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Tuesday, September 04, 2012

"Smart on Crime": Retreating from Punitive Discourse Citing Financial Prudence

In the decades prior to the financial crisis, as Jonathan Simon writes in Governing Through Crime, no politician, regardless of party affiliation, could afford to sound "soft on crime." Propositions running counter to the received wisdom that more punitive is better had to be marketed as smarter, more efficient, or safer law enforcement - and, of course, these drowned in a sea of punitive propositions. But one of the key features of humonetarian discourse - the correctional discourse in the wake of the financial crisis - has been a partial liberation for politicians from the tough/soft on crime dichotomy. The usual tricks for dressing nonpunitive propositions as, well, not nonpunitive, still apply, but now there's justification to do so: Punitiveness is not financially sustainable. 

Our friends at Sentencing Law and Policy posted a link to an "astute recent Washington Post piece" reviewing the GOP's platform on crime after the RNC convention. The piece compares GOP criminal justice policies and ideals to those of yesteryear. The bottom line: Republicans are softer on crime. Here are a few snippets:

Policy experts agree that the omission [of the War on Drugs from the GOP platform] is significant. “This is less a ‘tough on crime’ document than you would have expected. And leaving out the War on Drugs [is] quite astounding,” says Mark Kleiman, a crime policy expert and professor at UCLA. “It’s a bit more of a libertarian attitude,” says Marc Levin, who runs a conservative criminal justice reform project called “Right on Crime” that’s attracted the support of Newt Gingrich and Grover Norquist.

What’s more, the 2012 platform includes new provisions that emphasize the importance of rehabilitation and re-entry programs to help ex-prisoners integrate back into society—using language that Kleiman describes as “a lot less ‘lock ‘em up and throw away the key.’” “While getting criminals off the street is essential, more attention must be paid to the process of restoring those individuals to the community,” the platform says. “Prisons should do more than punish; they should attempt to rehabilitate and institute proven prisoner reentry systems to reduce recidivism and future victimization.” The document also criticizes the “overcriminalization of behavior,” though it doesn’t elaborate on the point much further.

Both Kleiman and Levin believe it’s partly the outgrowth of a prison-reform push on the part of GOP governors whose state budgets have been saddled with high incarceration expenses. In recent months, Pennsylvania Gov. Tom Corbett, Ohio Gov. John Kasich, and Gov. Chris Christie have embraced crime reform legislation to support the kind of rehabilitation programs that the GOP platform now advocates, with some also reducing jail time for non-violent offenders. Conservative reformers like Levin are heartened by the changes. “We’ve gone a long way in four years,” he says, crediting the growing interest in more cost-effective ways to tackle crime.

This is not a coincidence. A coalition of conservative politicians, including recent signatory Jeb Bush, identifies as "right on crime". The emphasis is on being fiscally prudent, which this post, again analyzing the RNC and the resulting platform, calls "reapplying basic conservative principles" to criminal justice. Yes, there are some punitive ideals advocated by the GOP - most notably with reference to gang conspiracies - but being comfortable 

Who else feels comfortable being less belligerent on drugs? Well, Pat Robertson, for one. But if you want to get more serious, that the father of classic market economics (and inspiration of the Reagan Administration) Milton Friedman would find marijuana prosecutions a waste of resources is perhaps not surprising, but the timing of this review, and the focus on revenue, means that these times call for new approaches among conservative politicians.

I've focused on conservative politicians so far, but the same analysis applies to progressive ones. In 2007, when Simon wrote Governing Through Crime, progressive politicians could not afford to be "soft on crime." That hasn't changed. What has changed is that progressive politicians, like conservative ones, apply to financial prudence as reasoning. One interesting example is the marketing of Prop 19 ("regulate, control and tax marijuana"), which failed at the ballot, as a revenue-enhancing proposition. I spoke to folks at Tom Ammiano's office; going into the election, support for the proposition significantly rose when they marketed the proposal as revenue enhancing. There is some indication that the proposition's failure was due to its vague tenets (leaving the mechanisms of sales up to the individual counties) rather than due to the basic idea.

To sum up: I don't thin politicians have become ideologically soft on crime. But the crisis is giving them a license to be cheap on crime, in a way that appears more genuine and does not damage their credibility.


Cross-posted to California Correctional Crisis.

Posted by Hadar Aviram on September 4, 2012 at 11:09 AM | Permalink


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I think you are right to see a move from the politics of penal outrage to the politics of fiscal responsibility as a false dichotomy. In particular, Simon's earlier work co-authored with Malcolm Feeley advances a "new penology" of "actuarial justice" (to quote two article titles) that emphasizes regulatory risk management of categories of offenders separated into groups by broad criminogenic factors. Add to that David Garland's concept of responsibilization, in which private agents take up the onus of crime prevention, and apply it to the offenders themselves, and you get a strategy whereby many low-level offenders are required to undergo careful surveillance and management in programs deemed to reduce recidivism as the major measure of rehabilitation (note, not reduced offense, but abstinence from crime, produced by abstinence from alcohol and drugs and hanging around with other criminal types). A further feature of the responsibilization strategy is to require the offender to pay for her punishment, sometimes pretrial as a condition of bail or diversion (under what Justice Ginsburg terms, in Shelton v Alabama, "pretrial probation."). The programs serve the purpose Feeley and Simon identify as the goal of crime management: to supervise and even incapacitate (depending upon how time intensive they are) offenders in the community. But the programs also serve the purpose (at least in theory) of transforming the offenders into fiscally and socially responsible managers of their own well-being, rather than burdens on the welfare state or the fiscally overtaxed criminal justice system. For a flavor of my take on responsibilization through the court process, see my Drugs, Courts, and the New Penology, 20 Stanford L. & Policy Rev. 417 (2009).

Posted by: Eric J. Miller | Sep 4, 2012 12:27:23 PM

I wholeheartedly agree, Eric. Thanks for the link. And, yeah - the introduction to the book frames humonetarian discourse using two alternative (or complementary) stories: A retreat from political punitivism, or a direct corollary of managerial/actuarial justice (we're still managing people, albeit with less resources.)

Posted by: Hadar Aviram | Sep 4, 2012 12:32:35 PM

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