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date: 18 November 2017

Crime and Criminal Justice

Abstract and Keywords

This article provides an overview of the American criminal justice system. Section I discusses patterns of crime and victimization rates and trends since the 1960s and 1970s. The most noteworthy trend is that crime has been declining—for most offenses substantially—since 1991. Section II describes the organization of the justice system. Section III discusses punishment patterns and trends. The most noteworthy are the extraordinary increase in imprisonment since 1973 and the overrepresentation of black people among prisoners. Section IV looks back on the earlier sections and tries to tie them together.

Keywords: American criminal justice system, crime rates, crime trends, punishment, imprisonment

Criminal justice systems in developed Western countries are much alike in form, structure, and function. They encompass written criminal codes; professional police, prosecution, and judicial systems; and a variety of pretrial, community, and custodial corrections programs and institutions. Details vary. In most countries, judges and prosecutors are nonpartisan civil servants; in the United States and Switzerland, many prosecutors and judges are elected or appointed by politicians. Prosecutors in some countries are governed by the “equality principle,” in others by the “expediency principle.” In equality principle systems, prosecutors in theory do not exercise discretion and prosecute all cases in which they believe crimes can be proven. In expediency principle systems, prosecutors may choose whether to prosecute a case on the basis of a range of practical and policy considerations. English-speaking common-law countries operate “adversarial” systems in which lawyers for the state and the defendant present evidence and try to persuade the judge how to interpret and apply the law. Judges—and sometimes juries—in theory are blank slates and consider only the evidence presented and are mostly passive receivers of information. Continental European civil-law countries operate “inquisitorial” systems in which judges dominate the fact-finding and trial processes, and lawyers play less active roles. Nonetheless, at day’s end, in fundamental ways all systems are similar: defendants must be proven guilty beyond a reasonable doubt, and when they are, judges must determine an appropriate sentence choosing from a range of options that is much the same everywhere.

(p. 4) Juvenile systems vary more widely. Some countries including the United States, Canada, and England and Wales operate juvenile courts that are in effect criminal courts for young offenders, and many young offenders are transferred to criminal courts and sentenced as if they were adults. Some countries, most notably in Sweden and Finland and to a large extent in Belgium, do not have special courts for juveniles, and set the age of criminal responsibility at fifteen (in Belgium except for homicide, eighteen). This means that criminal or juvenile courts have no role in responding to serious wrongdoing by young offenders; social welfare, educational, and mental health agencies must deal with them. Germany has special youth courts for young offenders up to age eighteen, young offenders may not be transferred to adult courts, and most eighteen- to twenty-year-olds are handled as if they were younger than eighteen. In New Zealand, almost every young offender must be dealt with by a restorative justice-style conference either to determine the punishment or to recommend the punishment to the judge. In Scotland, “children’s hearings” operate instead of juvenile courts and are by law directed not to punish wrongdoing but to look for resolutions that will promote the child’s welfare.

Although the broad outlines of criminal justice systems are much the same, there are important differences in detail. This handbook deals mostly with the American criminal justice system. It is important, however, to remember that American approaches, policies, and institutions are not the only, or often the best, ways to address particular issues or problems.

In three respects the American system is unique. The first is its acute politicization. Since the mid-1960s crime and punishment have often been treated as major ideological and partisan issues in American elections (Beckett 1997). Candidates have regularly run for office accusing their opponents of being “soft on crime” and promising to adopt harsher policies or to apply existing policies in harsher ways. Candidates for election as county prosecutors have been especially prone to do this, but some candidates for judgeships have done it too. This stands in stark contrast to other developed countries. Nowhere else but in Switzerland are judges or prosecutors elected—they are usually career civil servants—and in Switzerland they act as if they were nonpartisan civil servants. And in no other country but England and Wales did crime and punishment become major political issues on a continuing basis in elections for legislatures and executive branch positions such as president, governor, or mayor (Tonry 2004a, 2004b). A major consequence of these differences is that American judges and prosecutors often take public opinion, or their personal re-election prospects and political self-interest, into account in setting policies or in making decisions about the handling of particular cases. In other countries, doing either of those things would be seen as unethical and inconsistent with judicial system officials’ obligation to consider each case impartially, strictly on its own merits, and not to be influenced by extraneous considerations.

The second major difference, a consequence of the first, is that compared with other developed countries American legislatures have enacted laws of unmatched (p. 5) severity, or that are unprecedentedly insensitive to the interests of alleged and actual offenders. One notable example of notoriously severe laws is California’s three-strikes-and-you’re-out law, which requires a minimum prison sentence ranging from twenty-five years to life following conviction for the third time of a felony—no matter how minor (Zimring, Hawkins, and Kamin 2001). Twenty-five other states have three-strikes laws. No other Western country has anything comparable. Another example are life-without-possibility-of-parole laws (LWOPs)—most states have them—which mean what they literally say and have been applied to offenders as young as twelve. A few other countries have such laws, usually very narrowly defined, and affecting a handful of prisoners. In 2008, 41,000 people were serving LWOPs, 7,000 of them for offenses committed by people who were minors at the time (Nellis and King 2009). A third example is the proliferation since 1970 of mandatory minimum sentence laws, which require imposition of designated minimum prison sentences, sometimes of a few years’ duration but often measured in decades. Only a few other countries have such laws, and the sentences they mandate are much shorter than in the United States (Tonry 2009).

The most notable laws insensitive to offenders’ interests involve voting, other disabilities of current and former prisoners, and sex offenders. The United States is one of a handful of countries that forbid current and many former prisoners to vote; forty-eight of the fifty American states do not allow prisoners to vote, and many deny the vote to all or most former prisoners and to people on parole (Manza and Uggen 2006). Most other countries—England and Wales is a major exception—set up polling booths within prisons and allow all former prisoners to vote. While in prison, American inmates are denied Social Security benefits to which they would otherwise be entitled. They also are denied access to federal social welfare programs—conspicuously to federal student loan and grant programs that might enable them to obtain job skills or college educations, which would make going straight after release more likely. After release, many states make ex-prisoners ineligible to practice many professions and trades, including such improbable ones as being a hairdresser or a plumber. Throughout the United States “Megan’s Laws” require convicted sex offenders to register with the police and make knowledge of where they live publicly available. Many forbid prisoners to live in particular places. This often has the effect in some cases of making it impossible for them to live anywhere in entire towns and cities (Wright 2009). “Dangerous offender” laws in some states allow states to continue to imprison sex offenders and some violent offenders after their prison terms have expired. No other country has anything like Megan’s Laws’ registration and notification requirements, and only a few—again England and Wales is the major exception—allow confinement of dangerous offenders after their prison terms have been completed.

The third major difference is that American punishments are far harsher than those in other Western countries. No other country retains capital punishment or regularly uses LWOPs or lengthy mandatory minimum sentence laws. As a result, (p. 6) the U.S. imprisonment rate of nearly 800 per 100,000 residents dwarfs imprisonment rates elsewhere. Rates in Scandinavia vary between 60 and 75 per 100,000 residents, rates in most Western European countries (e.g., Belgium, Germany, France, Italy, the Netherlands) are around 100, and rates in other English-speaking countries range between 100 and 150 (International Centre for Prison Studies 2010).

When all those things are put together, it can be seen that the American criminal justice system is structurally similar to those of other Western countries, but the punishments it imposes are often vastly harsher. A sizable literature has tried to explain why (e.g., Garland 2001; Tonry 2004b; Simon 2007). Higher crime rates and harsher public attitudes are not the answer; U.S. crime rates other than for murder are no higher than in other Western countries and public attitudes are not harsher (Roberts et al. 2002). The most persuasive answers focus on the politicization of criminal justice policy, the influence of evangelical Protestant moral beliefs, and the history of American race relations (nearly half the people in prison and on death row are black, and nearly a quarter are Hispanic) (Tonry 2011).

This chapter provides an overview of the American criminal justice system, though not in detail. Separate chapters in this handbook do that. Section I discusses patterns of crime and victimization rates and trends since the 1960s and 1970s. The most noteworthy trend is that crime has been declining—for most offenses substantially—since 1991. Section II describes the organization of the justice system. Section III discusses punishment patterns and trends. The most noteworthy are the extraordinary increase in imprisonment since 1973 and the overrepresentation of black people among prisoners. Section IV looks back on the earlier sections and tries to tie them together.

I. Crime Rates and Trends

In 1992, the year after American crime rates peaked and began a steep and continuing decline that continued at least through 2010, 89 percent of Americans believed crime rates were rising and 3 percent believed they were falling. In 2009, 74 percent still believed crime rates were rising and only 15 percent believed they were falling. In 2000 and 2001, roughly the same percentages of people—in the 40 percent range—believed crime was rising as believed it was falling, but the customary imbalance soon reappeared (Sourcebook of Criminal Justice Statistics Online, table 2.33.2009).

Why ordinary people so misperceive what is happening is not a mystery. Although major newspapers run stories at least four times a year—when FBI quarterly reports on crime rates are released—reporting the latest declines, television and films continue to trade in fictional crime stories, and mass media continue (p. 7) to run stories on the latest horrifying crime. Ordinary citizens do not read or pay much attention to FBI data or know much about the workings of police or courts, so they generalize from what they do know.

Nonetheless, there is no reasonable doubt that crime rates have long been falling and have fallen a lot (Goldberger and Rosenfeld 2008). This is shown by police data on reported crimes, by U.S. Bureau of the Census data on crimes reported to interviewers by victims, and by medical records on admissions to emergency rooms of hospitals. The same thing is happening in all the major English-speaking countries and in most or all Western European countries—as shown by their police, victimization, and medical data systems.

This section briefly discusses American police and victimization data, reports findings from the International Crime Survey, an international survey carried out in most developed (and many less-developed) countries, and discusses the reasons that have been offered to explain the near ubiquitous declines.

 Crime and Criminal Justice

Figure 1.1. Violent Crime Rates per 100,000 Resident Population, 1960–2008

Murder rates per 100,000 have been multiplied by ten. Incidents of rape per 100,000 have been multiplied by two.

Source: Sourcebook of Criminal Justice Statistics, table 3.106 (Bureau of Justice Statistics, 2008, http://albany.edu/sourcebook/csv/t31062008.csv).

 Crime and Criminal Justice

Figure 1.2. Property Crime Rates per 100,000 Resident Population, 1960–2008

Burglary and larceny-theft rates per 100,000 have been divided by two.

Source: Sourcebook of Criminal Justice Statistics, table 3.106 (Bureau of Justice Statistics, 2008, http://albany.edu/sourcebook/csv/t31062008.csv).

Figure 1.1 shows rates per 100,000 U.S. residents for murder, rape, robbery, and aggravated assault for the period 1960–2008. The data come from the Federal Bureau of Investigation’s Uniform Crime Reports. Figure 1.2 shows similar data for the same period for burglary, theft, and motor vehicle theft.1 For all seven crimes, there were rapid and steep increases in crime rates through the early 1980s, declines through 1985 or 1986, increases through 1991–92, and substantial declines since. Some of the early increases are attributable to increased professionalization of police records-keeping, increased availability of computerized data systems, and increased reporting of crimes to the police by citizens. For rape and aggravated assault, for example, reduced tolerance of sexual offending and domestic violence caused substantial increases in citizen reports during the 1970s and 1980s. Some crime rates have been affected by improved crime prevention technologies (e.g., ignition locks for motor vehicles since the early 1980s) and insurance company requirements that thefts be reported to the police as a condition of insurance policy claims.

 Crime and Criminal Justice

Figure 1.3. Violent Offenses, Victimization Rates per 1000 Persons Aged 12 and Over, 1993–2008

Source: Sourcebook of Criminal Justice Statistics (Bureau of Justice Statistics, various years).

 Crime and Criminal Justice

Figure 1.4. Property Offenses, Victimization Rates per 1000 Persons Aged 12 and Over, 1993–2008

Source: Sourcebook of Criminal Justice Statistics (Bureau of Justice Statistics, various years).

Nonetheless, it is clear that crime rates increased greatly through 1981 and again in the late 1980s, but have fallen substantially since. This is best shown by the changes in the murder rate. Dead bodies provide incontrovertible evidence, which is collected by both police and health authorities. The police and public health data are independently confirmed by data from the National Crime Victimization Survey (NCVS) shown in figures 1.3 (violent offenses) and 1.4 (property offenses). The NCVS is a national survey, which has been conducted since 1973 by the U.S. Bureau of the Census for the Bureau of Justice Statistics of the U.S. Department of Justice. Members of 40,000–60,000 U.S. households are interviewed every six months for three years about crime victimization. The victimization patterns documented before 1993 are somewhat different from those shown by police data in the 1970s and 1980s; they generally showed declines in victimization in the 1970s, which continued. Figures 1.3 and 1.4 cover the period (p. 8) 1993–2008. Major modifications of the NCVS in 1992 make the data from earlier periods not fully comparable to the data beginning in 1993. The victimization data strongly confirm the pattern of steep declines in crime rates shown for official police data in figures 1.1 and 1.2.

The difference in patterns shown by police and victimization data before 1993 occurs partly because the victim surveys identify many more criminal events than are reported to the police. The NCVS asks whether crimes are reported, and for many offenses fewer than half are, usually because the crime was not very serious, because it was not completed, because it was committed by a family member or a friend, or because the victim believed the police would or could do nothing about it. However, the rates at which victims said they reported crimes to the police increased during the 1970s and 1980s, which is one reason why police data showed increases at a time when victimization rates declined. It is also possible, and not implausible, that crime rates overall were falling in the 1970s and late 1980s even though rates for the most serious crimes reported to the police (and we know that overall more were reported) were increasing. In the late 1980s, for example, many (p. 9) observers believe that the combination of rapid expansion of the crack cocaine market, easier access to especially lethal firearms, and the entry of gangs into drug selling caused a major increase in violent crime, which fell when drug markets stabilized (Blumstein 1993).

Since the late 1980s, and particularly since the early 1990s when major changes were made to the NCVS to improve its accuracy, NCVS data have tracked the FBI’s police data. They confirm that crimes rates have long been falling, and have fallen substantially.

 Crime and Criminal Justice

Figure 1.5. Imprisonment Rates per 100,000 Resident Population, United States, 1960–2008

Sources: Sourcebook of Criminal Justice Statistics (Bureau of Justice Statistics [BJS], various years); Jail Inmates (BJS, various years); Prison and Jail Inmates at Midyear (BJS, various years); Prisoners in [Various years] This (BJS, various years); Sourcebook of Criminal Justice Statistics Online, table 6.29 (BJS,2008, http//albany.edu/sourcebook/csv/t31062008.csv).

 Crime and Criminal Justice

Figure 1.6. Percentages of State and Federal Prisoners, by Race, 1950–2008

Sources: for 1950—80: Cahalan (1986); for 1980—2008: Prisoners (BJS, various years).

Until the late 1990s, race was broken down by BJS into three categories: white, black, and other. In recent years, has added Hispanic as a separate racial/ethnic category which includes black and white people, thereby reducing “black” percentages. To various statistics, thus complicating linear representations of the data. We have adopted the approach taken in Tonry (2005). To allow continuity of presentation, “Hispanic” prisoners have been disaggregated by race for each year since 1999. In 1990 and 1995, BJS reported data with and without a separate Hispanic category. Approximately one-fourth of Hispanics were counted as black in those years. The category of “two or more races” has been redistributed evenly between blacks and whites.

The same patterns exist in many countries. Canadian crime patterns and trends have closely followed U.S. trends and patterns since 1960 (Webster and Doob 2007, fig. 1.4). So have those of England and Wales (Newburn 2007, figs. 1.5 and 1.6) and all of the Scandinavian countries (Lappi-Seppälä 2007, fig. 1.6), among many others (Eisner 2008).

One confirmation of the trend toward declining crime rates in most countries can be seen in data from the International Crime Victims Survey (ICVS). The ICVS has been carried out approximately every five years since 1989 and asks representative (p. 10) samples of the populations of participating countries about crimes they have experienced in the preceding year. Table 1.1 shows data from countries that participated in at least four of the five surveys on the percentages of respondents who reported victimization by any crime. The percentage of U.S. participants reporting that they have been crime victims has declined every year since 1989, which parallels the patterns shown in FBI (figs. 1.1 and 1.2) and NCVS (figs. 1.3 and 1.4) data. For other countries the peak years are later, but all show declines since the early or mid-1990s, and in most cases the declines closely parallel declines in the individual countries shown by other sources of data.

Table 1.1. Victimization Rates, All Offenses, Various Countries, 1989–2004/5

1989

1992

1996

2000

2004/5

Australia

23.3

24.0

*

25.2

16.3

Belgium

13.4

15.2

*

17.5

17.7

Canada

22.4

24.0

21.8

20.5

17.2

England and Wales

15.2

23.9

25.4

22.3

21.8

Estonia

*

27.6

28.3

26.0

20.2

Finland

13.0

17.2

16.2

16.6

12.7

France

16.4

***

20.8

17.2

12.0

Netherlands

21.9

25.7

26.0

20.2

19.7

Poland

*

24.6

20.5

19.1

15.0

Scotland

13.9

19.6

*

17.5

13.3

Sweden

*

18.7

22.0

22.6

16.1

Switzerland

13.0

*

21.6

15.6

18.1

USA

25.0

22.2

21.5

17.6

17.5

Source: van Dijk, Jan, John van Kesteren, and Paul Smit. 2005. “Criminal Victimisation in International Perspective: Key findings from the 2004–2005 ICVS and EU ICS.” Appendix 9, Table 1. http://rechten.uvt.nl/icvs/pdffiles/ICVS2004_05.pdf.

No one has a good explanation for the declines in crime rates in many countries. American scholars tend to see explanations in improved policing and rising imprisonment rates (e.g., Blumstein and Wallman 2005; Goldberger and Rosenfeld 2008). These things, however, while not irrelevant are not a major part of the explanation. They cannot explain why crime rates fell equally steeply elsewhere, such as in Canada and the Scandinavian countries, none of which significantly changed their policing systems nor significantly increased their prison populations. Some (p. 11) scholars outside the United States attribute the decline to increased public and private investment in crime prevention technology and hardware (e.g., van Dijk 2010). Only a few countries, however, most notably the Netherlands, greatly increased investment in crime prevention, and the United States did not. This also cannot explain the ubiquitous decline.

II. The Criminal Justice System

Among developed countries, the United States has much the most complex and fragmented criminal justice system. The President’s Commission on Law Enforcement and Administration of Justice (1967) long ago observed that to describe it as a “system” at all is at least an exaggeration and probably a misnomer. Each of the federal government, the fifty states, the District of Columbia, Puerto Rico, and (p. 12) miscellaneous smaller territories has a separate criminal justice system. Within each jurisdiction, institutions and authority are highly fragmented. Before I describe typical institutions and processes, looks at other countries’ systems may be helpful to provide a basis for comparisons.

England and Wales has a unified political system in which judges are appointed on the basis of nonpartisan, meritocratic criteria; the heads of the judicial, prosecution, probation, and prison systems are appointed by the government of the day; police chiefs are appointed by governing boards of the forty-three police forces; and individual prosecutors, police officers, and prison, probation, and parole managers and line staff are civil servants. The heads of agencies who are appointed by elected officials are almost always people with relevant specialist backgrounds and experience. There is a single body of criminal law and procedure for the entire country, and a single hierarchically organized judicial system that applies it. Each police force has a designated territory. Except for the police, the other major criminal justice organizations—the Crown Prosecution Service, the Prison Service, the Probation Service, the Parole Board, and the Youth Justice Board—are headquartered in London and are operated as national organizations according to national policies. The police forces, though locally organized, are overseen by a unit of the Home Office and are subject to regulations and procedures set by the Home Office. Local chief prosecutors, prison wardens (called governors), and heads of probation offices are appointed by senior officials in the national office. No criminal justice officials are elected, and only the heads of national agencies are directly appointed by elected politicians. All very tidy. Similar descriptions could be given for many countries including those in Denmark, Finland, Norway, Sweden, Ireland, and Scotland. Systems in Italy, France, and elsewhere are not very different.

Other countries besides the United States have federal legal systems. They include Australia, Canada, and Germany. Canada provides the closest and most familiar comparison. Canada, like England and Wales, has a single body of criminal law and procedure and a single hierarchically organized judicial system, which applies it. No criminal justice officials are elected. Judges are appointed by the governments (federal or provincial depending on the level of the court), but those appointed are generally from lists of candidates found to be appropriate by nonpartisan independent committees. The heads of agencies who are appointed by elected officials are almost always people with relevant specialist backgrounds and experience.

To this point, Canada closely resembles England and Wales. The differences result from federalism. Canada has ten provinces and three territories. Policing is generally seen as the responsibility of the municipalities (but is regulated by provincial statutes). Smaller municipalities are generally policed by a provincial police force (in two provinces) or by the Royal Canadian Mounted Police as a result of contracts between the province and the federal government. Criminal cases are dealt with in trial courts organized at provincial levels (appeals are initially heard by appellate courts in each province and ultimately by the Supreme Court of Canada), (p. 13) but all apply the same national criminal laws and procedures. Pretrial detention, prison sentences less than two years, and probation and other community penalties are handled by provincial institutions. Prison sentences of two years and longer are served in federal prisons. Parole release is managed by federal or provincial parole boards. Supervision is carried out by federal or provincial officials, depending on where the sentence was served. Provincial judges are selected by the government in power. The details of the procedure vary somewhat from province to province (and with the federal government), but all involve open application processes, interviews, and meritocratic selection. Heads of corrections agencies are typically civil servants appointed by the relevant government (provincial or federal). Lower-ranking managers and line staff are civil servants. Prosecutors (Crown attorneys) are civil servants who are selected in a manner similar to all civil servants (applications, competitions, interviews, and merit selection committees).

In the United States, by contrast, there are overlapping federal and state criminal justice systems, each with its own constitution and criminal laws and procedures. Ultimately, all are governed by U.S. Supreme Court interpretations of the U.S. Constitution. The federal system has its own police agencies, trial and appellate courts, prosecutors’ offices, and correctional systems. Judges and chief prosecutors are appointed by the president, usually on the basis of partisan political considerations and sometimes subject to ideological litmus tests. The heads of the FBI, the U.S. Bureau of Prisons, the U.S. Probation System, and the U.S. Parole Commission are appointed by the president, usually from among people who have relevant specialist backgrounds and expertise. Lower-ranking managers and line staff are civil servants.

Each state and equivalent jurisdiction has its own constitution, criminal law and procedure, and a hierarchically organized system of courts.2 Appellate judges are sometimes elected in statewide elections and sometimes appointed by the governor. Each state has a state police system and a state prison system, and most have a state parole system. Heads of those systems are appointed by the governor, sometimes from among professionally qualified people and sometimes not.

So far this description is not very different from those of other countries, setting aside the multiplicity of constitutions and criminal laws and procedures. Two other considerations generate enormous complexity. First, much of the state criminal justice systems is organized, operated, and staffed at county levels.3 Local county jails house pretrial detainees (called “remand prisoners” in most other countries) and usually convicted prisoners serving terms shorter than one year; county prosecutors handle prosecutions; and county correctional agencies manage probation and other community penalty programs. Second, most county-level judges, nearly all prosecuting attorneys (sometimes called district or county attorneys), and all sheriffs are elected at the county level. The sheriff, a uniquely American public official patterned on prerevolutionary English functionaries who no longer exist, typically manages a county police force (called sheriff’s deputies) and (p. 14) runs the county jail. In some places, for example Los Angeles County, the sheriff’s deputies constitute a police force comparable in size and diversity of function to those of sizable cities.

This distinctive American pattern of county-level criminal justice system agencies, processes, and elected officials is important. It means that county prosecutors and sheriffs are politically and fiscally accountable not to state officials but to county voters and county legislatures (usually called county boards). And it means that the costs of court operations, prosecutors’ offices, and county jails and other corrections programs must be appropriated by county boards from funds raised from local taxpayers.

As a practical matter, the combination of locally elected officials and locally funded operations means that the vast majority of criminal justice system operations are fundamentally local. If prosecutors want to enforce laws in idiosyncratic ways, or defy state officials, they can, and they are accountable only to local voters. Conversely, if state officials want to implement new statewide correctional programs, they can do so only if local officials are prepared to cooperate. Often they will not be prepared to cooperate, either because local funds are unavailable to support the new programs or because they do not believe the new program is a good idea.

Finally, and critically, the election of judges and prosecutors exposes them to pressures and temptations from which their nonpartisan and civil service peers in other countries are largely immune. Routine local political pressures and periods of public emotion precipitated by political campaigns or shocking crimes create pressures to resolve individual cases differently than would otherwise happen. The need to be re-elected, or to build a reputation to be used in campaigns for higher office, (p. 15) often leads to a politicization of criminal justice policies and practices and sentences in individual cases, which is uncommon—in many countries unheard of and unthinkable—in other countries’ legal systems.

Even setting aside the problems of politicization, the combination of elected officials and divisions of function between state and county levels of government creates criminal justice systems (or nonsystems) of bewildering complexity. Policies, practices, and programs vary enormously between counties within a state. Effective establishment and implementation of statewide programs and policies for courts, prosecution, and community corrections are exceedingly difficult and often impossible.

Subject to the caveats that the criminal justice system is exceedingly complex and varies from place to place, it is possible to describe basic common processes. Although most states operate state police systems, their functions concentrate on highway patrol and provision of specialized services to small local departments that lack them (for examples, crime laboratories or specialized homicide or drugs units). Most police services are provided by municipal departments and in the unincorporated areas of counties or in small towns without police forces by sheriff’s deputies. Most towns and cities with more than a few thousand residents operate municipal police forces ranging from some of the largest in the world with 30,000–40,000 officers to a handful. Police chiefs are generally appointed by mayors or city or town councils. Although in earlier eras, police chiefs, at least in big cities, were appointed largely for political reasons, these days most are selected from among qualified professionals. In many countries, police forces are subsidiary to prosecutors as law enforcement officials and their operations, especially their investigations in individual cases, are closely supervised. In the United States police operate almost entirely autonomously.

American prosecutors operate under the “expediency principle” discussed earlier: they possess near absolute discretion whether to prosecute people believed to have committed crimes, and for what. In most jurisdictions, 95–98 percent of people charged with crimes plead guilty, usually at the end of plea negotiations. Sometime “charge bargaining” occurs—for example, the defendant pleads guilty to one burglary charge on condition that three other charges be dismissed. Other times “sentence bargaining” occurs—for example, the defendant pleads guilty on condition that he or she receive a particular sentence, or a sentence not more severe than whatever was agreed. Sometimes more exotic bargains occur, such as “fact bargains” in which the prosecutor agrees not to inform the judge of a fact (such as use of a gun) that might lead to a severer or mandatory penalty. This is sometimes referred to as “swallowing the gun.”

Of the small percentage of cases that are tried, nearly all are heard by a judge sitting alone. Defendants have a constitutional right to demand a jury trial but few do so. Probably as many occur in television programs and films as occur in real life.

Judges’ sentencing powers vary widely. In some states, judges have authority to impose any sentence the statutes authorize, sometimes ranging between probation (p. 16) and a maximum prison sentence of many years. In some states, judges are supposed to sentence according to sentencing guidelines that specify a range of appropriate sentences for run-of-the-mill cases; in out-of-the-ordinary cases, judges can impose some other sentence not authorized by the guidelines. In such cases, the defendant can usually file an appeal to a higher court to obtain a review of the adequacy of the reasons the judge gave in justifying the extraordinary sentence. In every state some crimes—many in some places—are subject to a mandatory minimum sentence that requires imposition of a prison sentence of at least a designated minimum number of years. Three-strikes laws requiring a minimum sentence of twenty-five years to life and LWOP sentences are the extreme examples.

Depending both on state laws and available local and state resources, a range of sentences are available to judges. Short prison sentences are served in county jails, long ones in state prisons. Probation sentences are available everywhere. These range from nominal punishments in which the offender need only call the probation office every few months or send in a postcard explaining what he is doing, to intensive forms of probation involving close supervision, frequent drug tests, electronic monitoring, and requirements to pay restitution and participate in treatment programs. Fines are often imposed in minor cases. Some jurisdictions operate community service and house arrest programs. Many counties now operate drug, mental health, and family violence courts that couple close supervision with participation in treatment programs.

In many states, parole systems operate. Prisoners can apply for release before the expiration of their terms, and sometimes are released. For most of the twentieth century through the mid-1970s, every state operated a parole release system and most prisoners were released by it. Since the 1970s, some states have abolished parole release altogether, and all have become much more conservative about releasing prisoners. Half the states adopted “truth-in-sentencing” laws requiring offenders convicted of specified offenses to serve at least 85 percent of the announced sentence. Prisoners serving mandatory minimum sentences are ineligible for parole release before the minimum has been served. LWOP prisoners are never eligible. Governors and the U.S. president have power to pardon prisoners altogether and to shorten sentences by commuting them, but they seldom use those powers.

Prison officials also have power to shorten some prisoners’ sentences (but usually not those serving mandatory minimum or LWOP sentences). Until the 1970s, nearly every state and the federal system operated “good time” (time off for good behavior) systems; prisoners typically received three days credit for every two days served and could thus routinely shorten their sentences by a third. Other sentence credits—for extraordinary services or treatment program participation—were often also available. Good time credits have since been eliminated in some states and cut back in most. They cannot affect mandatory minimum sentences, and are constrained by truth-in-sentencing laws.

(p. 17) Compared with the English and Welsh, and Canadian, criminal justice systems, the American systems are much more organizationally complex. They are also much more vulnerable to politicization, improper political influence on handling of individual cases, and personal idiosyncrasies of individual judges and prosecutors. These are among the reasons why the American system is the world’s most punitive and the imprisonment rate is the world’s highest.

III. Punishment Patterns and Trends

Punishment methods, patterns, and trends vary enormously between countries. All use a mix of prison terms, community penalties such as probation and community service, and fines, but the details vary greatly. Some, most conspicuously the United States, Russia, and South Africa, rely extremely heavily on imprisonment and confine more than 500 of their residents per 100,000 population. Other countries, notably Switzerland and the Scandinavian countries, imprison few of their residents, at rates usually below 75 per 100,000. Some countries, most extensively Germany and in Scandinavia, rely heavily on fines, often “day fines.” The number of day fines is scaled to the seriousness of the crime, and the daily amount is based on the offender’s daily income and personal wealth. All countries use probation and other community penalties extensively. Only the United States among Western countries continues to use capital punishment (although thirteen states, mostly in the Northeast and upper Midwest plus Alaska and Hawaii, do not).

The United States is the world’s premiere imprisoner. Table 1.2 shows imprisonment rates for 2009–10 in the major English-speaking countries and Western Europe, South Africa, and Russia. The U.S. rate dwarfs those of any country except Russia. It is ten times higher than the rates in Scandinavia and Switzerland and five to seven times those of the other European and English-speaking countries.

Table 1.2. Prison Population Rate per 100,000 National Population, 2009–2010

USA

756

Russia

629

South Africa

335

Latvia

288

Estonia

259

Lithuania

234

Poland

221

New Zealand

185

Czech Republic

182

England & Wales

153

Scotland

152

Hungary

149

Australia

129

Canada

116

Netherlands

100

France

96

Austria

95

Belgium

93

Germany

89

Switzerland

76

Ireland

76

Sweden

74

Norway

69

Finland

64

Denmark

63

Source: Walmsley, Roy. 2010. “World Prison Population List.” 8th ed. London, U.K.: Kings College London, International Centre for Prison Studies. http://www.kcl.ac.uk/depsta/law/research/icps/downloads/wppl-8th_41.pdf.

It was not always so. In 1970 the U.S. imprisonment rate was 160 per 100,000, lower than in some other Western countries (e.g., Finland) and not greatly higher than most. Beginning in 1973, things began to change. According to annual statistical reports published by the Bureau of Justice Statistics, the imprisonment rate and the number of prisoners increased every year from 1973 through 2009. Figure 1.5 shows the imprisonment rate for state and federal inmates for those years, and the rate for state, federal, and county inmates since 1990. Before 1990, data from county jails were not available for every year. Usually jail inmates make up about one-third of the total, so increasing the rate in your mind’s eye by a third for (p. 18) the earlier years gives a reasonable approximation of the total imprisonment rates for those years.

Comparative analyses of punishment usually focus on capital punishment and imprisonment in the United States, but this understates the severity of American sentencing. Table 1.3 shows the total number of people under control of the criminal justice system in the even years between 1980 and 2008, and separately for jails, prisons, probation, and parole.

Table 1.3. US Population under Control of Adult Criminal Justice System Institutions, 1980–2008, Alternate Years

Total Estimated Correction Population

Probation

Jail

Prison

Parole

1980

1,840,400

1,118,097

182,288

319,598

220,438

1982

2,192,600

1,357,264

207,853

402,914

224,604

1984

2,689,200

1,740,948

233,018

448,264

266,992

1986

3,239,400

2,114,621

272,735

526,436

325,638

1988

3,714,100

2,356,483

341,893

607,766

407,977

1990

4,350,300

2,670,234

405,320

743,382

531,407

1992

4,762,600

2,811,611

441,781

850,566

658,601

1994

5,141,300

2,981,022

479,800

990,147

690,371

1996

5,490,700

3,164,996

518,492

1,127,528

679,733

1998

6,134,200

3,670,441

592,462

1,224,469

696,385

2000

6,445,100

3,826,209

621,149

1,316,333

723,898

2002

6,758,800

4,024,067

665,475

1,367,547

750,934

2004

6,995,100

4,143,792

713,990

1,421,345

771,852

2006

7,211,400

4,237,023

766,010

1,492,973

798,202

2008

7,308,200

4,270,917

785,556

1,518,559

828,169

Source: Bureau of Justice Statistics. 2006. Sourcebook of Criminal Justice Statistics. “Adults on probation, in jail or prison, and on parole United States, 1980–2006, Table 6.1.” Washington D.C.: U.S. Department of Justice, Bureau of Justice Statistics. Bureau of Justice Statistics. Sourcebook of Criminal Justice Statistics Online, 2006, Table 6.1, available at http://www.albany.edu/sourcebook/csv/t612006csv. Glaze, Lauren E., Thomas P. Bonczar, and Matthew S. Cooper. 2009. Probation and Parole in the United States 2008. Washington D.C.: U.S. Department of Justice, Bureau of Justice Statistics.

Several patterns leap from the table. First, the 7.3 million people under criminal justice system control in 2008 constituted 2.5 percent of the U.S. population (then under 300 million), and nearly 6 percent of the population between the ages of sixteen and sixty, the age group most likely to be affected. Second, although imprisonment rates are high in the United States, less than a third of the people under control were in confinement. The majority were on probation. Third, the numbers in jail and prison grew by a factor of five after 1980, and those (p. 19) on probation and parole by a factor of four. Fourth, even during the years since 1991 when crime rates have fallen continuously, the numbers of people controlled by the justice system continued to increase rapidly—by 50–75 percent, depending on the category. Even in the face of twenty years of declining crime rates, criminal punishment since 1990 became harsher and intruded more deeply into the lives of more people.

The criminal justice system affects black Americans disproportionately. Throughout the first decade of the twentieth century nearly a third of black men in their twenties have been under criminal justice system control. A black baby boy born in 2001 faced a one in three likelihood of spending some time as an inmate in a state or federal prison. The starkest disparities concern imprisonment. Figure 1.6 shows the black and white percentages of state and federal inmates since 1950. Fewer than a third of prisoners in 1950 were black. The percentage of black prisoners rose rapidly during the 1970s after “law and order” became a high-visibility political issue, peaking at 50 percent in the 1980s and fluctuating in the mid-40 percents since then.

(p. 20) The causes of this stark disparity are complex. Black people have constituted 12–13 percent of the U.S. population since 1980. When imprisonment rates are calculated relative to black and white population numbers, the rate of imprisonment for black Americans is six to seven times higher than the rate for whites. To a small extent these stark disparities occur because arrest rates for serious violent crimes are higher for blacks than for whites. To a much greater extent they result from drug arrest policies that target inner-city crack dealers, racial profiling by the police, and enactment of laws in the 1980s and 1990s prescribing lengthy prison sentences for drug and violent crimes for which blacks are disproportionately arrested (Tonry 2011).

(p. 21) IV. Why?

We tend to be least aware of the things around us. What is, is. When it changes, it tends to do so gradually, almost imperceptibly. Although the American criminal justice system as seen from outside is extraordinarily severe—the world’s most severe with China as the only rival candidate—most Americans probably do not see it that way. Those under the age of forty have always lived in a country with capital punishment; three-strikes, LWOPs, and Megan’s laws; and one of the world’s highest imprisonment rates.

It was not always this way. Americans over sixty who pay attention to such things can remember a time when the U.S. Supreme Court was famous worldwide for decisions strengthening defendants’ procedural protections, when capital punishment seemed to be falling into disuse and for six years was not used at all, when American jurisdictions were leaders in devising alternatives to imprisonment, and above all, when the U.S. imprisonment rate was not markedly higher than those of other countries to which the United States would ordinarily be compared.

(p. 22) Things changed radically, and we are only beginning to understand why. Explanations initially offered were soon shown to be inadequate. The first thought in most people’s minds is that U.S. punishment laws and patterns became harsher than those elsewhere because American crime rates were higher or were increasing more rapidly (Bennett, DiIulio, and Walters 1996). A related idea is that American public opinion was more punitive than elsewhere and less supportive of rehabilitative, preventative, and social welfare approaches. A more sophisticated idea is that large-scale changes in the world such as globalization, increased population diversity, and increased awareness of the risks of everyday life made Americans anxious, and in need of scapegoats to blame. As a result, a “culture of control” came into existence. Criminals were nominated for the role of scapegoat (Garland 2001).

The difficulty with the first two ideas is that they are based on a fundamental misunderstanding of the evidence. American crime rates, except for homicide, have traditionally not been higher than those in other countries, and in recent decades have typically been lower (Tonry 2004b). And, as the figures in section I show, American crime trends since 1970 have been paralleled by those in most Western countries, including America’s nearest and culturally most similar neighbor, Canada (Webster and Doob 2007). In addition, American public opinions about the causes of crime, the purposes of punishment, and severity of punishment are almost indistinguishable from those of citizens in other English-speaking countries (Roberts et al. 2002).

The problem with the culture-of-control idea is that, if it is right, it should apply to every developed Western country. No country has been immune from the economic uncertainties and restructuring associated with globalization, from increases in population diversity and mobility, or from increased awareness of what some academics call “ontological insecurity” associated with increased awareness and sensitivity to risks ranging from job loss and crime through environmental calamity and terrorist mayhem. If those influences made American laws and practices much more severe, and also those in England and Wales since 1993, they should have had the same effect everywhere.

They did not. In the face of comparable rises in crime rates in the 1970s and 1980s, and comparable declines since the early and mid-1990s, countries responded in dramatically different ways. Crime trends were much the same in Finland, Germany, and the United States from 1965 to 1990 (basically up: murder rates increasing two to three times and overall violence rates three to four times), but the policy responses were radically different. The American imprisonment rate tripled (from about 160 per 100,000 to 500), the Finnish rate declined by two-thirds (from 165 to 60), and the German rate, after falling 20 percent in the early 1970s, remained stable between 90 and 100 per 100,000 through 1990 and since (Tonry 2004b). The American rate since 1990 has increased by another 60 percent, to nearly 800 per 100,000, and the other countries’ rates have basically stabilized at the 1990 level.

(p. 23) The only conclusion that can be drawn is that countries have the imprisonment rates and punishment policies they choose. Finnish policy makers chose to reduce their imprisonment rate (Törnudd 1993; Lappi-Seppälä 2007), German to hold theirs stable (Weigend 2001), and American to drive theirs up (Tonry 2004b). The next question in each case is, why? The answers no doubt will be found in basic features of each country’s history and culture.

There have been a few attempts at answers. Garland’s “culture of control” argument is unconvincing since it seems at best a plausible hypothesis for the United States, and England and Wales (Garland 2001), but if it is correct it should apply to most or all developed countries, and patently it does not. Jonathan Simon’s “governing through crime” argument—that politicians have discovered crime and punishment to be subjects with which to mobilize public fears and resentments and to win votes, while offending no powerful voting blocs—made sense in America from 1970 to 2000, but it does not explain why American policies were so boringly similar to those elsewhere before that (Simon 2007). My latest explanatory effort (Tonry 2011) focuses on various developments in American history and their continuing after-effects, which have created a contemporary culture unprecedentedly punitive toward offenders. These include the development of a post–Revolutionary War constitutional system in which judges and prosecutors are elected at local levels (and thus politically independent and susceptible to influence by short-term public emotional reactions), a history of race relations in which in each era devices have been created to maintain white political and economic domination of blacks, and a continuing influence of Protestant moral attitudes—sometimes harsh, judgmental, and emotional—that have been powerful since the earliest days in Massachusetts Bay Colony. All of these analyses, however, are at early stages. Readers may well be able to come up with better and more persuasive ones.

References

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Notes:

(1) . The numbers in figure 1.1 for murder have been multiplied by ten, and those for rape by two, so that all four violent crimes can be shown in one figure. Similarly, numbers in figure 1.2 for theft and burglary have been halved.

(2) . From this point, with apologies to the District of Columbia, Puerto Rico, and the territories, I use the term “states” but mean also to refer to those other governments.

(3) . However, there are always exceptions. A few states, including Alaska, Delaware, and Vermont, operate unified corrections systems in which prisons, probation, and parole throughout the state are managed by a single state agency. In other states, for example Minnesota, correctional services in some counties are provided by state agencies and in other counties are provided by county agencies. A few states, including Alaska and Delaware, have state prosecution systems; in most prosecution is a county function.