Wednesday, September 10, 2008

Comment: When "Getting Tough" Means "Getting Torpid"

A website (here) defending the modern "tough on crime" movement describes it as: "a set of policies that emphasize punishment as a primary, and often sole, response to crime. Mandatory sentencing, Three strikes, truth-in-sentencing, quality of life policing, zero tolerance, and various other proposals that result in longer and harsher penalties and the elimination of rehabilitation and other programs are all contemporary examples of 'tough on crime' policies."

Accepting the premise, here is how I see the role of clemency (mercy) in our system of justice and why, today, I see miserable failure at both the state and federal level.

First, I would argue that any ratcheting-up in the severity of punishment must - and I emphasize must - feature an accompanying ratcheting-up in the science and certainty of conviction. Assuming that the criminal process is a complex and serious matter, that the actors in the criminal justice system are human, and that, every now and then, they can make errors, then it seems to me that any attempt to force them to wield the punishment of the law more severely must also feature technical improvements - or at least procedural safeguards - in relation to the collection of evidence, the use of testimony, prosecutorial discretion, etc. The recent trend in the use of DNA evidence, for example, appears to be a logical - if not obviously fair - response to "getting tough" on crime. And yet look what a struggle has taken place to employ such evidence in court.

Raising severity without increasing certainty is not "getting tough" on crime" all. If we do not also improve the quality of the decision making of those in the criminal justice process, we are simply "getting tough" on basic notions of justice. We are pretending there have been improvements in levels of certainty (by enthusiastically imposing more harsh sentences) where such improvements do not exist and/or we have done little to see that they emerge.

Second, it seems that any call for "tough" approaches to crime, must also be accompanied by more aggressive policies and practices, which regularly ensure that - as much as possible - no one is ever being punished one second more than they should be. Indeed, any emphasis on punishment should be clothed with an awareness of both 1) the limits of punishment and, in most cases, 2) the necessity of limiting punishment. If most of the persons sitting in our state and federal prisons are supposed to be there for "life," then perhaps there would be nothing to discuss here. But that is certainly not the case. As it stands, policies which aim to "get tough" on crime should also be accompanied by policies and practices which keep a keen eye on identifying, as quickly and as exactly as possible, when the time to "get tough" has truly ended.

Yet, look around at the status of the pardon power, in the various states and at the federal level. See the posts associated with each state sitting in the right column of this blog. It is the same thing everywhere. Pardon applications are piling high. There is little or no action. People who have served their time and have long been productive members are waiting, and waiting. They are still being punished for crimes which can hardly be called "the worst of the worst" and crimes committed many, many years ago. Very often, the crimes were committed when they were young, without direction, and essentially very different people than they are now. All the while, the government is full-speed, straight ahead, "getting tough" on crime - or acting as though it is anyway.

In some sense, the American people certainly have the right to feel safe, and that their government is protecting basic rights and liberties from those who would engage in criminal conduct. But the government should also have the responsibility to actively craft (and implement) a balanced, well-rounded sense of justice, where "toughness" is tempered with greater certainty at the front of the criminal justice system and timely, well-deserved mercy at the back end of the same system. Attitudes and opinions regarding punishment and relief from punishment should be guided by more than fear (long or short-term) or the demands of publics swayed by politicians all too willing to grand-stand.

In sum, it is time that we got more "tough" on our notions of being "tough."

1 comment:

Dr. Huginkiss said...

Thanks for sharing this! I think many criminologists and practitioners who study CJ policy would agree that "get tough" laws -- or any other crime laws, for that matter -- ought to be grounded in empirical research and properly evaluated to make sure that they (a) do what they intend to do and (b) don't do anything they don't intend to do.

The example of juvenile waiver laws come immediately to mind. Despite substantial amounts of empirical research suggesting that incarcerating youth in adult facilities does not reduce recidivism, has no general deterrent effect, is often applied in racially disparate ways, and in some cases can lead to an increase in criminogenic tendencies upon release, such laws are increasingly being adopted in an effort to "crack down" on youthful, violent crime. Your point that we need to "get tough" on our "get tough" laws is especially relevant to waiver laws, as well a many others.

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