Crime & Punishment
Long before the thought of standing against Mr. Ramstad entered my consciousness, I posted my views on the subject of crime and punishment, including capital punishment (to which I am unalterably and without qualification opposed), on my law-related weblog, BurtLaw's Law and Everything Else at WWW.LawAndEverythingElse.Com. I invite you to read these entries, in unedited form, by clicking on the following links to the two pages of my blawg primarily devoted to these subjects: Crime & Punishment and Capital Punishment. Also, the page titled Law & Kids contains some of my expostulations on so-called "juvenile law," as well as miscellaneous mini-essays on, among other things, the subject of how our society in general treats kids.
I suppose one way of summarizing my views on "crime & punishment" is to say that I have long been out of sorts with the politicization of the subject, the resultant "get-tough" approach, the constant "upping of the ante," the creation of more and more federal crimes, the attempts to remove discretion in sentencing through the use of mandatory prison terms and mandatory-minimum terms, the almost-total abandonment of rehabilitation as a primary and direct goal, the tough-guy posturing by politicians, etc. In one of my 2002 postings on my law blog, an entry titled "Lack of Imagination," I riffed on this point, as follows:
Lack of imagination. It's a BurtLaw Rule-of-Thumb: politicians who yammer that we need to "get tough on crime" by mandating prison terms for this or that offense or offender are charlatans and/or they lack imagination -- in my view, usually both. They're charlatans, because they think voters are suckers and, accordingly, they'll say anything to get their vote. They lack imagination, because they assume the guy who commits a crime is "the other guy," not their spouse or kid or friend. Lincoln said the best way to get rid of a bad law is to apply it. In fact, the kids of politicians -- whether of the President of the U.S. or the Governor of Florida -- usually don't wind up in prison when they commit crimes. But the kids of gravel-truck drivers from Washington State do. Here's a link to a story about one such gravel-truck driver, who supported get-tough laws until his own kid got in trouble and wound up in prison. Prison for teens questioned - 'Hard time' law an over-reaction, one father now feels (Seattle Post-Intelligencer 03.25.2002).
Using crime as a way to win elections is nothing new. American political history is rich with instances of prosecutors using successful prosecutions in notorious cases to propel them to higher office. Justice Frankfurter, who was no "bleeding heart," said once (to a British audience), "There are, as you well know, periodic newspaper crime waves in the United States. Popular feeling is excited to fluctuate between being sentimental and being harsh."
One might add that there also are "periodic political crime waves," with politicians "using" a recent particularly-odious crime, often of a sexual nature, as an indirect means of endearing themselves to a justifiably-emotional public or of advancing some often-personal political and/or legislative agenda. Governor Pawlenty's hastily calling a press conference to press for the quick adoption of the death penalty following the abduction of a Minnesota woman from a shopping center parking lot in North Dakota is one of the sorrier, more blatant examples of politicians attempting to "use" crime in this way.
While using crime as a way to win elections is nothing new, it was left to Richard Nixon -- whom I admire for many of his accomplishments, including ending the military draft and re-opening relations with China -- to educate a new generation of national political leaders that talking tough on crime can win votes. But it was George H. W. Bush, in his contest with Michael Dukakis in 1988, who really taught the Democrats that they'd better talk tough, too, if they knew what was good for them. His operatives did this through the now notorious Willie Horton TV commercial, with its revolving door image, and through the ridiculing of Mr. Dukakis for his membership in the ACLU (as though a man should be ashamed for supporting the preservation of our civil liberties guaranteed by the Constitution).
Bill Clinton, the wiliest politician since Nixon, was the first to learn the lesson, showing no more compunction about signing death warrants as governor down in Arkansas than George W. Bush showed in signing them, one after another, as governor in Texas. As the conservative commentator Christopher Hitchens put it in The Nation, "The crudity and the exorbitance of the Clinton pro-death program nationwide, and the vileness of the locally applied Bush regime in Texas [he should have added, "and the Bush regime in Florida"], [have] only succeeded in awakening more widespread misgivings about the random application of the penalty, the increased likelihood of executing the innocent and the nauseating business of killing the underage and the mentally underdeveloped." Hitchens, Tinkering With the Death Machine, The Nation (07.03.2002).
We have now reached the sad state in which the candidates for President in both parties are nearly unanimous in their tough-guy posturing when it comes to crime.
But there is a price to pay for cheapness in politics, as for cheapness in life. Eventually, if only by history rather than by the voters, cheap politicians get "found out." So do cowardly ones, of which there is no starker example than Pontius Pilate himself, "washing his hands of the matter" of the judicially-sanctioned execution of Jesus Christ, deferring to the will of the crowd. Of course, we voters, hide as we might later like to do, cannot escape history or ultimate judgment in another forum for our cheapness, either.
One of the things we Minnesotans, across the political spectrum, ought to admire most about our own former Vice President, Walter Mondale, is that he wasn't afraid to tell us the truth and tell it straight. In his speech to the Democratic Convention accepting the party's nomination to run against Ronald Reagan in 1984, he said, "Let's tell the truth. Mr. Reagan will raise taxes, and so will I. He won't tell you. I just did." A big political mistake? Only if you think that politics is just a game, the only object of which is winning. But politics isn't a just a game, any more than life is.
I don't think anyone has gotten closer to what politics is, or at least ought to be, than the great psychologist and philosopher (with the heart of a poet), William James. On May 31, 1897 he gave a memorable speech at the dedication of the sculptor Saint-Gaudens' memorial to Robert Gould Shaw and the black members of his 54th regiment in the Civil War. James used the occasion, appropriately, to advance one of his favorite themes, the need for "civic courage," something James believed Shaw had shown in the midst of war when he "dropped his warm commission in the glorious Second [Regiment]" to command, as he put it, the "dubious fortunes [of the] negroes of the Fifty-fourth," the first all-African-American volunteer company in the war, dramatized in the movie Glory. Shaw and many of his men were killed in a failed attempt to capture a Confederate fort in South Carolina. Here is James' peroration on the theme of civic courage:
That lonely kind of courage (civic courage as we call it in times of peace) is the kind of valor to which the monuments of nations should most of all be reared, for the survival of the fittest has not bred it into the bone of human beings as it has bred military valor; and of five hundred of us who could storm a battery side by side with others, perhaps not one would be found ready to risk his wordly fortunes all alone in resisting an enthroned abuse. The deadliest enemies of nations are not their foreign foes; they always dwell within their borders. And from these internal enemies civilization is always in need of being saved. The nation blest above all nations is she in whom the civic genius of the people does the saving day by day, by acts without external picturesqueness; by speaking, writing, voting reasonably; by smiting corruption swiftly; by good temper between parties; by the people knowing true men when they see them, and preferring them as leaders to rabid partisans or empty quacks. Such nations have no need of wars to save them. Their accounts with righteousness are always even; and God's judgments do not have to overtake them fitfully in bloody spasms and convulsions of the race.
I find it amazing that two of my heroes, Justice Oliver Wendell Holmes, Jr., and William James, were the best of friends during their late adolescent years and early adulthood. In case you didn't know it, Holmes, whom some have called the greatest judge in the history of Anglo-American common law jurisprudence, wouldn't stand a chance, were he alive today, of being nominated by President Bush or, if he were nominated by a Democratic President, of being confirmed by the current Republican-controlled Senate. In any event, in his great 1897 speech, The Path of the Law, Justice Holmes asked, "What have we better than a blind guess to show that the criminal law in its present form does more good than harm?" And he asked, further, "whether fine and imprisonment do not fall more heavily on a criminal's...children than on himself."
Many politicians, even the kind who wear robes, are afraid to ask questions like these or suggest reasonable answers because they worry that the answers won't win them any votes, something talking tough has been proven to do. We could just blame the politicians, those "rabid partisans and empty quacks," saying that they lack the kind of civic courage of which James spoke; but we voters share the blame for being persuaded by their cheap rhetoric and by electing them in droves.
I've been a student of criminology and penology since I was in high school and I spent 28+ years working in the appellate vineyards of our criminal justice system. For my part, I believe that the Scandinavian countries, for whatever reason, are way ahead of us in the use of reason and common sense in penal policy and fair alternatives to incarceration for offenses for which incarceration makes no sense by any cost-benefit analysis.
As stated in a letter by officers of the Western Prison Project and the Prison Policy Initiative to the ABA Commission established in response to Justice Anthony Kennedy's call for a thorough re-examination of our harsh penal policies:
There is precedent for a nation taking the advice of its professional class and transforming its criminal justice policies. Finland used to have a high incarceration rate without a European peer -- except for that of the Soviet Union. Coming out of World War II and into the Cold War, that was the last society Finland wanted to resemble. Like the United States, Finnish leaders had become accustomed to high levels of incarceration. Academic exchanges with foreign criminologists put the exceptionalism of the Finnish situation on the policy agenda. Once the highest incarcerator in Western Europe, Finland today incarcerates only 50 of its citizens per 100,000 people, second lowest after Iceland.
We hope that the reexamination of our criminal system you are seeking will lead to a similar transformation. There may not be a simple answer to the question "How low should the prison population be?" But we can clearly say that Finland does quite well with one tenth the incarceration rate of our country.
Perhaps some day at least we in Minnesota will see the foolishness and, indeed, basic immorality of our harsh approach and the wisdom and practicality of the Scandinavian approach.
Copyright (c) 2004 by Burton Randall Hanson. Prepared & published by candidate on his own behalf and at his own expense. Candidate may be reached by e-mail at firstname.lastname@example.org. Candidate does not solicit or accept contributions or endorsements.