DELIBERATING CRIME AND PUNISHMENT: A WAY OUT OF GET TOUGH JUSTICE?

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REACTION ESSAY

DELIBERATING CRIME AND PUNISHMENT:A WAY OUT OF GET TOUGH JUSTICE?

VANESSA BARKERFlorida State University

Over the last 30 years, many American states have passed a series ofradical criminal justice reforms, reforms that include, among others,mandatory minimum sentencing, determinate sentencing, truth-in-sentencing, “three strikes and you’re out” laws, sex offender registries,victim impact statements, the reinstatement of chain gangs and capitalpunishment, and a wide range of penal sanctions that favored custodialover non-custodial sanctions. Taken together, this set of reforms haschallenged, if not reversed, the U.S.’ longstanding rehabilitative andpenal-welfarist approaches to crime control. Oregon’s Measure 11, thesentencing reform under discussion, emerged out of this context whenmany states turned increasingly toward retributive and punitive penalsanctions, an anti-modern mode of punishment and crime control.Measure 11 mandated lengthy prison terms for a broad array of violentcrimes and sex crimes regardless of offenders’ prior criminal histories.

Nancy Merritt et al. (2006) analyze the impact of Oregon’s mandatoryminimum sentencing reform (Measure 11) on the daily workings of thecriminal justice system. And they do so in such a way that provokesseveral troubling policy questions about the nature and practice of justicein twenty-first-century America.

This reaction essay introduces just a few of the significant policyimplications embedded in their findings. We can organize these policyimplications around three key and interrelated themes:

1. The expansion of repressive forms of state power as exemplified byincreased prosecutorial discretion and increased state reliance on cus-todial sanctions.2. The unresolved tension between the public’s demands for ven-geance and criminal justice officials’ own technocratic or managerialresponses to crime.3. The need to improve how criminal justice officials and citizens par-ticipate in the policy-making process, especially through deliberativepublic forums.

EXPANSION OF REPRESSIVE POWEROne of the most striking findings of Merritt et al.’s study on mandatory

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minimum sentencing reform concerns the paradoxical role of the prosecu-tors and what I see as the insidious expansion of the state’s repressivepower to punish.

First, consider the paradox. Many prosecutors avoided the measure’smandatory prison penalties, but they nevertheless sent more people toprison than they would have before Measure 11. Prosecutors sanctionedfewer offenders under the reform measure’s mandatory penalties bycharging them with lower level offenses—offenses that were not subject tomandatory prison terms (Merritt et al., 2006:Figure 1). The authors see thisas a mitigation strategy that dampened the full force of Measure 11.Although I agree with their assessment on this point, I think it is importantto highlight the net effect of Measure 11 (mandatory minimum sentencing)on the state’s criminal justice system. I suggest prosecutors’ adaptationstrategies actually expanded their power and did so in ways that negativelyimpacted the state’s criminal justice system.

Over time, prosecutors sent more of the lower level offenders to prison(see Merritt et al., 2006:Figure 4), including those with nonviolent criminalhistories and many who were eligible for probation, a non-custodial sanc-tion (Merritt et al., 2006). In four years (1994–1998), the number of Mea-sure 11-alternate cases (cases charged with lower level offenses) sentencedto prison nearly doubled (Merritt et al., 2006). Since the passage of Mea-sure 11 and its aftermath, Oregon’s prison population has increased stead-ily. Obviously, some of that increase has nothing to do with Measure 11’smandatory penalties or criminal justice officials’ avoidance strategiesbecause a state’s prison population is the result of multiple factors, includ-ing fluctuating crime rates, the changing nature of perceived crimeproblems, and the political process. Yet, according to the authors’ RANDreport submitted to the U.S. Department of Justice, by the late 1990s,Measure-11-eligible and -alternate cases made up about one third of theOregon’s total prison population (Oregon’s Office of Economic Analysisin Merritt et al., 2003:90). In addition, the authors found that the numberof offenders sentenced to prison for one year or more in the post-Measure11 period increased over 90% (Merritt et al., 2003:90) and that the overalllength of sentence for both Measure 11-eligible and -alternate casesincreased (Merritt et al., 2006).

This move explicitly compromised the state’s own principles of sentenc-ing as outlined by the Oregon Criminal Justice Commission. Guided byfinancial concerns to do justice “within the limits of correctionalresources,” Oregon tied its sentencing structure and subsequent penalsanctions to available correctional resources (Oregon Criminal JusticeCommission, 2005). To avoid prison overcrowding, lawsuits, and the intru-sion of the federal judiciary, Oregon began to build new prisons to meetthe needs of Measure 11. Taken together, this set of responses, I would


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argue, weakened, to a certain degree, the integrity of the state’s criminaljustice system.

The Oregon case points to the potential dangers of expandedprosecutorial powers. Prosecutors unintentionally usurped the authority todetermine the outcome of the cases as they decided the seriousness of thecharges to pursue, deciding which offenders to try under the mandatorypenalties and which offenders to drop. Merritt et al. could not find any setof criteria prosecutors may have used to make these decisions. And theyrightly warn that this shift in practice may eventually reintroduce sentenc-ing disparities across jurisdictions, disparities that Oregon’s SentencingGuidelines have tried to overcome since the 1980s. Instead of followingagreed upon guidelines or prosecuting all “technically eligible” offenders,prosecutors used their own judgment to determine which offenders were“deserving” of the harsh penalty (Merritt et al., 2006). What is troublinghere is the major strain on uniformity, fairness, proportionality, and equalprotection–basic principles of modern justice. What is also troubling hereis the sheer number of offenders prosecutors thought “deserving” ofprison terms, offenders who had no prior record or a history of violentoffenses and who were not subject to Measure 11’s mandatory prisonterms but received prison terms nonetheless. By the end of the 1990s, forexample, 85% of these first-time offenders were sent to prison (Merritt etal., 2006).

Prosecutors are agents of the state, responsible for enforcing the inter-ests of the state. Under certain political conditions when public safety isthe state’s highest priority or when public security tends to outweigh thestate’s interest in protecting the rights and liberties of criminal offenders,we should be weary of reforms that intentionally or unintentionallyenhance rather than curtail the powers of the prosecution. As the Oregoncase vividly illustrates, prosecutors tended to advance the intrusive andcoercive powers of the state as more people came under the supervision ofthe criminal justice system–and they did so despite their stated intentionsto the contrary.

THE DEMOCRATIC PROCESS AND MEANINGFULCRIME CONTROL POLICIES

GAP BETWEEN MANAGERIALISM AND VENGEANCE

Another disturbing but unstated finding of Merritt et al.’s study con-cerns the ever widening gap between the public’s demands for vengeanceand criminal justice officials’ technocratic response to crime. This findingpoints to what I see as the need to improve how criminal justice officialsengage the public in discussions about crime control and how both groupsparticipate in the policy-making process. If we take another look at the


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passage of Measure 11, we can begin to flesh out the policy implications ofa weakened democratic process.

The passage of Measure 11 represents the failure of managerial or tech-nocratic responses to crime to resonate with the public’s stated anxietiesabout crime and their associated demands for retribution. Managerialresponses fail to register with the public in part because they tend to neu-tralize the drama, emotion, and ritual of punishment’s morality play, amorality play that the public has come to expect [for more on the collec-tive ritual of punishment and the psychic and emotional forces that under-lie it, see Garland (1990, 2001)]. As the authors note, citizens, particularlycrime victims groups, voted in favor of Measure 11, a ballot measure, tobypass Oregon’s Sentencing Guidelines (as well as to bypass the state leg-islature). Oregon’s Sentencing Guidelines link penal sanctions to availableresources, a sentencing structure utterly devoid of “punitive passions” andone that is more concerned with cost-efficiency and system management.

To a certain extent, Oregon’s Sentencing Guidelines embody whatAnthony Bottoms (1995) has identified as a “managerial” approach tocrime control and what Malcolm Feeley and Jonathan Simon (1992) simi-larly identify as the “new penology.” A managerial-type regime entailsexpert-driven, mechanical, bureaucratic, and pragmatic responses tocrime; it is a cluster of policies and practices that seek to regulate andminimize collective risk rather than expose, reform, or punish the moraldepravity of individual criminal offenders. It is a kind of crime controlregime that seeks to accomplish these tasks in the most cost-efficient waypossible to preserve limited resources. It is a kind of approach with goalsand principles that are oriented more toward the people who actuallywork the system than the people who are served by the system.

In the Oregon case, criminal justice officials who thought the publicwould vote no on Measure 11 (Merritt et al., 2006) seemed to be operatingunder a set of assumptions that were incompatible with the public’s needsand fantasies about crime and punishment. Some commentators mightinterpret this gap between the public and criminal justice officials as a jus-tifiable reason to further insulate the policy-making process from ordinarypeople, deemed irrational, emotional, and anti-modern. But I suggest theopposite.

DELIBERATIVE CIVIC ENGAGEMENT

It is necessary for criminal justice officials and politicians to engage citi-zens in the policy-making process. It is necessary for two intertwined rea-sons: the importance of civic engagement and the maintenance of statelegitimacy. First, civic engagement in a deliberative policy-making processcan produce more equitable and less repressive public policies. Political


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scientists Robert Putnam (1993) and Benjamin Barber (1984) havedemonstrated as much. A deliberative policy process entails the dynamicinteraction of citizens, grassroots organizations, interest groups, politi-cians, and public officials who meet in an open forum to debate and dis-cuss various public policy problems and possible solutions. By doing so, adeliberative policy-making process can increase citizens’ access to officials’expert knowledge, and conversely, it can increase public officials’ sense ofcitizens’ deeply felt concerns and insecurities about crime. It can alsoincrease the state’s accountability to its citizens in face-to-face interac-tions. In these forums, participants are encouraged to keep an open mind,voice their opinions, share their knowledge, and work toward commonground.

In his study of deliberative forums in Britain, criminologist David Greendiscusses how citizens’ participation in these forums led to more “liberaliz-ing” views on crime and punishment and decreased their demands for ven-geance and custodial sanctions (Green, 2006:134). He advocates citizenparticipation in the policy-making process because citizens not only cancontribute informed judgments about crime, but also they can restrainrepressive powers of the state (also see Barker, 2006). Similarly, politicalscientist Jason Barabas (2004) shows how deliberative forums can alter aperson’s deeply held views on sensitive policy issues such as SocialSecurity.

Given these findings, I suggest that a deliberative type of policy-makingprocess may help to close the gap between the public’s demands for retri-bution and the criminal justice officials’ technocratic responses to crime.Imagine if Oregon had instituted deliberative forums to debate sentencingreforms and crime control, particularly Measure 11. If officials had doneso, the state might have reached a different outcome. Oregon might havereached an outcome that criminal justice officials actually endorsed ratherthan undermined, and they might have reached an outcome responsive tothe public’s stated fears of crime without resorting to punitive measures.Oregon might have reached an outcome based on a restorative rather thanon a repressive approach to crime control. According to John Braithwaiteand Philip Pettit (1990), a restorative approach to crime seeks to repair theharm done to crime victims and the local community rather than simply orharshly punish wrongdoers; and it does so in ways that relies on citizenparticipation and deliberation rather than on the crude exercise of statepower.

Second, it is necessary for criminal justice officials and politicians toengage citizens in the policy-making process to maintain the legitimacy ofthe state. In democratic societies, the legitimacy of the state depends inpart on the state’s ability to maintain the trust and confidence of its citi-zens. Democratic states accomplish this task in part by providing public


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policies that are in some fundamental way responsive to citizens’ demands,including meting out punishments to wrongdoers and providing generalsecurity. In addition, as Emile Durkheim and David Garland haveexplained, punishment is a collective ritual that is depended on the pub-lic’s participation for its meaning and authority. Simply ignoring the publicin matters of crime control and punishment, can damage basic moral prin-ciples of democratic states. What is in order here are reforms that enrichthe character of civic engagement in debates about crime and punishment,reforms and practices that might enhance trust, and reciprocity amongsocial groups and between the state and civil society. By doing so, it maybe possible to come up with criminal justice policies based on restorationrather than on vengeance or economic rationality.

In sum, Merritt et al.’s study raises several contentious policy questionsabout on the ground practices of the American criminal justice system. Tohighlight just a few, the study encourages criminologists and public policymakers alike to rethink mandatory minimum penalties, the unintendedconsequences of criminal justice officials’ avoidance strategies, increasedprosecutorial discretion, the expansion of state power, the incompatibilitybetween managerial and retributive responses to crime, and the characterof civic engagement in debates about crime and punishment. It encouragesus to rethink these issues in light of their impact on the integrity of thecriminal justice system and the legitimacy of the state.

REFERENCES

Barabas, Jason2004 How deliberation affects policy opinions. American Political Science

Review 98:687–701.

Barker, Vanessa2006 The politics of punishing: Building a state governance theory of American

imprisonment. Punishment & Society 8:5–32.

Barber, Benjamin1984 Strong Democracy: Participatory Politics for a New Age. Berkeley, Calif.:

University of California Press.

Bottoms, Anthony1995 The philosophy and politics of punishment and sentencing. In Chris

Morgan Clarkson and Rod Morgan Clarkson (eds.), The Politics ofSentencing Reform, Oxford: Clarendon Press.

Braithwaite, John and Philip Pettit1990 Not Just Deserts: A Republican Theory of Criminal Justice. Oxford:

Oxford University Press.

Feeley, Malcolm and Jonathan Simon1992 The new penology: Notes on the emerging strategy of corrections and its

implications. Criminology 30:449–474.


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Garland, David1990 Punishment & Modern Society: A Study in Social Theory. Chicago:

University of Chicago Press.2001 The Culture of Control: Crime and Social Order in Late Modernity.

Chicago: University of Chicago Press.

Green, David2006 Public opinion versus public judgment about crime: Correcting the

‘comedy of errors.’ British Journal of Criminology 46:131–154.

Merritt, Nancy, Terry Fain, and Susan Turner2003 Oregon’s Measure 11 sentencing reform: Implementation and system

impact. Santa Monica, Calif.: RAND Corporation working paper WR100-NIJ.

2006 Oregon’s get tough sentencing reform: A lesson in justice systemadaptation. Criminology & Public Policy. This issue.

Oregon Criminal Justice Commission2005 The Oregon Criminal Justice Commission Division 2: Statement of

purposes and principles. Oregon State Archives, Oregon Secretary ofState. Available at: http://arcweb.sos.state.or.us/rules/OARS_200/OAR_213_002.html.

Putnam, Robert1993 Making Democracy Work: Civic Traditions in Modern Italy. Princeton,

NJ: Princeton University Press.

Vanessa Barker is Assistant Professor at Florida State University, College of Crimi-nology and Criminal Justice. Her research examines the character of democratic gov-ernance in contemporary societies and the effects of the democratic process on crimecontrol policies and punishment patterns.

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DELIBERATING CRIME AND PUNISHMENT: A WAY OUT OF GET TOUGH JUSTICE?