A recent Wall Street Journal opinion poll finds that 57 percent of the public ranks crime and education as the top policy concerns. Education is a newcomer to the top ranking, reflecting growing concern over the dumbing down of America, but the durability of crime's top billing continues to amaze the intelligentsia.
Crime has stayed at or near the top of the list since the late 1960s. Why, asks the elite. Doesn't the public know about the well-publicized gains against crime during the 1990s?
Minor changes in the crime and victimization data miss the point. The reason for public disgust lies much deeper. The answer is suggested in Parade magazine, which reported a few weeks ago that 55,000 readers overwhelmingly endorsed New York state Supreme Court Judge Harold Rothwax's view that our criminal justice system is near collapse because of ill-advised Supreme Court decisions. The judge denounces the system as a "carefully crafted maze, constructed of elaborate and impenetrable barriers to the truth." Eighty-seven percent said the O.J. Simpson trial had changed their views on America's court system–for the worse. "Outraged and sickened by what we have learned of our system," many have lost hope for justice.
Polls have long confirmed that most Americans have confidence in their local police and little in the criminal justice system, virtually the opposite of what the Simpson defense team or intellectuals would have us believe. The problem traces back four or five decades ago when elite opinion decided that people should not be punished for committing criminal acts. It's to be avoided because punishment is primitive, retributive, unenlightened, and counterproductive. Instead, wrongdoers should be helped. Embraced by influential judges, this noble view transformed the justice system from a predominantly truth-driven justice process into the bewildering array of criminal privileges, evidence exclusion, reversals, and delays that make it so expensive to arrest, convict, and punish the guilty.
To wean the public and politicians from imprisonment has proven a more difficult project. Democracy and deeply held social norms keep getting in the way of the liberal agenda. Prison is the punishment of choice in America, despite a relentless campaign to educate the public against "punitiveness." If anything, a decade of experiments with alternative sanctions has deepened the public's commitment to imprisonment.
How come? In an era where the social sciences are largely divorced from morality, Dan Kahan, a University of Chicago law professor, points out that punishment is not just about practical consequences or making offenders suffer. Punishment is a language: it sends messages, it has a vocabulary, and it gets its message across when backed up by action. Moral condemnation is what punishment is really about. Punishment does more than inconvenience the offender; it condemns his acts as morally wrong and reaffirms society's values.
In a nation dedicated to freedom, taking away liberty from a criminal wrongdoer is an unambiguous reaffirmation of American values. By contrast, monetary fines, community service, and corporal punishment fall short in one way or another. Fines do not express condemnation clearly; instead, the message is that it's OK to do what you did but you must pay for the privilege. Fines trivialize the gravity of serious offenses. That's why fines are generally used as supplements to imprisonment, not as the sole punishment for felonies, and why a civil judgment against O.J. Simpson can never be appropriately described as justice.
Community service forces offenders to perform activities that normally entitle people to respect and admiration, sullying the achievements of those who voluntarily serve the community.
Public whippings are not a viable option here because they are an unacceptable reminder of America's history of slavery. They send the wrong message about the relationship between citizens and the state in America; offenders are not the natural or social inferiors of those who discipline them. Americans approved by a narrow 49 to 48 percent Singapore's caning of Michael Fay, but 60 percent opposed the use of caning in the United States.
On CBS's 60 Minutes on Sunday, December 15th, family survivors of those killed on Pan Am flight 103 over Lockerbie, Scotland, related their disgust at Libyan efforts to buy them off ($1 million per family) and allow the two accused Libyan intelligence officers to be tried under conditions of the accuseds' choosing at the Hague in the Netherlands. Their disgust was a powerful display of moral condemnation and reaffirmation of the victims' worth.
The public knows that there is something deeply flawed in our justice system. It's morality, stupid, and that's why crime and punishment will rank high on the policy agenda for a long time.