Fighting Crime: Debate Between Rhetoric and Reality

By Jos

THERE are those who say that law and order are just code words for repression and bigotry. That is dangerous nonsense. Law and order are code words for goodness and decency in America." So spoke President Nixon as he explained his new crime initiatives. It was a purely Nixonian sentiment, grounded on his belief that he and the majority of Americans were resonating to the same moral pitch.

Nixon is not alone in that belief. New York's Nelson Rockefeller is urging his state to adopt mandatory life sentences without parole for any convicted adult drug pusher. In many cities, police are riding a renewed crest of respect; New York and Los Angeles each have two ex-policemen campaigning to join Philadelphia's Frank Rizzo as tough mayors with a no-nonsense attitude that was forged in a blue uniform. At least four state legislatures have reauthorized the death penalty and half the remaining states are considering similar legislation. The President was very much participating in a trend. With a passing swipe at "permissive judges," he seemed confident that the Warren era of Supreme Court concern for criminal defendants is all but a bad memory.

Clearly, Nixon felt no embarrassment about the harshness of his program. Still, he might have been embarrassed by his own rhetoric. To say that "Americans in the last decade were often told that the criminal was not responsible for his crimes . . . but that society was responsible" is a gross oversimplification of the view that true crime control requires dealing with root causes. And when he refers to "our returning prisoners of war" as examples of the sort of "tough moral fiber" that will help bring about a nation that is "free from crime," he is guilty of both irrelevance and exaggeration.

If the President's words are loose, however, his proposals are quite precise. And he gave his highest priority to two of the most controversial--stiffer sentencing and the death penalty. They raise complex questions. Will tougher sentences reduce crime? One hint of a negative answer may lie in the fact that the U.S. has long imposed the lengthiest sentences of any industrialized nation in the world, while also being one of the most crime-ridden. A more direct rebuttal came last week from the Fortune Society, a New York-based self-help group of former convicts. Distressed that politicians never ask ex-cons "about what deterred us and what did not," the society's monthly newsletter reported that "those of us who were small-time pushers, thieves, stickup artists, recall that we were too busy fighting to survive on the streets to be deterred by legislation. When we were committing crimes, we did not think about getting caught."

Stanford Law Professor John Kaplan comes to a similar conclusion about lengthier sentences, but for quite different reasons. "In large areas of the U.S., there is no substantial cause for criminals to fear the criminal law," Kaplan says. "The reason is that government is not willing to pay the money it would take to really get tough." That is, authorities are not willing to build and staff the necessary new courthouses and penitentiaries. Only one-tenth of next year's $2.6 billion federal anti-crime budget, for instance, is earmarked for court or penal purposes.

One major result of such priorities is that all but 10% of criminal cases must be disposed of by plea bargaining, a tactic that inevitably results in significantly lower sentences. Moreover, Kaplan warns, if stiffer sentences are mandatory for a large number of offenders, the already creaking system would break down altogether; the promise of a lower sentence is usually the only incentive for a guilty plea. Says Kaplan: "If even 20% of defendants had to be tried, there would be chaos." The short of his point is that increased penalties are at best peripheral, at worst inimical, to the goal of actually punishing a substantial number of the offenders who are caught.

There are equally serious questions about the efficacy of the death penalty. Evidence marshaled for arguments against capital punishment last year in the Supreme Court tended to show that there is no proof it deters criminals. States that abandoned executions found no increase in capital crimes; nor did murder rates differ significantly in neighboring states with and without the death penalty. Eight abolitionist Western European countries have reported a decline in once-capital offenses. The evidence is not strong enough, and probably never can be, to allow an absolute judgment either way. But neither is the President justified in saying, as he did, "I am convinced that the death penalty can be an effective deterrent against specific crimes" and leave it at that. All he can really mean is: "I just have a hunch it will work." Further, there is the moral argument that capital punishment has become a barbarism unacceptable in civilized society. Reminding that it does, after all, involve killing, Clarence Darrow said: "Capital punishment is too horrible a thing for a state to undertake."

Despite the cogency of their criticisms of harsh sentences and the death penalty, many liberal critics can also be trapped in a too-narrow vision. Few, for example, seem to remember that besides rehabilitation and deterrence, the classic reasons for criminal punishment are retribution, isolation of the offender, and expression of society's condemnation. It may be that the brutal facts of the city street tap an almost atavistic need for the regulated violence of harsh punishment. The law, after all, must be a responsive social organism.

But what should be the basic purpose of that response: to punish or to rehabilitate, or both? Even as liberals and conservatives reinflate their debate about what will really work, evidence is building that something is, in fact, working. In the next few weeks the FBI will announce its final crime figures for 1972. The first nine months had already showed only a 1% increase in the number of serious crimes committed; the final quarter may well show no growth at all. Already the figures for auto theft have leaked out; and for the first time in history, the number of stolen vehicles dropped--by 4%. Washington, D.C., which is totally under federal jurisdiction, reports a 50% serious-crime-rate drop between one 1969 month and the most recent month of 1973.

The hard-liners would like to take the credit for the improvement. Trouble is, the statistics carry deceptions and contradictions. For one thing, the three most violent crimes--forcible rape, aggravated assault and murder--are still rising. The remaining four crimes that go into

the FBI index all involve theft of property, and they constitute the overwhelming numerical bulk of serious crime. These are the ones that are mostly leveling off or going down--largely because they have been made more difficult. Most of the drop in auto thefts, for instance, is credited to the steering-wheel and transmission locks that have been mandatory on new cars in the U.S. since 1970. Similarly, in some cities, shoplifting is going down, apparently because of increased store security. Neither of those preventive measures has much to do with toughness or softness.

For all the accompanying bombast, there are elements of Nixon's crime policy that deserve backing--from both sides. Numerous experts agree that the growth in federally-backed drug treatment programs has helped reduce stealing by addicts. Proper funding for police education, and resultant improvement in police tactics, is also a vital Nixon goal. It is those programs--the activities that really pay off--that merit the hardliners' support. Similarly, those who find the Nixon style on crime distressing would be better advised to worry about what actions work, rather than what words offend. The labels too often get in the way. Gun control, for instance, is often categorized as a softheaded liberal idea, though by no rational analysis could it be considered a move that would be soft on crime.

The tentatively encouraging results of police professionalization should prompt attention to the rest of the criminal justice system, especially prisons. Liberals tend to consider all prisoners rehabilitable, an unrealistically indiscriminate approach that keeps prison programs from rehabilitating anyone. For their part, conservatives tend to think of most offenders as irredeemable and deserving of what they get. The sadly brutalizing U.S. prison system seems organized to prove this conservative pessimism correct. Whatever the convict was before he was locked up, the prison is almost sure to turn him into a hardened criminal. Yet most prisoners will soon be back outside. Obviously, then, one of the most urgent concerns is to develop rational standards for determining what treatment is best for which prisoners. The current return to law-and-order rhetoric, rather than careful study, may give "goodness and decency" a chance to do bold battle with "regression and bigotry," but it seems especially wasteful in light of the new reasons to hope that there are effective answers.e

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