Iron Fist or a Velvet Glove?

Options for U.S. Law Enforcement Agencies and the Criminal Justice System

The question of whether human nature is good or evil has been the object of intense philosophical and psychological debate for centuries. Proponents of the natural law state that ‘good’ exists as a natural state. Some philosophers have held that humans are naturally wicked but also admit that “modern enlightenment prefers to believe that man is naturally good, and that he acts right so long as he continues true to nature” (Hegel, 1892). The philosophical musings find their application in the practical legal structures of human society where the basic tenets presume that humans choose to do good or evil and that people implicitly know the difference between right and wrong. Modern science has, however, found sufficient proof to challenge these long-held dogmas. For example, behavioral psychologists through neurobiological studies have found that the poor judgment performance of adolescents is attributable to “incomplete frontal cortex and cerebellum development” (Hanson, 2006, p. 19). The scientists have found irrefutable proof that dogmas such as ‘all men are born equal’ may be metaphorically correct but scientifically questionable. Damage to the prefrontal cortex of the human brain either through injury or due to other physiological factors produces changes in human behavior over which ‘free will’ may have very little control. With such a backdrop, the mechanisms of law have to develop a viable structure to address the ‘Black’,’ White’ and ‘Shades of Gray’ that characterize human behavior. This essay aims to explain the efforts of the U.S. law enforcement system specifically its criminal justice system in evolving suitable policies for upholding law and order in the U.S. with a view to recommending a way ahead in resolving some of the more contentious policies.

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Historical Imperatives

The U.S. system of jurisprudence was significantly influenced by the nature of the colonization of America. The early predominantly British settlers were actually religious refugees fleeing religious persecution in Europe. On arrival, the colonizers had a hard life. The area was thickly forested, the terrain difficult and the native American Indians none too friendly. The harshness of their conditions inculcated in the settlers an indomitable spirit to succeed which colored their approach to religion as well as what sort of political system to follow. The protestant philosophies of the New England society lead to the birth of liberalism. This philosophy coupled with a fierce independence of spirit led to the formation of the various states each with its own body of law. When the colonies agreed to unite, they did so with the tacit agreement of having a federal structure where great freedom of action in almost all spheres was retained by the states. This independence extended to the judicial and law enforcement systems also. Laws evolved to tackle the prevailing ground situation. The ‘rough and ready justice of the Wild West days still finds popular resonance in Texan law today. The concept of retribution and ‘making an example out of an offender of those days was codified into state laws, which also crystallized into federal laws. The combination of liberalism, strong belief in the ‘rule of law’, and the independence of thought and action led to two main approaches for sentencing; namely the indeterminate and the determinate policies of sentencing.

Indeterminate Sentencing Policy

The indeterminate sentencing policy was followed by almost all US states up till the mid-70s. In an indeterminate sentencing policy, the judiciary considers every individual as a unique personality who has his or her own distinctive attributes, circumstances, and conditions which may have caused the individual to break the law. The sentencing policy believes that humans can be transformed and that any sentencing must view the special circumstances of every case. However, the U.S. states faced with a spurt of crime rate in the mid-70s and mid-80s perceived that the indeterminate sentencing policy had failed and that it was too ‘soft on criminals. The perception was that the policy was too vague, did not define the sentence period which was left to the parole board to decide, and led to arbitrariness. Some accused the indeterminate sentencing policy of having a racial bias with more Blacks being given longer sentences than Whites for similar crimes. Consequently, Congress abolished indeterminate sentencing at the federal level and replaced it with a determinate or mandatory sentencing policy. By 1994 all 50 States had enacted one or more mandatory sentencing laws, though the indeterminate system did continue to survive in many states.

The Mandatory or Determinate Sentencing Policy

To ‘stiffen up’ the official response to soaring crime rates, the Mandatory sentencing policy soon became popular. “Mandatory sentences are based on two goals—deterrence and incapacitation” (Parent, Dunworth, McDonald, & Rhodes, 1997, p. 1). The idea was that given a fixed tenure of punishment for a specific crime, irrespective of the ethnicity or the gender of the individual, the tough line would deter others from joining in. It also posited that since crimes are usually committed by younger individuals, holding them up in prisons for longer durations of time would keep them off the streets, and by the time the convicts were set free, they would be too old to carry out crimes with the same vigor of youth. This twin logic was fallacious as the policy unfolded across America. The mandatory system of sentencing at times resulted in ‘overkill’. For example, in New York, “ sale of two ounces or possession of four ounces of a narcotic drug are felonies subject to a mandatory minimum sentence of fifteen years” (Mauer, Potler, & Wolf, 1999, p. 6). The ridiculous extremes of the determinate sentencing policy can be discerned from the fact that in California, a state with the harshest determinate sentencing policy, individuals have been sentenced to “serving 25 years…for the theft of a $20 bottle of vitamins from a grocery store” (Mauer, Potler, & Wolf, p. 6).

Sometimes the nature of crimes specific to a particular state drives the sentencing policy. For example, New York has a predominant anti-drug sentencing policy. Because the mandatory sentencing policy applies to specific crimes, it results in greater numbers of convicts with minor offenses filling up the already overcrowded American prisons. Once in prison, these relatively low-level offenders come in contact with the hardened criminals who abuse them, exploit them and indoctrinate them into their ways. A large number of such low-level offenders being particularly vulnerable to the more powerful offenders end up joining prison gangs that ensure them a life of crime in perpetuity. Thus, far from resolving law and order problems, mandatory sentencing often exacerbates the situation leading to the creation of more criminals, not fewer.

Mandatory sentencing laws are often used as plea bargaining tools by the law enforcement agencies that use them to speed up the sentencing process and in some cases to catch the ‘bigger fish’. The much-touted ‘deterrent’ effect of mandatory sentencing has not been borne out by various studies undertaken to judge its efficacy. For example, “Michigan and Florida found no evidence that crimes committed with firearms had been prevented” (Parent, Dunworth, McDonald, & Rhodes, p. 2) by resorting to the mandatory sentencing policy. Sharon J English(2006), remarking on the California Justice system states that “Determinate sentencing is dangerous because it treats everyone (137,000 inmates) the SAME—(that is the number of inmates minus the 652 Death Row inmates, the 29,000 Lifers, and the 3400 Life Without Parole offenders)” (p. 2). Faced with growing empirical evidence of the failure of the determinate sentencing policy, the U.S. Supreme Court, on January 12, 2005, ruled that the Sixth Amendment right to a trial by jury required that the current federal sentencing guidelines be advisory, rather than mandatory. Now Thirty-six States and the District of Columbia have indeterminate sentencing systems.

The Death Penalty

The death Penalty has always held popular support in the United States since the colonial days. The entire premise of the death penalty hinges on the rationale that the perpetrators of heinous crimes must ‘pay for their crimes with their life so that they cannot commit any more such crimes and that the punishment would serve as a deterrent to others. Till 1972, the validity of the death penalty held wide acceptance in most U.S. states. In 1967, William Henry Furman, a 26-year-old black man, while committing a burglary shot at the house owner, William Joseph Micke Jr while trying to escape. Micke died and Furman got a one-day trial in which he was sentenced to death by the State of Georgia in 1968. (AllSupremeCourt Cases.com, 2007,p.1). The case went up for appeal to the U.S. Supreme Court as the landmark Furman v. Georgia (1972) case. In the case, the U.S. Supreme Court “ruled on a 5-4 vote that capital punishment was administered in an arbitrary manner that constituted cruel and unusual Punishment” (Philips, 2008, p. 5). For about four years, from 1972 to 1976, the death penalty remained invalidated in the U.S. as the fallout of the judgment. As a result, state judiciaries sought to revise their statute books. Based on the logic that the states had corrected their statutes, the moratorium on the death penalty was overturned by the U.S. Supreme Court in the Gregg versus Georgia (1976) case. Since then, “36 U.S. states have the death penalty in their statute books” (Death Penalty Information Center, 2008, p. 1). The operative principles of the death penalty in the U.S. have come in for considerable criticism from Human rights activists and minority groups. It has been stated that death was more likely to be “imposed against black defendants than white defendants, and death was more likely to be imposed on behalf of white victims than black victims.” (Philips, p. 4). Out of the 123 nations that allow the death penalty, only the U.S. and Iran currently sentence juvenile offenders to death (Political Research Associates, 2005, p. 2).

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The Death penalty has been invalidated in Europe. In 1989, the UN General Assembly adopted the second optional protocol to the ICCPR which aims at the abolition of the death penalty. The U.S. along with China had opposed the protocol. Human rights activists and opponents of the death penalty argue that the punishment has no salutary effect at all. They judge this by stating that despite the U.S. executing 1132 people to date since 1976, the crime rate of heinous crimes is much higher than in entire Western Europe where the death penalty has been abolished. More alarmingly, according to the activists, the danger of an innocent person being executed is a possibility as statistics show that “since 1976, more than 120 people have been released from US death rows on grounds of Innocence” (Amnesty International, 2008, p. 2).

The Efficacy of the ‘Iron Fist’ Versus the ‘Velvet Glove’

American Criminal Justice System and sentencing policies have taken a hard-line stance against perpetrators of crime compared to the European courts. Considering the fact that both sides of the Atlantic constitute the developed world, a comparison of their crime statistics can give an assessment of the relative efficacy of the differing policies. A comparison of the number of prisoners held in the correctional institutions gives a stark comparison. In a comparison of rates of incarceration per 100,000 people, the U.S. tops at 726 prisoners per 100,000 people compared to “England and Wales at 142, Germany at 96, and France at 91 per 100,000 people” (Political Research Associates, p. 1). As per conventional logic, the harsher, tougher mandatory sentencing policy of the United States should have resulted in much lower crime rates when compared to the ‘softer’ European policies which rely more on the indeterminate type of sentencing. The graph below of comparative rates of victimization between North America and Europe up to the year 2000 shows that the facts on the ground belie the belief that ‘tough’ action results in a reduction of crime: Source: Diagram by (Alvazzi Del-Frate, 2003, p. 5)

It can be seen from the graph that the figures for assault and burglary are much higher in North America and Australia than in entire Western Europe. While Canada and Australia may account for some of the ‘spike’ but the rest are very much an ‘all American’ rate which translates into the highest prison population in the world. According to the U.S. Department of Justice Statistics(2008), “2,299,116 prisoners were held in federal or state prisons or in local jails” (p. 1) as of 30 June 2007. The Political Research Associates(2005) very pithily observe that “ This “tougher” and harsher (U.S.) stance is not as effective as approaches other nations use, which focus more on crime prevention and rehabilitation”(p.1). Evidently, the European nations have certain policies which have resulted in better success in keeping crime rates low.

The European Model of Judicial Process and Law Enforcement

In Europe, the indeterminate type of sentencing has greater prominence. The focus of law enforcement is on the rehabilitation of the offender. The European system believes that most humans can be ‘retrieved’ if given the right chance and opportunity. Some variation of the European system is found in New Zealand where a pilot program called ‘Project Turnaround’ has met with notable success. “Project Turnaround in New Zealand allows the offender, victim, and community representatives to attempt to come to terms with the crime committed and to create a plan of action for the offender to make amends to the victim and the community” (Political Research Associates, p. 2).

Such inclusive action helps in transforming the popularly held beliefs that the only way to deal with criminals is through harsh sentencing and exemplary punishment. Closer home in Cuba, “the emphasis is more on rehabilitation and a return to the community than on punishment or societal isolation” (Political Research Associates, p. 2).

The Way Ahead

It is obvious from the analysis thus far that the determinate or the mandatory policy of sentencing despite its widespread usage in the United States for over two decades has not helped reduce crime. The fast-paced world with its competing demands for time is taking its toll on the traditional family as a cohesive social unit. Social and economic disparities are some of the major causes of the rise in crime, especially in the inner cities. Juvenile delinquencies of a serious nature are rising in the U.S. and deterrent or coercive punishments appear to have negative effects on recidivism. In fact, some studies have revealed that repeat offenses increase when coercive sanctions are used against teenagers and young adults. Therefore, the way ahead must examine alternative, more humane methods of law enforcement than just plain policing. In the case of the younger adults and teenagers, “early interventions to divert individuals from offending have been found to be one of the most effective types of intervention overall” (Rubin, Rabinovich, & Hallsworth, 2006, p. 11). By early intervention, the community, the Police, and the social workers identify the vulnerable individuals who are most likely to take up a life of crime. Having identified such individuals, the community then puts into place measures to prevent those individuals from falling wayside by providing them education, jobs, and other avenues to utilize their energies. Early intervention also looks at providing counseling to help the vulnerable cope up with the psychological rigors of modern life. In the UK, such counseling is called Cognitive Behavioral counseling in which the vulnerable individuals are encouraged to vocalize their inner thoughts and are then shown the alternatives to a better life through psychological counseling. This program has met with significant success.

The concept of ‘Restorative Justice’ is gaining ground in Europe. In this approach, the offender, the victim, their families, the community, and the police, all are involved in the rehabilitative process.

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This method has been found to reduce repeat offenses and has helped bring a number of criminals back into mainstream society. Improving the health of disadvantaged children and providing social and economic stability to such families would help reduce crime. Therefore, policing would now involve a substantial amount of community work and community building as the way ahead for reducing crime rates. Concepts such as situational intervention also help bring down crime. The police, in this case, not only carry out the routine patrols but also look at community protection holistically through measures such as providing better street lighting in the neighborhood during hours of darkness. Ensuring an adequate number of taxis at night helps prevent ‘street corner’ muggings. Measures such as substituting glassware in pubs with plastic ware can help bring down incidents of violent assault.

For the policymakers, a return to the indeterminate sentencing policy with some variations offers the best solution for reducing crimes in the U.S. The Minnesota model, where sentences are decided through a grid based on the severity of the offense and the past history of similar offenses by the individual has helped reduce repeat offenses and lowered prison occupancy. In the Minnesota model of ‘presumptive’ sentencing, judges can impose a sentence within the range or deviate from the recommended stretch (Hayes, 2006, p. 21). Limiting the duration of mandatory sentencing and allowing greater powers to the corrections managers can help reduce prison overcrowding. These are some of the options for a suitable Way Ahead for the U.S. Law Enforcement and the Criminal Justice System.

References

  1. AllSupremeCourt Cases.com. (2007). Furman Vs Georgia.
  2. Alvazzi Del-Frate, A. (2003). Comparing Crime Trends on the Basis of Survey Data: Problems and Prospects.
  3. Amnesty International. (2008). World: 2007 Death Penalty Statistics, Notes and Case studies.
  4. Bureau of Justice Statistics. (2008). Prison Statistics. Web.
  5. English, S. J. (2006). Little Hoover Commission — State Sentencing Policy Study.
  6. Facts About the Death Penalty. (2008).
  7. Hanson, M. J. (2006). Towards a New Assumption in Law and Ethics. The Humanist , pp. 18-21.
  8. Hayes, S. (2006). The End Of Determinate Sentencing:How California’s Prison Problem Can Be Solved With QuickFixes and A Long Term Commission.
  9. Hegel, G. (1892). The Fall of Man. In W. Wallace, Logic. Encyclopaedia of the Philosophical Sciences, Part I (p. 24 addition). Oxford: Oxford Unversity Press.
  10. Mauer, M., Potler, C., & Wolf, R. (1999). Gender and Justice:Women, Drugs, and Sentencing Policy.
  11. Parent, D., Dunworth, T., McDonald, D., & Rhodes, W. (1997). Key Legislative Issues in Criminal Justice:Mandatory Sentencing.
  12. Philips, S. (2008). Racial Disparities in the Capital of Capital Punishment.
  13. Political Research Associates. (2005). United States Versus the World. Web.
  14. Rubin, J., Rabinovich, L., & Hallsworth, M. a. (2006). Intervention to Reduce Antisocial Behaviour and Crime. Web.
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