All political regimes, past and present, have adopted a system of laws and administrative rules designed to combat crime and violence and preserve public order. To accomplish these ends, governments must first identify behaviors that they want to prohibit. In some restrictive, authoritative regimes, crimes are likely to encompass common acts of violence committed against other subjects, but may also include behaviors that disrupt order, impede the work of government officials, or challenge the power of the state. In liberal democracies, private behavior is generally presumed to be unfettered by government restrictions, although governments routinely criminalize behavior that harms the public good or threatens the life, liberty, or property of other citizens. In democracies, public policy is established by consent of the governed and reflects community standards of right and wrong. These standards may be influenced by religious norms, or may be grounded in philosophy, history, and tradition.
Governments must also identify processes by which individuals are judged to be guilty of a criminal offense. In some regimes, procedural due process is absent and those accused of engaging in criminal behavior are judged at will by ruling authorities. Determinations of guilt and imposition of punishments may be conducted in secret. In contrast, democratic nations afford broad due process protections in order to protect the rights of the accused and to promote trust in the system of justice. Accordingly, most democratic nations will allow the accused to receive legal assistance from a counselor or other advocate. Determinations of guilt are often done in open court, with input from jurors or other community residents.
Punishments for convicted offenders are also determined by public officials. Not all regimes will identify punishments in advance or allow offenders to appeal a ruling of guilt before punishment is imposed, but many do. In most liberal democracies, judges are guided in their determination of appropriate punishment by community lawmakers. In the United States, victims and their families are given opportunities to participate in the sentencing process.
Crimes
Crimes are considered acts against the state, which distinguishes them from private wrongs. In most democratic nations, crimes are identified by the legislature or other elected representatives. In the United States, crimes are considered moral offenses, which is reflected in the required elements of actus reus (or “forbidden act”) and mens rea (or “guilty mind”). Both components must be proven before the government can impose punishment. In other regimes, the government need only prove that the accused committed the criminal act.
In the United States, infractions also routinely exclude consideration of a “guilty mind” and focus more directly on the act itself. Accordingly, they are considered to be the least serious of offenses and are defined as technical violations of ordinances—not moral transgressions. Ordinances may be enacted by state or local governments, and examples include most traffic laws as well as local rules governing noise, waste disposal, and unlawful modifications to private property. Consequences for violating ordinances, or committing infractions, are typically limited to fees or other monetary penalties, although some governments may require individuals to engage in corrective action before clearing the infraction from the person’s record. For example, an owner of a motor vehicle may receive a citation for operating a vehicle with a broken turn signal, but before the infraction can be successfully retired, the government issuing the citation may require proof that the repair has been performed.
Misdemeanor offenses are those crimes that involve moderate harm to individuals and/or communities, and thus may be punished with fines or short periods of incarceration, often one year or less, in a local jail or county facility. In the United States, these offenses are considered to be traditional crimes, and thus require the government to prove that the offender voluntarily violated the law; both a guilty mind (mens rea) and proof of the illegal act (actus reus) are required. Misdemeanors include most public order crimes, such as graffiti and vandalism of property, trespassing, prostitution, public intoxication, and driving under the influence of alcohol or drugs, in addition to petty thefts, minor assaults, and unlawful possession of drugs or weapons. Often, misdemeanors reflect community standards, and thus they may change to accommodate shifts in public opinion and cultural norms. In some communities, public policy permits possession of a small amount of marijuana, but elsewhere it may continue to be prohibited.
Felonies are considered the most serious offenses, and are punishable in the United States by incarceration in state prison, usually for one year or more, or death. They include crimes against property, such as burglary and grand theft; crimes against persons, including aggravated assault, rape, arson, kidnapping, and murder; crimes against corporations and organizations, such as embezzlement and fraud; and crimes against the state, including espionage and treason. As with most misdemeanors, the common law elements of mens rea and actus reus are required. Although felonies typically represent behaviors that are universally condemned as immoral, the list of crimes considered serious by the public has shifted over time. For example, during the colonial age, religious offenses, such as blasphemy, idolatry, and witchcraft, were considered capital offenses, but are routinely overlooked in the 21st century. Moreover, behavior that was previously tolerated, such as domestic assault and battery, is now largely condemned. In some cases, advances in science, business, and medicine have prompted policy makers to invent new kinds of felony crimes to address novel forms of criminal behavior.
Punishment and Rehabilitation
Historically, criminal punishments were designed to bring about physical pain and public shame. Whippings, brandings, removal of extremities or limbs, simulated drownings, and public exhibitions in stocks or pillories were commonplace. Most governments also relied upon some form of execution to punish serious offenses. The American invention of the penitentiary in the early 1800s ultimately transformed the types of punishments imposed for criminal wrongdoing. Democratic governments typically impose monetary fines or terms of imprisonment on convicted offenders. For the most part, corporal and capital punishments have largely disappeared, although the United States stands alone among Western democratic nations for its continued use of the death penalty. In some areas, alternative sanctions are used to punish less serious offenders. These programs include weekend work requirements, mandatory community service, or required participation in drug or alcohol counseling or parenting programs. Advances in technology have also introduced additional punishment options, such as house arrest with electronic monitoring and satellite tracking of sex offenders.
Although the government’s response to crime is often described as “punishment,” not all governments believe that punishment is necessary or appropriate. This is because the concept of punishment is rooted in an understanding of crime as a moral transgression that is done willfully and voluntarily by a free moral agent. According to the philosophy of retribution, intentional transgression deserves a proportional punitive response. Retribution is sometimes described as a form of vengeance, but this is a mischaracterization because it is not a means by which the offender is “paid back” for the harm that he or she inflicted. Rather, retribution represents collection on a moral debt that is owed to society. The corollary principle of “just deserts” promotes equality by ensuring that punishment is based on the characteristics of the offense—not the characteristics of the offender—and it encourages moderation by requiring the punishment to be proportional to the severity of the offense.
Secular influences during the age of Enlightenment prompted statesmen to think of punishments not according to their moral value to society, but, instead, according to their utilitarian value. In his influential work On Crimes and Punishment (1764), Italian philosopher Cesare Beccaria asserted that people were rational actors who sought only to maximize their pleasure and minimize their pain. Punishments were evil in themselves, and they should only be used if they served a greater common good, such as helping curb criminal behavior. He encouraged the government to punish less severely, but more swiftly and with greater certainty, for these three elements would be more effective at deterring criminal behavior than the threat of extreme sanctions that were rarely or capriciously applied. Jeremy Bentham also argued for a utilitarian approach to crime and punishment, encouraging legislatures to mete out only enough punishment to outweigh the benefit of wrongdoing for the malefactor.
At the turn of the 20th century, advances in the natural and behavioral sciences prompted lawmakers to reconsider the root causes of crime. Scientists used new discoveries to argue that human behavior was not completely free, nor was it always rational. Instead, behavior was shaped by a variety of forces beyond individuals’ control. On the macrolevel, psychological, social, political, and economic dysfunctions were thought to increase the likelihood of crime, while at the microlevel, individual genetics, hormones, and other biochemical factors made some individuals more inclined to respond rashly or violently. Over time, scientists succeeded in convincing government officials that crime ought to be treated as a disease and that punishment ought to be replaced with education and rehabilitation. Adoption of this “medical model” converted prisons or penitentiaries into “correctional institutions,” and inmates were referred to as “patients” or “clients”.
Other public policy changes resulted in the conversion of imprisonment sentences from fixed to indeterminate terms, with only a minimum and maximum term identified. This would give judges the ability to tailor sentences to the rehabilitative needs of the individual. Offenders who needed less rehabilitation could be evaluated by the parole board and released a short time later, while offenders who needed more rehabilitation were required to stay until the correctional officials determined that they were fit enough to rejoin civil society.
Over time, the “medical model” led to several public policy problems. Judges were accused of discriminatory practices because poor, minority offenders were determined to need longer sentences to accommodate more rehabilitative treatment; and because sentences were tailored to the needs of the individual, offenders who committed the same crime often received disparate outcomes. For public policy advocates in the United States, the greatest indictment of the medical model came from evaluative research that found that rehabilitative programs were largely ineffective at curbing crime. Rehabilitation philosophy still governs correctional policy in other democratic nations, but the United States has subsequently returned to a system that is based on traditional punishment instead of therapeutic rehabilitation.
Public Policy and the Media
As in other public policy areas, the media play an important role in setting the public policy agenda for lawmakers. Members of the public typically know little about the day-to-day functioning of the criminal justice system apart from what they learn from the media. However, because media coverage is slanted toward stories that are violent and/or sensationalistic, the public is exposed to a biased view of the criminal justice system. Often, the media focus on failures of the system, reports of random violence, or on unusual crimes that are atypical for the community. They do this because such stories attract attention and media outlets are in the business to garner as many readers and viewers as they can. In turn, this focused attention leads the public to believe that such stories are representative of the state of affairs in general, and this leads to elevated public attention and concern. The result is an exaggerated perception of crime, violence, and dysfunction, which affects how voters respond politically. For example, crime rates had been steadily increasing throughout the late 1980s and early 1990s, but it wasn’t until the media focused on a number of high-profile, sensationalized crime stories that the public demanded government action. Similarly, deaths from gun violence have been steady decreasing over the past decade, but extensive media coverage of mass shootings in Arizona, Colorado, and Connecticut subsequently altered public opinion about the appropriateness of government action.
Lawmakers also have a difficult time discerning the mind of the voting public. Public opinion surveys register general concern about public safety issues, but proposed solutions are often couched in vague language. For instance, surveys about sentencing ask members of the public if criminal punishments are generally too lenient, too harsh, or just right. Typically, responses lean toward “not harsh enough.” However, more focused surveys of public opinion reveal that when given the opportunity to review details from real cases, the public registers more moderate views on punishment. Similarly, researchers have found that when presented with a full range of legislative options, voters are inclined to support reform efforts and alternative approaches to crime and justice concerns. Nevertheless, lawmakers from both political parties are reluctant to be perceived as “soft” on crime; therefore, when pressured by the media and the public to act, they often opt for more punitive responses.
Ballot Initiatives
In nearly half the states, the public has the opportunity to enact policies for themselves through the ballot initiative process. Because of the costs and efforts involved, these measures are typically proposed only after traditional lobbying fails to produce results. In some cases, lawmakers are simply too preoccupied with other matters to give a single issue the attention it needs to succeed through the legislative process. In other cases, however, lawmakers may be actively opposed to the proposed reforms. In those instances, advocates may turn to the initiative process to get their proposals enacted. In recent years, initiatives have been used to increase penalties for repeat offenders, impose harsher penalties and increase restrictions on sex offenders, and enact tougher responses to gang-related violence. Initiatives have also been used to soften the government’s response to criminal behaviors. In some states, voters have eliminated the death penalty, repealed mandatory sentencing laws, authorized judges to sentence drug addicts to treatment facilities instead of prisons, and decriminalized marijuana possession.
Policies enacted by ballot initiative do not occur in a policy vacuum. Substantive changes to the criminal law often require public policy responses. Legislatures, for example, may be required to appropriate funds for policy implementation; police and prosecutors may have to adjust their enforcement practices; and judges may be required to modify their sentencing decisions in response to voter demands. In some cases, the ancillary changes are minor and can be implemented without difficulty. In other instances, however, voter-approved changes can create ongoing difficulties for state officials. In California, voters routinely approve strict sentencing measures that result in longer prison sentences for felony offenders, but also reject tax increase proposals that lawmakers assert are necessary in order to fund new prisons. The ongoing stalemate between voters and lawmakers on tax increases resulted in a moratorium on new prison projects. This, in turn, created a prison overcrowding problem that prompted intervention from the federal courts. Elsewhere, efforts to legalize marijuana use have drawn warnings from federal lawmakers that a change in state law does not exempt residents from having to follow federal drug laws.
Limitations of Public Policy
Decades of criminological research has shown that public policy can do very little to prevent crime from occurring. Apart from altering criminal sentences, lawmakers have two primary tools at their disposal. They can use social control measures to encourage or enforce certain behaviors, such as compulsory school attendance, or they can offer financial assistance that will counteract some of the societal and economic dysfunction that some think is causally related to crime. Yet, most factors related to crime and delinquency remain beyond the reach of government control. For example, government cannot force parents to love, care for, and supervise their children, even though research has shown these practices are likely to lower the likelihood of future criminal behavior. Most governments are also unable or unwilling to compel church attendance, even though incidents of delinquency are lower among those who regularly participate in religious activities. Similarly, all governments are powerless to control biological or psychological aberrations, even though some criminologists believe that these factors are related to acts of violence. In short, public policy can only address the outward manifestations of human behavior; inward motivations remain beyond the scope of law.
Policing and Public Policy
Local police agencies are usually responsible for maintaining public order and enforcing criminal laws. In authoritarian regimes, police powers may be wielded by military forces; however, in most democratic regimes, police function less like the military and more like peacekeepers. In some nations, like Great Britain, police are not typically armed, and in most nations, police forces are governed by civilian authorities. As a result, members of the public will often lobby their elected or administrative officials for policy changes if the police behave in an inappropriate, arbitrary, capricious, or discriminatory manner.
Because the per capita crime rate is higher in the United States than it is in other liberal democracy, police forces have a complex and difficult task. They must not only enforce routine ordinances (such as traffic laws) that affect all of the population but also preserve public order, identify and solve social problems, and protect against crime and violence. These added public policy requirements have transformed police forces from informal partisan organizations to professionalized social service agencies. Urban police forces are required to serve as local government ambassadors, communicating the standards of the government to residents within neighborhoods and communities, while simultaneously meeting the needs of community residents.
To be successful, police have found that they must sometimes rely on discretionary decision making instead of formal public policy to accomplish their multifaceted objectives. One of the most successful policing strategies, dubbed “zero-tolerance” policing, encouraged police to respond strictly to public disorder in order to keep more serious crime at bay. The political scientist James Q. Wilson, who first proposed such a strategy, acknowledged that police would likely have to stray from the strict policy parameters identified for police in order to successfully enact this strategy. While the zero-tolerance strategy did prompt some complaints from people who felt that their rights had been compromised by zealous patrol officers, the dramatic reduction in crimes led many policy makers to declare the strategy a success.
The success of zero-tolerance policing does not mean that lawmakers are willing to abdicate their oversight of civilian policing. Rather, police argue that heightened responsiveness to citizen complaints has made the legislature eager to oversee and modify police behavior. This has been true in the United States, especially in the latter half of the 20th century. In the post-Civil Rights era, for example, lawmakers have been quick to implement changes to the way that police officers are hired, fired, and promoted. Some jurisdictions adopted formal affirmative action criteria to increase the racial, ethnic, and gender diversity of local police forces, while others removed obstacles that might otherwise discourage women and minorities from applying. In addition, lawmakers have required police to make changes in the way they investigate domestic and sexual assault cases involving women and children, stipulating, in some cases, mandatory arrest policies. Finally, in the wake of revelations that police were intentionally detaining racial and ethnic minorities, lawmakers required police leaders to develop and implement alternative criteria for traffic stops.
Prosecution and Public Policy
Since crimes are considered offenses against the state, many regimes depend on government agents to initiate criminal proceedings on behalf of the state. In most regimes, including those that are considered democratic, the process by which crimes are investigated and adjudicated is inquisitorial—not adversarial. That means that the official responsible for assembling evidence must do so in an unbiased manner and in a way that includes inculpatory and exculpatory evidence. The goal of the inquisitorial system is to find truth, even if it exonerates the accused. In contrast, prosecutors in the U.S. system of justice are expected to prove their case against the suspect according to the customs and traditions of the adversarial process. Nonetheless, prosecutors, as government agents, must also work to safeguard the procedural due process rights of the defendant.
In the United States, prosecutors are largely responsible for building the criminal case against the suspect. Although they typically receive help from local police, prosecutors must collect and evaluate physical evidence connected to the crime, and they must prepare for testimonial evidence from friendly and hostile witnesses. In many European regimes, prosecutors lack independent authority to dismiss charges, but in the United States, the head prosecutor retains authority to decide which cases are worthy of prosecution and which cases should be dismissed. In addition, prosecutors have the implicit, if not explicit, authority to engage in plea bargaining negotiations in order to speed up the process. In the United States, prosecutors have come to rely on plea bargaining as the primary means by which they secure convictions; in some jurisdictions, criminal trials represent only 5 to 7 percent of all prosecutions. The remaining cases are usually resolved in a negotiated plea. In a few instances, policy makers have restrained the charging discretion of prosecutors, requiring them under the color of law to prosecute certain types of crimes. However, these types of mandatory enforcement policies are infrequently used. Instead of coercive means, most jurisdictions rely on the political process to address lax prosecutions. In most U.S. jurisdictions, county prosecutors are popularly elected, so voters have a regular opportunity to support or remove prosecutors who adopt unpopular or ill-informed practices.
Adjudication and Public Policy
In democratic regimes, judges are usually responsible for ensuring the fairness of the criminal proceedings, for safeguarding the procedural due process rights of the defendant, and for sentencing offenders after they have been convicted. In the United States, judges are bound by the due process protections identified in the Constitution and by interpretations of those protections handed down by the Supreme Court. At the state level, judges had previously been able to influence the sentencing decision; however, many states have curtailed that discretion over the last several decades in order to make sentences for similar crimes more equitable. Efforts by lawmakers to limit judicial discretion have been controversial. In the United States, judicial independence is highly prized and fiercely protected. However, the sentencing disparities documented during the rehabilitation sentencing era raised concern that offenders were being treated disparately. In addition, because many state trial court judges are elected rather than appointed, lawmakers have expressed concern that judges might yield to political pressure when exercising discretion in criminal cases.
Mandatory sentencing laws have also worked to constrain judicial discretion because judges are required by these policies to impose a fixed sentence without regard to the circumstances of the individual case or the individual offender. Automatic enhancements for gun use, drug possession, and prior felony convictions, such as those that are included in “three-strikes” laws, have led some judges to argue that they have been reduced to mere bureaucrats who mechanically hand down long prison sentences. Researchers have found that in these cases, some judges find ways to depart from sentencing requirements, such as reducing a felony charge to a misdemeanor, or dismissing allegations of gun use in order to avoid imposing a mandatory enhancement. These evasive practices are rare, but they increase in frequency when the required sentence is considered to be unusually severe. Nonetheless, occasions of outright defiance remain rare. For the most part, judges faithfully uphold and apply public policies even when they personally disagree with their substance.
Bibliography:
- Frankel, Marvin E. Criminal Sentences: Law Without Order. New York: Hill and Wang, 1972.
- Gest, Ted. Crime and Politics: Big Government’s Erratic Campaign for Law and Order. New York: Oxford University Press, 2001.
- Scheingold, Stuart. The Politics of Law and Order: Street Crime and Public Policy. New York: Longman, 1984.
- Tonry, Michael H. Sentencing Matters. New York: Oxford University Press, 1996.
- Walker, Samuel. Taming the System: The Control of Discretion in Criminal Justice, 1950–1990. New York: Oxford University Press, 1993.
- Wilson, James Q. Thinking About Crime. Rev. ed. New York: Basic, 1983.
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