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How the Right and Left Are Revising “Tough on Crime”

Bureaucratic mass incarceration is an unwelcome innovation in America.

America has 5 percent of the world’s population but one-fourth of its prisoners. Nearly one-third of Americans are under correctional facilities’ control at a yearly cost of $60 billion. Imprisonment has grown 400 percent over the past twenty years, the great majority for non-violent crimes. And two-thirds of criminals are back in jail for similar crimes three years after they are released. Our current correctional policy is a national shame and it simply does not work.

Both Edwin Meese and Eric Holder, the attorneys general for presidents as different as Ronald Reagan and Barack Obama, have criticized this status quo. So have uber-liberal E.J. Dionne Jr. and New Right founder Richard Viguerie. The American Civil Liberties Union and Right on Crime agree. Holder’s plea to limit sentencing for non-violent offenders can be questioned coming from one who is otherwise criminalizing new civil procedures and is blunt that his motivation comes primarily from the “shameful” fact that black male perpetrators receive longer sentences than whites. Likewise, while calling for bipartisan agreement, Dionne also emphasized the need for gun control and ending “stop and frisk” laws, a sure means to derail agreement. Caution is called for but the fact that both left and right have expressed doubts is significant.

Even Dionne concedes the crisis began in the 1960s when an “anything goes” leftist counterculture romanticized illegal behavior as glorious acts of self-fulfillment and independence, all beamed to the public by a sympathetic media and popular culture. A liberal Supreme Court responded with decisions expanding criminal rights, limiting confinement and the death penalty, and restricting police response. Crime exploded with murder and willful manslaughter doubling from 5.1 per 100,000 population in 1960 to 10.2 by 1980. The people responded by demanding a narrowing of rights and tougher penalties. The politicians complied.

The right became identified with “tough on crime” even though the leading voice of this frustration was President Richard Nixon who was anything but conservative in most of what he did, overseeing large increases in welfare spending, environmental regulation, racial preferences, and even wage and price controls. More principled conservatives supported Nixon’s program out of outrage that the Supreme Court had acted so arbitrarily by overriding Congress, the Executive, and the states without the least consideration of public opinion. As the right gained politically for supporting tougher policing and punishment, the more pragmatic left led by then Senator Joe Biden claimed equal toughness on crime by applying the death penalty and longer sentencing to many less violent matters. Tough-on-crime turned bipartisan.

Conservatives began having second thoughts as laws exploded to criminalize vast new areas of social life. Today there are 4,000 federal laws elaborated by 300,000 national regulations with thousands more at the state and local levels. Even lawyers do not know the law outside their own narrow field. Most of the additions were for nonviolent offenses, now representing 90 percent of federal prisoners. Violent crimes such as murder, assault, robbery, rape, and battery are widely acknowledged as the most serious, with the guilty being rightly placed where they cannot hurt society again. But imprisonment for non-violent crime is another matter—especially considering that a 2009 Associated Press study found that 60,000 inmates were sexually assaulted that year.

Modern progressive crime and punishment relies upon a bureaucratized and professional police force—even militarized as SWAT teams become routine—aggressive prosecutors, and prisons that are supposed to reform during long sentences. In fact, most police and judicial action today is not preventative but reactive, and incarceration-oriented rather than rehabilitative. America’s conservative tradition was different. The Declaration of Independence was to a great degree a rejection of professional military policing. The Constitution highlighted local militia clauses, time restrictions on military appropriations, protections of habeas corpus, and limits on national power. Even an expert local police force in the U.S. is only a bit more than 100 years old. Traditional American order was kept by a locally selected constable responsible to his community whose purpose was to deter rather than apprehend, relying primarily on communal watchfulness and amelioration rather than force or imprisonment. This constable was backed only by a neighborhood watch reinforced, if necessary, by a posse comitatus and militia of all adult citizens, supervised by a circuit-riding state judge.

After a century of increasing bureaucratization, there is now a modern reaction. Today nearly 30 percent of the Americans live in private community associations that have assumed some security functions: neighborhood policing has been revived; gated communities and neighborhood watches have grown exponentially; and wanted posters have moved to neighborhood news circulars and even private shopping bags. Debate has been revived on the punishment side, too, with proposals for restitution repaid to victims, more effective probation, fines, house arrests with electronic monitoring, weekend jail time, halfway houses, public shaming such as on neighborhood billboards, and other such punishments short of prison that many now consider more effective in reducing non-violent crime.

The shift in conservative opinion is demonstrated by the large (including your author) list of activists and leaders signing the Right on Crime statement of principles supporting alternatives to incarceration. Republican governors like Georgia’s Nathan Deal, Ohio’s John Kasich, and Pennsylvania’s Tom Corbett are leading such reform at the state level. The present system is too centralized, too bureaucratic, too nitpicking, too large, too based on artificial judicial rules, too adversarial, too bent on locking people up and, generally, too unimaginative. Conservative ideas about decentralization, experimentation, and limiting the scope of criminalized behavior can help to make our legal system more humane and more efficient in promoting order.

It would be a shame not to take advantage of the present moment when leaders left and right seem to agree the pendulum has swung much too far toward “toughness.” Even in today’s stalemated political environment, if liberals can retreat from their excesses and conservatives can come back to their historic position on crime, it just might be possible to redress the balance.



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