced organizations such asthe AssociationofFederal Investigators,the Society ofFormer Special Agentsofthe FBI,the AssociationofRetired Intelligence Officers,andthe International Associa-tion ofChiefs ofPolice. Hestatedthat such organizations maycreate formal andinformal networks that serve to integrate those in public and private enforcement,19and questions whetherformer government agentsemployed in aninvestigative capacity by privatefirms (whom one might normally expect to be better skilled and morepublicly oriented than those with no public-sector experience) should in fact face greaterrestrictions and registration requirements as a result ofthe specialist knowledge and access

they acquiredthrough publicservice.They

mightknow howto hideimproper investigativetechniques

from discovery by public authorities.They

mightretain highlevels of expertise in surveillance.Their

old boy networks

might provide improper accessto information and intelligence.

Atthe leadership levels, private security firms

mayhire senior ex-FBI or Secret Service agents

orformer police chiefs as directors or as other senior executives. In part, no doubt, it is their skills and experience that these privatefirms

value. But such appointments also serve to cloak the for-profit

enterprise with a veneer of public-spiritedness as wellas providing strong personallinks into the law enforcement establishment.

146

CRIME, JUSTICE,

AND SOCIAL

CONTROL

Marx(1987) and morerecently Sklansky (1999)20 haveexamined another set of concerns related to the fact that private police agents, being constitutionally

classed as citizens (unless officially

deputized), can legally dothings that public police cannot.21 For example, there is no constitutional protection against unreasonable search and seizure by private citizens.There is no requirement for private security agentsto issue

Miranda warnings.There

are no exclusionary rules for evidence

obtained through unauthorized searches or questioning conducted by private agents.These factors might heighten anxiety about private agents who could be highly skilled (such as ex-government agents) but subject to less stringent legal constraints and less effective oversight than their public

service counterparts. We might also worry, but in a rather different

way, about private security agents who are

untrained, unqualified, or unprofessional, or those who use unethical practices or excessiveforce. The

affront to civilized society that the behavior of such agents provides

may beless subtle and

more visible to ordinary citizens. Law enforcement officials often complain about private police as untrained,

unprofessional, unregulated and unaccountable police wannabesthat simply getin

the way ofreal police work.22 Marx also raised concerns about the extensive deployment of police details for private clients: During off-duty hours public police mayserve as private police. ... In many big city departments such employment is ajealously protected perquisite. Some departments in effect run private businesses out of headquarters.

While operating on behalf of private

interests they have all the powers of sworn agents and mayeven drive official patrol cars.23 Withinthe United Statesatleast, such concernssubtle to

or otherwisehave

never beensufficient

makeany serious dentin the general enthusiasm for commercial private security.The industry

grew rapidly beginning in the late 1960s. Partnership

wasestablished asthe basisfor interactions

between public and private policing beginning in the 1970s. Ethical issues raised aretreated as peripheral concerns in the United States.The

primary

moti-vation

is to control crime, nowgenerallyrecognized astoo extensiveand complexto be dealt with by public police alone.24 Governments have movedbeyond

passive acceptance to active encour-agement,

trusting that, for the sake of getting some more help, they can overcome the problems associated with the profit motivein commercial security.25 Recentterrorist incidents illustrate

and emphasize the importance

of security collaboration

acrossthe public/private sector divide. Joh (2006) notesincreased emphasis on public/private part-nerships in the post-9/11 world, with contributions of private security guards regarded as essential components of critical national infrastructure bombings in 2013,investigators

protection.26 In the wake of the Boston Marathon

madeextensive and very public use of video surveillance tapes

provided by commercial entities (as wellas photographsand video provided by membersofthe public) to identify and track suspects.27 In 1976, a report on private policing commissioned by the Law Enforcement Assistance Admin-istration declared the sheer magnitude of crime in our society preventsthe criminal justice system byitself from adequately controlling and preventing crime.28 Sincethen, Joh observes, the notion that private security could serve as equal partners with the public police in the co-production

of

security, rather than simply as subordinates providing a complementary service has gained prom-inence.2 Onecould interpret this shift asreflecting a maturing ofthe ideals of community policing,

Chapter

9|

Managing

the

Boundary

wherein the police and the public (including privatefirms) and crime-control

Between

Public

and Private

Policing

work collaboratively to set the security

agenda and then to carry it out.

Bayley and Shearing (2001) also point to a morecomplex range of partnership arrangements that go beyond the outsourcing of specific police functions: The changein policing cannot be understood in customary terms. It is often mischar-acterized, for example, as privatization.

Becausethe distinction between public and

private domains becomes problematic in the new policing, the moreappropriate descrip-tion for whatis occurring is multilateralization.30 The

Law Commission of Canada,in a 2013 report, likewise signals a deeper kind of symbiotic

and networked set of relationships: In the last several decades, we haveseenthe extraordinary growth ofthe private security sector, offering a wide range of services. However,it is not simply the case that private security isfilling a void left by the public police. Today,it is moreaccurate to suggest that policing is carried out by a network of public police and private security that is often overlapping, complimentary [sic] and mutually supportive.

Within this context, it is increasingly difficult to distinguish between public

and private responsibilities.31

So private policingis hereto stay,warts and all. It just needsto be managed.As Bayleyand Shearing (2001) conclude: It is important for governments to continue to safeguard justice, equity, and quality of ser-vice in the current restructuring governments

of policing. To safeguard the public interest in policing,

mustdevelop the capacity to regulate, audit and facilitate the restructuring

of

policing.32

Valuesat Stake A body ofliterature

discussesthe pros and cons of a variety of private policing arrangements, and

recounts the shifting attitudes of public policetoward private security over time. Academicliterature hasfocused slightly moreonthe cons, with particular emphasis onthreats to democratic governance, procedural protections, civil liberties and human rights.33 By contrast, government inquiries

and

reports seemto acceptthe rise of private policing asinevitable andfocus moreon how public police should best exploit and managethe partnership opportunities presented. Much of the debate as to whether, why,and how muchsociety should worry about any specific

private policing arrangementhasfocused on afinite number of coreissues.It wouldtake too long to trace these issues through all of the relevant literature, so this paper does not take on that task. I simply assert the claim (which others may dispute) that the majorissues summarized in the table (presented asfive categories of benefits to be derived from engagement with private policing, and seven categories of risks) cover the vast majority of such debate. Ofthe seven types of risk, thefirst five represent threats to society atlarge, and the last two represent risks that morespecifically affect public police and police agencies.

14

148

CRIME, JUSTICE,

AND SOCIAL

CONTROL

Potential Benefits and Risksof Public/Private Police Partnerships Grounds for Support and Engagement (the Benefits)

Grounds for Skepticism and Concern (the Risks)

1. Lack of Accountability. Private police are not subjectto the sameformal andlegal systems public and privatesectors enhances perfor-mance of accountabilitythat govern public police by sharing complementary skills,knowl-edge agencies. Nevertheless,they maycarry weap-ons,

1. Increased Effectiveness Through Public/Pri-vate Partnerships. Collaboration between the

andresources.Partnerships facilitate

useforce, detainsuspectsandintrude on

information exchange and provide accessto broader networks. All parties can benefitfrom properly functioning partnership arrangements.

the privacy andrights ofindividuals. They may discovercrimes and choose notto inform public authorities. The exerciseof policing powers withoutcommensurate accountabilityis inher-ently dangerousto society.

2. Alignment Withthe Ideals of Community Polic-ing. 2. Threats to Civil Liberties. Manyrestrictions on Communitypolicingis essentiallycollabo-rative the conduct of public police do not apply to pri-vate and involves sacrificing a purely profes-sional police (unless formally deputized by public agenda in favor of one negotiated with agencies). For example, confessions extracted the community. The community, whichincludes by private police without Miranda warnings businesses, should be able to participate in set-ting and evidence obtained through unlawful the crime-control agenda and should be searches conducted by private agents are not encouraged to participate in carrying it out. subject to exclusionary rules. 3. Greater Equality in Protection. The ability of

3. Loss of Stateness.

Policing services and

the betteroffto protectthemselvesby pur-chasing securityoperationsrequirejudicious balancing private protection attheir own expense allowsthe public policeto concentrate their ef-forts on poorer and morevulnerable segments ofthe community. Theoverall effect,therefore, is to raise the floor in terms oflevels of protec-tion for the mostvulnerable.

ofthe multipleand often conflicting rights of different groups orindividuals. Therefore,only state(civic) institutions can betrusted to re-flect the broadsocietal values required to carry out suchfunctions. The particularinterests of private clients andthe for-profit motivationsof commercial providers willinevitably public agenda to some extent.*

4. Accessto Specialized Skills and Technical Resources.The private sectorcan providethe public police with highly skilled and techni-cal specialists that the public sector could not routinely employ. Collaboration withthe private sector thus makes highly skilled and specialist resources available for public purposes.

distort the

4. Threatsto Public Safety. Private police, who are not as well-trained as public police, may display poor judgment or overreact to situa-tions, thus endangering public safety. Citizens may be confused about the status or rights of uniformed security personnel and maythere-fore actin waysthat create danger for them-selves or others.

5. Efficiencies Through Contracting Out. Gov-ernment 5. Greater Inequality in Protection. The growth of operations should seek to exploit the private security exacerbates inequality re-garding efficiencies of private-sector competitive mar-kets citizens accessto protection. Citizens by contracting out any components of their will get the level of protection they can pay operations that can be clearly specified and for. Those who are better off, and are able to carved out, and for which competitive markets purchase or enhance their own security, will exist. reduce their commitment to public policing. Funding and support for public policing will suffer, which will ultimately result in lower levels of protection for the poorer and morevulnera-ble segments of society

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Groundsfor Skepticism and Concern (the Risks) 6. Reputational Concerns. Inadequate perfor-mance orimproper conduct by private security personnel mayproduce reputational orliti-gation risk for public police if the public police have formally recognized, qualified, trained, contracted, orin some other wayrecognized or validated the operations of private operators. Such operators should therefore be kept at arms length. 7. Threats to Police Jobs. Increased availability

oflower skilled andlower paid securityjobs, coupled withthe contracting out of some police tasks to the private sector, mayunderminejob security andlimit career prospectsfor public police. Competitionfrom the private sectoris inherently unfair because oftheir tolerance for lower training standards and accessto cheaper labor. *The term stateness

has been used by other commentators

as an umbrella term to cover a broader range of public-interest

concerns. Several of these concerns, including loss of equity in public security and loss of public accountability, items

on this list.

This paper will hereafter use the stateness

of competing interests

more narrowly on the importance

appear asseparate of judicious

balanc-ing

and values.

Noticethat number 3 onthe Benefits Risks

term to focus

side(Greater Equality in Protection) and number 5 on the

side (Greater Inequality in Protection) both refer to the issue of equity in accessto security

and the resulting effects on the level of protection for the poor and vulnerable.That argument can be madeeither way. Most often in the literature, however, growth in private policing is perceived

asincreasinginequity andthereby harmingthe poor. For example,a 2009 report commissioned by the International

Peace ResearchInstitute in

Norway observes:

Oneof the ironies of private security is that it is least affordable by the very neighbour-hoods that tend to needit the most.... [Private security thus] serves the interests of wealthy and ruling elites. ... Privatized enclaves arein a sense an abandonment of the public realm in security.They represent asecession of the successful from the rest of society.34

Four Scenarios The

Executive Session group discussed the subject of private security at our June 2013 meeting

at Harvard, using hypothetical scenarios specially prepared to serve as the basisfor discussion. These four hypotheticalsillustrate common dilemmas and challengesthat confront police executives, while avoiding the potential embarrassment that could arise from naming any particular

police

department or private organization.The chiefs of police present said that these hypotheticals were each perfectly plausible. In fact, several were eager to recount (under the Sessions conditions of

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equivalent or similar situations from their own experience. It also became clear, as

the discussion proceeded, that each scenario raised a different combination of benefits and risks to be recognized and managed. These four scenarios are presented here, each on a single page.The set offour is also available as a stand-alone document35(without any commentary) for usein atraining environment.

Usingthese

hypotheticals as a basisfor classroom discussion would provide police executives an opportunity to think through the benefits and risks that accompany various types of public/private engagement, and to practice usingthe specific decision sequencethey would needto usein a real-life operational

setting whensimilar situations arise. Suchexercises mightenhance or speedupissue recognition and diagnostic skills. To speed up the analysis, an instructor

maychoose to provide students a copy of the table

(which represents asummary listing ofissues culled from the literature) to prime them regarding the various benefits and risks to look for.

Alternatively, participants could beleft to work out for

themselves, from scratch, whatthe relevant concerns might be.

Decision Sequence Public police examining any private policing arrangement, existing or proposed(and no matter how complex), mightfollow these basic steps: Step 1. First, work outthe potential benefits for the public. In particular, be clear wherethe interests of the private parties involved actually align with, and therefore could be expected to advance, the public interest. Look for the benefits listed in the table. Doesthe scheme bring more players, more technical expertise orincreased resources to existing public purposes? Step 2. Work out whatthe accompanying risks or threats arefor the public. Look for the types of risk listed in the table. Bespecific about the waysin which public interests and private interests diverge. Expect to discover that public/private

alignment of interests can vary considerably on

different matters,even in the context of one specific partnership.

Alignment can be good on some

issues and bad on others atthe same time, even between the same organizations. Step 3. Work out what could be done through the actions or influence of public police (as well as through possible enhancements to regulation, oversight or accountability) to

mitigatethe specific

risks identified in step 2. Step 4. Weighthe benefits and risks, forming an opinion on whetherthe scheme, on balance, can

be defendedand promoted as beingin the publicinterest. Step 5.If it can, clarify the lines of argument that should be usedto support the overall scheme as well asthe actions required by public police to

mitigatethe accompanying risks. If it cannot, clarify

the lines of argument that public police should useto oppose or resist it. There is nothing particularly novel in this decision sequence, but it

might help provide some

structure for police executives whenthey arethinking through complex situations of this type. (This five-step template could readily be usedasstudy scenarios in a training environment.

questions for group discussion ofthe hypothetical

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Notethat this analytic sequence does not provide the kind of bright line that some officials wishto drawa

line that

would neatly separate those functions that mustalways be public from

those that can be private.The idea that public and private security provisions are already deeply intertwined

and interdependent

makesdiscovery or specification of such aline seem implausible.

Rather,this analytic route usesa different brightlineidentifying,

for any proposed interaction,

the issues on which public and private interests will be well aligned; at the same time, carefully identifying

the other issues where public and private interests will naturally be at odds. Deriving

the benefits of alignment while dealing with areas of potential conflict goes right to the heart ofthe

challengeof managingpartnerships effectively.

SCENARIO 1 EliteHostageRescueUnit You are chief of policein a major U.S.city. The countrys

military budgets are shrinking, and many

military units withdrawnfrom Afghanistanface demobilization. Members of an elite special-forces unit, formerly basedin yourjurisdiction, haveset up a new commercial venture offering a range of security services. The company, SafeConduct, has establishedits headquarters adjacent to alocal airstrip and operates two executivejets and two helicopters.It offers executive hostagerescue and security services for majorinternational companies, working mostlyabroad. However,the company always has at least oneteam

at home (i.e., not deployed abroad). The CEO

of SafeConduct offers to provide armed containment and hostage rescue services for your department on a time and materials basis.Fees would be charged only upon deployment, andthere would be no costs to the city for training orfor

maintainingreadiness.

Readiness,he promises,is not anissue. SafeConduct could guaranteeateam on site anywhere within yourjurisdiction within3 hours of notification. Thecompany would provideits own communications system and would,for every deployment, provide a unit commander to act asliaison with policeIncident Command. All ofits unit members have extensive operational experiencein Afghanistan and elsewhere and are proud that they have not lost a hostage in their past10 deployments. Your own hostage rescue unit (a subunit within your SWATteam) spends two days per monthtrain-ing for this role, but has been deployedfor hostage situations onlyfour times in the pastthree years. (SWATis deployed more often, of course, to deal with a broader range ofincidents involving armed, or potentially armed, offenders.) None of the officers currently assignedto the hostage rescue unit has beeninvolved in morethan two actual hostagerescue operations. A deal with SafeConduct would savethe city substantial costsinvolved in training and maintain-ing your own hostage rescue capability. SafeConductteams would participate in training exercises as required (likewise, on a time and materialsbasis). SafeConducts CEOexplainsthat heis prepared to offer these very favorable terms because,giventhe nature of the work his company does, he views good workingrelationships withlaw enforcement andsecurity agencies asa critical strategic asset. The CEOhands you a recent press clipping from England, which describesthe four tough tests that the British Labour Party recently proposed for deciding whichaspects of police work should be contracted out.36Any deal with private contractors should (1) represent value for

money,(2) ensure

security, (3) betransparent and accountable, and(4) foster public trust in the police service. Hesays he is confident that this proposal easily passesallfour tests, especially considering the experience and skills of SafeConducts personnel and the favorablefinancial terms heis offering.

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DISCUSSION OFSCENARIO 1 EliteHostageRescueUnit In the Executive Session discussion of scenario 1,the police chief officers present weretroubled mostly by the issue of accountability, especiallyin relation to the use of potentially deadlyforce. If a public police agency deployed a privatefirm, the public agency would remain accountable for the operations of thatfirm. In complex and dangerous situations, it seems unlikelythat the public agency could exer-cise effective command overthe military unit. The need to exercise effective control would be partic-ularly acutein this case becauseuse-of-force doctrines differ markedlybetween military operations and civilianlaw enforcement. Military units are more oriented toward the use of decisiveforce against enemies andless toward apprehending violators and achieving peacefulresolution. The police chiefs at the Executive Session werequite uncomfortable withthe prospect of being accountable for something they felt they could not adequately control. Thisscenario alsoraises questions regarding which parts of the policing function can reasonably be contracted out. Thefour criteria proposed bythe British Labour Party are certainly relevant, but not sufficiently demanding.In contracting out policing functions, wealso haveto worry about state-ness. Contracting out clearly definable tasks (such as servicing vehicles, monitoring alarm systems, or manningturnstiles at a sporting event) seems quite different from contracting out tasks that require careful balancing of competing interests, the exercise of judgment in determining the public interest, or the use of force against citizens. Havingprivate contractors perform carefully circumscribed guard duties seems more obviously acceptable than havingthem deal with domestic violence calls or attend to neighborhood disputes. Public agencies should contract out only those functions that pass all of the following tests:37 a. Theservices to be purchased are clearly definable and separable from other duties of the public agency. b. Unambiguous performance standards can be set, andthe public agency hascontract oversight staff qualified and capable of monitoring and enforcing those standards. c. Aseries of graduated sanctions can be applied to the contractor, through contract provisions, to correct anyinstances of poor performance. (This avoids the all or nothing trap whenthe agencys only recourse is to take the difficult step of canceling a contract.) d. An efficient and competitive market existsfor the services being purchased.(This guarantees valuefor

moneyand prevents the agency from being stuck with an underperforming provider

due to alack of viable alternatives.) e. The market pricefor the servicesis lower than the cost to the agency of providing the services itself. f.

Stateness is not anissue, asthe service does not require the use of complex judgments about competing interests or the use of force against citizens.

g. Profit motives,coupled with the contract pricing structure, will not produce perverseincen-tives. (If such distortions seemlikely, then item b above becomes of paramount importance in counteracting biasedincentives.) SafeConducts proposal fails to satisfy conditions b, d, andf. If SafeConducts elite unitis better trained and moreexperienced than agency personnel,it seems unlikely that clear performance stan-dards could be established and maintained,especially during a high-intensity operation. In the absence of a competitive

market,once the agency has disbandedits own hostage rescue unit,it maybecom

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too dependent onthe one available supplier. Also,for the reasons discussed above, public police execu-tives will not be comfortable being held accountable for something they cannot sufficiently control. From the table, the mostrelevant risks for this scenario are (1) Lack of Accountability and (3) Loss of Stateness.

The proposal could also poserisk (4) Threats to Public Safety,given the differences

between militaryand civilian use-of-force doctrines. The proposal brings benefits too, asit might produce (1)Increased Effectiveness Through Public/ Private Partnerships, (4) Accessto Specialized Skills and Technical Resources,and (5) Efficiencies Through Contracting Out. Participantsin the Executive Session discussion, even whilethey were unwilling to accept the pro-posal as offered, wereeager tofind a wayto realize these benefits. (As one police chief commented, I wouldnt kick this one to the curb.) They discussed possible variations of the proposal, such as buying training from SafeConduct and renting technical equipment, while ensuring that the use of force in operational settings remained the preserve of public police officers. Giventhe infrequent nature of hostage situations andthe highly specialized nature of the related training, participants werealso keen to realize efficiencies of scale. To dothat, they wanted to explore other mechanisms,such asthe creation of regional consortia, shared services modelsspanning multiple jurisdictions, or even buying specialist services from a bigger police department close byall that would preserve the essential stateness

mecha-nisms

whenit cameto the use of deadlyforce.

SCENARIO 2 Neighborhood Watch You are chief of police in a major U.S.city. The population of the city is racially diverse, but largely segregated at the neighborhood level. Your Community Outreach Program collaborates on aformal and frequent basis with 27 Neighborhood Watch Associations(NHWAs), which your Program Officers helped establish. Your deputy chief, whois African-American, has an 11-year-old son, Jason. Jason hastold his dadthat he and all the other black kids in the Montvaleneighborhood nolonger dare walkthrough Comptona predominantly white neighborhoodon

their wayto andfrom school. The quickest route from

Mont-vale

to the (newly integrated) school lies through three pedestrian walkwaysthat pass underneath the highwayseparating the two neighborhoods. The Compton NHWA patrols apparently set up checkpoints close to these walkwaysand question any kids who pass by,sometimes askingthem to open up their backpacks. The Compton NHWA patrols openly carry weapons.The state hasa stand your ground law. There have been no reports of violence or of the Compton patrols actually using physicalforce. But, clearly, the Montvaleschoolchildren areintimidated, and manyhave chosen to uselonger routes to school, adding atleast 15 minutesto their journey each way. Your senior managementteam has discussedthe situation. Your general counsel advisesthat the neighborhood patrols, provided they do not use physicalforce, are merelyacting as private citizens and have not committed any offense. Also,they cannot be held accountable should their patrol patterns suggest racial bias becausethey are not public police and have not beenformally deputized. Counsel advisesthe onlylegal remedy lies in civil lawsuits

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The captain in charge of the Community Outreach Program has discussedthe situation with the Compton NHWA coordinator, who denies any racial biasand reports that focusing on schoolchildren passingthrough has eliminated a significant rash oflate-afternoon

domestic burglariesin the Compton

neighborhood. Your Compstat director confirms this wasa growing problem andthat it evaporated over recent weeks. In the wakeof the Treyvon Martintragedy, 20 of your 27 NHWAs havevoluntarily agreed to stop carrying any weapons and to strictly limit their activities to an observe andreport

role. Your Deputy

hassuggested an urgent policy change, wherebythe department would officially and publicly dissociate itself from any NHWAsthat choose not to adopt this restriction. Whileyou are considering your options, you alsolearn from your public relations officer that the Montvale NHWA,incensed bythe intimidation and humiliation their children havesuffered, and who also openly carry weapons,are considering escorting their children through Comptonin the mornings and afternoons. The citys majornewspapers wantto know how your department plansto deal withthe deteriorating situation.

DISCUSSION OFSCENARIO 2: NeighborhoodWatch Thesecond scenarioillustrates

manyof the dangers associated with vigilantism and aggressive neigh-borhood

watch patrols. Theliterature on private policing andsecurity clearly alerts usto these dangers. In a 2013article called Watching the

Watchers:The Growing Privatization of Criminal Law Enforce-ment

and the Needfor Limits on Neighborhood WatchAssociations, Sharon Finegan warnsthat ... neighborhood watch members wield significant authority, but they lack the training andlimitations to which police are subject.38 Finegan proposes statutory controls that wouldlimit the ability of neigh-borhood watch membersto confront suspects, mandatetraining, and expand exclusionary rules to bar the admission of evidence seizedillegally by private citizens engagedin law enforcement activities. But using regulation as the mechanismfor protecting civil liberties

might befraught with difficulties, evenif

such legislation could ever pass. Neighborhood watchis often conducted by volunteers, manyof them self-appointed or belonging to loosely formed informal networks. Anassociation

might not actually

existin anyformal sense and would therefore be hard to control through regulatory oversight. More-over, the introduction

of stringent requirements

might deter manyvolunteers. Hence,the only controls

generally available mightindeed be those pertaining to the conduct of ordinary citizens. Finegan also points out that the procedural rules andlaw usedto limit racial profiling by police do not extendto private security companies nor to ordinary citizens. Companies maytrain their staff to be unbiased, but such training is mostunlikely to reach neighborhood watch groups. Burdened by (and perhaps unaware of) their ownindividual biases,coupled withthe lack of procedural safeguards or training, neighborhood watch members mayact ontheir biasesand target individual suspects on the basis of race or ethnicity. ... While more and moreprivate actors are performing the tasks previously associated with police officers, constitutional safeguards have not been extended to the conduct of private actors.3

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In the scenario, several risks are clearly apparent. Therelevant onesfrom the table are: 1. Lack of Accountability.

Asthe police departments general counsel observes,the onlyforms

oflegal accountabilitythose

pertaining to private citizensare

not adequate for governing

the behavior of the neighborhood patrols. 2. Threats to Civil Liberties. Armed patrols searching backpacks andintimidating schoolchil-dren to the point wherethey will choose circuitous detours rather than risk an encounter is clearly not acceptable. 3. Loss of Stateness.

Weclearly cannot trust the neighborhood watch volunteers in Compton

to balancethe multipleand conflicting rights of different groups orindividuals. They aretotally focused on the security concerns of their own community and paylittle heed to others rights or the importance of any broader public tranquility. 4. Threats to Public Safety. The situation is deteriorating, andthe treatment of the Montvale children by Compton patrols is producing genuine hostility between communities and could evenlead to conflict between armed groups. 5. Reputational

Concerns. The police department, byvirtue ofits working collaboration with

the neighborhood watch groups, becomes atleast in part responsible for their conduct. It is evident that this situation scores very heavily onthe Risk

side, triggering five of the seven

majorcategories of concern. Butit also shows some potential benefits, which mayinclude increased ef-fectiveness in crime control (Benefits: (1) Increased Effectiveness Through Public/Private Partnerships) and engagement of the community in setting the agenda and achieving results (Benefits: (2) Alignment Withthe Ideals of Community Policing). Clearly,in this scenario the risks outweigh the benefits. But that does not necessarily meanthat the police should automatically dissociate themselves from any patrol groups whosetactics seem unac-ceptable. Theyshould not (like the general counsel) throw uptheir hands and say we have nolegal wayto control them. The police, by virtue of their relationship withthese groups, can exertinfluence over them and usethat influence to re-establish public priorities. Police might emphasize withthese groups, and with the broader public,that protecting life and liberty takes precedence over protecting property, andthat to get any support from the police depart-ment, a group formed to protect a neighborhood should also take responsibility for preserving safety and protecting civilliberties

withintheir neighborhood andfor anyone passingthrough it. Otherwise,

that groups missionis inherently unbalanced and not sufficiently public. The police mighteven makeit clearthat they willintervene wheneverthe actions of a neighborhood watch group elevate one neigh-borhoods concerns at the expense of a broader and more balanced public agenda, or endanger public safety through the exercise of poor judgment.

SCENARIO3 State Safety Association You are chief of a U.S.state police department. The Governors chief of staff calls to ask your opinion of a proposal that has been presented to the Governor bya consortium comprising three large security companies that, betweenthem, share 80 percent of the private security industry revenues for the whole state. They propose to establish a State Safety Association asa vehiclefor enhanced collaboration be

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tween the private security industry and public police. The Governor believesin the value and effective-ness of public/private partnerships and has championed their usein manyareas of public policy. Underthe plan, membersof the proposed State Safety Association would be ableto: Sendselected employees to various courses offered bythe State Police Academyand havethem certified by the academy as proficient in the relevant subjects. Publicly displaythe phrase Member

of the State Safety Association ontheir insignia, docu-ments

and websites. Developa deeper collaboration with the state police and otherlocal police agenciesin the form of threat-based intelligence-sharing networks. Eachcompany would pay a substantial annualfixed-fee subscription in the form of unrestricted revenue for your academy. Each would also pay variable fees per student/course attended byits staff, with fees set high enough to be an attractivefinancial proposition for the state. Allthe details, of course, remain open to negotiation. Allthree members of the consortium haverecruited retired senior police officers to sit on their gov-erning boards or hold executive-level positions. Thelargest company hired your predecessor (former chief of state police), whom you know well,asits CEO.Allthree companies profess their commitment to public safety and their desireto make majorand high-quality contributions to public security. Whenthe ideafirst surfaced, police unions werevehemently opposed.In a public statement, the Patrolmans Association President declared, Corruption is defined asthe abuse of public resources for private gain. Usingthe resources and staff of the State Police Academy to advantage private for-profit commercial companiesfits the bill exactly. Such a deal would be blatantly corrupt. Noting union opposition, the consortium

membersthen offered to include the provision that

each membercompany within the association would be obliged to offer paid details for off-duty state police officers at an aggregatelevel not to fall below 5,000 hours per year per company. This would be valuable, a consortium spokesman said, to guaranteethe quality and depth of the relationship. The presence of public police officers on company projects will enhancethe professionalism of our own staff and keep usfocused on critical public purposes. The Governoris eagerto understand your views. Several other security companies have complained to the states Commerce Department that this scheme would disadvantage smaller and newer players within the security industry and constitutes anti-competitive trade practice by the big three.

DISCUSSION OFSCENARIO 3: State Safety Association Onits face, the proposal to create a State Safety Association mayscore some pointsin the Benefits column: (1)Increased Effectiveness Through Public/Private Partnerships, (2) Alignment Withthe Ideals of Community Policing,and possibly(4) Accessto Specialized Skills and Technical Resources. The specific benefits of the proposal are all rather obvious: better training for private security per-sonnel, substantialfinancial support for a public training facility, enhancedinformation andintelligence sharing across the public/private divide, andthe prospect of enhanced effectiveness through operation-al collaboration between public police and membersof the association

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However,the proposition described threatens to seriously muddythe waters between public and privateinterests, and thereby presents some serious andrather subtle threats to the stateness

of

security provision (Risks: (3) Loss of Stateness). Allthe risks associated with revolving door situations (discussed above) are evident. Public police executives mightfind their loyalties to old colleagues(now in corporate roles) in conflict with their public responsibilities. They mayhavetrouble saying no

whenthey should. Some police officials, con-templating

their future prospects and potentially lucrative career options, might be tempted to grant favors or simply get too close to the commercial companies for-profit agendas. This scenario also serves to remind police executives that large corporations are sophisticated whenit comes to strategy. As one of the participants in the Executive Session commented, ... you can deal with the neighborhood watches... you maybe even ableto deal with the businessimprovement districts andthe universities youve got, but can you deal with these multi-billion dollar companies that are going to come in and offer you deals,and all the rest of it, and you really think youre still in control? Forming an association of the big three

establishedfirms and creating a substantialfinancial

hurdle for entry (the requirement to provide an unrestricted subsidy to the police college) could well be designed as an anti-competitive strategy, a way of marginalizingor creating a disadvantagefor newer and smaller companies. The use ofinsignia that signal the governments blessingcreates significant rep-utational risk for those public agenciesand public officialsinvolved (Risks:(6) Reputational Concerns). The unionfirst cries foul, worried that private agents giventhe same training as public police could nolonger be denigrated as poorly trained substitutes for real police (Risks:(7) Threats to Police Jobs). The union atfirst seizes the moralhigh ground (this is corruption),

butis then placated whenthe

corporations offer a bribein the form alucrative package of paid details for public police officers. Perhapsthe most worrying aspect of this proposalis that there seems to be no wayout ofthe arrangement, no available exit. The corporations would haveit so. The police college will become dependent on the corporate funding stream. Therevolving door willkeep turning. Thelines between public and private purposes will becomeincreasingly blurred. Also, whenan important

decisionlooms

that finally reveals the misalignmentbetween public and privateinterests, the public decision-makers may find themselves compromised, too deepin the muddied watersto be ableto extract themselves and pursue a clear public agenda. Thisis how corruption in the public sector often begins. Clarityregarding public policing purposes demands some reasonable distance between public and commercial agendas.It seemsjust fine, highly desirablein fact, for public agenciesto engage with private organizations through partnerships governed bysuitably crafted frameworks and protocols. But public police who becomeinextricably intertwined

with commerce, as withthis proposal, would seem

to be askingfor trouble in the long term.

SCENARIO 4 Private UniversityPolice Department You are chief of policein a majorcity onthe WestCoast of the United States. The campus of a private universitylies entirely within your city limits. The chief ofthe university police department (UPD) an-swers directly to the universitys general counsel, who answers directly to the university president. The relationship between your department andthe UPDhas always been excellent

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Street robberies in the vicinity of the campus haveincreased significantly over the pastthree years. Manyvictims are university students. Attacks, manyof them involving a weapon,have occurred both on and off campus. Students are routinely advised not to resist and to give uptheir possessionsif con-fronted. Most of them do so, and robberies haveinvolved few injuries and no fatalities. However,in one assaultthat occurred off campus,two female Chinesestudents were badly beaten withtire irons and are now hospitalized withserious injuries. Detectives havesuggested that these particular students might not have understood whattheir attackers wereasking for. Your public relations officer has beenfielding

mediainquiries about this particular attack. She asks

for your advice becauseshe has now been asked by her counterpart at the UPDto play downor preferably not mention at allthat

the victims werestudents at the university. The UPDpress officer

hasstressed that there wasreally no link between the crime and the fact that these wereuniversity students, giventhe off-campuslocation

wherethe attack occurred.

Your public relations officer shows you the latest annual Clery Act40report from the university. An appendix showsfigures that clearly reveal an escalating trend in robberies and reported rapes over the past three years. But the text of the report fails to mentionthose phenomena and presents a reassuring picture of a safe environment with declining overall crime rates. Your public relations officer also shows you a recent article from a student-run newspaper, prompted bythe trend in the rapefigures. Student reporters hadinterviewed the universitys general counsel, whosaid rates remained verylow com-pared with national averagesand that he believedthe risein the complaint rate wasa direct result of a campaign run last year bythe Student Welfareand Advisory Services, which encouraged sexual assault victims to come forward to university authorities. Apparently,the universitys admissions office has been getting moreand moreinquiries about campus safety from college advisors at feeder schools. Also, withthe local economyin the doldrums, the university has been aggressively pursuing foreign enrollments, particularly from Asia,and would not want any publicity that directly linked the university with this recent and particularly vicious attack or with the escalating pattern of assaults androbberies in the vicinity. The college hasjust mailedits annual batch of admission offers and wantsto avoid any adverse publicity, especially publicity that mightreach China. Suchadverse publicity could lower the yield41on their offers.

DISCUSSION OFSCENARIO4: Private UniversityPolice Department Thefourth scenario provides a clear reminder that public and privateinterests can be well aligned with respect to some issues and very poorly aligned (even diametrically opposed) withrespect to others. Whatthat means,in practice,is that a specific public/private relationship (in this case,the relationship betweenthe public police agency and the private university police department) might provide oppor-tunities for fruitful collaboration (Benefits: (1)Increased Effectiveness Through Public/Private Partner-ships and (2) Alignment Withthe Ideals of Community Policing) at the sametime asit the publicinterest

mayendanger

when nonaligned public and private agendas become entangled (Risks:(3) Loss of

Stateness). This occurs oftenin other regulatory domains, where a regulated industrys incentives align with public purposesin some areas but not in others. In civil aviation, for example, businessinterests and public interests align extremely closely onflight safety issues. A majorplane crashis not only a huma

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tragedy; it is also a business catastrophe. Airlines,if held culpable for a crash, often end up going out of business,are taken over, or at least haveto changetheir name. The businesscosts of a safety failure are enormous. Hence wesee quite naturally, on safety issues, a rather close and collaborative working partnership between regulators and the regulated. But what about consumer protection issues for airline passengers?Should wetrust the airlines private incentives with respect to practices such as aggressiveticket pricing, gouging consumers with excessiveor unexpected baggagefees,imprisoning them too long in planes onthe tarmac, endangering their long-term health by providinginadequate leg room42 or makingit impossible orinconvenient for them to usetheir frequent flyer

miles?Onthese and other consumer protection issues, the morethe

airlines can get away with,the more profitable they become.43 Similarly,in bankingregulation, the nature of the relationship between regulators and the regulated varies bythe type of risk. Prudential regulation (ensuring the solvency offinancial institutions) serves the long-term interests of the banks as well asthe stability of the overallfinancial system. By contrast, on consumer protection issues (e.g., cheating customers, deceptive marketing,imposing excessivefees) the relationship is more naturally adversarial, as public and commercial interests diverge. Considering the nature of the relationship between public and private police, Joh (2006) puts this beautifully: ... private police neither work under the direction ofthe public police, nor cooperate fully even whenthe public police would wishthem to. Instead, private police managers cooperate withthe public police when doing so serves their interests or, morespecifically, their clients interests. Thus,passive non-cooperation is also animportant aspect of the relationship between the two groups.44 Whenscenario 4 wasdiscussed at the Executive Session,several of the police chiefs present guessedthat this scenario had beenfashioned based on the conduct of specific universities within their jurisdictions. In other words,the generalfeatures ofthis story (putting aside the precise details) seemed commonplace. I would argue that the tensions describedin this scenario will always be commonplace, simply be-cause they are perfectly natural and therefore predictable. Theystill haveto be managed,of course. Onissues of safety, both on and off campus,the interests of public police andthe privateinterests of the university are almost perfectly aligned. Less crime is goodfor everybody, and public police and university police willtherefore work quite welltogether toward that end.If they do disagree on crime control, the disagreements will morelikely be about the suitability of meansthan about the desirability of ends.45 But what about transparency regarding levels of crime? Herethe interests diverge markedly.The public interest demandsfull and free disclosure, without any bias or editorial framing, sothat members of the publicincluding

students and prospective studentscan

know the risks, adjust their actions ac-cordingly,

and properly assessthe performance of relevant policing agencies (both public and private). Butthe university, particularly whentrying to attract students, has a natural and strong interest in painting a rosy picture. University police maytherefore betempted to downplay, de-emphasize or even maskreality. That explainsthe needfor federal legislation (the Clery Act,1990) that governs the frequency and nature of disclosures regarding crimes on or near university campuses andinvolving uni-versity students. Regulation wasnot necessaryto makethe university care about safety, but regulation

15

160

CRIME, JUSTICE,

AND SOCIAL

CONTROL

wasrequired to makethem care about transparency. Thelesson for public policeis clear. You dont have onerelationship with any private policing orga-nization; you have different relationships with them on different issues. Onsome mattersthey are your natural ally, andinteractions

will be cordial and cooperative. On other issues, you musttreat their moti-vations

with suspicion, expect to see something less than full disclosure, and be prepared to intervene whenthey adopt tactics that endanger public safety, threaten civilliberties, or pursue privateinterests at the expense of the broader public good. There will always besome issues wheretheir interests are diametrically opposed to the publicinterest. Public police needto be adept at recognizing those areas, be prepared to enforce compliance withregulatory requirements, andtake it upon themselves to actin a waythat willrebalance the public agenda.

Conclusion Private security and private policing have becomeinescapable. It is nolonger usefulfor public police

to hangonto their own regrets aboutthesetrends, bemoantheir loss of marketshare, or pretend that public/private partnerships cannot be useful.There are too manyreasons to embrace the idea that private contributions can and should contribute to public purposes. Butthat does not meanthat the risks associated with private policing can beignored. for concern remain.

Our conclusion

and in each situation in

Grounds

mustsurely bethat each one ofthese grounds for concern,

which they arise, represents workto be done by public police.The

police

profession should treat these concerns as policy and operational challenges to be managedrather than as grounds for disengagement. As public police engagein partnerships and networked relationships involving

private and

not-for-profit organizations,they becomelessthe deliverersof security and morethe orchestrators of security provision. Public police need to understand clearly the motivations and capabilities of each contributor, develop an understanding of the wholesystem and whatit provides, and dotheir utmost to makesure that overall provision ofsecurity squares with their public purpose. As one Executive Session participant put it: ... public leadership requires you to be able to lead and managepublic functions, both with the operational capacity youve got and with the wider operational capacity you need. Thats

the test of public leadership ... if you keep wanting to only do policing through

people whoreport to you, whoyou can discipline, and you can hire andfire,

were dead,

were never going to getthe job done. Taking responsibility for the overall provision includes taking responsibility for the distribution of protection across society. It is the responsibility of public policeto in different neighborhoods, tofind

monitorthe quality ofsecurity

out whois well protected and whois not, and tofind

a wayto

address the deficits. It is alsothe responsibility of traditional

of public police to look aheadto

pay attention not just to the parts

police function that they mightlose, but also be prepared to explore new areastha

Chapter

9|

Managing

the

Boundary

Between

Public

and Private

Policing

public police have mostlyleft to the private sector. Law enforcement has engaged relatively little with identity fraud, financial fraud, health care fraud, other white collar crime and Internet-based crimes. Security threats, familiar

and unfamiliar,

will surely demand an expanded repertoire of

collaborative arrangements. It is myhope that this paper provides a clearframework that police executives can useto examine their interactions

with private policing and to determine morereadily how to maximizethe benefits

to society while minimizing the associated risks.

Notes 1. The police departments in manystate-run (i.e., public) university systems havethe same authority and training in

standards

as public police and are accountable

many private university

accountable 2. Bayley,

settings

answer directly to university

Police departments

administrators

and are not formally

to any public official.

David

H., and Clifford

D. Shearing,

and Research Agenda, Institute

to public officials.

of Justice,

Monograph,

The New Structure of Policing: Washington,

Description,

DC: U.S. Department

Conceptual-ization,

of Justice,

National

NCJ 187083, July 2001.

3. Ibid., vii. 4. van Steden, Ronald, and Jaap de

Private Security, which provides 5. Sklansky,

Waard, Acting

Security Journal 26 (2013): 294309,

a country-by-country

David

(2011): 111136,

Like Chameleons:

A., Private

Policing

On the

published online,

McDonaldization

of

May13, 2013, seetable 1,

breakdown. and Human

Rights,

Law

& Ethics of Human Rights 5 (1)

114.

6. Stein, Chris, As

Cities Lay Off Police, Frustrated

Science Monitor (April

Neighborhoods

Turn to Private

Cops,

Christian

5, 2013).

7. Sarre, Rick, and Tim Prenzler,

Private Security and Public Interest:

Exploring

Private Security Trends

and Directionsfor Reformin the New Eraof Plural Policing, Report, Canberra, ACT: Australian Research

Council,

8. Sklansky, Private 9.

White, Adam, England:

10. Ibid., 11.

Policing and Human Rights, 116.

McMillan,

Regulation,

Reform and Re-Legitimation,

Basingstoke,

2010.

181182.

Minister from New

onward. from

April 2011: 5, 14.

The Politics of Private Security:

Palgrave

MargaretThatcher

12. The

LP0669518,

wasleader

of the

Conservative

Party in the

U.K. from 1975 to 1990 and Prime

1979 to 1990.

Labour

philosophy

was used asthe

British

Labour

Partys campaign

platform from

With Tony Blair and Gordon Brown as Prime Ministers, the Labour Party held power

1997 to 2010.

13. Chan, Szu Ping, and agencies, Timeline: Unfolded,

Daily Telegraph,

How G4Ss Bungled Olympics Security Contract

May 21, 2014. Available

online:

http://www.telegraph.co.uk/finance/

newsbysector/supportservices/10070425/Timeline-how-G4Ss-bungled-Olympics-security-con-tract-unfolded.html.

14.

White, The Politics of Private Security:

Regulation,

Reform and Re-Legitimation,

182.

1994

16

162

CRIME, JUSTICE,

15. The

AND SOCIAL

CONTROL

Bureau of Labor Statistics projects the number of private security guards to grow by 19 percent

from 1 million to 1.2 million by 2020. Private in

Security Industry

Poisedfor

Highest Growth Rate

Nine Years, PRWeb, March14, 2012. Available online: http://www.prweb.com/releases/2012/3/

prweb9277026.htm. 16. Joh, Elizabeth E.,The

ForgottenThreat:

Private Policing and the State, Indiana Journal of Global

Legal Studies13 (2) (2006): 357389, 377. 17. Ibid., 388. 18.

Marx, Gary T., The Interweaving

of Public and Private Police Undercover Work, in C.Shear-ing

and P. Stenning, Private Policing, Newbury Park, California: Sage Publications, 1987. Quotes attributed to Ghezzi, S.,A

Private Network of Social Control: Insurance Investigation

Units, Social

Problems 30 (5) (1983): 521531. 19.

Marx,The Interweaving

of Public and Private Police Undercover

Work, 5.

20. Ibid., 7. 21. For a comprehensive study ofthe legal and constitutional issues surrounding the conduct of private police and various approaches to regulating their behavior, see Sklansky, David A., The Police,

Private

UCLA Law Review 46 (4) (1999): 11651287, 12451246.

22. van Buuren, Jelle, and Monica den Boer, A Reportonthe Ethical Issues Raisedbythe Increasing Role of Private Security Professionalsin Security Analysis and Provision, Oslo, Norway: International Peace ResearchInstitute,

December 2009, 51, citing Schneider, S.,in Privatizing

Enforcement: Exploring the Role of Private Sector Investigative Laundering, 23.

Policing and Society16 (3) (2006): 285312,

Economic Crime

Agenciesin Combating

Money

305.

Marx,at note 9.

24. van Buuren and den Boer, A Report onthe Ethical Issues Raisedby the Increasing Roleof Private Secu-rity Professionalsin Security Analysis and Provision, 51. 25. Ibid., 51. 26. Joh, The

ForgottenThreat:

Private Policing and the State, 388.

27.The same is true of the London Tube bombings in 2005. 28. U.S. National Advisory Committee on Criminal Justice Standards and Goals, Report ofthe Task Forceon Private Security, Washington, DC: U.S. Department of Justice, 1976, 18. 29. Joh, Elizabeth E.,The University of California,

Paradox of Private Policing,

UC Davis Legal Studies Research Paper Series,

Davis: School of Law, Research Paper 23, January 2009, 69.

30. Bayley and Shearing, The NewStructure of Policing: Description, Conceptualization, and Research Agenda,vii. 31. Canadian discussion of the public/private interface has usedterms such asplural the safety and security

policing

web to describe collaborative contributions to a safe environment.

and See Law

Commission of Canada,In Searchof Security: The Future of Policingin Canada, Ottawa, Ontario, Canada: Law Commission of Canada, 2013, xiii. 32. Bayley and Shearing, The NewStructure of Policing: Description, Conceptualization, and Research Agenda,viii. 33. Sklansky provides a seminal discussion of the underlying legal issues. See Sklansky, David A.,The Private Police,

UCLA Law Review 46 (4) (1999): 11651287, 12451246.

that the language of human rights Private

For a discussion of the role

might playin discussions of private policing, see Sklansky, David A.,

Policing and Human Rights, Law & Ethicsof Human Rights5 (1) (2011): 111136

Chapter

9|

Managing

the

Boundary

Between

Public

and

Private

Policing

16

34. van Buuren and den Boer, A Report onthe Ethical Issues Raisedbythe Increasing Roleof Private Secu-rity Professionalsin Security Analysis and Provision, 3132. 35. Asingle pdffile containing all four hypotheticals is downloadable from the Program in Criminal Justice website: http://www.hks.harvard.edu/programs/criminaljustice/research-publications/ executive-sessions/executive-session-on-policing-and-public-safety-2008-2014/publications. 36. Ross, Tim, Rush to

Hire Private Companies for Public Policing Will

be Halted,

The Telegraph,

October 3, 2012. 37. For detailed analysis of the factors influencing Privatization

privatization

decisions, see Donahue, John D., The

Decision: Public Ends, Private Means, New York: Basic Books, 1989. Also, Waldersee,

Robert, and Michael Nest,Corruption Challenge,

Risksin NSW Government Procurement: The

Risk Man-agement

Keeping Good Companies 64 (4) (May 2012): 207211. This list is the authors

own compilation, derived from a variety of sources and discussions on public-sector integrity and risk

management.

38. Finegan, Sharon, Watching

the

Watchers: The

Growing Privatization of Criminal Law Enforce-ment

and the Needfor Limits on Neighborhood

Watch Associations,

University of Massachusetts

Law Review 8 (1) (2013): 88134. 39. Ibid., 125, 130. 40.The

Clery Act (1990) requires colleges and universities to publicly disclose campus crime rates on

an annual basis and specifies precisely which crime types 41.The proportion

must bereported.

of students offered admission whosubsequently accept the offer.

42. Cramped conditions on longflights

exacerbate the risk of deep-vein thrombosis.

43. Reputational concerns, for reputable airlines, act to some degree(and only in competitive to realign public and private interests 44. Joh, The

ForgottenThreat:

markets)

with respect to consumer protection issues.

Private Policing and the State, 386.

45. Disagreements about meansoften arise because the university is inclined to provide a protective and somewhat permissive environment for students, and eventolerate or manageoffending without recourse to law enforcement.

University police canfind themselves complicit in concealing offenses

from the attention of public police agencies.

References Bayley,

David

H., and Clifford

and Research Agenda. Justice,

D. Shearing.

Monograph.

The New Structure of Policing:

Washington,

DC: U.S. Department

Description, of Justice,

Conceptualization, National Institute

of

NCJ 187083, July 2001.

Joh, Elizabeth

E. The

Forgotten Threat:

Private Policing

and the State. Indiana Journal

of Global Legal

Studies 13(2) (2006): 357389. Marx, Gary T. The

Interweaving

of Public and Private

Police

Undercover

Work, in

C. Shearing

and P.

Stenning, Private Policing. Newbury Park, California: Sage Publications, 1987. Sklansky,

David

A. The

Private Police.

Sklansky,

David

A. Private

Policing

and

UCLA Law Review 46 (4) (1999): 11651287. Human Rights.

Law & Ethics of Human Rights 5 (1) (2011):

111136. White, Adam. The Politics of Private Security: England:

Palgrave

McMillan,

2010.

Regulation,

Reform and Re-Legitimation.

Basingstoke,

164

CRIME, JUSTICE,

AND SOCIAL

CONTROL

Author Note Malcolm

K. Sparrow is professor

Government

at

Harvard

of the

Practice of Public

University. This

bulletin

Management at the John

was written for the Executive

F. Kennedy School of

Session on Policing

and

Public Safety at the school.

The

author acknowledges

the valuable support

of Anthony

Bator in providing

aliterature

search and research

assistance. He also acknowledges the helpful feedback and suggestions of David Bayley, Christine Cole, Ed Davis,Thom

Feucht and Darrel Stephens,

based on earlier

drafts

ParT IV

Courts, Adjudication, andSentencing

16

Introduction

C

ourts are institutions for administering justice consistent with due process.They are not

the only form of settlement-directed talking

designedto solve disputes. Others include

mediation,in which a neutral trained mediator negotiates betweentwo conflicting parties

and tries to bring them to a resolution.

Arbitration involves both parties agreeing in advance to

submit a disputeto a neutral third party, an arbitrator orjudge, wholistens to both sides of a case

andimposes a binding settlement on both partiesthat usuallysplits their differences.Adjudica-tion is a method of dispute settlement whereajury of an accuseds peers decide on the guilt or innocence ofthe accused based ontheir interpretation

of statutory law as explained by the judge.

The judge decides on sentencing based onthe law and sentencing guidelines. Adjudication is the method used by the criminal justice system in

Westerndemocratic societies.

The criminal law in the United Statesis entirely statutory,

meaningit is written law (Solan,

2003, p. 1281). In other countries such as England, a common law

exists, whichis based on

previous court decisions.The court system in the United States consists oftwo types of courts: trial courts and appellate courts. Travis (2015) distinguishes between trial courts which are

fact-finding bodies whosejob it is to determinethe facts of a case and appellatecourts which are law-interpreting followed

bodies whosejob it is to determine if the laws werecorrectly applied and

(p. 207). In other wordstrial courts deal with the substance of the law and whether

it has been violated, whereasappellate courts deal with whetherthe correct principles and due process procedures werefollowed by the trial courts. Courts are concerned with criminal law, which specifies the acts or omissions that constitute crime (Lanier,

Henry, & Anastasia 2015, p. 15). Courts are based on due process principles,

which provide protection for the individual

against the arbitrary or unfair use of state power. It

is important to distinguish between substantive and procedural due process. Substantive due

process means that thelaws themselvesshould bereasonableand clearly articulated attemptsto achieve a government objective butthat they are not excessively burdensome on peoples rights. So, under this dimension of due process, laws are subject to scrutiny by the courts to ensure they too are fair. Procedural due process refers to the process that requires various elements to bein place before a government agency, such asthe police, can proceed with any coercive action against a person.This includes being notified ofthe charge and being given the opportunity for afair hearing before a neutral party, such as a judge. In the United States due process includes the 16

168

CRIME, JUSTICE,

AND SOCIAL

CONTROL

following four basic elements: (a) equality between the parties (i.e., prosecution and defense); (b) rules protecting the defendant against error; (c) restraint of arbitrary power; and (d) presumption of innocence.

Due process not only includes the requirement that the defendants beinformed

of

the charges against them but also that they be given the right to appeal the verdict. The jury trial processin criminal justice starts with an indictment

ofthe accused whois then

scheduledfor arraignment in court before ajudge where he or sheis informed ofthe charges, advised of his or her rights as a defendant, and askedto enter a plea to the charges. If the accused pleads guilty and the judge acceptsthe plea,the case movesto sentencing. However,if the accused pleads

innocent andthejudge rejectsthe plea,the caseproceedsto trial.The judge mayalsoreject a pleaof guilty if he or she believesthat the defendants plea has beenthe result of coercion, in a plea bargain for example. Atthe arraignment the defendant hastwo options: either to request atrial byjury or to askfor the caseto be heard by ajudge without ajury,

whichis known as a bench trial.

Here,the

judge listens to the case by the prosecution and by the defense, decides the facts of the case, and determines a verdict, either acquitting the accused or convicting him or her and then pronouncing sentence. At ajury trial the caseis heard before ajury ofthe accuseds peers who are thefinders of fact, guilt, or innocence based on the case madeby the prosecution and defensein relation to the law asinterpreted

by the judge.The accused has the right to appeal the verdict or sentencing.

Criminal courtsin the United Statesoperateat both afederal and statelevel. Federalcourts include district courts, circuit courts of appeals, and the U.S.Supreme Court. State courts include state trial courts, intermediate courts of appeals, and state supreme courts. In addition there are specialized courts such as drug courts, mental health courts, domestic violence courts, sex offender courts, prostitution courts, and community courts, among others. Important criminal

court process are the prosecutorial function

components ofthe

and how prosecutors decide on charges

against an accused offender and the function of defense attorneys, as well as that of the judge and the judicial process. The due process principles ofthe court can be undermined by various other processessuch as

plea bargaining. Pleabargainingis how over 94% of criminal casesare settled;they do not goto trial. Plea bargains involve a negotiated settlement between the prosecutor and the defense attor-ney, typically to settle a casefor alesser charge to whichthe defendant agreesto plead guilty.The problem with this system is that, whileit

makescourts

moreefficient, it potentially deprives the

accused of justice and due process becausethey are sometimes pressured to accept a plea bargain for fear of worse consequencesif they arefound guilty of a moreserious charge; this can and does happen in some cases wherethe defendant is innocent.

Readingson Adjudication and Sentencing Cassia Spohn, in an article entitled American

Courts,

discusses changes in the structure and

procedures of the courts related to adjudication and sentencing in criminal cases over the past 50 years and examines the policy implications.

As part of her assessment, shelooks at specialized or

problem-solving courts that have expanded the role of criminal courts in recent years. The

criminal justice system, especially the courts, often must determine whether mentally ill

suspects or offenders are responsible for their criminal acts. Melissa Thompson

provides an overvie

Part IV |

ofthe extent ofthe problem and the issues.This article, The Systems as Agents of Social Control, is the introduction

Courts,

Adjudication,

and Sentencing

16

Mental Health and Criminal Justice

toThompsons

research study, designed

to assesshow criminal responsibility is assignedto defendants. Since the 1990s it has been apparent that adjudication by criminal courts can fail to provide justice. The

problem is mostapparent in the issue of wrongful conviction.

Withthe introduction

of DNA evidence, investigators can now test evidence from prior casesto determine if a conviction wasjustified.

Zalman (2009) has discussedthe rise of the innocence

movement and the reasons

mistakesare madeat alllevels in the criminal justice system. Heargued that understanding wrongful

convictions willlead to reforms that increasefairness and professionalism. Ronald C Huffs article Wrongful

Convictions in the United States examines the frequency and causes of wrongful con-victions. Heidentifies a range of causesresulting from eyewitness errors, over-zealous police and

prosecutors, coerced and improper interrogations,

reliance on jailhouse

lawyers as snitches,

ineffective counsel, forensic errors and fraud, and failures of the adversarial system ofjustice. Huff alsolooks at criminal justice reforms brought into effect by the 2003 Innocence Protection Act and at movements such as the innocence

movement that seek to re-examine conviction and

exonerate the innocent. Arecent development in adjudication

of cases comes from a peacemaking philosophy that

strivesto achievepositivechangeoutsidethe moreformal adjudication process. MichaelBrasswell, John Fuller, and Bo Lozoff, in their article, Toward

Restorative and Community Justice, provide

an overview of the principles of restorative and community justice and explain whythey believe this approach improves the current criminal justice system.The

goal is to provide a bridge that

recognizes the harms and fears of victims and offenders and a path to resolution and restoration.

References Lanier,

M. M., Henry, S., & Anastasia,

D.J.

M.(2015).

Essential criminology

(4th ed.). Boulder,

CO:

Westview. Solan, L.

M.(2003).

Jurors

as statutory

interpreters.

Chicago-Kent

Law Review, 78, 12811318.

Travis, L. F., III. (2015). Introduction to criminal justice (7th ed.). London,

UK Routledge.

Zalman,

criminology:

M.(2009). (pp. 842850).

Wrongful conviction. Thousand

In J.

Mitchell (Ed.), 21st century

Oaks, CA: SAGE.

Areference hand-book

10

ChaPTEr

AmericanCourts CASSIASPOHN

T

he past 50 years have witnessedsignificant changesin the structure ofthe

Cassia

American court system and the procedures that courts useto adjudicate

Courts,

criminal casesand sentenceconvicted offenders.Someofthese changes

resulted from Supreme Court decisionsthat interpreted constitutional provisions regarding right to counsel, selection of the jury, cruel and unusual punishment,

Spohn, American Critical Issues in

Crime

and Justice:

Policy

and Practice,

Maguire

and Dan

260-275.

Copyright

due process of law, and equal protection under the law. Other changes resulted

SAGE Publications.

Thought, ed.

Mary

Okada,

pp.

2011 by Reprinted

with permission.

from legislative attempts to toughen criminal sentences and reduce sentence disparity, to provide alternatives to prison and probation, or to handle certain types of cases,such as drug offenses or casesinvolving

mentallyill offenders,

moreefficiently and effectively. Consideredtogether, these changes have revo-lutionized the way American courts do business.

The purpose of this chapteris to examine these changesand exploretheir policy implications. The chapter begins with an overview of Supreme Court decisions regarding right to counsel, selection of the jury, capital punishment, and the role of the jury in the sentencing process.The the sentencing reform

next section focuses on

movement of the past 30 years.The chapter ends with an

examination of specialized or problem-solving courts.

SupremeCourt Decisionsand AmericanCourts The

United States Supreme Court has played an important role in the develop-ment of the American court system, particularly

with respect to such issues as

right to counsel, jury selection, and sentencing.The

decisions handed down by

the Court in these areas have altered policy and practice and haveled to fairer andless discriminatory court processing decisions.

17

172

CRIME, JUSTICE,

AND SOCIAL

CONTROL

The Right to Counsel Aseries of court decisions broadenedthe interpretation

of the Sixth Amendments guarantee ofthe

right to counsel andled to significant changesin requirements for provision of counsel for indigent defendants.The

process beganin 1932, whenthe Court ruled in Powellv. Alabama(287 U.S.45

[1932]) that states mustprovide attorneys for indigent defendants charged with capital crimes.The Courts decisionin a1938 case,Johnsonv. Zerbst(304 U.S.458 [1938]), required the appointment of counsel for all indigent defendants in federal criminal cases, bur the requirement to the states until Gideonv. Wainwright(372 U.S. 335 [1963])

wasnot extended

was handed down in 1963. In sub-sequent

decisions,the Court ruled that no person maybeimprisoned, for any offense, whether classified as petty, misdemeanor, orfelony, unless he wasrepresented by counsel1 and that the right to counsel is notlimited to trial, but applies to all critical

stages in the criminal justice process.2

Asa result of these rulings, states mustprovide mostindigent defendants with counsel, from arrest and interrogation through sentencing and the appellate process. States moved quickly to implement the constitutional requirement articulated in Gideonand the subsequent cases, either by establishing public defender systems or by appropriating

moneyfor

court-appointed attorneys. In 1951,there wereonly 7 public defender organizations in the United States;in 1964, there were136; by 1973, the total had risen to 573 (McIntyre,

1987). A national

survey ofindigent defenseservices among all U.S.prosecutorial districts found that 21% useda public defender program, 19% used an assigned counsel system, and 7% used a contract attorney system; the remaining districts (43%) reported that a combination of methods wasused(Bureau of Justice Statistics, 2006). Although some critics have questioned the quality oflegal services afforded indigent defendants (Casper, 1971; Harvard Law Review,2000), particularly in capital cases where the stakes are obviously very high (Bright, 1994), thefindings

of a number of methodologically

sophisticated studies suggestthat caseoutcomesfor defendants represented by public defenders are not significantly different from those for defendants represented by private attorneys (Hanson Ostrom, 2004;

&

Williams, 2002).These results suggestthat poor defendants are nolonger without

a voice (Myrdal 1944, p. 547)in courtsthroughout the United States.

Jury Selection Supreme Court decisions also have placedimportant restrictions onthe jury selection process.The Court has consistently ruled against racial and ethnic biasin the selection ofthe jury pool and has madeit more difficult for prosecutors and defense attorneys to use their peremptory challenges to exclude black and Hispanicjurors.

Asthe Court hasrepeatedly emphasized, the jury serves as the

criminal defendants fundamental protection

oflife and liberty against race or color prejudice.3

Reflectingthis in 1889the Supreme Courtruled in the caseof Stranderv. WestVirginia(100 U.S. 303 [1880]) that a West Virginia stature limiting jury service to white malesviolated the equal protection clause of the Fourteenth Amendment and therefore was unconstitutional. The

Courts ruling in Strander madeit clear that stares could not passlaws excluding blacks

from jury service, but it did not prevent states, and particularly southern states, from developing techniques designed to preserve the all-white jury. In a series of decisions that beganin the mid-1930s, the Supreme Court struck down these laws and practices, ruling, for example, that it

was

unconstitutional for a Georgia county to put the names of white potential jurors on white cards

Chapter

the names of black potential jurors on yellow cards, and then randomly

10 |

American

Courts

173

draw cards to determine

who would be summoned for Jury service Avery v. Georgia, 345 U.S. 559 [1953], at 562. Asthe Court stated in this case, the State may not draw upits jury lists pursuant to neutral procedures but then resort to discrimination at other stagesin the selection process. Critics contend that the Courts decisions regarding the peremptory challenge do, in fact, open the door to discrimination in jury selection (Kennedy, 1997; Serr & Maney,1988).The

Supreme

Courts insistence that the jury be drawn front a representative cross-section ofthe community and that race is not a valid qualification for jury service applies only to the selection ofthe jury pool. It

doesnot applyto the selection ofindividual jurors for a particular case. Asthe Court hasrepeatedly stated, a defendant is not entitled to ajury composed in whole or in part of persons of his own race.4Thus,

prosecutors and defense attorneys can usetheir peremptory challengeschallenges

without cause, without explanation, and without judicial scrutiny5as

they seefit.

process contend that, decisions handed down by the Supreme Court notwithstanding,

Critics of th prosecutors

and defense attorneys can use their peremptory challenges to produce juries that contain few, if any, racial minorities. The Supreme Courts rulings regarding racial discrimination in the use of peremptory challenges have evolved over time.The

Court initially ruled that, although the prosecutors use of peremptory

challengesto strike all ofthe black potentialjurors in ajury pool did not violatethe equal protection clause ofthe Constitution, a defendant could establish a prima facie case of purposeful racial dis-crimination by showing that the elimination of blacks from a particular jury discrimination in that jurisdiction

waspart of a pattern of

(Stream v. Alabama380 U.S.202 [1965]). The problem, of course,

wasthat the defendantsin Stream, and in the casesthat followed, could not meetthis stringent test. As Wishman(1986, p. 115) observed, A

defenselawyer almost never hasthe statistics to prove a

pattern of discrimination, and the state under the Strain decisionis not required to keepthem. The ruling, therefore, provided no protection to the individual

black or Hispanic defendant deprived of

ajury of his peers by the prosecutors use ofracially discriminatory strikes

It wasnot until 1986that the Court,in Batsonv. Kentucky(476 U.S.79[986]) rejected Swains systematic exclusion requirement and ruled that a defendant mayestablish a prima facie case of purposeful discrimination in selection ofthe petit jury solely on evidence concerning the prosecu-tors exercise of peremptory challenges at the defendants trial. The justices added that oncethe defendant makesa prima facie case of racial discrimination, the burden shifts to the stare to provide a racially neutral explanation for excluding black jurors. Although Batsonseemedto offer hope that the goal of a representative jury

wasattainable, an

examination of cases decided since 1986 suggestsotherwise. State andfederal appellate courts have ruled, for example, that leaving one or two blacks on the jury precludes any inference of purposeful

racial discrimination onthe part ofthe prosecutor,6andthat striking only oneortwo jurors ofthe defendants race does not constitute a pattern

of strikes. Trial and appellate courts have also been

willing to accept virtually any explanation offered bythe prosecutorto rebut the defendants inference of purposeful discrimination (Sett & Maney,1988, pp. 4447).

Decisions such as these led Ken-nedy

(1997, p. 214)to characterize the peremptory challenge as a creature of unbridled discretion that, in the hands of white prosecutors and white defendants, has often been usedto sustain racial subordination in the courthouse. The Supreme Courts decisions notwithstanding, the peremptory challenge continues to he an obstacleto the creation of a racially neutral jury selection process.

174

CRIME, JUSTICE,

AND SOCIAL

CONTROL

Capital and Noncapital Sentencing Athird areathat has been significantly reshaped by Supreme Court decisions is sentencing.The Court has handed down aseries ofimportant

decisions on the capital sentencing process. Although

the Court has never ruled that the death penalty per seis cruel and unusual punishment, it hassaid that the death penalty cannot beimposed on an offender convicted ofthe rape of an adult woman (Coker v. Georgia,433 U.S.584 [1977]) or child (Kennedy v. Louisiana,554 U.S.407[2008]) and that the death penalty can beimposed on an offender convicted offelony

murderif the offender played

a majorrole in the crime and displayed reckless indifference to the value of human life (Tison v.

Arizona,107 S. Ct.1676;481 U.S.137[1987], at157).The

Courtalso hasruled that the execution of

someone whois mentally handicapped is cruel and unusual punishment in violation ofthe Eighth Amendment (Atkins v. Virginia, 536 U.S.304 [2002]), that the Eighth and Fourteenth Amendments forbid the imposition

ofthe death penalty on offenders who wereyounger than age18 whentheir

crimes werecommitted (Roper v. Simmons, 543 U.S. 551[2005]), and that the Constitution does nor prohibit the use oflethal injection (Baze v. Rees.553 U.S.[2008]). felony

Withthe exception ofthe

murder and lethal injection rulings, these decisions all restrict the use of the death penalty

by state and federal courts. The Supreme Court also has addressed the issue ofthe role played by the jury at sentencing.The

first case, Apprendiv. NewJersey(530 U.S.466[2000]), involved an offender, CharlesApprendiJr., whofired several shots, into the home of a black family; he madea number ofstatements, which he later retracted, suggesting that he hadfired into the home because he did not wantthe family living in his neighborhood. Apprendi pled guiltv to possession of a weaponfor an unlawful purpose, a crime that carried aterm ofimprisonment

of 5to 10 years.The

prosecutor thenfiled

a motionfor

an enhanced sentence under the NewJersey hate-crime stature.The judge in the casefound by a preponderance of the evidence that the shooting wasracially

motivated and sentenced Apprendi

to 12 rears in prison. Apprendi appealed, claiming that the due process clause ofthe Constitution required the stateto prove the allegation of biasto the jury beyond a reasonable doubt.The Supreme

Courtruled in Apprendisfavor, statingthat anyfact that increasesthe penaltyfor a crime beyond the prescribed statutory

maximum, other than the fact of a prior conviction,

must hesubmitted to

ajury and proved beyond areasonable doubt. In 2002, the justices similarly ruled that ajurynot a judgemust

find the aggravating circumstances necessary for imposition

of the death penalty

(Ring v. Arizona, 536 U.S. 584 [2002]). The

Court reiterated this position in subsequent decisions involving

defendants who were

challenging sentencesimposed under state andfederal sentencing guidelines. In 2004, for example, the Court ruled in Blakely v. Washington(542 U.S.296 [2004]) that the judges decision to impose a sentence moresevere than the statutory

maximum allowed under the

Washington sentencing

guidelines violated the defendants Sixth Amendmentright to trial byjury. The Court revisited this issue 6 monthslater.This time, the issue wasthe power offederal judges to impose sentences moreseverethan called for under the United Slatessentencing guidelines. In United Statesv. Booker (543 U.S. 220 [2005]), the Court ruled, consistent with its decisions in Apprendi and Blakely, that the jury

must determine beyond a reasonable doubt any fact that increases the defendants

sentence beyond the

maximum sentence allowed under the sentencing guidelines. The facts in

this case weresimilar to those in Blakely. Booker wasfound guilty of a drug offense that, under the guidelines, carried a sentence of 210to 262 months. Atthe sentencing hearing, however, th

Chapter 10 |

American

Courts

judge found additional facts that justified a harsher sentence; he sentenced Booker to 360 months in prison. The

Court held that the 30-year sentence imposed by the judge violated the Sixth

Amendment right to ajury trial and ordered the district court either to sentence Booker within the sentencing range supported by the jurys findings ajury. The

or to hold a separate sentencing hearing before

Court also ruled that the federal sentencing guidelines were advisory, not mandatory.

In two cases decided in 2007, the Court reiterated that the guidelines were advisory and ruled that the below-guidelines sentences imposed in each case werereasonable

and that the judges

whoimposed the sentences had not abused their discretion. In the Gall decision, the Court noted

that, although the guidelines arethe starting point andinitial benchmark,they are not the only factors to betaken into consideration. The

Supreme Courts decisions in these sentencing cases enhance the role played by the jury

in both capital and noncapital cases.The

decisions emphasize that the jury, not the judge, is to

determine the facts in the case,that juries

mustdetermine the existence of aggravating factors that

justify the imposition ofthe death penalty, and that sentencescannot exceedthe maximum sentence based on the facts that wereadmitted in a guilty plea or found by the jury.

The SentencingReform Movement In 1972,

Marvin Frankel, U.S. district judge for the Southern

influential

call for reform of the sentencing process (Frankel, 1972).The focus ofJudge Frankels

critique

wasthe indeterminate

sentence, in

District of New York, issued an

whichthe judge imposed a minimum and maximum

sentence, hut the parole board determined the date of release based onits assessment of whether the offender had been rehabilitated

or had served enough time for the particular offense. Judge

Frankel characterized the indeterminate sentencing system as a bizarre nonsystem

of extrava-gant

powers confided to variable and essentially unregulated judges, keepers, and parole officials

(Frankel, 1972, p.I). Frankel, who maintainedthat the degreeof discretion given to judgesled to lawlessness

in sentencing, called for legislative reforms designed to regulate the

unchecked

powers of the untutored judge (p. 41). Judge Frankels calls for reform did not go unheeded. Reformers from both sides of the polit-ical spectrum joined in the attack on indeterminate

sentencing and pushed for reforms designed

to curtail judicial discretion and eliminate arbitrariness and disparity in sentencing. In response, state legislatures and Congress enacted a series of incremental structured sentencing reforms. A number ofjurisdictions experimented with voluntary or advisory sentencing guidelines. Otherstates adopted determinate sentencing policies and abolished release on parole. Still other jurisdictions

createdsentencingcommissionsauthorizedto promulgatepresumptivesentencingguidelines. Most states and the federal government also enacted mandatory minimum sentencesfor certain types of offenses(especially drug and weaponsoffenses),three-strikes-and-youre-out long prison sentencesfor repeat offenders, and truth-in-sentencing

laws that mandated

statutes that required offenders

to serve alarger portion of the sentence before being released. This Thirty

process of experimentation

and reform revolutionized

years ago, every stare and the federal government

system, and the

word sentencing

sentencing in the United States.

had an indeterminate

generally signified a slightly

sentencing

mysterious process which ...

17

176

CRIME, JUSTICE,

AND SOCIAL

involved individualized

CONTROL

decisions that judges were uniquely qualified to

make (Tonry, 1996,

p. 3).The situation today is much mote complex. Sentencing policies and practices vary enor-mously on a number of dimensions, and there is nolonger anything that can be described as the American approach. A discussion of each of the majorreforms enacted during the sentencing reform

movementis

beyond the scope of this chapter. Instead, the chapter focuses on the movement away from the indeterminate sentence and toward a morestructured sentencing process.

Determinate Sentencing In the mid-to late 1970s, several states abolished release on parole and replaced the indeterminate sentence with afixed (i.e., determinate) sentence. Underthis system, the statelegislature established a presumptive range of confinement tor various categories of offenses.The judge imposed afixed number of yearsfrom

within this range, and the offender would serve this term

minustime offfor

good behavior. Determinate sentencing, which wasfirst adoptedin California, Illinois, Indiana, and Maine, wasseen as a wayto restrain judicial in the minds of conservative reformers

discretion and thus to reduce disparity and atleast

preclude judges from imposing overly lenient sentences.

However,the degreeto whichthe reforms constrain discretion varies.The

California Uniform

Determinate Sentencing Law, which took effect on July 1, 1977, provides that judges are to choose one of three specified sentencesfor persons convicted of particular offenses.The judge is to impose the middleterm unlessthere are aggravating or mitigating circumstances that justify imposing the higher or lower term. Judges have considerably

more discretion under the Illinois

Determinate

Sentencing Statute. Felonies are divided into six classifications, and the range of penaltiesis wide, especially for the moreserious offenses. Murder and Class X offenses are nonprobationable, but judges can impose prison terms of 20 to 60 wars or life for

murder and 6to 30 yearsfor Class X

offenses. If there are aggravating circumstances, the sentence range for Class Xfelonies increases

to 30to 60 years. Although judges in jurisdictions

with determinate sentencing retain control over the critical

probation or prison decision, their overall discretion is reduced, particularly in stateslike

Califor-nia.

Evaluations ofthe impact ofthe California law showed that judges complied with the law and imposed the middleterm in a majority ofthe cases. Cohen & Eonry, 1983. Despitepredictions that discretion would shift to the prosecutor and that plea bargaining would consequently increase, there wereno changesin the rate or timing of guilty pleasthat could be attributed to the determinate sen-tencing law. Onthe other hand, there wassome evidence that prosecutors wereincreasingly likely to use provisions regarding sentence enhancements and probation ineligibility

as bargaining chips.

Onestudy,for example,found that the sentenceenhancementfor useof a weaponwasdroppedin 40, of robbery cases and that the enhancement for serious bodily injury

wasstruck in 65% to 70%

of these cases(Casper, Brereton & Neal,1982). As Walker(1993, p. 129) noted, The

net effect of

the law seems to have been to narrow and focus the exercise of plea-bargaining discretion. Given the very restricted options on sentencelength, the importance

ofthe various enhancements and

disqualifiers increased. Partly as a result of research showing that determinate sentencing laws did not significantly constrain the discretion ofjudges, the determinate sentencing movementlost steam and eventuall

Chapter

sputtered out. Withthe exception of the District of Columbia, nojurisdiction

10 |

American

Courts

17

has adopted deter-minate

sentencing since 1983.

Presumptive Sentencing Guidelines Sincethe late 1970s, presumptive sentencing guidelines developed by anindependent sentencing commission have beenthe dominant approach to sentencing reform in the United States. About half of the states have adopted or are considering sentencing guidelines, and sentencing at the

federal level hasbeenstructured by guidelinessince1987.In 1994,the American Bar Association (ABA) endorsed sentencing guidelines; it recommended that all jurisdictions

create permanent

sentencing commissions charged with drafting presumptive sentencing provisions that apply to both prison and nonprison sanctions and ate tied to prison capacities (American

Bar Associa-tion,

1994). The guidelines systems adopted by Congressand by statelegislatures have a number of common features (Stith & Cabranes,1998). In eachjurisdiction

with presumptive guidelines, there is a per-manent

sentencing commission or committee composed of criminal justice officials and, sometimes, private citizens andlegislators. The commission is charged with studying sentencing practices and

formulating presumptivesentencerecommendations.The commissionis alsoauthorized to mon-itor the implementation

and impact of the guidelines and to recommend amendments. Asecond

common feature is that the presumptive sentence is based primarily on two factors: the severity of the offense and the seriousness of the offenders prior criminal record. Typically, these two factors are arrayed on a two-dimensional

grid; their intersection determines whetherthe offender should

be sentenced to prison and, if so,for howlong. Jurisdictions

with presumptive sentencing guidelines, as opposed to voluntary or advisory

guidelines, require judges to follow them or provide reasons for failing to do so.judges are allowed to depart from the guidelines and impose harsher or morelenient sentencesif there are specified

aggravatingor mitigatingcircumstances.Somejurisdictions alsolist factors that should not heused to increase or decreasethe presumptive sentence. For example, both the federal guidelines and the Minnesota guidelines state that the offenders race, gender, and employment status are notlegiti-mate grounds for departure. In North Carolina, on the other hand, judges are allowed to consider the fact that the offender has a positive employment history oris gainfully employed (Bureau of Justice Assistance,1996, pp. 7980). In

moststates and in the federal system, a departure from the

guidelines can be appealed to state appellate courts by either party. If, for example, the judge sen-tences the defendant to probation whenthe guidelines call for prison, the prosecuting attorney can appeal. If the judge imposes 60 months whenthe guidelines call for 36,the defendant can appeal.

TheImpact of Sentencing Guidelines A detailed discussion of the impact of sentencing guidelines would consume have beenliterally

many pages;there

dozens of studies focusing on compliance with the guidelines and attempting to

determine whether the guidelines and mandatory minimum sentences resulted in more punitive sentencesand reduced disparity and discrimination in the sentencing process. Althoughthe evidence is somewhat mixed,it doesappear that sentences are more punitive today than in the past(Austin

178

CRIME, JUSTICE,

AND SOCIAL

CONTROL

& Irwin, 2001: Engen &Steen, 2000; Frase,1997; Kramer & Lubitz, 1985; Marvel & Moody,1995; Moore & Miethe,1986; Spohn, 2000; United States Sentencing Commission, 1991a, 1991b, 2004). The

movement away from indeterminate

sentencing and the rehabilitative ideal to determinate

sentencing and an emphasis onjust desertscoupled

withlaws mandatinglong prison termshave

resulted in harsher sentences. Asaresult ofthese changesin sentencing policy, offenders convicted of felonies in state and federal courts face a greater likelihood

ofincarceration

and longer prison

sentencesthan they didin the prereform era.These changes,in turn, haveled to dramatic increases in the nations prison population.

The evidenceregardingthe questionof whethersentencestoday arefairer or moreequitablein the past alsois mixed. Critics of sentencing reform contend that have been able to circumventor

even sabotagethe

membersof the courtroom

work-group

reforms enacted during the past 30

years;they arguethat this makesit difficult to assessthe impact ofthe reforms.

Nonetheless, most

studies of sentencesimposed under federal and state guidelines conclude that guideline sentences are more uniform and less disparate (Anderson,

Kling & Stith, 1999; Ashford & Mosbaek,1991:

Hofer, Blackwell, & Ruback, 1999; Knapp.1987; Kramer & Lubitz, 1985; Stolzenberg & DAles-sio, 1994; United Slates Sentencing Commission, 1991a; Washington State Sentencing Guidelines Commission, 1992; Wright,1998).There is less interjudge disparity in jurisdictions

with sentencing

guidelines,andsentencesare moretightly linked to the seriousnessofthe offenseandthe offenders prior criminal record. The evidence regarding the effect oflegally irrelevant offender characteristicsrace, education, and employment statusis

less inconsistent and unfortunately,

gender, age,

more negative.There is a

lack oflongitudinal research comparing the effect of offender characteristics on sentence outcomes before and after the implementation

of guidelines; this

makesit difficult to assessthe degreeto

which the guidelines havereduced unwarranted disparities in sentencing. Nonetheless,the studies of sentencesimposed in federal and statejurisdictions

operating under sentencing guidelines showed

that racial minorities and women weresentenced differently from whites and men(Albonetti, 1997,

2002; Demuth &Steffensmeier,2004; Everett & Wojtkiewicz,2002; Kramer &Steffensmeier, 1993; Kramer & Ulmer,1996; LaFrentz & Spohn, 2006;

Mustard, 2001; Spohn, 2000; Spohn & Sample,

forthcoming; Stacey &Spohn, 2006; Steen, Engen, & Gainey,2005; Steffensmeier & Demuth, 2000, 2006; Steffensmeier & Hebert,1999; Steffensmeier, Kramer, & Streifei, 1993; Steffensmeier, Ulmer, & Kramer, 1998).This suggeststhat attempts to constrain judicial discretion have not eliminated unwarranted disparities in sentencing.The

guidelines notwithstanding, judges meteout harsher

sentencesto black and Hispanic offenders than to similarly situated white offenders.They impose morelenient sentences on females than on males,and the unemployed and less educated receive harsher sentencesthan their counterparts.

These conclusions apply to sentencesimposed underthe morerestrictive federal sentencing guidelines as well asthe looser guidelines at the statelevel. They imply that judges and prosecutors are reluctant to place offenders into cells of sentencing grids defined only by crime seriousness and prior criminal record and, thus, that statutorily irrelevant factors such as race, gender, age,employ-ment status, and social class maybefactually relevant to criminal justice officials assessments of dangerousness, threat, and culpability. In sum, these conclusions attest to the validity of Tonrys (1996, p.180) assertion, There is, unfortunately, no way around the dilemma that sentencing is inherently

discretionary and that discretion leads to disparities.

Chapter

10 |

American

Courts

Specialized or Problem-Solving Courts:

A Focuson Drug Courts The last three decades have witnessed another important

changein the American court system:

the development of specialized or problem-solving courts.These atelimited-jurisdiction

courts

specializing in certain crime problems, such as drugs, guns, and domestic violence.These courts are like traffic courts in that they address a specific problem, but several factors set them apart

(Berman & Feinblatt,2001).The typical specializedcourtfocuses on caseoutcomesfor example, getting offenders off drugs or protecting womenfrom further intimate partner abuserather

than

case processing, and judges closely supervise offenders and monitor their progress. Specialized courts also ate characterized by collaboration among criminal justice and social service agencies, non traditional roles for participants, and afocus on systemic change.

The Drug Court Movement The development ofspecialized courts is bestillustrated

by the drug court movement.Increases in

the numberof drug offendersappearingin stateandfederal courtscoupled

with mountingevidence

of both the linkages between drug use and crime and the efficacy of drugtreatment programsled a number ofjurisdictions

to rethink their approach to handling defendants charged with drug

and drug-related offenses. p. 31. Somejurisdictions, designed to

Drug Court Clearinghouse and Technical Assistance Project, 1999,

such as Cook County Chicago,Illinois. established specialized dockets

managethe drug caseload more efficiently and to alleviate stress on the felony court

system dneiareh,

McBride, & Rivers, 1996. Otherjurisdictions,

Florida, created drug treatment courts,

such as Dade County (Miami),

whichincorporated intensive judicial supervision of drug

offenders, mandatory drug treatment, and rehabilitation

programs providing vocational, education,

family, and medicalservices. The

drug treatment court concept spread rapidly during the 1990s. As ofJune 1999, 377 drug

courts were operating, and an additional 217 drug courts werein the planning stagesin 49 of the 50 states, the District of Columbia, Puerto Rico, Guam, several Native American tribal courts, and two federal district courts (Drug

Court Clearinghouse and Technical Assistance Project, 1999, p.1).

By December 2007 there were 1,786 adult and juvenile

drug courts operating in jurisdictions

throughout the United States; another 284 courts werein the planning stages(Bureau of Justice Assistance,n.d.). A 2005 report by the National Drug Court Institute

Huddleston. Freeman-Wilson.

Marlowe, & Roussell, 2005 estimated that, at any onetime, morethan 70,000 drug offenders were

participatingin drug courtsthroughout the United Statesandits territories. Although the nature and characteristics of drug courts throughout the United Statesvary widely, they share several key elements (National

Association of Drug Court Professionals, 1997):

Integration of substance abuse treatment

withjustice system case processing;

Use of a nonadversarial approach; Earlyidentification

and prompt placement of eligible participants;

Accessto a continuum of treatment, rehabilitation, and related services;

17

180

CRIME, JUSTICE,

AND SOCIAL

CONTROL

Frequent testing for alcohol and illicit

drugs;

Acoordinated strategy amongjudge, prosecutor, defense,andtreatment providers to govern

offendercompliance; Ongoingjudicial interaction

with each participant.

In the typical preadjudication drug court, drug offenders who meetthe eligibility criteria for the program are given a choice between participation in the drug court and traditional

adjudication.

Although the eligibility criteria vary, mostprograms exclude offenders who have prior convictions for violent offenses or whose current offense involved violence or use of a weapon.They larger

offenders whoseinvolvement withthe criminal justice systemis due primarily to their substance abuse.The

program

maylast 12 months,18 months, or longer. Offenders who are accepted and

agree to abide by the requirements ofthe program areimmediately referred to asubstance abuse treatment program for counseling, therapy, and education.They also are subject to random urinal-ysis and are required to appear frequently before the drug court judge. Offenders who do not show up for treatment sessions or drug court or whofail drug tests are subject to sanctions. Repeated violations

mayresult in termination from the program and in adjudication and sentencing on the

original charges.The charges against the offender are dismissed upon completion of the program.

The Effectiveness of Drug Courts There is mounting evidence that drug courts reduce offender recidivism and prevent drug relapse. Areport by the U.S. Genera! Accounting Office(1997) summarized the results of 20 evaluations of 16 drug courts that had been completed by early 1997.The

GAO report indicated that these early

evaluations generally concluded that drug courts wereeffective in reducing drug use and criminal behavior, Alater review by Belenko (1998) summarized the results of 30 evaluations of 24 drug courts that had been completed by May1998, Belenko (1998, p. 29) observed that

most of these

evaluations concluded that criminal behavior wassubstantially reduced during participation in the

program, For example,an evaluation of a Ventura County, California, drug court, whichtracked recidivism over an 8-monrh period, found that only 12% ofthe drug court participants wererear-rested, compared with 32% ofthose in a comparison group. AJackson County, Missouri,evaluation similarly revealed 6-month rearrest rates of 4%for program participants and 13%for nonparticipants. Belenkos review alsoincluded studies that assessedthe impact of drug court participation on postprogram recidivism. Eight of the nine evaluations reported lower recidivism rates for the drug court group, compared

with a group of similarly situated offenders who did not participate in the

drug court program. An evaluation of the

Multnomah County, Oregon, drug court, for example,

found statistically significant differences between drug court participants (0.59 new arrests) and

drug-court-eligible nonparticipants(1.53 new arrests) over a 24-month tracking period. Belenko (1998, p. 18) concluded that drug

use and criminal

behavior are substantially reduced while cli-ents

are participating in drug court, [and] criminal behavior is lower after program participation. Morerecent and methodologically sophisticated studies also provide evidence that drug courts are effective in preventing recidivism.

An evaluation of the Baltimore City Drug Treatment Court,

for example, used an experimental designin which eligible offenders wererandomly assignedeither to the drug court or to traditional

adjudication (Gottfredson

& Exum, 2002).The results ofthe

evaluation revealed that offenders assignedto the drug court wereless likely than offenders placedi

Chapter 10 |

the traditional adjudication group to berearrested during the 12-month follow-up

American

Courts

18

period. Afollow-up

study using 3 years of recidivism datafound similar results; this study also found that the positive effects of participation in the drug treatment court extended pastthe offenders involvement in the drug court (Gottfredson,

Najaka, Kearley, & Rocha, 2006).

PolicyImplications The Americancourt system hasundergonesignificantchangesoverthe pastthree decades.Criminal procedure has been reformed as a result of Supreme Court decisions that broadened the rights of criminal

defendants, established rules for the selection ofjuries and the use of peremptory chal-lenges, anti placed restrictions on judges sentencing discretion. Sentencing policies and practices

in state and federal jurisdictions

have undergone important

modifications, and specialized or

problem-solving courts have spread throughout the United States. The

question, of course, is whether these changes have produced afairer and more equitable

court system. It seems clear that the Supreme Courts decisions broadening the right to counsel and restricting the use of racein the jury selection process haveresulted in fairer treatment of poor

defendantsand defendantswhoareracial minorities,andthat the Courts decisionslimiting the use ofthe death penalty has madeit morelikely that capital punishment will bereserved for particularly heinous crimes. Lessclear are the effects of the Courts decisions enhancing the role ofthe jury in sentencing and makingthe federal sentencing guidelines voluntary. Although these decisions, which place significant restrictions onjudicial discretion, mayproduce less disparity in sentencing, it also is possiblethat discretion will simple shift downstream to prosecutors. In other words,the source of disparity, including unwarranted disparity, in the new regime maybe prosecutors charging and plea-bargaining decisions. The impact of specialized or problem-solving courts is alsoless evident. Researchevaluating

these courtsis limited, andthe researchthat doesexist suffersfrom a number of methodological problems (Belenko, 1998). Nonetheless, there is mounting evidence that drug courts, domestic violence courts, and other specialized courts doreduce recidivism rates, and there is some evidence that these courts alsolead to improvements in offenders education and employment status, physical and mental health, and cognitive functioning.

Asresearch on problem solving courts accumulates,

our conclusions regarding their effectiveness will becomeless tentative.

DiscussionQuestions 1.

How havethe Supreme Courts decisions regarding the tight to counsel changed the Ameri-can

court system?In your opinion, havethese beenpositive or negativechanges? 2.

Whywouldcritics ofthe public defendersystem arguethat criminal defendantsget what they payfor?

3.

Whatare the problems inherent in the public defender system?

Evidence suggesting that prosecutors continue to usetheir peremptory challenges to pre-serve all-white juries in casesinvolving

African American or Hispanic defendants hasled

some commentators to call for the elimination of the peremptory challenge.

Whatdo you

182

CRIME, JUSTICE,

AND SOCIAL

CONTROL

think is the strongest argument in favor of eliminating the peremptory challenge? In favor of retaining it? How would elimination ofthe peremptory challenge changethe criminal trial? 4.

What will bethe impact ofthe Supreme Courts decision makingthe federal sentencing

guidelines voluntary/advisory rather than mandatory? Willthese decisionslead to less uni-formity and more disparity in sentencing, or will they enablejudges to individualize justice in appropriate ways? 5.

Animportant

goal of sentencing guidelines wasto eliminate unwarranted disparity in

sentencing. Giventhis, how would you explain the fact that research reveals that both the offenders race/ethnicity

and the offenders sex influence sentencesimposed under state and

federal sentencing guidelines? 6.

How do specialized or problem-solving courts differ from traditional courts?

Why have

these courts become so popular in the United States?

Notes 1.

Argersinger v. Hamlin, 407

U.S. 25 (1972),

at 37.

2. A defendant is entitled to counsel at every stage where substantial rights of the accused may be affected

that require

the guiding

hand of counsel

(Mempa v. Rhay, 389

These critical stagesinclude arraignment, preliminary the first 3.

U.S. 128 [1967], at 134).

hearing, entry of a plea,trial, sentencing, and

appeal.

McCleskey v. Kemp (481

U.S. 279 [1987],

at 3101, quoting

Strander v. West Virginia, 100

U.S. 303

(1880). 4. Strander v.

West Virginia, 100

U.S. 303 (1880)

at 305; Batson v. Kentucky, 476 U.S. 79 (1986)

5. Swain v. Alabama, 380 U.S. 202, 212, 212 (1965) 6. United States v. Montgomery, 819 F.2d at 851.The

at 85.

at 380. Eleventh

Circuit,

however, rejected this line

of rea-soning

in Fleming v. Kemp(794 F.2d 1478 [11th Cir. 1986]) and United Statesv. David(803 F.2d 1567 [11th

Cir. 1986]).

7. United Statesv. Vaccaro,816 F.2d 443, 457 (9th Cir.1987); Fields v. People.732 P.2d 1145, 1158 n.20 (Colo. 1987). 8. Also decided at the same time,

and

with the same result,

was United States v. Fanfan (125 S. Ct. 12

[2004]). 9.

Gall v. United States, No. 067949, 066330,

decided

10. Most scholars

decided

December 10, 2007.

Kimbrough v. United States,

December 10, 2007.

contend that this

primitiveness

has not produced the predicted

Conservative advocates of harsh crime control policies claim that locking of felony

offenders for increasingly

long

periods

of time

conceptual and methodologicalflaws in the prison works question. increasing

Critics suggest that a more careful incarceration

2001; Tonry, 1995)

No.

rates have little,

examination

reduction

in crime.

upincreasingly large num-bers

has caused the crime rate to fall;

however,

argument call this conclusion into of the evidence leads to the conclusion

if any, effect on crime rates (see, for example,

Austin

that &Irwin,

Chapter

10 |

American

Courts

References Albonetti, C. A.(1997). Sentencing under the federal sentencing guidelines: Effects of defendant char-acteristics, guilty Society

pleas, and departures

on sentence outcomes for drug offenses, 19911992.

Law &

Review, 31, 789822.

Albonetti,

C. A. (2002). The

imprisonment Journal

joint

conditioning

under the federal

effect of defendants

sentencing

guidelines for

gender and ethnicity

on length

drug trafficking/manufacturing

of

offenders.

of Gender, Race, and Justice, 6, 3960.

American

Bar Association. (1994).

Standards for criminal justicesentencing

alternatives

and procedures

(3rd ed.). Boston: Little, Brown. Anderson, J.

M., Kling, J. R., & Stith,

K. (1999).

Measuring interjudge

sentencing

disparity:

Before and

after the federal sentencing guidelines. Journal of Law and Economics, XLII, 271307. Ashford,

K., & Mosbaek, C.(1991). First year report onimplementation

1989 to January 1991. Portland: Austin, J., &Irwin,

Oregon Criminal

J. (2001). Its about time:

Justice

of sentencing guidelines,

November

Council.

Americas imprisonment

binge (3rd

ed.). Belmont,

CA:

Wadsworth. Belenko, S. (1998).

Research on drug courts:

A critical

review.

National

Drug Court Institute

Review, 1,

142.

Berman, G., & Feinblatt, J. (2001). Problem-solving courts: A brief primer. New York: Centerfor

Court

Innovation.

Bright, S. B.(1994). Counsel for the poor:The lawyer.

death sentence not for the worst crime but for the worst

The Yale Law Journal, 103, 18351883.

Bureau of Justice Department Bureau of Justice

Assistance. (1996). of Justice,

Bureau of Justice

Assistance

Drug Court

on October 21, 2009, from Bureau of Justice

National assessment of structured

sentencing.

Washington,

DC: U.S.

Assistance.

Clearinghouse

Project at American

University. (n.d.).

Retrieved

http://spa.american.edu/justice/documents/2343.pdf

Statistics. (2006).

State court organization,

2004.

Washington,

DC: United States

Depart-ment

of Justice, Bureau of Justice Statistics. Casper, J. D., (1971).

Did you have a lawyer

when you went to

Court?

No, I had a public defender. Yale

Reviewof Law and Social Action, 1, 49. Casper, J. D., Brereton, law:

D., & Neal, D.(1982).

Executive summary.

Cohen, J., & Tonry, S. E. Martin, Washington,

Washington,

M. H.(1983). Sentencing reforms

& M. H. Tonry (Eds.), DC: National

Davis, K. C.(1969).

The implementation

DC: Government

determinate sentencing

Office.

and their impacts.

Research on sentencing:

Academy

of the California

Printing

In

A. Blumstein,

The search for reform,

J. Cohen,

Vol. 1 (pp. 305349).

Press.

Discretionary justice:

A preliminary

inquiry.

Baton Rouge: Louisiana

State University

Press. Demuth,

S., & Steffensmeier,

D.(2004).

Ethnicity

effects on sentencing

outcomes in large

urban courts:

Comparisons among white, black, and Hispanic defendants. Social Science Quarterly, 85, 9911011. Drug Court Clearinghouse Washington,

and Technical

DC: U.S. Department

Engen, R. L., & Steen, S. (2000). The drugs.

Assistance

Project. (1999).

Looking at a decade of drug courts.

of Justice. power to punish:

American Journal of Sociology, 105, 13571395.

Discretion

and sentencing

reform in the

war on

18

184

CRIME, JUSTICE,

AND SOCIAL

CONTROL

Everett, R. S., & Wojtkiewicz, R. A.(2002).

Difference, disparity, and race/ethnic

biasin federal sentenc-ing.

Journal of Quantitative Criminology, 18, 189211. Frankel,

M.(1972). Lawlessnessin sentencing. University of Cincinnati Law Review,41,154.

Frase, R.(1997). Prison population growing under

Minnesota guidelines. In

M. Tonry & K. Hatlestad

(Eds.), Sentencingreform in overcrowdedtimes. New York: Oxford University Press. Gottfredson, D. C., & Exum, M. L. (2002). Baltimore City Drug Treatment Court: One-year results from a randomized study. Journal of Researchin Crime and Delinquency, 39, 337356. Gottfredson, D. C., Najaka, S. S., Kearley, B. W., & Rocha, C. M.(2006). Long-term effects of partici-pation in the Baltimore City Drug Treatment Court: Resultsfrom an experimental study. Journal of Experimental Criminology, 2, 6798. Hanson, R. A., & Ostrom, B.J. (2004). Indigent defenders get the job done and done well. In. G. F. Cole, M. G. Gertz, & A. Bunger, A.(eds.), Thecriminal justice system: Law and politics. Belmont, CA: Wadsworth. Harvard Law Review.(2000).

Gideons promise unfulfilled: The need for litigated reform of indigent

defense. Harvard Law Review,113, 20622079. Hofer, P.J., Blackwell, K. R., & Ruback, B.(1999).The effect of the federal sentencing guidelines oninter-judge sentencing disparity. TheJournal of Criminal Law & Criminology, 90, 239321. Huddleston, C.W.,III,

Freeman-Wilson,

K., Marlowe, D. B., & Roussell, A.(2005). Painting the current

picture: A national report card on drug courts and other problem solving court programsin the United States. Washington, DC: National Drug Court Institute. Inciardi, J. A., McBride, D. C., & Rivers,J. E.(1996). Drugcontrol andthe courts.Thousand

Oaks, CA: Sage.

Kennedy, R.(1997) Race,crime, and the law. New York: Vintage Books. Knapp, K. A.(1987). Implementation

of the

Minnesota guidelines: Canthe innovative spirit be

preserved? In A. von Hirsch, K. A. Knapp, & M.Tonry (Eds.), Thesentencing commission andits guide-lines (pp, 127141). Boston: Northeastern University Press. Kramer, J. H., & Lubitz, R. L. (1985). Pennsylvanias sentencing reform: The impact of commission-established guidelines. Crime & Delinquency,31, 481500. Kramer, J. H., & Steffensmeier, D.(1993). Raceand imprisonment

decisions. The Sociological Quarterly,

34, 357376. Kramer, J. H., & Ulmer, J. T.(1996). Sentencing disparity and departures from guidelines. Justice Quar-terly, 13, 81106. LaFrentz, C., & Spohn, C.(2006).

Whois punished more harshly? An examination of race/ethnicity,

gender, age and employment status under the federal sentencing guidelines. Justice Research & Policy, 8, 2556. Martinson, R.(1974).

What works? Questions and answers about prison reform. PublicInterest, 24,

2254. Marvel, T. B., & Moody, C. E.(1995).The impact of enhanced prison terms for felonies committed

with

guns. Criminology, 33, 247281. McIntyre, L. (1987). The public defender: Thepractice of law in the shadows of repute. Chicago: University of Chicago Press. Moore, C. A., & Miethe, T. D.(1986). Regulated and unregulated sentencing decisions: An analysis offirst-year 253277

practices under

Minnesotas felony sentencing guidelines. Law & Society Review, 20,

Chapter 10 |

American

Courts

Mustard, D.(2001). Racial, ethnic and gender disparities in sentencing: Evidence from the U.S.federal courts. Journal of Law and Economics, 44, 285314. Mydral, G.(1944). An American dilemma: The Negroproblem and modern democracy. New York: Harper. National Association of Drug Court Professionals. (1997). Defining drug courts: The key components. Washington, DC: Bureau of Justice Assistance, U.S. Department ofJustice. Serr, B.J., & Maney, M.(1988). Racism, peremptory challenges and the democratic jury: The jurispru-dence of a delicate balance.Journal of Criminal Law & Criminology, 79, 165. Spohn, C.(2000).

Thirty years of sentencing reform: The questfor a racially neutral sentencing process.

Washington, DC: U.S. Department of Justice. Spohn, C., & Sample, L.(forthcoming). The dangerous drug offender in federal court: Stereotyping blacks and crack cocaine. Crime and Delinquency. Stacey, A., M., & Spohn, C.(2006).

Gender and the social costs of sentencing: An analysis of sentences

imposed on maleand female offenders in three U.S. District Courts. BerkeleyJournal of Criminal Law, 11, 4376. Steen, S., Engen, R. L., & Gainey, R, R.(2005). Images of danger and culpability:

Racialstereotyping,

case processing, and criminal sentencing. Criminology, 43, 435468. Steffensmeier, D., & Demuth, S.(2000). Ethnicity and sentencing outcomes in U.S.federal courts:

Whois

punished more harshly? American Sociological Review,65, 705729. Steffensmeier, D., & Demuth, S.(2006). sanctioning? Sentencesfor

Doesgender modify the effects of race-ethnicity

on criminal

maleand female white, black, and Hispanic defendants. Journal of Quanti-tative

Criminology, 22, 241261. Steffensmeier, D., & Hebert, C.(1999). sentencing of criminal

Womenand menpolicymakers:

Docsthe judges gender affect the

defendants? Social Forces,77,11631196.

Steffensmeier, D., Kramer, J., & Streifel, C.(1993). Gender andimprisonment

decisions. Criminology, 31,

411446. Steffensmeier, D., Ulmer, J., & Kramer, J. (1998).The interaction The

of race, gender, and agein criminal sen-tencing:

punishment cost of being young, black, and male. Criminology, 36, 763797.

Stith, K., & Cabranes,J. A.(1998). Fear ofjudging: Sentencingguidelinesin the federal courts. Chicago: Uni-versity of Chicago Press. Stolzenberg, L., & DAlessio, S.J. (1994). Sentencing and unwarranted disparity: of the long-term impact of sentencing guidelines in Tonry,

M.(1995).

An empirical assessment

Minnesota, Criminology, 32, 301310.

Malign neglect; Race,crime, and punishment in America. New York: Oxford University

Press. Tonry,

M.(1996). Sentencing matters. New York: Oxford University Press.

United States General Accounting Office. (1997). Drugcourts: Overview of growth, characteristics, and results. Washington, DC: U.S. General Accounting Office. United States Sentencing Commission. (1991a). Thefederal sentencing guidelines: Areport onthe operation of the guidelines system and short-term impacts on disparity in sentencing, useofincarceration, and prosecuto-rial discretion and plea bargaining. Washington, DC: U.S. Sentencing Commission. United States Sentencing Commission. (1991b). Specialreport to Congress: Mandatory minimum penaltiesin the federal criminal justice system. Washington, DC: U.S.Sentencing Commission.

18

186

CRIME, JUSTICE,

AND SOCIAL

CONTROL

United States Sentencing Commission. (2004). Fifteen years of guidelinessentencing: An assessmentof how wellthe federal criminal justice systemis achievingthe goals of sentencing reform.

Washington, DC:

Author. van den Haag, E.(1975). Punishingcriminals: Confronting a very old and painful question. New York: Basic Books. von Hirsch, A.(1976). Doingjustice: Thechoice of punishments. New York: Hill and Wang. Walker, S.(1993). Taming the system: Thecontrol of discretionin criminal justice, 19501990.

New York:

Oxford University Press. Washington State Sentencing Guidelines Commission. (1992). A decadeof sentencingreform: Washington and its guidelines, 19811991. Olympia: Williams, M.(2002).

Washington State Sentencing Guidelines Commission.

Acomparison of sentencing outcomes for defendants with public defenders versus

retained counsel in a Florida circuit court. Justice SystemsJournal, 23, 249257. Wilson,J. Q.(1975). Thinking about crime. New York: Basic Books. Wishman, S.(1986). Anatomy of ajury: Wright, R.F.(1998).

Thesystem ontrial.

New York; Penguin Books.

Managingprison growth in North Carolina through structured sentencing. National

Institute of Justice, Program Focus Series. Washington, DC: U.S. Department ofJustice, National Institute of Justice

11

ChaPTEr

The MentalHealth andCriminalJustice Systems as Agents of SocialControl MELISSATHOMPSON

MentalIllness or Crime?

Melissa Thompson, Health

In January2008, a37year-old AsianAmerican manthrew hisfour children

Systems Control,

off of an Alabamabridge. Accordingto newsreports, Lam Luong was moti-vated Gender, by an argument with his wife, or perhaps by a crack cocaine habit. In

October 2005, a 23 year-old

African American woman threw her

three children off ofthe Golden GateBridge. According to news reports,

the

As Agents

Mental

of Social

Mad or Bad? Race, and

Criminial

Mental Justice

1-11. Copyright Scholarly

The

and Criminal Justice

Disorder in System,

pp.

2010 by LFB

Publishing.

Reprinted

with permission

LaShaun Harris wasinfluenced by voicesin her headtelling herto commit this offense. In June 2001, a 36 year-old white woman drowned herfive a bathtub in Texas. According to news reports,

children in

Andrea Yates suffered

from post-partum psychosis which,together with her extreme religious values, resulted in her belief that she wassaving her children from hell by killing them.

In caseslike these,the criminal justice system hasthe difficult task of deter-mining whether potentially

mentallyill offenders bear criminal responsibility

for their actions. Becauselawyers and judges cannot know with certainty the mindset ofthese individuals at the time ofthe offense,they mustrely on various other factors, including the offenders self-report Beyond this, there are other clues that

of his or her mental status.

mightbe usedto determine responsibility

or sanity. For instance, some legal commentators have suggested that socially constructed factorsincluding

gender and racemight

be considered in these 187

188

CRIME, JUSTICE,

AND SOCIAL

CONTROL

decisions. Since a mother killing her children elicits a very different social reaction than afather committing to determine

a similar offense, gender may be one clue used by criminal justice decision-makers whether the offender is legally sane and therefore criminally

responsible for his/

her offense. Furthermore, becausethe mediatends to suggest that people of colorparticularly African Americansare

moretypical

criminals, the social reaction to a white offender versus

an African American offender is also quite different. Totest these expectations, this book seeksto provide evidence of the impact of gender, race, and social class on attributions of mentalillness, and treatment for

mentalillness in the criminal justice system

Astaggeringnumber of persons with mentalillness are confinedin U.S.prisonsandjails, accord-ing to one estimate morethan half of all prison and jail inmates have(or hadin the past) a mental health problem (U.S. Department ofJustice 2006).This

meansthat approximately 705,600 state

prison inmates, 78,800 Federal prisoners, and 479,900 inmates in local jails are mentallyill (U.S. Department of Justice 2006).

Whencombined with an estimated 678,000 mentallyill individuals

on probation (U.S. Department of Justice 1999; 2007), it is clearthat the U.S.criminal justice system is the primary source of social control for almost two the 1970s, the incarceration

million mentallyill criminal offenders. Since

rate has grown by almost 600 percent (U.S. Department of Justice

2000; 2009); at the same time, the rate of personsin mental hospitals hassignificantly

decreased.

Atits peak,the rate of hospitalizedfor a mentaldisorder was339 personshospitalizedfor every 100,000 personsin the population in 1955 (Mechanic and Rochefort 1990). Sincethen, the rate of mentalhospital admissions has declined dramatically: from a rate of 283 admissions in 1990, down to 89 in 2004 (National non-correctional

Centerfor

Health Statistics 2008). Furthermore, the number of available

mental health bedsin the United States has significantly decreased, with a 1986

rate of 112 mental health beds per 100,000 persons in the U.S.reduced to 71 per 100,000 only 18 yearslater in 2004 (National

Centerfor Health Statistics 2008). Meanwhile,the number of pris-ons

continues to grow. Regardlessofthe causes,the effect ofthese trends is asignificant increase in the number and rate ofindividuals

with mentalillness being handled bythe criminal justice system

and a disproportionately high rate of mentalillness in the U.S.correctional system comparedto persons outside the justice system. Whathas beenlargely ignored to dateis the role ofsocial factors such asrace, gender, and social classin affecting these numbers.Thus, this book asks: how do race, class and gender affect mental health treatment in the criminal justice system? Mentallyill criminal offenders are in a unique position at the intersection

of both the mental

health and legal systems (Freeman and Roesch1989), often resulting in debates over which system should control them. Consequently,involuntary

civil commitment laws have changed dramatically,

with patients rights emphasized from the 1960s through approximately 1980; since then, the law has emphasized community security (LaFond 1994).

The analysisofthe criminal justice systemandthe role oflegal and extralegalfactorsin processing decisionsis an important

and well-established area of study in the sociology oflaw and criminol-ogy.

This literature suggeststhat official responses of the criminal justice system to offenders are based on manyintersecting factors, such as evidence, individual

biographies, situational factors,

cultural expectations, and prior legal events (Farrell and Swigert 1986; Reskin and Visher 1986; Steffensmeier and Allen 1986; Wooldredge1998).The research in this area has also suggestedthat decision-makers expectations about criminal

defendants and their typical crimes affect criminal

justice outcomes (Sudnow 1965; Bridges and Steen 1998).This set of expectations is develope

Chapter 11 |

The

through social interaction

Mental Health

and Criminal

Justice

Systems

as Agents

of Social

Control

18

and results in atleast two socially constructed sets of assumptions: one

based on gender and another based on race. The first set of expectations held by the criminal justice systemis basedon gender, whereassump-tions about normative

maleand female behavior mayinfluence criminal justice decision-making.

Stereotypes offeminine

behavior include passivity, dependence, and submissiveness,

whereas

masculine stereotypes include dominance, assertiveness, and independence (Baskin et al. 1989; Chesney-Lind and Shelden1998). Criminal behavior maybeinterpreted in light ofthese gendered expectations so that women who engagein non-normative criminal behaviorparticularly

crimesare

violent

thought to violate these stereotypes(Baskin et al. 1989). Becauseofthis, feminists

have asserted that the criminal justice system is morelikely to label female criminal offenders as mentally ill

while treating

male offenders as rational

actions (Smart 1995); this processis termed the Supporters ofthe

and therefore

moreresponsible for their

medicalization offemale deviance (Offen 1986).

medicalization of female deviance hypothesis point out that 23 percent of

female prisoners have been diagnosed as mentallyill compared to only 8 percent of the maleprison population (U.S. Department ofJustice 2006), suggestingthat

mentaldisorders are over-diagnosed

in female prisoners. An alternative hypothesis, however,is that female offenders arelabeled mentally ill at a higher rate dueto greaterlevels of actual mentalillness in the female inmate population (see

U.S. DepartmentofJustice 2006). The second set of expectations criminal justice officials hold are related to the race of the defendant. Whileviolent women might be considered incomprehensible or mentallyill, stereotypes of African Americans frequently focus on criminality

and violence (Smith 1991; Sniderman and

Piazza1993; Emerson, Yancey,and Chai 2001; Quillian and Pager2001).This stereotype of African Americans as criminal is deeply embeddedin Americans collective consciousness and maybe used by decision-makers who must makechoices based onincomplete information 1995; Emerson et al. 2001; Quillian and Pager 2001; Pager 2004).This economic theories ofstatistical discrimination.

(Devine and Elliot

argument is postulated by

Statistical discrimination refers to the use of infor-mation

concerning groups,ratherthan individuals, in decision-making. These usesof group norms in decision-making often occur in the absence of scientific dataand these datayet

mayin fact be contrary to

are usedin the pursuit of expedience (Phelps 1972).

Sociologists have similarly argued that individuals

use stereotypes about racial

minorities in

their perceptions of neighborhood crime rates and the stigma ofincarceration (Emerson et al. 2001; Quillian and Pager2001; Western2002). Applying this perspective to the legal system, the use of group norms is efficient in screening casesto decide whichtypes of punishment arefair and appro-priate. Group variables such as race, age, or gender are therefore assumed to provide information regarding anindividuals

expected criminality orinsanity1 (Becker 1985; Kennedy1997; Konrad and

Cannings1997).Therefore, it is expectedthat stereotypically normal

offenders will belesslikely

than other defendants to bereferred for a psychiatric evaluation to determine criminal responsi-bility. The average criminal defendant, whois young, African American, and male(Steffensmeier,

1 The

term

insanity

the actual term

insanity

is

used throughout

this

is not typically

used because of its ease of useit defense

of

mental disease or defect

book to refer

to the

used in the statutory is significantly

(which

use of a defense

language

simpler

is the actual statutory

of

of

mental

mental illness

to refer to an insanity language).

disease

or defect.

Although

defenses, this term is never-theless defense than to repeatedly

say

190

CRIME, JUSTICE,

AND SOCIAL

CONTROL

Ulmer, and Kramer 1998; U.S. Department of Justice 2009), will beless likely to be psychiatrically evaluated since heis not viewed as an abnormal criminal defendant. In fact, some have argued that behavior indicating severe mental pathology in reflect criminality

rather than

minority groups is often ignored or considered to

mentalillness (Kutchins and Kirk 1997:225).

Deinstitutionalization or Transinstitutionalization? Sinceits peakin the 1950s,the rate of hospitalizationfor severely mentallyill individuals hasdramat-ically declined. As Figure 11.1shows, the rates of hospitalization (or bedsavailablefor hospitalization) have declined dramatically since the 1980s. At the same time, the rate ofincarceration in prisons and jail has dramatically increased. Although wecannot know whether these individuals

moved

from the mental health system directly into the criminal justice system, there does appear to be a relationship between the criminal justice and mental health systems.This relationship is complex but essentially reciprocal,

withincreased hospital admissions in times offewer jail admissions and

decreased hospital admissions whenjail populations increase (Rothman 1980; Hochstedler 1986; Cirincione et al. 1992; Torrey et al. 1992;

Miller 1993; Cirincione, Steadman, and Monahan 1994;

Teplin and Voit1996; Hiday1999; Liska et al. 1999; National Centerfor HealthStatistics2008). As a general rule, if prison populations arelarge, the asylum populations are relatively small; the reverse alsotends to betrue (Steadman et al. 1984; U.S. Department ofJustice 1997a; Kupers 1999; Liska et al. 1999). 70

600

60

Imprisonment

Rate

500

50 400 Rate

Rat

Bed

40 300

Hospital

30 Imprisonment Mental

200 Rate

20

of

mental

health

beds

100

10

0

0 1980

1983

1986

1990

1992

1994

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

Year

FIGURE11.1 Rate(per 100,000) ofImprisonment withtrendlines Note: Datafrom

and Bedsin State and County Mental Hospitals,

U.S. Department of Justice (2009) and National Center for

Health Statistics (2008).

Chapter 11 |

The

Mental

Health

and

Criminal

Justice

Systems

as Agents

of Social

Control

19

Todaythe majority of mentalhealth careis on an outpatient basis, as opposedto inpatient ser-vices. This

was not always the case;in the 1950s, emphasis was oninpatient care. Severalfactors

in the U.S.led to this push toward the deinstitutionalization passageof the National Mental Health Act of 1946.This programs andin training

of mental hospitals, including the

Actled to significant increases in commu-nity

mental health practitioners and workers.There

wasa corresponding

increase in numbers of outpatient clinics, general hospital inpatient services, and nursing home beds for the mentallyill. The increasingly

widespread use of psychoactive drugsto treat mental patients

has widely been considered the primary factor leading to deinstitutionalization.

In addition, the

enactment ofthe Mental HealthStudy Actin 1955,establishingthe Joint Commissionon Mental Illness and Mental Health, whose purpose is to analyze and evaluate the needs of the mentallyill played an important

role.The

passageof the

Mental Retardation Facilities and Community Mental

Health Centers Construction Actin 1963 stimulated programs designedto provide community

mental

health services (Mechanic and Rochefort 1990). Finally, the Supreme Court also entered the fray, with the Willowbrook

Consent Decree. In 1975 the Supreme Court decided that mental patients

mustbe kept in the least restrictive setting necessaryfor their well-being. Despitethese efforts at deinstitutionalization,

critics havesuggestedthat rather than deinstitutionalization,

exists is transinstitutionalization

with mentallyill individuals

what currently

who would have,in the past, been

keptin a psychiatric hospitalsetting,instead being movedinto otherinstitutionalized settings,in particular the criminal justice system. Concernsregarding transinstitutionalization

and mentalillness include the difficulties mentally

ill prisoners face coping in prisons, duelargely to inadequate

mental health treatment.

Oneissue

that has been raised focuses on medication asthe soletreatment for prisoners.There havealso been concerns regarding atendency to treat mentalillness in segregation, which has a negative impact on the socialization and adjustment of the mentallyill. There are apparent race, class, and gender differences in the definition of and accessto treatment in prison. to a 2006 Bureau of Justice Statistics report (the

Withrespect to gender, according

mostrecent year available), 55 percent of male

inmates in state prisonershadsuffereda mentalhealth problemin the pastas opposedto 73 percent offemales. To some extent, these gender differences mayreflect differences in labeling on the part ofthe criminal justice system. For example, Auerhahn and Leonard explain that, depending on the institution, (2000).

female inmates are medicated at two to ten times the rate of their Women whoengagein violent offenses are also disproportionately

malecounterparts

medicated (Auerhahn

and Leonard 2000). Luskin (2001) explains that part ofthe gender difference in receipt of psychi-atric treatment has to do with perceptions of dangerousness. Luskin notes that due to the larger physical size and strength of men,they are often seen as more dangerous and thus are less likely to get diverted into

mental health programs (2001).

Racecan also affect whetheror not onereceivesa mentalhealthlabel and possibletreatment. According to 2006 datafrom the Bureau ofJustice Statistics, 62 percent of whiteinmates, 55 percent of black inmates, and 46 percent of Hispanic inmates had suffered a mental health problem in the past. Although inconsistent, there is some evidence that race might play a role in the diversion of convicts into the mental health system in lieu of prison (Luskin 2001). In addition, social class mayaffect mentalillness and the labeling and treatment of these dis-orders. According to 2006 datafrom the Bureau of Justice Statistics, in state prisons 13 percent of mentallyill inmates had been homelessin the past year compared to only 6 percent of non-mentally

192

CRIME, JUSTICE,

AND SOCIAL

CONTROL

ill inmates. Furthermore, 70 percent of mentallyill inmates had been employed in the month before their arrest in comparison to 76 percent of non-mentally ill inmates. This

book seeks to provide

additional information regarding the impact of race, class, and gender on the diagnosis of mental illness and receipt of treatment.

Theories of Gender,Race, MentalIllness, and Criminal Labeling Both gender and race affect criminal justice processing. Racial minorities are disproportionately represented in the criminal justice system (U.S. Department of Justice 2006).This

has often been

attributed to systematic discrimination in each stage ofjustice processing (Spohn and Holleran 2000; Steffensmeier and DeMuth 2000; Bushway and Piechl 2001; Chiricos, et al. 2004; Steen et al. 2005). Manyresearchers also arguethat when decision-makers arefree to exercise discretion, they systematically favor female offenders over similarly situated maleoffenders (Farrell and Swigert 1986; Simon and Landis 1991; Boritch 1992; Nageland Johnson 1994; Daly and Bordt 1995; Katz

and Spohn1995; Kruttschnitt 1996; Steffensmeieret al. 1998). While mostgender roles are unwritten, Schur (1984) contends that gender norms work as a mechanism for the social control of women (p. 52). Heexplains that women are doubly stigma-tized, since behavioral extremes are not tolerated, and instead are labeled. For example, women who show too little emotion are labeled cold, demonstrate too

calculating,

much emotion, they are hysterical

or masculine.

Conversely,if they

(Schur 1984:53).Therefore,

women suffer

from a double bind in which they are alwayslabeled unlessthey act within narrowly defined limits. Thus, the response to different criminal women on the part ofthe criminal justice system mayvary considerably, dependent on whether the womans behavioris considered to be a violation oftypical

genderedexpectations. Manygendered explanations are based onthe chivalry or paternalism thesis; while paternalismis considered morepejorative than chivalry, theseterms tend to be usedinterchangeably.This concept is not always precisely defined, but generally refers to a protective attitude toward

womenthat is

linked to gender stereotypes of women as(1) weaker and morepassivethan men,and therefore not proper subjects for imprisonment,

and (2) moresubmissive and dependent than men,and therefore

less responsible for their crimes. Judges might also regard women as moreeasily manipulated than men,and therefore

morereceptive to rehabilitative efforts (Nagal and Johnson 1994).

Acorollary to the chivalry/paternalism thesis: the evil

woman thesis.This thesis hypothesizes

that women whosecriminal behaviorviolatesgenderedassumptionsaretreated moreharshlythan their

malecounterparts. In other words, not only do certain types offemale offenders fail to benefit

from paternalistic treatment, they are actually subject to heightened social control for their choice of an unladylike

offense(Crew 1991; Boritch 1992; Nageland Johnson 1994).Thus, the criminal

justice system may punish women harshly only when they fail to live up to their expected role (Simpson 1989; (by

Worrall 1990; Kruttschnitt 1996).

When women are fulfilling

their gender roles

marrying and taking care of their children), they are treated in a paternalistic

morelenient treatment.

When womenfail to fulfill

manner, with

prescribed gender roles, however, social contro

Chapter

is increasedmore

11 |

The

Mental

so then for

Health

menin

and Criminal

Justice

Systems

as Agents

of Social

an attempt to bring the behavior backinto line

Control

with what

is expected of women(see Schur 1984; Horwitz 1990:113114). While women might be expected to actin a feminine include criminality

manner,expectations of African Amer-icans

and violence (Smith 1991; Sniderman and Piazza 1993; Quillian and

Pager 2001).This stereotype of African Americans as criminal is deeply embedded in Americans expectations (Devine and Elliot 1995; Emerson et al. 2001; Quillian and Pager2001). For example, individuals

have used stereotypes about racial

minorities in their perceptions of neighborhood

crime rates, in support for punitive crime policies, and the stigma of incarceration (Chiricos et al.

2001; Emersonet al. 2001; Quillian and Pager2001; Western2002; Chiricos, Welch,and Gertz 2004).This

perception of racial

minorities as criminal is so strong and so deeply embedded that

some have argued that behavior that actually reflects severe mental pathology in is often ignored or considered to be criminal

behavior rather than

minority groups

mentalillness (Kutchins

and

Kirk 1997:225).

ResearchQuestions The primary focus ofthis researchis criminal responsibility and howit is attributedto defendants. The question that is addressed is:

Whateffects do racial and gendered expectations have on crimi-nal

justice processing? Morespecifically:

Are womenlabeled mad

Are African American defendants criminal

while non-African

objectives in this project include determining: (1)

while menarelabeled bad?

Americans are ill? The primary

Whatis the role ofrace, gender, and social class

in predicting psychiatric treatment for felony defendants?; (2) Arefemale offenders medicalized by being morelikely to receive psychiatric treatment than similar

maleoffenders?;(3) Are African

American offenders less likely to be psychiatrically treated than are non-African finally (4)

Americans?; and

How does socio-economic status affect the receipt of psychiatric treatment?

To meetthese objectives,demographic,criminal, familial, and psychiatricdata weregatheredfor felony defendantsin Hennepin County, Minnesota.These data wereobtained for a detailed analysis ofthe casesreferred by the criminal justice system for psychiatric evaluation to determine mental status atthe time ofthe offense. Additional data werealso analyzed to present national dataregard-ing that status of psychiatric treatment for jail and prison inmates, and for offenders on probation. The following

chapters focus on the predictors of psychiatric evaluations and other forms of

psychiatric treatment for criminal outcomes.This

defendants, and the effects of psychiatric evaluations on case

book aims to contribute to the state of sociological and criminological

knowledge

by using a sampling strategy that isolates the effects of race and gender on attributions of mental

illness, bytesting feminist, labeling, and social control theories about attributions of mentalillness, and by determining the effect mentalillness attributions have onfinal case outcomes.

Chapter Review Questions 1.

Roughly how many mentallyill individuals fall under the jurisdiction justice system, either on probation or confined in prisons orjails?

ofthe U.S.criminal

19

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CRIME, JUSTICE,

AND SOCIAL

CONTROL

2. The relationship between the criminal justice and mental health systems in the U.S.is best described as _________? 3.

Whatis the name ofthe processin which large numbers of mentallyill individuals

are

movedfrom mentalhealthfacilities into criminal justice institutions? 4.

Karen Luskin hasarguedthat part ofthe reason womenreceive psychiatrictreatment disproportionately to menin the criminal justice system hasto do with perceptions of dan-gerousness. Whatdoes she mean by this?

5.

Whatdoesthe average criminal defendant look like in America and how doesthis fact affect the likelihood

of one being psychiatrically evaluated

12

ChaPTEr

WrongfulConvictions in the UnitedStates RONALD C. HUFF

T

he U.S.experience

with the problem of wrongful conviction

extends

C. Ronald

ofthe United Statesas anindependent nation. Ascitizens of a British

colony, the colonists

were often subjected to secret accusations

without the

right to question their accusers and were generally denied the types of due

Huff, Wrong-ful

Convictions

throughout the nations history, of course, and predates the formation

States,

International Miscarriages Ronald

in the

Wrongful

United

Conviction:

Perspectives of Justice,

Huff and

on ed. C.

Martin Killias,

pp. 59-70.

Copyright

process rights that U.S.citizens havetaken for granted since the development

by Temple

University

of the Constitution

Reprinted

with permission

and the Bill of Rights. Although status differences

generally less important

in the colonies than

American colonies were certainly Virginia) (Whitman,

were

2009 Press.

wasthe case in England, the

not egalitarian,

and some regions (espe-cially

were quite conscious of distinctions in socioeconomic

2003). This fact, along with the inferior

class

social status assigned

to blacks, suggeststhat class and race discrimination influenced decisions regarding

who was guilty and how they should be punished. Sadly, such

discrimination

continues to occur today despite important

reforms, and such discrimination

social and legal

is evident in many cases of wrongful con-viction

in the United States. This

chapter is not, however, the place in which to dwell on the colonial

roots of wrongful conviction, but rather to discussthe contemporary

American

experience and the needfor cross-national, comparative research and policy discussions. As noted elsewhere (Huff, 2002), scholars, jurists, journalists,

and

activists have documented and analyzed casesof wrongful conviction since Borchards (1932) pioneering work morethan seven decadesago. For morethan half a century, the documentation and analysesfocused almost exclusively on individual

cases, but beginning in the 1990s and continuing today, a decided

shift has occurred in scholarly research, as well asin

mediaattention and public

opinion.The public policy importance of wrongful conviction hasrecently grown in the United States.The increasing awareness ofthis issue among citizens and

195

196

CRIME, JUSTICE,

AND SOCIAL

CONTROL

policymakers has been closely linked to the highly publicized postconviction of individuals

DNA exonerations

who served long prison sentences and the increasing abolition of or moratoria on

the use of the death penalty in the United States. Recentstudies involving the possibility of error in capital cases have brought evenfurther attentionand

a sense of urgencyto

this issue. In their

seminal study, Radelet, Bedau, and Putnam (1992) argued that atleast twenty-three innocent per-sons have already been executed in the United States.In a morerecent and highly publicized study examining thousands of capital sentences over atwenty-three-year

period (1973 to 1995), Liebman

et al. (2000; see also Liebman, 2002) found serious, reversible errors in nearly seven of every ten

cases. Althoughthe great majorityofthose whoare wrongfully convictedin the United Statesdo notface the death penalty or life in prison, such errors often result in many years of unwarranted punishment and serious damageto the lives ofthe wrongfully convicted, whilethe actual offenders in those cases arefree to commit additional crimes, thus compromising public safety.

WhatIs the Frequencyof WrongfulConviction in the United States? Nosystematic data on wrongful conviction are kept in the United Statesand certainly it is not possible at this point to accurately estimate or compare the magnitude or frequency ofthis problem across jurisdictions. In fact, estimating the extent to which wrongful conviction occurs is a much greater challenge than estimating the true incidence rate of crime, since victimization surveys (including cross-national surveys) have greatly facilitated that task, allowing usto extrapolate between offi-cial crime reports and victimization

data. No similar credible methodology has been developed

to estimate the true extent of wrongful conviction, as manycases go undiscovered and analogous surveys of prisoners, for example, wouldlack public credibility.

AcolleagueandI conducteda survey, utilizing anintentionally conservativesampledominated by prosecutors, judges, and law enforcement officials, and a national sample of attorneys general (Huff,

Rattner, & Sagarin, 1996).The total sample size was353 and wereceived 229 responses (a

65 percent response rate).

Weasked our conservative sample to estimate what proportion

of all

felony convictions resulted in wrongful convictions. Based on the responses wereceived, wethen estimated an error rate of 0.5 percent, and wedecided to see whatit would really

meanif the U.S.

criminal justice system is, indeed, 99.5 percent accurate and errs in only 1/2 of 1 percent of all felony cases. Based on Uniform Crime Report datafor 2000, if weassumethat the systemis 99.5 percent accurate, wecan estimate that about 7,500 persons arrested for index crimes are wrongfully

convicted eachyearin the United States. The

UnitedStateshassuch alarge baserate of arrestsfor

serious crimes that only a small error rate will produce thousands of wrongful convictions each year. Also, Scheck, Neufeld, and Dwyer (2000) reported that in DNA testing conducted in 18,000 criminal cases, morethan 25 percent of prime suspects wereexcluded prior to trial. Sincethe great majority of criminal cases do not produce biological materialto betested, one can only speculate asto the error rate in those cases.These findings U.S.criminal justice system

raise serious questions about the accuracy ofthe

Chapter 12 |

Wrongful

Convictions

in the

United States

19

WhatArethe Causesof Wrongful Conviction

in the UnitedStates? Researchin the United States hasconsistently found that the principal factors contributing to wrong-ful conviction include eyewitness error; overzealous law enforcement officers and prosecutors who engagein

misconduct,including

interrogations;

perjury;

withholding evidence; false or coerced confessions and suggestive

misleadinglineups; the inappropriate

use of informants or snitches;

the

ineffective assistanceofcounsel;community pressurefor a conviction;forensicscienceerrors,incom-petence, and fraud; and the ratification

of error (the tendency to rubber

stamp

decisions made

at lower levels as cases move up through the system). Usually, morethan onefactor contributes to the error and there areinteraction effects among these factors. For example, police or prosecutorial overzealousness might be combined with perjury, withholding of evidence, and the inappropriate use ofjailhouse informants, all occurring in a casein whichthe defendant hasinadequate assistance of counsel and is therefore unable to discover these errors. Let us consider some of these factors.

Eyewitness Error The great majority of extant research suggeststhat eyewitness identification

error is the factor that

is most often associated with wrongful convictions. In our survey, 79 percent of our respondents ranked witnesserror asthe mostfrequent type of error resulting in wrongful conviction (Huff et al., 1996, p. 67). Scheck et al., (2000) reported that 84 percent ofthe DNA exonerations that they examined rested, at least in part, on mistaken eyewitness identification.

Loftus (1979),

Wellsand

his colleagues (Wells et al., 1998) and other scholars have written extensively concerning eyewitness perception; how it can be significantly

affected by psychological, societal, cultural, and systemic

factors; and how police lineups should and should not be conducted in fairness to suspects.

Overzealousor Unethical Police and Prosecutors Ofthe postconviction DNA exonerations reported by Schecket al. (2000), 63 percentinvolved police or prosecutorial

misconduct.They

also reported that in examining 381 murder convictions that

had beenreversed dueto police or prosecutorial

misconduct, not once wasa prosecutor disbarred,

even when knowingly allowing perjured testimony or deliberately concealing exculpatory evidence. Mostofthe time, they were not even disciplined. Arecent study by the Centerfor Public Integrity (2003) found that since 1970, individual judges and appellate court panels cited prosecutorial

mis-conduct

asafactor whendismissingchargesat trial, reversing convictions or reducing sentences in

morethan 2,000 cases. An analysis ofthese casesrevealed the following types of misconduct: Courtroom

misconduct (includes

the presence of the jury; introducing or inflammatory

or inflammatory

comments in

or attempting to introduce inadmissible, inappropri-ate,

evidence; mischaracterizing the evidence or the facts of the caseto

the court orjury; committing closing arguments)

making inappropriate

violations pertaining to jury selection; or makingimproper

198

CRIME, JUSTICE,

AND SOCIAL

CONTROL

Mishandling of physical evidence (includes hiding, destroying, or tampering

with evidence,

casefiles, or court records)

Failingto discloseexculpatory evidence Threatening,

badgering, or tampering

with witnesses

Usingfalse or misleading evidence Harassing, displaying biastoward, or having a vendetta againstthe defendant or defendants counsel (including selective or vindictive prosecution, whichincludes instances of denial of speedy trial) Improper

behavior during the grand jury proceedings (Center for Public Integrity, 2003)

False and Coerced ConfessionsandImproper Interrogations Another important

factor in

wrongful convictions is false and coerced confessions, often

related to suggestive interrogations. sixty-two

postconviction

Scheck et al. (2000)

reported that fifteen

of the first

DNA exonerations in their database, or about one in four, involved

false confessions. Somelaw enforcement units seem especially proneto unethical behavior.These include elitist units that tend to operate with moreindependence from the rest of the organization, such as elite

narcotics enforcement and street gang units. For example,in a recent highly publicized scandal in the Los Angeles Police Department, an excerpt from one officers own testimony illustrates the problem: Well,sir, make no bones about it, what we did was wrongplanting evidence, perjuring ourselvesbut

evidence ... fabricat-ing

our mentality was us against them... .

Weknew

that Ramparts crime rate, murder rate, wasthe highest in the city... . (L)ieutenants, cap-tains, and everybody else would come to our roll calls and say this hasto end and you guys arein charge ofthings.

Dosomething about it. Thats

your responsibility... .

And the mentality was,it waslike a war, us against them... . (McDermott,

2000,

p. A22)

Inappropriate Another important or snitches,

Useof Jailhouse Informants or Snitches contributing factor is the widespreadand often unprincipled use ofinformants,

by police, prosecutors, and jail officers. Five of thefirst

thirteen Illinois

death row

inmates found to have been wrongfully convicted wereprosecuted usingjailhouse informants, and 21 percent of the DNA exoneration casesreported by Scheck et al. (2000) involved the use ofjailhouse

snitches. Suchinformants, manyof whom havebeen usedrepeatedly,are often willingto shape their stories tofit

whateveris needed,in return, of course, for favorable considerations of various

kinds (or, sometimes, simply becausethey do not like the defendant orthe nature of the crime with which he or she has been charged; e.g., violent crimes against children, such as molestation or rape). These

unreliable informants

have often played key roles in helping convict defendants, including

those in capital cases. Majorinvestigations concerning the use ofjailhouse informants

have been

conducted in both the United States and Canadain recent years, culminating in recommendations for reform (Bloom, 2003)

Chapter 12 |

Ineffective

Wrongful

Convictions

in the

United States

Assistance of Counsel

Ineffective assistance of counsel has been a basisfor appeal in the United Statessince the famous Scottsboro Boys case (Powell v. Alabama, 1932), but such appeals are rarely successful, despite the widespread acknowledgment by judges at the state and federal levels that many attorneys are inadequately prepared for trial

work. Unfortunately, being inadequately represented by defense

counsel is a widespread problem that is likely to worsen due to the inadequate budgets allocated for defense work. Giventhe assumptions of the adversarial system ofjustice, ineffective assistance of counsel poses a special problem and challenges those assumptions. Even morethreatening to

our adversarialsystems assumptionsarethe guilty plea wholesalers(Huff, Rattner,and Sagarin, 1996, p. 55) who makecomfortable livings by pleading defendants guilty withoutinvestigating cases or even interviewing the defendants.

Forensic Errors, Incompetence, and Fraud The important advancesin forensic science offer tremendous opportunities to improve the accuracy of our criminal justice system. However,the technology is ahead ofthe quality control, training, and in some cases, ethics, ofthose working in crime labs. Onthe positive side, Scheck and Neufelds

Innocence Projecthasrelied on DNA analysesto exonerate manywrongfullyconvicted persons. On the negative side, some junk

scientists

have mishandled, misinterpreted, and evenintentionally

distorted evidence that has helped secure the convictions ofinnocent defendants. Forensic labs where evidence in criminal casesis analyzed should be accredited, independent scientific laboratories

with their own line item budgets, and their analyses should be equally avail-able

to both the prosecution and the defense. Unfortunately, in the United Statesthese labs are nearly always part of alaw enforcement organization.This

organizational locus often subjects them

to organizational cultures that emphasize convicting defendants (We

arrest them and you help

convict them) instead of emphasizing scientific objectivity.

The Adversarial System A majorcontextual factor in the production of wrongful convictions in the United Statesis the adver-sarial system in which the U.S.criminal justice process unfolds.The adversarial system relies on the skill and resources of the prosecution and the defense, and nearly always in criminal cases,the prosecution enjoys considerably moreresources than doesthe defense.These resource advantages include human resources (investigators, staff, etc.) and budgetary resources. In all too manycases, the defensecounsel relies heavily,if not entirely, onthe policeinvestigation, rather than conducting

anindependentinvestigation to establishthe facts.This

meansthat the policeinvestigation must

be both thorough and objective, whichis not always the case due to the organizational pressures to moveon to the next case(time and caseload pressures) and to pressfor a conviction (public and political pressures). Although both the adversarial and the inquisitorial

systems replace private vengeance with

state authority, the adversarial system places muchgreater emphasis on processthan on simple truth-finding. This is apparent in a number of casesinvolving

wrongful convictions,

wherein the

convicted defendants sought reversals of their verdicts on the grounds that they werefactually

19

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CRIME, JUSTICE,

AND SOCIAL

CONTROL

innocent (and in some cases, had new evidencethat could potentially exonerate them), only to learn that since they claimed no procedural violations, their chances for success wereremote at best. A humorous story is told to illustrate this point with respect to the British system of adversarial justice. Afrustrated

Englishjudge hadjustfinished listening to conflicting

witness accounts, when

the judge turned to the barrister and asked, Am I neverto hearthe truth? The No,

mylord,

barristers reply:

merelythe evidence.

Defenders of the adversarial system argue that it is superior becausejustice is better served whenthe two sides present vigorous casesand the trier offact decidesthe outcome.This,

of course,

assumesthat both sides will presentvigorousargumentsand will haveconductedthorough inves-tigations to determine the facts of the case.These assumptions are highly questionable, given the resource issues already noted. Onthe other hand, defenders ofthe adversarial system argue that without suchindividual-level responsibility for representing the defendant, the inquisitorial

system

does not ensure a thorough investigation and presentation ofthe facts, either.

Recentand Current Developments TheInnocence Protection Act The Innocence Protection Act of 2003 represented a comprehensive package of criminal justice reforms aimed at reducing the risk that innocent persons maybe executed.The bill would(1) ensure that convicted offenders are afforded an opportunity to prove their innocence through DNA testing; (2) help states provide competent legal services at every stage of a death penalty prosecution; (3) enable those who can prove their innocence to recover some measureof compensation for their unjust incarceration; and (4) provide the public with morereliable and detailed information regard-ing the administration

of the nations capital punishment laws.The chief sponsor of the bill in the

Senate, Senator Patrick Leahy (D-Vermont),

madethe following comments at a press conference:

... (T)he death penalty machineryis broken... . Morethan 100 people have been released from death rownot

ontechnicalities,

but becausethey wereinnocent. The Innocence

Protection Act addressesthe very same problems that the public is concerned about... . Thirty-one

members ofthe Senate and 246 membersof the House are cosponsors ofthe

bill. Cosponsors are Democrats and Republicans, supporters of the death penalty and opponents, liberals and conservatives... . If weput ourselvesin the place of those whoare wrongly convicted, wesurely would act. Ayear maynot seemlike along time on Capitol Hill, butit is an eternity for someone sitting, wrongfully convicted, in a death row prison cell. For every wrongfully convicted person on death row there is a true killer who may still be on the streets.The

parade of wrongfully convicted people being released from

death row undermines public confidence in our system ofjustice. These close calls should concentrate our minds and focus our will ... (Leahy, 2002) Majorparts ofthe Innocence Protection Act werelater incorporated in the Justice for All Act of 2004, which becamelaw on October 30, 2004, after approval from the U.S.Senate on a voice vote and approval from the U.S. House of Representatives (393 to 14).The a bipartisan amendment sponsored by Judiciary

U.S. Senate has approved

Committee leaders to secure over $200 millio

Chapter

in funding overfive All Act.The

12 |

Wrongful

Convictions

in the

United

States

years for several Justice Department programs authorized by the Justice for

bulk of the funding

would go to key programs authorized by the Innocence Protec-tion

Act. Senator Leahy and Chairman Arlen Specter (R-Pennsylvania)

offered the amendment,

which would provide $82.5 million to support a variety of DNA education, training, research and identification

programs; invest $13 million in the Kirk Bloodsworth Post-Conviction

grant program, and provide $111 million in Capital Litigation Improvement

DNA testing

Grantsto improve the

quality oflegal representation for indigent defendantsin capital cases. Congress will determine the final funding level for this important

act, whichrepresents an important step forward for innocent

people who mightotherwise besentencedto death. By providing funds to test the backlog of as many as 300,000 untested rape kits, this legislation

will help ensure that perpetrators are caught

and punished. In addition, the bill establishes the Kirk Bloodsworth Post-Conviction

DNA Test-ing

Program to test the DNA evidence ofthose already convicted of crimes who maybeinnocent, including death row inmates, some of whom havealready been exonerated through the use of DNA testing. It is alsoimportant to ensure that death penalty trials arefair and accurate by helping states provide professional and experienced lawyers at every stage of a capital case.

Innocence Projects and Innocence Commissions The Innocence Project wascofounded by Barry Scheck and Peter Neufeldin 1992 at the Benjamin Cardozo Law School in

New York City.It is a clinical law program for law students supervised by

law professors and several administrators. It provides pro bono legal assistance to inmates

who

are challenging their convictions based on DNA testing of evidence, although clients must obtain funding for testing.The

Project has represented or assistedin

morethan 160 cases whereconvic-tions

have been reversed or overturned in the United States. The

Project is currently

working on (1) legislation that

allowing for easier accessto postconviction

would provide statutes in every state

DNA testing of evidence; (2) proper compensation of

wronglyincarcerated citizens; and(3) developmentof anInnocence Networkin law schoolsacross the country, which would enablethe Innocence Project to act as a conduit and passthese cases on to other law schools that are equipped to handle them. Another important

development is the increasing advocacy for criminal casesreview commis-sions,

or innocence commissions (see, e.g., Scheck and Neufeld, 2002). Suchcommissions should be established at the federal and state levels in the United States. As Griffin (2001) has noted, the commissions could review appeals,then refer appropriate casesto trial-level courts that could then entertain collateral attacks on the conviction. They

could hold hearings and decide to dismiss the

appeal or referral, order a newtrial, or vacatethe conviction.

Althoughstate andlocal bar associationsandthe courts mustbecome moreactivein punishing and deterring such behavior, that is not likely to be sufficient, nor will the efforts of Schecks and Neufelds Innocence Project, Jim McCloskeyand Centurion Ministries, and a number ofjournalists and activists.The time has come to do whatthe United Kingdom has done. Weshould establish commissions similar to their Criminal Cases Review Commission (CCRC) to review postappellate claims of wrongful conviction and, whereappropriate, refer those casesto the appropriate courts. According to Griffin (2001), atthe time of her analysis, the CCRC had received 3,680 appeals, had reviewed 2,381 and had referred 203 cases(4.3 percent) to courts of appeal. Ofthose 203

20

202

CRIME, JUSTICE,

AND SOCIAL

cases,forty-nine

had been heard by the courts, resulting in thirty-eight

overturned. These thirty-eight

CONTROL

convictions having been

overturned convictions represent 77.5 percent ofthe casesreferred

to the courts by the CCRC but only 1.6 percent of all appeals.Thus, the argument that has been advanced by some critics that such a review commission find

would overburden the courts does not

empirical support thus far, atleast with respect to the British experience. In addition to the important

benefit of postconviction reviews based on claims ofinnocence,

innocence commissions can also serve asinvestigative bodies to analyze system failures what went wrong and what might be done to prevent such miscarriages ofjustice.

to see

Weare struck by

the contrastin what occurs whena plane or a train crashesas compared with whatoccurs when innocent persons are wrongfully convicted.The former tragedies lead to immediate and thorough investigations to determine what went wrong, but the latter tragedies do not. Innocence commis-sions could undertake suchinvestigations if given proper resources. Finally, innocence commissions have been created in several states and countries. In 2002, North Carolina, in response to highly publicized wrongful convictions, became thefirst

state in the nation to announce the creation of

aninnocence commission. In 2003, Connecticut becamethefirst

statein the United Statesto use

legislative action to create aninnocence commission. Severalother statelegislatures haveconsidered or are considering proposals for similar commissions.

The Death Penalty The

highly publicized DNA exonerations mentioned previously, especially those involving prisoners

under deathsentences, have calledinto question the continuing use ofthe death penalty as a sentenc-ing option in the United States.In Illinois, former

Governor George Ryanimposed a moratorium

on the death penalty in that state,following a period of time in which more death row inmates had been exonerated than had been executed. He wasconcerned about the clear-cut evidencethat the criminal justice system had madea number of errors and, therefore, the possibility that innocent

persons mightbeexecuted. These developments, coupled with the fact that the United Statesis increasingly isolated, espe-cially among the developed nations of the world, in its use ofthe death penalty, may ultimately result in its abolition.

As Zimring (2003) recently noted:

[A] process of social engagement with capital punishment that is without precedent in American history has already begun.The end gamein the effort to purgethe United States ofthe death penalty has already beenlaunched. The length and the intensity of the struggle necessaryto end the death penalty are not yet known, but the ultimate outcome seemsinevitable... . (p. 205) The death penalty should beabolishedin the United Statesand replaced with sentences oftwenty years,thirty

years, or life imprisonment

without parole, depending onthe facts of each case. Since

all convictions are based on a probabilistic assessment of guilt and are subject to error, they should be reversible, allowing the innocent person to befreed and compensated. All criminal sentences exceptthe death penalty allow this opportunity, but execution of the innocent forecloses this option. Samuel Gross(1998) recently found that a majority of Americans surveyed, both supporters and opponents ofthe death penalty,indicated that the issue ofinnocence causedthem concern about th

Chapter

12 |

Wrongful

Convictions

in the

United

States

20

propriety of the death penalty. In a subsequent study, Grosset al. (2005) also found that during a recentfifteen-year

period (1989 to 2003) in the United States,there were328 exonerations, mostly

involving those sentenced either to life imprisonment

or death. Finally, this would bring the United

Statesin line with other nationsthat have abolished the death penalty. Such abolition is, for example, a requirement of membershipin the European Union of nations, and Russia has had a moratorium in placefor a number of years and shows nointention

ofresuming capital punishment.

In 360 B.C., one of the worlds greatest philosophers, Plato, madethe following observation in The Republic, perhapsthefinest of his Socratic dialogues: Mankind

censure injustice fearing that

they maybethe victim ofit, andnot becausethey shrink from committingit. In that regard,it seems that not much has changed. It is therefore imperative that we continue to develop a better under-standing of this particular type ofinjustice known as wrongful conviction and reduce its occurrence, both to protect the innocent and to protect society from continued victimization by criminals

who

mayremain free while innocent persons go to prison or, perhaps, to their deathsin those societies that retain capital punishment as a sentencing option. As Forst (2003, 2004) has argued, the U.S. criminal justice systems accuracy is essential to its perceivedlegitimacy, and systematic attention must be paid to the errors that are committed and how those errors mightbe reduced.

References Bloom, R. M.(2003). Jailhouse informants. Borchard,

E. M.(1932).

Criminal Justice, 18(1), 2026,

Convicting the innocent:

Sixty-five

78.

actual errors of criminal justice.

Garden

City, NY:

Doubleday. Center for

Public Integrity.

(2003).

Harmful error: Investigating

Americas local

prosecutors.

Washington,

DC: Author. Forst,

B.(2003,

August 26). If

at the First International

wrongful conviction Workshop on

were a disease, what would be the cure? Paper presented

Wrongful

Convictions,

Breil/Brigels,

Switzerland.

Forst, B.(2004). Errors of justice: Nature, sources andremedies. New York: Cambridge University Press. Griffin,

L. (2001). The

correction

International Gross, S. R.(1998).

of wrongful

convictions:

Acomparative

perspective.

American

Univer-sity

Law Review,16, 12411308. Update:

American

public opinion

on the death penaltyIts

getting

personal.

Cornell

Law Review, 83, 14481475. Gross, S. R.,Jacoby,

K.,

States 1989 through

Matheson, D.J., 2003.

Huff, C. R.(2002).Wrongful Huff, C. R., Rattner,

Thousand Leahy, P. (2002,

Montgomery,

The Journal conviction

A., & Sagarin,

of Criminal

and public

E.(1996).

N., & Patil, S. (2005). Law and Criminology,

policy. Criminology,

Convicted but innocent:

Exonerations

in the

95, 523560.

40(1), 118. Wrongful conviction

and public policy.

Oaks, CA: Sage. September

Liebman, J. S.(2002).

24). [Comments

at press conference.]

Washington,

DC.

Rates of reversible error and the risk of wrongful execution. Judicature, 86(2),

7882. Liebman, J. S., Fagan, J., 19731995. Loftus,

United

West, V., & Lloyd, J. (2000).

Capital attrition:

Error rates in capital

Texas Law Review, 78, 18391865.

E. F.(1979).

Eyewitness testimony.

Cambridge,

MA: Harvard

University

Press.

cases,

204

CRIME, JUSTICE,

AND SOCIAL

McDermott, T.(2000,

CONTROL

December 31). Perezs bitter saga of lies, regrets, and harm. Los AngelesTimes, pp.

A1, A22A24. Penrod, S.(2003). Eyewitness identification

evidence: How well are witnessesand police performing?

Criminal Justice, 18(1). Plato. (1998). Therepublic (Book I, 344-C; trans. R. Waterfield). New York: Oxford University Press. Radelet, M. L., Bedau, H. A., & Putnam, C.(1992). In spite ofinnocence: Erroneous convictionsin capital cases. Boston: Northeastern University Press. Scheck, B. C., & Neufeld, P.J. (2002). Toward the formation

of innocence

commissions in America.

Judicature, 86(2), 98105. Scheck, B. C., Neufeld, P.J., & Dwyer, J. (2000).

Actualinnocence: Five daysto execution and other dis-patches

from the wronglyconvicted. New York: Doubleday. Wells, G. L., Small,

M., Penrod, S., Malpass, R.S., Fulero, S. M., & Brimacombe, C. A. E.(1998). Eye-witness

identification

procedures: Recommendations for lineups and photospreads. Law and Human

Behavior, 22, 603647. Whitman, J. Q.(2003).

Harshjustice: Criminal punishment andthe widening divide between America and

Europe. New York: Oxford University Press. Zimring, F. E.(2003). Thecontradictions of American capital punishment. New York: Oxford University Press.

CasesCited Powell v. Alabama

287 U.S. 45 (1932

13

ChaPTEr

TowardRestorative andCommunity Justice MICHAELBRASSWELL, JOHN FULLER, AND BO LOZOFF

P

When wespeak of

eacemaking criminology hasthe potential to beeffective at many

levels.

Wehave already discussed how personal transformation

restorative justice,

we

andinstitutional changecan beenvisionedby peacemakingcrim-inology. While each of these levels of change are important,

there is

run the risk of saying

another opportunity to implement peacemaking that is rapidly gaining

morethan we know.

momentum around the world as an effective and humane wayto deal

Andif

with offenders. Community justice is emerging as an alternative to the traditional criminal justice system. Whilethere are manyvariations of

weare honest, we

must admit that we know

the community justice theme, we will concentrate on a processtermed

morethan welive.

restorativejustice as a wayto demonstrate how positive change can occur outside the criminal justice system.

Daniel

Van

Ness

Communityjustice as practicedbythe restorativejustice movement cannot be called a new phenomenon, but rather a return to the days

I aint whatI wanna be

whenconflicts wereresolved at the level of the family, clan, group, and

I community. The emphasis of community justice is not on the punish-ment of the offender, but on the restoring ofthe relationship between the offender and victim, as well as on maintaining order and social and moral balance in the community.

Community justice therefore has a

broader mandatethan the traditional

criminal justice system. It

aint whatIm gonna be

but Oh Lord

I aint whatI usedto be.

must

An Unknown

Slave

satisfy the concerns of several constituents and produce a result that

is viewed both asjust and satisfying. In other words,the limited institutional goals of clearing a court docket or ensuring that an offender is punished are not enough for community justice. A moreinclusive and healing result is the goal. Before we discuss the underlying principles of restorative or community justice,

we needto examine whythe criminal justice system is so unsatisfying

in giving people a sense that crime is being dealt with in an effective At the heart of the dissatisfaction

manner.

Michael

Brasswell,

and Bo Lozoff,

John Fuller,

Toward

and Community Corrections, Restorative Copyright

Restor-ative Justice,

Peacemaking Justice,

2001 by Elsevier

and Technology.

and

pp. 141-154. Sci-ence

Reprinted

with permission.

with the criminal justice system are two

20

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CRIME, JUSTICE,

AND SOCIAL

CONTROL

issues.The first issue of concern is the general feeling that the criminal justice system does not work very well, particularly in reflecting the interests of the victims of crime. commits a crime against an individual,

Whenan offender

the state takes the case away from the victim and pros-ecutes

it asits own. In point offact, the state replaces the victim as an aggrieved party and uses its own values and constraints to decide on a disposition. The Christie argues that the conflict takes away.1 The

Norwegian criminologist

between the offender and victim are property that the state

offender and victim nolonger have the opportunity

mutually satisfying

Nils

to resolve the casein a

way, and hope of repairing the relationship is diminished.

Asecondissue of concern withthe traditional criminal justice systemis its failure to change the criminal

behavior of the offender.The

over-reliance on punishment that is the hallmark of

the criminal justice system ignores some of societys other important of guilt or innocence and the imposition

goals.2The

of a punishment are inherently

If offenders are consistently embittered by their interaction

determination

shortsighted activities.

with the criminal justice system, and

the issues that contributed to their deciding to violate the law are not addressed, then weshould not be surprised that

whenthey are released from prison that they recidivate.

A mean-spirited

or apathetic criminal justice system will produce a mean-spirited, former inmate got nothing to lose.

Whileit is true that an emphasis on punishment

whofeels hes

does try to achieve the

goals of retribution, deterrence,andincapacitation, viewing of the offender asan enemyrather than a family

member or neighbor facilitates a punishment

a self-fulfilling

prophecy. The restorative justice

repair the relationship

mentality that inevitably

becomes

movement seeks to reclaim the offender and

with the victim and community.

Ultimately, this form of justice can be

healthier for all concerned.

Underlying Principles of RestorativeJustice Before weexaminethe processofrestorativejusticeit is usefulto look atthe underlying principles. Ron Claassen,from the Centerfor Peacemaking and Conflict Studies at Fresno Pacific College, lists these principles that

will guide our later discussion.3

1. Crime is primarily an offense against human relationships, and secondarily a violation ofthe law (since laws are written to protect public safety and fairness in human relationships). 2. RestorativeJustice recognizes that crime (violations of persons and relationships) is wrong and should not occur, and also recognizes that after it doesthere are dangers and opportuni-ties. The

dangeris that the community, victim(s), and/or offender emerge from the response

further alienated, more damaged, disrespected, disempowered, feeling less safe andless coop-erative with society.The opportunity is that injustice is recognized, the equity is restored (restitution and grace), and the future is clarified so that participants are safer, morerespect-ful, and moreempowered and cooperative with each other and society. 3. RestorativeJustice is a process to make things as right as possible

whichincludes: attend-ing

to needscreated by the offense such as safety and repair ofinjuries to relationships and physical damageresulting from the offense; and attending to needsrelated to the cause of th

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20

offense(addictions, lack of social or employment skills or resources, lack of moral or ethical base,etc.).

4.The primary victim(s) of a crimeis/are the one(s) mostimpacted bythe offense. The sec-ondary victims are others impacted by the crime and mightinclude family

members,friends,

witnesses, criminal justice officials, community, etc. 5. Assoon asimmediate victim, community, and offender safety concerns are satisfied, Restor-ative Justice views the situation as ateachable momentfor the offender; an opportunity to encourage the offender to learn new waysof acting and being in the community. 6. RestorativeJustice prefers responding to the crime at the earliest point possible and with the maximum amount of voluntary cooperation and minimum coercion, since healing in rela-tionships and new learning are voluntary and cooperative processes.

7. RestorativeJustice prefersthat mostcrimes are handled usinga cooperativestructure includ-ing those impacted by the offense as a community to provide support and accountability. This mightinclude primary and secondary victims and family (or substitutes if they choose not to participate), the offender and family, community representatives, government representatives, faith community representatives, and school representatives, etc. 8. RestorativeJustice recognizes that not all offenders will choose to be cooperative.Therefore there is a needfor outside authority to make decisionsfor the offender whois not cooperative. The

actions of the authorities and the consequences imposed should betested by whether

they are reasonable, restorative, and respective (for victim(s), offender, and community).

9. RestorativeJustice prefersthat offenders whoposesignificant safetyrisks and are not yet cooperative be placed in settings wherethe emphasis is on safety, values, ethics, responsi-bility, accountability, and civility. They should be exposed to the impact oftheir crime(s) on victims, invited to learn empathy, and offered learning opportunities to become better equipped with skills to be a productive

member of society.They should continually

beinvited

(not coerced) to become cooperative with the community and be given the opportunity to demonstrate this in appropriate settings as soon as possible. 10. RestorativeJustice requires follow-up

and accountability structures utilizing the natu-ral

community as muchas possible, since keeping agreementsis the key to building a

trusting community. 11. RestorativeJustice recognizes and encourages the role of community institutions, including the religious/faith community, in teaching and establishing the moral and ethical standards which build up the community. It is easyto see how restorative justice principles encompassthe concerns of peacemaking crim-inology. Additionally, the idea of community justice is emphasized.

Whilesome of the issues that

areembeddedin restorativejustice can beaddressedby the traditional criminal justice system,it is clear that an alternative philosophy is needed. In other words,the restorative justice, community justice, and peacemaking criminology concepts all require the traditional criminal justice system to focus much morebroadly on the welfare of the victim, community, and offender.The limited focus on guilt or innocence and punishment areinsufficient to achieve the type of healing result that is part of the community justice

model.

Giventhe underlying principles of restorative justice, it becomes useful to ask some questions about the traditional criminal justice system. How did the criminal justice system get to the point

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CRIME, JUSTICE,

AND SOCIAL

CONTROL

whereconflicts are taken away from individuals and madecrimes wherethe state is considered the aggrieved party? Is justice concerned only with the punishment of offenders? Is it dysfunctional for society to keepinsisting on moreand morepunishment whenit seems notto be effective? Is there a point wherethe criminal justice industry beginsto advocate policies that are moreconcerned with narrow vocational and economic interests rather than broader concerns ofjustice?

The Promise of Community Weall live in communities. Bythis we meansomething beyond living in a physical neighborhood. Tolive in a community

meansthat the individual is connected by social and economic ties to a

group of other individuals. The concept of community can become confusing in postmodern times when one knows someone thousands of milesaway through the Internet

much betterthan his/her

next-door neighbor. Nevertheless,the person next door hasthe potential to bea friend or areal pain in the neck, depending onjust how well you both fulfill the expectations of being neighbors.Those with whom weshare this sense of community

are partners in developing a physical and shared

world. Whether wepersonally like our neighbors or not, wealternately cooperate and opposethem

in our dailylives.They haveatremendous potentialto contributeto our quality oflife depending on whether they helpin times of need or break into our homes and steal our belongings. This sense of community is what makesstable society possible.In traditional societies, the com-munity did the workthat the criminal justice system doesin more complex societies. For example, anthropologist

William Ury, aleading scholar on conflict resolution, explains how the Bushmen

in Africa usethe community to resolve conflicts: Whena serious problem comes up, everyone sits down, all the menand women, and they talk and talkand

talk. Each person has a chance to have his or her say.This

inclusive process can take daysuntil

open and

the disputeis literally talked out.The community

members work hardto discover whatsocial rules have been broken to produce such dis-cord and what needsto be done to restore social harmony. A kgotla, which is whatthey call their discussion, serves as a kind of peoples court except that there is no vote by the jury or verdict by the judge; decisions are madeby consensus. Unlike a typical court proceeding where one side wins and one side loses, the goal is a stable solution that both disputants and the community can support. Asthe group conversation proceeds, a con-sensus about the appropriate solution gradually crystallizes. opposition or ill

After makingsure that no

will remains, the elders voice this emergent consensus.4

It can be arguedthat the differences betweenthe traditional Bushmensociety and modern industrial society are vast and that making any kind of comparison between social institutions is fraught

with problems. However,the intent of describing the process the Bushmen usefor resolv-ing

conflicts is to suggest the adversarial

waythat is usedin our court system is not necessarily

something that is part of the natural evolution of social institutions. The intent of demonstrating how the Bushmen settle differences is to argue that for the vast majority of the time we have had human social institutions,

cooperation and consensus have beenimportant ingredients of stabl

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societies.The contemporary criminal justice system is arelatively recent methodfor deciding how conflicts get resolved and, as we have previously stated, the results are not particularly satisfying. Canthe community be effectivein resolving conflicts in contemporary society? Ury arguesthat it can.The same processesthat are effective in traditional societies can worktoday. In looking at the declining juvenile crime rate in Boston, Ury credits the community. The key, according to Boston Police Commissioner Paul Evans, wascollaboration. entire community

was mobilized.The

The

police worked closely with teachers and parents to

search out kids who had missedschool or whose grades had dropped. Local government agencies and businesses provided troubled youth with counseling, educational programs, and after-school jobs. Social workers visited their homes. Ministers and pastors mentored them and offered a substitute family for kids who almost never had two and sometimes not even one parent at home. Community counselors, often ex-gang members,hung out with gang membersand taught them to handle conflict

with talk, not guns.5

Whatis unique about the contemporary attempts to use the community in resolving conflicts is the partnering of the community

with the government. It is easy to forget that in the larger con-text,

government officials and community

memberslive in the same neighborhoods. In traditional

societies,the community performedthe functions of government. Today,the socialinstitutions of government have encroached into

many ofthe arenas ofthe family and community to the point

wherethe influence of the community haslost

muchofits relevance.The goal ofrestorative justice

programs is bringing the community backinto the conflict-resolution process.This involves looking at criminal acts in a more comprehensive and inclusive

way.It expands the scope offocus beyond

the conflict between the offender and the government by including the victim, other interested parties such asthe families ofthe victim and the offender, and the community itself. Restorativejustice also measuressuccessin a waythat is different from the traditional criminal justice system. Ratherthan worrying about clearing the court docket with plea bargains that leave

all parties unsatisfiedor evenbitter, or keepingscore bythe number of yearsofincarceration meted outto an offender,restorative justice is concerned with the healing of relationships and ofreclaiming stability in the community. These are, admittedly,

more difficult goals to

measurebut real social

justice is a morecomplex valuethan the morelimited concerns of the contemporary criminal justice system. Realsocialjustice represents a morelong-term, rather than short-term, view, and promises to belonger lasting andless likely to see repeated problems. Finally, restorative justice in the community is superior to the traditional criminal justice system because ofthe responsibility it places onthe offender. Ratherthan having something doneto him or her,the offender mustactively participate in the healing process ofthe community, the victim, and

ultimately him or herself. This healing process mightbeassimple asan apologyto the victim, orit might meanpaying restitution to recompense the victims loss.The

offender might be required to

perform some type of community service to repay the damage done to public property orthe social order. But, mostimportantly, from a restorative justice perspective, the offender must willingly and actively participate in his or her own healing.This

mightinclude traditional treatment

methods

such as drug and alcohol programs, orit could include having offenders publicly take responsibility for their actions and engagein community makingthe same mistakes.

education programs designed to prevent others from

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CRIME, JUSTICE,

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Forms of RestorativeJustice The idea of restoring the damage done by crime is appealing in theory but requires well-thought-out programs to become effective. Simply putting the offender and the victim in the same room together without some guidance or structure is a recipe for disaster.The

unresolved conflict could

quickly escalateinto harsh words and/or violence.There is a process designedto aid the victim and offender in resolving the conflict to their

mutualsatisfaction.This processis called Victim-Offender

Reconciliation Programs.6

Victim-Offender Reconciliation Programs(VORP) Victim-Offender

Reconciliation Programs are designedto bring the victim and offender together to

forge aresolution to their problem.

Withthe help of atrained

mediator,they take proactive roles in

inventing creative options to the traditional criminal justice system sanctions. By empowering the victim and offender to suggest and agree upon solutions to their conflict, the VORP process helps resolve disputesin such a waythat the outcomes arelong-lasting.

Programs maynot beappropriatefor

Victim-Offender

Reconciliation

manycases,so the voluntary participation ofthe partiesis

essential. Whilethe term reconciliation implies that both the victim and offender needto reconcile, manytimes the victim has no motivationto worktoward a middle ground because he/she has done nothing wrongfor whichto recant.Therefore, the term

mediation might be a better description of

what happensin these programs. There are three basic objectives to these programs: 1. Toidentify the injustice 2. To makethings right 3. To consider future actions In the traditional criminal justice system, it is often the case wherethe victim and offender never get to hear and understand the others side.The conversation in the traditional

criminal justice

system isfiltered through the police, prosecutor, defenseattorney, and the judge. In this adversarial process,the victim and offender are often driven farther apart by positional bargaining.The process gives them the opportunity to meetface-to-face and explain their injuries, and concerns. In the process ofthis

VORP

motivations,

mediation they often come to understand, sometimes for the

veryfirst time, exactly whatthe other side wasthinking. They

ask questions of each other.The

victim can put a human face on the loss, and the offender has a chance to show remorse.This step

ofidentifying whatthe injustice hasresultedin is, therefore, usefulto the victim whogetsto tell his/her story and to the offender who getsto explain his/her actions. Oncethe facts of the case are agreed upon, or at the least each side has had an opportunity to gain an understanding ofthe other sides behavior, the stageis set to develop an outcome that makesthings right. For the offender this mightinclude suchthings as an apology, restitution, return of valuables, or any number of other waysto repair the harm done to the victim. For the victim, the setting right ofthings for forgiveness. In

mayinclude receiving these reparations from the offender in exchange

manyconflicts, the disputants have ongoing relationships

wherebythe repair o

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that relationship is important to repair the harm caused by the crime. Simply becomingfinancially whole oftenis not enough to satisfy both parties, especially whenthey mayberelated. Forgiveness, if sincere, can be a powerful healer and a profound wayto correct an injustice. Once an agreement has been reached, it is written up and signed by both parties.This then becomes part of the court record and hasthe impact of alegal document. Depending on the juris-diction, this agreement can be ratified by the criminal court and any violation can result in the offender having to appear before the judge. Alternatively, this agreement can becomethe basisfor a civil suit by the victim against the offender for failure to comply with the conditions.

The agreement mayspecifythe conditions offuture actionsthat couldinclude a paymentschedule for restitution, agreement to enter into a treatment program for drug or alcohol abuse, or a pledge to stay away from the victim. In order to prevent the conflict from recurring, this dimension of agreements for future actions can specify how any ongoing relationship Victim-Offender

might be monitored bythe

Reconciliation Program.

Family Group Conferencing Family Group Conferencing is an extension of the Victim-Offender

Reconciliation Program. It

involves not only the victim andthe offender,but also other partiesincluding family members, the arresting police officer, representatives from the community and/or the government. A mediator coordinates the conference and allows eachto have their chance for input.

An outcome is agreed

upon that accomplishes several goals. First, it resolves the conflict outside the traditional criminal justice system. Secondly, the victim and offender have a chance to confront each other and have their side of the story heard.Thirdly,

there is an opportunity for other affected parties to provide

input and express their concerns. Andfinally,

the agreements that areforged strengthen the ties of

the parties and ultimately ofthe community. Family Group Conferencing is a process that began in

New Zealand and wasadopted in Australia and eventually in the United States.The

Family

Group Conferencing modelis used mostextensivelyin the juvenile court wherethe concernfor the offenders welfareis considered asimportant

as the victims.7

Victim-Offender Panels(VOP) It is not always feasible or appropriate for the victim and offender to meetand try to work outtheir conflicts. For example, in the case of rape, the victim

maybeso traumatized that any contact with

the offender would be harmful. Also,there are manyinstances in which the offender is not known and therefore not available for conferencing or reconciliation. This

does not mean,however, that

someofthe benefitsof conflict resolution cannot beemployed.In theseinstances Victim-Offender Panels are useful.8 Victim-Offenders Panelsallow victims to address offenders whohave committed the sametypes of crimes asthe victims have experienced.The victims do not confront the individual

who harmed

them directly, but rather, they confront an offender who has harmed someone else.The idea behind these panelsis to allow the victim to express the nature and depth of harm they have experienced to offenders.The victim, thus, plays an educative role in showing offenders the human damagethat their crimes can cause. Offenders get to see that their actions have consequences for others and

21

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CRIME, JUSTICE,

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can reflect on the harm they

CONTROL

mayhave causedto their own victims. The result, hopefully, is that

offenders will changetheir anti-social attitudes and behaviors. Victim-Offender Panels have been shown to be effective with carefully chosen victims of drunk drivers and with victims of burglary.The exact process that these panels provide mayvary, butthe idea is to give victims a chance to tell their story and to give offenders an opportunity to see how their crimes impact on other people. Again,there is no chancefor reconciliation in Victim-Offender Panels becausethe victims never meetthe actual offender, just someone who has committed the same type of crime.

These threetypes ofrestorativejustice practicesdemonstratea very differentphilosophyfrom the traditional criminal justice system.They all aim at helping both the victim and the offender and,to a broader extent, the community.

Critics of these practices would point to the consequencesfor the

offender, claiming any reconciliation that the offender agreesto cannot include enough punishment to satisfy the concerns ofjustice. This punishment, is inconsistent

myopic view ofjustice, one concerned with the amount of

with restorative justice principles. Forthe long-lasting resolution ofthe

conflict, and the ultimate well-being of the community, punishment has proven to beineffective.

Reintegrative Shaming How can restorative and community justice programs effect real changein the offender? For many individuals, looking at restorative justice for thefirst

time, the idea that punishment is not para-mount

is disturbing. It appears to these observers that the offender is getting away

with the crime

whenthere is not substantial punishment. For those whoembrace the restorative justice concept, however, there is a more powerful process at workthan punishment. John Braithwaite contrasts shaming and punishment by calling attention to the symbolic nature of each:9 Shaming is more pregnant with symbolic content than punishment. Punishment is a denial of confidence in the morality of the offender by reducing norm compliance to a crude cost-benefit calculation; shaming can be a reaffirmation of the morality of the offender by expressing personal disappointment that the offender should do something so out of character, and,if the shaming is reintegrative, by expressing personal satisfaction in seeing the character of the offender restored. Punishment erects barriers between the offender and punisher through transforming the relationship into one of power assertion and injury; shaming produces a greater interconnectedness between the parties, albeit a painful one, an interconnectedness the establishment of a potentially

which can produce the repulsion of stigmatization or morepositive relationship following reintegration. Pun-ishment

is often shameful and shaming usually punishes. But whereaspunishment getsits symbolic content only from its denunciatory association with shaming, shaming is pure symbolic content. Reintegrative shaming casts a stark and powerful light on the offender in a waythat is both positive and transforming. This type of shaming (as contrasted with disintegrative shaming or stig-matization) is designed to bring the offender backinto the social net of the community. our traditional criminal justice system doeslittle in the way of reintegrative shaming. The

Currently waythe

process now works,it is morelikely that the victim feels moreshame than the offender.The trial an

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Community

Justice

sentencing that is supposed to be what Goffman calls a successful status degradation ceremony has become a spectacle about which many offenders feel little shame.This lack of shame on the part ofthe offenders occurs because manyoffenders identify identity

with the deviant label.Their

offender

becomes a MasterStatus wherebythey feel pride and accomplishment from the rejection

and stigmatization of society. Critics of reintegrative shaming point out that it works bestin tight-knit, like Japan. Giventhe individualistic

homogeneous societ-ies

nature of Westernnations like the United States,there is

concern that the shaming would not bereintegrative.

Manypeople in the United States are poorly

integrated into society to begin with,so the idea that they can bereintegrated becomesproblem-atic. There are vast differences between cultures, according to the critics of shaming, and to expect cultural bound bonds that workin one society to be equally effective in another requires aleap of faith that

manyare not willing to

make.

Some Recent Developments Gordon Bazemore and Mara Schiff have edited a volume based upon a recent conference focusing on restorative justices evolution into a broader context of community justice. Kenneth Polk advo-cates

that restorativejustice beexpandedinto the larger arena of socialjustice, including shifting our emphasis on delinquent and deviant youth to proactively increasing developmental opportu-nities for youth in general. Hesuggests the restorative justice

movementis at a crossroads; either

expand the idea of restorative justice or allow the movementto become one moreinnovative social control option for the criminal justice system. more active inclusion

Mary Achilles and Howard Zehr propose greater,

of victims in the restorative justice process, while David Karp and Lynne

Walther describe how community reparative boards in Vermont attempt to implement restorative and reintegrative processes within a community justice context. Barry Stuart describes some guid-ing principles for designing peacemaking circles in communities including accessibility,flexibility,

being holistic as part of the empowerment process,incorporating a spiritual dimension, building consensus and being accountable.10 In defenseofrestorative justice, it is just this lack oftightly knit community that restorative justice is trying to inject into the westernstyle ofjustice. In our postmodern world, we havelost the sense oftogetherness that makes meaningful communities possible. No matter howlarge our efforts or how manykeep out signs we have postedin our yards, the reality is that weare connectedwe arein this thing called life together.

Whata person does, good or bad, affects others. Rather than

seeing this fragmentation as a reason to dismiss restorative justice,

weshould see as a challenge.

Restorative and community justice principles can facilitate not only the healing of victims and

offenders,but also manyofthe waysinstitutions interact withindividuals in society.

Faith-BasedCorrections Oneinteresting trend in community justice is the reemergence of religion as alegitimate and recog-nized correctional institution.

Pepinsky and Quinneyidentified religious and humanistic intellectual

traditions beinginfluential in the development of peacemaking criminology andin an earlier chapter

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CRIME, JUSTICE,

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CONTROL

(Chapter 2) wediscussed how a variety of religious and wisdomtraditions areimportant Faith-based programs can provide a spiritual dimension to the rehabilitation

precursors.

of the offender that is

not available from other types of programs. Forinstance, because of the constitutional separation of church and state, government programs must be careful about imposing areligious component into the treatment plan for offenders. Government programs are limited in their ability to help victims and offenders with faith issues, butfaith-based programs arefree to explore such issues if the person desiresit. By providing practical assistance and opportunities to discussspiritual and emotional issues in asupportive context, programs can assist victims and offenders in

moving beyond their

alienation to greater emotional, physical, and spiritual health. Ofcourse, offenders and victims come from diverse ethnic, religious, and cultural backgrounds.They varying cultural assumptions about managinganger, grief, and stress.They

may have maybe deeply

involved in other religions or maybe hostile to religion. Programs offering a spiritual com-ponent must besensitive to this and be able to help the victim or offender gain the most from their own tradition

and support network.11

Faith-based programs can encourage positive changesin offenders in both community-based

andinstitutional environments. Evenin prisoneven transform lives.

experiencescan

While on death row for almost 13 years, Willie Reddix described aninner peace

he hadfound by referring to it as aquiet light. wrote, Right

on deathrowfaith-based

now I

Walter Correll, aninmate on death row in Virgina,

maybe on death row, but with Jesusin

mylife its life row. (see Chapters 4,

6, and 7for other examples).

CommunityJustice and Peacemaking The purpose ofthis chapteris to establishthe connection betweenpeacemakingcriminology and community

and restorative justice.

Having a correctional system that accomplishes the goals of

changing the offenders antisocial behavior and protecting the community requires something that the traditional criminal justice cannot provide. In fact, as we have previously pointed out, the reliance on punishment doeslittle to changethe offenders behavior and, in fact, often results in a community that is further threatened with new victims who are harmed. Something elseis required to bridge the needfor changein an offenders life and the needfor the protection ofthe community. A bridge of compassion recognizes the harms and fear shared by offenders and victims, but also offers a way backinto the community for each as well. Community justice is a context where much

restoration cantake place.

Questions 1.

Describethe two issues concerning the traditional criminal justice system that peoplefind unsatisfactory and thus propose aform of community justice. Arethese problems onesthat can befixed

within the context of the traditional criminal justice system

Chapter

2.

13 |

Toward

Restorative

and

Ron Claassen presents some underlying principles of restorative justice. Givea brief summary of these principles.

Whichof them are at odds

withthe traditional criminal justice system? Whichofthese principles do you think is mostimportant for healing individuals

and the criminal

justice system? 3.

Explain how the community is intregal to the idea ofrestorative justice. Is the waythe term community is usedin restorative justice the say as our everyday understanding?

What would a restorative justice program that is

integrated into the community look like? 4.

Whatis reintegrative shaming? Speculate on how this principle

might be

misusedin the criminal justice system. Is reintegrative shaming some-thing that can be adapted to the materialistic culture ofthe United States? 5.

Arefaith-based correctional programs likely to be effective within the peacemaking criminology context? How mightthe issues of separation of

church andstate beaddressed withinfaith-based correctional programs?

Notes 1. Christie, Nils(1977). Conflicts

as Property.

The British Journal of Criminology,

17(1):115. 2. Irwin,

John and James Austin (1994). Its

Binge. Belmont, 3. These

principles

CA:

Wadsworth.

are taken from

pacs/rjprinc.html).

About Time: Americas Imprisonment

The

content

Ron Claassens

web site (www.fresnp.edu/

has not been edited and they are printed

with permission.

4. Ury, William (1999). Gettingto Peace:Transforming Conflicts at Home,at Work, and in the

World. New York,

NY: Viking. 5.

5. Ury,ibid. p. 1011. 6. Van Ness, Daniel and Karen Cincinnati, 7.

OH: Anderson,

Heetderks

Van Ness and Strong. ibid.

p. 7374.

8. Van Ness and Strong. ibid.

p. 7476.

9.

Van Ness and Strong. ibid.

p. 117.

10. Van Ness and Strong. ibid.

p. 128.

11. Bazemore, Gordon and Schiff, Repairing

Strong (1997).

Restoring Justice.

p. 6972.

Harm and Transforming

Mara(eds.) (2001). Restorative Community Justice; Communities.

Cincinnati,

OH: Anderson

Publishing Co. 12. Arriens, Jan (ed.) (1997). Press, p. 25.

Welcometo

Hell. Boston,

MA: Northeastern

University

Community

Justice

21

ParT V

Correctional Policies andIssues

21

Introduction

J

ust as crime is a social construct, the sanctions for violations of laws are established by

consensus ofthose in power.The sanctions employed are based ontheories ofsocial control

that attempt to explain whyindividuals

violated laws and whatcan be done to change or

control their behavior. As wesawin the earlier section discussing modelsof criminal justice, there are several philos-ophies

that governthe responseto law violators. WernerEinstadterand Stuart Henry(2006) provide a summary of the rationale

behind each approach. Table V.1 presents philosophies

of social control that have been employed,

with the emphasis changing somewhat over time.

Each philosophy justifies and shapesthe waysthose subject to criminal justice are dealt within response to their offense.

Techniquesof Crime Control Einstadterand Henry(2006) point outthat thetechniques usedto control crime,or the disposition that a court

makes,are shaped by one or more of these philosophies. However, any particular

crime-control technique does not haveto be exclusively associated with one philosophy.

Wecan

identify severaltechniques of crime control, which arethe actual practices administered to bring about compliance with the law.These include the following: (a)

Death

(b)

Transportation

(c) Prison (d)

Corporal punishment

(e) Fines (f) (g)

Community service Work programs

(h) Civil commitment (hospitalization) (i)

Drugs/surgery

(j)

Counseling/therapy

21

218

CRIME, JUSTICE,

AND SOCIAL

CONTROL

TABLEV.1 CorrectionalIdeologies: PhilosophiesofIntervention and Their Policy Objectives Philosophyof Overall Policy Objectives

Sanctioning or Intervention Removing the conditions, occur

Prevention

motives, orincentive for crimes before they

Protection of the public byremoving the offenders capability of commit-ting further crimes

Incapacitation Deterrence

Preventing crime either generally or specifically. General deterrence involves symbolic use of public punishment aimed at affecting the future actions of all potential offenders. Specific orindividual deterrence is aimed at affecting the future behavior of particular individuals who have already offended or specific offenses that they might otherwise choose

Retribution, just deserts

Theidea that offenders deserve to be punished for their offenses based solely onthe harm caused bythe act, thus equating the balance of harm

Conciliation

Resolving the conflict or dispute between offender and offended

Restitution

Returning the situation to its pre-offense standing victims

Reparation

Compensation for the offense to be paid to the state or community for the harm caused to collective victims

Restoration

Reintegrating the offender backinto the community by ensuring responsi-bility is taken for the offense and closure is brought to the victim

withregard to individ-ual

Rehabilitation

Interventions

designed to change or correct the offenders future behavior

Treatment

Interventions offending

designed to cure anindividual

of the cause oftheir

Diversion

Providing alternatives to criminal justice system effects to avoid stigmatiz-ing the offender

Decriminalization

Removing offenses from the criminal code

Celebration

Usingthe occasion of crime as an indication or structural change

Source:

Einstadter

& Henry (2006,

p. 25)

Prison is a good example to illustrate philosophies.

of the need for social, institu-tional,

Prison is an institution

how one technique of crime control can serve multiple

that houses offenders in confinement,

philosophy could be depriving a person of his or her freedom as retribution an offense.The

offenders caused harm.They

will havetheir liberty

but the prevailing

or asjust deserts for

deprived as a counter-harm.

The varyinglengths of sentencescanreflect the seriousnessofthe harm andthus beadjustedto be proportionate to the offense. Of course, prison wouldthen also serve as a specific deterrence for the person committing that crime, withthe view that he or she would choose not to re-offend, orit could serve as a general deterrence, in that others would see the consequences that happened to an offender,identify themselves as someone who could suffer that consequence, and decide not to commit the behavior. But prison could also be seen as serving the philosophy ofincapacitation, that while incarcerated, an offender cannot commit additional crimesat though

in

least, that is the theory,

manycommit crimes inside and outside whilein prison. Now,if the prison wasorganize

Part V |

Correctional

Policies

and Issues

21

to have workfacilities that trained peoplein job skills in manufacturing or auto repair, then it could be seen as meetingthe philosophy of rehabilitation,

and if it had a medical and drug treatment

center and provided psychological services such as cognitive behavioral therapy (CBT), then it could be seen as satisfying the

medical model,specifically providing a treatment

approach. Yet

again, if the prison provided a caseworker who analyzed the needs of the offender and provided offender-victim

mediation,it would serve the idea of restorative justice, though the extent to which

that could be effective while all the other dimensions are in playis questionable.The that one component of the criminal justice systemcorrections,

point hereis

seen as typically associated with

afew punitive philosophiesof punishmentcan andsometimes doesat differenttimes (depending on the prevailing correctional ideology) serve different correctional philosophies.This is also true for fines

that can beto the state, or payment to victims (restitution),

to the community

as in community service (reparation)

or as payment or work done

or even as punishment (deterrence) to

dissuade peoplefrom future law violation. The types ofsanctions ortechniques ofcrime control that can beimposed for law violations have expanded since the 1970s and 1980s, whenintermediate sanctions wereaddedto provide a contin-uum of options from prison to probation. Intensive supervision and house arrest were developed to provide additional supervision for those who presented a higher risk

to public safety and the

community, witha viewthat they wouldservearehabilitative philosophyto transition a personfrom incarceration to life on the outside, in society. Otherintermediate sanctions or crime-control tech-niques include electronic monitoring, day reporting centers, restitution, fines, and community service. Withthe increase in types of sanctions, and an ever-increasing number oflaws defining behav-ior as criminal, there has beenthe potential for net widening, or increasing the number of people under supervision or in custody. None ofthe goals of punishment/sanctions/sentences or pursued over the centurieswhether or even retributionhave

which have been experimented with

deterrence, incapacitation, rehabilitation, shaming

done muchto reduce crime rates or reform deviants. As David

Garland has argued, it is only

mainstream processesof socialization that are able to pro-mote

proper conduct on a consistent and regular basis. Formal punishment is at best a backup, astopgap measureto be applied wherever and wheneverthe informal

system fails

to produce desiredlevels of control. (Chriss, 2007, p.105) This raises the question of whetherformal criminal justice should beleft asthis open, decen-tralized system that allows variations, diversions, and exceptions, or whether there should be one overall policy governing the system to provide consistency.

Readingson Correctional PoliciesandIssues Several articles address correctional

policies and issues related to the types ofinterventions listed

in Table V.1and the techniques of crime. The contribution by Marc Mauerlooks at how wecan challengethe massivegrowth in the incar-ceration population that happenedin the late 20th and early 21st centuries in the United States. He reviews the series of policies that brought usto this level of massincarceration and how this could

220

CRIME, JUSTICE,

AND SOCIAL

CONTROL

have been avoided. Helooks at the racial dynamics of massincarceration

and how increases in

economic and social inequality in U.S.society have marginalized African Americans in particular. Finally, he assessesthe prospects for changing this situation through the use of evidenced-based policies and taking a diversity of approaches. James Austin and colleagues,in Unlocking

America,

Whyand Howto Reducethe American

Prison Population, take anin-depth look at prisons in Americato assessthe current state of correc-tions, explore the accuracy of underlying assumptions about crime and punishment, and recommend changes that they argue would significantly reduce the prison population and save money without

impacting publicsafety. As mentioned previously, this hasled to anincreased interest in reintegration programs in recent years: areturn to some ofthe principles of rehabilitation programs in the 1960s stressing community supervision and services.

Michael Pinard, in his article "Reflections and Perspectives on Reentry

and Collateral Consequences, discusses what he calls areentry crisis, withincreasing numbers of prisoners releasedto the community at the end oftheir sentences, or becauseof programs to reduce the custody population dueto budget shortfalls.

He examines the collateral consequences of this

significant changein corrections.

References Chriss, J. J. (2007). Social control: Anintroduction. Einstadter, York,

W.J., & Henry, S. (2006). NY: Rowman

& Littlefield

Cambridge, UK: Polity Press.

Criminological theory:

An analysis of its underlying

assumptions.

New

14

ChaPTEr

Foreword CHALLENGINGMASS INCARCERATION MARC MAUER

I didnt know jack weenie about what people were going through

in here [federal Randy

I

Duke

Marc

Cunningham,

former

Mauer, Foreword:

Chal-lenging

Mass Incarceration,

prison].

Punitive

tough

on crime

member of Congress,

Turn:

to Race and Incarceration,

imprisoned for eight years on conspiracy andtax-evasion charges

Deborah

E. McDowell,

N. Harold, pp. vii-xiii.

t is now commonplace to note that the United States, with its

morethan

2 million people behind bars, has becomethe worlds leading jailer, incarcerat-ing far moreofits citizens than do otherindustrialized

The

New Approaches

by University Reprinted

ed. Clau-drena

and Juan

Copyright of Virginia

Battle,

2013 Press.

with permission.

nations. Criminologists

and political theorists have produced a broad range ofscholarship assessingthe unique political culture, social structure, and racial dynamics that have produced this phenomenon.

Whiletheseanalyseshavebeenenlightening,it is important to notethat mass incarceration is nolonger a new development. Asfar back as1991,the Sentencing Projectissued a report documenting that the United States had becomethe world leader in its use of imprisonment,

outpacing its former

Cold Warrival

Russia

as well as apartheid South Africa.1The combined prison and jail population of 1.2 million at that time dwarfed the incarcerated population of 330,000 in the early 1970s, at the inception of the race to incarcerate. Facedin 1991 with the data regarding this dubious distinction,

U.S. policy

makerscould have pausedto assessthe results of the two-decade-long experi-ment

in the useof massive incarceration as a mechanismof crime control. Such an assessment would have proved quite sobering.The period of 198491

mostrecent seven-year

would haveindicated a 17 percent rise in crime despite a 65

percent increase in the number of peoplein prison.2The racial/ethnic

makeu

ofthe imprisoned population had becomeimpossible to ignore, with nearly one in four young black malesliving

under someform of criminal justice supervi-sion.

And prison cells supposedly reserved for the worst increasingly

beingfilled

of the worst

were

by young menand women of color caught up in the 221

222

CRIME, JUSTICE,

AND SOCIAL

CONTROL

rapidly expanding set oflaw enforcement and sentencing policies enshrined under the aggressive launch ofthe War on Drugs. Butlittle assessment of these developments occurred at the highest levels of power. Instead, policy makersembarked on a program of enhanced punishment at all levels that virtually institu-tionalized the system of massincarceration.

Atthe federal level, this included the adoption of the

Clinton administrations federal crime bill in 1994, a $30 billion measureloaded with $8 billion for new state prison construction, enhanced federal sentencing penalties, and only modestresources for prevention initiatives.

State-level policy makersjumped on board as well, with half the states

adopting three strikes andyoure out policiesbythe mid-1990s. The

mostnotorious ofthese,the

California law defining anyfelony as a third strike, produced such bizarre outcomes as a golf-club thief being sentencedto twenty-five yearsto life3 and a videotape thief being sentencedtofifty

years

to life,4 sentencesthat the U.S.Supreme Court upheld in 2003. In the area ofjuvenile justice, the long-standing

missionof a distinct juvenile court established to

recognize the diminished culpability of children and their unique capacity to change wasupended by a slew of policy decisions designedto have young people tried in the adult court system. In the early 1990s, virtually every state amendedits statutes to expand the variety of waysin whichjuve-niles could betried in adult court and face sanctions historically reserved for adults; consequently,

the number of such casesrosesignificantly in the succeedingyears. Promoting andimplementing

punitive criminal justice policies hasseemedlike a no-brainer

to many political leaders in recent decades. Since the late 1960s, public support for harsh sen-tencing policies has madeit a virtual article offaith that one can never be too tough on crime. Sensationalized

media coverage of crime has helped to prime an audience to respond positively

to such initiatives. Political dynamics also play a part in generating tough-on-crime

policies. Legislative sessions

primarily focused on budgetary decisions for a single yearlead to afocus on short-term solutions. Thus,

public policies such asinvestments in preschool education that hold the potential for long-term

approachesto issues of public safety,but do not necessarilyproduceshort-term crime-control benefits, are not seen as politically expedient. Public policy makingis notfocused on serving the interests oflow-income peoplein general, and evenless so of persons with criminal convictions. In an era when moneyedinterests are arguably moreinfluential than ever in determining legislative outcomes, those atthe bottom rungs of the income ladder are hardly competitive in this realm. So,in 2013, welive

with a prison population

did the state prison population while the population

almost double that of 1991. Not until 2009

decline slightly, for the first

time in nearly four decades.5 And

has been steadying in recent years, there is as yet no sign of a sustained

nationalreduction.

An AlternativeScenarioRejected It did not haveto turn out this way. Political and civic leaders could have embraced a morecompre-hensive, and compassionate, approach to problems of crime and substance abuse, one that relied on evidence-based research on better measuresto addressthese problems. In the area of substanc

Chapter 14 |

Foreword:

Challenging

Mass Incarceration

22

abuse,for example, policy makerscould have reversed the funding allocation that prioritized law enforcement and incarceration

over prevention and treatment.

A wealth of research over time and

through various drug epidemics demonstrates that reducing demand for drugs is a more effective strategy than continued efforts to interrupt the supply chain. Initiatives to support families in raising healthy children could have built on thefindings from early Head Start programs that demonstrated the benefits of preschool education. Policy makers could havelooked abroad as wellfor varying approaches to these issues: the industrialized of western Europe, as well as Canada,incarcerate their citizens at afraction

nations

ofthe U.S.scale.The

reasonsfor these differencesare complex, but they involve the presenceof a broadersocial safety net,less inequality

of wealth, and a greater cultural skepticism regarding the value of punishment.

Why,then, werethese arguably very sensible alternative policies not adopted twenty years ago? The proximate causes are many. First, the institutionalization

of the system of massincarceration

makesit very difficult to change course. With police, prosecutors, judges, prison guards, and entire communities

often dependent on the wagesand presumed economic benefits of a vast criminal

justice apparatus, there is great resistance to any proposed shift in course. Even werethere to be ashift in the political consensus around dealing with problems of public safety,the nature offunding within the system would makeit very challenging to reallocate resources.

Suppose,for example,a new drugcourtis ableto divertfifty peopleto treatment rather than incar-ceration, a welcome outcome for fifty

saves very little

manyreasons. Yet reducing the population of a given prison by

money. Giventhe enormousfixed costs of operating a prison system, the small

savingsin this case derive primarily from the food and health-care costs for each diverted person. Only when wereach a point of closing an entire prison are substantial cost savings realized. In the interim,

however, overall costs actually increase since the fixed

costs ofthe prison remain, and

additional treatment resources are necessaryfor the drug-court services. Over time, sentencing policies have also contributed to institutionalizing population.

a massive prison

Withthe advent of widespread use of mandatory sentencing, three strikes

policies,

andthe like, record numbers of peopleare now servinglong-term prison sentencesfor which no relief is available in the form of parole, and in which the role of executive clemency has diminished considerably, largely due to the political winds.

The RacialDynamicsof Mass Incarceration Whilethese impediments to change are substantial,

wecan also trace their origins to a broader

political and social dynamic, onein whichrace remains as a dividing line in the twenty-first

century.

Duringthe past half century, opportunities haveopenedupto manypeopleof color that had been closed to them for three centuries. Political and public discourse has changed as well, and in polite company it is nolonger acceptable to express racist beliefs. Yet whilethere are surface changes in the waysin which race permeates societal relationships,

within the criminal justice system, racial

outcomes are now markedly worsefor African Americans in particular. Raceproduces criminal justice policy in two broad ways. First, weseethe consequences ofthe vast economic changes ofthe past three decades, a period in whichthe rich have gotten richer and the poor have gotten poorer.

With rampant globalization causing a decline in the United States

224

CRIME, JUSTICE,

AND SOCIAL

CONTROL

manufacturing economy and its replacement in large part by alow-wage service economy, urban communities of color have been particularly hard hit.The union-wage jobs that previously enabled working-class blacks and whitesto support a family

have now frequently been replaced by non-union

entry-level positions, with severe implications for family and community stability. Related to this is the still prevalent pattern of housing segregation in which disadvantaged communities are both spatially and psychologically isolated from

middle-class America. Such patterns translate

into educational segregation, in which children in these communities grow upin low-functioning schools, with boysin particular recognizing that their future is morelikely to involve spending time

in prisonthan in a collegeclassroom. As a result of these shifts, for the largely left out of the new economy, opportunity manifest themselves in part through destabilized The

black and brown

working-class

communities

declines and social problems proliferate.

substance abuse and crime, further

These

contributing

to

neighborhoods.

other meansby which racial considerations impact criminal justice policy is through the

framing of the crime

problem by mediaand political leadership. Stretching backto the late 1960s

and political initiatives highlighting crime in the streets as part ofthe backlashto the advances of the civil rights movement,crime hascome to be defined and perceived largely as a black problem.

Oneonly hasto reflect on the infamous

Willie Horton casethat inflamed the 1988 presidential

campaign or the dynamics of the crack cocaine sentencing legislation in the late 1980sto recognize that the face of the crime

problem

wasinevitably that of a black male.

Oncethis image of the problem becomes pervasive, the political discussion about policy options becomes very constricted. Ratherthan engagein a broad consideration of the varied waysin which public safety can be producedwhich

mightinclude

mentoring young people,training in parenting

skills, creating economic opportunity, providing prevention and treatment approachesfor problems of substance abuse and mental health, and yes, criminal justice initiativesthe

public conversation

instead focuses primarily on criminal justice responsesto the problem, and punitive onesin particular.

Thus, for example,the harshfederal crack cocaine mandatory-sentencingpolicies wereadopted in the 1980s in near-record time, problem.There

with virtually

no consideration

of any other approach to the

was no attempt to examine the source ofthe emerging drug issue, the amenability

of crack abusersto treatment, orlessons learned from the history of previous drug epidemics, all of which mayhave produced a more balanced approach. stark examples of such narrow thinking,

wecan trace similar approachesin a host of policy initia-tives

promoting the adoption ofget tough century

Whilethis is admittedly one of the more

sentencing laws. So whilethe overt racism ofthe past

maynow belargely absent, the outcomes of criminal justice policy look strikingly similar

to those of the Jim Crow era.

TheImpact of MassIncarceration Looking back at the expansion ofthe prison population in recent decades,some would draw a more positive conclusion about the impact of this strategy.They

would point to the sustained decline in

crime since the early 1990s and conclude that this trend is a direct result of rising incarceration. Whilesuch a conclusion seemsintuitively

obvious to some, in fact the relationship between crim

Chapter

14 |

Foreword:

Challenging

Mass Incarceration

22

andincarceration is far morecomplex. Crime rates rise andfall for a host of reasons.These include the relative health of the economy, the proportion offifteen-to

twenty-four-year-olds

in the popu-lation,

the presence of drug markets,the availability ofillegal weapons, policing initiatives, and the level ofincarceration.

Researchto datesuggeststhat rising imprisonment

explains only asmall part

ofthe decline in crime beginning in the 1990s, and that factors unrelated to criminal justice pro-duced the bulk of the change. Further, given the present scale ofincarceration,

any crime-reducing

effect ofimprisonment is very muchone of diminishing returns dueto the excessiveincarceration of drug and nonviolent offenders.

Butsupposefor the momentweassumethat mostofthe declinein crime sincethe early1990s hasin fact been a result of massincarceration.

Wouldthat suggest that this had been a necessary

and effective policy? Certainly not. Consider what a bleak perspective this represents. Essentially, it suggeststhat in order to control crime, it is necessaryto imprison one of every three black males and one of every six Latino malesborn today. safety? Imagine required locking

Arethere really no other waysto promote public

whatthe response would beif we weretold by political leaders that public safety up one in three

white malesduring his lifetime?

Such a scenario is of course

beyond imagination.

Seekinga New Directionfor Public Safety Given the distressing dynamics of criminal justice

policy, is there any reason to believe we

can create a movement to reverse course?This is a tall order, but there are some reasons for cautious optimism. Although the prison population in the United States remains at record high levels, the public climate around public safety issues hasin fact shifted in recent years.

While punishment remains

a guiding theme for public policy, it now also coexists uneasily with steadily increasing support for

a mixof policiesthat are both evidence-basedandfiscally sound. For example,both liberal and conservative political leaders haveembraced the needto provide supportive services to people tran-sitioning backto the community from prison. In the realm of drug policy, mandatory sentencesstill abound, but so too do drug courts and other forms of diversion to treatment that hold the promise of a morecompassionate and effective approach to the underlying problem of substance abuse. Evenin regard to sentencing policy, in 2010 the notorious disparity in sentencing between federal penaltiesfor crack and powder cocaine wassubstantially reduced. While we approach these problems grounded in a sense of history and an understanding of social movements,it is alsoimportant to remain cognizant of the complexity of social change. Who,

for example,could havepredicted evenin the year 2000 that within a decade we wouldhavean African American manas president? Such an outcome does not suggest that weshould ignore an analytical framework, only that werecognize that social change is a complicated process. And as all successful social movements have demonstrated, we need to be both visionary and practical at the same timevisionary

in order to inspire people to create a better community, and practical to

provide a road mapto getthere.This volume represents animportant contribution toward grappling with these challenges. Hopefully, it can help to shape our intellectual as well as contribute to the process of engagementfor social justice.

understanding ofthese issues

226

CRIME, JUSTICE,

AND SOCIAL

CONTROL

Notes 1.

Marc Mauer, Americans Behind Bars: A Comparison of International The

2. Jenni The

Sentencing

Project, 1991.

Gainsborough Sentencing

5.

Heather

and

Marc

Mauer, Diminishing

Returns: Crime and Incarceration

in the 1990s,

Project, 2000.

3. Ewing v. California, 4. Lockyer

Ratesof Incarceration,

538 U.S. 11 (2003).

v. Andrade, 538

U.S. 63 (2003).

C. West, Prisoners at Yearend 2009Advance

Counts, Bureau of Justice

Statistics, June 2010

15

ChaPTEr

UnlockingAmerica WHYAND HOWTO REDUCEAMERICAS PRISONPOPULATION THEJFAINSTITUTE

Prologue

Unlocking how to

Mr.

Libby wassentenced to 30 months of prison, two

Prison 2007

years of probation and a $250,000fine ... I respect the jurys

America:

Reduce

Why and

America's

Population. by JFA Institute.

Copyright Reprinted

with permission

verdict. ButI have concluded that the prison sentence given to Mr. Libby is excessive. President

P

George

W. Bush. July 2, 2007.

resident Bush wasright. Aprison sentencefor Lewis Scooter

Libby was

excessiveso too wasthe long three year probation term. But while he was

atit, PresidentBushshould havecommutedthe sentencesof hundreds of

thousands of Americans who each year have also received prison sentencesfor crimes that poselittle if any danger or harm to our society. In the United States,every year since 1970, when only 196,429 persons were in state and federal prisons, the prison population has grown. Todaythere are over 1.5 million in state and federal prisons. Another 750,000 arein the nations jails. The

growth has been constantin

years of rising crime and falling crime,

in good economic times and bad, during wartime and while we wereat peace. A generation of growth has produced prison populations that are now eight times

whatthey werein 1970. Andthere is no end to the growth under current policies.The PEW Charitable Trust reports that under current sentencing policies the state and federal prison populations

will grow by another 192,000 prisoners over the nextfive years.

The incarceration

rate willincrease from 491to 562 per 100,000 population.

Andthe nation will haveto spend an additional $27.5 billion in operational and construction costs over thisfive-year

period ontop ofthe over $60 billion now

being spent on corrections each year.1 227

228

CRIME, JUSTICE,

AND SOCIAL

CONTROL

This generation-long growth ofimprisonment

has occurred not because of growing crime rates,

but because of changesin sentencing policy that resulted in dramatic increases in the proportion of felony convictions resulting in prison sentences and in the length-of-stay in prison that those sentences required. Prison populations have been growing steadily for a generation, although the crime rate is today about whatit wasin 1973 whenthe prison boom started. It is tempting to say that crime rates fell over the past dozen years becauseimprisonment look at data about crime and imprisonment

workedto lower them, but a

will show that prison populations continued to swell

long after crime rates declined and stayed low. Today, whatever is driving imprisonment

policies,

it is not primarily crime. Prisons are self-fueling systems. About two-thirds ofthe 650,000 prison admissions are persons who havefailed probation or paroleapproximately technical violations.

half ofthese people have been sent to prison for

Having served their sentences, roughly 650,000 people are released each year

having served an average of 23 years. About 40% will ultimately be sent back to prison as recidi-vistsin manystates,for petty drug and property crimes or violations of parole requirements that do not even constitute crimes.This

high rate ofrecidivism is, in part, aresult of arange of policies

that increase surveillance over people released from prison, impose obstaclesto their reentry into society, and eliminate support systems that easetheir transition from prison to the streets.

Prison policy has exacerbatedthe festering national problem of social and racial inequality. Incarceration rates for blacks and Latinos are now morethan six times higher than for whites; 60% of Americas prison population is either African-American

or Latino. Ashocking eight percent of

black menof working age are now behind bars, and 21% of those between the ages of 25 and 44 have served a sentence at some point in their lives. At current rates, one-third of all black males, one-sixth of Latino males,and onein 17 white males will goto prison during their lives. Incarcer-ation rates this high are a national tragedy.2 Womennow represent the fastest growing group ofincarcerated persons.In 2001,they were more than three times aslikely to end upin prison asin 1974,largely dueto their low-level involvement

in drug-related activity andthe deeply punitive sentencingpolicies aimed at drugs.The incarceration of young malesfrom

mostly poor-and

of womenfrom their families and jobshas

working-class neighborhoodsand

crippled their potential for forming

massive

the taking

healthy families

and achieving economic gains. The authors of this report have spent their careers studying crime and punishment.

Weare

convinced that we need a different strategy. Our contemporary laws and justice system practices exacerbate the crime problem, unnecessarily damagethe lives of millions of people, wastetens of billions of dollars each year, and create less than ideal social and economic conditions in

many

sections of our largest American cities.

This report focuses on how wecan reduce the nations prison population without adversely affecting public safety. Forthis to happen, we will needto reduce the number of people sent to prison and, for those who do goto prison, shorten the length of time they spend behind bars and under parole and probation surveillance. People who break the law

mustbe held accountable, but many

of those currently incarcerated should receive alternative forms of punishment, and those who are sent to prison mustspend a shorter period incarcerated before coming home to our communities. Our recommendations

would reestablish practices that

werethe norm in America for most of the

previous century, whenincarceration rates wereafraction

of whatthey are today

Chapter

15 |

Unlocking

America

We first summarize the current problem, explaining how some ofthe mostpopular assumptions about crime and punishment are incorrect. In particular,

wedemonstrate that incarcerating large

numbers of people haslittle impact on crime, and show how the improper parole increases incarceration rates while doing little to control crime. how to change this flawed

system.

reform, embracing a retributive

use of probation and

Wethen turn to ideas about

Weset out an organizing principle for analyzing sentencing

sentencing philosophy that is mainstream among contemporary

prison policy analysts and sentencing scholars. Based on that analysis, we makea series ofrecommendations for changing current sentencing

laws and correctional policies. Eachrecommendationis practical and cost-effective. As weshow through examples of casesin whichthey have beentried, they can be adopted without jeopardizing public safety. If implemented on a national basis, our recommendations

would gradually and safely

reduce the nations prison andjail populations to halftheir current size.This reduction

would gen-erate

savings of an estimated $20 billion a year that could then bereinvested in far more promising crime prevention strategies.The result would be a system ofjustice and punishment that is far less costly, moreeffective, and more humane than what we havetoday.

Punishment

Offenders Elisa Kelly George Robinson Mother and stepfather3

Does Not Fitthe Crime Some Recent Examples

Prior Record

None

Cecilia Ruiz None Single parent two children ages 6 and 84

Crime

Description

Prison Sentence

Ninecounts of contributing to the delinquency of a minor

Hostingdrinking party Originalsentence for sons ninefriends at of 8 years-later parents home reduced to 27 months

Forgery

Deleting a DUI conviction from the county DUI data base

42 months

Jessica Hall Unemployed moth-er of three children with Marine husband serving in Iraq5

None

Throwing a missile Threw a cup of at an occupied McDonaldscoffee at vehicle anothercar that cut her off whiledriving

24 months

LewisScooter Libby6

None

Perjury

Provided false testimony to U.S. Attorney (four counts)

30 months

Stephen May7

None

Child Molestation

Inappropriately touched two girls and a boythere was nosexual activity or penetration

75 years

Genarlow Wilson8

None

Aggravated child molestation

17 year old male had consensual oral sex with a15 year old girl at a party that was video taped.

10 year

229

230

CRIME, JUSTICE,

AND SOCIAL

CONTROL

Notes 1. Public Safety, Public Spending: Forecasting Americas Prison Population 20072011. Philadelphia,

PA: Pew Charitable

2. In some cites the percentages young form

3.

black

Trusts, 2007.

are higher. For example, in Baltimore,

men between ages 20 and 30 is incarcerated,

of correctional

supervision.

Marylands

Overuse of Incarceration

DC: Justice

Policy Institute,

Jason Ziedenberg

one in five

and 52% are under some

and Eric Lotke.

and the Impact on Public Safety.

Tipping Point: Washington,

2005.

Washington Post, July 4, 2007, pages A1, A11,Penalties for Teen Drinking Parties Vary

4.

Widely in

Area.

Washington Post, June 30, 2007, page B4, Ex-Aide Given 31/2-Year Sentence.

5.

www.washingtonpost.com/wp-dyn/content/article/2007/02/17/ AR2007021701560.htt

6.

Washington for

Post, July 4, 2007, page A4, Bush

Says Hes Not Ruling

Out Pardon

Libby.

7. State of Arizona vs. Stephen

May, Maricopa Superior

Court,

No. CR2006-030290-001

SE.

8. abcnews.go.com/Primetime/LegalCenter/story?id=1693362&page=1.

Crime andIncarceration Whythe Prison Explosion?

Byfar the

Americas incarceration rateis exploding. In 1970,there werefewer than 200,000

major reason

people in prison. By 2006, there wereapproximately 1.6 million state and fed-eral

for the increase in the prison

populations at least since 1990 has been

prisoners(or nearly 500 per100,000 population). Eachyear over 730,000 people are admitted to state and federal prisons, and a muchlarger number (over 10 million) go to local jails. If we add to the prison population the nearly 750,000 people incarcerated in local jails todayat The

United Statesis the worldleader in imprisonment.

China, with a much

larger population, hasthe second largest incarcerated population,

longer lengths of imprisonment.

the beginning of 2007the

total number imprisoned in the U.S.on any given dayis 2.2 million.1

imprisoned.

with 1.5 mil-lion

With 737 people incarcerated per 100,000 persons, the U.S.

alsoleads the worldin rates ofincarcerationwell

above Russia, which hasthe

next highestrate of 581per 100,000.2The other Westerndemocraticcountries manage with prison populations far smaller than ours.

1

William J. Sabol, Todd

2006.

Bureau

of Justice

D. Minton, and Paige

Statistics

Bulletin,

M. Harrsion.

Washington,

DC:

Prison and Jail Inmates US DOJ,

Office

of Justice

at

Midyear

Programs,

2007. 2

Prison

London.

BriefHighest 2006

to Lowest Rates. International

http://www.kcl.

ac.uk/depsta/rel/icps/world

Centre for

Prison Studies,

Kings

College,

Chapter

15 |

Unlocking

America

23

Byfar the majorreason for the increase in prison populations atleast since 1990 has beenlonger lengths ofimprisonment. The adoption of truth in sentencing provisions that require prisoners to serve mostof their sentencesin prison, a widevariety of mandatory minimum sentencing provisions that preventjudges from placing defendants on probation even whentheir involvement in the conduct that led to the conviction

was minor,reductions in the amount of good time a prisoner can receive

whileimprisoned, and moreconservative parole boards havesignificantly impacted the length of stay. For example, in aspecial study by the U.S. Department of Justice ontruth in sentencing, between 1990 and 1997,the numbers of prison admissions increased by only 17% (from 460,739 to 540,748),

whilethe prison populationincreased by 60%(from 689,577to 1,100,850). This larger increasein the prison population can only be caused by alonger length of stay.3 This is further confirmed in Table15.1, whichshows sentencelengths, time served,

TABLE15.1 SentenceLengths,TimeServed,and

and period spent on parole supervision. These

Length of Parole Supervision, 1993

U.S. Department ofJustice data are

versus2002

based onindividuals released in 1993 and 1993

2002

Average Sentence

66 months

65 months

Average Time Served

21 months

30 months

Average Parole Supervision

19 months 26 months

whohave not yet beenreleased. Nev-ertheless, Total Time Under Supervision the averagetime served by those

40 months 56 months

2002.The

Length of Supervision

2002 data underestimate the

averagelength of current prison sentences

becausethey do notinclude time served by prisoners sentenced under recent puni-tive laws (such as three strikes and youre out)

Source: Prison Statistics.

who werereleased still increased substan-tiallyfrom

US Department of Justice, Office of Justice

Programs, Bureau of Justice Statistics. 1 Aug. 2006. http://www.ojp.

21to 30 months. Similarly, the parole supervision

usdoj.gov/bjs/prisons.htm

period increased

from 19 to 24 months, and the total average period ofsupervision increased from 40to 56 months.

Notonly are ourlengths ofimprisonment significantly longer than they werein earlier periods in our penal history, but they are considerably longer than in

most Westernnations. Forthe same

crimes, American prisoners receive sentencestwice aslong as English prisoners, three times aslong as Canadian prisoners, four times aslong as Dutch prisoners,five to 10 times aslong as French prisoners, andfive times aslong as Swedish prisoners.4 Yetthese countries rates of violent crime arelower than ours, and their rates of property crime are comparable.5 Mostprisoners are incarcerated for crimes that do not compare with the costs of their impris-onment. Wespend over $200 billion each yearto fund the criminal justice system.6 In contrast, the total economic loss to victims of crime in 2002 wasan estimated $15.6 billion, or about one-tenth

3

Paula

of Justice 4

M. Ditton and Statistics,

5

Franklin

US

DOJ,

Patrick Bureau

E. Zimring

and

A. Langan, and

of Justice

Gordon

UP, 1997. 6

Wilson. Truth

in Sentencing in State Prisons.

Washington,

DC: US DOJ, Bureau

1999.

David P. Farrington, DC:

Doris James

http://www.ojp.usdoj.gov/bjs/eande.htm

Statistics,

Hawkins,

Michael Tonry, eds. Cross-National

Studies in

Crime and Justice.

Wash-ington,

2004.

Crime Is Not the Problem:

Lethal

Violence in

America.

New York:

Oxford

232

CRIME, JUSTICE,

AND SOCIAL

CONTROL

TABLE15.2 Economic Lossto Victims and CostsofIncarceration Average

Prison

Pretrial

PrisonTime

Type of Crime

Victim Loss

Sentence (in mos)

Time (in mos)

Served (in mos)

Total Time (in mos)

Robbery

$1,258

94

5

55

60

$113,000

Burglary

$1,545

52

5

29

34

$64,000

$730

34

5

20

25

$47,000

$6,646

27

5

17

22

$41,000

Larceny Theft

Auto Theft

Source: Matthew R. Durose and Patrick A. Langan. Felony Sentencesin State Courts, 2000.

Incarceration Costs*

Washington, DC: Bureau of Justice

Statistics, 2003, and Callie M. Rennison and Michael Rand. Criminal Victimization, 2002. Washington, DC: Bureau of Justice Statistics,

2003.

of the total cost of the nations criminal justice system.7The typical (median) costs per crime for each victim

was$100, whichincludes losses from property theft or damage, cash losses, medical

expenses, and lost pay. Whilethefinancial losses and physical and emotional injuries sustained by victims can be significant, they represent only afraction of whatit coststo incarcerate the offenders.

Table15.2illustratesthe vast disparity betweenthe economiclossesassociatedwithfour common crimes and the amount expendedto incarcerate the offender. For example, the averageloss associated with arobbery reported to the policeis $1,258.The typical prison sentencefor robbery in the United Statesis 94 months, or about eight years, of which the typical time served is 55 months. Together with the time spent in jail pre-trial, the average robbery offender is incarcerated for 60 monthsat a cost of approximately $113,000. This

historic rise in incarceration

has often been attributed to the fact

that in the early 1970s,

the U.S.faced asteadily increasing crime problem, leaving no choice but to increase the use ofincar-ceration massively. Butthis explanation for the imprisonment

binge is misleadingand incomplete.

Crimerates havegrown in other countries and states within the U.S. without provoking alarge growth in prison populations. There are various ways a country can respond to increased crime; more prisons is just one of them.

Moreover,statistics show that it wasnot primarily a rise in crime

that fueled the increase in incarceration rates. Figure 15.1 compares changes in the nations crime ratesas

measured by the FBIs Uniform

Crime Reports (UCR) that are based on police records that primarily reflect victim reports to their local police departmentswith

changesin the rates ofincarceration from 1931to 2004. After being

relatively stablefor decades,between 1964 and 1974 the UCR Crime Indexwhich assault, rape, burglary, robbery, theft, auto theft, and arsonincreased

measuresmurder,

significantly

even as the

incarceration rate remained relatively stable.8 Thereafter, the UCRcrime rate swung up and down until 1992 whenit began a steady decline.

7

Callie

M. Rennison

and

Prison

populations

fell

Michael

Rand. Criminal

Victimization,

2002.

Washington,

DC: Bureau of Justice

Statistics,

2003.

8

by about eight percent

been a major cause of the 2.4-fold DOJ, Bureau of Justice

Statistics.

rise in

UCR index

between

1960 and 1970. This

offenses in that

small

drop could

decade. Sourcebook of Criminal

278, 500 http://www.albany.edu/sourcebook

not remotely Justice Statistics.

have US

Chapter

15 |

Unlocking

7,000

America

600

6,000

500

5,000 400 4,000 300

3,000 200 2,000

100 1,000

0

0

1931 1981 19411943 1991 1933 1935 1937 1939 1973 1975 1977 1979 1983 1985 1987 1989 1993 1995 1997 1953 1955 1957 19651967 19691971 19992001 2003200 1945194719491951 195919611963 Year

Crime

Rate

Incarceration

Rate

FIGURE15.1 Crime and Incarceration Rate Comparisons

The

UCRis one of two waysthat the governmenttracks crime rates.The other,the National

Crime Victimization Survey (NCVS),

wasestablished in 1973 in recognition of the fact that the

UCR had major biasesin the wayit gauged crime.The

NCVSis often considered a moreaccurate

and complete picture of crime in the U.S.,asit is based on interviews

of household members.

As shown in Figure 15.2, NCVS shows noincreases in property crimes from 1973 to 1980. Similarly,

NCVS show no increase in violent crimes between 1973 and in 1993, unlike the UCR

data which showed a steady increase over the same time period.There is contradictory

evidence

of a 1970s crime epidemic, which wasa majorrationale for expanding the use of imprisonment.9 Regardless of which measuring methodis used, there was no large drop in the incarceration rate

beforecrime rates beganto increase after 1963. Whilea variety oftheories exist asto whycrime rates rose from 1964 to 1974, the cause wasnot alarge drop in prison populations, which remained fairly stable until 1973.10 Prison populations beganincreasing only after crime rates had already stabilized or, according to the crime victimization surveys, had already beganto decline. Beginningin the 1960s,law and order advocates declared a war on crime. Conservative politicians (starting

with Barry Goldwater in the early 1960s), backed by religious groups (the

9

Criminologists

debate the sources

of the discrepancy

the

decline shown

by the

U.S. Department

NCVS. The

crimes to the police, and law enforcement are correct,

these changes in reporting

Also note that the 10

Asthe

1964

and 1973.

to

NCVS property

created the illusion

15 to 24 commit

numbers

a substantial

1964, and began turning

agree,

of a growing

of baby boomers

proportion

40 around 1990.

of index

that

there

But demographics

crime

ifor

their

victims

problem

explain

in

UCR data and

were more likely

to report

systems. If these explanations was none.

which is lower than the number

when there

of persons.

muchcrime and that

rates increased

some

high crime-committing

persons in the baby-boom cannot

crime shown

actually

how

was an increase,

passing through

crimes. The

violent

and reporting

of households,

be used to determine

however,

in

has suggested that

their recording

rate is based on the number

Most criminologists

large

of Justice

agencies improved

NCVS was started in 1973, it cannot

demographicsthe

between the growth

Moral Majority

cohorts

all of the increase.

of the increase

between was due

years. People aged started

reaching

15 in

233

234

CRIME, JUSTICE,

AND SOCIAL

CONTROL

6,000

2,000

1,800 Rate

5,000 1,600

1,400 4,000

Household

Rates

1,200 NCVS

3,000

1,000 and

Property

800 UCR

2,000

Violent

600

NCVS

400 1,000 UCR

200

0

0 197319741975 1982 1983 1988 1993 197619771978 1979 19841985 19861987 1989199019911992 1994199519961997 199819992000200120022003 19801981 Year UCR Property

FIGURE15.2

NCVS

Household

NCVS

Property

Person

Violent

UCR Violent

UCRand NCVSCrime Rate Comparisons

of the 1970s) and right-wing

media figures (such astalk-radio hosts of the 1980s), argued that crime

was out of control largely becauselenient judges gavelawbreakers too

manychances before they

were punished, predatory criminals avoided punishment because of technicalities in the law, and criminals returned to the streets after serving short sentences.These advocates of a war on crime suggested harsh mandatory punishments wereneededthat would bothincapacitate peopleconvicted of serious crimes and deter others from breaking the law.

The mediacontributed to the fervor overthe crime problem through its unrelentingfocus on crimethe

moreheinous and sensational, the better. Broadcastjournalists

crimes drew large audiences.The

discovered that sensa-tional

media publicized horrific but rare crimes (the kidnapping

and murder of Polly Klass,the sexual murder of Megan Kanka, and the attack perpetrated by Willie Horton while on work release).In so doing, it led Americans to believe wrongly that they wereat high risk of being assaulted, raped, or murdered. During this same period, a growing number of neoconservative social scientists claimed that law and order ideas and policies rested on a sound scientific foundation. In 1975, political scientist James Q. Wilsonpublished the widelyread Thinking About Crime,in which hesoberly admonished

liberal/humanitarian social scientiststo rememberthat ...

wickedpeopleexist. Nothingavailsexcept

to setthem apart from innocent people.11 For Wilson and those whoinitially

shared his views, incapacitating

growing and more menacingtype of criminal

whatthey believed wasa

wasa necessary weaponin the war against crime.

Byinsisting that only stepped-up criminal justice interventions could cope with crime,

11 Up.

James

Q. Wilson.

New York Times

Thinking

About Crime.

New York:

Magazine 9 March 1975: 11.

Random

House, 1975. 235. See also by

Wilsonand

Wilson: Lock

Em

Chapter 15 |

Unlocking

America

235

others like John J. DiIulio and William Bennett werearguing against the strategies recommended by the riot commissions of the 1960s and by experts on poverty and racial problems: alleviating poverty, combating discrimination, and opening up opportunities that had previously beenshut off by racial discrimination and class inequality. Remedying social inequities, they not reduce crime.Their

solutionmore

maintained, was not the job of the government and would people in prisonrested

on the use of aninstitution

had become substantially discredited among penologists in the 1960s.Their

that

views wereenthusi-astically

supported by the federal government, which subsequently funded studies to identify the

career criminal. Public receptivity to this hawkish perspective wasenhanced by anxieties associated with the rapid rise in crime during the 1960s, the eruption of riots in a number of American cities, and the advent ofthe civil rights andfeminist

movements,challenging longstanding racial and gender hier-archies.

These developments, exploited by well-funded conservative polemicists whose arguments were widely publicized in the media, helped to shape public response to the high-profile death of athlete Len Biasfrom a cocaine overdose in 1986. Along with the growing use of crack cocaine, his death sparked a rapid government response. All these factors converged, creating aperfect storm that drove the imprisonment

binge.

Thus after 1975 manylaws werepassed,supported by politicians of both parties, designedto increase the probability of a prison sentence rather than jail or probation, dramatically increasing the length of prison sentencesfor certain crimes, and requiring prisoners to serve a greater proportion oftheir sentencesthree

results that we will discussin greater detail below.

Newlegislation increasing the penalties for the sale and possession of cocaine, particularly crack cocaine, intensified the upward trend.

Asis evident in Figure 15.3, increased penalties for

350.0

300.0

250.0

resident

200.0

100,000

150.0 per

Crimes

100.0

50.0

0.0

19801981 1982 1983 198419851986 1987 19881989 19901991 1992 1993 19941995 19961997 1998 19992000 200120022003 Year Violent

FIGURE 15.3

Incarceration

Rate

Property

Rate

Drug

Rate

Rates by Crime Category (19802003)

Public

order

Rate

236

CRIME, JUSTICE,

AND SOCIAL

CONTROL

drug offenses strongly fueled late 1980s. Since then incarceration to public

much of the growth of state prison populations starting in the

most of the growth in prison systems has been due to the increased

of persons for violent crimes (mostly robbery and assaults) and behavior related

order.

Once begun, prison expansion

has continued

under its own

oblivious to any obvious need and unrelated to any useful social function,

momentum,

at large social cost.

Though penologists have called attention to the failures of massimprisonment,

the expansion

has taken on alife of its own. Alongthe way, Americans have become accustomed to demonizing certain people who break

the law.This is somewhat odd, giventhe fact that breakingthe law is neither a rare nor demonic act. Few citizens gothrough life without ever violating alaw. Asignificant

number of Americans cheat on their taxes, steal from their employers, receive

stolen goods, purchase illegal cable boxes,illegally download in

music, useillegal drugs, or partici-pate

many other illegal acts. Hardly a day goes by without a newspaper story about corporate

executives indicted for fraud, insider trading, or pricefixing. for soliciting

or accepting bribes.The

most prestigious

Politicians are arrested and convicted

WallStreetfirms

have engagedin large-scale

illegal trading practices. Some of our mostsuccessful and idolized are indicted for shoplifting,

children. Policemenarefilmed

using excessiveuse of force on citizens, makearrests based on

racial stereotypes, deal in drugs, plant evidence on innocent figures

entertainment figures

domestic violence, drunk driving, possessing drugs, and molesting people, and lie under oath. Sports

are accused of rape, assault and taking steroids. Priests are charged with child

molesta-tion.

Doctors bill Medicarefor procedures they did not perform. Each daythousands drive while legally drunk,

with sometimes-fatal

consequences.12 Self-report surveys find

is widely distributed among the young, especially arrested before reaching adulthood.

that lawbreakin

males. As many as one-third

of all boys are

A majority of males will be arrested for a non-traffic offense

at some point in their lives.13 But given that

most of us commit some type of crimes in our lifetimes, the

mostsevere pun-ishments

aretargeted toward lower classcitizens.It is this classof people weare willingto punish disproportionately to their criminal acts.This ofindividualism,

willingness to punish them is rooted in our culture

which holds that wearefree-willed

and fully responsible for our acts.This

belief

speaks to our tendency to assign personal blame for every disapproved act.The truth is that many

12

In 2002, an estimated

more escaped

arrest.

died in alcohol-related homicide

In a study

the

police before

(Marvin

In 2004, the

drivers

were arrested for

National

Center for

crashes in 2003. This

of a Philadelphia

is slightly

age 18.These

E. Wolfgang,

Robert

male birth 3,475 boys M. Figlio,

Press, 1972. 65, 6869.

Offender

Assistance confrontation Justice:

million

driving

Statistics

under the influence

and

Analysis

more than the 16,503

of alcohol

reported

or narcoticssurely

that just

over 17,000

murdered or who died from

people

non-negligent

in the same year.

13

Chicago

1.5

Careers

and

Administration,

35 percent

with a contact and Thorsten

Restraint:

Probabilities

1977). In a similar Petersilia.

Review of Research 2 (1980):

and

study

Sellin.

Policy

carried

Criminal 32179.

of the youths

were linked

By age 30, 47% had at least

by the same age. Joan

An Annual

cohort,

to 10,214

contact for

Implications.

out in

Washington,

Racine, Research:

one incident

offenses, including

Delinquency in a Birth

one police

Career

had at least

of contact

2,786 index

Cohort.

Chicago:

a non-traffic

offense

DC:

US DOJ,

Wisconsin, 5969%

with crimes

University

of

(James J. Col-lins.

Law

Enforcement

had a non-traffic

A Review of Recent Evidence.

police

Crime and

Chapter

15 |

Unlocking

factors, particularly race and economic status, affect our life situations and limit

America

237

or expand our

available choices. Consider young people with college-educated parents. Middle and upper-class parentsimpart values of achievement through education to their children, arrange for their admission into better schools, help them getinto good colleges, and support them after graduation whilethey attempt to start their careers. Their children havea much higher chance of succeeding in Americas economy than youth from poor, welfare dependent, and often broken families different life, including

who are exposed to a much

dangerous public housing buildings and dysfunctional public schools. For

manyofthese youth,the expectationor normis to drop out of highschool and end up hanging out in neighborhoodsfilled

with other undereducated, unemployed young people.14Ratherthan going

to college they are headedtoward prison. Wherelawbreakers differ culturally and socially, others areless ableto empathize withtheir life circumstances.

Middle-and upper-class people understand that they themselves, their families, and

close associates are not defined entirely by their law violations. Butthey often lack understanding for those whoselife circumstances are different from their own. The

demonization of criminals has become a special burden for young black males,of whom

nearly one-third

will spend time in prison during their life.15The fear of black menand other factors

fuel the racially disproportionateimprisonment and convinces manyAmericansthat black males are an especially dangerous

class of people, different from the rest of us,the so-called law-abid-ing.16

Today approximately 60% ofthose incarcerated today are black or Hispanic.17In effect, th imprisonment

binge created our own American apartheid.

Toillustrate the significance of racein our incarceration

policies, weestimated the size oftodays

prison and jail population assuming blacks and Latinos had the same incarceration white counterparts. The results are striking.

rate as their

Asshown in Table 15.3,if blacks and Latinos had the

same rates ofincarceration as whites,todays prison andjail populations would declineby approximately 50%. While we may differ onthe basisfor racial differences in imprisonment, there can be no dis-agreement

that this is notthe sign of a healthysociety.

14

See Pierre 1990,

CO:

Bourdieu

and Jean Claude Passeron.

and,

MacLeod.

Jay

Westview. 1995. These

15

Aint

No Makin

Reproduction in Education, It:

books address the issues

Prevalence ofImprisonment

in the U.S. Population,

Aspirations

& Attainment

of transmission 19742001.

Society, and Culture. in a Low-Income

of cultural

Washington,

capital

London:

Sage Pub-lications,

Neighborhood.

Boulder,

and success.

DC: US DOJ, Bureau of Justice Statistics,

2003. 16

Controlling

Beckett and Policy.

Growth,

Darnell Balance.

these 17

Bruce

Punishment

Their

This

for crime

rates,

have grown faster in states

Social

Marginality:

and Society 3 (2001):

4359;

David F. Greenberg

19711991,

and

Samuel CT:

do not fully

Prisoners in 2004.

L.

David F. Greenberg, Myers Jr., and

Greenwood

is not to deny that for disparities

populations

Western. Governing

F. Hawkins, Westport,

prison

Press,

US DOJ.

and

and Valerie

Criminal

and the

Katherine

Transformation

West. State

Justice.

N. Stone, eds. Crime

more black residents.

Prison

Criminology

of State

Populations

39.3 (2001):

Control and Social Justice:

and

61553.

The Delicate

2003.

UCR crimes, rates explain

Welfare, Incarceration,

Justice

Randolph

with

the racial

Washington,

of black involvement disparities

in

are higher than rates

prison

DC: Bureau of Justice

populations, Statistics,

or their 2005.

of white involvement. growth.

However,

238

CRIME, JUSTICE,

AND SOCIAL

CONTROL

TABLE15.3 If Black and Latino Prisoners Hadthe SameJail and PrisonIncarceration Rates

as WhitePrisoners Race

Current Prisoners

Prison Population If SameIncarceration Rates as Whites

Female Incarceration

Male Incarceration

Rates

Rates Whites

731,200

681

75

731,200

Blacks

899,200

4,834

352

125,773

Latino

392,200

1,778

148

136,540

Total

2,022,600

993,513

Did Prison Expansion Cut Crime? Proponents of prison expansion have heralded this growth as a smashing success.18But alarge number of studies contradict that claim. relationship

betweenfluctuations

Mostscientific evidence suggests that there is little if any

in crime rates and incarceration

rates have risen or declined independent ofimprisonment

rates. In

many cases, crime

rates. New York City,for example, has

produced one of the nationslargest declinesin crimein the nation whilesignificantly reducingits jail and prison populations.19 Connecticut, NewJersey, Ohio, and Massachusettshave alsoreduced their prison populations during the same time that crime rates were declining.20 Astudy of crime and incarceration

rates from 1980 to 1991 in all 50 states and the District of

Columbia shows that incarceration rates exploded during this period.The statesthat increased incar-ceration rates the least werejust aslikely to experience decreasesin crime asthose that increased them the most.21 The studys authors pointed out that although San Francisco and Alameda counties in California reducedthe number ofindividuals sentencedto state prison, their crime rates dropped as muchif not morethan those California counties that increased their prison commitments.

Otherstudies reach similar conclusions,finding no consistentrelationship betweenincarcer-ation rates and crime rates22 and no support for the more

18

John

19

DiIulio.

Prisons

Are a Bargain,

by Any

Between 1993 and 2001, violent crime in

dropped

New York decreased by 64%, and homicides

arrests to the introduction

which also reduced its commitments (Michael

Jacobson.

20

Ibid.,

128.

21

Irwin

and

Downsizing

Prisons:

ofnew

to prison, experienced How to

Austin, loc. cit., 15456.

Mauer. Diminishing

22

1972 through

23

Tomislav

For an updated

a Dead Horse: IsThere

in

different

Florida

declines in crime

MassIncarceration.

version

of this type

A19.

by 69%

examined

population

the dramatic

reductions

without using

of analysis,

NYUP,

However, San Diego, New Yorks 2005.

see: Jenni

DC:The

Evidence

while its jail

Compstat.

New York:

Washington,

Any Basic Empirical 361. Lynch

particularly

of the

One

Gainsborough

Sentencing Deterrent

methods

37, 113, 12527.

Project,

and 2000.

Effect of Impris-onment.

data on U.S. crime and imprisonment

trends

1993.

V. Kovandzic

Criminology

comparable

Reduce Crime and End

Crime, Law and Social Change 31.4 (1999): from

methods ofpolicing,

Returns: Crime and Decarceration in the 1990s.

Michael Lynch. Beating

Rates.

New York Times 26 Jan. 1996:

by 25%, and the number of people sentenced to prison fell by 42%. Some analysts attribute

in serious crime and felony

Marc

Measure.

prisoners, less crime thesis.23

and Lynne

M. Vieratis.

& Public Policy 5.2 (2006): counties

The

234. The

Effect of Country-Level authors

examined

the

Prison

Population

effect of incarceration

Growth

on Crime

on crime

rates

Chapter

study discovered an initial

15 |

Unlocking

America

decreasein crime related to increases in rates ofincarceration,

but no

decreasefrom further increases in incarceration.24 Focusing on California,

whoseincarcerated

population

morethan tripled

during the 1980s,

Franklin Zimring and Gordon Hawkins concluded that this remarkable expansion was paralleled by a reduction in crime of about 15%. Almost all this decrease wasin burglary and larceny. Forthe other offensesthe reduction wasweak to negligible. The role ofthe prison expansion in bringing about even that 15% wasdoubtful, because arrest statistics showed that the drop occurred mainly for juveniles, who wereless likely than adults to belocked up.25Acontrary view has been offered by

someanalysts,such as WilliamSpelman, whoarguesthat the crime ratetoday wouldbe25% higher wereit notfor the large increases in imprisonment from 1970 to 1990.26 Assumingfor the sake o discussion that this figure is correct, it is not alarge effect, considering the enormous increase in imprisonment

neededto achieveit. However, Spelmans estimate is probably too large. Hisanalysis

is based on national trends and does not explain why some states and counties that lowered their incarceration rates experienced the same crime reductions as statesthat increased incarceration; and his estimates ofcrime reductions rely on controversial datain the form of prisoners own claims about how muchcrime they had committed beforeincarceration.

Moresignificantly, Spelman agreesthat

further investment in expanding the prison population will havelittle if any impact on crime rates.

Morerecent estimatesbasedonindividual statesand counties within stateshaveestimatedthe crime-reduction impact of prison growth to be muchsmaller or nonexistent.27 Researchon crime and incarceration doesnotconsistently indicate that the massiveuseofincarceration hasreduced crime rates. In sum, studies onthe impact ofincarceration on crime rates come to arange of conclusions that vary from making

crime worse to reducing

crime a great deal. Though

conclusive evidence is

lacking, the bulk of the evidence points to three conclusions: 1)The effect ofimprisonment

on crime

rates, if there is one,is small; 2) If there is an effect, it diminishes as prison populations expand; and 3)The

overwhelming and undisputed negative side effects of incarceration far outweigh its

potential, unproven benefits.

24

Raymond

Matter? rates for gains 25

Criminology

national

District

and

prison

William

Bruce

J. Sabol. Did

rise in imprisonment

10.2 (1994):

York:

Penal Confinement

E. Moody Jr. Prison

10940,

similarly

Does Scale

analyzed the data on crime rates and incarceration

began in the 1970s, there

Hawkins. Incapacitation:

The

Blumstein. incarcerated

Limited New York: felons

Importance Cambridge

told interviewers

and incapacitating

authors

was a diminishing

and the

Population

believe that

effect over time.

Restraint ofCrime.

Growth

found just a small reduction

whatever

and Crime

New York: Reduction.

in crime resulting

from

of Prison

Expansion.

UP, 2006. they

97129.

The Spelman

had committed

those individuals

the

Crime

Drop in

based this

estimate

year before their

averted the same amount

America,

on the amount

arrest.

of crime

Revised edi-tion.

Spelman

he assumed

of

then would

subsequently. Western. Punishment Getting

and Inequality

Tough on Crime Pay?

www.urban.org/publications/307337.html; New

study

Effect of Incarceration:

period from 1972 to 2000. The that

B. Marvell and Carlisle

Criminology

assumed that incarcerating be committed

This

Crime-Control

expansion.

Spelman.

recently

24576.

of Columbia in the

Gordon

UP,1995. 101;Thomas of Quantitative

Piehl, and Bert Useem. The

& Public Policy 5.2 (2006):

E. Zimring

Ed. Alfred

27

Morrison

all 50 states and the

Franklin

Journal

crime

Anne

were achieved in the dramatic

Oxford

26

Liedka,

Vera Institute

of Justice,

in

America.

Crime Policy Don Stemen.

2007.

New York: Report

No. 1.

Russell Sage, 2006; James P. Lynch Washington,

Reconsidering Incarceration:

DC: Urban Institute,

and

William

1997. http://

New Directions for Reducing Crime.

239

240

CRIME, JUSTICE,

AND SOCIAL

CONTROL

These studies haveled former pro-incarceration advocates to change their positions. James Q. Wilson now concedesthat we havereached a tipping point of diminishing in prisons.28 According to

returns

on our invest-ment

Wilson,judges have always been tough on violent offenders and

haveincarcerated them for relatively long periods. However, as states expanded incarceration, they dipped deeper into the bucket of persons eligible for prison, dredging up people with shorter and shorter criminal records.29 Increasing the proportion

of convicted criminals sent to prison, like

lengthening time served beyond some point, has produced diminishing

marginal returns in crime

reductions. Similarly, former incarceration advocates such asJohn DiIulio andformer

U.S. Attorney

GeneralEdwin Meesearecallingfor a repeal of mandatory minimumsentencingand challenging the wisdom of a massiveimprisonment

policy.30

The Negative Side Effects ofIncarceration Incarceration

may not have had muchimpact on crime, butit has had numerous unintended con-sequences,

ranging from racial injustice and damageto families and children to worsening public health, civic disengagement, and evenincreasesin crime. Bruce Western demonstrates the extraordinarily

disparate impact of imprisonment

on young

black malescomparedto any other subgroupof society.For example,heshowsthat nearlyone-half of all young black males who have notfinished

high school are behind bars, anincarceration rate

that is six times higher than for white maledropouts. Hethen shows how incarceration the lifetime earnings, labor

damages

market participation, and marriage prospects for those who have been

to prison and concludes that the U.S.prison system exacerbates and sustains racial inequality.31 British penologists Joseph Murray and David Farrington have analyzed data sets about child development from three nations and found that parental incarceration of delinquency,

contributes to higher rates

mentalillness, and drug abuse, and reduces levels of school success and later

employment among their children. Their

comparative analysis of datafrom high-imprisonment

andlow-imprisonment nationsrevealsthat the negativeeffectsofincarceration are mostpronounced when a nations incarceration rate is high, asit is in the United States.32 Epidemiologist JamesThomas that high rates ofincarceration

has analyzed incarceration rates in

North Carolina, and shows

are associated with increased rates of teenage single-parent births

and the risk of sexually-transmitted

diseasesamong women. Other analyses haveshown that the

high rate of HIV among black women can be attributed to incarceration rates of black men.33

28

James

Q. Wilson. Crime

1995:

489507.

29

Wilson, op. cit., 501.

30

Jacob Sullum.

Em

Rot

31

Bruce

32

Joseph

Prison

now says Let

Prisoners:

Em

Murray and

Go.

Reason Aug./Sept.

and Joseph

American

Journal

ofPublic

non-violent

of parental imprisonment

Carl-Gunnar

Incarceration

Health

drug offenders,

Oakland,

a criminologist

CA: ICS

Press,

who once said, Let

1999.

Janson,

of Two Longitudinal

Torrone.

Q. Wilson and Joan Petersilia.

op. cit.

Effects

Murray,

Comparison

and Elizabeth

Crime. James

After studying

David Farrington.

A Cross-National

James Thomas

Outcomes.

Conversion:

Policy.

Western, op. cit. See also, Raphael,

Research. Forthcoming;

33

and Public

96 (2006):

and

176265;

David Farrington.

Samples.

as Forced

on children.

Criminal Justice

Migration:

Rucker

Crime Crime

& Justice: in

and

Offspring

& Behavior 34 (2007):

Effects on Selected

C. Johnson

Adult

A Review of

Steven

Community Raphael.

The

of

13349. Health Effect

Chapter

There are an estimatedfive

15 |

Unlocking

241

America

million Americans whoareineligible to vote because

offelony convictions. About half of these are African-Americans; consequently, black communities

havelost a significant amount of political power. Christopher

Uggenand Jeffrey Manzahavedemonstrated that the loss of voting rights byfelons haschanged election outcomes acrossthe nation, including in the two

mostrecent

presidential elections, weakenedthe political influence of minority communities,

Why has there

and detracted from civic participation bylarge classes of people of color.34 Clearly, prison terms have a residual impact onthe families and communities

been such

ofthe imprisoned. Enduring yearsof separationfrom family and communitydeprived of material possessions,subjected to high levels of noise and artificial light, crowded conditions and/or solitary confinement, devoid of privacy, with

a growth in imprisonment?

reduced options, arbitrary control, disrespect, and economic exploitationis maddeningand profoundly deleterious. Anger,frustration, and a burning sense of

Theincarceration

injustice, coupled with the crippling processesinherent in imprisonment, signifi-cantlyexplosion reduce the likelihood that prisoners are able to pursue a viable, relatively conventional life after release.

has

been based on a series ofideas

Three Key Mythsabout Crime andIncarceration

that

were widely

accepted and broadly popular

The research summarized above shows that

massincarceration

has a limited

potential for reducing crime and has collateral consequences that outweigh its

at the time, but

benefits. Whythen hasthere been such a growth in imprisonment? The incar-ceration have turned explosion has been based on a series ofideas that were widely accepted once, but haveturned out to be erroneous.The three 1.There are career criminals

main mythsare:

we can identify and whoseimprisonment

will

reduce crime; 2. Tougher penalties are neededto protect the public from dangerous

crim-inals;

and 3. Tougher penalties will deter criminals. Becausethese ideas have been so central we discussthem in some detail.

Myth#1:Therearecareer criminals wecanidentify and whose imprisonment willreduce crime. One of the primary justifications the career

of and

Male Incarceration Men.

Foundation 34

criminals

(July

Christopher

Democracy.

on Dynamics

Unpublished

for lengthy sentences is that we can identify

or violent

paper

predators

of AIDS Infection

presented

who commit

Rates Among

to the incarceration

study

most of the serious

African-American group

of the

Women Russell Sage

2006). Uggen and Jeff

New York:

Oxford

Manza.

UP, 2006.

Locked

Out: Felon

Disenfranchisement

and American

out to

be erroneous

242

CRIME, JUSTICE,

AND SOCIAL

CONTROL

crime and who are not deterred or rehabilitated by short sentences or alternative punishments to incarceration. These people,it is argued, mustbe incapacitated crime significantly.

for long periods oftime to reduce

However, scientific efforts to develop methodsfor identifying

career criminals

havefailed. In 1978, a National Academy of Sciencestudy by a panel of prestigious criminologists concluded that while most people have a relatively brief and modestcriminal career, asmall group persists in crime.

However,the panel was unable to produce any valid methodsfor identifying the persistent

criminals atthe beginning of their criminal careers.35

Shortlythereafter,a groupof RANDresearchersthought they hadfound a wayto identify persons who would eventually become repeat offenders.They

discovered a group of high-rate

offenders

among samples of malesimprisoned for robbery and burglary in three states(California, Texas and Michigan).36Significantly, the vast majority ofthe surveyed prisoners reported committing very few if any crimes the year before they werearrested (five orless). Butthe so-called high-rate

offend-ers,

whocomprised 10% of the samples, claimed they had committed 45 robberies and burglaries per weekin the preceding year.The researchers developed a profiling scale that distinguished the high-rate offenders, whomthey labeled violent career criminals, from the others. Peter Greenwood claimed that if the peopleso identified

wereincarcerated for atleast eight years, crime would decline

by 20%. Because thelower-rate offenderscould bereleasedafter servingreducedsentences,prison expansion could be avoided. These claims were widely disseminated by the U.S. Department of Justice and used by elected officials to justify sentencing reforms such as mandatory minimums, truth in sentencing, and the abolition of parole boards. However, when Greenwood and his associate Susan Turner later followed a group of released prisoners identified as high-rate offenders by their profiles, they found that these individuals

had not committed crimes of the type and at the rate expected.37

Morerecent research, nearly twenty years afterthefirst studies onthe topic, continues to discredit the claim that career criminals can beidentified early by a profiling system. John Laub and Robert

Sampsonhavere-examined datafrom Sheldonand Eleanor Gluecks1930sseminal publication following the life careers of 500 Boston delinquents.38 Althoughthe vast majority desistedfrom crime after the age of 25, a small minority persistedin committing crime into their later years. Using all available criteria, Laub and Samson could not distinguish these persisters

at the beginning oftheir

delinquent careers from the others who had followed the normal pattern of criminal involvement in adolescence and desistance after their early twenties.

35

Jacqueline

Careers

36

Peter

Santa 37

Criminals.

Greenwood

Monica,

Monica,

Inmate

Survey:

DC: National

and

Alan Abrahamse,

et.

al., eds.

op. cit.; Jan

Frequency

Washington,

M. Chaiken

Rates and

DC:

and

National

Offense Seriousness. Academy

Marcia Chaiken.

Press,

Criminal

1986.

Varieties ofCriminal

Behavior.

1982. Selective Incapacitation

1987. Christy

A Reanalysis. Academy

Career: Individual

Blumstein

and Susan Turner.

CA: RAND,

Criminal

A. Visher also found Careers and Career

Revisited:

Why High-Rate

methodological

Criminals,

Offenders Are Hard to Predict.

weaknesses in the study;

Vol. 2. Alfred Blumstein

see The

et. al., eds.

Rand

Washington,

Press, 1986.

Sheldon and Eleanor

Laub and Robert

Sampson

Sampson.

Beginnings,

Shared

on Criminal Alfred

CA: RAND,

Peter Greenwood

Santa

38

Cohen. Research

and Career

T. Glueck. continued Divergent

Unraveling Juvenile the follow Lives:

up study

Delinquent

Delinquency.

New York: The

of this cohort into Boys to

Age 70.

the

Cambridge,

Commonwealth

members MA:

Fund, 1950. John

70s. John Harvard

Laub and

UP, 2006

Robert

Chapter

15 |

Unlocking

America

Laub and Sampson wereable tofind

a different set of predictive factors, none of which could

be observed whenthe young peoplefirst

committed crimes. Instead, they found there were major

turning

points in a persons lifesuch

as getting and holding a good job, enlisting in the military,

marrying, and establishing contacts with conventional institutions

and groupsrather

than per-sonality

characteristics or early childhood experiences that dis tinguished the careers of desisters from persisters.

Laub and Sampson alsofound that delinquents who had beenincarcerated

were

morelikely to commit crimes later in life than those who had been sentenced to probation orlocal jail time.The implication

wasthat imprisonment itself can encourage criminality.

In asubsequentstudy, MichaelE. Ezelland Lawrence E. Cohenpublishedtheir analysisofthe criminal

careers of three cohorts of serious chronic offenders released from

California youth

prisons in the 1980s and 1990s. Although the offenders varied in the amount of crime they commit-ted after their releasefrom prison, all aged out of crime.39 Similar to the other studies, Ezell and Cohencould notfind

any background characteristics that reliably distinguished those with different

post-releasecriminal trajectories. and behavioral These

Otherresearchers haveemployed mixesof psychological test scores

measuresto predict serious violent recidivism or involvement in new sex crimes.40

methods predict recidivist crime better than random guessing, but they are also inaccurate.

Though improvements in statistical

methodsfor predicting violent recidivism

have produced

modestgainsin accuracy,they rely on datathat would normally not beavailablein atypical crim-inal justice application.41 Criminologists have been unableto develop practical and reliable methodsto selectthose who will become career criminals.42 Attempts to incarcerate based on any predictive criteria

willinevitably

end up incarcerating alarge number of people who do not persist in serious crime. As advocated later in the report, sentencing should not be based on what wethink a person will do but rather on whatthey have done and in proportion to the seriousness of the crime.

39

Mike E. Ezell and

of Serious Chronic research

on criminal

Contemporary Research. 40 for

Violence?

When Current

Courtroom: John

York: 42

and

Annual

Public

Monahan. The

Kathleen

Jacqueline

Actuarials and

UP, 2004. Auerhahn.

A Longitudinal

Continuity

Problems

Greenberg. Age

Are Used to Identify

and

30141;

Future

of Violence

Risk

Richard Violent A. Prentky

Crime Patterns

Age Structure

Crime and Justice:

of most

of Society.

An Annual

Review of

Press, 1986: 189250.

of Future

Robert

Management.

and the

of Chicago

Sexually

5685;

Long-Term

of crime is a consistent finding

Crime.

Predictions

69 (2006):

and Change in

out

Delinquency

University

Genetic

12 (2006):

aging

Psychology, Public Policy, and Law 12 (2006):

Dangerousness:

Wollert. Low

Predators:

IsThere

a Blueprint

Base Rates Limit

An Application

et. al. Sexually

Violent

Expert

of Bayes Theo-rem. Predators

in the

35793.

The Future of Imprisonment.

Ed.

Michael Tonry.

New

23763. Selective

Incapacitation as a Strategy

Understanding

Washington,

Garica-Rill.

Law

Cohen. Incapacitation

Crime, 19651988.

David

David Farrington.

and Edgar

Policy,

Crime:

UP, 2005. 163.This

Morris, eds. Chicago:

Review of Research 5 (1983):

Roth, eds. Offender:

Norval

Science on Trial.

Oxford

189224;

Law and Contemporary

Psychology,

Desisting from

Oxford

See, for example,

Crises 1.2 (1977):

Michael Tonry

E. Cohen.

New York:

careers.

Erica Beechner-Monas

Certainty

41

Lawrence

Offenders.

DC: Study

184;

Academy

of Criminal

for

Jacqueline

and Preventing

National

24

Career

and the

Problem

Crime

Control:

of Prediction. Possibilities

Cohen and Jose

and

Patterns.

Rudy A. Haapanen. New York:

37.4 (1999):

Pitfalls.Crime

A. Canela-Cacho.

Violence: Consequence and Control, Press, 1994;

Criminology

Incarceration

and Justice: and

1990.

An

Violent

Vol. 4. Albert J. Reiss and Jeffrey

Selective Incapacitation

Springer-Verlag,

70334;

A.

and the Serious

244

CRIME, JUSTICE,

AND SOCIAL

CONTROL

Myth#2:Tougherpenaltiesareneededto protectthe publicfrom dangerous criminals.

Wecant seriously address our crime problem until repeat offenders learn that they will get no more breaks from the criminal justice system. ... Whenincarcerations increase, serious crimes go down. Andrew

Thomas,

County

Attorney,

Maricopa

County,

Arizona43

The failure of efforts to develop methodsof accurately identifying the small number of offenders

whodo commit particularly horrendouscrimes after serving their sentencesfueled demandsfor longer sentences across the board.44The logic of this argument wasthat if wecant single out the truly dangerous, we will assume that anyone with two or three convictions for a relatively

wide

range of offensesis a dangerous habitual criminal, and keep them all in prison for an extremely long time.

Onthe basis ofthis reasoning, a number of states adopted mandatory sentencing, truth

in sentencing and in some states three strikes laws, all of which extend prison sentences. These laws have donelittle to reduce crime. Few convicted persons havethe requisite number of previous felony convictions to qualify for the enhanced sentences.45 This is becauserates ofreturn to serious crime on the part ofthose releasedfrom prison are not high. Just 1.2% ofthose who served

time for homicideand werereleasedin 1994 wererearrestedfor a new homicide withinthree years of release, andjust 2.5% of released rapists were arrested for another rape. Sex offenders wereless likely than non-sex-offenders to berearrested for any offense.46 Their rates of re-arrest for a new sex offense were only 5.3%. Asubstantial percentage (over 60%) of released prisoners are eventually rearrested, but mostlyfor drug offenses or violations of parole regulations. for sentence enhancements under these habitual

Many of those eligible

offender statutes are at an age whenthey are

reducing their involvement in crime, or abandoning it altogether. The

U.S. Department of Justice conducted a majorstudy of criminal involvement of prisoners

who had been releasedin 1994. It found that only 5% of the 3 million arrests madein seven states

between1994 and1997 wereofrecentlyreleasedprisoners(Table15.4).47Californiasthree strikes law has had a number of evaluations; almost all found that it failed to reduce crime.48

43

Christian

44

Jonathan

Review

in

Simon.

Thomas:

Reversal

Probation

of Fortune:

The

of Law and Social Science 1(2005):

Punishing 45

Richardson.

in an Actuarial

Franklin

E. Zimring,

California.

New York:

46

A meta-analysis

and

Monique

Consulting Know and

Age. Chicago: Gordon Oxford

and Clinical Psychology What We Need to Know.

Management.

47

Recidivism of Prisoners

48

John

L.

Robert

Worrall.

Justice 32 (2004):

The

28396

University

of Individual

Risk

Bernard

E. Harcourt.

East Valley Assessment

Against

Tribune in

29

Criminal

Prediction:

Nov. 2006. Justice.

Profiling,

Annual

Policing,

and

of Chicago Press, 2007.

and Sam Kamin.

also concluded

Predicting

and

Cases.

Resurgence

397421;

Hawkins,

Major Felony

Punishment

and Democracy:

Three Strikes and Youre

Out

UP, 2001.

of 61 studies

T. Bussierre.

Out in

A. Prentky

Relapse:

66 (1998):

sex offenders

A Meta-Analysis

34862;

Annals ofthe et.

that

and

R. Karl

Offender

Hanson et. al. Sex

See R. Karl

Recidivism Offender

Hanson

Studies.

Journal

Recidivism:

What

Coercive Behavior:

of We

Understanding

154-.

US DOJ.

Effect ofThree-Strikes

of Sexual

of recidivism.

New York Academy ofScience, Sexually

al., eds. (2003):

Released in 1994.

have low rates

Washington,

Legislation

DC: Bureau of Justice

on Serious

Crime in

Statistics,

California.

2002. Journal

of Criminal

Chapter

TABLE15.4

15 |

Unlocking

America

245

Percent of Arrests Attributed to Released Prisoners

Arrestsin 7 States

Percent

Number

Total Arrestsin 199497

2,994,868

Total Arrestsof Prisoners Releasedin 199497

100 5

140,543

Total Arrests of Released Prisoners for Violent Crimes

36,000

Source: Recidivism of Prisoners Released in 1994. US DOJ. Washington, DC: Bureau of Justice Statistics, 2002.

These studies makeclear that, while many people who are released from prison end up back behind bars, they are but afraction of the overall crime problem. Lengthening their sentences, as a meansof dealing with crime will at best have only marginalimpact.

Myth#3:Tougherpenalties willdeter criminals The

hope that the presence of brutal prisons will deter law violators is as old asthe invention

of the prison itself.

Contemporary supporters oflonger sentences argue that longer and harsher

punishmentsare necessaryto detercrime by making criminals think twice before com-mitting TABLE15.5 another crime.This

Indicator

and distorts the dynamics of criminal behav-ior. When mostpeople commit a crime, they

Number

Victimizations

correctly believethat they will not be caught. According to

Chancesof BeingCaught

notion simplifies 25,036,030

Reportedto Police

%of Total 100

9,721,205

39

NCVS surveys, about 60% of

all crimes are not reported to police.The

Arrests

FBI

reports that 4.6 million arrests were made

for property or violent crimes, a number

Less Drug, Alcohol, and OtherVictimless Crimes

representing only 19% of the reported vic-timizations. State and Federal Felony Convictions State and federal courts dealing with serious felony crimes produce about one million convictionsof

Convictions ResultingIn Prison orJail

which 68% result in

a prison orjail sentence.Therefore,

13,699,254

55

4,642,803

19

983,823

4

680,000

3

asillus-trated

in Table 15.5, the immediate chances of being arrested, convicted, and sentenced

Source:

U.S. Department

of Justice,

Office of Justice

of Justice Statistics, Prison Statistics. www.ojp.usdoj.gov/bjs/keyfacts.htm.

Programs,

Bu-reau

Online. Available: http://

Accessed: August 1, 2006.

to jail or prison are quite small.

Further, differenttypes of crimes vary markedlyin their potentialfor beingdeterredand people differ in their susceptibility to being deterred by the threat of punishment.The

population roughly

divides into three groups: 1) those who,because of personal values and social commitments,

would

not knowingly commit crimes under any circumstances; 2) those who are deterred whenthey believe that there is some likelihood they will be caught and punished; and 3) those who are not deterred.The type of crime mostlikely to bereported and to result in arrest and conviction tends to be committed by those least likely to be deterredgenerally

young malesexcluded from the con-ventional

pathways to success, many of whom already have been severely punished by the juvenile

246

CRIME, JUSTICE,

AND SOCIAL

CONTROL

justice system early in their lives and are unlikely to be deterred in the future. The vast majority of these youth desistfrom crime after their twenties for reasons unrelated to any penaltiesthe state imposes on them. Ironically, those who are deterred when punishment is seen aslikelypolluters,

pricefixers, slum lords,

inside traders, stock swindlers, workplacesafety violators, and other white-collar criminalsreceive

The danger

of relying on treatment and programs to

relatively lenient punishment whencaught.

Atthe turn ofthe 19th century reformers realized that brutal prisons embitter prisoners rather than reform them. Yetthis persistentfaith that prisoners can be

discouraged from returning to crime bysubjectingthem to harshpenalties,or that the population atlarge can be deterred moreeffectively with severe penaltiesthan with milder ones, has never had empirical support. Decadesofresearch on capital punishment havefailed to produce compelling evidencethat it prevents homicide

solve Americas imprisonment crisis is that

moreeffectively than long prison sentences.49 Community penalties,it has been shown, are atleast as effectivein discouraging return to crime asinstitutional pen-alties.50 Rigorousprison conditions substantially increase recidivism.51 Evaluations show that boot camps and scared straight programs either have no effect onrecid-ivism

when recidivism

orincrease it.52 Tough

sanctions are popular, but they do not reduce crime.

isnt reduced,

The Limits of Prison-Based Rehabilitative and Treatment Programs

imprisonment will be regarded asthe only viable

There is a growing beliefthat prison populations can bereduced simply by expand-ing rehabilitative

answer to the

crime problem.

and treatment

programs within our prisons.This

position is

basedlargely on new studies showing that treatment or rehabilitation

services

can reduce recidivism and thus reduce the number of persons being re-admitted

to prison after release.Increasingly, completion of rehabilitative or addiction treatment programs can and do result in a reduced period of confinement.

49 on

Sarah Crime

and

Deterrence: 50

T. Dike. Capital Delinquency,

and Offender 51

1982;

Deja Vu All

Joan Petersilia

Richard

Over Again?

and Susan Turner.

Recidivism.

M. Keith

Punishment in the

Santa

Discontinuity-Based

A. Berk.

Journal

Claims

of Empirical

CA: RAND,

M. Shapiro.

Approach.

New

Hackensack, about

NJ: National Executions

Legal Studies 27 (1998):

Prison versus Probation in California:

Monica,

Chen and Jesse

United States.

4

and

General

20919.

Implications

for

Crime

1986.

Dec. 2006.

Cowles Foundation,

Council

Does

Harvard

Prison

University

Harden

Inmates?

A

http://home.uchicago.

edu/c~jmshapir/prison120406.pdf/ 52

Doris Layton

MacKenzie

Panacea Phenomenon. Works in

Corrections;

Cambridge Effectiveness J.

McGuri.

UP, 2006;

Reducing

Mark

of Treatment New York:

and James

Englewood

Cliffs, the

O. Finckenauer.

NJ: Prentice

Criminal

Activities

W. Lipsey. What with Juvenile

Wiley, 1995

Scared Straight:

Hall, 1982;

Delinquency

and the

MacKenzie.

Offenders

and

Delinquents.

Do We Learn from

400

Research Studies

Delinquents?

of

Doris Layton

New

What York:

on the

What Works: Reducing Reoffending.

Ed.

Chapter 15 |

Our concern is that we delude

TABLE15.6

Unlocking

America

Probation and Parole SuccessRates19952003

ourselves that treatment programs hold the key to reducing the prison Outcome Measures

population. Prison populations did not increase in the 1970s because programs crime

disappeared,

and recidivism

Successful

Probation

Parole

Completions

causing

1995

62%

45%

rates to

2000

60%

43%

2003

59%

47%

16%

38%

increase. Ratherand it is important

to beclear about thisprison

pop-ulations

increased becauselaws were

Reason For Failures

passedthat increased the number of

Re-incarcerated

people sent to

New Conviction and Sentence

5%

11%

Revocation

7%

26%

Other

4%

1%

Absconded

4%

9%

22%

6%

prison

and their

length of stay. Evenif treatment programs were effective in reducing

recidivism,

recidivism is not the primary cause ofthe explosion in the prison pop-ulation,

as wehave argued above. Evidence suggests, however, that

Other

Source: Probation and Parole in the United States, 2003. US DOJ. Washington,

DC: Bureau such programs are in fact not par-ticularly

of Justice Statistics, 2004.

effective in reducing even the portion of prison overcrowding caused by recidivism. The

most TABLE 15.7 1983 and 1994 Prisoner Three Year Follow-Up and parole suc-cess Recidivism Rates rates and the reasons for not Recidivism 1983 Prison 1994 Prison completing probation or parole Measure Releases Releases

recent probation

supervision havenot changedsince

the U.S. Department ofJustice began

Re-Arrested

63%

69%

reporting them in 1995 (Table 15.6).

Re-Convicted

47%

47%

Re-Imprisoned

41%

The same holds true for recidivism

4052%*

rates of prisoners released from prison (Table 15.7).The

Bureau of

*52% readmission to prison with California prisoners and 40% without Califor-nia prisoners included.

Justice Statistics national recidivism

Sources: Recidivism of Prisoners Releasedin 1994. US DOJ. Washington, DC: Bu-reau

rates of prisoners after release have not changed between1983 and 1994.

of Justice Statistics, 2002; Recidivism of Prisoners Releasedin 1983. USDOJ. Washington, DC: Bureau of Justice Statistics, 1989.

Figure 15.4showsrecidivism rates for the states of Washington and New York, which have been recording their three-year return prison rates as early as1985.Thus despite a number of reforms that have been designedto increase the availability of program services, recidivism rates haveremained unchanged.53

53

See State

Follow-Up.

of New York

Albany,

Department

New York; and the

of Correctional Washington

wa.gov/BudgetAndResearch/ResearchData/Recidivism20.pdf/

Services

State

(undated),

Department

of

2001 Releases: Three Corrections

Year Post-Release

Website at: http://www.doc.

24

248

CRIME, JUSTICE,

AND SOCIAL

CONTROL

80%

70%

60% Rat

50%

Recidivism

40%

30%

20% 1985 1986 1987

1988 1989 1990

1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 Year of Release

New York

Washington

California

Pennsylvania

Ohio

*Note:CAratesare2 yr.

FIGURE15.4

Three-Year Recidivism Rates

Agrowing literature on what

works in correctional programming hasfound that manyprograms

have noimpact on recidivism rates. Arecent meta-analysis

oftreatment programs reviewed 291

evaluations of adult offender treatment programs, both in-prison and in-community,

conducted in

the United States and other English-speaking nations.54It reports that 42% of the evaluated pro-grams, including jail diversion programs, domestic violence programs, faith-based, psychotherapy

or behaviortherapy for sex offenders, boot camps,electronic monitoring,and restorativejustice programs had noimpact on recidivism. Ofthe 167 effective programs, only one-fourth

were prison-based treatment

programs.

Of

these programs, the reduction in recidivism rates generally ranged from 4% to 10%.These recid-ivism reduction results are similar to those found in other major evaluations of what (or doesnt

work).

works

Notably, many other programs do not reduce recidivism and mayactually

increase rates of failure.55

54

Steve

Aos,

Marna

Miller, and

What Does Not. Olympia, random to

55

assignment

approximate

Donald

Programming.

the

WA: Washington

procedures attributes

A. Andrews. Laurence

et. al. Preventing Crime:

L.

Elizabeth

Drake. Evidence-Based

State Institute

to create treatment of the

treatment

Principles Motiuk and

of Effective

group,

which

Correctional

Ralph C. Serin, eds.

What Works, What Doesnt,

for

and control

Public

Adult

Policy, 2006.

groups. The is less

Whats Promising.

Programs:

Only 20%

other studies

What Works and

of the evaluations

used matching

used

techniques

rigorous.

Programs.

Ottawa:

Corrections

Compendium

Correctional Washington,

Service

2000 on Effective

Correctional

Canada, 2001; Larry

DC: National Institute

Sherman

of Justice, 2006.

Chapter

Treatment and rehabilitative

15 |

Unlocking

America

programs tend to be mosteffective whenthey are disassociated

from government coercion.56 Someone who doesnt candidate for being rehabilitated.

wantto be rehabilitated is not a promising

Requiring someone to sit through

a program designed to deal

with dependence on alcohol or drugs maylead to resentment and shammed participation. It is not likely to bring about the inner transformation that will endinvolvement in crime.The association of help with punishment that occurs whencourts require treatment is likely to discourage those who could benefit from programs to seek them out on their own.The ofreluctant participants

presence of substantial numbers

may undermine the quality of the programs, reducing their ability to help

those who wantto be helped.Those whoadminister programs arelikely to becomedemoralized if they areforced to accept clients

sent to them by a court, rather than working with those who

seek help on their own. Even under the

most optimistic assumptions, the effect of in-prison

is to reduce failure rates by 10% or so. If all correctional

rehabilitative

programs

programs wereto achieve this level of

success,they would reduce failure rates for about one-third of those confined from about 40% to about 30%. A10% reduction in return-to-prison

rate for one third ofthe population translates to an

overall system rate reduction in recidivism of 3%.This is notlarge enough to substantially reduce a prison population.

The inability of rehabilitation programsto stem prison expansioncan beseenin several major states.The

Florida Department of Corrections reported that it offered a wide array of treatment,

education and vocational programs to over 6,500 prisoners released in 1995 and 1996. For those whocompleted the programs, a recidivism rate reduction of 610%

wasachieved. Butthe estimated

number of prisoners thus not returning to prison becauseofinvolvement in the programs wasabout 400 or two percent of the morethan 18,000 persons admitted to prison in the same year. Indeed, while these programs operate, both prison admissions and the prison population have continued to escalate.57 In California, a recent study by the states Inspector

Generals Office concluded that Califor-nias

$1 billion investmentin drugtreatment for prisonerssince1989 has beena complete waste of money, and hasfailed to reduce recidivism rates. In fact astudy by UCLA found that the states two largest in-prison

programs produced higher recidivism rates for inmates who participated in

the programs as opposed to those who did not receive treatment.58 Some of the reasons cited for the lack of impact are improper program design and operations. With respect to treatment in lieu ofincarceration,

we agree that large numbers of persons

charged with felony crimes should be sentenced to alternatives to state prison that also provide treatment services and education programs. But numerous studies of prison diversion programs show that these, too,

56

Ojmarrh

Treatment 57

Analysis

maynot reduce prison admissions. Too often, alternative programs have been

Mitchell,

on Criminal

David B. Behavior,

of the Impact

of Inmate

Wilson, and

Doris L.

MacKenzie,

which is a meta-analysis Programs

on

Recidivism.

The

Effectiveness

of in-prison

treatment

Tallahassee:

Florida

of Incarceration-Based

programs Department

for

Drug

drugs.

of Corrections,

2001

http://

www.dc.state.fl.us/pub/recidivismprog/index.html/. 58

Matthew L. Cate. Special

Department

of Corrections

Review into In-Prison

and Rehabilitation.

Substance

Sacramento:

Abuse Treatment California

Programs

Managed by the

Bureau of Audits and Investigations,

California 2007

249

250

CRIME, JUSTICE,

AND SOCIAL

CONTROL

reserved for people who would not otherwise have been sentenced to prison.59In some instances, diversion programs actually increase prison populations. This

can occur when people who plead

guilty to be eligible for treatment fail to complete the program and end up being sent to prison. In many of these cases,they would have hadtheir charges dropped if they had not pled guilty or been given a county jail sentence or a shorter prison sentence than the one they received after failing the treatment program.60 Ultimately, the purpose of treatment and rehabilitationand usefulness and efficacyshould

the criteria for assessing their

not be a majorreduction in recidivism,

muchless reducing the size

ofthe prison population.These are unreasonableburdensto placeon programsthat are, bytheir very nature, limited. There is no question that providing meaningful work, education, and self-development programs to prisoners promotes more human and safer prisons. And a growing body of research, as noted below, suggests that prisoners who seriously take advantage of well-administered rehabilitative services and complete the programs are morelikely to succeedin achieving satisfying conventional lives after prison than persons who do not receive these services. But expanding treatment services has not been shown to be an effective meansof reducing prison populations. Indeed, relying on treatment and programs to solve Americas imprisonment

crisis carries the risk that, whenthey

fail to reduce recidivism, imprisonment will beregarded asthe only viable answerto the crime problem.61 Treatment programs are necessary and humane, but they are not answers to the crisis of prison overpopulation.

Decarceration,CostSavings,and PublicSafety The overuse ofincarceration, along withthe mistakenjustifications that havesupported this policy, havecorrupted and compromised our criminal justice policies and paralyzed efforts to reform them.

The netresultis an expensivesystemthat relies muchtoo heavily onimprisonment, is increasingly ineffective, and diverts large sums oftaxpayers Even some of the leading criminologists

moneyfrom moreeffective crime control strategies.

wholobbied for putting more people in prison are now

advocating that weinvest some of the tens of billions weare now spending on imprisonment more productive crime-reduction

59

Larry

Sherman

60

Joan Petersilia.

Management 61

et. al., op. cit. A

Quarterly

In 1973,

New York

for possessing states followed

suit

they imprison

Decade of Experimenting 3.3 (1999): Governor

or selling

mules

Nelson

of Robert

Martinsons

construed,

30 years ago, as providing

only

that

proposed the infamous that treatment

long sentences for

use. It is

Reform.

Rockefeller

or street-level

reducing

conclusion

Sanctions:

What Have

We Learned?

Corrections

1927.

substantially

Prison

drug

with Intermediate

drugs, after concluding

with similarly

low-level

Answers about

in

practices.

drug-law

dealers for

because

so

support

for

The Public Interest

prison

programs for heroin

violators. These very long

much faith

most treatment

Rockefeller

programs

had

been

placed

are

without in

users

widely seen as failures capturing

rehabilitation

2254

Robert

Martinson.

What

life sen-tences

were not working.

Other because

major operators that

had not been shown to be effective

expansion.

35 (1974):

laws

stretches,

drug laws, imposing

the

could

or

publication

have been

Works? Questions

and

Chapter

15 |

Unlocking

251

The facts indicate

The impact of a $1 million investment in ... cash and other incentives to disadvantaged students to graduate from high school would result in a

reduction of 258 crimes per year, and parenttraining therapy for fami-lies with young acting

America

that placing so many people in

out children 160 crimes per year, compared to a

reduction of 60 crimes a year through building and operating prisons.62

prison jail or on probation

Butto makesuchinvestments

we mustreduce the system that is draining our

resources.The facts indicate that placinglarge numbers of people in prison and

and parole for

jail or on probation and parolefor long periods oftime is not an effectivecrime

periods of time

control strategy. Onestudy found that after imprisonment tipping point, it became counter-productive.

Whentoo

exceeded a certain

many menare removed

from a community, family and social life are de-stabilized, leading to higher crime

an effective crime control strategy

rates.63 Making matters worse, we have squandered lean government budgets on corrections (responding to the symptom) instead offunding programs that shep-herd dislocated young people onto conventional paths (responding to the cause). While we build prisons, we do not increase funding for academic and technical

education,job training, healthcare,affordable housing, or other social services that assist peoplein getting afoot in the door to a better life. The loss of manufacturingjobs in recent decadeshasreduced the opportunities for non-white, inner-city

youth to get their feet in that door.64Prison expansion,

by stigmatizing such alarge number of black and Latino maleyouth, has placed an additional obstacle in their path. It interferes

with family formation,

strains

existing family relationships, and disrupts careers.65 Becauseemployers com-monly discriminate against minorities and also against ex-convicts, our current crime-control strategy dooms manypeople whostart life with majordisadvantages.

62

Peter

RAND, 63

W. Greenwood

et. al.

Diverting

a Life of Crime. Santa

Monica,

CA:

1998.

Dina

R. Rose and

Relationship of

in

Todd

R. Clear.

Low-Income

MassImprisonment;

The

Marc

Mauer and

Todd

Disadvantaged

Worse. New York:

John

Chicago:

Places

M. Hagedorn. Lake

R. Clear. Imprisoning

View Press, 1988;

The Origins of the

Princeton

UP, 1996.

65

Hagan and Ronit

John

Communities,

and Prisoners.

Western. Punishment

Oxford

People and Folks:

Punishment and Society 3.1 (2001): J. Sugrue,

Problem

Communities.

Press, 2003. 18194;

64

Children from

Loic 95134;

Communities:

New York: The

Conse-quences New Makes

Underclass in a Rustbelt

City.

UP, 2007.

Race and Inequality

in America.

Prison-Crime

MassIncarceration

Ghetto and Prison

Steven Raphael, op. cit.; Bruce

Collateral

The

The Collateral

eds.

How

Gangs, Crime, and the

Crime and Justice:

and Inequality

by Subtraction:

Punishment:

Meda Chesney-Lind,

Wacquant. When

Urban Crisis:

Dinovitzer.

with Addition

Invisible

in

Consequences

Postwar

Mesh.

Western, op. cit.; Thomas Detroit.

of Imprisonment

A Review of Research 26 (1999): New York:

Meet and

Russell Sage, 2006.

Princeton,

for 12162;

NJ:

Children, Bruce

252

CRIME, JUSTICE,

AND SOCIAL

CONTROL

The long-term association of minority status with crime in the public mindis strengthened when a highly disproportionate number of blacks and Latinos arelocked up. In the long run, these stereotypes reinforce discriminatory

residential and employment pat-terns.

Prospective employers, faced with a black malejob applicant, are now morelikely than in the pastto suspect that the applicant has a criminal record, and decline to offer ajob.66 Highrates ofimprisonment

maythus reduce legitimate stakes in conformity and eliminate lawful alternatives

to crime, notjust for those who are sent to prison but alsofor those who are not. Careful analysis of variations in states crime and incarceration rates reveals a consistent rela-tionship:

states withthe lowest crime rates also havethe lowestincarceration rates, andthis is not primarily a result ofincarceration reducing crime. Put differently, if incarceration

werethe keyto a

safer society, cities and states with exceptionally highincarceration rates (e.g., Baltimore, D.C., Louisiana, Texas,and Oklahoma) would bethe safestnot to live.

Washing-ton,

the mostdangerousplaces

What makesa place safe are social and economic factors that deliver a high quality of life

as measured by good education, strong families, informal

social controls, viable networks, and

opportunities for stable, meaningful, and well-paid work.67 Whileincarceration does not makeus safer, decarceration, asrecommended in this report, would free up the resources necessaryto produce neighborhoods that are good placesto live, work, and

play, makingpeoplesafe(and feel safe)from commonforms ofinterpersonal violenceandtheft. It lies beyondthe scope ofthis document to specify a program for doing this.There are, however, steps that government, business, and community organizations can take in preventing communities from deteriorating andin helping them improve

whenthey arein trouble.The criminal justice system has

a role to playin this process. Businesses will bereluctant to invest in communities be at high risk for violence and theft.

wherethey will

Neighbors will be reluctant to participate in and take respon-sibility

for community affairs whenthe streets are unsafe. At the same time, it

mustbe recognized

that criminal justice agencies cannot dothe job alone. Wefocus here on criminal justice, but insist that the contribution it

makes mustbeinformed

by keyfacts wehavespelled out aboveif the result

is to be progressive,humane,and effective.

66

John

38185;

R. Lott Jr. The Devah

Jeopardy:

The

6281

Conviction

and Does

Law and Economics 18 (1998): Men.

The Quarterly Journal

Richard Marc York:

B. Freeman

Illness.

Conviction 2540;

2002;

Press,

in

Arnold

Michael

America.

New York:

S. Linksy

and

Dover,

MA: Auburn

American

and the

11(1995):

5171;

and

eds. Invisible

Tonry.

Income

Malign

Work.

Journal

of Sociology

61760;

Reposed in the

Effect on Income

Economic

108 (2003):

Marc

MA: Harvard Workmen.

Mauer. Raceto Incarcerate.

New

The Collateral York:

Oxford

93775

and Double

of

Human

International and Earnings

New York:

UP, 1995;

Bruce

H. Laub. Waldfogel. Resources Review of of Young

New Press, 1999;

A Review of Research 265 (1999): Consequences ofMass

34 (1990):

and John

UP, 1993; Joel

Journal

and Employment?

Crime and Justice:

Letters

Robert J. Sampson

Effect of Arrests on the Employment

Punishment:

Neglect.

of Criminals,

Life. Cambridge,

Trust

Grogger. The

Fagan. Crime

New

Record.

Have Permanent

ofEconomics

and Jeffrey

Legitimate

Points Throughout

Jeffrey

Meda Chesney-Lind,

on the

Wisconsin Law Review (2005):

on Income

Mauer and

Inequality 67

Getting a Job,

Making: Pathways and Turning

Effect of Criminal

29 (1994):

Conviction

Mark of a Criminal

Race, Crime, and

Crime in the The

Pager.

Effect of

22590;

Imprisonment.

Western.

Punishment

New and

Russell Sage, 2006.

Murray

A. Straus.

House, 1986

Social Stress in the

United States: Links to

Regional Patterns in Crime and

Chapter 15 |

Unlocking

Recommendations

253

America

Our resources

Our Orienting Idea: Punishment Should Fit the Crime

are misspent, our punishments

Wehave argued that usingimprisonment to reduce crime by deterring, incapac-itating, or rehabilitating returns.

is of limited

value, and is now yielding diminishing

Whatthen should imprisonment

be usedfor?The size of the literature

too severe, our sentencestoo long.

addressing this subject is not matched by its success in forging a consensus on the matter,and we do notintend to settle all debates here.That said, wethink it Imprisonment canlegitimately satisfy asocial and personal needfor retribu-tion Mostcontemporary philosophies

of punishment give alarge role to retribution. In addition to satisfying victims needs,punishing lawbreakers accordingto what they deserve can perform important social functions.

Punishment can promote

social solidarity, whilefailure to respond to crime weakenscommitment to social norms. Atthe same time, excessivepunishment can exacerbatesocial tensions and widens divisions, reducing solidarity. It can corrode a nations political culture,

and obstructeffortsto dealconstructively withsocial problems,including crime. Retribution should not be used as an excusefor

mindless punitiveness asis

the case now.The essence ofthe retribution is to punish people proportionately to whatthey deserve,based on the crime they have committed. Excessiveleniency and undeserved harshness both violate the principle of proportionality. Failure to limit the severity of punishment to whatis deservedis unjust. It alienates citizens from the government and undercuts the effectiveness oflaw enforcement. those who are punished are disproportionately

When

poor and members of minority

groups,it is inevitable that they will believe that the law is being usedto repress

them, rather than holdingthem accountablefor their crimes. Public opinion polls have consistently shown that substantial numbers of peoplethink that the courts aretoo lenient. These sentiments cannot betaken at face value, and should not beallowed to dictate sentencing policy unthinkingly. For example, the vast majority of crimes are neither as serious asthe public believes them to be nor as heinous as the media portrays them. Asshown in Table 15.8, very few (about 15%) ofthe crimes for which people are arrested are either vio-lent or serious property crimes. Yet many of these arrests are resulting in prison terms.

Wehave already noted that the costs ofthese crimes to the public are only

a fraction ofthe costs of punishing those whoare arrested and convicted.The volume of serious crime attributed to released prisoners is also muchlower than is commonly believed.

68

Justice

An Address American

Anthony

M. Kennedy. Speech

by Anthony Bar Association.

M. Kennedy,

at the

American

Associate Justice,

San Francisco,

Bar Association,

Supreme

CA. 9 Aug. 2003.

Anthony Kennedy6

usefulto beclear about our own guidingthoughts.68 toward those who violate societys laws.

Justice

Court

of the

Annual United

Meeting: States.

M.

254

CRIME, JUSTICE,

TABLE15.8

AND SOCIAL

CONTROL

Arrests by Type of Crime, 2005

CrimeType

Number

Total Arrests

14,094,186

Percent 100%

In addition,

many people do not fully appreciate

how harsh and disruptive anyform of imprisonment is becausethey have never experienced the total loss of agency and privacy that imprisonment entails. Most

603,503

4%

prisoners experience monotonous routines,

14,062

0%

neglect, physical danger, extreme isolation,

Forcible rape

25,528

0%

Robbery

114,616

1%

Total Serious Violent Murder and non-negli-gent manslaughter

Aggravated assault

Total Serious Property Burglary Larcenytheft Motor vehicle theft Arson Drug abuse violations Alcohol/Liquor Driving under the influence

myriadof deprivationsall

medical and a

of which worsenthe trauma

of imprisonment.

Whenpeopleare presenteda fuller picture ofthe

449,297

3%

1,609,327

11%

they generally favor

298,835

2%

Recentstudies show that when

1,146,696

8%

areinvolved, there is substantial support for interme-diate

147,459

1%

16,337

0%

Wealso note that problems can potentially arise

1,846,351

13%

when prosecutors, defense counsel andjudges wantto

2,525,924

18%

modify asentence bytaking into account other factors

1,371,919

10%

facts of particular crime and the criminals

character-istics,

more moderatesanctions. nonviolent offenders

sanctions and for restorative justice.

that are morerelatedto the goals of deterrence,inca-pacitation and rehabilitation.

For example, should we

Liquor laws

597,838

4%

allow different prison sentences for two people who

Drunkenness

556,167

4%

havecommitted the same crime but have different prior

53%

records or have been assessedto present alower risk to

1,301,392

9%

public safety (male versusfemale, older versus younger,

118,455

1%

All Other Crimes

Otherassaults Forgery and counterfeiting

10,035,005

Fraud

321,521

2%

Embezzlement

18,970

0%

Stolen property; buying, receiving, possessing

133,856

1%

Vandalism

279,562

2%

Weapons

193,469

1%

Prostitution

84,891

1%

Non-rape sex offenses

91,625

1%

Gambling

11,180

0%

drug addiction versus none)? Similarly, one could argue that someone who has committed only a very minor crime but has been assessedas a high risk to commit

a serious crimeif releasedand hencein need of being deterred,incapacitated orrehabilitated should beincar-cerated as opposed to someone convicted of a more serious crime but posesno such threat to public safety. The prestigious American Law Institutes recently issued

Model Penal Codeendorses a concept of lim-ited

retribution, rehabilitative,

which allows for the introduction

of

deterrence and incapacitation factors

Offenses against the family

129,128

1%

which can influence sentences within minimum and

Disorderly conduct

678,231

5%

maximumlimits basedon retributive considerations.

33,227

0%

3,863,785

27%

which sentence lengths can be extended far beyond

3,764

0%

what a defendant deserves. Prosecutors and judges

Curfew/loitering

140,835

1%

currently take such considerations into account asthey

Runaways

108,954

1%

negotiate pleas and set sentences.

Vagrancy All other offenses Suspicion

This

position hasthe merit of limiting the extent to

Nevertheless weare concerned about the potential Source: UCR 2005, Federal Bureau of Investigation. *Percentages do not add up to 100% due to rounding.

for injustice and discrimination

associated with thi

Chapter

practice.

When decisions madeas to

15 |

Unlocking

whether someone should beimprisoned

America

25

or for how long

on the basis of what crimes one mightcommit if released, or on the basis of a persons needsfor rehabilitation, they

will often beincorrect.

Subjecting people who will not commit serious new

crimes to prison sentences (or to longer sentences) simply on the basis of predictions that arefalse is simply unfair. Weare also concerned determinations of dangerousness or in need of treatment arelikely to be skewed by racial and class biases. Racial stereotypes sometimes operate unconsciously and can influence

perceptions of dangerousness even on the part of decision-makers who harbor no

conscious prejudices. Minority offenders personal circumstances prospects for rehabilitation. Those

may makethem appear to some judges as unlikely

whocan pay for private drug or mental health treatment, pro-vide

restitution in large amounts to victims and communities, or attend educational and vocational programs often unavailable to the poor are likely to receive milder punishments than others who have committed exactly the same crimes. This is especially so in the current political context, which increasingly relies on the private sector to provide correctional services.This

meansthat

health problems get help becausethey can payfor itand

middle-classcriminals

with drug or mental

stay out of prisonwhile

poor people who

cannot doso goto jail. Byreducingthe magnitudesofsentencesandrestricting them within narrow limits, such disparities are likely to bereduced. But weremain concerned that poor and non-white people might belikely to receive harsher punishments within these limits. For all ofthese reasons we opposethe practice ofimposing prison sentences so that the defen-dant can be rehabilitated, retributivism

or to

protect society from a dangerous person. Onthe other hand,

does not require that everyone who violates a given statute receive exactly the same

sentence. In determining the appropriate punishment in a particular case, some characteristics of the person and the crime committed can legitimately

be considered. All violations of a particular

criminal statute are not alike. Asentencing system should be flexible

enough to permit individu-alized

sentenceswhen warrantedby mitigatingor aggravatingfactors nottaken into accountin the establishment of general sentencing practices. Atthe sametime it should not beso unstructured asto createunwarranted

sentencing disparities

among defendants with similar records who have beenfound guilty of similar criminal conduct. Flexibility and equity in sentencing can thus be achieved by considering the criminals

personal

circumstances, the circumstances ofthe crime itself (e.g. wasit spontaneous or premeditated?) and criminal record to influence the sentence. The implementation

of these very general principles is a matterthat deserves careful attention

by statelegislators. It lies beyond the scope ofthis report to specify the details of such a sentencing

scheme. Nevertheless,weinsist that the presumption againstimprisonment should holdfirm in all cases. Giventhe excessivelengths of sentences now being imposed on many defendants, a reconsid-eration of sentencing structures should begin with the premise that sentence lengths should be reduced substantially. Furthermore, innovative

methods ofserving in-community

be explored. Especially promising are programs of victim-offender

restoration

reparation such as are already operating in Europe, Australia and New Zealand.

sentencesshould and community

256

CRIME, JUSTICE,

AND SOCIAL

CONTROL

Four Recommendations that

Will Reduce Prison Population

To reduce the prison population, we propose four recommendations. If implemented, they would dramatically reduce current prison, parole, probation, and jail populations. All ofthese recommen-dations have been successfully implemented in some fashion in severaljurisdictions

with no adverse

impact on crime rates.69 Bylowering the prison population, the associated coststens dollars now spent in an ineffective

war on crimecould

of billions o

either be returned to tax payers or rein-vested

by the public and private sectorsin those social, family, community, and economic institutions that have more direct influence on crime rates.

TABLE15.9 Three Year Follow-Up Rate

of Re-Arrestof State PrisonersReleased in 1994, ByTime Servedin Prison

6 Months or Less 712

The fundamental the imprisonment

and most powerful reform that bingeis to reduce the severity of

the sentencesthey are given. For many prisoners now sent to prison, this would meanprobation or a short

66.0%

months

prison. must occur if we are to have any hope of reversing

Three Year Re-Arrest Rates

Time Served

rECOMMENDaTION1: reduce time served in

jail sentence;for others,it would meanless time spent

64.8%

in prison, as wellaslesstime on parole. Anin-depth

1318

months

64.2%

examination of sentencelengths and time conserved

1924

months

65.4%

is called for, it might begin withthe presumption that

2530

months

68.3%

3136

months

62.6%

This central recommendation is groundedin three

3760

months

63.2%

facts: 1) manyprisoners are now servinglonger prison

terms becut backto whatthey werecirca 1975 when the imprisonment

61 months or more

binge began.

terms; 2) the longer prison terms are not proportion-ate

54.0%

to the severity of the crimes they wereconvicted

of; and 3)the extension oftheir length ofincarcera-tion

Source: Prison Statistics. US DOJ. 1 Aug. 2006 http://www. ojp.usdoj.gov/bjs/prisons.htm/

has no majorimpact on their recidivism rate, or crime rates in general. Asshown in Table 15.9there

is no association between length of stay and recidivism rates. Coupled with the previous research finding

that released prisoners account for a small percentage of all arrests, one hasto question the

benefits of increasing the length of time served.

rECOMMENDaTION2: Eliminate the use of prisonfor parole or probation technical violators. Today anywhere from 5065%

of the 650,000 prisoners admitted to state prison are those who

havefailed to completetheir terms of probation or parole. Ofthose who havefailed probation or parole, about half are being sent to prison for whatis known astechnical violations. Such violations

69 occur

Reducing over

released

prison

a span

prisoners.

no resultant

populations

of several

by shortening

years

and,

therefore,

In several instances,

increase

and use, has occurred

in

crime rates. with no increase

prison

Similarly, in

sentences there

populations

and ceasing returning would

be little

or no impact

have been reduced

decriminalization

drug use or other crimes.

parole violators on

in a short

of drug crimes,

crime

period

even heroin

to prison rates

of time

could

due to influx

and there

and cocaine

only of

was

possession

Chapter

15 |

Unlocking

America

include such behavior as absconding from supervision, failure to pay supervision fees, restitution costs, orfines, failure to attendtreatment, drug use as detected by urine-analysis, failure to employment, or being arrested (but not convicted) for

maintain

misdemeanor orfelony level crimes.

Whilethese behaviors are troublesome, they do not reach the level of seriousness of requiring incarceration for

many months or yearsin state or federal prison. In

many ways using the most

severeform of punishment for behavior that only a probationer or parolee can beimprisoned for is a clear example of wherethe punishment does notfit the crime. For those that suggest that by incarcerating

peoplefor non-felony crimes or non-compliance withthe terms of probation or parole

weare preventing moreseriouscrimesto occur,thereis noscientific datato support such a claim.In fact asshown in recommendation or criminogenic

No.3,the evidence is that parole supervision is either ineffective

with respect to public safety.

Parolees who are returned to prison because oftechnical violations often serve relatively long prison terms.The

U.S. Department ofJustice reports that parole violators returned to prison serve an

average of 18 months before being re-released. In Louisiana, the state withthe highestincarceration ratein the United States,the averagelength ofstay for a technical violator is 20 months. Conversely, the state of Washington, by statute, does not allow technical violators to spend morethan 60 days incarcerated for such violations and then only after a set number of violations.

These dataclearlysuggestthat wearespending a greatdealof moneyand wastingalarge amount of prison space on people whofail to comply with parole and probation supervision rules and who have not committed new crimes. Prosecutors and correctional unlessindividuals

officials erroneously believe that

are re-incarcerated for technical violations, the individuals

will commit serious

crimes in the future. There is no scientific evidenceto support this belief and attendant policy, yet it continues to bethe primary rationale for re-incarcerating tens of thousands of peoplefor criminal or non-criminal

behavior for which ordinary citizens could not beincarcerated.

rECOMMENDaTION 3: reducethelength of parole and probation supervisionperiods. Currently,personsplacedon probation and paroleremain in this statusfor extendedperiods oftime (after three years or more). Violation ofthe rigorous rules imposed on probationers and parolees can result in return to prison. As wesaw in Table 15.4, a substantial fraction of prison admissions arefor these technical

violations.

There is little evidence that lengthy parole and probation terms decrease crime. A number of studies in California discovered that 1) there was no relationship between the time on supervision and parole success, and 2) parole versus no parole supervision on recidivism rates.70 Probation or parole supervision failure is mostlikely to occur within thefirst 12 monthsof supervision; thereafter, supervision is moreof a nuisancethan a meansfor assisting people after prison or preventing them

from committing another crime.

70

Dorothy

Outcome.

Sacramento:

and Twelve Jackson. Patrick

R.Jaman,

Lawrence California

Month Follow-Up

Living

Together

G.Jackson.

Bay

A. Bennett, and John Department

Evaluation. Unmarried:

of Sacramento

Sacramento: Awareness

Area Parole Project.

E. Berecochea. Corrections,

California

Contexts

Early

Discharge from

1974;

Dept. of Corrections,

and Social Interaction.

Mimeographed,

Deborah

1978.

Parole: Policy, Practice and Star.

Research

Journal

Summary

Parole:

A Six

Unit, 1979; Patrick

of Family Issues (1983),

G. and

25

258

CRIME, JUSTICE,

AND SOCIAL

CONTROL

Now,there is new research evidence

TABLE15.10 Re-IncarcerationRatesby Typeof

indicating

Releasefor Selected States Release Type

parole supervision

is

largely ineffective withrespect to reducing

Kentucky

Texas

Pennsylvania

Parole Supervision

53%

26%

50%

Discharges

18%

11%

19%

Total

35%

25%

42%

Source: James Austin, Patricia Handyman, and John Irwin. Needs and Risks of the Returning Prisoner Population. the From Prison to

that

recidivism. Table15.10 shows the recidi-vism rates bytype ofreleasefor Kentucky, Texas, and Pennsylvania. Here one can seethat people whocomplete their prison sentences without parolesupervision have

Exploring

significantly lower recidivism ratesthan

the

those placed on parole supervision. The

(Presented to

Home Conference, Jan. 3031, 2002).

obvious explanation is that people who

have no parole obligations whenthey leave prison (max

out)

can only be returned to prison if

they are convicted of a newfelony crime. Conversely,those placed on parole and probation can be re-incarcerated for either non-criminal

behavior or misdemeanor crimes. A 2005 Urban Institute

study, among others, revealed that individuals released with no parole supervision return to prison at a significantly lower rate than those released on parole.71

rECOMMENDaTION 4: Decriminalize victimless

crimes, particularly those related to drug

use and abuse. In recent years, behaviors have been criminalized that are not dangerous and poselittle if any threat to others. Alarge group of people are currently serving time for behaviors that have been criminal-ized to protect peoplefrom themselves.Their

offensesinvolved the consent of allimmediate parties

to the transaction. Common examples in American history haveincluded abortion, gambling, illicit sexual conduct that does not involve coercion (e.g., prostitution and, until recently, homosexual activity), and the sale and possession of recreational drugs. According to the U.S. Department of Justice, approximately 3040%

of all current prison admissions involve crimes that have no direct

or obvious victim otherthan the perpetrator(see Table15.11).72 The drug categoryconstitutesthe largest offense category, with 31% of all prison admissions resulting from such crimes. In the late 19th and early 20th centuries, the United States government conducted alarge-scale experiment regarding the social consequences of creating a new category of crimes by makingit illegal to distribute alcohol. Prohibition aimed to stop peoplefrom drinking, and to an extent was successful. Butthe price of this success was ultimately considered too high. Revenuesfrom selling alcohol illegally swelled the coffers of organized crime and magnifiedlevels of corruption in local governments. Gangstersgunned one another down to gain control of the lucrative liquor.

Many died from drinking alcohol put on the

marketfor illegal

market without quality control. Eventually,

Americansrealizedthat Prohibition wasdoing moreharmthan good andrepealedit.

71

Amy

Supervision

72

L. Solomon, on

Re-Arrest

Criminological

Behavior

Vera

Kachnowski,

Outcomes.

literature

and Avinash

Washington,

DC:The

refers to these crimes

and Public Policy. Englewood

always the case. For that reason

Cliffs,

we call these

Bhati. Urban

as victimless

NJ: Prentice

Does Parole Institute,

crimes consensual.

the Impact

of Post-Prison

2005.

(Edwin

Hall, 1965),

Work? Analyzing

M. Schur.

suggesting

Crime

that they

Without Victims: do no harm,

Deviant

which is not

Chapter

Politicians and the public have ignored the lessons

of Prohibition

15.11

in formulat-ing

Unlocking

America

259

MostSerious Offensefor

SentencedPrisoners,2002PrisonAdmissions

drug policy. In an attempt to eliminate harms caused to individuals,

15 |

their families

Most Serious Offense

and society from the abuse of heroin, cocaine,

Percen

Numberof admissions

marijuana, and other drugs,legislatures have

508,955

Violent offenses

27%

Property offenses

30%

Drug offenses

31%

passedlaws sending large numbers of users, abusers and low-level dealersto prison with

very long sentences.This

prohibition, like

the earlier one, hasled to violence as dealers

Possession

10%

Trafficking

15%

havesoughtto eliminate rivals in the lucrative market. Like Prohibition, it hasresulted in the distribution

of adulterated drugs that have

injured and killed users.The

Other/unspecified

high profits of

Public-order

drug dealing arelargely the consequence of legislation that eliminates competition from anyone unwilling to risk draconian penalties.

drug

7% 12%

offenses

Weapons

3%

Driving whileintoxicated

3%

Everytime a dealeris taken out of cir-TABLE Other public-order culation by a prison sentence, a new dealer

traffickers

of low-level

Source: Prison Statistics.

US DOJ. 1 Aug. 2006 http://www.ojp.usdoj.

gov/bjs/keyfacts.htm/

has increased racial disparities,

and is the largest factor contributing

1%

Other offenses

is drawn in by the lure of large profits. The prosecution and imprisonment

5%

to the

rapid rise in imprisonment rates for women. Dealers use of violence to eliminate competition helps to sustain the mythlinking

drug useto violence. Notwithstanding our extraordinary effort to dis-courage

the use and sale ofillegal drugs, they remain widely available and widely used.

Though other Westernnations havenot decriminalized commercein illegal drugs,they give greater weightto

medical and public health considerations in the formulation

of drug policy.The

violence that surrounds drug trafficking in the United Statesis largely absentin those countries, and governments are morereceptive to needle exchange programs designedto limit the spread of AIDS.73 This

does not meanthat the government should simply walk away from the drug problem. It

would be perfectly appropriate for governments to conduct educational campaigns about drugs, for example. Regulatory approaches, such as are now usedfor drugs that are not illegal should be given serious consideration. The success of recent referenda in several states allowing of marijuana suggeststhat the public opinion

73

Peter Reuter. Why

Cant

We Make Prohibition

Perspectives on Crime and Justice: 19961997

medical use

maybe changing.74

Work Better? Some

Lecture Series, Vol. 1.

Consequences

Washington,

of Ignoring

DC: National

the

Institute

Unattractive. of Justice, 1997

http://www.ncjrs.gov/pdffiles/166609.pdf/ 74

Between

Nevada,

1995

and the

Oregon, the state of

treatment. are available

present,

a majority

Washington,

In state and national

and

of voters

Washington

polls, substantial

at www.medicalmarijuanaprocon.org.

in state initiatives

held in

D.C., voted to allow

majorities

support

Alaska,

marijuana

legalizing

Arizona,

Colorado,

use in connection

marijuana for

Maine,

with med-ical

medical use. Details

260

CRIME, JUSTICE,

AND SOCIAL

CONTROL

Two Additional Recommendationsthat Bear on Humane Justice In addition to the four recommendations other recommendations

to reduce the prison

population,

there are two

that need to be madethat bear on the quality and fairness of our use

of imprisonment.

rECOMMENDaTION 5:Improve conditionsofimprisonment. Reducingthe size ofthe prison population is not enough. Wecould notin good conscience recom-mend that anyone serve a prison sentence unless weensure that those who do end up behind walls

aretreated in a humane manner.Prisonsthat systematically deny human dignity, basichuman rights, and life necessities are creating festering sores that poison the entire society. Unsafe,inhumane, and secretive prisons not only traumatize the incarcerated but also contam-inate prison staff and their families, as well astownsfolk

near the prison.

Moregenerally, support

for an inhumane prison system requires that prison workers and the public embrace the simplistic concept that prisoners are unworthy beingsthat deservetheir harsh punishment above and beyond the segregation from society and loss offreedom from incarceration itself. The state can operate prisons efficiently and effectively while treating prisoners in a manner consistent with the minimum standards and rights for prisoners formulated

by many private and

public bodiesin the 1960s and 1970s.75In the 1960s,the courts, particularly the U.S.Supreme Court, after virtually ignoring the plight of prisoners for decades, issued a number of decisions upholding prisoners rights and due process, and banning cruel and unusual punishment. These decisions produced an array of mandatedchangesin prisons acrossthe country. However, after the mid-1970s,the Supreme Court effectively returned to the hands-off

policy.76

There arefive fundamental features of prison administration that should beacceptableto anyone interested in accomplishing the prisons practicable purposespunishment engaging in unnecessary, counterproductive,

and deterrencewithout

and cruel practices.

1. Cruel and Unusual Punishment Prison overcrowding, the adoption of excessively harsh and arbitrary control practices in reaction to prison violence, and the growing general punitive attitude toward prisoners haveresulted in more punitive policies and practices.These include denial of adequate medical services, excessive use of physical force, and housing prisoners in exceptionally punitive arrangements, such as solitary con-finement units and cells.The federal courts haveruled that all ofthese practices violate the Eighth Amendment ofthe United States Constitution.

75

In 1955, the

Standard

Minimum New York:

in the

America. American

produced 76 of the

United

Nations

Congress on the

Rules for the Treatment United

American Friends

Nations,

Friends Service

2002.

Courts

E. Call. The

Section

G. In The

Committee.

Committee,

which

Supreme

shift in prisoners

of Prisoners.

Service

one of the best-thought-out

See: Jack

Prevention

rights

lists

Rights:

A Compilation

Struggle for Justice: Hill and

of individuals

of Prisoners

of International

a set of Instru-ments.

A Report on Crime and Punishment

Wang, 1971. 16869, with

adopted

a variety

the

Working

of prison-system

Party for

experiences,

conditions.

Court and Prisoners matters

See: Human

New York:

consisted

of humane

of Crime and the Treatment

Rights.

Federal

Probation

(1995):

3646,

for a discussion

Chapter

15 |

Unlocking

America

26

2. Safety Prisoners should be protected from assault, rape, Effective strategies such as adequate surveillance,

murder, etc., by other prisoners and staff. voluntary

accessto safe living

the prison, housing prisoners in small units, and single-celling

areas within

should be practiced to ensure

prisoners safety.

3. Health Prisoners should have accessto the resources and services required to maintain their physical and

mentalhealth. These include accessto medicaland psychiatricservices,adequatediet,andrecreation. Prisoners should not be subjected to physically and mentally deleterious incarceration regimens such as extended periods ofisolation and, restricted

mobility, and excessive noise.

4. Programs Any rational and humane system of punishment should provide accessto program opportunities that increase prison safety and improve

prisoners chances of makingit in the community

after

prison. Such programs would include academic, technical and citizenship education, as well as a wide variety of treatment programs that help prisoners improve themselves and develop morecon-ventional,

law-abidinginterestsand pursuits.These types of programsshould beprovidedregardless of whether they reduce recidivism.

5. Post-Release Assistance Mostprisoners receive little or no preparation for releasefrom prison or assistance subsequent to their release.They face extraordinary difficulties in achieving stability, viability, andlife fulfillment on the outside. States should develop and provide accessto transitional

and permanent housing,

education, vocational training and placement, counseling, coaching, and mentoring.

rECOMMENDaTION 6: restore ex-prisoner voting and other rights. Prisoners face exceptional problems from their stigmatized and reduced social and civil status. They

are automatically

barred from

most city, county, and state employment

and from some

housing such asfederally subsidized housing and are systematically denied employment by many private employers. Their

right to vote varies from state to state, even from county to county in

some states. It

will be difficult to overcome private employers

restrictions

on hiring ex-prisoners,

persistent efforts should be madetoward this goal. Perhaps laws against discrimination employment of ex-prisoners can be adopted in the future.

but

against

Government agencies, however, could

easily changetheir policies. In San Francisco,the city government hasremoved the question regarding prior arrests on job applications.

Other government jurisdictions

should follow this

example. Opening up these relatively good-paying jobs to ex-prisoners greatly increases public safety by moving potential criminals into conventional pathways. Government subsidies for hiring ex-convicts could overcome some employers hesitations. In addition, exclusion from welfare, public housing, and subsidies should be ended as should rules barring ex-convicts from living in certain neighborhoods.

Licensing restrictions should be maintained only when they are demonstrably

necessaryto protect the public.

262

CRIME, JUSTICE,

AND SOCIAL

CONTROL

Estimated Impact of These Recommendations on Prison Populations To illustrate

what our recommendations can accomplish in reducing prison populations

without

impacting crime rates and at considerable savingsto taxpayers, we have developedrough projections based onthree of the four

majorrecommendations for changing current sentencing and correctional

practices.:77 1. Time served in prison 2. Technical such

parole

would be reduced.

and probation

violators

of victimless

crimes

would not serve time in prison for

behavior.

3. People convicted

Wediscuss below the implementation

would not be sentenced

to state prison.

ofthese three policy reforms briefly.

1.Timeservedin prison wouldbereduced. Ofthe three recommendations,

this one is clearly the

mostimportant

and most powerful in

terms of reducing the prison population. It alsois the mostacceptable to most politicians and the public asit does not eliminate incarceration

but makethe amount of time served proportional

to the se-The

length ofimprisonment can be modestlyreduced(35

months)byimmediately increasing

the amount of good time awarded to prisoners for good conduct and program completion.

Within

states withindeterminate sentencing, parole grant rates can beimmediately increased especially for prisoners who poselittle risk to public safety. But ultimately, legislation

will be neededto remove

many of the restrictions that have served to increase the period of confinement (e.g., mandatory minimums, truth in sentencing, etc.). Such reforms should be retroactive to the current prison population.

2. Technicalparole and probation violators wouldnotservetime in prison for such behavior. The imprisonment

oftechnical parole violators is a clear example wherethe punishment does not

fit the crime. Further, wealso know that recidivism rates arelowest for persons who dischargefrom prison rather than facing alengthy period of parole supervision. This reform can beimplemented administratively

by not allowing revocations for such behavior.

A number of states have administratively implemented such reforms including

Michigan, Oregon,

South Dakota, and Texas. As noted earlier, the state of Washington passedlegislation

morethan 20

years agothat prohibits stateimprisonment for technical parole violators with no adverseimpact on the states crime rate. Forthose whoare readmitted for a parole violation, the period ofre-confinement

wouldbefar shorter than whatit has been(no morethan 90 days).This is consistent withrecent legislation in Louisiana, which limits the period of confinement for first time violators to 90 days andin

Washington where violators can serve no morethan 60 daysin alocal jail. Similar to parole

violators, few persons should be sent to state orfederal prison for anything that does not constitute a conviction for afelony crime or for non-criminal

77

Weare unable to estimate

the effect of reducing

the length

behavior.

of parole and probation

supervision

Chapter 15 |

Unlocking

America

3. Peopleconvicted ofvictimless crimes wouldnot besentencedto prison. Large numbers of persons arrested and convicted of drug possession, disorderly conduct, public intoxication,

drunk driving, prostitution, curfew violation, vagrancy,loitering, gambling, and a wide

variety of motor vehicle violations are being incarcerated in our jails and are being placed on years of probation. Once placed on probation, they are vulnerable to being sent to prison as probation violators for continuing such behavior, failing to pay their probation supervision fees, maintaining employment, attending treatment, or many other non-criminal acts. Collectively, these three reforms, if implemented,

would drop the prison population by

over 50% and produce anincarceration rate of 222 per 100,000 people, which is whatit wasin 1986 and whichis still well abovethe rates that existed for some 50 years before that.The

prison population would decline from 1.5 million to below 700,000 (see Table

15.12, and Figure 15.5). Personsconvicted of serious and violent crimes would continue to beincarcerated. Butlarge numbers of probation and parole violators and others now convicted of victimless crimes would be diverted from state prison. All ofthese reforms require no program fundingindeed

the adoption of such reforms would morethan pay

for whatever prison and post-release programs that would be of benefit to released prison-ers. All ofthis can be done without negatively impacting the crime rate. To those who say that these three basic recommendations

are neither feasible nor practical

we would simply note that these practices and laws are now in place in countries. There are nine states with incarceration

many states and other

rates that are near or well below the 222 per

100,000 population rate.The state of Washington, by statute, does not allow parole violators to be sent to prison. Louisiana recently passedlegislation that greatly restricts first

time technical

violators to be re-admitted to prison. Nevadarecently passedlegislation that reduced the period of parole supervision,

which hasincreased the parole success rate and reduced the size and costs

ofthe parole population.

TABLE 15.12

Current and Projected State Prison Systems Based on Recommendations Current Practices

New Practices

Admits

Time Served (mos.)

Total

650,000

27

New Court Admissions

390,000

30

975,000

30

162,500

195,000

19

97,500

19

Prison Admissions

Probation Technical Violators

Parole Violators Parole Technical Viola-tors

Incarceration Rate

65,000

483 per 100,000

Prisoners

Time Served (mos.)

Admits

1,446,250 422,500

Prisoners

19

666,250

21

511,875

32,500

21

56,875

308,750

97,500

12

97,500

154,375

0

0

292,500

222 per 100,0000

263

264

CRIME, JUSTICE,

AND SOCIAL

CONTROL

2,000,000

1,800,000

1,600,000

1,400,000

1,200,000

Population

1,000,000

Prison

US

800,000

600,000

400,000

200,000

0 20112012 20132014 201 2001 2010 198019811982 1983198419851986 19871988198919901991 199219931994 1995 19961997199819992000 200320042005 20072008 2002 2006 2009 Year Historical

US Prison

Alternative

FIGURE15.5

Population

Projected

US Prison

Population

Projection

Historical & Projected USPrision Population

In the area of decriminalization, 12 states(Alaska, California, Colorado, Maine, Minnesota, Mississippi, Nebraska, Nevada, New York, North Carolina, Ohio, and Oregon) and several Euro-pean countries along with New Zealand and Australia havelargely decriminalized or reduced the penaltiesfor drug possession.78Anumber oflocal cities havealso modifiedtheir local ordinances and criminal justice practices to decriminalize

pot (Berkeley, Oakland, and San Francisco, California;

Breckenridge, Colorado; Amherst, Massachusetts; Madison and

Milwaukee, Wisconsin; Urbana

and Carbondale, Illinois; and Colombia, Missouri). In all of these jurisdictions there has been no associatedincrease in crimes rates.

Concluding Remarks Reducingthe number andlength of prison terms will require changesin sentencing laws and parole and probation practices.This

78

Robert J.

Cambridge

will not occur until the public passesreferenda and successfully

MacCoun and Peter Reuter.

UP, 2001.

Drug

War Heresies: Learning from

Other Vices, Times, and Places.

New York:

Chapter

15 |

Unlocking

pressureslegislators and executives, or enlightened political leaders better under-stand the realities and moveontheir own to makenecessary changes.There are a variety of methods and strategies to achieve this goal. No particular political structure can guarantee or prevent the progress that is now needed. Sentencing commissions, for example, have been excellent devicesfor controlling over-incar-ceration in some states(Oregon,

Minnesota), whilein other jurisdictions, such as

the federal, sentencing systems have been specifically designedto incapacitate as many people as possible, rather than focusing on what offenders deserve.

Wealsorecognizethat asthe system ofimprisonment hasgrown, sotoo has the investment and the vested interests that support its operations and growth. In order to reverse the current trends we will havetofind

a wayto re-allocate

the money, political influence, and jobs that the current system provides.This will not be easy and it will take many years to wean us off the excessive use of imprisonment. Ourfirst

goal wasto document the negative and ineffective consequences of

massincarceration in human, economic, and public safety terms. wasto offer one basic and simple recommendation that by itself

significant reduction in the prison populationshorter

Our second would have a

periods ofimprisonment

that are proportional to the harm inflicted upon society andindividuals. this report will stimulate a serious debate on the use ofimprisonment to a new policy of decarceration. If this

Wehope and lead

would occur, wecould re-invest some

portion ofthe tens of billions of dollars wespend each yearincarcerating

millions

of Americans into those communities and families that are now being unfairly devastated by imprisonment.

America

26

16

ChaPTEr

Reflections and Perspectives on ReentryandCollateral Consequences MICHAEL PINARD

Michael

I. Introduction

Pinard, Reflections

and Perspectives and Collateral Journal

The

United Statesis in the midst of a prisoner reentry crisis. In 1980, fewer than

170,000 people werereleasedfrom federal and state prisons in the United States.1

of Criminal

Criminology, 1213-1224.

By 2008, the number ofindividuals releasedskyrocketed to 735,454.2 Asa result,

of Law.

any point in history.This

2010 by

University

Reprinted

&

no. 3, pp.

Copyright

Provided All rights

Law

vol. 100,

Northwestern

moreindividuals, families, and communities are impacted by reentry than at

on Reentry Consequences,

School

with permis-sion.

by ProQuest

LLC.

reserved.

crisis will become more heightened in the immediate

future, asthe number ofindividuals completing their prison sentences will con-tinue

to climb and asstatesthat can nolonger affordto incarcerate at massive

1

Professor.

Grosshans

University

and library

of

Maryland

research

Law for tracking

down various

Back: Rethinking

Prisoner

fellow

School of Law. I am indebted Susan

McCarty

materials. Jeremy

Reentry, 7 SENTG

at the

Travis.

to research librarian

University

of

U.S. Dept of Justice.

& CORRS. 1, 1 (2000),

Maxine

Maryland

available

School

of

But They All Come at www.nejrs.gov/

pdffilesl/nij/81413.pdf. 2

William J. Sabol et al. U.S. Dept of Justice.

bjs.ojp.usdoj.gov/content/pub/pdf/p08.pdf.

are released of Justice. The available

annually

Additionally,

from local

Importance

Prisoners in 2008, at 4(2009),

jails.

approximately

Allen J. Beck. Chief.

of Successful

Reentry to Jail

at http://www.urban.org/projects/reentry-roundtable/upload/beck.ppt

admissions/releases

statistics

of 12 million

correlate

nine

Corr. Statistics Population

to 9 million

available million

at http://

individuals

Program.

Growth

(June

U.S. Dept 27, 2006),

(noting unique individuals

that jail

each year).

26

268

CRIME, JUSTICE,

levelsand

AND SOCIAL

CONTROL

at staggering expense3 will

beforced to releaseindividuals

early from their sentences

or create other strategies to reduce criminal justice spending.4 The reentry crisis follows three decadesof exploding incarceration rates. Tough on crime

mea-sures

that wereimplemented in the 1980s, mostnotably the Waron Drugs,led to record numbers of incarcerated individuals5 spending longer periods oftime behind bars.6 Allindividuals convicted o

criminal offenses, regardless of their sentences, areforced to confront the various collateral conse-quencesadditiona legal penaltiesthat

result from their convictions. These consequences, most

of which attach to both felony and misdemeanor convictions,7 can include ineligibility

for federal

welfarebenefits,government-assistedhousing,andjury service; varioustypes of employmentand employment-related licenses, and military service; as well as sex offender registration and voting disenfranchisement.8 Collateral consequences are nothing new.They

are remnants of the civil

death9 that was

imported from England andimposed onlawbreakers during the colonial period.10 However, whatis relatively newis the scope of collateral consequencesthat burden individuals long pastthe expiration of their sentences and which,individually

and collectively, frustrate their ability to

movepasttheir

criminal records. At no point in United States history havecollateral consequences been as expan-sive and entrenched asthey aretoday.11Indeed, the Waron Drugsand other law and order policies

3

According

States,

to the

Onein 100:

Pew Center, state spending

Behind

Bars in

America

on corrections

eclipsed

2008, at 11 (2008),

available

These 4

See,

2009.

e.g.,

Crary.

States

Their

measures); see also Jeffrey Terms of Release Be the

prison 5

population

E.g., for

tbl.

25 (2006),

Mark

In some

Policy

New Jim

these

to increase Reforms.

for

overview

rights.

Alec C. Ewald. Civil

2002

Wis. L. Rev . 1045. 1049

See Joan number

Death:

Huffington

years).

condition

The Ideological

in

Margaret

several

Violating

10,

state

Probation

or U.S.

Justice

E.g.,

United States.).

Trends,

McGregor

2003, at 33

Smyth,

as an Advocacy Strategy,

a non-criminal

Colgate Love.

59 (2010) (Convic-tions

rates in the

Criminal

offenses.

housing for two

Resource

from

Jan.

Mag. Jan. 10, 2010, at 38 ([T]he

Punishments

conduct,

see

Post.

violation,

Holistic

makes

Relief from the

Is

36 U. Tol.

Collateral

a person

Conse-quences

Guide: (2006).

which a convicted

Paradox of Criminal

offender loses

all political,

Disenfranchisement

civil,

Law in the

and legal

United States,

n. 13 (2002).

colonists

in

North

and supplemented

Petersilia,

and kind,

as the

non-criminal

Using Invisible

by 2011. Id.

moral reasons ... .).

Federal

for disorderly

consequences,

A State-by-State

has been defined

of convicts,

City public

of collateral

even to

Guide to

and

Convicts

in incarceration

U.S. Dept of Justice.

attach

that a conviction

New York

Convictions:

at 1061 (English

can

Defense Attorneys

$25 billion

in the Age of Colorblindness

cause of the explosion

Statistics.

consequences

Keeping

N.Y. Times

MassIncarceration

most important

(explaining

ineligible

death

disabilities

Crow:

Pew Center on the

(describing

for both budgetary

at http://bjs.ojp.usdoj.gov/content/pub/pdf/fcjt03.pdf.

of Criminal

Id.

Overcrowding?

available

For a detailed

Civil

Prison

Bureau of Justice

instances,

presumptively

in

Prison

Could

Motivans.

L. Riv. 479, 482 (2005)

11

2008. The

www.pewcenteronthestates.org/uploaded-Files/8015PCTS_Prison08_FINAL

costs are estimated

Urgent

of Parole:

seen as unsustainable

Alexander, The

Not a Bad Word: A Criminal

10

Prompting

Rosen, Prisoners

drug offenses are the single

See

9

Crises

Answer to

is increasingly

Michelle

6

8

Budget

at

in

www.huffingtonpost.com/2009/01/10/states-budget-crises-prom_n_156890.html,

reform

7

David

$49 billion

When Prisoners

being applied

America

it

with statutes

Come

to alarger

transplanted

much

regarding

Home 136 (2003)

percentage

of the

of [Englands]

common

law

regarding

the

civil

suffrage.). (noting

that

U.S. population

collateral

consequences

and for longer

periods

are

growing

of time than

at

Chapter 16 |

Reflections

and

Perspectives

on Reentry

and

Collateral

have not only fostered an instinctive reliance onincarceration but also an intricate

Consequences

269

web offederal,

state, and local post-sentencelegal penalties that can burden individuals for the rest oftheir lives. Collateral consequences impact not only those individuals

upon whomthey fall but also their

families and communities.12 For example, these consequences makeit extraordinarily in

manyinstances impossible, for individuals

they are unable to contribute financially

difficult and,

with criminal records tofind employment. Asaresult,

to their family households. Moreover,just as massincar-ceration

has disproportionately impacted individuals

and communities of color in urban centers

in the United States, massreentry is now doing the same.13 Thus, these individuals

are returning

in large numbersto the relatively few communities wherethey lived prior to incarceration and are paralyzed by their criminal records for various reasons, including the collection of collateral consequences that confront them during the reentry process and beyond. Jeremy Travis has appropriately described these collateral consequences as invisible They

are invisible

because, despite their impact on individuals

punish-ment.14

who cycle through the

criminal justice system,they are not considered to be part ofthis system.They are civil, not criminal, penalties. Assuch, collateral consequences for the most part areignored throughout the criminal process. Defenseattorneys, prosecutors, andjudges do notincorporate collateral consequencesinto their advocacy and sentence practices. As a result, defendants are generally not informed

warnedaboutcollateral This

Articlefirst

ofor

consequencesas part ofthe plea bargaining or sentencingprocesses.15

provides a brief history of collateral consequences and reentry. It then describes

the expansion of these consequences, particularly

over the past few decades, and their impact

on reentry. It concludes by highlighting some current efforts to better understand the scope of these consequences.

any point in

U.S. history):

of Criminal inflict

J.

E.g., Robert

arises

when the

Smyth, Jr., From Arrest to

Proceedings, 24 Crim. Just. 42, 42 (2009)

damage on a breadth

12

McGregor

and scale too shocking

M.A. Johnson, degree

Collateral

of these

collateral

for

(The

A Modelfor

collateral

most lawyers

Consequences. consequences

Reintegration:

consequences

and policy

the

possibility

Collateral

of criminal

Con-sequences

proceedings

makers to accept.).

16 Crim. Just. 32. 32 (2001)

reduces

Mitigating

that

(On

a societal

[individuals]

can

level, a problem return

to

be pro-ductive

members of our society.). 13

Jeremy

299301 14

Travis

Travis, Invisible

Consequences constitute

as the

Reentry

697,

to inform

possible

punishment,

for the individuals

L. Rev.

United

Punishment:

Mass Imprisonment

Gabriel J. Chin

required

the

of

invisible

consequences

Cornell

Petersilia.

Reconsidered:

A New Look at an Old Question,

47 Crime

& Delinq.

291.

(2001).

Jeremy

15

&Joan

States

& Richard 699 (2002)

defendants Supreme

deportation-related

An Instrument

16 (Marc

of Social Exclusion, in Invisible

Mauer & Meda Chesney-Lind

because they operate

largely

beyond

Punishment:

eds., 2002) (explaining

public

The

Collateral

that these laws

view, yet have very serious,

adverse

affected). W. Holmes. Jr., Effective (explaining

that

most state

about collateral Court

and federal

consequences).

has recently

consequences

Assistance of Counsel and the

held that

of a guilty

The

circuit

courts

one exception

defendants

in criminal

plea. Padilla v. Kentucky,

Consequences of Guilty Pleas. 87 have

held that

attorneys

exists in the immigration proceedings

are

context,

must be informed

130 S. Ct. 1473, 148687

not

(2010)

of

270

CRIME, JUSTICE,

AND SOCIAL

CONTROL

II. Reflections Collateral consequences have always attached to criminal convictions in the United States.16 They descend from the concept of civil individuals

death,

which continental

European systems imposed upon

who committed criminal acts.17 As Professor Nora Demleitner explains, civil

death,

entailed, among other things, the permanent loss of the right to vote, to enter into contracts, and to inherit or bequeath property.18

Whilethe United States neverfully embraced civil

death, it did,

until the 1960s, impose collateral consequences that dissolved marriagesautomatically, disquali-fied

individuals from various employment-relatedlicenses, and barredindividuals from entering contracts or engaging in civil litigation.19 For much of the twentieth century, rehabilitation States.20 The rehabilitative

wasa central punishment goal in the United

modelsought to reform the offender, so that he or she would overcome

his or her criminal record as well asthe reasons that led to his or herinvolvement

with the criminal

justice system and eventually lead a productive, law-abiding life. The rehabilitative ideal carried over to collateral consequences. In 1956, the National Confer-ence on Parole(NCP), understanding that criminal records imposed significant legal burdens on individuals

attempting to reintegrate, recommended that the laws

depriving convicted persons

of civil and political rights be abolished.21 In addition, the NCP,in the 1950s,andthe American Law Institute, in the early 1960s, proposed various reform burdens that fell on individuals

measuresto easethe stigma and legal

with criminal records.22 Among the proposals wereexpungement

laws and laws granting courts discretionary authority to relieve individuals

of the additional legal

penalties that attached to criminal convictions.23

16

E.g., Jeremy

of the

Travis,

American their

17

colonies

marriages,

All Come Back: Facing the

passed laws and barring

denying

convicted

them from

Challenges

of Prisoner

Reentry

offenders the right to enter into

a wide variety

ofjobs

and benefits.)

252 (2005)

contracts,

(citation

(Legislators

automatically

dis-solving

omitted).

Travis, supra note 14. at 17.

18

Nora

V. Demleitner.

Stan. L & Poly 19

ButThey

Preventing

Internal

Exile:

The

Need for

Restrictions

on

Collateral

Sentencing

Consequences,

11

Rev. 153, 154 (1999).

Id. at 15455.

20

E.g.,

Michael

Pinard.

Collateral

Consequences of Criminal

N.Y.U. L. Rev. 457. 478 n.98 (2010) (citing on the Past Century 21

Margaret

30 Fordham

Colgate

Love. Starting

ineligibility

access

professions

as law

786, 78687

for and

During this time, military

medicine.

service Note,

Confronting

The Changing

Purposes of Criminal

Praise of a Forgotten

a felony

and public The

Need for

conviction office,

For a detailed

23

Id at 171011

discussion

of these

proposals,

Dignity,

Punishment:

Coram

Section of the

potentially

85

A Ret-rospective

Nobis

see Love, supra note 21, at 170812.

in the

Model Penal Code,

led to several

disenfranchisement,

(1950).

22

Issues of Race and

Next, 70 U. Chi. L. Rev. 1.6 (2003)).

Over with a Clean Slate: In

Urb. L.J. 1705. 1708 (2003). including

such

W. Alschuler,

and Some Thoughts About the

consequences, to

Albert

Convictions:

Federal

collateral

and the den[ial] Courts.

59

Yale:

of L.J.

Chapter

The

16 |

Reflections

and Perspectives

on Reentry

and

Collateral

Consequences

Rehabilitation Era essentially ended in the 1970s.24 During the next couple of decades,the

federal government and manystate governments turned to retributive and incapacitative of punishment that wereless forgiving ofindividuals

engagedin criminal activity.25The

models

demise of

the Rehabilitative Era set the stage for the tough on crime movement of the 1980s and 1990s. As Professor Nora V. Demleitner explains, the trend

to decrease the

number and restrictiveness

of statutes imposing collateral consequences on offenders ... during the 1960s and the early 1970s ... was halted, if not reversed, in the late 1980s and the 1990s.26 The tough-on-crime

movementled to an unprecedented increase in incarceration

rates and

length of prison sentences.27Between1980 and 2005, the number ofindividuals incarcerated in U.S.prisons andjails for drug possession offensesincreased morethan 1,000%.28These

movements

alsoled to a significant expansion of collateral consequencesin the 1980s and 1990s. Manyof the consequences enacted during these decadesparticularly (including food stamps) and student loansapply

those relating to various public benefits

only to those convicted of drug offenses.29 Other

collateral consequences, such as public housing restrictions,

were originally federal and attached

mainly to drug-related activity but have been expanded by manylocal governments to attach to essentially all types of criminal conduct.30 Asa result, collateral consequenceslook drastically dif-ferent today than they did atthe beginning ofthe 1980s, as they now impact virtually all aspects

oflife for individuals with criminal records.

24

David

Garland, The

A. Allen,The

Decline or the

has declined in the 20, at 9 (noting the

purposes

Culture or Control: Rehabilitative

United States: the

that from

Crime

Ideal:

decline

and Social

to the

Contemporary

Penal Policy and Social

has been substantial,

1970 to 1985. rehabilitation

of punishment

Order in

Society, 61(2001);

Purpose 10 (1981) ([T]he

and it has been precipitous.);

had gone from

the top

of

Alschuler,

26

E.g., Demleitner,

supra note 18, at 155.

27

E.g., John

et al., Justice

Alschuler,

most scholars

Irwin

on

decades from

500.000

Policy

Inst.

Americas

March 15, 1999 show that the number

Don Stemen,

Imprisonment

to 1.8

Vera Inst,

supra 6 (Marc

making and conceptions

30

lists

of

One million

Nonviolent

Prisoners

2 (1999), (Justice

of prisoners

in

America ...

more than tripled

available

at

Department

over the last two

million ... .). of Justice,

Reconsidering

Incarceration:

New Directions

for

Reducing

Crime

8 (2007),

at www.vera.org/content/reconsidering-incarceration-new-directions-reducing-crime.

Alexander,

punitive

supra note

and reformers

www.justicepolicy.org/images/upload/99-03_REP_OneMillionNonviolentPrisoners_AC.pdf

29

ideal

supra note 20, at 914.

data released

available

rehabilitative

bottom).

25

28

see Francis

note 5, at 140; Introduction Mauer

As a result,

housing-related

apply these consequences of Benefits to 17, at 37, 4349

& Meda Chesney-Lind

of civil liberties

measures against those

to Invisible

collateral

to non-criminal

Drug Offenders, in invisible

eds., 2003) (The

has been profound.

who have been convicted consequences

violations. punishment:

Punishment:

Collateral.

drug

... , as legislators

Consequences

wars influence

on political

have increasingly

adopted

of

Mass

decision ever

more

of a drug offense.). attach

to

both felonies

Gwen Rubinstein The

The

Collateral

& Debbie

and

misdemeanors.

Mukamal,

Consequences

of

Some jurisdictions

Welfare and HousingDenial

MassImprisonment,

supra note

271

272

CRIME, JUSTICE,

AND SOCIAL

CONTROL

III. The PresentFocuson ReentryIssues and Collateral

Consequences The

aftershocks of the tough-on-crime

movement reverberate dramatically at present. Not only

are moreindividuals serving prison and jail sentencesin the United Statesthan at any point in its history,31 but record numbers ofthese individuals

are being released from these prisons and jails

each year.32In addition, approximately onein four adultsin the United States has a criminal record.33

Giventhe breadth and permanenceofcollateral consequences, theseindividuals are perhaps more burdened and marginalized by a criminal record today than at any point in U.S.history. The reentry crisis overthe last decadehas brought significant attention to reentry issues. Federal legislation has been enacted recently that aims to, inter alia, expand and improve existing reentry programs, expand employment opportunities for reentering individuals, improve federal reentry programming, and reduce recidivism.34 Federal, state, andlocal organizations have beenformed or retooled to assistreentering individuals

asthey workthrough, or cope with, the various legal and

non-legal issues they confront.35 Within the criminal justice system, reentry courts exist in several jurisdictions.36 These courts, established by the Department of Justice,37have borrowed

heavily

from the drug court modelof seekingto coordinate services with graduatedsanctionsimposed upon individuals such as the

whoviolate the conditions.38 In addition, national criminal justice organizations,

National Legal Aid and Defender Association, are addressing these issues through

practitioner-related trainings and advocating for expansive criminal justice services delivery models that account for the overlapping criminal and civil issues that converge during the reentry process.

31

At the end of 2008, approximately prison.

jailsat 32

Sabol et al., supra note 2, at 1.The

this time E.g., Nancy

Community

E.g.,

was 2,304,115. Id. at 27 tbl.

Madeline

Employment:

total incarcerated

Strategies for Enhancing

the historic

volumes

Neighly

Data on the

United

Slates wasincarcerated

populationfederal

Oriented

Policing

Servs.

Public Safety 3 (2006),

of prisoners

reentering

& Margaret (Peggy)

Disproportionate

in the

prisons,

in a state or fed-eral

state prisons,

and local

8.

G. La Vigne et al., Office of Cmty.

Policing:

html (noting 33

1 out of 198 individuals

on

available

Prisoner

Reentry and

at www.urban.org/publications/411061.

society).

Stevenson.

Impact

U.S. Dept of Justice,

Natl

Employment

Communities

of

Law

Color (2009),

Project,

available

Criminal at

Records and

www.nelp.org/page/-/

SCLP/CriminalRecordsImpactCommunitiesofColor.pdf?nocdn=1. 34

See generally

Second

Chance

Act of 2007,

Pub. L. No. 110199.

122 Stat. 657 (codified

at 42 USC

17501 et seq.

(2006)). 35

E.g.,

Michael Pinard,

Issues Faced by Formerly reentry

Attorney

37 38 J.

Incarcerated

Perspective on the

Individuals,

Collateral

86. B.U.L.

Consequences of Criminal

Rev. 623, 65152

(2006)

Convictions

(offering

examples

and Reentry of various

programs).

36 The

2008.

An Integrated

42

number

of reentry

General to award U.S.C.

Anthony

courts

3797(w)(2)

C.Thompson,

The Therapeutic

(Supp.

expand in the

of reentry

Effects of

near future,

municipalities

as the

to establish

Second

reentry

Chance

courts.

Act authorizes

Second

Chance

the Act of

2010).

Releasing

Id. at 165. For a discussion Miller,

will likely

grants to agencies and

Prisoners,

Redeeming

courts, including

Managerial

Reentry

Communities:

some of their

Reentry.

shortcomings,

Courts, 20 Fed. Sentg

Race and Politics 163 (2008). see Id. at 16465.

Rep. 127 (2007)

See also Eric

Chapter

16 |

Reflections

and Perspectives

on Reentry

and Collateral

Consequences

Initially, the attention to reentry issues focused on services and programs for individuals criminal records.

27

with

Morerecently, the attention hasincreasingly focused on collateral consequences.

This focus stems from greater recognition ofthe significant, and often insurmountable,

challenges

these legal barriers present. The relative lack of attention to collateral consequences to this point stems in large

measure

from legal interpretations that these consequences are separate civil penaltiesthat attachto criminal convictions rather than penalties that are part of the direct, criminal

punishment.39Thus, these

consequences technically reside outside of the criminal justice system. Asa result, criminal justice

actorsare notfully cognizant oftheir existenceandscope. Moreover,asseveralcommentatorshave observed,it is difficultessentially givenjurisdiction,

impossibleto

fully graspthe scope ofthese consequencesin a

becausethey are dispersedthroughout various federal and state statutes, federal

and state regulations, and local policies.40 However, efforts are underway to increase awareness of both the existence and scope of col-lateral consequences. Two federal statutes, both of which were signed into law in 2008, call for these consequences, which are dispersed throughout various statutes, regulations, and policies, to be collected and analyzed.The

Court Security Improvement

Institute of Justice to conduct

Act of 200741requires the National

a study to determine and compile the collateral consequences of

convictionsfor criminal offensesin the United States,each ofthefifty states,eachterritory ofthe United States, and the District of Columbia.42 Specifically, this agencyis to identify in the Constitution, statutes, or administrative rules of eachjurisdiction sanctions or authorizes the imposition

any provision

... that imposes collateral

of disqualifications ... ,43 As a result, this

Act requires an

exhaustive review of the federal, state, and local consequences in each ofthese jurisdictions. the Second Chance Act of 200744requires that [a] or Indian

Tribe, or combination thereof,

Sim-ilarly,

State, unit oflocal government, territory

applying for a grant to reauthorize existing adult and

juvenile offender programs must,inter alia,include a plan [to] analy[ze] ... the statutory, regulatory, rules-based, and practice-based hurdles to reintegration of offenders into the community ... ,45

Legal organizations are alsotaking stepsto gain greater understanding of collateral conse-quences. The

39 civil

E.g., Pinard, rather

than

of the guilty 40

American Bar Association (ABA), recognizing that juvenile offenders also confront a

supra note 35, at 64148 criminal

penalties

plea or sentencing

what they 41

Court Security Id. at

510(a).

43

Id. at

510(b).

45

Second Id.

to, in

that

court

defendants

rulings need

not

declaring be informed

that

collateral of these

consequences

consequences

are

as part

Waron Drugs, and the

(explaining

that collateral

Collateral

Consequences of Criminal

consequences

arc unstructured

Convictions,

and [n]o

6 J. Gender,

one knows, really,

are).

42

44

and therefore

appellate

process).

E.g., Gabriel J. Chin, Race,the

Race & Just. 253, 254 (2002)

(citing

at

Improvement

Chance 101(d).

Act of 2007. Pub. L.

(c)(4).

part, gather

Convictions:

In

addition,

more information

Barriers to

111th Cong. (2010),

Act of 2007, Pub. L. No. 110177,

No. 110199,

the Judiciary

122 Stat. 657 (codified Committee

about collateral

of the

consequences,

Reentry for the Formerly Incarcerated

webcast available

121 Stat. 2534.

House

at 42 USC

17501 et seq. (2006)).

of Representatives

Hearing on Collateral

recently

a hear-ing

Consequences of Criminal

Before the S. Comm on Crime, Terrorism,

at http://judiciary.house.gov/hearings/hear_100609.html.

held

and Homeland Sec.,

274

CRIME, JUSTICE,

AND SOCIAL

CONTROL

widerange of consequences that impact their ability to, inter alia, secure employment, enlist in the military, and reside in public housing, hasformed the Juvenile Collateral Consequences Project, which will collect the consequences that attach to juvenile adjudications in allfifty

states and the

U.S.territories.46 Some state bar organizations have also recognized the need to educate their

members about

collateral consequences. For instance, the State Bar of Michigan has created an initiative will consider

that

problems in indigent representation, including the general ignorance of assigned

counsel of the collateral consequences of a criminal conviction.47

Also, the New York State Bar

Associationformed the Special Committeeon Collateral Consequencesof Criminal Proceedings. In 2006, this committee issued an exhaustive report that compiled and analyzed several collateral consequences in New York State,including consequences related to employment, housing, public benefits, education, civic participation, and immigration.48 The committee recommended several measures,including compiling all collateral consequences of convictions in one section of NewYork law,49 providing trainings to defense attorneys, prosecutors, and judges on these consequences,50 requiring judges to inform

defendants ofthese consequences prior to accepting guilty pleas or at

sentencing,51 developing referral programs to provide legal assistance to individuals these consequences,52 and facilitating the legal processesavailable in

confronting

New York Stateto easethe

burdenscreatedbythese consequences.53 Other efforts havetaken the further step of recommending waysto

minimizethe impact ofthese

consequences. Mostprominently, in 2004, the ABA adopted standards for [c]ollateral and [d]iscretionary

[q]ualifications

[s]anctions

of [c]onvicted [p]ersons.54 These standards are broad.The

assert that consequences should not beimposed unless the conduct constituting th[e] particular offense provides so substantial a basis for imposing the sanction that the legislature cannot rea-sonably contemplate any circumstances in which imposing the sanction would not bejustified,55 that counsel or the trial court inform

defendants about these consequences,56that judges consider

these consequences whenimposing sentences,57and that judges or a specified administrative body

46

Hannah

Geyer, ABA Juvenile Justice

Collateral

Consequences

Proj., An Open Letter to Legal Aid Attorneys

Defenders, http://njjn.org/media/resources/public/resource_1418.pdf 47 48

Frank

D. Eaman,

N.Y. State

of the Special

Bar

Public

Assn,

Committee

Defense in

Reentry

and

on Collateral

(last visited

Michigan: From the Top to the Reintegration:

The

Consequences

Bottom, 87

Road to

of Criminal

Public

Aug. 31, 2010). Mich. Bus. L.J. 40, 42 (2008).

Safety:

Proceedings

&Juvenile

(2006),

Report

and

available

Recommendations

at

www.nysba.org/

AM/Template.cfm?Section=Substantive_Reports&TEMPLATE=/CM/ContentDisplay.cfm&CONTENTID=11415. 49

Id. at 391.

50

Id.

51

Id. at 392.

52

Id.

53

Id. at 389.

54 (3d

ABA Standards for ed. 2004).

55

Id. at 19-2.2.

56

Id. at 19-2.3.

57

Id. at 19-2.4(a).

Criminal

Justice:

Collateral

Sanctions

and

Discretionary

Disqualification

of Convicted

Persons

Chapter 16 |

Reflections

havethe authority to waiv[e],

and

Perspectives

on Reentry

and Collateral

Consequences

modify[], or grant[] timely and effective relief from any collateral

sanction. 58 Following the ABAslead, the National Conference of Commissioners on Uniform State Laws authorized a project that hasled to the Uniform Collateral Consequences of Conviction Act, which wasapproved in July 2009.59Similar to the ABA Standards on Collateral Sanctions, this Act urges that each states collateral consequences be compiled in a single document,60 that defendants be notified ofthese consequences during the pretrial stage,61at sentencing62as well as prior to release from incarceration,63 and that processes beimplemented that allow individuals to be relieved of

disabilitiesrelatedto employment, education,housing,public benefitsor occupationallicensing.64

IV. The Future Challengesof Reentry and Collateral Consequences Reentry has emerged as perhaps the mostdifficult and persistent criminal justice issue. It involves a complex and multi-layered

mixof legal and non-legal issues that impact the record numbers of

individuals releasedannuallyfrom U.S.prisons.65 The issuesare particularly thorny becauseofthe broad impact

massreentry will continue to have on families and communities.

Scores ofgovernment programs and agencies are devoting significant resources to reentry issues at the federal, state, andlocal levels. Perhapseven moreorganizationsfoundations,

legal services

organizations, policy organizations, andlocal organizations led or staffed byindividuals recordsare

working tirelessly to assistindividuals, families, and communities

with criminal

workthrough the

myriadlegal and non-legal reentry issues. Indeed, the exponential growth of these organizations over the past decade, as well as new or redirected funding streams that helpto build and sustain them, exemplify the severity of the reentry crises that are confronting an ever-expanding number

of reenteringindividuals. The legal issues related to reentry (and specifically collateral consequences) are vast and signifi-cant. Suchissuesinclude housing, public benefits, employment, family, and broader civil rights issues. Asillustrated above, there is a compelling needfor legislators, legal actors, defendants, criminal

58 59

Id. at std. 19-2.5(a). Uniform

Collateral

Consequences

of Conviction

Act (2009),

available

at https://www.law.upenn.edu/library/

archives/ulc/ucsada/2009_final.pdf. 60

Id at 10.The

who need to rely

purpose

make decisions

upon the collateral

described

of this compilation

in Section

based on it.

sanctions, 510 of the

is to make Id. at 5.The

disqualifications,

Court Security

61

Id. at 13.

62

Id.

63

Id.

64

Id.

65

See Beck, supra note 2 (documenting

the law accessible to judges, lawyers, Act authorizes

and relief

Improvement

legislators

each state, in compiling

provisions

prepared

by the

Act of 2007, Pub. L. 110177.

these

of individuals

released

from

consequences,

National Institute Id. at 10.

at 17.

the number

and defendants

prison in 2008).

to

of Justice

27

276

CRIME, JUSTICE,

AND SOCIAL

CONTROL

justice personnel, various other decision-makers, and the general public to be aware ofthe collateral consequences that attach to convictions and that long outlast the direct punishment tied to those convictions. The efforts that have been undertaken to gather and compile these consequences will facilitate greater understanding of the true impact of criminal convictions. However, communities of lawyers are, and will continue to be, neededto help addressor, the very least, to

minimizethese

that breakdown the traditional

at

legal issues. Specifically, coordinated legal servicesservices divide between criminal

and civil

issues and recognize the

complex, interconnected legal issues that stem from any type of conviction and regardless ofthe

sentenceimposedare

necessaryto meetthe vastlegal challengesthat awaittheseindividuals at

the conclusion of their sentences. Perhaps mostsignificantly, collateral consequences mustbe restructured to hurdles imposed onindividuals individual

minimize the legal

with criminal records.These consequences needto betailored to

criminal conduct and, as the ABA recommends, should be waivedin instances where

judges deem appropriate. In essence,the criminal justice system of the future hasto be one that bends alittle to afford individuals

with criminal records the opportunities to move beyond their

transgressions and lead productive post-punishment lives.

V. Conclusion The emergent reentry crisis requires that the federal and state criminal justice systemsin the United States be restructured to focus on reentry issues and needs, all of which impact the millions of individuals

with criminal records, their families, and their communities.

Acriminal conviction

in the United Statesis nolonger the end point of the criminal process but rather the impetus for a collection of so-called civil penalties that

will hamper the convicted individual long beyond the

conclusion of his or her formal sentence.The criminal justice system ofthe future

andaccountfor the multitudinouseffectsof a criminal convictionboth that immediately

mustrecognize

the variouscivil penalties

attach to the conviction and the impact these penalties have on the individuals,

their families, and communities. Thus, the overarching goal of the criminal justice system should beto allow individuals to

maximize their chances of moving past their criminal records to lead

productive post-punishment lives.This is the challenge movingforward

ParT VI

Juvenile Justice

27

Introduction

T

he same social control intervention

strategies discussed in previous sections can also

apply to the juvenile justice system, but the emphasis is different because children are viewed as not having the same mentalcapacity and judgment as adults. It is important

to know something about the history ofjuvenile justice to understand current-day philosophies ofjuvenile law and corrections to control delinquent behavior. Initially, youth 17 years old and

younger wereconsideredjuveniles, andtheir law violations wereexclusivelyunderthejurisdiction ofthe juvenile courts. Historically, the juvenile courts operated under the parens patriae model, in

whichthe court acted asthe protector or as a parent and a delinquent youth became a ward

ofthe court.The focus ofthe system was on prevention and rehabilitation. Overthe years, asthe adult system became morefocused on punishment, the juvenile justice response also changed. Juveniles werecommitting serious crimes such as homicide and robbery at a young age, and some felt they should beremanded to adult courts to receive the same pun-ishments as adults for similar felony crimes.The state laws that authorize remand ofjuveniles to adult court are based on the type of crime committed and the age of the youth charged with

the offense. The imposition of adult sentencesfor juveniles raises someinteresting questions regarding wherethey serve their custody sentence asjuveniles, and whether all adult sanctions apply. Somestates had statutes authorizing the death penalty for juveniles, but this practice was overturned by the U.S.Supreme Court in Roperv. Simmonsin 2005. Andin 2012,the high court held that states could notimpose a mandatory sentence oflife

without the possibility of parole

for juveniles found guilty of certain crimes (Miller v. Alabama). Research by Jeffrey Fagan(1996) assessedthe impact ofjuvenile remands to adult court. Results showed that incarceration rates were highfor adolescents sentenced in criminal courts, but sentence lengths were comparable. However, recidivism rates weresignificantly lower for

adolescentssentencedin the juvenile court, regardlessofthe sentencetype or severity. Results suggestthat efforts to criminalize adolescent offending maynot produce desired results and may in fact be counterproductive addressed by Franklin

(Fagan, 1996, p. 77). Arelated issue in the juvenile justice system,

E. Zimring (2005) is the harmful effects of disproportionate treatment

of minority youth in the juvenile justice system. Heidentifies key options to reduce injustice in the American juvenile courts. Hesaysthat it is important to reduce the hazards ofjuvenile court processing protecting

minority youths.

Heargues it is necessaryto assessthe impact oflegal

policies on minority populations and whetherit is bestto consider the minority concentrations 27

280

CRIME, JUSTICE,

AND SOCIAL

CONTROL

in juvenile justice as a special problem in the juvenile justice system or as part of the generally higher-risk exposures found in criminal justice and other state control systems. Harm reduction is proposed asthe principal criterion by which policies designedto respond to

minority disproportion

should bejudged. Greenwood and Zimring (2005) discussthe needfor effective programs for youth in todays juvenile court system.They see value in pursuing the goals of prevention, deterrence, and treatment and looking for treatment alternatives at all stages of the decision-making process in the juvenile justice system.

Readingson Juvenile Justice Withthe movetoward a morepunitive responseto juvenile law violators, some haveexpressedconcerns about the response by moreinformal agents of social control, including the schools. PaulJ. Hirschfield, in Preparing for Prison?The

Criminalization of School Disciplinein the USA, raises concerns that

the American school systemsincreasingly are considering school discipline withinthe context of social control.

Heassessesthe impact ofthis trend, particularly for disadvantaged minority youth.

In animportant article Ford, Chapman, Hawke, & Albert (20??) address a previously overlooked

issuein juvenilejustice and discussthe prevalenceandimpact oftrauma andtraumatic stressamong youth in the juvenile justice system and describe emerging responsesfor identifying andtreating these problems.They

argue that youth

exposed to traumatic events exhibit a widerange of symptoms,

presenting with notjust internalizing

problems, such as depression or anxiety, but also externalizing

problems like aggression, conduct problems, and oppositional or defiant behavior. They further argue that screening for trauma should

be routinely performed on youth at their earliest point of

contact with the juvenile justice system. They further argue that programming for treating trauma disorders among youth should be available to youth in the juvenile justice system with histories of traumatic experiences, and that trauma treatment, outcomes, and research is afiscally

sound and

clinically responsibleidea. It is clearthat this approachcould also beappliedin schools, before juveniles get enmeshed in the juvenile justice

maze.Indeed, the treatment oftrauma is an essential

component in the restorative justice alternative top juvenile justice.

References Fagan, J. (1996). The

comparative

among adolescent felony Ford, J.D.,

advantage of juvenile

offenders.

versus criminal

Law and Policy, 18 (12):

Chapman, J. F.; Hawke J. & Albert,

D.(2007).

P. W. & Zimring,

F. E.(2005).

Programming

on recidivism

77114.

Trauma among youth in the juvenile justice system:

critical issues and new directions. Delmar, NY: National Ctrfor Greenwood,

court sanctions

in the

Mental Health and Juvenile Justice. modern juvenile

court. In P. W. Green-wood

(Ed.), Changinglives: Delinquency prevention ascrime-control policy (pp. 183194. Chicago Zimring,

University

F. E. (2005).

F. Hawkins in

Chicago. IL:

Press. Minimizing

& K. Kempf-Leonard

harm from (Eds.),

American juvenile justice (pp.

minority

disproportion

in

Our children, their children:

413427.

Chicago, IL:

Chicago

American juvenile

justice.

In

D.

Confronting racial and ethnic differ-ences University

Press

17

ChaPTEr

Preparing for Prison? THECRIMINALIZATION OFSCHOOL DISCIPLINE IN THEUSA PAULJ. HIRSCHFIELD

Abstract

Paul J. Hirschfield, for

American schoolsincreasingly define and managethe problem of stu-dent discipline through a prism of crime control.

Mosttheoretical

explanations fail to situate school criminalization in a broader structural context, to fully explain its spatio-temporal variations, and to specify the

Prison?

of School

Preparing

The Criminalization Discipline in the

Theoretical

Criminology,

12, no. 1, pp. 79-101. 2008 Reprinted

by Sage

USA, vol.

Copyright

Publications.

with permission.

processesand subjectivities that mediatebetween structural andlegal

forces andthe behaviorofschool actors. A multilevelstructural modelof school criminalization is developed which posits that atroubled domestic economy, the massunemployment and incarceration of disadvantaged minorities, and resultingfiscal crisesin urban public education have shifted school disciplinary policies and practices and staff perceptions of poor students of color in a mannerthat promotes greater punishment and exclusion of students perceivedto be on acriminal justice track.

Key Words criminalization

? school discipline ? school security ? social exclusion ? urban

education That school wasrun

morelike a prison than a high school. It dont have

to be nothing illegal about it. But youre getting arrested. Noregard for if a college going to accept you with this record. No regard for none of that, because youre not expected to leave this school and goto college. Youre not expected to do anything. (JWFormer

inner-city

high school student,

current maximum security prisoner1)

28

282

CRIME, JUSTICE,

AND SOCIAL

CONTROL

O

rder and discipline have always been an animus of American public schools, especially those serving the children ofthe working class and the poor. Even comparisons of urban schools and prisons have become well establishedeven

Foucault, 1977; Parenti, 2000; Staples, 2000;

commonplace (Bowles and Gintis, 1976;

Wacquant, 2001; Giroux, 2003; Fine et al., 2004).

The emphasis onthe orderly movement of students and their obedience to strict codes of conduct is important

both to schools operational functioning and to their societal functions.

Critical scholars

have argued that strict disciplinary regimens in working class schools help to promote smooth and voluntary transitions into anindustrial

workplace that tightly regulates and subordinates laborers

(Bowles and Gintis,1976; Foucault,1977). Commentatorslike Horace Mannand Emile Durkheim, both of whomsaw masseducation asthe cornerstone of a cohesive,inclusive, and democratic society, also valued discipline for instilling

moraland civic virtues (Durkheim, 1973; Bowles and Gintis, 1976).

Whetherviewed as democratization or domination, the traditional disciplinary project of Amer-ican masseducation is slowly crumbling. The industrial economy and civil society have weakened considerably in recent decades,especially in cities. Atthe same time, the criminal justice system has ballooned in size andinfluence. These changes weakenedthe structural andideological foundations of school disciplinary practice.The

managementof student deviance, divested ofits broader social

aims,is proneto redefinition and reappropriation for other ends. Especiallyin schools that face very

real problemsof gangsand violence(Devine, 1996),rule-breaking andtrouble-making studentsare morelikely to be defined as criminalssymbolically,

if notlegallyand

treated as such in policy

and practice. In short, the problems that onceinvoked the idea and apparatus of student discipline haveincreasingly become criminalized. Studies of criminalization

have a rich history (Jenness, 2004), so it is important to clarify and

justify this articles usageof the term.

Whereasthe concept usually connotes the social and political

process that culminates in behaviors like abortion or stalking becoming criminalized, portion ofthe criminalization

of school disciplinefits this definition.

only a small

Mostlegislative responses to

school deviance do not codify new crimes or escalate penalties. Rather,legal reforms mandatethat

certain behaviorsalready illegalsuch

as drug and weaponspossessionarereferredto the police

whenthey occur on school property. Other policies stipulate that students aretreated like actual or suspected criminals, for instance by subjecting them to in-school suspension or scrutiny by armed police, dogs, or metal detectors. Criminalization is conceived here even more broadly asthe shift toward a crime control paradigm in the definition and managementofthe problem of student deviance. Criminalization encompasses the mannerin which policy makersand school actors think and communicate about the problem of student rule-violation

as well as myriad dimensions of school praxis including architecture, penal

procedure, and security technologies and tactics. In Governing through Crime, Jonathan Simon

(2006) analyzesthe parametersof a crime control paradigmin the realm of school governance and elsewhere. Heextends the concept of criminalization

into the symbolic realm, arguing that

non-crime problems such as school failure can become criminalized in political contexts through the useof crime metaphorsin framing the problem and through embracing solutions that share the structure andlogic of crime control. I focus here on the mostvisible, clear-cut, and quantifiable in order to address the etiology of criminalization

manifestations of school criminal-ization

rather than its conceptualization and to

lay the groundwork for empirical tests of mytheoretical propositions.

However, even mypropose

Chapter

hard

indicators of criminalization

17 |

Preparing

for

Prison?

28

are not necessarily or universally experienced as criminaliza-tion.

Schools practices, including the meting out of punishment and the provision of security, are widely variable both between and within jurisdictions. This corresponds to variation in state and local political conditions and to the unique professional and behavioral milieu of each semi-auton-omous school (Bryk et al., 1998). Still, an overall trend in school criminalization

has accelerated

since the early 1990s across the socio-economic and geographic spectrum. This

article critiques

extant accounts of school criminalization

and introduces a new multilevel theoretical

modelthat

integrates structural and cultural approaches. Weavingtogether insights from extant theories, this

account explains key patternsof divergence,as wellasconvergence. The

divergence pattern mostfundamental and worthy of explanation is that criminalization is

moreprevalent and intense in schools that are heavily populated by disadvantaged urban minorities (Wacquant, 2001).The theory developed herein, which accountsfor temporal, spatial, and demo-graphic concentrations in criminalization,

posits that schools altered disciplinary and security

regimes can betraced largely to deindustrialization,

which shifted impacted schools and their dis-ciplinary

practices from productive endstoward a warehousingfunction, and the ensuing massive criminal justice expansion that deprived schools of potential resources. Aided by a crime-fixated and punitive political climate, these changes helpedreorient school actors moretoward the prevention and

punishment ofcrime, andlesstoward the preparationof workersand citizens.The presentaccount, unlike its predecessors, specifies the intermediary

processeslinking

political-economic

shifts to

school practices, as well assubjective interpretations

and otherforces that condition these processes.

Three Dimensionsof SchoolCriminalization From the complex and variegated phenomena of school criminalization, interlocking

I distill three distinct yet

dimensions. To understand why schools have come to look, sound, and act morelike

criminal justice institutions, it is necessaryto examine eachofthese developments. The first trend is that school punishment has become moreformal and actuarial.

major

Mirroring developments

in juvenile justice (Feld, 1999), school punishment is increasingly based on uniform procedural and disciplinary guidelines evolving around the nature of the offenserather than the discretion ofteachers and other traditional

disciplinary agents.This trend is mostrecognizable in the set of policies and

practices dubbed zero tolerance.

Zerotolerance policies spread rapidly in the early 1990s in the

midst of rising rates of school victimization Crawford, 1999).They

and juvenile violence overall (Toby, 1998; Burns and

were nationalized in 1994 with the passage ofthe Gun-Free Schools Act.

Mandatedto adopt zerotolerance for weapons,alarge majority of school districts soon adopted zero

tolerance policiesfor alcohol,tobacco, drugs and violence(Simon, 2006).These policiesresemble the determinate sentencing schemes that prevail in sentences, zero tolerance policies typically

moststates. But unlike

mandatory criminal

permit little consideration of mitigating circumstances

(Schwartz and Rieser,2001). The transfer of disciplinary discretion from teachers and school authorities to disciplinary codes that stipulate exclusionary punishments hascontributed to a second trend of morefrequent suspen-sions and expulsions.2 Expanded school exclusion is a symbolic form of criminalization, irrespective of whetherit follows strict penal guidelines or the whims of authorities. Education agenciesthat

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CRIME, JUSTICE,

AND SOCIAL

CONTROL

increase their use of exclusionary punishments endorse the prevailing rationale of contemporary criminal justice practicedeterrence

and incapacitation (Garland, 2001).3

Reflecting patterns in the criminal justice system, the intensification borne disproportionately

of school punishment is

by youth of color. Studies consistently document that

minority students

are moreoften subject to suspensions and expulsions and that these disparities do not closely reflect behavioral differences (Brooks et al., 1999; Skiba et al., 2002). Furthermore, suspensionsfor offenses that are not subject to automatic penalties, like disorder and insubordination, increased, especially for disadvantaged minorities (Civil

also appear to have

Rights Project, 2000).4

Decliningteacher discretionandincreased harshnessin both definingand punishingschool devi-ance can be properly understood only in relation to athird set of practices, namely, the importation of criminal justice into schools.This form of criminalization includes increased use ofcriminal justice technology,

methodology, and personnel for disciplinary and security purposes. Zero tolerance

exemplifies this trend too, but it is merelythe tip of the iceberg. Criminal justice tools and personnel play an increasingly important

role at nearly every stage

of the disciplinary process. While police and security officers in schools are hardly novel, school policing is the fastest growing law enforcementfield.5 A 2004 national survey ofteachers reports that 67 percent of teachers in majority-black or Hispanic middle and high schools report armed police

stationedin their schools(Public Agenda,2004). Suburbanschools, where60 percentofteachers work alongside armed police, are not far behind, however (Public Agenda, 2004). Generally accompanying police and security guards are law enforcement

methods like bag

searches and video cameras. Among preventive practices, metaldetectors and personalsearches seem the clearest indications of criminalization the likelihood

since they define students as criminal suspects. Not sur-prisingly,

of metal detectorsis positively related to the prevalence of minority students

(DeVoe et al., 2005). Urbanschools feature

moregates, walls and barricades as well(Gottfredson

et al., 2000). Onthe other hand, drug sniffing dogs are morecommonplace in suburban, rural, and predominantly

white schools (DeVoe et al., 2005).

To properly portray the extent and distribution of criminalization, one mustdig deeperthan national prevalence patterns. Areasonable proposition induced from journalistic and ethnographic accounts is that large, hyper-segregated school districts like

New York City (NYC) and Chicago,

which have placed city or school district police departments in charge of school security, are the mostcriminalized.

NYCs school police force is larger than the entire Boston Police Department

(Devine, 1996). School resource officers (SROs) in these schools receive training specific to educa-tional settings. However, as onthe street, any violations of the law are subject to arrest, and school officers are not required to obtain permission from anyoneto makean arrest (Devine, 1996; Hagan et al., 2002). Ethnographic research suggests that an influx oflaw enforcement erodes the tradi-tional

disciplinary role ofteachers and other school authorities (Brotherton, 1996; Devine,1996). In

Miami-Dade, Florida, school arrests increased from 820 in 1999 to 2435 in 2001, and offenses

that wereonce handled mostlyinternallysimple

assaults andmiscellaneous

offensescomprised

a staggering 57 percent (Fuentes, 2003). The criminalization including

of school discipline extends into the juvenile court. Datafrom severaljuris-dictions

Toledo, Ohio, Miami-Dade (Rimer, 2004), and Katy, Texas(Graves, 2004), on

the type of offensesthat schools refer to the juvenile court show that the alleged misconductleading to court referral is typically quite minor.This net-widening

effect reflects increased collaboratio

Chapter

17 |

Preparing

between schools and the juvenile justice system, which has eroded the traditional between the two institutions. crimes including

for

Prison?

28

boundaries

As of 2000, 41states mandatedlaw enforcement referral for school

drugs, violence, and weapons violations (Civil

to a recent news investigation, In

Rights Project, 2000). According

Ohio, Virginia, Kentucky and Florida, juvenile court judges are

complaining that their courtrooms are at risk of being overwhelmed by student misconductcasesthat should be handled in the schools (Rimer, 2004: A1).In addition, information-sharing

agreements

between education and justice agencies set the stage for laws that permit schools across diverse jurisdictions

to expel students for outside legal entanglements (Bickerstaff et al., 1997; Spielman

and Rossi,1997; Brookset al., 1999). Although such hardindicators illustrate and quantify the problem of criminalization, they fail to convey itsfluidity

and complexity.

in criminalization

Unidimensional descriptions tend to overstate the convergence

across contexts. It is true that some middle class suburban and rural schools

have also instituted

metal detectors and school police, along with tools at the less coercive end of

the carceral continuum like video cameras (Kupchik and Monahan, 2006). However, homology of form does not dictate uniformity in substance, etiology, or function. hardly immune from criminalization,

criminalization

Whilesuburban schools are

in these contexts takes on more diluted or

hybridized forms owing to the primacy of competing ideals like consumer choice and individual

freedom (Casella, 2003). Casella(2003) viewssuburban schools widespreadadoption of security technologies as the result of concerted efforts on the part of private security companies to cashin on the fears of drugs and violence among educators and parents. Boththe marketing of these prod-ucts as well astheir

mannerofimplementation,

the prospect of criminalizing

however, are tailored to an audience that is wary of

valued students. Surveillance technologies are mostappealing to this

audience if they embrace the logic and aesthetic of consumer freedom and individual

productivity

(i.e. self-discipline).6 Atthe same time, for reasons described in the next section, the imperatives of criminalization do weigh on suburban schools.These imperatives are often difficult to reconcile with the image and

prevailing ethos of manyof theseschools.This distinction betweenthe criminal justice modeof control and the softer, surveillance approaches embraced by the middle classis aptly described by Staples(2000).

Whilecontemporary criminal justice control is, for the mostpart, externally imposed,

physically coercive, and exclusionary, post-modern everyday surveillancethe ofthe disciplinary power described by Foucault (1977)is

logical culmination

productive, relatively democratic, and

inclusive (Staples, 2000). According to Staples,the latter forms of school control embody middle class parents and education professionals desiresfor greater order, efficiency, and predictability in anincreasingly complex, scary, and fragmented social world. Thus, school disciplinary and security plannersin towns and suburbs, moreso than in the inner-city,

mustpursuetechnologies and practicesthat areflexible enoughtofit contradictory aims and discourses. Video cameras offer this flexibility,

since they, on the one hand, expand disciplinary

power through providing knowledge of students and promoting self-monitoring

and, on the other

hand, unobtrusively help to deter, detect, and prosecute potential crimes. In a similar fashion, I posit that SROsin these schools give more weightto their education and counseling functions and reserve coercive law enforcement

methodsfor students identified

as threats or trouble-makers.

Metal detectors, in contrast, areless ambiguous andflexible in their purpose and symbolic asso-ciations. Accordingly, whereasarecent masswalkout among students in a NYC public school was

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CRIME, JUSTICE,

AND SOCIAL

CONTROL

unsuccessful in ending their use(Santos, 2005), these devices spark more effective and united resistance from students, parents, and educators in suburban schools, leading

metal detectors to go

unsold or unused (Cantor et al., 2002). Thus, criminalization

in middle class schools is less intense and more fluid than in the inner-city,

where proximate or immediate

crime threats are overriding concerns. Suburban security

reforms are morelikely to complement existing school disciplinary approaches rather than displace them (DeMitchell

and Cobb, 2003). In short, the gated community

to describe the security transformation

may be a more apt metaphor

of affluent schools, while the prison metaphor better suits

that ofinner-city schools.

Four ExtantInterpretations of SchoolCriminalization Voluminous material has addressed the racial inequities and other harms associated withthe crim-inalization of school security and discipline (Devine, 1996; Brooks et al., 1999; Beger, 2002), but detailed theoretical explanation of this multidimensional phenomenon is scarce (but see kupchik and Monahan, 2006).This is surprising, given how vast are the separate literatures linking punitive

criminal justice reforms and all keyfeatures of schooling, respectively,to the cultural, political, and economic order (Bowles and Gintis, 1976; Bourdieu and Passeron,1977;

Willis,1977; Parenti,

2000; Garland, 2001). By contrast, etiological discussion with respect to criminalization

in the

school sphere, as summarized below,tends to eschew deeper,structural underpinnings in favor of proximate influences

within the socio-political

milieu.

Mostcommonly, this discussion evokes the language and imagery of the moral

panic (Cohen,

1972), portraying the hardening of school discipline and security as a response to the upsurge of school crime and juvenile violence beginning in the late 1980s and several school rampages

in

the 1990s (Brooks et al., 1999; Beger,2002; DeMitchell and Cobb, 2003; Rimer, 2004). According

to this perspective,jarring mediaconstructions ofthe crisis

of school violence unite the public,

stakeholders (e.g. teachers unions), and public officials in a stance of righteous indignation toward a marginalized folk-devil political

(Burns and Crawford, 1999). Often emerging from this emotional and

mobilization are quick-fix, punitive solutions (e.g. zero tolerance,

are disproportionate to actual threats of violence. Consistent with the school criminalization

escalated throughout

metal detectors) that

moral panic perspective,

the USAin the 1990s, even though

reported no serious crimes, urban schools experienced norampage

mostschools

shootings, and overall rates

of school violence dropped steadily from 1993 through 2000 (Brooks et al., 1999; Devoe et al., 2005: 11, Figure 2.1).

The moralpanicframework suggests whena rigorous political responseto anissueis required, but does not dictate aspecific course of reform. Public and media outcries over school violence do not always result in a universal clamor for tighter security and more punishment, as evidenced by the school violence panic in the 1970s (Toby, 1998). Atthe same time, this framework

does not

explain why schools often maintain or intensify their punitive efforts long after public panics over school violence subside. Episodic moral panics help explain the initiation institutionalization scope ofthe theory

of criminalization

butits

rests on political, organizational, and structural forces that fall outside of the

Chapter

17 |

Preparing

for

Prison?

28

Asecond account, which partially explains the sustainability of panic-inspired reforms, focuses not on the political

management of periodic

moral crises, but instead on the

management of the

neo-liberal pushfor school accountability. In brief, the school accountability narrative suggeststhat teachers and principals from financially

strapped schools can meetexternally imposed demands to

boost standardized test scores and attendance rates by excluding low-achievers and truants (Bryk et al., 1998; Fuentes, 2003)an

outcome promoted by selective orfrequent application ofthe exclu-sionary

practices described thus far (Bowditch, 1993).7 The school accountability

narrative is consistent with the spatio-temporal

and demographic

distribution of criminalization. However,it is inconsistent withthe character of somereformslike zero tolerance.

Criminalization for the purpose of excluding particular underperforming

students is best accomplished by strengthening school authorities

or dis-ruptive

discretion rather than by

transferring it to rigid guidelines and security agentsthat take little account of academic standing. It is certainly the casethat zero tolerance and school police facilitate the exclusion of students accused of committing offenses, but the apparent willingness to sacrifice some promising students in the process begsexplanation (Fuentes, 2003). Boththe moral panic and school accountability narratives giveinsufficient attention to the wider social, legal, cultural, political, and economic contexts that frame schools responses to moral panics

about youth andto school accountability reforms. Withrespectto the legal context of disciplinary reform, sociologists offer a third, due process narrative. Toby (1998) and Arum (2003) both argue that a student rights movementoccurred in the school disciplinary arenafrom the late 1960s through the

mid-1970s asjudicial rulings increasingly sought to curb the arbitrary application of exclu-sionary school punishments and pressfor greater codification and standardization of disciplinary

procedures. Both authors argue that these court rulings undermined the traditional

moralauthority

of school authorities, and schools became morerestrained in imposing exclusionary punishments (Arum,

2003).They further assert that these rulings emboldened students to openly defy teacher

authority. Increasingly fearful of either being attacked or sued by their students and eagerto focus

onteaching instead of behavior management,teachers generally desired clearer delineations of their disciplinary responsibilities, other personnel. School principals,

along with the delegation of some frontline

responsibilities to

wholevy exclusionary sanctions, were also wary of litigation.

Accordingly, teachers unions and associations (e.g. American Federation of Teachers) and national school principals associations are the (Boylan et al., 2002).The

major stakeholder groups behind zero tolerance policies

due process narrative also helps explain the expanded role of police and

the juvenile court in school discipline, since limiting the involvement of school professionals in the process reduces their vulnerability to litigation. The reason why zero tolerance policies and SROs did not proliferate sooner maybethat dual crises in school violence and school funding

were nec-essary

to garnerthe necessarypolitical supportfor theseinitiatives. Whereasthe due process narrative illuminates the legal circumstances that hastened the for-malization of school punishment, it fails to explain why harsh disciplinary codes and an armed law enforcement presence are especially pronounced in inner-city

schools. Arum notes that, unlike

middle class whites many African-American and other non-white students and their families are not in a position to sustain serious legal challenges or pursue legal remedies related to the applica-tion of school disciplinary procedures without significant institutional same time, judicial rulings since the 1980sin

support (2003: 210). Atthe

keeping withget tough sensibilitieshave

largely

288

CRIME, JUSTICE,

AND SOCIAL

CONTROL

upheld harsh, exclusionary punishments in the soleinterest ofschool safety (as long as no violations of due process are evident) (Arum, the criminalization

2003). If concerns over liability

are the primary impetus for

of school discipline, then one would wrongly predict greater criminalization

in

affluent suburban schools. Afourth causal narrative, the governing-through-crime on the unique penal dynamics of inner-city

thesis (Simon, 2006) also does notfocus

schools.The

proper backdrop ofthis

meta-narrative,

mapped extensively by David Garland (2001), features the decline ofthe industrial

economy, the

neo-liberal and conservative attacks on the social welfare apparatus and other non-market

insti-tutions

including public schools,the turbulent racial politics and rising youth crime beginningin the 1960s, and the decline of the rehabilitative ideal.

Within this altered economic, cultural, and

political context, Simon argues, fewer governmental entities pursue legitimacy goods and services or through redistributive

through quality

claims. Beginning with the Omnibus Crime Control

Act of 1968, Simon traces the ascendancy of a new model of governance centered on the control and punishment of crime. In the school context, this

mode of governance recasts disruptive stu-dents

and failing schools as criminals, treats other students and their parents as potential victims, and elevates centralized education policy makersto the roles of prosecutor and judge.These role realignments temper and narrow both the obligations of government and the rights of citizenship

withrespectto education.Through instituting

marketcompetition, performance monitoring,and

accountability, federal education reforms like the Safeand Drug Free Schools and Communities Act (SDFSCA) and No Child Left Behind, analogous to the criminal law itself (Reiman, 1979), placethe onus of responsibility for school crime and the crime

ofilliteracy onthe underperforming students,

teachers and schools, while exonerating the political and economic system and its leaders. Simon views federally sponsored or mandatedresponses to student

misconduct such as zero tolerance,

school police, metal detectors, and mandatorylaw enforcement referrals asinstrumental to the shift toward acrime

model of school governance. Atarhetorical level, they aid in the attempt to imagine

various school actors in the roles of criminal, victim, and law enforcers. Ata political level, focusing

onthe crimeissueis a safeand effectivestrategyfor politicians vyingfor the moralhighground, as epitomized by Nixon in 1968 and Rudolph Giuliani and Clinton during the 1990s (Beckett, 1997). Finally, at a practical level, such reforms provide the techniques

of knowledge and power that form

the actual apparatus of crime governance.They are the meansthrough

whichschools are expected

to document and managetheir crime problem, or risk harshjudgment and sanctions. The governing through crime

meta-narrative provides a cogent account of governance at the

upper-levels of school policy making, where criminalization initiatives often originate. However, a full explanatory account of criminalization

mustfurther scrutinize the consent and complicity of

the governed. Atthe school level, criminalization is not merelyaccommodation to an altered set of

governmentconstraints, mandates,andincentives.Isomorphic institutional changesin schoolsalso follow the diffusion of professional and broader cultural norms and related changesin the perceived needs, behaviors, and circumstances oftheir students (DiMaggio

and Powell, 1983). Federallaws

like SDFSCA afford states andlocalities considerableleeway in defining their own needs,goals, and objectives, leaving suchissues as metaldetectors, drug sweeps, specific zero tolerance provisions, and mostother program-specific regulations upto local discretion. Compliance with key SDFSCA provisions is reportedly

partial and haphazard within and across schools, and favored activities

often stray from a crime control paradigm (e.g. counseling and recreation) (Gottfredson et al., 2000)

Chapter

17 |

Preparing

for

Prison?

Collectively, the preceding accounts lend multiplelayers and dimensions to our understanding of penalintensification

within American schools.The remainder of this article adds some pieces

to the theoretical puzzle. Whileintegrating viable elements of all four narratives, I maketwo addi-tional contributions.

First, I affix these elements moresecurely onto the structural configurations

of present-day America including the post-industrial economy and the expanded penal system. Second, whereasthe extant interpretations imply that all schools or broad categories of schools sway in unison to prevailing political

winds,the narrative developed here recognizes the limited agency

that school actors possessin defining and pursuing ends and meansother than those dictated by

overseeingand regulating entities(Willis, 1977). Onefundamental and enduring goalthat school actors pursue, through diverse meansand with variable success, whose critical relevance to school disciplinary reform has not been adequately theorizeduntil

nowis

the preparation and sorting

of youth for future positions in the occupational and social order.

The RoleofObjective Structural Conditions The natural starting point for a narrative predicated onthe interdependence between schools and the

larger social orderis an analysisof political-economicconditions. Variousobservershavedescribed an economic contraction in the late 1960s that seriously threatened corporate profit

margins by the

1970s (Parenti, 2000; Garland, 2001). In response, corporations reduced labor costs andincreased profits through shifting industrial

production offshore, automation, and mergers. The correspond-ing

political agendaincluded deregulation and anideological and policy assault on social welfare and worker protections. Public schools, which have provided a periodic locus for struggles for full citizenship and equal opportunity and a vision ofthe public good that counters the hegemony of the market(Katznelson and Weir,1985), did not escapethe conservative and neo-liberal offensive (Nolan and Anyon, 2004).

Whilethe adverseconsequencesoftheseresponsesto the economic downturn trickled down through the social classstructure, school criminalization is particularly bound up withthe fate of two impacted groups. First, the accelerated deindustrialization in the USAscore urban manufacturing centers, coupled with the massexodus ofthe

middle classes and their property tax dollars to the

suburbs, resulted in concentrations of unskilled inner-city workexcept

minorities withlittle accessto legitimate

in the expanding low-wage sectors (Wilson, 1996) and the

militaryas

well as to

opportunities afforded by an equitably funded public education. Whiledeindustrialization

deprives overwhelming numbers ofinner-city

minorities of a produc-tive

role in the USAs economy and perpetuates cycles of drugs and violence, predominantly

white

cities andtowns are also besetby hugejob lossesin industry, mining,and agriculture (Duncan, 2000). In earlier eras, the plight ofthese groups may have usheredin a secondNew on Poverty including

Deal orWar

massivegovernment outlays to rebuild the nations infrastructure

disadvantaged populations for the increasingly high-tech,flexible,

and train

global economy. Butfor reasons

detailed elsewhere (Beckett, 1997; Simon, 2006), elected officials saw more advantageinfixating urban crime and drugepidemics Whilethe rise of the criminal

and building a stableinfrastructure justice-industrial

complex

on

around the control of crime.

maybe,in large part, the long-term,

unintended consequence of short-sighted get tough campaigns, its staying power derivesfrom its

28

290

CRIME, JUSTICE,

AND SOCIAL

role in the post-industrial

CONTROL

political economy. Penal expansion helped the State manageboth rural

and urban economic crises. Withrespect to urban economic devastation, a campaign of arrest and incapacitation

of an unprecedented pace and scope kept alid on unrest and opened the door to

strategic urban redevelopment The

prison-industrial

within designatedsafe zones (Parenti, 2000).

complex also curbed the decline of many white rural areas and, more

broadly, pacified the white working class. Criminal justice expansion artificially tightens the labor market(Western and Beckett, 1999), stimulates the economy of ailing rural communities (Huling, 2002), and affords rural residents greater electoral representation and population-based federal

appropriations(Huling, 2002). Accordingly, manyrural politicians staketheir political careerson the location ofjuvenile and adult prisons in their districts and the hundreds of stable, well-paying jobs that they promise to generatefor their constituents.8 The twin

developments of deindustrialization

and massincarceration,

political calculus of school policy decisions, haveimportant policy.The same state legislators

through shifting the

direct implications for state-level edu-cation

with vested interests in building or expanding prisons in

their districts are empowered to vote on statefinancing

of urban education and state school security

and penal initiatives necessitated by federal reforms. Politicians withlargely rural and small town bases, who hold considerable sway over the legislatures in states withlarge prison populations like

Texas, NewYork,and California,should benefit morepolitically from expansionistjustice policies and exclusionary school policieswhich

help keep prisons fullthan

from generous urban school

funding. Even urban mayorsand school superintendents havelittle incentive to invest in genuine educational opportunities for unexceptional students trapped in underperforming post-industrial economy, relatively lucrative illicit widespreadinability

and limited social capital foster

and reluctance to take full advantage ofthese opportunities (Noguera, 2003).

Political-economic transformations therein) structurally

opportunities,

schools.The

haveresituated inner-city schools(and lockdown

alongside the aggressive policing and imprisonment

and Latinos as a meansto control and warehouse disposable

environments

of disadvantaged blacks

youth (Wacquant, 2001; Giroux,

2003; Nolanand Anyon,2004). Predictably, then, the criminal justice boom diverted public funds that could have been directed at public education (Western et al., 2003; Jacobson, 2005).9 As criminal justice budgets have sky-rocketed, lawsuits in morethan 40 states haveallegedthat inequitable statefinancing

of poor school

districts is responsible for conditions in poor schools that run afoul ofthe states own constitutions (New York Times, 2003). Extremefiscal restraints coupled with pressure to lift sagging student performance and reduce school crime, leave school actors with a shrinking

pool of ameliorative

options. Part of the appeal of school accountability reforms, under which state and federal school disciplinary

mandatescan besubsumed,is that they are relatively inexpensive to implement. Forced

inter-school competition,high-stakes testing, andthe removal of dangerousand disruptivestudents are cheap alternatives to renovating and modernizing schools and hiring

more qualified teachers

and counselors. As mentioned,however, centralized mandatesset only general parametersfor district-level policy. They lack the necessaryspecificity, therefore, to explain convergent criminalization asincreases in metaldetectors, drug sweeps, and court referrals from schools.The

patterns such

diffusion of con-cordant

practices across subsets of schools (e.g. inner-city) is rooted not only in state coercion and incentives andin similar triggering factors (e.g. overcrowded facilities and disengagedstudents) but

Chapter

17 |

Preparing

for

Prison?

morefundamentally, in school organizations shared questfor professional and political credibility. For schools to effectively interrelate families, and the mediathey political

across institutional

domainswith

government, employers,

mustaffirm societys prevailing ideas and values,including the new

accord (Gintis and Bowles, 1988) that has been reached on youth crime and punishment.

One waythat schools can openly endorse aspects ofthis accord such asincorrigibility, ofjuvenile crime, the threat of youthful predators,

high rates

and the necessity of expanded punishment and

control (Garland, 2001; Giroux, 2003), is through the transportation

of political practices from

the penal realm into the school (Gintis and Bowles, 1988).

The similarity of particular techniques,symbols, and rationalesthat schools borrow from the penal realm is also rooted in the shared pursuit of credibility. Schools can minimize political risks and maintain effective inter-institutional

communication by adopting best practices and relying on

the advice ofrecognized school security professionals (DiMaggio and Powell, 1983). School security consultants are often rooted ideologically and professionally in the wider criminal justice profession (Trump

and Lavarello, 2001) and have helped situate school

misconduct within the purview of

criminal justice (Simon, 2006).The independent contribution

of criminal justice professionals to

school penal trends is explored morefully later.

TheSubjective Influence of Social Structure on School

Criminalization Structural factors shape school penal trends, not merelythrough shifting the strategic calculus oflawmakers and policy makers, but also through exerting direct influence

onindividual

actors

operating at the levels ofthe school and the classroom. Mostscholars whoexplore the relationship between structural realities, like social class hierarchies and individual subjectivities, follow in the

path of Pierre Bourdieu. Bourdieu and Passerondescribe howthe parallellines of social thought and actions entailed in group membershipinstill in group members ashared habitus orsystem of internalized

structures, schemes of perceptions, conception, and action (1977: 86).

The criminalization response, whether ateachers decisionto summon security guardsto a minor classroom disturbance or a principals pursuit ofthe arrest or removal of that student, is mediatedby individual interpretations

of social reality.

Whilesociologists differ widelyin how muchautonomy

they permit individuals in developing their owninterpretations

and acting upon them, few disagree

that structural forces condition and constrain their thoughts and actions. Two interrelated

aspects of the habitus with profound implications for classroom and school

disciplinary climate are perceptions of students future prospects and the negotiated balance of power between teachers and students. important

While perceptions of the opportunity

mechanismlinking social structure

they also are an important

structure

are an

with student aspirations and effort (MacLeod, 1987),

component ofthe habitus of school staff, which should condition how

these actors respond to errant students. Educators consciously and unconsciously aim to prepare youth to assumetheir rightful position in the social strata and hierarchical workplace (Bowles and Gintis, 1976; Katznelson and Weir,1985; Ferguson, 2000). Accordingly, muchschool activity is organized around the tasks of classification and socialization. Even school punishment, which is

29

292

CRIME, JUSTICE,

AND SOCIAL

CONTROL

generally depicted as a response to past and present behavior, also acts prospectively by sorting future dropouts

(Bowditch, 1993) and socializing students (Durkheim,

1973; Foucault, 1977). If

schools penal and surveillance practices are tools of classification and socialization, it follows that teachers perceived changes in the occupational structure onto which these devices are mapped should prompt corresponding changesin these practices.10 This argumentfinds support in evidence suggestingthat criminalization practicesreflect increased perceptions oftroublesome students asfuture criminals or prisoners.The

needs of such students

fall outside of the traditional school disciplinary paradigm, whichis tied to images of students as

future workers and citizens. Bleak prospects are so noticeablein poor communities and media constructions thereof, that they cannot have escaped the notice of urban school professionals. Forinstance, nearly 60 percent of black male high school dropouts experience imprisonment

by

age 304 (Pettit and Western,2004). Of course, many education professionals in distressed schools are dedicated to diverting as many students as possible from the criminal

justice track.

Onthe other hand, recent examples

abound of teachers and school administrators projecting criminal futures onto their students (Blum and Woodlee,2001; Nolan and Anyon, 2004). Concordant research in Californiafinds that many students in impoverished schools believe that educators perceive them asanimals,

inmates,

or

killers (Fine et al., 2004) andthat black malesandfemalesarelessthan half aslikely astheir white counterparts to believethat their teachers support them and care about their success(Noguera, 2003). Ferguson (2000) offers deeper exploration into how objective penal realities are internalized by school staff and assimilated into the school disciplinary asfifth

and sixth graders.Through

her inquiry into

banished to the schools punishing

process, even for students as young

why African-American

room and jailhouse,

youth were dispro-portionately

she discovered that young

African-American children facing discipline, unlike white children, are written and castinto roles imagined for adults in the world outside the school. Owingto a dominant image of black malesas criminals and prisoners, manyschool authorities view chronically disobedient black boysasbound

for jail andunsalvageable. Implicit in the designation of black students as unsalvageableis the recognition of two emergent structural realities discussedearlier: (1) that prison, whichreifies criminality and tends to foreclose a productive future, looms overthe future of African-American youth whofail in school; and (2) that schools lack the resources to reverse the downward trajectories of the mosttroublesome students without compromising the quality ofteaching and services aimed at more deserving or promising students. It is likely that this dynamic is mostconspicuous in the lowest tier labels like bound for jail

high schools where

are oftenlegitimized through justice system interactions both inside and

outside the school (Devine, 1996).

The anticipatorylabeling ofstudents asfuture prisonersin needofcoercivecontrol or exclusion can be aself-fulfilling

prophecy as students frequently suspended from school face increased risks

ofjuvenile and adult incarceration (Arum and Beattie, 1999; Skiba et al., 2003). Just asthe success of aCollege reliability jail

Prep track can begauged by the share of students in this track who attend college, the

of penal and exclusionary practices at weeding out those students on the fast track to

may,perversely,legitimate and reinforce these practices. Focusing on perceptions of external opportunity structures is insufficient,

however, since the

attitudes and behaviors that confront school staff each day exert a much moredecisiveinfluence o

Chapter

17 |

Preparing

for

Prison?

29

their disciplinary responses. However, even those who believe that the complex, dynamic rituals of power and resistance within schools possesstheir own internal logic and autonomous sphere of influence (Willis, 1977) acknowledge that disciplinary regimes must assume new forms within a structural landscape of massunemployment andincarceration (Willis, 2004). In Learningto Labor, Willis arguesthat

most working class students cedeto teachers respect and obedience in exchange

for their equivalents

in knowledge and credentials. For students who begin to see school knowl-edge

and credentials asirrelevant, on the other hand, the teachers authority becomesincreasingly the random one of the prison guard, not the necessary one of the pedagogue (Willis, 1977: 72).

Pragmaticteachers often respond by offeringfreedom andfun instead of knowledgeand expect, in return, that disaffected students not hinder the good students or otherwise challenge the basic paradigm of power relations in the school. Both sets of terms

may be more difficult to negotiate

and maintain, however, with discontented students forcibly concentrated in todays inner-city schools. First, such an exchange system garners little faith from either teachers or students when unemployment and incarceration

are objectively

more plausible than college. Teachers are often

bereft of not only sufficient resources but also a cogent narrative of opportunity that can help them gain voluntary compliance from students and couch their role in non-repressive terms. The second option of ceding more control to the disaffected students, while not uncommon, is alsoless viable

whereteachers are calledto accountfor lax performanceand behavioral standards.In this light, it is understandable that teachers and administrators

often perceive little choice but to summon

repressive meansto swiftly remove disruptive students from the classroom and the school. Criminal justice offers a useful template and accessibletools for this purpose (Simon, 2006).

TheIndependent Roleof Justice System Agents Teachers and other education professionals are notthe only agents whoseinterests and subjectivities

shouldfigure prominentlyin atheory of school disciplinary transformation. It is alsoimportant to understand the role of security and criminal justice agents. As mentioned earlier, criminal justice professionals have assumed an enlarged role in the school disciplinary process, often usurping tra-ditional responsibilities of teachers.The

emergence of crime as a central pathway for governance

(Arum, 2003 Simon, 2006) and the willingness of overwhelmed andfearful school actorsto summon and to cede disciplinary authority to justice system agents help explain this trend.

However,these

explanations largely treat justice system actors as objects of reform rather than as agents ofit. Whilea passivecharacterization ofjustice system actors wasappropriate whencriminal justice fields

weresmaller and less professionalized, it is less tenable today. Criminal justice professionals,

thanks to the vast expansion of the criminal justice system, are highly organized.Through pro-fessional associations, they seek to conditions (DiMaggio

maintain or enhance their legitimacy,

prestige, and working

and Powell, 1983; Beckett, 1997; Simon, 2006).

Oncejustice system actorsimplicated in school criminalization are conceptualized as professional and political interest groups, oneis compelled to ask how theflow

of criminal justice personnel,

technology, and expertise into schools serves these groups interests and what role these groups playin school criminalization

(Becker, 1984). For example, installing police tofind

andfight crime

in schools can bring collective benefits to the policing profession by creating morejobs andfunding

294

CRIME, JUSTICE,

AND SOCIAL

CONTROL

opportunities, and, with the help of educational components like

DARE, by promoting their image

as a vital and benevolent institution.11 Similar explanations have been offered for the increased role of the juvenile court within the school disciplinary process. While manyoverburdened juvenile court judges resent the addition of school misconduct casesto their dockets(Rimer, 2004), others may welcomethis change. Expanded procedural protections and moral panics about juvenile crime since the 1960s jointly led to the criminalization

ofjuvenile courts (Feld, 1999). In the process,juvenile courts lost jurisdiction

over

tens ofthousands of youth to criminal courts. Even moreimportantly, the increasingly adversarial

and punitive thrust ofjuvenile justice reform threatensthe professionalstatus and survival ofthe large contingent ofjuvenile court professionals whoretain a rehabilitative orientation (Leiber et al., 2002). Expanding the juvenile courts jurisdiction

over schools, whichincludes other popular ini-tiatives

like school-based probation, at once helps keep court dockets full (Becker, 1984; Schwartz and Rieser, 2001) and reclaims for the court a rehabilitative role within a marked rehabilitative spacethe

School (Muncie and Hughes,2002).

Whilethe involvement of police andjuvenile courts in the regulation ofstudent behavior obviously signals schools incorporation

of a crime control paradigm, it bearsrepeating that security guards,

police, andjudges, like students and teachers, are subjective actors, prone to accept, but capable of

resisting,the imperatives of criminalization. Forinstance, Devine(1996) notesthat school officers in the lowest tier schools of NYC build mentoring relationships

with students. Likewise, atraining

modelfor school police officers developed by the VeraInstitute of Justice that teaches adolescent development and positive reinforcement new school safety agents.12 The importation of mutual accommodation.

has beenincorporated into the

NYPDs training

ofall

of criminal justice into schools thus involves a process

Whethersome progressive schools are capable of co-opting criminal

justice tools and agentsto the extent that they nolonger qualify as agents of criminalization is an open theoretical and empirical question.

Conclusion The importation

of symbols, tactics, and personnel from the realm of criminal justice into schools

is neither aninevitable and universal trend nor an accident of social history. Schools,like all insti-tutions, are sites of dynamic social interaction structural constraints subjectively interpreted, implementedand

wherein functions

are continuously

negotiated,

proper responses hotly contested and inconsistently

the results of this cacophony of conflicting forces never completely certain.

Evenin the most distressed urban schools, progressive visions of educationrooted

ofliberty, equality,tolerance,citizenship, and personalgrowthactively imperatives in shaping personal and institutional

in the values

compete with penological

agendas(Gintis and Bowles, 1988; Fine et al.,

2004).The extent to which students confront school environments that weigh penological imper-atives and images moreheavily than pedagogical onesis an empirical question that deserves more systematic attention. That said, sufficient evidence supports a provisional thesis of an overarching criminalization

of school discipline, especially within urban schools.

Atthe same time, the criminalization

of school discipline, however prevalent, should not be

subsumed under a singular social project or process, whether it is the USAs moral panics abou

Chapter

17 |

Preparing

for

Prison?

29

youth and school violence, school accountability reforms, the automation of school disciplinary procedures, orthe ascendancy ofcrime as a narrative for governance. Rather,the present-day, multi-dimensional penal realities in the USAsschools arefully understandable only through tracing their multiple historical and social underpinnings (Garland, 2001).The increasingly andimprisonment

bleak employment

prospects ofinner-city students and teachers and administrators

these realities shouldfigure

perceptions of

prominently in efforts to theorize criminalization in the school context

and in strategies to reverse it.

Notes I thank the following peoplefor helping guide this articles development: James Ainsworth-Darnell, Ira Cohen,Stephanie DeLuca,Joseph Hirschfield, Monique Payne, Becky Pettit, Paul Reck, Pat Roos, Helene White,and three anonymous reviewers. 1.

Personal interview

2.The

Department

with the author in of Educations

Any and all errors and misconceptions are mine.

May 2002.

Office of Civil

Rights estimates that from

1974 to 1997 the rate of

suspensions increased steadily from 3.7 percent of all students to 6.8 percent (Brooks et al., 1999). As states implemented

zero tolerance

policies

during the 1990s, the number

of expulsions

mounted

(Fuentes, 2003). In Chicago, officially recorded expulsions increased from 14in 19923before tolerance

was enactedto

3. It is true that virtually alternative

education

737 in 19989 all the

(Civil

major stakeholders

forms

policy at the national level endorse

(Boylan

and

school environments

and control (or even punishment) of these settings asnew

2000).

in education

programs for banished students

operate, staff, and fund such segregated isolation

Rights Project,

of a criminal

intermediary

Weiser, 2002).

However, those

may come to define their

population.

institutions

zero

that

purpose

who

as the

Nolan and Anyon refer to urban

manage the stages between school and

prison (2004: 142). 4.

During the 19992000

school year, African-American

students

students and 50 percent ofthose suspended for disruption

comprised

or defiance

17 percent of San Diegos

(Applied

Research Center,

2002). 5.Thanks

largely to federal

all vastly expanded resource (Bureau 6. Even the

the number

officers (Bureau

West Paducah,

begun under the of school resource

of Justice

of Justice Statistics,

has greeted criminalization schools

funding

Statistics,

COPS program, officers.

urban, rural,

and suburban

By 1997, public schools

2000). Their

number

schools

hosted 9400 school

mushroomed to 14,337 by 2003

2006).

KY high school that experienced

one of the rampage

shootings

of the 1990s

with ambivalence. According to the schools principal, the maingoal of the

SRO is to be apositive

role

model and build

trusting

relationships

with students

(Pasco-pella,

2005). Likewise, the morning ritual in which teachers search book bags and pat down students is couched in a waythat rejects the rhetoric

7.

discourse. The

school

Im

your book bag.

searching

Many inner-city instruction

principal

of coercion

asserts, Weve Wetry to

schools, in their zealous and proto-military

tried to

and criminalization

makeit a Walmart greeter situation

makeit a positive experience pursuit

in favor of a consumerist

of performance

methods of classroom

(Pascopella,

standards,

discipline

2005).

have adopted

(Duncan,

rather than,

2000;

rigid

drill-based

Kozol, 2005).

296

CRIME, JUSTICE,

AND SOCIAL

CONTROL

One maysurmise that the importation pedagogy

of criminal justice tools and personnel helps to sustain this

of direct command and absolute control

8. Becoming aprison town

(Kozol, 2005: 64).

can sometimes be a mixed economic and social blessing(Huling,

9. Empirical research supports aninverse relationship

between prison funding and school funding.

instance, Johnson (1996), in hisstudy oftranscarceration USA,finds

2002). For

across social control institutions in the

that states prison admission rates negatively predicted states high school population rates,

and that they werethe only significant predictor in multivariate 10.This interpretation

of classification and socialization

correspondence principle, social structure, labor

which posits afunctional

models.

practices should not be confused withthe correspondence between the needs of the

market, or corporate elite and the practices of schools andteachers (Bowles

and Gintis, 1976).The correspondence thesis has been challenged by work showing that teachers perceptions of the labor

marketare fuzzy,

misguided, and contested, and that schools sorting and pre-paratory

practices often fail to produce their intended results (Weis, 1990). criminalization,

however, it is not important

conditions of the labor shift substantially

Withrespect to explaining

whether these perceptions perfectly

mirror objective

market or are actualized in student outcomes. It is important

only that they

and correspondingly in response to structural changes and that they influence

disciplinary practices. 11.The criminalization safety initiatives.

of schools evolves newforms asterrorism

becomesthe major axis for new public

Facing progressive cuts in federal funding for SROs, the 9000-strong

Association of School Resource Officers, along with school security consulting firms, an Education Homeland Security Actto fund

National have called for

school terrorism training, improve security and crisis

planning (Porteus, 2003). 12. http://www.vera.org/section2/section2_4.asp

References Applied Research Center (2002) Profiled and Punished: How San DiegoSchools Undermine Latino & African American Student

Achievement.

Oakland,

CA: Applied

Research Center.

Arum, Richard (2003) Judging School Discipline: The Crisis of Moral Authority. Cambridge, MA: Harvard University Arum,

Press.

Richard and Irenee

Criminology Becker, in

R. Beattie (1999) High

Delos Kelly (ed.)

Entrepreneurs: The

Deviant Behavior:

Bickerstaff,

University

of Deviant

A Text-Reader in the Sociology of Deviance, pp. 218.

Categories, New York:

Press.

Social Justice 29(12):

of Police Powerin Public Schools and the Vanishing Rights of 11930.

Steve, Sara H. Leon and J. Greg Hudson (1997) Preserving

Alternative Blum, Justin

and Enforcement

Making Crime Pay: Law and Orderin Contemporary American Politics. Oxford:

Beger, Randall R.(2002) Expansion Students,

Creation

Press.

Beckett, Katherine (1997) Oxford

and the Risk of Adult Incarceration,

37(3): 51540.

Howard S. (1984) Moral

St Martins

School Experience

Education and Yolanda

Prison Experience,

Programs for

Disruptive

Woodlee (2001) Tour Washington Post, 31

the

Opportunity

for Education:

Texas

Youth, Journal of Law and Education 26(4): 139. Wasfor

May, p. B1

Youths Beyond

Control:

Teacher Requested

Chapter

17 |

Preparing

for

Prison?

Bourdieu, Pierre and Jean-Claude Passeron(1977) Reproduction in Education, Society, and Culture. London: Sage Publications. Bowditch, Christine (1993) Getting

Rid of Troublemakers:

High School Disciplinary Procedures and the

Production of Dropouts, Social Problems 40(4): 493509. Bowles, Samuel and Herbert Gintis (1976) Schoolingin Capitalist America: Educational Reform andthe Contradictions of Economic Life. New York: Basic Books. Boylan, Ellen M.and Jennifer

Weiser(2002) Survey of Key Education Stakeholders on Zero Tolerance Stu-dent

Discipline Policies. Newark, NJ: Education Law Center. Brooks, Kim, Vincent Schiraldi and Jason Ziedenberg (1999) School House Hype: Two Years Later. San Francisco, CA: Center on Juvenile and Criminal Justice. Brotherton,

David C.(1996) The

Gangsin Three

Contradictions of Suppression: Notesfrom a Study of Approaches to

Public High Schools, Urban Review 28(2): 95117.

Bryk, Anthony, Penny Bender Sebring, David Kerbow, Sharon Rollow and John Q. Easton(1998) Charting ChicagoSchool Reform: Democratic Localism as a Leverfor Social Change.Boulder, CO: Westview Press. Bureau ofJustice Statistics (2000)

Local Police Departments1997. Washington, DC: Office of Justice

Programs, US Department of Justice. Bureau ofJustice Statistics (2006)

Local Police Departments 2003. Washington, DC: Office of Justice

Programs, US Department of Justice. Burns, Ronald and Charles Crawford (1999) School Shootings, the

Media, and Public Fear: Ingredients

for a Moral Panic, Crime, Law and Social Change32(2): 14768. Cantor, David, Scott Crosse, Carol A. Hagen, MichaelJ. Mason, Amy J. Siler and Adrienne von Glatz (2002)

A Closer Look at Drug and Violence Prevention Efforts in American Schools: Report on the Study

on School Violenceand Prevention. Washington, DC: US Department of Education, Planning and Evaluation Service. Casella, Ronnie (2003) Security,

Schooling, and the Consumers Choiceto Segregate, The Urban Review

35(2): 12948. Civil Rights Project (2000)

Opportunities Suspended: The Devastating Consequencesof Zero Toleranceand

School Discipline Policies. Washington, DC: Civil Rights Project. Cohen, Stanley (1972) Folk Devils and MoralPanics: The Creation ofthe Modsand Rockers. London: MacGibbon & Kee. DeMitchell, Todd A.and Casey D. Cobb(2003) Policy

Responsesto Violencein Our Schools: An

Exploration of Security as a Fundamental Value, Education & LawJournal 2: 45984. Devine, John (1996)

Maximum Security: The Culture of Violencein Inner-City Schools. Chicago,IL:

University of Chicago Press. DeVoe,Jill F., Katharin Peter, Margaret Noonan,Thomas

D.Snyder and Katrina Baum (2005) Indicators

of School Crime and Safety 2005. Washington, DC: US Departments of Education and Justice. DiMaggio, Paul J. and Walter Powell (1983) The Iron Cage Revisited: Institutional

Isomorphism

and

Collective Rationality in Organizational Fields, American Sociological Review 48(2): 14760. Duncan, Garrett A.(2000) Urban

Pedagogies and the Celling of Adolescents of Color, SocialJustice

27(3): 2942. Durkheim, Emile (1973) Moral Education: A Studyin the Theory and Application of the Sociology of Education. New York: Macmillan. Feld, Barry C.(1999) Bad Kids: Raceandthe Transformation ofthe Juvenile Court. New York: Oxford.

29

298

CRIME, JUSTICE,

AND SOCIAL

Ferguson, Ann A.(2000)

CONTROL

Bad Boys: Public Schoolsin the Making of Black Masculinity. Ann Arbor,

MI:

University of Michigan Press. Fine, Michelle, April Burns, Yasser A. Payne and Maria E. Torre (2004) Civics

Lessons:The

Color and

Classof Betrayal, Teachers CollegeRecord106(11): 2193223. Foucault,

Michel(1977)

Discipline and Punish: The Birth of the Prison. New York: Pantheon Books.

Fuentes, Annette (2003) Discipline Environment

and Punish: Zero Tolerance Policies Have Created a Lockdown

in Schools, The Nation 277: 1720.

Garland, David (2001) Culture of Control: Crime and Social Orderin Contemporary Society. Chicago,IL: University of Chicago Press. Gintis, Herbert and Samuel Bowles(1988) Contradiction

and Reproduction in Educational Theory,

in

M. Cole(ed.) Bowles and Gintis Revisited: Correspondenceand Contradiction in Educational Theory, pp. 1632.

London:The

Falmer Press.

Giroux, Henry A.(2003) Racial Injustice and Disposable Youth in the Age of Zero Tolerance, Interna-tional Journal of Qualitative Studiesin Education 16(4): 55365. Gottfredson, Gary D., Denise C. Gottfredson, Ellen R. Czeh, David Cantor, Scott B. Crosse and Irene Hantman (2000)

A National Study of Delinquency Preventionin School: Final Report. Ellicott City, MD:

Gottfredson Associates. Graves, Rachel(2004) Zero for

Tolerance Raises Alarms: Parents Say Katy ISD

Overdisciplining Students

Minor Offenses, Houston Chronicle,18 April, p. A1.

Hagan,John, Paul J. Hirschfield and Carla Shedd (2002) Shooting in

at Tilden High: Causesand Conse-quences,

Mark H. Moore, Carol V. Petrie, Anthony A. Braga and Breanda L. McLaughlin (eds)

Deadly Lessons: Understanding Lethal School Violence, pp. 14374.

Washington, DC: National Research

Council. Huling, Tracy (2002) Building

a Prison Economy in Rural America, in

M. Mauerand

M. Chesney-Lind

(eds) Invisible Punishment: The Collateral Consequencesof MassImprisonment, pp. 197213.

New York:

New Press. Jacobson, Michael(2005)

Downsizing Prisons: Howto ReduceCrime and End MassIncarceration.

New

York: New York University Press. Jenness, Valerie (2004) Explaining

Criminalization:

From Demography and Status Politics to Globaliza-tion

and Modernization, Annual Reviewof Sociology 30: 14171. Johnson,

W. Wesley(1996) Transcarceration

and Social Control Policy:The 1980s and Beyond, Crime

and Delinquency 42(1): 11426. Katznelson, Ira and Margaret Weir(1985) Schoolingfor All: Class, Race,andthe Declineof the Democratic Ideal. New York: Basic Books. Kozol, Jonathan (2005) The Shameof the Nation: The Restoration of Apartheid Schoolingin America. New York: Crown. Kupchik, Aaron and Torin

Monahan (2006) The

New American School: Preparation for Post-industrial

Discipline, British Journal of Sociologyof Education 27(5): 61731. Leiber, MichaelJ., Kimberly Schwarze and Kristin Y. Mack(2002) The

Effects of Occupation and

Education on Punitive Orientations among Juvenile Justice Personnel, Journal of Criminal Justice 30(4): 30316. MacLeod,Jay (1987) Aint No Makin It: Leveled Aspirations in a Low-Income Neighborhood. Colorado: Westview Press

Chapter

Muncie,John and Gordon Hughes(2002) Modes and Resistance, in John

17 |

Preparing

for

Prison?

of Youth Governance: Political Rationalities, Criminal-ization,

Muncie, Gordon Hughesand Eugene McLaughlin (eds) YouthJustice:

Critical Readings, pp. 118. London: Sage Publications. New York Times(2003) Editorial: Fighting for Fairness at School, New York Times, 27 June, p. A26. Noguera, Pedro A.(2003) The

Trouble with Black Boys:The

Role and Influence of Environmental and

Cultural Factors on the Academic Performance of African American

Males, Urban Education 38(4):

43159. Nolan, Kathleen and Jean Anyon(2004) Learning in an Era of Deindustrialization,

to Do Time:

Globalization, and the

Willis Cultural Reproduction

Model

MassIncarceration

of People of Color, in

Nadine Dolby, Greg Dimitriadis and Paul Willis(eds) Learning to Laborin

New Times, pp. 13349.

New York: Routledge. Parenti, Christian (2000)

Lockdown America: Policeand Prisonsin the Ageof Crisis. London & New York:

Verso. Pascopella, Angela(2005) Money

MakesSecurity Go Around,

Available at http://www.districtadministration.

com/viewarticle.aspx?articleid=414

Pettit, Becky and Bruce Western(2004) Mass Imprisonment Inequality in U.S.Incarceration, Porteus, Liza (2003) Safety

District Administration 41(7): 4753.

and the Life Course: Race and Class

American Sociological Review 69(2): 15169.

Experts: Schools Are Unprepared for Terror, Fox Newson-line, 18 September.

Available at www.foxnews.com/story/0,2933,97620,00.html Public Agenda(2004) TeachingInterrupted:

Do Discipline Policiesin Todays Public Schools Fosterthe

Common Good? New York: Public Agenda. Reiman, Jeffrey New York:

H.(1979) The Rich Get Richer andthe Poor Get Prison: Ideology, Classand Criminal Justice. Wiley.

Rimer, Sara (2004) Unruly

Students Facing Arrest, Not Detention,

Santos, Fernanda (2005) Protest

New York Times, 4January, p. A1.

over Metal Detectors Gains Legs: Students

Walk Out, New York Times,

2 September, p. B1. Schwartz, Robert and Len Rieser(2001) Zero

Tolerance as Mandatory Sentencing, in

W.Ayers,

B. Dohrn and R. Ayers(eds) Zero Tolerance: Resistingthe Drivefor Punishmentin our Schools, pp. 12635.

New York:The

Simon, Jonathan (2006)

New Press.

Governingthrough Crime: Howthe Waron Crime Transformed American Democracy

and Created a Culture of Fear. New York: Oxford University Press. Skiba, Russell J., Robert S. Michael, Abra Carroll Nardo and Reece L. Peterson (2002) The Discipline: Sources of Racial and Gender Disproportionality in School Punishment,

Color of

The Urban

Review 34(4): 31742. Skiba, Russell, Ada Simmons, Lori Staudinger, Consistent

Marcus Rausch, Gayle Dow and Renae Feggins (2003)

Removal: Contributions of School Discipline to the SchoolPrison

Pipeline, paper

presented at the School to Prison Pipeline Conference, Cambridge, MA, May. Spielman, Fran and Rosalind Rossi(1997) Off-Campus

Arrest Could Boot Kids: Expulsion Policy to

Stiffen, ChicagoSun-Times, 11 March, p. 3. Staples, William G.(2000) Everyday Surveillance: Vigilance and Visibility in Postmodern Life. Lanham, Rowman & Littlefield. Toby, Jackson (1998) Getting

Serious about School Discipline,

The PublicInterest 133: 6884.

MD:

29

300

CRIME, JUSTICE,

AND SOCIAL

CONTROL

Trump, Kenneth S. and Curtis Lavarello (2001) Buyer

Beware: Whatto Look for

When You Hire a

School Security Consultant and to Arm or Notto Arm?, American School BoardJournal 188(3): 304. Wacquant, Loc (2001) Deadly

Symbiosis:

When Ghetto and Prison

MassImprisonment: Social Causesand Consequences,pp. 82120. Weis,Lois (1990)

Meetand Mesh, in D. Garland (ed.) London: Sage Publications.

WorkingClass without Work: High-SchoolStudentsin a De-industrializing Economy. New

York: Routledge. Western, Bruce and Katherine Beckett (1999) How System as a Labor Market Institution,

Unregulated Is the U.S. Labor Market?The

Penal

American Journal of Sociology104(4): 103060.

Western, Bruce, Vincent Schiraldi and Jason Zeidenberg (2003) Education &Incarceration.

Washington,

DC:Justice Policy Institute. Willis, Paul(1977) Learning to Labor: How Working Class Kids Get Working ClassJobs. Lexington,

MA:

D.C. Heath. Willis, Paul (2004) Twenty-Five

Years On: Old Books, New Times, in Nadine Dolby, Greg Dimitriadis

and Paul Willis(eds) Learning to Laborin New Times, pp. 16796. Wilson, William. J. (1996)

New York: Routledge.

When Work Disappears: The Worldof the New Urban Poor. New York: Knopf.

PAUL J. HIRSCHFIELD is AssistantProfessorin the Departmentof Sociologyandin the Pro-gram of Criminal Justice at Rutgers University, New Brunswick, NewJersey. Hisresearch centers on the causes and consequences of criminalization and youthful

in relation to school

marijuana use and minor delinquency.

of spatial hyperconcentrations

of police-initiated

African-American and Latino school children

Heis currently

misconduct, mental ill-ness, examining the impact

arrests on social attitudes and behavior among

CONCLUSION

Social Control Policies The articles presented on the criminal justice system and formal social controls focus on current issues facing policy makersand potential policy options. To understand howto evaluate the effec-tiveness ofthe strategies, programs, and laws related to social control and positive change, one must understand the policy process. A policy is an action to guide decision making by the government: The term public policy

alwaysrefersto the actions of governmentandthe intentions that determinethose actions. Making policy requires choosing among goals and alternatives, and choice always involves intention... [P]ublic policy is defined ... as anintentional course of action followed by a government institution or official for resolving anissue of public concern (Cochran et al., 2009, pp. 12).

Government

entities, including criminal justice agencies, develop policies and procedures to carry out the laws and their

mandates. Public administration textbooks often describe the policy formulation

process

as an orderly sequence of events. For example, Marion and Oliver(2010) indicate that the following steps occur: Problemidentification Agendasetting Policyformulation Policyimplementation Policy evaluation A problem needsto capture the attention of major decision makersand berecognized as asig-nificant issue.There are a number of waysthis can happen.The

problem can receive widespread

attention and concern, or there maybe atriggering event that brings the problem to the attention of policy makers(Marion

& Oliver, 2010).There are generally alternative policy options that can be

implemented andthey caninclude widespreadchange,like the Patriot Actthat createdthe Depart-ment of Homeland Security, or small/incremental

changesto existing policies. Animportant issue

is always the cost ofthe changes compared to the potential benefits received. As part of policy formulation,

one must determine how the policy will beformulated,

define

the intent, decide who will beresponsible for the next steps, and plan for implementation (Marion & Oliver, 2010). In some cases,the policy orlegislation

provides specific guidelines (such asthe

three-strikes law for sentencing violent and serious offendersin California); in other cases,legislation

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CRIME, JUSTICE,

AND SOCIAL

CONTROL

is vague and those charged with implementation

must provide more detail asto the processesand

procedures required to achieve the goal (such asthe medical marijuana statutes in several states). Policy analysis can, or should be, a key element of policy implementation.

A policy analysis is

an unbiased, balanced assessment of alternatives that defines the issue; documents current policy; identifies decision makers; presents alternative policies; analyzes alternatives in terms of pros, cons, and costs; identifies the issues in implementing

policies; and

recommends policy change based on analysis. Anumber of actors in the political and criminal justice arena havethe sole orjoint responsibility for implementing policies.The decision makersvary, based onthe issue or problem being addressed. Congresscan passlegislation to be signed by the President of the United Statesto enact laws at the federal level, such asthe Controlled Substance Act(CSA), whichregulates the importation,

manu-facture,

distribution, possession, and use of controlled substances such as marijuana, opiates, and

methamphetamines. Statelegislaturescan also passbillsto besigned bytheir governorto implement laws to define state crimes and provide sentencing guidelines, such asthe addition of hatecrimes as a designation and sentencing enhancement. Local governments, including cities and counties, can enact laws to regulate behavior with their jurisdictions. The legal and formal regulations and policies provide animportant foundation for social control in the criminal justice system but are not the only policies that affect the waythe system operates. Agency administrators can implement policies and procedures within their departments to define howlegislative mandates will be carried out. For example, police chiefs and sheriffs allocate resources based on priorities and resources available. Apolice chief mayreduce the number of officers assigned

to enforcement of victimless crimes such asgambling and prostitution if resourcesare neededto address moreserious crimes, such as homicide, rape, and robbery. Citizens also play important

roles in policy development and implementation.

In some states,

through an initiative

process, citizens can propose new legislation that is approved by a vote in a

general election.The

medical marijuana statute in California, which allows possession and use of

the drug by patients under specified circumstances,

wasenacted through the initiative

process.

Citizens andinterested parties often serve on task forces to develop solutions to a problem or review the practices ofcriminal justice agencies.In the city of San Diego,atask force composed of experts, criminal justice professionals, practitioners, and citizens evaluated options for development of a

citywide needle-exchangeprogram. Citizensalso haveinput through specialinterest groups, edi-torial comments or opinions in local implemented in

media,and through the complaint processesthat have been

mostcriminal justice agencies.

There are many waysin whichindividuals Campaign contributions Mediaarticles Lobbying/lobbyist

and groups can influence policy decisions:

Conclusion

Research/policy analysis Citizen groups

Protests Atthe end ofthe policy implementation

processis an evaluation phase. Policy makers maywant

to determine if the program or statute is effective.There are often two phases of an evaluation: ProcessTo

determine if program wasimplemented as planned

Impact or outcomeTo

determine if the program had an effect on the problem

Policy makersreview the results of evaluationresearchand can decideto terminate a program orlegislation,

modify the program, or continue the program asimplemented.

Oneexample of a program that wasterminated as a result of researchfindings ineffective

showing it to be

wasthe Scared Straight project, which provided youth with a view of the consequences

of crime by taking them to prisons to talk firsthand

to those who have beenincarcerated.

Astudy

by Joan McCordfound that not only did the program not havethe desiredimpact of reducing crime among the youth exposed to prisons, but in some casesthe program seemed to increase youths involvement in crime (Sherman et al., 1998). The

Drug Abuse Resistance Program (DARE),

which has been implemented in local schools

acrossthe country to provide drug education withthe goal of reducing drug useamongteens and young adults, has been evaluated at the local and national levels.The consensus among researchers is that the program has not achieved the goal of reducing drug use (Sherman et al., 1998), but the program continues with the support of educators and special interest groups. In recent years, a new approach to policy formulation

and implementation

by criminal justice agenciesis evidence-based programming.

that is often used

Key decision makersreview existing

programs that show promising results based on evaluations that indicate effectiveness.The thinking is that proven programs will be moresuccessful in achieving goals. However, this approach can limit innovation and newideas for addressing social problems.

References Cochran,

C. E., Mayer, L. C., Carr, T. R., & Cayer, J. N.(2009).

(9th ed.). Boston, Marion,

MA:

N. E., & Oliver,

American public policy:

Anintroduction

Wadsworth/Cengage.

M. W.(2010).

The public policy of crime and criminal

justice.

Upper Saddle

River,

NJ: Prentice-Hall. Sherman,

L.

Preventing

W., Gottfredson, crime:

D. C., MacKenzie,

What works, what doesnt,

D. L., Eck, J., Reuter, P., & Bushway, whats promising.

National Institute

S. D.(1998, July). of Justice Research

Brief. Washington, DC: U.S. Department of Justice, National Institute of Justice, Office of Justice Programs.

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