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Coming Out of the Turn: Charting a New Course in Criminal Justice

Prison CellWith gathering regularity, we are presented with evidence suggesting that the United States has finally slaked a thirst for punishment that once seemed unquenchable. Throughout the country, states are reforming their criminal justice systems, eliminating rather than adding mandatory minimum sentences, reducing prison terms, converting felonies to misdemeanors, and decriminalizing conduct that was formerly an offense. Most crime rates have been declining for years. The number of people imprisoned nationwide has dropped every year since 2010. The number of executions has fallen to the lowest level in two decades. The number of new death sentences has hit lows unseen in the history of the modern death penalty. Crime control plays little part in political rhetoric and states are beginning to take the extraordinary step of closing unused prisons

At the national level, the Attorney General has finally admitted the obvious: our criminal justice system is “in too many respects broken.” Among other reforms, he has directed federal prosecutors not to charge most low level, non-violent drug offenders with crimes that trigger draconian mandatory minimum sentences. Even in today’s hyper-partisan climate, his announcement was met with a mix of enthusiasm and indifference, but almost no opposition. And in perhaps the most stunning development, the current House of Representatives, surely among the most conservative we have seen in decades, has created a new subcommittee, under Republican leadership, dedicated to addressing the crippling problem of over-criminalization.

All in all, the signs point to the hopeful conclusion that we may finally be coming out of the punitive turn.

I am hardly the first to notice these trends. They have been going on too long and are far too numerous to have escaped attention. But those of us who have studied or practiced in the criminal justice system for many years also know that these developments are fragile. We have warned that the country could reverse course in painfully short order and quickly return to its punitive ways. Some maintain, for instance, that these trends represent nothing more than cost-cutting efforts by states that can no longer afford to lock people up. The man who stops drinking because he’s broke can be expected to start up again when he is flush, even though in his moments of abstinence he may look a great deal like the fellow who has put down the bottle for good.

Likewise, some of us have cautioned that there may be less to these changes than meets the eye. Perhaps they signal only the appearance of a new national demon. In a post-9/11 era, the garden variety criminal no longer represents the existential threat that Americans so often seem to create; that role has been taken over by the Islamic fundamentalist. Undue attention on the criminal justice system, therefore, obscures the extent to which punitive impulses have resurfaced in places like Guantanamo Bay and in practices like the NSA spying program. But even this point, valid though it may be, can be overstated. After all, the national backlash against certain post-9/11 behavior should not be minimized, and in 2013, Congress finally relaxed the ban on transferring prisoners from Guantanamo.

To get a better handle on these trends, and to make sense of whether they represent something more than passing exceptions to a stable long-term pattern, we must dig beneath the surface and examine the intellectual foundation of the punitive turn. Is there any reason to believe that the edifice on which the current punitive sentiment was built—the moral and political philosophy that supports it—is itself under attack? If so, then perhaps we can have greater confidence that recent events herald more lasting transformations in American life. But if not, then perhaps this is all much ado about very little and the naysayers are right: punitive criminal justice policies will resurface once the coffers are replenished.

***

The United States locks up a larger fraction of its population than anywhere else in the world. But this is a relatively new development. Though there has always been a punitive strain in American political culture, it has not always loomed so large in American life, and has only recently produced mass incarceration. For most of our history, we imprisoned people at more or less the same rate as the rest of the Western world. Rather than a settled feature of American life, the carceral state is a recent creation.

And when we trace the history of the punitive turn, we see that it emerged alongside and in conjunction with the post-war rise of modern conservatism. The exact relationship between these two phenomena—which caused what and why—is a matter of some debate. But most scholars agree that the great success of modern conservatism was to reconceive the relationship between the individual and the State in American life. And it was this reconceived relationship that would eventually form the intellectual basis for the current iteration of punitive culture.

Born in reaction to the imagined “collectivism” of the New Deal but coming of age in opposition to the civil rights movement, modern conservatism displaced mid-century liberalism by conceiving the individual as a fully formed moral actor, independently capable of success and solely responsible for failure. Armed with this aggressively individualistic vision, conservatives argued that efforts by the State to ameliorate systemic inequality by advancing the interests of one group over another inflicted a double injury. These programs wrongly relieved some people of the obligation to succeed on their own merits while unfairly saddling others with burdens for which they bore no personal responsibility. In making this argument, post-war conservatism aligned itself with the tenets of classical libertarianism, which in turn led to an alliance between the two political philosophies built on the protection of individual liberty against the reformist tendencies of the New Deal and Great Society.

But modern conservatism traces its history to other ideas as well. Conservative thought has long been attracted to the overlapping aspirations of moral order and social control. The former, often defended in religious terms, demands that members of society behave in a particular way. ‘Do this,’ many conservatives have said, ‘but even more importantly, do not do that.’ Do not get an abortion, do not produce or consume pornography, and do not banish God from the schoolhouse. In the modern era, this moralistic strand drew conservative Christians to the Republican fold and helped create the Religious Right, which is today the GOP’s most loyal constituency. Relatedly, conservatives also maintain that society cannot function without effective social control, which protects it from the many threats posed by internal and external foes. First it was the anarchists, then the communists, then the racketeers and labor leaders, and finally the criminal on the street; all have played the foil in the never-fulfilled conservative dream of domestic tranquility through social control.

Of course, it should be immediately obvious that the various strands of conservative thought are at war with each other. The attachment to a particular moral vision, for instance, conflicts with the ideal of individual liberty and routinely pits modern conservatives against liberals and libertarians; the dream of social control has recently been purchased at the cost of an unprecedented expansion of the size and reach of the federal government; and the instinctive reliance on the central government to achieve these goals reveals a touching, New Deal faith in the ability of the State to solve intractable social problems. These are the fundamental tensions at the heart of modern conservatism. It is this odd combination of contradictory preferences that accounts for nearly all the anomalous positions advanced by conservative loyalists, who today might demand vigorous federal government intervention in the life of the country and its citizens, but tomorrow may insist on nothing less than radical, laissez-faire individualism.

The goal of modern conservatism was to reconcile these inherently conflicting impulses. Post-war conservative intellectuals argued that, despite first appearances, the constituent pieces of modern conservatism were in fact mutually dependent: A particular moral order and effective social control were necessary preconditions to the preservation of individual liberty and could only be achieved by the aggressive intervention of an expansive central government. And beginning in the Sixties, the social problem that conservatives most often employed to advance this argument, and thereby unite its disparate strands, was crime—or, to be precise, black street crime.

“History shows us,” Barry Goldwater said when he accepted the Republican nomination in 1964, “that nothing prepares the way for tyranny more than the failure of public officials to keep the streets safe from bullies and marauders.” Though only occasionally made explicit, the “bullies and marauders” in Republican iconography were overwhelmingly black. This conception eventually blossomed into the Nixon-Reagan campaigns for “law and order,” the success of which helped to solidify modern conservatism as the dominant intellectual philosophy of the post-war era. Since at least the Clinton era, this philosophy has enjoyed wide bi-partisan support. And more than anything else, it is this unstable compound—libertarian individualism, conservative moralism, and New Deal/Great Society Statism, as applied first to the question of black street crime and later to black drug abuse—that became the intellectual basis for the punitive turn. This is the political and moral foundation that must change if the punitive turn is to reverse course.

***

Of these pillars, the moralism of modern conservatism enjoys the least support in national life. Conservatives complain that they have lost the culture wars, and they’re right. The forward march of modern secularism is irreversible. From the decreasing political and cultural significance of the Religious Right to the increasing embrace of diversity in American life (apart from the vitriolic but increasingly isolated spasms by the radical right against Muslims and Islam), Americans show little patience for moral hectoring. Perhaps the best barometer of this long-term trend is the accelerating expansion of gay rights, a movement which surfaced in the criminal law when the Supreme Court struck down Texas’ sodomy statute, reversing a position it had reached little more than a decade earlier. To put it plainly, Americans have emphatically rejected the idea that individual liberty depends on enforced adherence to a conservative moral order.

As for the second pillar in the conservative synthesis—the appetite for the social control of African Americans—recent developments are at least heartening. The declining incidence and relevance of crime in American life suggests that the imagined specter of unchecked black street crime may no longer pay the same political and popular dividends as it did in the last third of the 20th century. And the demographics suggest the trends may continue, regardless of temporary economic conditions. Crime is a young man’s game, and like other mature Western democracies, the American population is steadily aging. To be sure, all but the willfully blind accept that race continues to matter in American life. The talk of having reached a post-race nirvana is naïve. I am simply suggesting that the American obsession with race may not manifest itself in a clamor for social control through the criminal law.

But it is the third and most important pillar of modern conservatism, as well as its relationship to the other two, that demands the most careful re-examination. Conservatives launched the punitive turn with the insistence that each of us is solely responsible for her lot in life, and that the State cannot advance the interest of one without diminishing the liberty of another. This argument has become a first principle in the conservative canon. But this insight, as attractive as it may be, must be harmonized with an inescapable reality. Mountains of research have proven convincingly what we all know intuitively: Man is a social animal that only thrives in a healthy, stable community. And it must be immediately emphasized that there is no tension between these ideas. Man can be both a fully formed and responsible moral actor as well as a social being that depends on a larger community to achieve his greatest expression. The conservative insight, therefore, is not wrong so much as it is incomplete.

No less important is to decouple liberty from social control and moral order as imposed by an expansive State. Whatever else may be true, moral and social coercion by a central government threatens liberty rather than enlarges it, and no amount of rhetorical legerdemain can make it otherwise. In the interest of advancing individual liberty, therefore, each incremental addition of state-sanctioned control must always be limited to what is strictly necessary to achieve the most pressing social ends.

In practice, all of this produces a very different criminal justice system than the one we have developed over the past generation. It will end the moralizing crusades like the war on drugs, which had no appreciable effect on drug use even as it destroyed African American communities across the country. It will bring to a close the reflexive recourse to interminable incarceration that serves no legitimate purpose but wreaks havoc on communities. It will end practices like the militarization of domestic police forces, which in some parts of the country have come to treat our communities like occupied territory. It will reform offending doctrine, like the rule that gives police the power to seize whoever dares to run at the sight of a caravan of officers. And it will arrest the disastrous move toward ever-expanding social control by the State, trending as it is toward constables on every corner, watching every window, whether real or electronic.

***

Academics, social theorists, and members of the bench and bar must theorize a humane and responsible criminal justice system that embraces the conservative vision of a responsible moral actor, but embeds it within a commitment to maintaining healthy and thriving communities. At the same time, they must endeavor always to separate the attachment to liberty, which must be everywhere encouraged, from the idea of moral order and social control, which must be constantly questioned. Only when all of these dimensions are assigned equal priority will man achieve his greatest potential.

Joseph MarguliesJoseph Margulies is a Visiting Professor of Law and Government at Cornell University. He is the author of What Changed When Everything Changed: 9/11 and the Making of National Identity (Yale 2013), and is also counsel for Abu Zubaydah, for whose interrogation the torture memo was written.
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  • Ted Harvatin

    One of the most lame articles ever. Create those straw men and burn ‘em down “Professor”.

  • TLM

    The article focuses on punishment rather than liability for conduct that
    is called a crime. A quick Google search reveals articles putting the
    current number of federal crimes at 4500+. (Apparently a DOJ study in
    the 80’s was unable to come up with an exact number because, inter
    alia, the crimes are “sprinkled though 27,000 pages of Federal Code”.
    Quaere the number that have been created by 2000 + pages of Obamacare)
    The Constitution only mentions three federal crimes: counterfeiting,
    treason, and piracy; the rest (theft, murder) were left to the states.
    By contrast to the feds, the number of state crimes has not increased
    by anywhere near as much.

    A better observation might be that
    whoever is in power attempts to impose his/her own view of social, or
    political, control by criminalizing conduct, particularly at the federal
    level. See most recent indictment of the Virginia former governor, a
    reasonably blatant attempt to criminalize your enemies. Mr. McDonnell’s
    conduct is what it is, but if this governor would get “decades in
    prison” for whatever he did, then Obama would get the death penalty.

    Mr.
    Marguiles, I would agree with your initial observation that punishment
    for some of these mandatory minimum crimes seems to be trending somewhat
    down. I would also agree that they should. Beyond that, the rest of
    your observations seem to focus only on conservatives who have used the
    power of the state for social control. I would posit that this is
    error. It is the universal nature of mankind, including liberals, to
    attempt to impose their will on others. That is why Mr. Jefferson was
    so suspicious of government.

 

Access this column at http://j.st/rDL