Smart on Crime
Being tough on criminals hasn’t worked, but neither has being lenient. Here’s how to prevent—and punish—crime the right way.
When I was young and irresponsible, I met with the domestic policy team of a Democratic presidential nominee. To my suggestion that the candidate run on smarter crime control—and the gross failure of mere toughness as a strategy—the head of the team said, “No, crime isn’t our issue; it’s their issue.”
A generation later, that remains more or less the Democratic office-seeker’s approach to crime: try to talk about something else. On this theory, the voters aren’t buying what the good guys are selling: less punishment and more social services in the name of “crime prevention.” Conservatives, who want to fight crime by hurting people who commit it, have a natural rhetorical advantage over liberals, whose tendency is to fight crime by helping those who have committed it or might do so. No campaign speech, on either side, is likely to mention the prospect that more strategic use of law enforcement might reduce both crime and punishment at once.
Many progressives not seeking office cling to the views that the politicians have had to abandon: that crime is mostly an imaginary problem, vastly overstated by conservatives to put racial fears in socially acceptable code; that the root of criminal activity is inequality and injustice, and that only basic social reform can control it; that the criminal-justice system functions primarily as an engine of racial and social-class oppression, as evidenced by the huge disproportion between the racial makeup of the prison population and the racial makeup of the country as a whole; and that enforcement should focus on white-collar crime. Strong opposition to the death penalty, or to disproportionate incarceration, establishes one’s progressive bona fides; proposals for reducing the homicide rate (other than via gun control) or disproportionate victimization, not so much. The progressive tendency is to fixate on the plight of those punished rather than the plight of those victimized, though of course these are often the same persons under different labels or at different moments.
The corresponding conservative tendency is to regard “victims” and “perpetrators” as distinct groups—as if most criminals hadn’t first been victims—and punishment as good, and more punishment as better, conditional only on actual guilt and some sort of due process. That leads them to dismiss concerns about having 1 percent of all adults, 4 percent of all African-American men, and 37 percent of young African-American men without high-school diplomas behind bars at any given time as without moral significance.
Thus the debate over criminal-justice policy often seems to take place between the disciples of Michel Foucault and the disciples of the Marquis de Sade, with the Foucauldians winning the academic debate even as the sadists mostly get their way in the real political world. The resulting policies manage to combine enormous cruelty with unsatisfactory crime-control results: The United States leads the developed world in both homicide and incarceration, and both of those evils land most heavily on poor African Americans.
We can and should do better. But “doing better” doesn’t mean simply focusing on social services and systemic reforms and ignoring the need for punishment. It means using punishment intelligently, which means using it as sparingly as possible but also as much as necessary. As Machiavelli warned his fellow opponents of tyranny, a reluctance to punish comes naturally with good-heartedness, but those unable to overcome that reluctance are as unfit to rule as those who have no such reluctance to begin with.
I argue that (blue-collar) crime—theft and assault, in all their varieties—is still a real and major problem; that its economic and social costs are vastly under-appreciated; that its primary victims are disadvantaged minorities and poor people; that the current criminal-justice system wrongs them by under-enforcing the law against those who victimize them (who are, of course, mostly people like them in racial and class terms); that better criminal-justice policy could give us less crime and less incarceration; and that better and more equal law enforcement ought therefore to be as central a progressive political goal as better and more equal education or health care.
After all, the Fourteenth Amendment forbids any state to deny any person equal protection of the laws. As Randall Kennedy pointed out two decades ago, current actual policy in every state routinely violates that proscription, by punishing less consistently those who victimize poor people and members of socially disadvantaged ethnic groups, most of all African Americans. That system helps sustain intolerably high rates of victimization—especially violent victimization—in poor black neighborhoods, with disastrous consequences. Progressives ought to demand action.
The Costs of Crime
That crime is a terrible problem is among the received pieties of American politics, but at first glance it isn’t obviously true, especially after the great crime decline of the past 15 years. Homicide is no longer among the 15 leading causes of death; accidents are eight times as common, suicides more than twice as common. The average burglary loss per household is about $50 per year. Such calculations seem to support the suspicion that “crime” is a largely invented issue, created for the purpose of justifying repression.
And yet those calculations also seem to miss the point. Crime isn’t just something that happens to people. Crime is something someone does to someone else. As Justice Holmes remarked, even a dog knows the difference between being stumbled over and being kicked.
That difference matters because being hurt deliberately rather than inadvertently is degrading as well as damaging: It adds insult to injury. By asserting lawless power over the victim, the perpetrator not only puts the victim in fear of the event happening again (with or without a change of victimizer) but also acts out the message that the victim is not someone whose person or property others need to respect. Impunity drives the message home; there is evidence from the social-psychology lab that people tend to think less of the victims of unpunished crimes. This helps make sense of the demand of victims and their families that someone—even, sometimes, the wrong person—be punished, to give the victims “closure.”
Nor do all the losses from criminal activity accrue to crime victims. To avoid being victimized, people lock their doors, stay at home, and avoid dangerous neighborhoods. All of those forms of crime avoidance are costly, and not only to those who engage in them. When those people and businesses that can abandon high-crime neighborhoods do so, they leave those neighborhoods poorer—in social connections, in services, and in job opportunities—and even more dangerous than they already were. It would be impossible to understand the residential patterns in any metropolitan area without reference to the crime map. A crime decline that partly stems from the depopulation of high-crime neighborhoods is nothing to be proud of, and even today’s reduced crime rates are still at least 50 percent above those of the 1950s and early 1960s. Homicide has fallen further, but that seems to stem in part from better medical care: The rate of intentional gunshot injury has not been falling.
Geographically concentrated crime also corrodes social ties at the individual and neighborhood levels; it is both a cause and an effect of distrust. And it feeds on itself in other ways as well. Since enforcement tends to be less concentrated than criminal activity, criminal behavior is safer where there is a lot of it, and both the opportunities for gainful licit activity are fewer and the gains from such activity less secure. Living in chaos makes people more present-oriented and less averse to risk, two characteristics that make crime, with its immediate and certain gains and its deferred and uncertain losses, appear more attractive. Little wonder crime is so heavily concentrated, that those concentrations are so stable over time, and that it concentrates among those otherwise worst off. And concentrated it is: African Americans face more than six times the murder risk of the rest of the population, and there are neighborhoods where homicide is the leading cause of death among males between 15 and 30.
But crime has an equally evil twin: punishment. The United States, with 5 percent of the world’s population, has 25 percent of its prisoners. We have more people behind bars than does China: not merely more per capita, but more total prisoners. Our current incarceration rate is five times our own historical norm, and five times the level of any other economically and politically advanced country. And incarceration is just about as concentrated by race as is homicide victimization. While the national incarceration rate is about 750 per 100,000 population, the rate among African Americans is more than 3,000 per 100,000. (The late William Stuntz of Harvard Law School calculated that African Americans are locked up at a higher rate than Russians were under Stalin.) Add social class to race and the problem looks even worse: An African-American male who does not finish high school is more likely than not to spend time in prison.
Mass incarceration can be self-defeating. Converting imprisonment from a shocking disgrace to a routine incident of early manhood greatly reduces the stigma that carries much of its deterrent power when it is sparingly used. Purdue sociologist Bert Useem and Rutgers economist Anne Morrison Piehl estimate that, under current conditions in the median U.S. state, adding a prisoner creates as much crime as it prevents.
Many critics of mass incarceration focus their attacks on the “war on drugs.” In fact, the 500,000 people behind bars at any one time for drug-law violations constitute only about 20 percent of those locked up. That’s still a shockingly large number of people—the United States has a higher rate of incarceration for drug-law violations alone than any Western European country has for all offenses combined—but “ending the drug war” would not put much of a dent in the mass-incarceration problem, even if we assume no additional crime due to additional drug abuse. (Alcohol, our one licit addictive intoxicant, is involved in something like half of all violent crime.)
Since victimization is overwhelmingly intraracial, doing a better job of vindicating African-American victims would be hard to do without further increasing the disproportion in incarceration rates. Is it any surprise that progressives would rather talk about root causes, prevention programs, and procedural justice?
The Costs of Crime Control
Policing takes a big share of municipal budgets. Incarceration swallows up a noticeable chunk of state budgets, and rising prison costs have helped squeeze state-university funding.
Still, the overall costs of the criminal-justice system do not loom especially large among forms of public expenditure. Counting everything—police, courts, prosecution, prisons, jails, probation, parole, and publicly paid defense counsel—and combining all levels of government, we spend about $225 billion a year on law enforcement, less than half the cost of public K-12 education, about a third of what we spend on defense, or a fifth of the public-sector contribution to health care. More than half of that $225 billion goes to police; prisons and jails combined account for about a quarter, or $55 billion a year. Thus the vast “prison-industrial complex” whose budget could be “reinvested” in massive social reforms is largely imaginary; shutting down all the prisons and jails tomorrow wouldn’t finance a 10 percent increase in education spending.
A focus on the budget leads to solving the wrong problem. It is not the dollar costs of criminal-justice operations that should most concern us. Those are modest, not merely compared to any reasonable computation of the costs of crime, but also compared to the damage the system does to those it acts on: the suffering inflicted by arrest, prosecution, conviction, and incarceration, including all of the residual disabilities that go with the label “ex-convict,” and the fear created by overaggressive policing.
In the project of reconfiguring our criminal-justice system to do more good and less harm, the fiscal crunch that has led to cuts in police and prison budgets both helps and hurts. It seems unlikely that the country will ever again have as many police or as many prisoners as it did in 2010, which ought to force the pace of innovation. But fiscal pressure can also squeeze out new ideas and lead to the kind of short-term thinking that refuses to spend a dollar now to save $5 next year.
Crime Despite Punishment
The conservative approach to crime is simple: Punish it. The economic theory of crime developed by Gary Becker, Nobel laureate of the University of Chicago, holds that people will violate the law if and only if doing so is advantageous: if the expected value of the gains from criminal activity, less the expected value of the punishment imposed, exceeds the rewards of licit economic activity. The policy prescription is to make sure crime doesn’t pay by ramping up the punishments.
It’s an elegant theory, but, as Lt. Columbo would say, there’s just one thing: Even at the nadir of incarceration-to-offense ratios in the late 1970s, blue-collar crime has never paid. For every hour spent behind bars, the average burglar back then “earned” something less than $2; the wages of sin have always been well below the legal minimum. The subsequent increase in burglary-related incarceration and decrease in burglaries have driven wages for serving burglary time to the pennies-per-hour range. The surprise for those who believe that offenders are rational economic actors is how small the decrease in burglary has been even as the terms of trade worsened six-fold. (Crack-dealing wages have also fallen sharply, albeit from a higher level.)
Why do some people keep committing crimes, to their own evident disadvantage? Because they’re present-oriented and impulsive, with deficient capacities for shaping their current behavior in light of their future goals, and with poor judgment about their actual odds of getting caught: all characteristics, as noted above, likely to be produced by growing up in high-crime neighborhoods. (Neglectful and abusive parenting also contributes, of course. So does exposure to environmental lead; more on this below.)
If you’re looking for a single “root cause” of crime, look no further: The cause is bad decision-making by offenders. And the solution must lie in some combination of improving that decision-making process and devising deterrent threats that actually deter reckless, impulsive, short-term-oriented people, which the current regime of randomized draconian responses so dramatically fails to do.
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