Crime and Punishment in American History - Lawrence M. Friedman [291]
Criminal Justice and Crime
If the sources of crime lie deep in the wellsprings of culture, then they do not lie within the criminal justice system itself. The public, furious and bewildered about violent crime, thrashes about, looking for scapegoats; and one easy scapegoat is the criminal justice system. The media reflect this view, or foster it, perhaps. A study of crime reporting in the 1970s, which analyzed crime stories in the Chicago Tribune, found that more than one-third of these stories “indicated that the criminal justice system encourages crime by dealing improperly with criminals” and suffered from the vice of “excessive leniency.” A panel of people living in the Midwest agreed. They rated courts and the correctional system poorly (they liked the police); many also complained about laxity in sentencing and parole, and about “legal technicalities”: “Society gets no protection at all from the courts. All the marbles are on the criminal’s side.”21
The criminal justice system, to be sure, deserves a great deal of criticism. Hardly anyone has a good word to say for it. It is corrupt, torpid, inefficient, underfinanced, and often inhumane. The big-city criminal court buildings are tawdry; they are the sewers of the social order, and they stink accordingly. The very air in the corridors smells of cynicism and hopelessness. But this is atmosphere: Does the system actually work? Apparently not to anybody’s satisfaction. The system sins in all directions. Sometimes it does let “criminals” slip through holes in the net. Yet often it can be vicious, discriminatory, and brutal. For the public, the real question is: Does it have an impact on the actual crime rate? The answer is far from clear. Many experts insist that its impact, in reality, is slight.22
How can this be? To the layman, the opposite seems completely obvious: the power, or potential power, of a strong, tough system. Nobody really wants to rot in jail, nobody wants to go to the gas chamber. Stiffen the backbone of the system, make it more certain that criminals pay for their crimes, and pay hard; surely crime will dwindle as a consequence. Deterrence—that is the key. Moreover, a burglar in jail can hardly break into your house. This effect is called “incapacitation.” It, too, seems like plain common sense. If the crooks are all behind bars, they cannot rape and loot and pillage. The death penalty, of course, is the ultimate incapacitator.
Never mind, then (so the argument goes), soft-headed worry about causes of crime; forget poverty, unemployment, racism, and slums; forget personality and culture. Use the steel rod of criminal justice to stamp out crime, or to reduce it to an acceptable level. Get rid of sentimentality ; take the rusty sword down from the wall; let deterrence and incapacitation do their job.23
Is anything wrong with the theory of deterrence and incapacitation? Nothing, really—as far as theory goes. But in the streets, station houses, courts, and jails, and in society at large, where theory meets practice, huge gaps appear. To put it bluntly: the criminal justice system cannot deliver a strong enough wallop of deterrence, beyond the way it is now, to justify a policy of toughening up. Hans Zeisel’s study of New York City in the 1970s makes the point brutally clear: of every 1,000 felonies committed, only 540 are reported to the police; these turn into