Conservative Criminal Justice as Common Sense
Crime and Political Ideology
By Jean Hardisty
"An eye for an eye" captures the conservative model of punishment in contemporary western societies. That is, when a wrong is done to an innocent person, the wrongdoer must be severely punished in order to "even the books" and stand as an example to deter other wrongdoers. Its advocates often call this punishment model the "law-and-order" model."
In contrast, the liberal punishment model emphasizes the rights of the accused, humane (not "cruel and unusual") punishment, and rehabilitation of those convicted of a crime. Conservatives and rightists belittle this model as "soft on crime." In the United States, the two opposing models compete in the realms of culture and public policy. For most of U.S. history, the harsher punishment model has been so dominant that it is part of our international image. We are the country where we "hang 'em high." Only in an exceptional period does the principle and practice of redemption gain the upper hand.
What explains the U.S. inclination to favor the law-and-order punishment model? Certainly in times of social tension and economic unpredictability, the punishment paradigm is especially appealing. When people feel vulnerable and insecure, rationally or not, they often look for someone, some thing, or some group to blame. Because racism pervades U.S. society as a whole, people of color, especially African Americans, who cluster at the lower end of the economic ladder, are close at hand to serve for White people as "the other," as a source of criminal threat for the dominant population. (See Box on White Fear). And it is often true even for people whom White people have labeled as "the other," but don't see themselves as attached to, or identified with, those labeled criminals.
A convergence of several of the conditions that create social tension- for instance, hard economic times, rapid social change and/or a high crime rate- create hospitable climate for an upsurge of the law-and-order paradigm. If rightists hold political power and rightist cultural values are dominant at the time these conditions prevail, they are likely to work to strengthen public support for this paradigm, usually by emphasizing an "us/them" dichotomy that demonizes criminals and expands the definition of criminal behavior.
Only a powerful political force can push against the historical U.S. preference for harsh punishment model. A strong progressive movement can mount a countervailing political analysis that promotes an understanding of the root causes of crime, critiques the law enforcement and criminal justice systems, and emphasizes rehabilitation and rights for criminal defendants and prisoners. Such an analysis is associated with liberal politicians, activists and advocates. A progressive analysis that questions the very right of the State to incarcerate its citizens rarely garners widespread public support.
However, even when liberal arguments gain political strength and acceptance, the policies that follow merely moderate the punishment model. A period of such moderation occurred in the 1960s and 1970s, when liberalism became strong enough to challenge the existing criminal justice system. Liberal publications, speakers at demonstrations, and political leaders talked about "equality" and "the dead-end life of the ghetto" as a place of no opportunity, and promoted a model of rehabilitation for criminals. This model focused on acknowledging that criminals were often the product of poverty and economic segregation, and that society should respond to behavior deemed criminal with education and opportunity as a form of crime prevention, and training while the criminal paid his/her debt to society.
But in those same decades, a conservative backlash began to gain popularity. By the end of the 1970s, the New Right, a growing social and political movement whose central program was to attack liberal ideas and practices, had labeled the liberal model the "coddling" of criminals. The New Right directed its message- that the country appeared to be spinning out of control - to White men, conservative Christians, and White Southerners. "Middle Americans," feeling they were losing status and financial security in a time of social change, were encouraged by rightists to fear "chaos" in the streets and in private life. Subtle messages appealed to racial stereotypes by implying that the reforms of the 1960s and 1970s had strengthened the position of "undeserving" welfare recipients (usually stereotyped as people of color) and criminals at the expense of "good" White people. Soon moderate Democrats and even some liberals began to collaborate in the promotion of the backlash slogan, "tough on crime."
It wasn't simply economic and social tensions that underlay the New Right's success in promoting its message on crime. "Law and order" resonated with a powerful ideological strain within the U.S. populace- the conservative worldview. You might think of this worldview as the ideological default to which many White Americans return when they are anxious, confused, or resentful.
The Prominence of the Conservative Ideological Worldview
As with so many of its policies, the Right's conservative view of human nature and a preeminent desire for an orderly society drives its law-and-order agenda. While the liberal, humanistic vision of human nature is that people are basically good, but are made bad by oppressive poverty, abuse, addiction, racism, and/or lack of opportunity, the Right's view is that people are bad by nature. Rightists see urges to sinful, aggressive, and selfish behavior as human nature. Therefore, conservative rightists often accuse liberals and leftists of being "idealists," who fail to understand that people are fundamentally flawed and prone to anti-social acts.
For many rightists- especially those in the Christian Right- the only fruitful path of redemption lies in conversion to conservative Christianity. This path, promoted most notably by Charles "Chuck" Colson, whose conversion occurred while he served time in prison for crimes committed as part of the Watergate scandal in the 1980s, has become a small redemption industry.1
The conservative view of humankind as sinful and in need of self-discipline, harsh punishment, and religious redemption to keep people on the correct path stems from a philosophical belief that society in its "natural" state is chaotic. Therefore society's first obligation is to establish a formidable authority.2 Authority naturally resides in the State, the Church, and the family/community. In the words of Thomas Hobbes, the 17th century English philosopher who is the father of the conservative worldview, "Before the names of just and unjust can have place, there must be some coercive power."
Rightists, despite their occasional adherence to values of love and charity, believe that humankind is divided into good (worthy) people and bad (unworthy) people. Bad or unworthy people are irresponsible and/or anti-social because of weakness, self-indulgence, and lack of the will to overcome their baser instincts. The definition of "good" and "bad" has many dimensions, including moral, cultural, economic, and political. The designation "unworthy" can be stark and unforgiving. Lack of discipline should earn a "bad reputation" and a watchful eye from law enforcement officials.
The character trait of a strong and law-abiding person, on the other hand, is "social responsibility." For such a person, the first hurdle is to resist temptation and, by doing so, live a good life. The story of Hester Prynne, the Puritan woman in Nathaniel Hawthorne's The Scarlet Letter, captures the conservative worldview. Prynne, who became the town minister's lover, was forced to wear a large, cloth scarlet A for "adulterer" on her chest for the rest of her life, making a clear statement that she was an undisciplined person.
The public policy implications of this worldview are enormous. For instance, if, as in the liberal model, all people are potentially good, preventive measures to keep them from coming under influences that will turn them "bad" are not simply justified, but a practical response to a rising crime rate. But if, as in the rightist worldview, all people are born with a strong urge to be "bad" and some are unable to control those urges through discipline and social responsibility, punishment and isolation are the appropriate responses to their behavior.
The theme of law and order, as it stems from the conservative worldview, sets up a stark us/them dichotomy that makes it possible for "deserving" people to place "them" outside the boundaries of an orderly and godly society. From this perspective, once outside the boundaries of legitimate society, "the other" is no longer the responsibility of those who are good and worthy.
In order to advance the message that attention to "them" is misplaced by liberals, the Right launched its campaign to promote "victim's rights" in the 1980s. Building on the conservative worldview, a "victims' rights" campaign allowed rightists to introduce conservative tough-oncrime policies without appearing to be racist or opposed to individual rights and liberties.
How Does Law and Order Play Out in Racial Terms?
In the United States, existing institutional, systemic, and individual racism magnify and reinforce this us/them dichotomy.3 Because the criminal justice system of every country serves as a means of control over some members of that society (and others who get caught up in it), it always reflects the need of the State for control, the political desire of leaders to stay in power, and the norms and mores of behavior favored by those leaders and usually supported by at least a portion of the society's members. In a country with the racial history of the United States, we cannot be surprised that Whites have always controlled the criminal justice system and used it to control people of color, especially African Americans and increasingly all dark-skinned people, including those from the Middle East and South Asia.
In the ideological and political campaign to promote "law and order," conservative strategists have been careful to avoid any mention of its agenda's racial implications. After arguing for criminalizing certain behaviors, especially drug consumption and distribution, they never mentioned how this would disproportionately affect communities of color (where the State's arrests for such behavior are higher than in White and suburban communities). Some of the academics who promote law-andorder arguments have even maintained an identity as liberals, and claim to be writing in the interests of "the community." Through this sleight of hand, rightist policy- makers have constructed law-and-order policies as a series of supposedly race-neutral policies, although the outcome of these policies has been to criminalize, to a vastly disproportionate extent, the behaviors of certain targeted groups, especially racial minorities. Whether or not these law-andorder policies were intentionally racist may be open to debate, but many people, especially people of color, connect the dots and see their outcome as both intentional and systemic.
You might imagine that an increased emphasis on law and order would result in increased attention to all forms of lawbreaking. But addressing police brutality and other forms of State violence clearly is not the focus of law-and-order policies. Nor is it the focus of the ideological camp that promotes these policies. Such neglect of a whole class of "victims"- those victimized by police or military power- supports the assertion that illegitimate racebased practices are the single most salient feature of the contemporary criminal justice system. Rightists often blatantly deny statistical evidence of unequal rates of incarceration, arrest, and punishment by race or class for identical crimes, as well as evidence of police and criminal justice officials' presumption of guilt according to the race of the accused.4 Rightist Professor John J. DiIulio, Jr., a prominent lawand- order proponent who inaccurately predicted a growing wave of "super-predator" children, stated that data on the administration of capital punishment "disclose no trace of racism…."5 But it is nearly impossible to study the discrepancies between incarceration rates for people of color and those of Whites for similar behaviors and not conclude that these policies, and those who defend them, are racially motivated.
Ideological Contradictions in Law-and-Order Policies
Each sector of the Right does not necessarily support the same policy solutions to the issues of crime and punishment. Various anti-crime policies create splits and disagreements within the Right. For example, rightist libertarians- who favor the most limited role possible for government - object to a punishment model that requires a huge investment of government funds, even when incarceration is privatized, and prisons eliminate training and treatment. The cost of building new prisons to house and police a swelling prison population increases government spending in both the long- and short-term. Between 1985 and 1995, states and the federal government opened one new prison a week to cope with the flood of inmates into the prison system.6 Much of this increase resulted from the increasing criminalization of non-violent offenders, through threestrikes laws, mandatory sentences, and drug laws. Referring to the many economic interests that now have a vested interest in maintaining high rates of incarceration, some critics, notably Angela Davis, have called this the emergence of a "prisonindustrial complex." Police departments, private prison corporations, unions of prison guards, rural communities eager for prison jobs, and businesses that provide prisons with food, security, and maintenance serve as pressure groups to assure the continuation of ever-increasing funding for prisons and to support tough on crime policies and drug laws that continually escalate rates of imprisonment.7
Widespread imposition of the death penalty also creates dissonance for some rightists. Between 1995 and 2003, prisoners in the United States were executed at an average rate of one per week.8 Although execution is a more expensive form of punishment than life-long imprisonment (due to the cost to the State of legal appeals), until recently its use has been steadily increasing, driven, in large part, by the Secular Right. Some conservatives are disconcerted by the revelation, as a result of DNA testing, that innocent prisoners have been executed. Others more critical of the criminal justice system, have not been surprised by these cases.
Finally, some rightists are uneasy with the growth of federal domination over state criminal justice systems. Despite the traditional conservative commitment to "states' rights," criminal prosecutions usually conducted at the state level have increasingly been taken over by the federal government, as the law-and-order crime model has grown in influence. For decades, crimes that involve crossing state lines have been classified as federal crimes and are prosecuted in federal courts. Organized crime cases and many drug and firearms crimes have swelled the number of federal cases. But journalist Ted Gest describes a "creeping federalization of criminal prosecutions" of crimes that occur at the local level. Liberals have supported some of this growth in the role of federal courts. Because they hope, for instance, that hate crimes, abortion clinic bombings, and stalkings will often be prosecuted more vigorously at the federal level than at the state level. But, as both political parties compete to appear tough on crime, much of the federalization of the criminal justice system is directed at drug offenders and non-violent criminals. It thereby diminishes the role of the states in fighting even local crime.9 So much for states' rights, a key principle of the Right's ideology.
Why would rightists persist in favoring these "big government" aspects of toughon- crime policies? The prevention and rehabilitation model, which has largely been defunded, ultimately costs less in tax dollars because it addresses the causes of crime and the rehabilitation of prisoners. The answer lies in the ideological compatibility of apparently contradictory ideas when they are held within an overarching worldview that explains the contradictions. Two especially strongly held conservative beliefs are not subject to debate - criminals must be punished, and government should remain small. But "smallness" does not mean that the government should be weak. Thomas Hobbes' admonition that States must establish a strong power that can exert control undergirds the idea that a massive program of incarceration is ideologically acceptable for conservatives who don't believe in "big government." In this case, many conservatives who believe that criminals are bad and must be punished in order to protect good, responsible (read White) people accept a strong role for government as appropriate and consistent with a conservative ideology. All sectors of the Right oppose the one policy solution that is most likely to solve the problem of crime in the long term – the creation of jobs, housing, economic opportunity, and universal health care that includes treatment for addictions.
Why Is the Law-and-Order Model so Widely Accepted?
People who are ideologically progressive or who are disproportionately subjected to the excesses of "tough on crime" policies and practices, find it hard to understand the widespread vicious, mean-spirited attitude toward people labeled as criminals. For instance, what would make a crowd gather outside a death penalty execution to cheer it on? What beliefs could make the public indifferent to the horrific conditions and physical abuse so common in contemporary U.S. prisons? Why has "tough on crime" become a bottom line necessity for any successful politician, even when people know that a substantial number of innocent people have been imprisoned, or even executed, through overzealous or malicious prosecution, lack of adequate legal defense, and/or racism?
As I mentioned above, several factors that might inspire such attitudes are: racism; fear and anxiety for physical safety and security; economic anxiety that leads people to seek a scapegoat who becomes the "other;" and a sense of growing chaos and declining order. These conditions clearly lead to a more punitive-minded general public, especially when political leaders and the media reinforce their inclinations.
Perhaps another important part of the answer lies in the widespread acceptance of the conservative ideological worldview, especially its view of human nature, by many average Americans. I suggest that many in the United States see themselves in much the same way that philosopher Thomas Hobbes saw humans- prone to sinfulness in the form of sloth, moral depravity, envy, covetousness, lust, and aggression. And they see their lives as a process of self-discipline to overcome these urges.
The struggle to live a life of virtue and dutifulness rather than sinfulness is an abiding source of pride in mainstream U.S. culture. To be a "good man" or a "good woman" is no small accomplishment. Average people know how much effort it takes to accomplish this identity. Accompanying the pride felt by those who work to maintain their virtue is a deep resentment of those they feel do not work and sacrifice to overcome their sinful urges. This resentment can turn especially bitter when "good people" perceive that "bad people" are reaping benefits that should rightfully be theirs. The resulting hatred is a major factor driving the country's support for tough-oncrime policies and the law-and-order model. The common sentiment – "The bad people ruin it for all the rest of us" – captures much of the rightist worldview. To coddle the "bad" people is to devalue the hard work of the "good."
To keep this system in place, two things are necessary: 1) there must be widely shared agreement on what is "good," and 2) there must be a strict separation between the "good" and the "bad." But in modern society, the definition of what is "good" becomes more confused every day, causing status and identity anxiety. Changing definitions of "good" and "bad" can make traditional rightists resentful and angry, leading them to charge progressives, secularists, and others who disagree with them as being "moral relativists." When social mores change- for instance, when obtaining an abortion or living together as an unmarried heterosexual couple becomes socially normalized behavior- the former definition of "good" and "bad" becomes contested territory. Most progressives hail such expansions of individual rights as progress for human rights. For conservatives, they represent a blurring of the lines, and a further erosion of the status of "good" people who resist "decadent" urges and model "virtuous" human behavior.
As free-market capitalism becomes more dominant and unregulated in U.S. society, subjecting workers to increasing job instability and pay fluctuations, many workers respond with economic apprehension and status anxiety. Further, private enterprise responds almost exclusively to its predominant goal – maximizing profit. To sell products, family values can be mobilized, but if individualistic, "anti-family" attitudes can more successfully sell goods, the market will promote those values. This "amoral" profit-driven ethic often conflicts with established notions of good and bad or right and wrong, adding to the sense of dislocation on the part of many people, who then seek a target for their resentment over all that has changed "for the worse." Such an environment offers the "criminal"- whose very existence defines those who are not criminals as "good"- as a convenient and serviceable scapegoat. And in a society characterized by institutional and individual racism, a "criminal" or "bad" identity is disproportionately attached to dark-skinned people.
The Right's law-and-order campaign has led to an increase in the severity and duration of incarceration since the early days of the Ronald Reagan Administration. Political moderates, and even liberals, collaborated in policies that have embodied reactionary intentions and racist outcomes. The mainstream media, by elevating sensational stories of criminals and victims to attract audiences and advertisers, have promoted a view of crime as rampant and frightening. By associating inner-city residents of color with guns and drugs, rightist politicians have promoted an ideological message that criminals are individuals who have choices and choose crime and victimization of those weaker than they.
Driven by a conservative ideological worldview, rightists and average people in the United States now support a huge prison industry that incarcerates people at rates second only to Russia in the world. Progressives must challenge this runaway law-and-order campaign by redirecting attention to the root causes of crime, such as poverty, abuse, addiction, and lack of opportunity, and by challenging the demonization and scapegoating of "criminals." This work is part of a larger campaign to revive the public will to address the economic insecurity that plagues so many in the United States, while the few live in increasing luxury.
Vol. 18, No. 3:
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