By Robinson, Paul H.
The Public Interest
OVER the last decade, a remarkable change has occurred in the U.S. criminal justice system. Traditionally devoted to the punishment of past crime, it has begun to focus as well on the prevention of future crime by incarceration and control of dangerous offenders. Habitual offender statutes, like "three strikes" laws, sentence repeat offenders to life imprisonment. Jurisdictional reforms lower the age at which juveniles may be tried as adults, increasing the available terms of imprisonment beyond those of juvenile court. Gang membership and recruitment are criminalized. "Megan's Law" statutes require community notification of a convicted sex offender. "Sexual predator" statutes provide for civil detention of offenders who remain dangerous at the conclusion of their criminal term. Sentencing guidelines increase the sentence of offenders who have a prior criminal history, since these offenders are seen as the most likely to commit future crimes.
The evolution from punishment to prevention has not been accompanied by a corresponding change in how the criminal justice system advertises itself. It still presents itself as a system of criminal "justice" that imposes "punishment." But it is impossible to punish dangerousness within the meaning of those terms. To "punish" is "to cause a person to undergo pain, loss, or suffering for a crime or wrongdoing." Punishment can only exist in relation to a past harm or evil. "Dangerous" means "likely to cause injury, pain, etc."--that is, a threat of future harm. One can "restrain" or "detain" or "incapacitate" a dangerous person; but one cannot logically "punish" dangerousness. Yet our current criminal justice system increasingly blurs the difference between punishment and prevention, as if one could punish dangerousness. Why the shift to preventive detention? And why the attempt to keep the old "criminal justice" as window dressing?
The continuing crime problem
Every society must have a right to defend itself, and our society has good reason to feel it needs protection. Even with the most recent declines, the violent crime rate remains more than three times higher than during the decade following World War II. Today's aggravated assault rate is nearly four times what it was then. News reports commonly celebrate the current drop in crime rates to the levels of the late 1970s, failing to note that by then the long road of unbroken annual crime increases had already tripled the rates of the 1950s. Given the erupting epidemic of juvenile crime, the unknown effect of the coming wave of crack babies, and a host of other predictable or unpredictable changes, the decreases may not continue. But even if they did, the declining crime rate of the last eight years would have to continue unbroken for another three decades before we returned to the crime levels the Baby Boomers enjoyed as children.
And even if crime rates continued to drop every year for the next three decades, people would still have reason to be dissatisfied. As a result of the past three-plus decades of crime increases, people have dramatically changed how they live. We no longer let our children walk home from school alone. We dead-bolt our doors, put "the Club" on our cars, and live in security-staffed apartments and "gated" communities. Current crime rates are as high as they are despite these precautions, and would be even higher without them. A return to the patterns of living we enjoyed when we were children would mean not only reducing crime to 1950s rates but recapturing the freedom and sense of security we had then. The apparent impossibility of that only highlights how much we have lost to crime since the fifties.
From this perspective, it is understandable that Americans should demand greater protection and that legislators should seek new ways to provide it. Yet the trend of the last decade--of shifting the criminal justice system toward the detention of dangerous offenders--is a move in the wrong direction. …