Skepticism and the Law
It is something that has not really occurred to me until recently, but there is much to be skeptical about in the realm of law. I have always, or at least nearly as long as I can remember, been a skeptic (and, depending on who you talk to) a contrarian at heart.
It is not as though law exists in a vacuum, though. It is something fluid and it changes society just as society changes it. Often times, our laws are propped by up by claims of necessity and social good, and it is just these types of claims that can be put under a ‘microscope’, as it were. Further complicating matters is the inherently political nature of law and, by extension, the nature of politics itself. Things that aren’t actually true are true nevertheless, at least as far as public perception is concerned. Throw a little fear and religion into the mix, sprinkle with mass media, and a generous helping of corruption and you end up with an area that is just ripe for skeptical analysis.
And few areas of the law have received as much political grandstanding as criminal law has. Ever since Reagan, the stance has been one of being “tough on crime” and, as a politician, to be anything else is to commit political hari-kari. As near as I can tell, the though on crime movement grew out of public frustation with the ineffectiveness of the rehabilitatitive focus of the ’60s and ’70s, and so the pendulum swung to the other side: punishment was the new order of the idea. The concept is pretty easy for most people to swallow – tougher punishment should act as a deterrent, both to the offender and to the society generally, and so crime rates should decrease. Politicians were eager to capitalize on (and in some cases, stoke) public fears concerning crime and criminals, and it wasn’t too long before each politician wanted to punish criminals just a little bit more than the last person who spoke. It was out of this that the United States as seen an unprecedent growth in its population of incarcerated individuals, fueled by things like mandatory minimum sentencing.
But then, of course, the question becomes this: has it worked? Well, that’s probably not exactly fair. It really depends on whom you’re asking, and how you define “worked.”
I recently read an article from the Kentucky Law Journal by Robert Lawson concerning the issue of Persistent Felony Offender statutes (think three strikes and you’re out). It is an excellent article, which can be read in its entirety here. Of course, PFO laws are one of the mechanisms that have been put into place as a result of a get tough on crime mentality. The reason why I wanted to mention the article, though, is because I wanted to show two of the figures that are contained in it:
These graphs are, as you can see, illustrations of the per capita rate of crime in the United States from 1970 until 2001 as well as the per capita rate of incarceration in the United States from 1970 until 2004. Robert G. Lawson, PFO Law Reform, A Crucial First Step Toward Sentencing Sanity in Kentucky, 97 Ky. L. J. 1, 5 (2008). As is shown, the crime rate in 2001 is approximately the same as the crime rate from 1970 whereas the rate of incarceration in 2000 is nearly five times what it was in 1970. You can also see that while the rate of incarceration has risen steadily ever since 1970 (having the sharpest increase during the late 80’s – possibly as a result of our nation’s war on drugs), the rate of crime has waxed and waned throughout the last thirty some-odd years. (And a note: my theme is cutting off the edge of the image, so if you really really want to see the whole thing – just click on it).
Now, I am loathe to draw causal conclusions from correlation – but it doesn’t even seem to me that these two aspects of our society – crime and incarceration – are particularly correlated with one another. Aside from the apparent lack of correlation, perhaps the most striking thing that can be said of this image is that while we had roughly 478 out of every 100,000 people incarcerated in 2000, we had roughly the same rate of crime as we did in 1970 (when we had just 96 out of 100,000 people incarcerated).
All of that is not to say that punishment has no purpose, and that we should open all the cell doors. There are many purposes of punishment – and deterrence is but one of them. It does seem to say, though, that a get tough on crime rhetoric is just that: rhetoric. It may win politicians votes, but it doesn’t seem to be benefiting society in a meaningful fashion insofar as crime prevention is concerned. The idea that longer sentences and tougher laws mean less crime is so well ingrained in the head of your average American voter, though, that any attempt to alter that is seen as coddling criminals (hence the third rail mentioned earlier), and no politician wants to get hit with a Willie Horton.
And so now the question becomes this: what can be done differently? I never said I had all the answers, or even some of them. It does seem to me, though, that our society’s approach to crime and crime prevention is inefficient at best, and positively harmful at worst. There are some very interesting ideas about how things can be done differently, such as the notion of restorative justice, but it seems unlikely that things are going to change anytime soon. If things do change, though, my prediction that it will be less because the data just hasn’t borne out the tough-on-crime hypothesis, and more because of simple economics: we cannot afford to lock up the number of people that we do and for the amount of time that we do – but that’s a whole ‘nother story.