Introduction
Special thanks to Carol V. Rose and
Wilson A. Schooley for their dedicated work on this special issue of
Human Rights on tough-on-crime
legislation and its effect on society.
Introduction
Is Price No Object in Our Bid to Make Crime Never
Pay?
Deep
in the heart of America is a visceral animus against injustice, especially
when it is suffered by the powerless at the hands of the powerful. We
hate unfairness to children, old people, and dogs. We abhor the heavy
hand of authority inequitably wielded. Yet, despite our organic passion
for mercy and fair play, we find ourselves riding into twenty-first
century law enforcement on the dark horse of retribution. Like nineteenth
century Wild West sheriffs, we have returned the aim of criminal law
to retributive rather than restorative justice. The understandable rise
of victims’ rights has meant—as though the two were on opposite ends
of a teeter totter and must necessarily be inversely related—the fall
of fair protections for the accused.
If this trend was both building and disturbing
before September 11, in that tragedy’s aftermath it has only gained
further momentum and legitimacy. Human Rights Watch says abuse in the
name of anti-terrorism has become an international affliction. But the
flash point was here in the cradle of liberty where we, of all nations,
should know better.
Plainly, there are no easy solutions. Crime
must be punished. Rights—the rights of all of us—must be protected.
Ideally, there is a balance to be struck. We have moved very far, though,
from the notion of hating the offense and loving the offender. The accused
in America are often vilified by the media, the public, and the prosecution.
In a recent high-profile case in California involving an undeniably
horrific crime, two different radio station broadcasters independently
announced the arrest of the accused, "which, of course, means he
is presumed guilty." "Three strikes" laws have shut into
our prisons more men and women than they can humanely hold and shut
out rehabilitation. Thirty-eight of our fifty states kill those convicted
of certain crimes. It appears our organic national decency toward dogs
does not extend to fallible humans. In our new view, make a mistake,
don’t get a break.
We may be at a crossroads, of a sort, on
these issues. For example, as we go to press, the U.S. Supreme Court
has granted certiorari in a Ninth Circuit case holding a twenty-five-year-to-life
sentence imposed under California’s "three strikes" law violates
the Eighth Amendment’s prohibition against cruel and unusual punishment.
So, in this issue of Human Rights, we look at the costs
of making crime not pay. Authors from across the spectrum—professor
to judge to administrator to prosecutor—explore how being tough on crime
has become tough on justice.
Wilson A. Schooley
Special Editor
