Crime, Punishment,
and Perception
By Joseph Kennedy
Behind
the revolutionary increase in the severity of criminal punishment in
our society during the last few decades lies a simple but neglected
pattern: abstract categories of crime and criminals are conceived of
in the most serious and extreme possible terms. The terms "drug
dealer," "child molester," and even "violent crime,"
evoke images of offender and offense that are far more serious than
the average offender or offense. This dynamic shapes in a fundamental
way how we look at the roles of victims, judges, and law enforcement.
Simply put, we think of crime and criminals in monstrous terms, and
we have created a criminal justice system designed for punishing monsters
even though we live in a society where such monsters are very much the
exception to the rule.
Our society has been engaged in what I
would call deep scapegoating through criminal punishment. A scapegoat
is generally understood to be one who is made to bear the blame of others,
but I define deep scapegoating as the identification of some
person, group, or thing on which one projects blame for conditions that
clearly have no identifiable cause. In our case, crime and criminals,
in general, have come to serve as deep scapegoats for anxieties about
the solidarity of our society, anxieties that are rooted in the enormous
economic, social, and ideological changes of the last three decades.
Like an alcoholic who lives from drink
to drink, our society has gone from one moral panic about crime to another
during the last few decades. Many of the public’s major crime obsessions
of the 1980s and 1990s have proven to be gross distortions of reality.
Reported epidemics of child kidnapping, ritual satanic abuse, murders
by serial killers, juvenile violence, and crack cocaine addiction have
turned out to be more fiction than fact. In each case, a monstrous type
of offender (or in the case of crack cocaine a monstrous type of drug)
was imagined to be responsible for widespread crime. Offenders were
imagined as "monstrous" in the sense that they were readily
seen as both incredibly powerful and absolutely remorseless. The juvenile
"superpredators" of the 1990s were imagined to kill whole
families on a whim; the satanic ritual abuse rings of the 1980s were
imagined to have infiltrated all levels of government. As a result,
hyperpunitive strategies were adopted for dealing with crime, judges
were stripped of discretion to mitigate punishment, and the interests
of the offender became submerged in a discourse that focused almost
exclusively on the suffering of crime victims.
Each panic was an exercise in deep scapegoating.
In each case, the crime problem was constructed in a way that tapped
into underlying anxieties about intractable social problems. "Monster
drugs" such as crack cocaine that were seen as capable of instantly
addicting well-raised middle-class children served as a focal point
for fears that youth were being transformed by a variety of cultural
forces beyond the control of their parents. Anxieties about the growing
anonymity of an ever more transient society were projected onto stories
of random violence by strangers. Frustrations about the quality of daycare
and the increasing toll on parenting time taken by longer workweeks
were funneled into obsessive concerns about child kidnapping and ritual
sexual abuse.
This use of monstrous offenders to achieve
deep scapegoating shapes how we think and talk about criminal justice
on a very fundamental level. Within the court system, the monstrous
offender has engendered two complementary, mythical figures in the public
imagination. The first is the softhearted judge. The presence
of monsters in society demanded a second scapegoat to explain why such
obvious dangers had not been detected and captured. The softhearted
judge, a mythical figure born sometime during the Warren Court era,
plays this role. Monsters were loose amongst us because judges—blinded
by arguments about moral relativism and socioeconomic inequality—failed
to recognize the obvious evil of the offenders before them. In this
story, social anxieties about normlessness and moral relativism are
first projected onto the softhearted judge and then vanquished through
the use of determinate sentencing practices that strip judges of discretion.
The neglected victim is the other major
figure in this mythic story. In the standard account, victims are neglected
in criminal justice because of an overly solicitous concern for the
interests of the defendant. While this account explains much about society’s
new solicitude for crime victims, a deeper and more powerful theme runs
through the almost sacred status of crime victims in public policy debates
about punishment. The extraordinary influence of crime victim narratives
in contemporary policy debates represents a rejection of a form of instrumental
reasoning that trades off one form of human welfare against another.
Telling Willie Horton’s victims that the furlough program that released
him was 99 percent successful, for example, was not politically palatable
because trading off one rape and robbery against ninety-nine trouble-free
releases of life prisoners smacks too much of the same sort of mechanical
reasoning that increasingly dominates public debates about issues such
as health care, public safety, and fiscal policy generally. While instrumentalist
reasoning is inescapable in contexts that are more transparently economic
in nature, the exaltation of victim narratives in crime policy debates
has become a relatively easy way to vent social anger against this inescapable
feature of modern social life. The crime victim’s story comes to be
seen as sacred in order to affirm the irreducible value of innocent
human life.
The monstrous offender, the softhearted
judge, and the neglected victim—this troika of unrepresentative figures
has dominated and distorted the way we think and talk about crime in
this society over the last few decades. We have set sentences with the
most serious offender in mind, but those sentences are applied to offenders
much less culpable and dangerous as well. We protect all possible future
victims of crime by locking up many more people than we need to and
for far longer than we should. Recently, however, some signs of hope
have emerged. Increasing public concern about claims of innocence by
capital defendants, the growing popularity of drug courts, and emerging
doubts about the wisdom of draconian measures such as "three strikes"
laws all suggest that public attitudes about crime and criminal justice
may be changing.
Nietsche once said that when you stare
into the abyss, the abyss stares into you. In staring into the abyss
of crime and the suffering it causes, society has seen a reflection
of itself distorted by the rippling effects of its own anxieties. This
abysmal vision has reached deep into our collective psyche and has driven
us to punish too harshly. Perhaps it is time to begin edging our way
back from an abyss of our own imagination.
Joseph Kennedy is an assistant professor
at the University of North Carolina School of Law and is writing a book
to be published by Oxford Press on the topic of this article. This article
is based on Monstrous Offenders and the Search for Solidarity Through
Modern Punishment, 51 Hastings L.J. 829 (2000).
