Back to the Future Series II
[In recent years, in various capacities, I've put together several studies that relate greatly to the Corrections Sentencing Reform 2.0 that we talk about here and which can still be tapped legally(!!). We'll post them over the next several weeks both on the daily posts and over in the Special Topics section on the left side of the page. The series right now focuses on a topic mentioned here but not in great detail. The links referenced are dated and primarily unavailable now, but the bulk of the material should be easily referenced with your good friend Google. We welcome your ideas and comments about this topic and want to extend the discussion to your particular needs and contributions. Thanks.--Mike]
“Knowledge is Not Power in Criminal Justice Debates; Knowledge Is Irrelevant” (1995)—Part Two
Kaminer, Wendy (1995), It's all the rage: Crime and culture. Reading, MA: Addison-Wesley Publishing Company (292 pp. ISBN: 0-201-62274-2).
Anderson, David C. (1995), Crime and the politics of hysteria. New York, NY: Times Book. (291 pp. ISBN: 0-8129-2061-9).
What is important in criminal justice debates are the stories the various sides conjure and sell to the public and, through them, to policy makers who may otherwise know better. Because crime is so intractable, fueled by so many factors easy to fit into the explanation du jour, and resistant to conclusive research, news and popular media seeking consumers and politicians seeking votes use stories to convince a fearful, confused, and angry public to pursue their agendas. "The vast majority of voters who hear these stories," Kaminer tells us, "have no way to confirm their veracity and perhaps little inclination to do so. Which side do they believe? They believe the side that seems to share their values and ideals, trusting them to tell the truth" (p. 158). With so much at stake for the storytellers in terms of votes, viewers, and readers, criminal justice practitioners may well wonder if that trust is well placed.
Not usually, according to David C. Anderson, crime reporter and former editor of Corrections magazine, in Crime & the Politics of Hysteria. Despite the need for factual and objective information to guide public debate and policy making in criminal justice, he says, the media and politicians have succumbed to what may be called, in my term, the "Hortonization" of the debate and process.
Anderson follows two tracks in his book: (1) an in-depth examination of the criminal career of Willie Horton and the crimes for which he received notoriety and (2) an analysis of how and why they played into the "politics of hysteria" of the title. These are told against the framework of what he refers to as the five elements of crimes guaranteed to draw media sensationalism and public fear, as Willie Horton did:
1. ". . . the crimes were luridly violent, involving homicide, rape, or aggravated assault that resulted in serious injury."
2. ". . . the victims were middle-class, usually white."
3. ". . . the victims were wholly innocent . . . typically attacked while going about a familiar daily routine."
4. ". . . the criminals appeared to have chosen their victims entirely at random."
5. ". . . the criminals usually had some history of involvement with the criminal justice system, suggesting that if the system had only worked better, the terrible crime might have been avoided" (pp. 5-6). Any combination of four of these elements in the crime "signified an event that invariably stirred broad outrage and often provoked a political reaction" (p. 6).
As a crime reporter, Anderson says he understood that these crimes constituted a small minority of crime in America. "Why," he asked, "give them so much more than their share of attention?" (p. 9). The answer, he concluded, was "the extent to which crime in general had eroded the social contract. . . . [T]he Willie Horton stories suggested that the government could no longer provide [the guarantee of security]" (p. 11). Therefore, despite the substance and reality of crime, public perceptions and "Hortonized" stories ruled, and stoked demands for action to demonstrate control and express public concern, exactly as Kaminer discussed.
In this context, Anderson offers a good discussion of "expressive justice," that is, "laws, policies, and practices that are designed more to vent communal outrage than to reduce crime" (p. 14). The dominant mode of thought arriving with the Puritans, expressive justice, fell back into the Enlightenment philosophy of the Founding Fathers and the Eighth Amendment. It has risen again today as the motivation behind emphasis on, for example, the death penalty and mandatory sentencing laws, despite their dubious effect on crime. Says Anderson, ". . . effectiveness in controlling crime does not appear to be the point. Fearful people take comfort in the idea of a mandatory sentence. . . . As important, demanding tough sentences and voting for them give people a way to feel as if they are doing something, a way to handle fear" (pp.18-19).
The renewed focus on expressive justice owes much to the Willie Horton episode of 1988, which added two new elements distinguishing today's expressiveness from earlier times. First, "it makes special room for crime victims, allowing them to use politics as personal therapy, a device for managing their particular anger and grief" (p.20). Second, "it makes a target of the criminal justice system, if not government in general-the authorities cannot expect to renege on the social contract and get away with it" (p. 21), words with more meaning after April 19, 1995 [the Oklahoma City bombing]. This is indeed ominous for the nation. To Anderson, ". . . the more the expressive approach dominated debate, policy, and law, the longer it would take for the United States to gain control of its crime problem. The syndrome could easily perpetuate itself..." (p. 24).
According to Anderson, the rise of expressive justice resulted from the growth of the mutually reinforcing drug and gun subcultures at a time of declining government resources to meet the subsequent increase in crime. The news media could have helped to explain the problem and the difficulties of its solution, especially without more funding, but, instead, it opted for "Hortonization." "...the daily diet of crime coverage only increased the general sense of fear and confusion" (p. 53).
As Anderson demonstrates, Willie Horton himself serves as an example of media failure and misuse by politicians and hypesters. Make no mistake-his crimes were repugnant, as discomfortingly described by Anderson. But his actual criminal profile would be familiar to any law enforcement or corrections official. He was not the special demon created by the media and political admen, someone who murdered, mutilated, and sodomized teenage boys and then was released haphazardly on furlough on an undeserving couple. His participation in the boy's murder, according to the evidence provided, was secondary. Moreover, his failure in the furlough program was due to an uncommon lapse in sponsorship selection. In fact, the Massachusetts furlough program, similar to those throughout the country, had a 99.5 percent success rate and substantially reduced recidivist crime below rates predicted without the program.
These objective facts, however, did not impress once "Hortonization" had occurred, as Kaminer would have predicted. Understanding how furloughs had a net improvement on recidivist crime "requires a mathematical calculation and a bit of psychological work-willful separation from sympathy for the victim immediately at hand in favor of the more abstract concept of public safety" (p. 10). In an age of expressive justice, this is unlikely. Rather, it is easier "for the news media or politicians to fan outrage over victimizations that occur than to stir public opinion in favor of those that are prevented, especially when the prevention, however real, appears on the surface to transgress common sense" (p.110). In fact, Anderson notes that critics of the furloughs "were openly contemptuous of people who cited statistical findings documenting that prison furloughs posed no real threat to public safety. For a time, . . . , 'statistics' became a code word for softness on crime and callousness toward its victims. . . " (p. 201).
The Willie Horton case brought together a sensationalistic newspaper (The Lawrence [MA] Eagle-Tribune) and opportunistic Republican state legislators out to damage Governor (and Democratic Presidential candidate) Michael Dukakis. Dukakis, as was shown frequently in the 1988 campaign, needed little help damaging himself. He and others in his administration at first adopted an arrogant "hunker down" approach that blows up impressively when media attention is high. By the time talk shows, Reader's Digest, and the focus groups and Lee Atwater of the Bush campaign finished with Willie, the offender had gained as large a role in American history as the man who lost largely because he could not handle Horton literally or figuratively.
As noted, Anderson laments "Hortonization" and the general direction of criminal justice in this period of expressiveness. In answer to his own question, "[i]f crime continues to drag down a society's morale and the prospects for crime control remain uncertain, why shouldn't people use the political and legal systems . . . [to] buck up morale . . . [and] gratify emotion, whether or not they achieve a more practical result?" (p. 268), he poses two responses. One emphasizes the success of various programs in actually controlling crime at much less cost than the less successful prison-building and punishment stressed by expressiveness advocates in the name of crime control. Another points to the immorality of expressiveness as it sacrifices truth to fear, "just as wartime passions nurture propaganda" (p. 270).
More fruitful policy practically and morally, he says, would focus on more and better rehabilitation and restoration of victims than currently provided. Money spent on these efforts and on alternatives to incarceration would be more cost-effective than prisons. Moreover, this redirection from expressiveness might short-circuit its appeal and put us back on a more rational track. It "would constitute a renegotiation of the social contract. The state would admit the truth it now avoids: It cannot control crime completely. And it would guarantee to make victims whole when crime occurs. The taxpaying, law-abiding citizen would have less reason to feel betrayed" (p. 276). While he cannot be sure of success, "the idea establishes the proper context for debate" (p.276).
[So, after reviewing the two books, where are we in terms of knowing what to do when these situations occur again, in your state and/or sweeping the nation again? The conclusion of the essay offers a few ideas.]