The Criminal
Justice System:
Alternative Measures
edited by
James F. Hodgson
Canadian Scholars' Press Inc. Toronto 1998
The Criminal Justice System: Alternative Measures
edited by James F. Hodgson
First published in 1998 by
Canadian Scholars' Press Inc.
180 Bloor Street West, Ste. 1202
Toronto, Ontario
M5S2V6
Copyright © 1998 James F. Hodgson, Canadian Scholars' Press and the
contributing authors. All rights reserved. No part of this publication may be
reproduced in any form without written permission of the publisher, except
for brief passages quoted for review purposes.
We acknowledge the financial support of the Government of Canada
through the Book Publishing Industry Development Programme for our
publishing activities.
Canadian Cataloguing in Publication Data
Main entry under title:
The criminal justic e system: alternative measures
Includes bibliographical references.
ISBN 1-55130-133-4
1. Criminal justice, Administration of—Canada. 2. Canada—Social policy.
I. Hodgson, James Fredrick, 1958- .
HV9960.C2C74 1998 364.971 C98-931749-8
Page layout and cover design by Brad Horning
To our new son,
Thomas Robert Hodgson.
May you pursue the dream of social justice.
This page intentionally left blank 
Contents
Introduction
James F. Hodgson 1
Charles Richard Henderson and Franklin Giddings:
Social Justice and Social Control in the First Generation
of American Society
William Burger 11
Middle-Class Malaise and the Just Society: The American Dream
or Nightmare?
Lawrence G. Hlad 27
Some Myths and Realities about Social Control in the U.S.
Joseph Davey 43
Social Control vs. Social Justice: No Justice, No Peace
James F. Hodgson 65
An Ounce of Prevention or a Pound of Cure?:
Toward More Cost-Effective Crime Control in
Community Contexts
lanM. Gomme 79
Criminology's Bermuda Triangle: Crime, Community, and State
R.S. Ratner 101
Pornography as a Civil Rights Issue
DebraKelley 135
Social Justice for Women Working in Male-Dominated
Public Sector Occupations
Catherine Orban 173
The Justice Debate: A Developmental Perspective
Ronald Stansfield and Andrea Lewis 189
Introduction
Introduction
The management of crime continues to occupy much political and
social policy in North America. The United States and Canada are spending
more public dollars than ever on policing and the building of prisons. America
spends approximately 100 billion dollars a year on the criminal justice
system, up from 12 billion dollars in 1972 (United States Department of
Justice, 1993). Canada has also increased its expenditures of tax revenues
on policing and correctional institutions at an alarming rate (Statistics Canada,
1997). The number of people incarcerated in America has tripled since
1980 (United States Department of Justice, 1993). There are 1.5 million
people in American prisons and jails nationwide. Again we see similar
experiences within the Canadian milieu. Crime and the control of crime
have become part of our everyday discourse.
Although the financial costs present a very dismal forecast for our
social spending dollars, the social costs of the current crime control mandate
also contribute to a very problematic reality. Extreme human pain and
suffering and various levels of social degradation, both in our communities
and within the walls of our prisons, are consequences of this fixation on
crime control. Increased levels of violence and disconcern for the human
condition are social consequences of the over-utilization of the crime control
model.
Our public obsession with crime, or in some cases paranoia, is further
exacerbated by media images and political ignorance and opportunism,
which only increases public misinformation and hysteria. It can be argued
that we have become a "society of captives," besieged by a fortress mentality
that believes we are under attack by a random, gratuitous criminal element
that knows no mercy. This fortress mentality creates hostile communities
2 CriminalJustice System
where all members are suspect and isolationism is manifest in this distorted
perception of criminal incidents and events.
It is indeed quite understandable how most community members are
compelled to buy into this barrage of political and public misconceptions
about crime. Therefore, the current public and political policy of further
expansion of the criminal justice system appears to be a reasonable method
in which to keep our streets safe. However, a second sober look at crime
rates in North America must be taken in order to disclose that crime has not
been escalating out of control as portrayed by the criminal justice system,
politicians and the media. Critical inspection of the Uniform Crime Reports
(UCR) and the National Crime Victimization Survey (NCVS) statistics reveals
that most indicators suggest that crime has for the most part levelled off
(United States Department of Justice, 1993; Statistics Canada, 1997). Since
1973 the NCVS illustrate stability and small declines in crime rates. The
NCVS suggests mat crime has gone up and down a few percent each year,
but the general trend is flat. The NCVS reports that the overall number of
victimizations has declined 6 percent since 1973- The UCR present another
picture of crime which demonstrates that the police have dramatically
increased the number of people that they arrest. The UCR are representative
of the number of reported arrests by the police. Changes in public response
and reporting of crimes to the police and changes in police apprehension
rates and technologies may better represent the reason for this increased
rate of apprehension. The big picture demonstrates that crime rates may
have increased in the 1960s, as the baby boomers hit their crime-prone
adolescent years, but crime has been somewhat stable since then.
The result of this misconception of the incidence of crime in North
America has indeed been the political and public obsession with employing
and operatizing traditional approaches to social control. This obsession with
social control further exiles any concept of proactive or preventive social
policy that may be useful in controlling or reducing crime. The "war on
crime" and the "war on drugs" has indoctrinated if not contaminated the
political and public discourse and subsequent public policy to reductionist
approaches and understanding of social phenomena. The "agenda of war"
ensures that police and correctional apparatuses continue to play dominant
roles as institutions of social control in North American society. Crime control
as an industry has unquestionably emerged as the growth commodity of
the 1990s with much promise for expansion.
The current political ideology in North America continues to foster
reliance on police and correctional institutions as the only feasible way in
which to control the masses. The "neo-conservative" ideology of the last
INTRODUCTION 3
two decades has embraced and generated the social control mandate of
enhanced reliance on the formal agencies of social control. These formalized
social control agencies are increasingly becoming a normal part of the
social landscape. This collection of articles argues for the need to emphasize
community development approaches to the social problems of crime
through the implementation of sound social policies.
Growing economic disparity, high unemployment, the political and
media focus on crime in our communities, increasing levels of inequality
and social injustices in North America have propagated the idea that the
crime control industry is the best method of ensuring social order. Under
these circumstances, most citizens are induced to simply accept the growing
police industry and the warehousing of unwanted people in prison as the
only method to ensure safe communities. The relationship between social
and economic injustices and the incidence of crime, for many of us, is
undeniable. Our governments have, for many years, reacted to these
burgeoning social injustices and subsequent problems by focusing public
dollars on the control side of the question. Further social decay in our
communities, bulging prisons and media images of an urban street crime
problem of frightening proportions are the obvious results of this political
strategy of social control. Are we going to continue with this social policy
of focusing on social control or can we move beyond this reactive policy to
embrace pro-active strategies that will address the issues of social justice in
our communities? The aim of this collection of articles is to emphasize the
need to provide "alternative measures" to this current political and public
obsession with the crime control industry as an acceptable means in which
to address our societal problems.
The theme of this collection of articles is to demonstrate that crime is
a community problem and the solutions to crime lie within the community
and not with the apparent over-reliance on the criminal justice system. In
other words, this collection focuses on the concept of social justice versus
social control. Are there other ways to control or reduce the incidence of
crime beyond hiring more police officers and building more prisons? If
crime is the result of such social injustices as poverty, racial disharmony,
gender inequality, illiteracy, homelessness and unemployment, then clearly
the appropriate social policy is one which addresses these broad social
issues prevalent in our communities.
This collection will serve as a source of fresh ideas and alternatives to
the over utilized and expressed crime control model ideology. We
4 Criminal Justice System
occasionally observe marginal attempts to place the social justice agenda
to the forefront. These attempts are often lost in the rhetoric and ideology
of the profiteers of the social control model. The National Criminal Justice
Commission (1996: xii) is one voice that recently questioned the viability
of the social control emphases by recommending a shift in the fundamental
direction of U.S. crime policy:
Decrease the reliance on prisons as the primary response to
criminal behavior...replace the war on drugs with a policy of
harm reduction...balance criminal justice spending with
resources spent on other civic activities...create crime counsel
to develop a coordinated anti-crime strategy...reduce violence
by using innovative approaches developed by the field of
public health...deducing poverty in order to reduce street
crime...eliminate racial bias and reduce racial disparity...shift
ourselves from a agenda of "war" to an agenda of "peace"
(Donziger, 1996).
Although these recommendations clearly provide alternatives or a significant
change in policy that may indeed assist with reducing crime in our
communities, the recommendations seem to be lost in the rhetoric and
zeal of the social control agenda. It is hoped that this collection will further
stimulate the debate of alternative measures and policies and highlight
feasible preventive and alternative methods to keeping our communities
safe.
The time is now to offer alternative ideas and solutions to the often
intolerant neo-conservative ideologies that shape many of our social policies
and discourses. The many proponents of "social justice concepts", for the
most part, have been silenced by the relentless barrage of short-term social
control initiatives that offer a quick, easy fix. This collection of articles on
alternative measures to the criminal justice system is not only timely but
necessary to rejuvenate the notions and concepts of social justice models.
If there is no justice, there shall be no peace.
The first chapter by Burger provides a historical perspective that
demonstrates the link between traditional sociology and the concerns with
social justice. This article establishes an excellent theoretical and historical
base that demonstrates how the concept of social justice is grounded in
traditional American sociology. Moreover, this article demonstrates the rich
tradition of sociological concern for "social justice" in our communities.
INTRODUCTION 5
Burger focuses on the works of two founding fathers of American sociology:
Charles Richard Henderson, University of Chicago, and Franklin Giddings,
Columbia University. These scholars set the stage for later developments
in both the social justice approach and the social control model of crime
control. Henderson argued that crime was caused by economic and social
injustices in the United States. Giddings, on the other hand, argued that it is
the failure of the state to adequately bond the individual to itself, therefore
making it necessary for joint action by the state, church and academy to
develop techniques to teach the unwashed masses that the only hope for
continued existence is for them to submit themselves to the protection of
the state. An analysis of the writings of these two scholars provides a
developed critical analysis of the two concepts of social justice and social
control.
The second chapter is provided by Lawrence G. Hlad, in which he
provokes the concept of the American dream and its relation to social
justice. For Hlad, Americans have defined themselves as a middle-class
society that embraces the ideology that greater material rewards are
achievable through upward social mobility. Our occupational and educational
environments continue to be dominated with the notion of a continual
quest for "more". The American dream, as described by Hlad, suggests that
no matter how humble our origins, our ultimate social destination is limited
only by our ambition, industry, talent and skill. Hlad points out, however,
that something has gone wrong in recent years. Rather than a secure haven
and final resting place, the middle-class has displayed downward social
mobility. People have become unemployed and underemployed despite
hard work, thrift and educational accomplishments. Corporate downsizing
and pension elimination have also contributed to the anxiety and malaise
that engulfs middle-class America. Hlad argues that a shrinking middle class
would lead to a further bipolarization of the income distribution that could
have serious consequences for American democracy. Hlad concludes that
if these fundamental economic changes are the source of the middleclass
malaise, it is unwise and unjust to propose further levels of social control of
the powerless as a solution to the problem. Alternative policy models that
emphasize justness and economic change are necessary to reconstruct the
American dream.
The third chapter by Joseph Davey provides a statistical reality check
of United States crime policy. Davey very elegantly provokes the present
day myths and public understandings of the incidence crime to extend a
6 CriminalJustice System
further analysis of what the appropriate response to crime might be if the
response was based on the realities of crime and crime control. Davey
challenges the public myth that "crime is out of control" by providing
statistical information that very clearly demonstrates that crime rates are in
fact going down. Davey then challenges the public myth that "prison
sentences are too few and too short", by confirming that America has indeed
been in very much a punitive mood for the last several years with
unprecedented increases in incarcerations. Davey highlights the
"imprisonment binge" in current North American social and political policy.
Davey assesses the public myth of "plea bargaining and parole make a
farce of long sentences" to demonstrate that 85 percent of prison sentences
are indeed served and that parole is often used as an effective behavior
control device within the prison system. Davey then critiques the public
and political assertion that "an all-out war on drugs could end the drug
problem". Davey questions the reality of the role of prisons in changing
behavior and making good citizens out of drug dealers and users. Davey
asserts that the "war on drugs" has not changed the pattern of drug use but
has had a significant impact on increasing prison populations. Davey then
directly challenges the public myth that "prisons are a wise investment" by
exploring prison use in Europe, providing an comparative analysis of crime
policy in North and South Dakota and an overall assessment of prison
expansion and the crime rate in the nineties.
The fourth chapter is composed by myself in an attempt to further
highlight the apparent injustices of embarking on ridged, punitive social
control policies when many of the social factors for increased involvement
in crime are clearly being presented in our communities. Increasing levels
of economic disparity reveal that a consequence of increased poverty is
the increased level of crime. The fortress mentality of intolerance is
examined to reveal how this ideology has been fostered by political rhetoric.
The consequences of this "intolerant-to-intellectual-discourse" ideology, it
is argued, has compelled political and social policy and public attitudes to
embrace a social mandate of ultimate individualism, which moved away
from the "welfare state" model towards a "corporate state" mandate. The
social control mandate is disclosed to reveal the economic and social costs
of embarking on such a punitive political and social policy. The reactionary
responses of the social control model are then compared with the proactive
or preventive strategies within the social justice model, which demonstrates
that these preventive strategies, although dismissed by current political
INTRODUCTION 7
ideology, merit a second consideration. The consequences of continuing
on our social control and imprisonment binge reveal the less than satisfactory
social and living conditions that will be forthcoming if social justice is not
realized in our communities. Hence, no justice, no peace.
Ian Gomme's chapter argues for more effective crime control in our
communities and asserts that there are preventive strategies that may be
effective in reducing crime. Gomme reveals the economic costs of crime
by disclosing the financial costs for policing, courts and corrections. Gomme
also highlights the extreme costs in human terms as expressed by crowding
and racial disparity in American prisons. Furthermore, Gomme assesses the
traditional approaches to crime control such as police patrols and correctional
apparatuses. Situational crime prevention is offered as a strategy that may
assist in reducing crime and victims. This preventive strategy includes such
techniques as target hardening, access and egress management, formal
and informal surveillance, and community policing. These situational crime
prevention techniques are good examples of potential effective community
strategies toward generating safe public environments.
In Chapter Six Robert Ratner (1998) provides a critical examination of
the rhetoric of the community corrections approach. Ratner highlights that
community corrections have expanded the scope and legitimation of state
social control. Ratner (1998:103) notes that "this is not to say that community
corrections is never an improvement over custodial control or that it is
merely its covert extension, but the problems suggest that the impediments
to be a revamped correctionalism may be more complex than a lack of
technical know-how or sheer adminsitrative bungling." Ratner argues that
the failures of community control are the result of "external factors" that
impact and influence the impending results of community correctional
apparatuses. Ratner places the connection between crime and community
in its appropriate context as expressions of the "wider political economy".
Ratner therefore argues for the importance of "delineating a macro sociology
of social control" in order to understand the link between crime, community,
and the state. Ratner then provides six case studies of his experiences
which expose the "embeddedness of community in state relations".
In Chapter Seven Debra Kelley explores the issues of social justice
and social control for women by examining pornography as a civil rights
issue for women. Kelley utilizes feminists' insights to argue that pornography
is to be a harm in its own right and through its connection to violence
against women. Kelley asserts that the link between pornography and
8 CriminalJustice System
societal inequality for women is explicitly connected to violence against
women. Kelley discusses the legal history of obscenity in order to distinguish
it from pornography. Furthermore, the manner in which obscenity fails to
relate sexuality to inequality and violence against women is made
problematic by Kelley. Because of an over-reliance on criminalization,
obscenity inhibits access to social justice for women. Pornography framed
as a civil rights violation offers more possibilities for women as a group to
attain greater access to the avenues which may afford social justice. Kelley
discusses efforts to promote the civil rights approach to pornography in
order to highlight the benefits of this approach to pornography as opposed
to increased criminalization of pornography.
Catherine Orban highlights, in Chapter Eight, the problematic features
of establishing social justice for women working in male-dominated public
sector organizations, specifically policing. Her article offers a critical insight
into the investigation of patriarchal organizational roles and subcultural values
that are embedded in the institutional practices of policing. The nature of
gender control is revealed in both "consensual" and "coercive" practices
located in policing. Women in this male-dominated public sector occupation
are disciplined by patriarchal norms and regulations. Although the enactment
of human rights legislation by both United States and Canada was a plan to
ensure the administration of equal opportunity, it only succeeded in
incarcerating the "will" of its minority subjects.
Ronald Stansfield and Andrea Lewis further provoke the debate between
criminal or retributive justice and social or restorative justice in Chapter
Nine. These authors expose the underlying structures and ideologies
expressed within human consciousness. By exposing the ideological
foundation and subsequent human consciousness, the authors reveal that
retributive justice is an archaic and regressive form of justice reasoning.
They contend that restorative justice is an innovative and progressive form
of justice reasoning. They offer an analysis of the spectrum of development
and the spectrum of justice reasoning to the apparent adoption of the
criminal justice model to further highlight the debate. The authors stimulate
a comparative analysis between criminal justice models and social justice
and restorative justice models and conclude that the latter model emphasizes
the use of "cooperation, respect, empathy and accountability to restor
equality and effect justice" (Stansfield and Lewis, 1998: 14).
INTRODUCTION 9
Bibliography
Donziger, Steven (ed). 1996. The Real War On Crime: The Report of The National
Criminal Commission. New York: Harper Perennial.
Ratner, Robert. 1998. In The Criminal Justice System: Alternative Measures. Ed.
by James F. Hodgson. Toronto: Canadian Scholars' Press.
Stansfield, Ronald and Andrea Lewis, 1998. In The Criminal Justice System:
Alternative Measures. Ed. by James F. Hodgson. Toronto: Canadian Scholars'
Press.
Statistics Canada, Canadian Centre for Justice Statistics. 1997. Ottawa: Statistics
Canada.
United States Department of Justice, Bureau of Judicial Statistics. Statistical
Abstract, 1993. Washington, D.C.
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Charles Richmond Henderson and
Franklin Giddings: Social Justice
and Social Control in the First
Generation of American Society
William Burger
Longwood College
In its earliest days, the academic discipline of sociology in the United
States was centered on a few sites. Founded in 1892 the University of
Chicago became one of the most important centers of sociology. The second
person to be appointed to the university's department of sociology was a
Baptist minister named Charles Richmond Henderson. According to Robert
Faris's work on the University of Chicago, Henderson's appointment was
made possible because of his knowledge of social issues, one of which was
crime.
1
 Of the individuals who can be considered to be the founders of
sociology in the United States, Henderson's name is not often found. This
oversight is particularly significant since he was one of the earliest
investigators of crime, and one of his students, Edwin Sutherland, was to
have a rather important role in the study of crime.
Arthur Vidich and Stanford Lyman, in their book American Sociology,
identify another center of early American sociological thought, Columbia
University.
2
 Franklin Giddings was hired by Columbia in 1894, received the
first chair of sociology in 1906 and remained in that position until he retired
in 1931-
3
 As was the case with Henderson, Giddings had extensive
knowledge of social problems having been a newspaper reporter for eight
years prior to his entrance into the academy. Prior to his appointment at
Columbia, he taught at various institutions specializing in "social problems",
including a course on the principles of charities and corrections.
4
Although Henderson and Giddings shared an interest in social problems,
their proposals to resolve theses issues were markedly different. Henderson
William Burger is an Associate Professor of Sociology at Longwood College in Farmville,
Virginia. His current academic interests include, criminology, historical sociology,
police studies, and criminal justice issues. He is the author of American Crime and
Punishment (Vande Vere Press) and has published articles on police corruption, police-
community relations and sociological theory.
CHAPTER
1
12 Criminal Justice System
adopted a social justice program while Giddings's approach was much
closer to social control. For the purpose of this paper social control theory
will be defined as actions by the state designed to inhibit unwanted social
behavior of individuals. The control of crime in this model rests upon state
actions, usually negative ones such as sanctions, designed to control
individuals. This model assumes that individuals are rational, that is, they
weigh the cost and benefits of their actions before engaging in them.
Criminality is thus an individual decision taken without interference from
outside factors. The purpose of social control is to bind the individual closer
to the state thereby reducing independent action.
The other approach, social justice, rests upon an entirely different
theoretical basis. In this approach the individual still has freedom of choice;
however, the role that social structural variables play in the decision-making
process is highlighted. This model assumes that those structural variables
that caused the behavior can be identified and eliminated, consequently
the unwanted behavior would also cease. This paper will illustrate that
these two approaches to the study of social problems in general and crime
in particular have been at odds with one another since the founding of
sociology in the United States.
Charles Richmond Henderson
According to Henderson, the social environment was the most important
variable in the onset of criminality.
5
 He divided the social environmental
causes of crime into two areas: (a) those that led directly to the rise of
dependency and crime such as, poverty, domestic and educational
inadequacies and industrial conditions; and (b) those that caused a rise in
dependency through example, such as defects in government, corrupting
social customs and corruption in the church.
6
 None of the causes acting
alone was responsible for criminality; however, their cumulative effects
resulted in criminal behavior.
According to Henderson, poverty was one of the most important
variables that led directly to the rise of criminality. He stated that "[T]he
housing of the poor is a prolific source of beggary and is a remediable
evil".
7
 He argued that the homes of the poor were unhealthy and
overcrowded, thus privacy was nonexistent. As a result, children were
exposed to sexual behavior at a tender age which resulted in their later
promiscuity. In addition, overcrowding forced youngster to seek
entertainment and recreation outside of the home which lowered the amount
of parental discipline and exposed youngsters to the immoral conditions
SOCIAL JUSTICE AND SOCIAL CONTROL 13
present in the slums.
8
 Another social factor that led directly to crime was
the educational system, which had a very special purpose for Henderson.
He did not believe that a liberal education stressing literacy would necessarily
cause a decline in criminality. Rather, true education meant vocational
education where "the average child must be trained to work at some useful
art or became an anti-social or extra-social being. Idleness means
licentiousness, and this means feebleness. Inefficiency excludes from
employment and produces the tramp class."
9
 For Henderson then, the
educational system had failed because it had not inculcated the values of
work within youngsters. Added to the evil examples of parents and other
adults in the slum, this failure greatly increased the likelihood that criminal
behavior would develop.
However, Henderson believed that even if the value of work had
been inculcated in youngsters, industrial conditions could idle even a skilled
worker. If the worker was idled, his family 'would become impoverished,
thereby greatly increasing the potential for criminal behavior. He believed
that the desire for unlimited profits, a by-product of monopoly capitalism,
kept wages to a minimum and created unemployment even for those
'willing to work. Illness due to conditions beyond his control could idle
even a skilled worker, resulting in poverty for his dependents.
10
 Henderson
called his readers' attention to the conditions under which the worker lived:
"[Tlhink of the illness due to crowded tenements, undrained cellars, hot
workshops and a thousand conditions the worker cannot change."
11
 It was
these dehumanizing conditions that led the worker and his children into
crime. Not only did the worker have a marginal existence when employed
but he noted that they could also be "turned into the streets the by the
hundreds of thousand by employers"
12
 as a result of a recession. All of
these conditions were the result of industrial conditions endemic to
monopoly capitalism. Each of these variables—poverty, immoral or
inadequate families, an educational system that neither instilled in their
charges a love for work nor provided then with the skills necessary for
obtain employment, inadequate wages and unstable employment patterns—
destroyed the moral fabric of both the youngster and the family. The
combination of these conditions, produced by an urge for greater wealth
on the part of capitalists, led directly to crime, delinquency and dependency.
The second group of environmental causes of crime in Henderson's
typology included the following: defects in governmental policy, vicious
and corrupting social customs and corruption of the Christian churches.
13
Although not directly causing crime, these environmental conditions lowered
14 Criminal Justice System
the moral tone of society making it more conductive to law-violating behavior.
The effects of slavery, the devaluation of currency, oppressive land tenure
and taxation were the social and economic factors related to defects in
governmental policy that caused crime. Henderson argued that "while
slavery has been abolished in America its effect lingers.... The tendency of
slavery is not only to rob the slaves of his earnings and to debase him, but
also to reduce the reward of free laborers to those of the level of slave
labor, to discourage skill and invention, and to make useful toil disreputable."
14
In this way, the effects of slavery lasted long after its political and legal
demise. All labor was viewed as a form of slavery, a means to an end
without any intrinsic value so that the dignity that honest labor could have
for an individual was diminished. Therefore, in a society in which labor had
lost its dignity and was looked upon as disreputable, criminality could be
justified merely as an easy way to attain the desired goods.
Another set of environmental causes that lead indirectly to criminal
behavior consists of vicious and corrupting customs. Henderson attributed
these customs to the tendency of the wealthy to view wealth not as a gift
from God to be held in righteousness stewardship, but as a personal
commodity that was to be used for personal consumption. Hence, what
Weber identified as the "spirit of capitalism", where wealth signified election,
had been transformed into an ideology that viewed wealth as an end in
itself to be spent not on social betterment but on vices and forms of self-
aggrandizement.
15
 Henderson stated that "All vicious and corrupting customs
in society provide a depressing environment. The luxury and vices of the
rich tend to destroy the hopes and morality of the less favored."
16
 This
depressing environment lowered the moral tone of the society, which
indirectly caused crime. When the less fortunate members of the society
realized that status was awarded to those who spent lavishly in unnecessary
items, crime became an alternative means by which wealth and status
could be attained. When wealth was the only measure of prestige, then
those without it searched for an easy way to "enjoy life", a sure path to
criminal careers.
The moral environment of society was further lowered by the corruption
of the established Christian church, which aggravated the evils of
dependency and increased criminality. Rather than attempting to protect
and uplift the poor, the Christian church and become "[A] selfish church,
without enthusiasm for humanity, more intent on defending a philosophy
(capitalism) than on being a blessing to men, divided up into classes, with
sharp lines drawn to distinguish the strata of culture and wealth ... to make
SOCIAL JUSTICE AND SOCIAL CONTROL 15
it more hard for the weak to rise in the world."
17
 Although the social mission
of the church, Henderson maintained, was to assist the poor through contact
with and assistance from those better off, it supported the status quo and
protected the interests of the rich. The moral legitimacy of the church was
eroded by its continued support of the exploiters at the expense of the
exploited; it could no longer serve as a moral leader able to control behavior
by example.
18
These variables that caused crime, according to Henderson, were the
result of an evil monopoly capitalism that gloried wealth at the expense of
human dignity. The working class was little more than draft animals producing
wealth for the capitalists at the expense of their own humanity. His criticism
of the social conditions that existed is reminiscent of the conditions so
eloquently described by Marx in Capital. However, although they both
acknowledged the evils of monopoly capitalism, their solutions for these
problems were quite different.
Social Justice
Henderson's notion of social justice contained two aspects. The first
dealt with his view of the nature of the criminal and the second is a more
general concept of social justice. Henderson begins his discussion of what
we would call social justice with a rejection of a biological approach to
criminality: "[A]nthropology and historic sociology declares that they
[delinquents] are 'outcasts', survival of an imperfect race, living out their
time in a civilization to which they are not adjusted, or degenerate offsprings
of an injured and defective stock, or examples of arrested development,
unfit to endure the strains of modem competition. And yet they are brethren
of a common race, in whom are latent powers akin to those of the highest."
19
As such Henderson rejected Lombroso's claim that delinquents were
"survivals of an imperfect race" doomed to a life of crime, but believed
that "they (were) brethren of a common race" capable not only of
reformation but of full and equal membership in society. Therefore, criminals
were not doomed to a life of degeneracy, but they could be made into
responsible citizens.
20
In describing the criminal, Henderson used a biblical analogy when he
labeled them the "children of Ishmael". The Bible told of Ishmael, the half-
brother of Isaac the son of Abraham, and his Egyptian slave Hagar. Both
Hagar and Ishmael were cast out of Abraham's house after his wife Sarah
gave birth to Isaac. The sixteenth chapter of Genesis contains the following
account of an angel carrying Hagar a message from God:
16 Criminal Justice System
I will so multiply your posterity that it shall be too many to
count. The angel for the Lord also said to her: You are with
child, and shall bear a son; you shall call him Ishmael, because
the Lord has heard of your humiliation. He shall be a wild
ass of a man, his hand against everyone, and everyone's
hand against him, he shall dwell apart, opposing all his
kinsmen.
21
Henderson believed that just as Ishmael was cast out from his father's
house only to become a "wild ass" of a man who defied all of his brothers
so too was the criminal cast out of their father's house, which in this case
was society. Not only had society cast them out but it had also forgotten
and ignored them. It was this social neglect that created delinquency.
However, since Ishmael and Isaac—the metaphorical ancestors of the
criminal and of respectable members of society—shared a common heritage,
the former were neither inferior nor doomed to a life of crime.
Criminal reformation, though possible, would require the combined
efforts of:"... all science and art... but since each alone is defective though
necessary, a new science must be involved to harmonize and direct to an
adequate action. This science, the youngest of them all, is called sociology."
22
Henderson thus had a very specific conception of sociology and the role of
sociologists. In making use of the findings of other sciences and arts, sociology
alone was capable of directing social action designed to reform the
criminal. What Henderson proposed was a
... social technology [which] deals ... with what exists as a
revelation of what ought to be and the method of realizing
what ought to be. Much of what ought to be is already, as
fact; and at a given moment, most of what ought to be, in a
relation to the given situation. But in the heart of what is
there is a suggestion of a better, and a movement towards it;
both ends and means being suggested by experience. Social
technology deal with the movement, the becoming ...
23
The "ought", for Henderson, is the perfect society, the "city on the
hill", one ruled by Christian love where crime does not exist. The task that
Henderson set for sociology was to make the imperfect society, the "is",
into the perfect society, the "ought". However, while working to create
the perfect society, one that was crime free, sociologists must assist the
criminal so that he can become law-abiding and productive.
SOCIAL JUSTICE AND SOCIAL CONTROL 17
The key component in assisting the criminal was Christian love. This
love is centered on the second great commandment from God: love for
fellow man. Philanthropic societies must be established that would assist
members of the working class realize their full potential as human beings.
He argued that among the duties of these societies was to assist "the less
fortunate social class. Their works may be to relieve the distress of
dependents and defective, to reform and assist the delinquent, to prevent
the beginnings of social maladies or to promote various economic, domestic
and educational enterprises."
24
But this work of assisting the poor was not sufficient. Sociologists and
other social reformers must work to change society. The only way to
eliminate criminals' behavior from the social landscape was through social
reformation. Through the use of a biological analogy he attempted to
describe why this was necessary. Individuals are to society what the
molecules are to the human body; as the number of diseased molecules in
the body increases, the health of the individual declined. The same held
true for society. Criminals could be equated with the diseased molecules of
the social body; as their number increased, the well-being of the society
declined. As medical science had found the cure for biological illness, social
science must find cures for social illnesses. Unless society could cure social
ills, society, like the body, would cease to exist:
Extreme poverty and luxury are prolific sources of physical
and moral decay. It is among the proletariate and the idle
rich that the most dangerous vices arise. The demoralized
family is the first product of unnatural and unjust economic
conditions. When the home is defiled the streams of custom,
moral, and sentiments which issue thence are polluted.
25
Henderson was condemning the immoral economic system, monopoly
capitalism, and those institution that supported it for having created this
situation. If this inequitable distribution of wealth continued to exist, crime
would never be eliminated. If society wanted to eliminate crime, the rich
must not be allowed to be idle and use their wealth for conspicuous
consumption. Rather, they must utilize this wealth to uplift the poor.
Henderson believed that stewardship accompanied wealth. What he
desired was to have America return to the Christian ideology of its founders.
Wealth must once again be seen as a sign of God's love, evidence of
18 Criminal Justice System
election and used for social betterment to give testimony to His glory.
Wealth was not to be considered a private commodity to be used for
hedonistic pursuits, but rather to be utilized for 'Voluntary activity... for the
betterment of society." The root cause of social illnesses, including crime,
grew because monopoly capitalism had transformed the nature of wealth.
For as long as one class had extreme wealth while another wallowed in
poverty, America could never be moral and crime free. Social intercourse
had to be based upon the second great commandment. It was only when
America rediscovered this proposition, love of fellow man, that the cause
of criminality could be eliminated.
Franklin Giddings: Social Control
Giddings disagreed with those theorists such as Henderson who argued
that social conditions were the cause of crime. He asserted that "[T]he
causes to which criminality are attributed are legion and, of course,
contradictory to established facts."
26
 Giddings rejected that proposition that
the aftermath of World War I was the cause of crime. He further rejected
the proposition that the presence of "aliens ... and by negroes ruined by
liberty and education" was a contributing factor in the seeming preoccupation
that Americans have with murdering one another. In rejecting this claim, he
cited that fact that New York with "roughly two fifths of a total population
[composed of foreign-born whites and blacks]... has the lowest homicide
rate among the great American cities."
27
 Therefore, Giddings rejected these
types of theories because they were not supported by empirical evidence.
Giddings challenged the social justice writers to justify their theories
"... since it (crime) varies independently of poverty and directly with other
social conditions and with the strains of progress." Therefore,"... crime is
not a monopoly of the poor, since all classes contribute to our jail and
prison population in very nearly exact proportion to their total numbers."
28
He thus rejected the popularly held proposition that misery or poverty
was the cause of crime and proposed that crime was independent of
poverty.
Giddings argues that crime is the direct result of social evolution:
It is curious that in all of this discussion the most important
single contribution that Christianity has to contribute to social
science has been forgotten or ignored. The doctrine referred
to is that of the distinction between those who are free from
SOCIAL JUSTICE AND SOCIAL CONTROL 19
the law and those who are under bondage to the law. The
key to the solution of the social problem ^vill be found in a
frank acceptance of the fact that one portion of every
community is inherently progressive, resourceful, creative,
capable of self mastery and self direction, while another
portion, capable of none of these things, can be made useful,
comfortable, and essentially free, only by being brought under
bondage to society and kept under mastership and discipline
until they have acquired power to help and govern
themselves.
29
This quotation summarized his approach to the solution of social
problems including crime. He made a distinction between two groups of
individuals: those who were progressive, capable of self-mastery, who should
make the law; and those who were incapable of self-mastery,who must
obey the law until such time as they were capable of governing themselves.
Social problems could only be resolved when that portion of the
community which was resourceful, progressive and capable of self-realization
made the law and ruled albeit in a benevolent manner. The elites must rule
the state because "[Slociety is a means to a perfectly definite end—namely
the survival of living creatures through a progressive evolution of their
intelligence and sympathy."
30
 Those individuals who, at present, were
incapable of caring for themselves could be made useful, comfortable and
free only by following the dictates of the more progressive elements of
society. The progressive elements of society were destined by evolution
to rule.
Giddings did not share Henderson's belief that crime was a result of
social immorality and hence preventable. Rather, he maintained that crime
was but one of the inevitable consequence of social evolution. He stated
that
[U]nder such circumstance (he is referring to social evolution)
the intense competition of the struggle for success, due partly
to ambition, but primarily to the quickening rate of industrial
and social transformation piles up in the community a frightful
wreckage of physical and moral degeneration. Every
sociologist, every statistician has been struck with the
seemingly anomalous fact that suicide, insanity, crime,
vagabondage, increase "with "wealth, education and refinement;
they are in a "word ... the phenomena of civilization.
31
20 Criminal Justice System
Those who were unable to adjust to social change brought about by
social evolution were the frightful wreckage of physical and moral
degeneration. They failed in the struggle for survival, perished, turned to
crime, killed themselves, became either insane or vagabonds. Therefore,
criminality was not caused by social immorality, but was one of the inevitable
consequences of the struggle of survival brought about by evolution. As
such, it was nonpreventable. Giddings added that
... there can be no social gain that does not entail somewhere,
on the whole community or in a class, the break-up of long
established relations, interests, and occupations, and the
necessity of a more or less difficult readjustment. Second,
the increase of social activity, which is the only phase of
progress that most people ever see at all, may so exceed the
rate of constructive readjustment that the end is
disorganization and ruin.
32
Crime was not the result of an immoral society, rather it was one of the
inevitable results of social progress. Giddings perceived the study of
criminology as having a mission: to assist in the creation of the perfect
state. Henderson believed that criminologists must identify the social factors
related to crime and then devise programs to ameliorate those social
conditions because it was part of their Christian duty. Giddings also believed
that criminologists had a Christian duty: to engage in ethically guided worldly
activity that would lessen the suffering of those who failed in the struggle
for survival. He suggested that, through the efforts of social reformers,
those who failed in the struggle for survival would continue to exist so long
as society assumed responsibility for these unfortunate souls.
3 3
 Giddings's
definition of an ideal state is an elitist one where superior men rule over
inferior men. He believed that the ideal state would be attainted through
social evolution. However, he noted that "[Tjhe greater the rate of progress
the heavier the costs become; the faster the march, the larger is the number
of exhausted who fall by the way".
34
 He proposed a system that provided
for those who fell behind in the evolutionary struggle and believed that
this was necessary because "[T]he stability of democracy thus depends,
first, upon the acceptance by the many of the guidance from those whose
superiority is real; secondly upon an unselfish activity on the part of the
superior few."
35
 Since these less evolved individuals were the least prepared
to adjust to social change, they were the most adversely affected by change;
SOCIAL JUSTICE AND SOCIAL CONTROL 21
those persons who were the superior few must therefore guide them. One
tool needed by these progressive individuals to guide the non-progressive
elements was knowledge, and it was this knowledge that the emerging
discipline of sociology could provide.
Giddings believed that those who were incapable of adjusting to
changes brought about in both the normative and occupational structure of
society became insane, criminal, committed suicide or sank into
vagabondage. He rejected claims that"... industrial derangements can be
prevented in a progressive world ...". Rather he believed that"... at all
times a portion of mankind must be relatively useless to the community."
36
Therefore, not only was the former claim unattainable, but if by some
chance social inequality was lessened, it would lead to social stagnation.
This stagnation and, ultimately, the demise of society would be brought
about because the less evolved members of society would have achieved
positions of dominance over the more evolved.
Not only did he reject the notion that industrial derangements could
be eliminated, but he refuted the proposition "... that unskilled labor creates
the wealth of the world. It would be nearer the truth to say that large
classes of unskilled labor hardly create their own subsistence."
37
 Giddings
contended that the non-progressive elements made minimal contributions
to social advancement because their jobs became obsolete as machines
replaced them and they continued to flood the markets and drain it of
financial resources. Although their contribution to the social organism was
minimum at best, they must be provided for because when competition is
fierce there "piles up in the community a frightful wreckage of physical
and moral degeneration."
38
 Therefore, he did not believe that the state
should ignore the plight of those who fell behind in the forward march of
society. Giddings did not believe that social failures should be abandoned
by the state, rather they were to be helped so that they would integrated
into society through the efforts of the progressive class.
One of Giddings's students, John Gillin, in his evaluation of Giddings's
impact upon sociology, asserted that others had misinterpreted Giddings
by implying that he had little concern for the welfare of the poor. Rather
than displaying little regard for the plight of the social failures, his positions
helped them re-enter society through state sponsored philanthropy.
39
 The
state 'was to make the social failures dependent upon itself by providing
them with philanthropy. The social failures, the poor, the mentally ill and
the criminals were to be guided and controlled by the social individuals,
i.e., superior, until they could develop a social nature. He maintained that
CriminalJustice System
... thé practically unfree task-worker of this présent time are
those who, unaided can accomplish none of thèse things.
They might do well in old familiar ways, but who hâve nothing
to turn to when their ways cease to be of value to thé world
... They are unfree task-workers not because society chooses
to oppress them, but because society has not yet devised or
stumbled upon any other dispositions to make of then.
Civilization, therefore, is not cruel. It is ever supporting.
40
Giddings did not accept thé notion of equality; those individuals who
could not compete in thé struggle for survival should become unfree task-
workers. He rejected thé belief that their wage slavery was cruel; quite thé
contraiy, he contended that since their skills were no longer needed by
society they would perish, become criminals or worse if they were not
made unfree task-workers.
Progress made thé least evolved members of thé state superfluous.
They provided no useful service that could not be donc more efficiently
by machines. However, since they existed they had to be provided with
work that would reward them with some type of respectability. Assistance
to thèse social failures, whether it was Financial or make-work occupations,
was not predicated upon altruism but on self-interest. If thèse individuals
were not cared for, they would demand radical social change, thus imperiling
social stability.
The récipients of social largesse had to be made to realize that
philanthropy was a gift given to them by society to ensure their survival,
not a right to which they were entitled. Philanthropy was to be given only
to those individuals who willingly submitted themselves to thé guidance of
their betters. Thus philanthropy was to be thé technique that was to be
used to control thé behavior of thé social failure.
Conclusion
Henderson and Giddings helped to set thé agenda for latter-day
sociologists. Henderson was one of thé earliest proponents of what can be
called thé social justice model of criminology. The proponents of social
justice argue that crime is caused by social inequities. Vast disparities between
thé wealth of one class and thé abject poverty of another créâtes a situation
in which crime can grow. Law enforcement agencies are incapable of
controlling behavior despite thé vast amount of money expended. Prisons
will need to be constantly expanded to house thé newest arrivais. However,
22
SOCIAL JUSTICE AND SOCIAL CONTROL 23
regardless of the cost, the social justice proponents argue, the problem of
crime will not be solved because the cause of the behavior is not being
addressed.
Giddings would make an entirely different argument. Crime is one
inevitable cost of social progress. The increase or decrease in crime is
simply a refection of the pace of social change. Social programs designed
to reduce the gap between the rich and poor are doomed to fail because
this gap is merely an indication of the relative value that an individual has
for the society. Those who have the most are those that have been able to
take advantage of the opportunities that are available. Controlling those
who have not been able to achieve wealth and status is the responsibility
of the state. The state is to reward the behavior of the acceptable social
failure with some form of financial assistance. For those whose behavior is
unacceptable, the cost is the withholding of assistance for some and the
imprisonment of others.
This paper has attempted to show that the notion of social justice and
social control are deeply rooted in American sociology. This debate between
the two approaches is as old as the discipline itself in this country.
Discussion Questions
1. It has been argued in this paper that Henderson's position has had a
dramatic influence on later developments in criminology. Assess the
validity of this statement.
2. Giddings's position has been described as central to the social control
approach to crime elimination. What are the bases of this claim?
3- In contemporary America, which of these theoretical approaches is the
most often utilized and what are the implications of this choice?
4. How would both Giddings and Henderson explain juvenile gangs in
contemporary society?
5. Why would Giddings support the death penalty and why would
Henderson oppose this policy?
6. What are the crime control policies that would follow from these two
positions?
Endnotes
1
 Robert L. Paris, Chicago Sociology 1920-1930 (San Francisco, California:
Chandler Publishing Co., 196?) p. 13-
24 CriminalJustice System
2
 Arthur Vidich and Stanford Lyrnan, American Sociology Worldly Rejection of
Religion and their Direction (New Haven, Connecticut: Yale University Press,
1985) p. 111.
3
 Ibid., p. 105.
4
 Ibid., p. 105-
5
 Henderson identified two additional causes of crime—the climate and
heredity. Although he did identify these two factors as being related to
crime, he minimized their importance to the onset of crime.
6
 William Burger, American Crime and Punishment: The Religious Origins of
American Criminology (Buchanan, Mi.: Vande Vere Publishing, 1993) p. 21.
7
 Charles Richmond Henderson, An Introduction to the Study of the Dependent,
Defective and Delinquent Classes (Boston, Mass.: D.C. Heath and Company,
1893), p. 23.
8
 William Burger, American Crime and Punishment, op. cit., p. 23.
9
 Charles Richmond Henderson, An Introduction to the Study of the Dependent,
Defective and Delinquent Classes, op. cit., p. 24.
10
 William Burger, American Crime and Punishment, op cit.,p. 24.
11
 Charles Richmond Henderson, Social Duties from the Christian Point of
View: A Textbook for the Study of Social Problems (Chicago, 111.: University of
Chicago Press, 1900) p. 228.
12
 Ibid., p. 229.
13
 William Burger, American Crime and Punishment, op. cit, p. 24.
14
 Charles Richmond Henderson, An Introduction to the Study of the Dependent,
Defective and Delinquent Classes, op. cit., p. 26.
15
 William Burger, American Crime and Punishment, op. cit., pp. 24-25
16
 Charles Richmond Henderson, An Introduction to the Study of the Dependent,
Defective and Delinquent Classes, op. cit., p. 28.
17
 Ibid., p. 28.
18
 William Burger, American Crime and Punishment, op cit., p. 25-
19
 Charles Richmond Henderson, An Introduction to the Study of the Dependent,
Defective and Delinquent Classes, op. cit, p. 111.
20
 William Burger, American Crime and Punishment, op. cit. p. 26.
2
 * Saint Joseph's Edition of the Holy Bible (New York: Catholic Book Publishing,
1963), p. 23-
22
 Charles Richmond Henderson, An Introduction to the Study of the Dependent,
Defective and Delinquent Classes, op. cit. p. 111.
23
 Charles Richmond Henderson, "The Scope of Social Technology" American
Journal Of Sociology Vol.6, No. 4, 1900, p. 468.
24
 Charles Richmond Henderson, An Introduction to the Study of the Dependent,
Defective and Delinquent Classes, op. cit. p. 228.
25
 Ibid., p. 239-
26
 Franklin Giddings, "Carriers of Criminality," Journal of Applied Sociology
Vol. X, No. 1, 1925, p- 1.
27
 Ibid., p. 2.
28
 Ibid., p. 3-
29
 Franklin Giddings, "The Ethics of Social Progress," Philanthropy and Social
Progress, reprint edition (Montclair, New Jersey: Patterson Smith, 1970) pp.
240-241.
SOCIAL JUSTICE AND SOCIAL CONTROL 25
30
 Franklin Giddings, "The Ethics of Social Progress," op. cit., p. 209-
31
 Ibid., pp. 217-218
32
 Ibid., pp. 217-218.
33
 Ibid., p. 233.
34
 Ibid., p. 218.
35
 Franklin Giddings, The Elements of Sociology; A Text Book for Colleges and
Schools (London: Macmillian and Company, 1898), p. 321.
36
 . Ibid., p. 243.
37
 Ibid., p. 227.
38
 Ibid. p. 237.
39
 John Gillin, "Masters of Social Science: Franklin Giddings," Social Forces
Vol. 5 No. 2. 1926. p. 202
41
 Franklin Giddings, "Ethics of Social Progress," op. cit., p. 229-
Selected Bibliography
Burger, William. 1993. American Crime and Punishment: The Religious Origins
of American Criminology. Buchanan, Mi: Vande Vere.
Giddings, Franklin. 1897. The Theory of Socialization. A Syllabus on Sociological
Problems. London: Macmillan.
. 1898. The Elements of Sociology. A Text Book for Colleges and Schools.
New York: Macmillan.
. 1900. Democracy and Empire with Studies of Their Psychological,
Economic and Moral Foundation. New York: Macmillan.
. 1921. Readings in Descriptive and Historical Sociology. New York:
Macmillan.
. 1974. Perspectives in Social Inquiry. Originally published 1924. Reprint
edition New York: Arno Press.
. 1926. The Principles of Sociology. An Analysis of the Phenomena of
Association, third edition, London: Macmillan.
. 1970. "The Ethics of Social Progress." In Philanthropy and Social
Progress, Seven Essays. Originally published in 1893- Reprint edition. Montclair,
New Jersey: Patterson Smith.
. 1925. "Carriers of Criminality." Journal of Applied Sociology Vol.X,
No. 1.
Gillin, John. 1926. "Masters of Social Science." Social Forces Vol.5 No. 2.
Henderson, Charles Richmond. 1893- An Introduction to the Study of the Dependent,
Defective and Delinquent Classes. Boston, Massachusetts: D. C. Heath.
. 1900. Social Duties from the Christian Point of View: A Textbook for the
Study of Social Problems. Chicago, Illinois: University of Chicago Press.
. 1901.71)6 Social Spirit in America. Chicago Illinois: Scott Foreman.
. 1904. Modern Methods of Charity An Account of the Systems of Relief
Public and Private in the Principal Counties Having Modern Methods. London:
Macmillan.
26 CriminalJustice System
. 1915. Citizens in Industry. New York: D. Appleton Century Company
Inc.
Vidich, Arthur and Stanford M. Lyman. 1985- American Sociology Worldly
Rejections of Religion and Their Directions. New Haven, Connecticut: Yale
University Press.
Middle-Class Malaise
and the Just Society:
The American Dream
or Nightmare
Lawrence G. Hlad
Longwood College
HARLEM
What happens to a dream deferred?
Does it dry up like a raisin in the sun?
Or fester like a sore—
And then run?
Does it stink like rotten meat?
Or crust over—
Like a syrupy sweet?
Maybe it just sags
Like a heavy load.
Or does it explode?
Langston Hughes (1974)
Public opinion polls and contemporary commentary reveal a pervasive
concern that something is fundamentally wrong in American society. The
sources of this profound discontent have been variously perceived by
middle-class Americans as street criminals, ethnic and racial groups,
immigrants and drug offenders among others. Policy measures have been
Lawrence G. Hlad, a product of Boston and Princeton Universities, and the Union
Graduate School has taught Sociology at Longwood College for the past twenty years.
His teaching interests include Criminology, Sociology of Law and Juvenile Delinquency,
paticularly as these topics focus on Social Justice and Change. Hlad has maintained a
deep and abiding fasination as well with Environmental Sociology, future studies and
policy applications of the "sociological Immagination", throughout his academic career.
CHAPTER
2
28 CriminalJustice System
proposed and generated to address these populations in order to resuscitate
"the American dream." Political campaigns have focused on these targets,
and politicians claim to offer solutions. This paper argues that, historically
in American society, whenever complex problems of severe magnitude
emerge, decision-makers have opted for simplistic solutions, and current
policy measures are no different. Exploitative and unjust in character, these
policies focus upon the most powerless segments of society and ignore
the underlying dynamic of substantial economic change. Alternative policy
measures are considered and recommendations made to reconstruct the
American dream.
Nature of the American Dream and Social Justice
It was a most remarkable and unique society. Characterized by an
open social stratification system that recognized talent and permitted
unlimited achievement, the only limit was self-imposed. Economic and
social dreams could be realized by a combination of dint of sheer effort and
meritorious abilities. Indeed, the ultimate sin was not trying and failing but
failing to try. No matter how humble or meager your "accident of birth," if
you wanted it "bad enough," you could "make it" in American society.
In addition, America was blessed with such an abundance of resources
that commentators like David M. Potter (1954) considered Americans to
be People of Plenty, whose national character was formed in the context of
economic affluence. In his work, The Hunger for More, Laurence Shames
(1986) maintains mat the venerable "frontier thesis" of historian Frederick
Jackson Turner was not just a matter of land acquisition, but a metaphor for
"more:"
Frontier; opportunity; more. This has been the American trinity
from the very start. The frontier was the backdrop and also
the raw material for the streak of economic booms. The
booms became the goad and also the justification for the
myriad gambles and for Americans' famous optimism. The
optimism, in turn, shaped the schemes and visions that were
sometimes noble, sometimes appalling, always bold. The
frontier, as reality and as symbol, is what has shaped the
American way of doing things and the American sense of
what's worth doing, (p. 22)
Moreover, according to Shames, success and achievement in American
society have taken on a quantitative cast, so that the measure of anything
MIDDLE-CLASS MALAISE AND THE JUST SOCIETY 29
is against the yardstick of economic accomplishment with little consideration
given to alternative assessments of growth and development. If you cannot
translate your accomplishments into economic success, then you are truly
not successful.
Another dimension of the American Dream which requires specification
is the importance of "playing by the rules" to accomplish your goals. As
Richard Rubenstein (1970) has argued:
"The United States, consensus scholars believed, was the
one nation in which extremely diverse groups had learned
to compromise their differences peaceably. American society,
they held, was blessed by a blurring of divisions between a
multiplicity of economic, social, political and ethnic groups.
For one reason or another (either because the land was
fertile or the people hardworking, or because no true
aristocracy or proletariat ever developed on American soil,
or because the two-party system "worked so well) any sizable
domestic group could gain its proper share of power,
prosperity and respectability merely by playing the game
according to the rules. In the process, the group itself would
tend to lose coherence and to be incorporated into the great
middle class. The result, it "was said, was something unique
in \vorld history—real progress "without violent group conflict.
In such an America there "was no need —there never had
been a need—for political violence. Rising domestic groups
had not been compelled to be revolutionary, nor had the
"ins" generally resorted to force to keep them out. American
had mastered the art of peaceful power transference, a feat
which established both her uniqueness as a nation and her
fitness to lead the "world." (pp. 5 and 6)
To summarize, the promise of the American dream is that of three
interrelated themes. One is that of limitless upward social mobility, bounded
only by ambition. As everyone expects more and pursues economic success
to attain this continually elusive goal, the "good life" becomes one of material
acquisition.
A second theme is that no adult member of the society is routinely
forbidden from participating in the mobility competition by virtue of socio-
economic status, ethnicity, religion, gender or group affiliation. Equality of
opportunity exists, and any failure to achieve is directly attributable to a
lack of individual ambition or personal incompetence.
30 CriminalJustice System
Of course, this presumes the third theme that the competition is
conducted in an impartial and totally fair fashion and that all participants
"play by the rules." Any departure from this traditional normative expectation
would be met by swift and sure social sanctions. In this fashion, a democratic
meritocracy emerges.
The "just society" then is one in which each societal member can go as
far as her or his talent will permit, employing the vehicle of formal education
as the socially acceptable means of reaching that goal. If you have acquired
the appropriate credentials and mastered the appropriate skills, and have
the necessary ambition and work ethic, your success is assured and justice
done. Rewards follow from abilities in a direct cause-and-effect sequence,
and any deviation from this relationship is aberrant and weakens social
commitment.
Nature of the Contemporary Social Malaise
Today, however, increasing numbers of Americans are aware that
something is going terribly wrong with our society. Confirmation of this
brooding concern is found in three distinct kinds of sources: public opinion
polls, historical and contemporary interpretative analyses, and empirical
social science studies.
An illustration of this malaise is found in a recent Knight-Ridder
Washington Bureau poll by Princeton Survey Research Associates (Cannon,
1996). Not surprisingly, the top five "most important" issues are respectively:
crime and drugs (78 percent); attention to children (73 percent); public
education (69 percent); federal deficit (64 percent); and low moral standards
(59 percent).
However, most interestingly, a "dual view" of the economy is widely
shared:
Many personally optimistic Americans feel dubious about
the larger economy and the circumstances of other, less
fortunate people. The current uneasiness about the
economy—28 percent consider it to be in poor shape—is
nothing like three years ago, when 42 percent judged it that
way. But most people aren't hopeful about improvement
over the next year. (Cannon, 1996, p. Al6)
Moreover, the survey results indicate that the majority of Americans
perceive that the only segment of society who "got ahead" in the last
decade was "the wealthy." Combined with the observations on the five
MIDDLE-CLASS MALAISE AND THE JUST SOCIETY 31
most important problems and the sour economy, is it any wonder that
many Americans yearn for a more blissful time?
A companion analysis of the Knight-Ridder survey reveals that the
"best decade" for rearing children was overwhelmingly the 1950s according
to the respondents. Why the 1950s? According to Thomma (1996, p. 16)
author David Halberstam claims that:
The economy was on a huge roll .... It was not only a time of
affluence, but a time of a blue-collar economy. Millions and
millions of people "were coming into the middle class. You
could work in a factory, buy a house and send your kids to
college.
In short, the 1950s were perceived as a time when the American dream
could be fully realized.
A similar picture of contemporary dismay emerges from another public
opinion poll conducted by The New York Times in August, 1995. The "Top
Ten Voter Concerns*" according to this publication across the nation were:
Economic crisis 24%
Quality of life 15%
Peace 9%
Political leadership 8%
Ethnic conflicts 7%
High prices 6%
Chaos and disorder 4%
Crime 4%
Unemployment 4%
Moral and social decline 2%
("Lower percentage answers not included)
(TIME Education Program, 1996, p. 4)
Despite the plethora of concerns, it seems that economic issues lead the
list by a substantial margin. Something is not right with the economy and
these issues must be addressed.
Further evidence of concerns is found in recent Republican primaries.
The ghost of a kind of populism has been exhumed by Patrick Buchanan
in his attacks on NAFTA, GATT and multinational corporations. This
maverick's supporters agree that: "the country [is] in deep and serious
trouble" (71%); "the government should do more to promote traditional
values in our society" (62%); the U.S. should "radically reduce its role in
32 CriminalJustice System
international affairs" (60%); and a plank should be included in the 1996
Republican platform "supporting increased taxes or tariffs on foreign imports
(67%)" (Lacayo, 1996, p. 33).
Despite the fact that Robert Dole secured enough delegate support to
ensure him the Republican presidential nomination in 1996, Buchanan's
constituency is substantial and emphasizes a popular set of concerns that
other Republican candidates were not addressing. The author submits that
the roots of this concern lie in the perception that the economy is not
functioning "properly" and that the American dream is in a state of profound
decline.
Another type of evidence speaks to the same result. Interpretative
analyses based on open-ended interviews conducted throughout America
have indicated that awareness of the nature of the current malaise is
frequently a mixture of values and economics. Haynes Johnson, for example,
in his national analysis entitled Divided We Fall, offers the following
commentary that occurred in Mystic, Connecticut. A fifth-generation
salesman of velvet fabrics has just returned from a business trip to London
and joins a discussion of the severe defense cuts in the New London-
Groton area:
He listens, then says: "Maybe it's the best thing that ever
happened to us. It's our own fault. We don't have anybody
else to blame. We can't blame Reagan, we can't blame Bush,
we can't blame the Japanese. We ought to stop blaming
everybody else and face it. It's our problem. You know, we
had a paradise here, but we're not taking care of it. Americans
are just like water—we take the path of least resistance. We
go downhill. We're becoming a nation of waiters and
waitresses, and I don't look good in an apron. (Johnson,
1994, p. 31)
Especially poignant observations abound in Katherine Newman's latest
book, Declining Fortunes: The Withering of'the American Dream (1996),
which focuses on baby boomers living in a suburban community. Lauren
Caulder, born in the 1950s when the American dream was alive and well,
was committed to the work ethic as the legitimate means to material
affluence and upward social mobility. Accordingly, she played by the rules,
worked hard, became properly credentialed and still was rebuffed by
economic reality:
MIDDLE-CLASS MALAISE AND THE JUST SOCIETY 33
I'll never have what my parents had. I can't even dream of
that. I'm living a lifestyle that's way lower than it was when I
was growing up and it's depressing. You know it's a rude
awakening when you're out in the •world on your own.... I
took what was given to me and tried to use it the best way I
could. Even if you are a hard •worker and you never skipped
a beat, you followed all the rules, did everything they told
you you were supposed to do, it's still horrendous. They lied
to me. You don't get where you -were supposed to wind up.
At the end of the road it isn't there. I worked all those years
and then I didn't get to candy land. The prize wasn't there,
damn it. (Newman, 1996, p. 255)
Numerous other citations abound in both books to document the case. To
avoid redundancy, however, the author will turn to other, more quantitative
measures of the American economy, returning to the sources above later
in the writing.
Recent newspaper headlines continue to herald the decline of the
economy. "Median household income in state shows big drop" proclaims
the Richmond Times-Dispatch noting that Virginia's median household
income plummeted by some $2702 from 1992 to 1994. This precipitous
decline is attributed to declining Federal civilian and military spending.
Moreover, Steven Peterson, an economist, observes that the gross state
product at 154 billion was one of the best in the country. This paradoxical
situation prompts the question "....who gets it?... It appears the rich are
getting richer [andl the rank-and-file laborers aren't getting the proceeds"
(Gore, 1996, p. A5).
Likewise, national data from the U.S. Labor Department indicate that:
"Wages and benefits in 1995 rose at the slowest pace in at least 15 years as
layoffs and other cost-cutting moves held worker pay demands in check.
Total compensation, including health coverage and other fringe benefits,
rose a meager 2.9% last year, or just 0.4% after inflation ..." (Montague,
1996, p. 1A).
In an outstanding empirical analysis, Marvin E. Olsen has documented
the essence of this economic transformation. To answer the question as to
whether the "middle class" is "gaining or losing income relative to other
classes," Olsen compares income data from 1970-1987. Examining income
distributions based on income quintiles reveals a potentially troubling set
of results. As can be seen in Table 32.2, taken from his study, the three
lowest quintiles definitely lost proportionate share of total income from
1970 to 1987, while at the same time the highest 20 percent of the U.S.
34 Criminal Justice System
population realized substantial economic gain. Moreover, the top 5 percent
of all families realized the largest gain of all:
Table 32.2: Proportions of Total Income Received by Family Income
Quintiles in 1970 and 1987, and also by the Top 5
Percent of All Families, and Rates of Change during
That Period
Percentage Percentage Percentage
of Total of Total Change
Family Income Income Income
Quintiles in 1970 in 1987
Lowest 20% of all families 5.4 4.6 -4.2
Second 20% of all families 12.2 10.8 -11.5
Third 20% of all families 17.8 16.9 -5.1
Fourth 20% of all families 23-9 24.1 +0.8
Highest 20% of all families 40.9 43.7 +6.8
Top 5% of all families 15-5 16.9 +9-0
(Olsen, 1994, p. 366)
Once again, the same message emerges: "The affluent prospered while
most other people struggled financially" (Olsen, 1994, p. 366).
Also, as earlier argued, Olsen notes that American society has continually
relied on economic growth as the most important factor to preserve the
American dream. Unlike Scandinavian societies, there has been no serious
attempt in the United States to redistribute income or wealth in order to
make the society more equal economically. If the "financial pie" continues
to grow, then the "rising tide will lift all boats," or such is the illusion.
Essentially, this is what has transpired in America's century, that is, the
twentieth century. With the obvious historical exception of the 1930s
depression years, economic growth has continued virtually unabated,
particularly accelerating in the post-World War II period until the early
1970s. Optimistic projections by the likes of Gerhard Lenski and Daniel
Bell in the 1960s lent sociological expertise to this supportive motivation
for the American dream. In Olsen's words:
As long as the economy continued to expand, proponents
of this perspective could insist that what really counted for
most people was their actual level of living, not their relative
MIDDLE-CLASS MALAISE AND THE JUST SOCIETY 35
status in an abstract income distribution. As long as they
were living fairly comfortably and could look forward to
even more income in the future, why should they care if
other people were making five or even ten times as much
money as they were? (Olsen, 1994, p. 369)
But, what if economic growth slows or reverses itself for significant
portions of the socio-economic hierarchy? Are there no "limits to growth"
dynamics in economics? Will the past continue indefinitely into the future?
If it does not, what are the implications for the future, and what of the
hopes for realization of the American dream? Will people remain committed
to "the system?"
Such is the current situation, according to many authorities, that creates
so much dissatisfaction and disenchantment with the current social scene.
As Haynes Johnson has observed:
Long before the Nineties, that process of decline was already
taking place. For two decades the American standard of living
has been declining as real incomes—wages and salaries
adjusted for inflation—stagnated. From the end of World
War II to the early 1970s, the U.S. economy grew at a rate
that enabled its people to double their standards of living
over a generation. Over the next twenty years, as the
restructuring of basic industries was underway, America's
growth rate was so low that it will take a century to double
standards of living. (Johnson, 1994, p. 36)
Culprits and Causes
What accounts for this economic decline and accompanying malaise?
According to conservative pundits, politicians and populists, the problem is
essentially a moral one—a profound values shift—that is threatening to
tear apart the social fabric of American society. In the extreme, the "traditional
values" are being assaulted by "humanistic liberalism" which endorses
secularism to the exclusion of religion; sexual permissiveness instead of
family responsibility; the rights of criminals over the rights of victims; and
the rights of women over the rights of the unborn child, among many
others.
Therefore, the tendency is to explain the current malaise by referring
to the moral failings of suspect populations. The blame for our social
condition is the behavior of the moral riff-raff who, encouraged by "liberal"
36 CriminalJustice System
thinkers, are dragging the entire society into the gutter of despondency.
Accordingly, "round up the usual suspects" and you will eradicate the
fundamental causes of our discontent: teenaged, unwed mothers, welfare
cheats, criminals and unwelcome immigrants. Pat Buchanan, with his neo-
populist agenda, would target, in addition to the list above: pro-choice
advocates, gun control "nuts," corporate CEOs who extend their capitalistic
reach beyond the nation's borders and undesirable aliens who must be
physically restricted to their "own country." Once these populations are
under control, America will be in the hands of the honest, hard-working
citizens, and our current societal aberrations will be at an end.
Historically, in American society, whenever a fundamental crisis has
emerged, particularly one that is characterized by unclarity and insecurity,
we have resolved the problem through targeting a scapegoat to blame for
the situation. To be most effective in applying sanctions, the scapegoat
must be politically powerless so that the stigma will "stick" and the "cure"
achieved.
For example, consider the legislation enacted to designate certain drugs
as illegal. As Lawrence M. Friedman has noted: "Criminal justice has always
been biased against the underclass, the unattached, the unrespectable"
(Friedman, 1993, p. 379). He also quotes David Musto to the effect that
the Harrison Narcotic Drug Act of 1914 was an attempt to attribute blame
to the victims of these drugs: "Cocaine raised the specter of the wild Negro,
opium the devious Chinese, morphine the tramps in the slums" (Friedman,
1993, p. 355).
Likewise, immigration in American life has been characterized by a
lack of governmental control in the main, according to Roger Daniels's
historical treatment. However, there have been "three discreet phases of
anti-immigrant activity, or nativism" which can be determined:
The first phase, anti-Catholic, was aimed at Irish Catholic
and to a lesser extent German Catholic immigration and
flourished from the late 1830s to the mid-1850s. In some
respects, it never completely died out. The second phase,
anti-Asian, much more specific, "was triggered by Chinese
immigration and flourished from the early 1870s until the
passage of the Chinese Exclusion Act of 1882. Successor
movements would be directed against Japanese in the period
from about 1905 to 1924 and against Filipinos in the 1920s
and 1930s; this anti-Asian component of American nativism,
like anti-Catholicism, has never entirely disappeared. Finally,
the third phase, anti-a// immigrants, began in the mid-1880s,
MIDDLE-CLASS MALAISE AND THE JUST SOCIETY 37
when a movement for general restriction of immigration
gained popularity, and finally triumphed in the Immigration
Act of 1924, which dominated American immigration policy
for the next forty years. There was never a time when nativist
attitudes were not present in American society. They existed
in the colonial period and are enjoying a revival today."
(Daniels, 1990, p. 265)
So, when the going gets tough, Americans tend to scapegoat rather than
address the fundamental problems. What this represents, in a classic fashion,
is what William Ryan has termed Blaming the Victim (1976).
According to an alternative explanatory scheme, what accounts for the
increasing income gap between the rich and the rest of the society are
substantial structural changes in the economy, for example, the essential
change in society from a manufacturing to a service economy—or as Barry
Bluestone and Bennett Harrison have titled their work The
Deindustrialization of America (1982). In addition to the rise of service
occupations, there has been a severe decline in manufacturing positions in
the United State of America.
Service occupations tend to be lower-paid positions compared with
manufacturing jobs, and therefore there has been a corresponding rise of
minimum wage occupations and the emergence of considerable part-time
employment as well. Given the economic opportunity structure, the demise
of the manufacturing sector has released employees into the job market to
compete for the scarce service sector positions with their considerably
lower wage rewards.
In addition, apparently in the unrelenting quest for profit, corporations
have turned in increasing frequency in recent years to "downsizing," with
the attendant employee layoffs and personal dislocations. Job insecurity as
a result of these downsizing policies has lead to morale and productivity
problems in the workplace with workers wondering if they are next to be
terminated. Even corporate giants with records of stability and achievement,
such as IBM and AT&T, are no strangers to downsizing and layoffs.
Other factors have exacerbated the economic woes of the middle and
working classes, including federal tax cuts for the well-to-do and the
concomitant rapid rise of executive pay and corporate profits:
In the Eighties, too, wealthiest Americans benefited the most
from tax cuts. The effective tax rate on the -wealthiest 10
38 CriminalJustice System
percent of the population dropped by about a seventh,
declining from 28.6 percent in 1980 to 24.5 percent in 1985-
Another shift intensified the economic inequity. By the
Nineties, heads of American corporations were earning more
than ninety times as much as industrial workers, a stunning
disparity that had more than doubled in a decade—in 1980,
they were earning forty times more than workers." (Johnson,
1994, p. 37)
Moreover, to maintain family economic solvency, the last four decades
or so have seen a dramatic increase in female labor participation. Working
wives have joined the ranks of labor and the dual wage earner family has
become the norm. However, there is increasing evidence that this strategy
no longer is maintaining economic stability, and the resort to credit purchases
is no longer viable as consumer debts rise to an all-time high. As Olsen
speculates, in the near future, "a majority of the population begins riding a
downward financial escalator" (1994, p. 372). Indeed, that day of reckoning
may already be here.
Public Policy Recommendations
If the first analysis of the causes of economic disparity in America is
employed, that is, the conservative model of the status quo, then the
solutions to our problems are evident. The capitalistic economic system is
viable, the current economic state is a brief aberration and we must grow
ourselves back to financial health. While economic growth is the ultimate
answer to our temporary malaise, social control mechanisms should be
utilized to clear the path of obstructions.
Accordingly, America should enact policies that change the moral
climate: reinstating traditional values; restricting immigration; "cracking down"
on drug use and abuse; balancing the federal budget; reducing the level of
federal taxation and overregulation; and changing welfare to "workfare."
By changing individuals through social control channels, America can be
returned to social "greatness," and social justice will be attained.
If, on the other hand, the alternative liberal model is seen to best
explain the contemporary economic disparity in America, then an entirely
different set of policy recommendations is forthcoming. If substantial
economic change is occurring, with its concomitant social dislocations, then
it follows that there should be some limits to growth in order to cushion the
effects on an increasingly larger discouraged population.
MIDDLE-CLASS MALAISE AND THE JUST SOCIETY 39
A host of policies comes to mind: raising the minimum wage;
redistributing income and wealth; developing truly portable medical care;
a full employment policy; substantial and realistic job retraining; improving
occupational security and social climate; increasing child-care facilities; and
perhaps even the removal of legal barriers to unionization. Olsen, in his
seminal analysis, also proposes a number of programs and policies "that
would recognize the right of all citizens to as much free education as they
wish and can utilize, total health care for all people, complete legal assistance,
and adequate housing for everyone" (1994, p. 372).
In short, social justice can only be achieved if there is recognition that
governmental intervention is necessary to establish a stronger sense of
security and community. As Laurence Shames has succinctly noted about
America in the 1990s:
The ethic of decency has been upstaged by the ethic of
success. The concept of growth has been applied almost
exclusively to things that can be measured, counted, •weighed.
And the hunger for those things that are unmeasurable but
fine—the sorts of accomplishments that cannot be undone
by circumstance or a shift in social fashion, the kind of
serenity that cannot be shattered by tomorrow's headline—
has gone largely unfulfilled, and even unacknowledged. (1991,
pp. 22-3)
In conclusion, it appears to this analyst that we have reached a
•watershed in American history. We can either embark on a path of greater
social control that promises to generate a growing economy and social
justice through a "tide that raises all boats," or we can create social policies
that control economic growth to maximize social justice for all. The path
we choose has consequences for democratic participation and commitment
and confidence in the system. If the sentiments expressed in nationwide
interviews become "writ large," then ominous storm clouds are indeed on
the horizon. As Katherine Newman reports, one of her respondents
maintains:
I've always killed myself for a reason. I killed myself in school
to get the good grades, and that was the reward, thank you
very much. I got my A's. All the -way along, I was rewarded
in just the way I was supposed to be ....That was what the
book said. And then you get out here to the real world and
40 Criminal Justice System
suddenly the last chapter is a sad joke. You're told you work
hard for a living and you can buy a house in [your hometown],
or the next town down the line that's a little cheaper. But its
not true and it's really very perturbing." (Newman, 1996,
p- 256)
What does it mean to a society if people live by the book, follow all the
rules, do the right thing and ultimately find out that "the last chapter is a
sad joke?" Is it not a cruel hoax for these people? Can a society truly be a
just society if significant portions of the population are denied economic
fairness through no fault of their own? What happens to the American
dream if the middle classes lose faith in the system? Does this toll the death
knell for this democracy?
Discussion Questions
1. Is the current economic and social situation in America a reflection of a
long-term trend or illustrative of a short-term aberration?
2. Is America culturally unique or do the problems cited in this article
plague other post-industrial democracies, such as Canada or Western
Europe?
3. How important is the notion of "community" in an individualistic economic
enterprise like capitalism? Must there be shared goals or consensual
ideology for a society to prosper?
4. Can democracy function effectively if its citizens lose faith in its institutions?
How important are cultural beliefs?
5. What is the proper role of government in the functioning of the economy
in advanced post-industrial economies, laissez-faire or activist-
interventionist? What is just and fair?
6. If a society's members feel that, despite their best efforts, the system is
not rewarding them adequately, how do they address this grievance—
acquiescence, acquisition or activism?
Selected Bibliography
Bender, David L, (ed.). 1989- American Values, Opposing Viewpoints Series.
San Diego, CA: Greenhaven Press.
MIDDLE-CLASS MALAISE AND THE JUST SOCIETY 41
Bluestone, Barry and Bennett Harrison. 1982. TheDeindustrialization of America:
Plant Closings, Community Abandonment, and the Dismantling of Basic
Industry. New York, NY: Basic Books.
Cannon, Angie. 1996. "Emerging Voice of America Sounds Benevolent, Hopeful,"
Richmond Times-Dispatch, February 11: Al and Al6.
Daniels, Roger. 1990. Coming to America. New York, NY: Harper Collins.
Friedman, Lawrence M. 1993. Crime and Punishment in American History.
New York, NY: Basic Books.
Gore, Mollie. 1996. "Median Household Income in State Shows Big Drop,"
Richmond Times-Dispatch, March 25: Al and A5.
Hughes, Langston. 1974. Quotation from The Panther and the Lash as cited in
Hardert, Ronald, Howard Parker, Erdwin H. Pfuhl, and William Anderson,
Sociology and Social Issues. Coite Madera, CA: Rinehart Press.
Johnson, Haynes. 1994. Divided We Fall. New York, NY: W. W. Norton.
Lacayo, Richard. 1996. "The Case Against Buchanan," Time, March 4: 24-29-
Montague, Bill. 1996. "Wages Rose 2.9%; Lowest in 15 Years," USA Today,
February 14: 1A.
Newman, Katherine S. 1996. "Declining Fortunes: The Withering of the American
Dream." Pp. 253-264 in Ferguson, Susan J., (ed.), Mapping the Social
Landscape. Palo Alto, CA: Mayfield Publishing.
Olsen, Marvin E. 1994. "The Affluent Prosper While Everyone Else Struggles."
Pp. 361-374 in Carter, Greg Lee, (ed.), Empirical Approaches to Sociology.
New York, NY: Macmillan.
Potter, David M. 1954. People of Plenty. Chicago, IL: University of Chicago Press.
Reno, Robert. 1995. "The Party Practicing Economic Fairness Will Win in 1996."
Richmond Times-Dispatch, June 11: J8.
Rubenstein, Richard. 1970. Rebels in Eden. Boston, MA: Little, Brown and Co.
Ryan, William. 1976. Blaming the Victim, rev. ed. New York, NY: Vintage Books.
Shames, Laurence. 1991- The Hunger for More. New York, NY: Vintage Books.
Thomma, Steven. 1996. "Back to the 50's," Richmond Times-Dispatch, February
11: Al6.
Time Education Program, March 4, 1996, p. 4.
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Some Myths and
Realities about Social Control in
the U.S.
Joseph Dillon Davey
Western New England College
Introduction
"Crime has become Public Enemy Number 1", according to a recent
Time essay, and "a bigger concern to most people than joblessness or the
federal deficit..."
1
 How is it that crime could have become such a public
obsession when, according to the National Crime Survey, the crime rate hit
a peak in 1979 of 41 million victimizations and has been falling ever since
to roughly 34 million in 1995?
Why is it that a recent nationwide poll showed that "89% of those
surveyed think crime is getting worse..."
2
 when even inflated figures in the
"reported crime" of the FBI's Uniform Crime Reports are showing significant
annual decreases (for example, 1980 the UCR rate of 5950 per one hundred
thousand population and the 1993 rate of 5482)?
3
In referring to the public's perspective on the contemporary problem
of crime in the United States, The Nation has recently editorialized: "Rarely
has political consensus strayed so far from the facts."
4
 In other words, there
are very few examples where the public view of a social problem is less
justified by the realities of the situation than the subject of the contemporary
crime problem.
The answer to this enigma lies, at least in part, in the political exploitation
of public confusion about and fear of crime. This exploitation has come in
the form of the innumerable "law and order" campaigns that have been
waged for almost three decades—since the mid-sixties when the first of
Joseph Dillon Davey, J.D., Ph.D., is an attorney, a political scientist and the author of
The New Social Contract: America's Journey from Welfare State to Police State, as well as
numerous articles and chapters on public policy. He has taught law, political science
and criminal justice for over the last two decades. Next spring, Greenwood Publishers
will publish his most recent book, The Politics of Prison Expansion: Winning Elections
by Waging War on Crime. He is currently a professor at Western New England College.
CHAPTER
3
44 CriminalJustice System
the baby boomers entered the "crime prone age group" and, predictably,
sent crime rates spiraling upward.
One recent study of this problem found that an examination of every
crime story covered by Time, Newsweek and U.S. News and World Report
from 1956 to 1991 concluded "that 'media amnesia' has allowed each new
anti-crime crusade to be portrayed as if the preceding ones had not
happened..."
5
 These crusades have been of enormous value to some political
candidates.
In the past it has been assumed that the beneficiaries of the law and
order campaigns have been conservative Republicans. However, it has
been recently argued that no political candidate is safe ignoring the crime
issue, and that every "candidate for public office in the United States this
year is unwilling to challenge the prevailing rhetoric and talk reality on
crime and punishment."
6
 In other words, what was once the exclusive
province of conservative Republican political candidates is now more
widespread. Concludes one editor: "Both parties now go by the once
Republican equation that 'soft on crime' adds up to liberal loser."
7
 Despite
objections that "the Constitution should not be used to score political points"
that came from White House advisors, the Clinton administration proposed
a "victims rights amendment" in the 1996 campaign in order to respond to
Republican initiatives in the tough-on-crime area.
8
Of course, American election results of the last two decades have
indicated that the voters feel very strongly about issues of crime and its
control. Almost without exception, law and order candidates have been
successful in exploiting the voters fear of what they perceive to be a crime
problem that is out of control. While Republican candidates were the primary
beneficiaries of these campaigns, there are few Democrat candidates today
who would risk appearing in any way to be soft on crime. All candidates
understand that the public wants them to do something about crime. Most
often that "something" translates into more steps to control criminals. More
prisons, more jails, less plea bargaining, less parole and more Draconian
sentences.
The criminal justice system has been politicized more in the last two
decades than it has ever been before in American history. And the public
understanding of the problem of crime has been exploited by the media,
who want higher ratings, and the political candidates, who want to ride the
get-tough mood into office. For instance, public opinion polls show that it
is widely believed that the American crime rate has increased so much
over the past two decades that today crime is out of control.
MYTHS AND REALITIES ABOUT SOCIAL CONTROL 45
Moreover, it is believed by the public that the reason for this crime rate
is that the U.S. criminal justice system is excessively lenient; that sentences
are not severe enough; that plea bargaining has made punishment a rarity
and that parole translates into inmates doing a small fraction of the time
that justice demands that they should be doing. The public then concludes
that an all-out, get-tough policy of social control could eliminate such
intractable social ills as the drug problem. Lets examine these beliefs.
Crime is Out of Control
The data show that the rate of serious crime in the United States is
going down. The U.S. Justice Department's National Crime Survey indicates
that in 1979 there were 41 million serious offenses committed in the U.S.;
the same survey shows that in 1994 there were less than 34 million such
offenses. The rate of crime per thousand population in the U.S. has gone
down over 25 percent since 1979-
Still, public opinion polls show that very few people are aware of this.
This situation exists because, until very recently, the media ignored the
National Crime Survey (NCS) and quoted the Uniform Crime Reports (UCR)
as the primary—if not exclusive—source of crime information. Since the
UCR is based on "reported" crime and the percentage of crime victims
who "report" the offense has grown rapidly, we have seen a "reporting
wave," which the media has misinterpreted as a "crime wave."
Recently, there have been some attempts to clarify these statistics by
the media. For instance, the New York Times would quote the UCR every
year and say things such as "the rate of violent crime in the United States
established a new record high of 758 per one hundred thousand
population."
9
 What they meant, of course, was that there had been more
"reports" of violent crime than ever before. Actually, the NCS showed that
violent crime had been falling since its peak in 1979-
The New York Times finally acknowledged this on June 12,1994, with
an article that refers to the NCS as the most accurate measure of crime in
the U.S. and conceded that "violent offenses per 1,000 people declined
from 1980 to 1991." Other media sources have followed suit.
The response to these figures from the law and order political leaders
has generally been that even if crime is going down, we still have far more
than other Western nations. While the image of the U.S. as the crime capital
of the Western world is widely and ardently believed, this too turns out to
be a myth.
46 CriminalJustice System
In 1995 James Lynch of American University and Bureau of Social
Science Research wrote:
Newly available data on the prevalence of crime cross-
nationally and some of the analyses of these data can make
cross-national comparisons more useful in informing policy.
First, these data indicate that the United States is not the most
crime ridden of industrial democracies. The fact that the
United States does not differ from other common law nations
with respect to minor violence and serious property crime
casts doubt on global indictments of the United States as
having a criminal culture.
1
"
Even conservative, law and order advocate James Q. Wilson, who was,
during the seventies and eighties, the leading voice in the call for the get-
tough policy, concedes that the crime problem in the U.S. is not much
different from the rest of the industrial world. Wilson writes: "...any serious
discussion of crime must begin with the fact that, except for homicide,
most industrialized nations have crime rates that resemble those in the
United States. All the world is coming to look like America."
11
Crime is indeed very pervasive in the U.S. But the reality is that crime
is less pervasive today than it was in 1973 when the NCS began measuring
it, and there is even a lower rate of "reported crime" today than there was
in 1979- Moreover, international comparisons indicate that, with the exception
of homicide rates (which are strongly influenced by American gun policy),
the American crime rate is not greatly different from the other Organization
for Economic Co-operation and Development (O.E.C.D.) nations. Yet by
making the public more fearful, criminal justice professionals and the mass
media have assured the steady increase in funding for more coercive methods
of social control.
Prison Sentences are too Few and too Short
In 1973, even before the campaign for law and order got underway,
conservative social critic James Q. Wilson wrote: "The United States has, on
the whole, the most severe set of criminal penalties in its lawbooks of any
advanced Western nation."
12
 Nonetheless, the punitive sentencing policies
in the United States became drastically more punitive during the two decades
following Wilson's observation.
The United States has been awash in a punitive mood for the last
twenty years, and the result of this mood has been an unprecedented
increase in the proportion of the population that are incarcerated nationwide.
MYTHS AND REALITIES ABOUT SOCIAL CONTROL 47
If we accept the idea that the proportion of a population that is held in jails
or prisons is a fair measure of that nation's "punitiveness," then the U.S. is
by far the most punitive of all the O.E.C.D. nations. There is no other
Western nation that even comes close to incarcerating the same proportion
of its population as the U.S.
Prisons in the United States contained around 196,000 inmates in 1972.
By 1992 the population exceeded 846,000.
13
 Jails in the U.S. experienced
comparable growth during this period so that in the United States the
combined incarceration rate per 100,000 population in 1992 had risen to
504,
14
 the highest incarceration rate in the world,
15
 and more than five
times the incarceration rate of every Western European nation.
16
 It is likely
that this is a rate of incarceration never reached by any other democracy in
human history.
The rate of incarceration of black males in the U.S. is especially shocking.
American black males have an incarceration rate of 3370 per 100,000,
compared to 681 per 100,000 in South Africa.
17
 In other words, all other
things being equal, a black South African who migrates to the U.S. increases
his chances of winding up behind bars five-fold. Were he to move to
California, it may even be worse. One recent study showed that of all the
black males in their twenties who are currently living in California, those
who are either in prison, jail, probation or parole constitute 40 percent of
the total.
18
The price of all this punitiveness would have been unimaginable just a
few decades ago. The annual cost of keeping an inmate in prison varies
from state to state, but one authority has said that "a conservative estimate
is $25,000 in yearly operating costs per inmate"
19
 and the estimated
construction cost of a cell is $70-100,000. State spending on correctional
activities increased from $1.3 billion (in unadjusted dollars) in 1971 to an
estimated $40 billion today. The cost of incarceration in tax dollars has
provoked surprisingly few taxpayer complaints as this massive investment
in jails and prisons has continued.
And the numbers continue to grow rapidly. In 1996 there was something
of a construction boom going on in prisons. The Federal government is
constructing 26 new prisons; the states are constructing 95 new prisons.
The total number of new beds being built is around 104,000, and the total
cost of the construction is in the area of $7 billion.
20
 To put that in
perspective, remember that in 1972 there were 196,000 inmates in U.S.
prisons; and in 1996 alone we were building enough prison cells to house
an additional 104,000 inmates.
48 Criminal Justice System
There has never been a study on the amount of Political Action
Committee money that comes from either the construction companies
that receive these prison building contracts or the construction unions that
benefit from the many jobs involved. A third political force, the unions of
the correctional officers that will run the prisons, has also been ignored by
researchers.
Recent media reports, however, have referred to a growing amount of
patronage in this area
21
 and to the growing number of small towns that are
actively competing with one another to attract new prisons to their area.
22
Moreover, a study by the Edna McDonnell Clark Foundation on the "current
prison-building binge" analyzed the impact of the "corrections-industrial
complex" and raised questions about the extent of political patronage.
23
However, there maybe even more rapid growth in controlling offenders
through something called "CAMO"—electronic monitoring and house arrest
(known now as CAMO for computer assisted monitoring of offenders).
According to one CAMO authority this type of social control "is in its infancy
and may become the single most significant sentencing and correctional
alternative of the twenty-first century. Currently there may be as many as
seventy thousand offenders under some form of CAMO control, and this
number may well triple by the year 2000."
24
 Since the cost of CAMO is a
fraction of incarceration (and, in fact, frequently absorbed by the offender)
there is a great temptation to expand these programs.)
The trend toward further punitiveness appears to be not only growing
but becoming more bi-partisan. President Clinton's current crime bill stiffens
mandatory sentences, creates "trust funds" to build more prisons, allows
juveniles to be treated as adults for purposes of criminal prosecution and
extends the death penalty to 52 new crimes.
25
 Even Herbert Gans, who
concentrates his research on poverty rather than crime policy, has noted
the new bi-partisan attitude toward greater punitiveness. Gans recently
observed that "policies to eliminate street crime and related threats to
personal safety are as old as the hills, but now the Clinton administration
has set in motion a new spasm of increased punishments, longer prison
sentences and prison building."
26
The ultimate in punitiveness is the recent spate of "three strikes laws"
which generally give life in prison without possibility of parole for a third
felony conviction. Jerome Skolnick has observed that these laws probably
will "only serve to increase the public's fear of crime,"
27
 and others have
noted that the irony of "getting tough" with older criminals since the "three
time losers are at the verge of aging out of crime, anyway,"
28
 and since
MYTHS AND REALITIES ABOUT SOCIAL CONTROL 49
they are at the tail end of their offending career the "three strikes laws" will
do very little to reduce crime.
Perhaps the epitome of the effects that three strikes laws will have
was exemplified in a recent California case. "On March 2, 1995 Jerry
Dewayne Williams , a California man, was sentenced to a term of 25 years
to life for stealing a slice of pizza from some children."
29
 It is unlikely that
any other free society on earth would tolerate that level of punitiveness. In
short, it is a myth to suggest that the U.S. is soft on crime.
Plea Bargaining and Parole Make a Farce of Long
Sentences
A consistent complaint from the American public is that the criminal
justice system is overly lenient on criminals through a combination of plea
bargaining and parole. Current federal legislation states that unless a state
requires that a convicted offender serve at least 85 percent of their sentence,
that state will be denied federal criminal justice assistance. (The fact that
the state could easily change its penal code to provide a sentence that is
half of the current time, then require that the inmate serve 85 percent of
that time, is ignored by this "truth in sentencing act"). Plea bargaining and
parole should be understood for what they really are.
Every day prosecutors all over the country negotiate with armed robbers
for a guilty plea and they are forced to "swallow the gun," that is, drop the
charge to unarmed robbery and reduce the punishment to perhaps half of
what the penal code demands for those guilty of armed robbery. Many
have argued that this process should be stopped. This process is far less
harmful than it seems.
Assume that the people of a state are polled about the appropriate
punishment for a given offense. Since there is a finite amount of incarceration
time that the taxpayers are willing to pay for, any increase in "inmate
years" for say burglary, must sooner or later find a reduction in "inmate
years" elsewhere, say among child molesters or rapists. We simply cannot
afford to keep every offender behind bars for all time. Tough choices are
necessary.
Therefore, let us suppose that the voters are polled and are asked
how much time behind bars they feel is "fair" for specific crimes. For example,
how many years or months or weeks should be served by an individual
convicted of unarmed robbery. (Robbery is the taking of personal property
through force or fear; armed robbery—especially with a gun—is ordinarily
punished much more severely than robberies committed without a
weapon.)
50 CriminalJustice System
Assume that the voters indicate to their political leaders that they feel
it is fair for an unarmed robber to serve two years behind bars. That is
actually serve that time—-not get early release through parole, not plea
bargain the sentence down from two years and not receive a two-year
suspended sentence, but rather to live behind bars for 24 months. How do
we best implement the will of the voters in this case?
The hardline reformers say that we have to get tough with criminals
by seeing to it that they serve longer terms. Assume they are correct.
Assume that on average American prison sentences are presently too short
and we should increase the time served. How does a state legislature most
effectively increase the time served by convicted criminals? Those who
say "abolish plea bargaining and parole" should do a cost-benefit analysis
of the system.
Let's say that at present the penal code of a state calls for two years as
punishment for unarmed robbery. When a defendant charged with unarmed
robbery is brought to justice he is likely to be told that if a jury convicts him
he will get the maximum the law allows, i.e., two years. However, if he is
willing to save us the money and trouble of a trial we will find it in our
hearts to reduce his sentence to one year. In point of fact, something close
to 90 percent of all felony convictions nationwide come from such plea
bargains. If we are required to convict these people through criminal trials
instead of guilty pleas, we will need something like nine times as many
criminal courts—at a staggering cost.
When the defendant arrives at the state prison door, the warden is
likely to ask that he behave himself during his stay in prison; cooperate
with the staff, stay out of conflict with other inmates and do his time
peacefully. American wardens have around 600,000 correctional officers to
tend to the 15 million people held in prisons and jails. If they are unable to
persuade the average inmate to cooperate with their staff, it is likely they
will need a substantial increase in the ratio of staff to inmate. The cost of
prisons is already staggering; personnel costs are by far the biggest part of
a prison's budget. Increases in prison staff in order to control inmates would
add greatly to the cost of incarceration.
As a way of inducing cooperative behavior from the inmate, the warden
is likely to point out that state offers early parole, for example, a day off for
every day he stays out of trouble. The bottom line is that he will be home
in six months and he will become an example of the lenience which, we
are told, can only be avoided through the abolition of plea bargaining and
parole.
MYTHS AND REALITIES ABOUT SOCIAL CONTROL 51
In fact, most state legislators are well aware of this situation. Every
year they have the opportunity to revise the state penal code and change
the amount of time given for robbery, and it is likely that they already
have. The likelihood is that a good percentage of the legislators in any
given state were once district attorneys who prosecuted armed robbers
and know exactly what goes on. And that is why they long ago inflated the
sentence for armed robbery (and every other offense) so as to make
allowance for our current cost-effective system.
If a state wants an offender to actually serve two years in prison, they
will specify in their penal code a punishment of, say, eight years. That
way, the prosecutor can "bargain" with the obviously guilty to get them to
waive their right to a jury trial and plead guilty in exchange for half the
sentence, that is, four years.
Of course, when the warden explains the parole policy of the state, it
will become obvious to the inmate that it is in his interest to behave himself
in prison—thereby saving the taxpayer the cost of hiring many additional
correctional officers—so that he will only serve two years, the time thought
appropriate by the voters in the first place. If the voters feel that two years
is insufficient, then the penal code should be revised again.
It simply requires the doubling of the time threatened for a particular
crime to result in a doubling of the actual time served. The alternative of
stripping away the ability of the prosecutor and the warden to deal in a
cost-efficient way with defendants and inmates is recommended by those
who just do not understand the criminal justice system. The suggestion
that plea bargaining and parole lead to lenient treatment of offenders is
one more myth about the American justice system.
An All-out War on Drugs Could end the Drug Problem
Prisons may be helpful in keeping persistently violent people out of
society, but prisons do not change behavior, especially behavior like drug
use. First of all, there is probably not a single prison in the nation that does
not have drugs available for inmates who have the resources to purchase
them. Advocates of the drug war never answer the obvious question: If we
are unable to keep the supply of drugs away from customers in maximum
security prisons, how will we ever manage to end the supply on the streets
of a free society? Secondly, at best the U.S. probably does not have more
than about one percent of all drug users behind bars, despite spending
billions of dollars to lock up perhaps as many as 300,000 drug users.
The most responsible estimates are that there are around 40 million
people who use an illegal drug at least once a year. There are about 18 to
52 Criminal Justice System
35 million regular marijuana users in the U.S., five to ten million cocaine
users and five million heroin users.
30
 Despite the billions of dollars spent on
the war on drugs, the National Institute on Drug Abuse estimates that at
best we are incarcerating one-eighth of the country's hard-core cocaine
and heroin abusers.
31
 Therefore, even an exponential increase in incarceration
of drug offenders would still affect only a very small percentage of all
users. And what effect has the war on drugs had on the criminal justice
system?
The war on drugs has probably not changed the pattern of drug use in
the United States very much, but it has had a significant impact on prisons.
In 1981 the percentage of new inmates admitted to state prisons who
were drug offenders was 7.7 percent. By 1989 it had become 29-5 percent,
and the number of prison commitments for drug offenses grew six-fold,
from 11,487 in 1981 to 87,859 in 1989-
32
 By 1992 of all new admissions to
state prisons over 30 percent were for drug offenses.
33
 To put this in
perspective, consider the cost of "full-enforcement" of drug laws. If we
were to incarcerate every ding user in the U.S., the current cost of building
and operating the prisons necessary to house them for the first year would
come close to the entire gross national product.
It is almost certain that we are already increasing the level of danger
for most Americans by waging the war on drugs. In 1993 American police
made a little over 700,000 arrests for violent crimes and over a million
arrests for drug offenses.
34
 It is very likely that we are so crowding the
system with so many drug offenders that violent offenders are being
released early in order to make room for them.
And finally, consider the effectiveness of the war on drugs thus far. In
1965 the Bureau of Narcotics and Dangerous Drugs, the predecessor to
the Drug Enforcement Agency, estimated that of all the drugs headed
toward American streets, law enforcement was only able to seize about
five percent. Three decades later, after countless billions spent on the war
on the supply of drugs, DEA estimates that the percentage of drugs that
are seized by law enforcement is still around five percent. Will another
three decades change any of this? Will we ever suspend the law of supply
and demand? If 95 percent of a commodity is presently getting through to
the customer, what effect would there be if the other five percent also got
through? It is simply a myth that any society can imprison its way out of
the drug problem.
MYTHS AND REALITIES ABOUT SOCIAL CONTROL 53
Prisons are a Wise Investment
Emile Durkheim argued that the punishment of crime was an important
social function because it reinforced social values and helped hold society
together. He went on to suggest that if a society ever managed to eliminate
veiy serious offenses, then it would turn to less serious offenses to punish.
It was the process of punishment—"the degradation ceremonies"—that
gave the individual a sense of shared values.
It just might be that in today's United States society is willing to punish
less serious offenses out of the frustration felt by its inability to eliminate
the intractable homicide problem. The failure to deal successfully with
persistently high homicide rates may be causing us to lash out vehemently
at drug users and car thieves. Public attitudes toward further punitiveness
seems to be an outgrowth of some irrational, moral panic.
The American public may feel an ill-defined malaise with the way
things are going, and still be unable to articulate the causes of this malaise.
As Stuart Scheingold has argued: "Criminals provide a convenient target for
the anger that is widely felt, but is not quite appropriate to express, with
respect to unwelcome changes in race relations, employment opportunities
and homelessness."
35
 While these social problems also exist in other Western
democracies, their solution elsewhere is less likely to include prison
expansion and more likely to involve high minimum wages and mandated
corporate-training expenditures.
36
A. Prison Use in Europe
The imprisonment rate in other Western democracies helps to give
some perspective to the U.S. rates. As Lynch concluded: "The U.S. has the
highest per capita rates of incarceration of any industrialized democracy."
37
Other cross-cultural studies of crime show that "overall victimization rates
in the United States are nearly identical to those in Canada, Australia and
the Netherlands. Yet our incarceration rates are four times that of Canada,
nearly six times that of Australia, and an astonishing ten times that of the
Netherlands."
38
 Criminologist Michael Tonry has asked: "Why is the U.S.
government, alone among the governments of the major English-speaking
countries, claiming that harsh law-and-order policies will decrease crime
rates?"
39
There is a difference in the patterns of imprisonment use which is
worth noting. As Lynch explains: "Prison use in the United States is not
radically different from that in other industrialized nations for serious violence;
but the propensity to incarcerate and time served in the United States is
54 CriminalJustice System
greater than in other nations for property and drug offenses."
40
 When it
comes to "petty offenses," the U.S. propensity for Draconian punishments
increases. How many "petty offenders" really get sent to prison?
It would appear that the American public is largely unaware of how
many petty offenders are being held in the nation's prisons. A recent study
on the seriousness of the crimes for which prison inmates are serving time
in the U.S. is informative. As part of the study a poll was taken called the
national estimate of the severity of crimes committed by persons admitted
to state and federal prisons. The poll was done to determine what kinds of
crimes the respondents considered to be very serious crimes, serious crimes,
moderate crimes and petty crimes. The researchers then compared the
respondents' characterization of crimes to the offenses for which the nation's
inmates were imprisoned. They found that only 14 percent were imprisoned
for serious crimes; 4 percent for very serious crimes; 29 percent for moderate
crimes and 52 percent of inmates were serving time for what the poll
indicated the public considered petty crimes.
41
No one objects to imprisonment for very serious or even serious
offenders. But what about the use of imprisonment for offenses which the
public characterize as petty? To what extent do prisons reduce future
criminal behavior?
B. The Unusual Tale of the Dakotas
South Dakota and North Dakota have very similar rates of crime. The
rate of crime reported to police is about three percent higher in South
Dakota than it is in North Dakota (in 1992, there were 2903 index crimes
per 100,000 population in North Dakota and 2998 in South Dakota; the
national average in 1992 was about 5200). But the rate of imprisonment in
the two states is very different. In fact, South Dakota today has more than
three times as many prisoners per 1000 population as North Dakota,
specifically 207 per 100,000 population in the former compared to 67 in
the latter. In other words, for every 1000 crimes reported to police, South
Dakota is more than three times more likely to incarcerate someone than
North Dakota is.
This was not always the case. In 1972 it was also true that each state
had roughly the same crime rate (1987 index crimes reported per 100,000
population in North Dakota; 2127 in South Dakota). However, in 1972 the
rate of imprisonment in each state was much closer than it is today. (North
Dakota had 28.8 inmates per 100,000 population; South Dakota had 51)
MYTHS AND REALITIES ABOUT SOCIAL CONTROL 55
In the last 20 years both states have increased their rate of
imprisonment, but they have done so at dramatically different rates. Between
1972 and 1992, South Dakota increased its imprisonment rate over 300
percent so that today its rate of imprisonment is more than triple that of
North Dakota.
Why is it that the rates of crime over this 20-year period have stayed
so similar in these two states? If dramatic expansion of imprisonment is
effective at lowering crime rates, than why has South Dakota not seen a
decrease in crime? And why has North Dakota no? experienced an increase
in crime when it had relatively lenient sentencing policies? How can the
imprisonment rates change so significantly and the crime rates remain
roughly the same?
C. Prison Expansion and the Crime Rate of the Nineties
It has been suggested that the massive increases in incarceration during
the eighties may be responsible for the encouraging crime statistics of the
nineties. Both the Uniform Crime Reports and the National Crime Survey
show lower crime rates in 1995 than they did in 1980. One argument
suggests that notwithstanding the fact that demographers had predicted
this decrease as the baby-boomers aged out of the crime prone age group,*
the real reason for the decrease is the deterrent and incapacitative effect of
increasing imprisonment. What does the research of the nineties conclude
about this argument?
Scholars like Alfred Blumstien of Carnegie-Mellon have spent their
entire careers studying the social impact of prisons, often with great
frustration. In 1995, Blumstien would point out: "There has been a massive
growth in the prison populations between the mid-1970s and the mid-
1990s, with no demonstrated strong effect on crime rates."
42
In an extensive study of the recent crime and imprisonment data
nationwide, one scholar concluded: "Punishment has increased inexorably
over the last two decades, but it must be fully faced that from year to year,
* The "crime prone age group" of 14- to 24-year-olds have always committed a
disproportionate amount of crime. For instance, in 1975 they constituted 21 percent of
the population, but the UCR indicated that of all felony arrests 74 percent were of l4-
to 24-year-olds. The 76 million baby boomers born between 1946 and 1964 were
replaced in the crime prone age group by the much smaller "birth dearth" babies born
after 1964. These babies started reaching the 14 to 24 year age bracket in 1980 and
demographers therefore predicted the decrease in crime that actually occurred.
56 CriminalJustice System
crime rates have sometimes increased, sometimes decreased, and
sometimes have not changed much."
43
 One of the most respected scholars
in the field, Norval Morris, reviewed Zimring and Hawkins's 1992 study of
prison growth in California and called it a "devastating refutation of the
prison-building path...accepted by those whose simple view is that crime
can be imprisoned away.... '
:44
Yet another researcher in the field, using 1995 statistics, tried in vain to
find a connection between changes in crime rates and changes in
imprisonment rates and concluded that "increases in incarceration rates
were not driven by comparable increases in crime."
45
 Echoing Blumstien's
conclusion in one of the most comprehensive studies on imprisonment
use in the United States, Todd Clear concluded: "The argument that
punishment changes produce crime changes is not supported by these
data.... The increase in punishment did not produce a commensurate
reduction in the amount of crime."
46
In 1996 Michael Tonry examined the research on the deterrent effect
of prisons around the world and concluded: "On the real-world question of
whether increases in penalties significantly reduce the incidence of serious
crimes, the consensus conclusion of governmental advisory bodies in many
countries is maybe, a little, at most, but probably not."
47
 This was consistent
with the conclusions of the most exhaustive examination of the question
of the deterrent effect ever done. In that study the National Academy of
Sciences concluded: "In summary, we cannot assert that the evidence
warrants an affirmative conclusion regarding deterrence."
48
A well-respected study by Isaac Erhlich concluded that at best we
could expect a five percent increase in the crime rate if every inmate's
sentence was suddenly cut in half. If decreasing the amount of time served
by the average inmate would have minor impact of crime rates, what
would the effect be of increasing the number of inmates in prison?
Another study on deterrence looked at the opposite side of the coin
from Erhlich. Greenwood and Abrahamse studied the possible repercussions
of increasing the prison population by 50 percent. They also concluded
that such a move would not have more than a minor effect on crime and
would reduce the crime rate by no more than four percent.
49
Even James Q. Wilson—a well-known advocate of prison expansion
through the seventies and eighties—conceded in 1995: "Very large increases
in the prison population can produce only modest reductions in crime
rates. Doubling the prison population probably produces only a 10 to 20
MYTHS AND REALITIES ABOUT SOCIAL CONTROL 57
percent reduction in the crime rate."
50
 Wilson also dismisses the argument
that the recent explosion in prison population resulted in the reduction in
crime. "It would be foolhardy," wrote Wilson in 1995," to explain the drop
in the crime rate by the rise in imprisonment rates."
51
 Even John Dilulio, a
Princeton criminologists often quoted for his support of increasing
punitiveness, has written that the liberal argument that "prisons don't pay"
is probably closer to the truth than the conservative argument that "prisons
pay."
52
The National Academy of Science's Panel on Understanding and Control
of Violent Behavior in 1993 asked "What effect has increasing the prison
population on violent crime?" And answered "apparently very little."
53
 In
his 1996 work, Sentencing Matters, Michael Tonry points out mat this panel
was initiated at the request of Ronald Reagan's Department of Justice and
funded by both the Reagan and Bush administrations. He conclude that
this was not "irrelevant" and that this panel was "an establishmentarian
body bearing trie imprimatur of Conservative Republican administrations."
54
D. My Own Research
My own research on the question of the association between increases
in crime rates and the increases in imprisonment rates showed a surprisingly
law correlational coefficient. I did a bivariate correlation between the increase
in the rate of reported crime in each of the fifty states (the NCS does not
disagregate on the state level) and the increase in the imprisonment rate in
that state. I chose the 20-year period from 1972 to 1992. The increase in
the imprisonment rate nationally was around 250 percent, but states varied
widely from 55 percent in West Virginia to a high of 690 percent in
Delaware. Increases in reported crime also varied widely, from a low of 4
percent in Michigan to a high of 137 percent in South Carolina (see figures
1 and 2). Was there a relationship between the increase in crime and the
increase in imprisonment? Very little, it turns out. The correlational coefficient
was just .28, not completely insignificant but certainly not a very satisfying
explanation of the dramatic prison explosion of this period.
However, the more interesting question is "What did they get for their
prison dollar?" Will the states that increased imprisonment significantly over
the 20-year period experience lower rates of crime increase than the states
that do not? In order to test this, I divided the 50 states into the 25 which
increased their imprisonment rate less than the median increase (an average
of 175 percent) and the 25 which increased at a rate above the median
(average 368 percent). The "high increase states" that invested in more
58 CriminalJustice System
Figure 1; Twenty-five states with highest incarceration increase
between 1972 and 1992
% Increase in
Incarceration UCR
l.DE 690 7
2. ALA 435 24
3.H 435 52
4. A 2 430 18
5. NY 430 38
6. LA 423 93
7. NH 420 54
8. VT 401 54
9. M A 400 21
10.RI 370 5
11. MT 355 43
12. OH 350 35
13. CT 349 42
14. MI 340 4
15. HI 325 32
16. ARK 325 119
17. ID 320 16
18. MO 320 29
19- SD 305 40
20. CA 305 5
21. NJ 301 31
22. SC 300 80
23. M S 295 137
24. AL 294 126
25. P A 293 43
average increase 368% 46%
(Adapted by Joseph Dillon Davey from The Sourcebook of Criminal Justice Statistics
1993)
prisons, actually do show less of an increase in crime than the "low increase
states" over the 20 years between 1972 and 1992.
However, the numbers offer little solace to those who would suggest
prison as a way of significantly impacting crime. A cost-benefit analysis of
MYTHS AND REALITIES ABOUT SOCIAL CONTROL 59
Figure 2: Twenty-five states with highest incarceration increase
between 1972 and 1992
% Increase in
Incarceration UCR
26. WI 290 46
27. NV
28. NM
29. I A 251 56
30. I N 235 45
31. OK 228 74
32. KS 225 56
33-CO 215 6
34. KY 210 44
35. VA 207 39
36. WY
37. T N 185 94
38. U T 185 34
39. MD 175 34
40. M E 162 51
41. T X 153 83
42. F L 155 55
43. M N 150 29
44. NE 140 64
45. WA 150 31
46. N D 130 46
47. GA 110 109
48. OR 105 15
49. NC 82 118
50. WV 55 81
average increase 175% 52%
(Adapted by Joseph Dillon Davey from The Sourcebook of Criminal Justice Statistics
1993)
these figures suggests the futility of imprisonment as a means of addressing
the crime problem. While increasing their imprisonment rate by an average
of 368 percent between 1972 and 1992, the "high increase states" managed
to keep the increase in the reported crime rate down to 46 percent. At the
270 6
253 36
200 48
60 CriminalJustice System
same time, the "low-increase states" increased their imprisonment rate by
just 175 percent and saw their reported crime rate increase by 52 percent.
If the "low-increase states" had followed the same policies as the "high-
increase states" and increased their imprisonment rate by 368 percent
instead of 175 percent, they would have imprisoned approximately 189,000
more offenders than they in fact did. In other words, if just 25 states
increased\h<eti number of prisoners by an additional 189,000 inmates (about
as many as all the prison inmates nationwide in 1972) then perhaps we
could have expected that the reported crime rate in those 25 states would
have grown at approximately 46 percent instead of 52 percent. And that,
of course, is true only if we assume that the increase in reported crime was
attributable solely to factors that would have been removed by increased
imprisonment.
These data seem to make the words of Elliot Currie ring true: "Few
ideas are more Utopian than the belief that we can stop crime by changing
the way it is handled within the formal criminal justice system."
Conclusion
Government spending on prisons necessarily reduces spending on
other programs. Often these the programs that have suffered reductions
were designed to help the working poor. Cuts in housing programs, food
subsidies, the Earned Income Tax Credit, educational programs, job training
programs and the erosion of the purchasing power of the minimum wage
have increased the difficulty of holding low-wage families together.
Tax dollars that had previously been spent on alleviating the misery of
poverty and the working poor have been shifted to the coercive defense
of the status quo through wasteful imprisonment. Over the last 20 years,
with very little public debate, there has been an historically unprecedented
expansion of U.S. prisons. We have already wasted a tragic amount of
public funds on needless imprisonment of non-violent offenders, and the
three strikes laws now going into effect in more and more states threaten
to increase that waste exponentially.
If the United States continues with slashes in support for those who
are dependent upon social provision and, at the same time, continues to
pour countless billions of dollars into even more prisons, can we reasonably
expect any better results than what we have seen in the past quarter
century? Is it possible that the transfer of social welfare dollars to prisons
will increase the chances of children living in poverty to become productive
members of society?
MYTHS AND REALITIES ABOUT SOCIAL CONTROL 61
The myths that permeate the public understanding of crime and
punishment make rational political responses to that problem difficult. Public
hysteria caused by the media obsession with crime has created a political
atmosphere in which those myths continue to flourish. The time has come
to shed some light of truth on those myths.
Suggested Questions
1. How does the rate of index crimes per 100,000 population in the United
States today compare with the rate 25 years ago? How well informed
is the general public on this issue?
2. How can the system of parole reduce the need for additional correctional
officers per 1000 prison inmates?
3. Some states in the U.S. have not increased the rate of imprisonment
very much during the last 25 years; others have tripled or quadrupled
their rate. Is an increase in the crime rate in these states responsible for
this variation?
4. Some say that plea bargaining is an indication of lenience; others say that
state legislatures will incarcerate offenders for roughly the same period
of time with or without the practice of plea bargaining. Explain.
5. How does the law of supply and demand suggest that the war on the
supply of drugs cannot be successful?
6. Compare and contrast the use of prisons in the other Western democracies
and in the United States.
Notes
1
 Time, Jan 30, 1995, "Crime: Safer Streets, Yet Greater Fear," p. 12.
2
 Ibid.
3
 Sourcebook, 1994, p.305-
4
 vanden Heuvel, Katrina, "String Em Up," The Nation, Nov 21, 1994.
5
 Elias, Robert, The Humanist, 1994, 54, 1 Jan-Feb 3-8.
6
 vanden Heuvel, Katrina, "String Em Up," The Nation, Nov 21, 1994.
7
 vanden Heuvel, Katrina, "String Em Up," The Nation, Nov 21, 1994.
8
 Newsweek, June 10, 1996, p.4, "Periscope."
9
 New York Times, August 30,1992, p.27.
10
 Lynch, James, "Crime in International Perspective," (pp. 11-38) in Wilson,
James Q. and Joan Petersilia, Crime (San Francisco: ICS Press, 1995) p.36.
11
 Wilson, James Q. and Joan Petersilia, Crime (San Francisco: ICS Press,
1995) p.489-
62 Criminal Justice System
12
 Wilson, James Q. Thinking About Crime, (New York: Basic Books, 1975)
p. xiv.
13
 U.S.Department of Justice, Sourcebook of Criminal Justice Statistics, 1994,
Bureau of Justice Statistics, (Washington, D.C.: 1992) p.540.
14
 Ibid, p.533.
15
 Juzenas, Eric, "Prevention: Best Approach to Public Health Threat of
Violence," Vol. 26, Nations Health, Jan 1, 1996, p.12.
16
 Inciardi, James A. Criminal Justice, Fifth Edition (New York: Harcourt Brace
College Publishers, 1996) p.595-
17
 Butterfield, Fox, "U.S.Expands Its Lead in Rate of Imprisonment," New York
Times, February 11, 1992, p.l6.
18
 Butterfield, Fox, New York Times, February 13, 1996, p.A12.
19
 Currie, Elliot, Reckoning: Drugs, The Cities and the American Future (New
York: Hill and Wang, 1993) p.152.
20
 USA Today, March 13, 1996, p.A3.
21
 New York Times, Nov 6, 1996, p.l.
22
 USA Today, March 13, 1996, p.A3.
23
 Curley, Bob, "Corrections-Industrial Complex Feeds off War on Drugs,"
Alcoholism & Drug Abuse Weekly 1995 Vol. 7, n43, Nov 6, p.5.
24
 Archambeault, William G., "Impact of Computer Based Technologies on
Criminal Justice." P. 307 in Muraskin, Roslyn and Albert R. Roberts, Visions
for Change: Crime and Justice in the Twenty-First Century (Upper Saddle
River, New Jersey: Prentice Hall, 1996) p.299-315.
25
 Ridgeway, James, "Bill to Cities: Lock 'em Up," Village Voice, 1994, Vol. 39,
n8, Feb 22, pp.13-14).
26
 Gans, Herbert, The War Against the Poor: The Underclass and Antipoverty
Policy (New York: Basic Books, 1995) p.104.
27
 Skolnick, Jerome, "Wild Pitch: 'Three Strikes You're Out' and Other Bad
Calls on Crime," The American Prospect 17 Spring 1994, pp.30-37.
28
 Rand Research Brief, "California's New Three Strikes Law: Benefits, Costs
and Alternatives" (Santa Monica, CA: Rand Corp, 1994).
29
 Boston Globe, March 3, 1995 p.3, "Three Strikes Term for Pizza Thief in
California."
30
 Trebach, Arnold and Eddy Engelsman, 1989, "Why Not Decriminalize?"
NPQ (Summer): 40-45.
31
 National Institute of Drug Abuse, National Household Survey of Drug Abuse,
Population Estimates, 1991, pp. 31, 37, 43, 49, 104.
32
 U.S. Department of Justice, Bureau of Justice Statistics, Prisoners, 1991
(Washington, D.C.: Government Printing Office, 1992).
33
 Sourcebook, 1994, p.540.
34
 U.S. Department of Justice, Sourcebook of Criminal Justice Statistics, 1993,
Bureau of Justice Statistics (Washington, D.C.: 1994) p.4l8.
35
 Scheingold, Stuart A., "Politics, Public Policy and Street Crime," Annals of
the American Academy of Political and Social Science, May, 1995,
pp. 155-168.
36
 Business Week, August 15, 1994, p.80.
MYTHS AND REALITIES ABOUT SOCIAL CONTROL 63
37
 Lynch, James, "Crime in International Perspective." Pp. 11-38 in Wilson,
James Q. and Joan Petersilia, Crime (San Francisco: ICS Press, 1995) p.36.
38
 van Dijk, Jan, Pat Mayhew and Martin Killias, 1990, Experiences of Crime
across the World (Boston: Kluwer, 1990).
39
 Tonry, 1995, p.24.
40
 Lynch, 1995, p.ll.
41
 Austin, James and Irwin, John, Who Goes To Prison? (San Francisco: National
Council on Crime and Delinquency, 1991)-
42
 Blumstien, p.4l6.
43
 Clear, p.75-
44
 Zimring, Franklin E. and Gordon Hawkins, Prison Population and Criminal
Justice Policy in California (Berkeley: Institute of Governmental Studies
Press, 1992) p.ix.
45
 Welsh, Wayne N., "Jail Overcrowding and Court Ordered Reform." P. 203 in
Muraskin, Roslyn and Albert R. Roberts, Visions for Change: Crime and
Justice in the Twenty-First Century (Upper Saddle River, N.J.: Prentice Hall,
1996)p.l99-211.
46
 Clear, Todd T., Harm in American Penology-. Offenders, Victims and their
Communities (Albany: SUNY Press, 1994) p.63-
47
 Tonry, Michael, Sentencing Matters (New York: Oxford University Press,
1996)p.l37.
48
 Alfred Blumstein, J. Cohen, D. Nagin, Deterrence and Incapacitation:
Estimating the Effects of Criminal Sanctions on Crime Rates (Washington,
D.C.: National Academy of Sciences, 1978) pp. 42-44.
49
 Greenwood, Peter and Abrahamse, Allan, Selective Incapacitation (Santa
Monica: Rand Corporation, 1982) p.541.
50
 Wilson, James Q., Thinking About Crime (New York: Basic Books, 1975)
p. xiv.
51
 Wilson, James Q. and Joan Petersilia, Crime (San Francisco: ICS Press,
1995) p-490.
52
 Dilulio, John J., and Anne M.Diehl, 1991, "Does Prison Pay?" Unpublished
manuscript. Center of Domestic and Comparative Policy Studies, Princeton
University.
53
 Reiss, Albert J. and Jeffrey Roth, (eds.), Understanding and Controlling Violence
(Washington,D.C.: National Academy Press, 1993).
54
 Tonry, 1996, p.137.
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Social Control vs. Social Justice:
No Justice, No Peace
James F. Hodgson
Longwood College
Introduction
Police and correctional apparatuses continue to play dominant roles as
institutions of social control in American and Canadian society. Crime control
as "industry" has emerged as the growth commodity of the 1990s with
much promise for further expansion and social acceptance. The current
political ideology in North America continues to foster much reliance on
police and correctional institutions as feasible methods in which to control
the masses. The neo-conservative ideology of the last two decades has
embraced and generated the social control mandate of enhanced reliance
on formal agencies of social control such as policing and correctional
institutions. These formalized social control agencies are increasingly
becoming a normal part of the social landscape. This effort articulates the
need to move away from these traditional responses to crime and implement
sound social policies that emphasize community development approaches
to the social problems of crime.
Growing economic disparity, high unemployment, the political and
media focus on crime in our communities and increasing levels of inequality
and social injustices in North America have created a situation in which the
crime control industry will be accepted as the best method of ensuring
social order. Under these circumstances, most citizens are induced to simply
accept the growing police industry and the warehousing of unwanted people
in prison as the only and best method to ensure safe communities. The
James F. Hodgson is an Associate Professor of Sociology and the Chair of the Graduate
Department of Sociology and Anthropology at Longwood College in Virginia. His
current research interests are policing, juvenile delinquency and social and criminal
justice policies and practices. He is the author of Games Pimps Play: Pimps, Players, and
Wives-in-law A Qualitative Analysis of Street Prostitution. (Canadian Scholars' Press),
and has published articles on policing, juvenile delinquency and social consciousness.
CHAPTER
4
66 CriminalJustice System
relationship between social and economic injustices and the incidence of
crime, for many, is undeniable. Our governments have, for many years,
reacted to these burgeoning social injustices and subsequent problems by
focusing public dollars on the control side of the question. Further social
decay in our communities, bulging prisons and an urban street crime problem
of frightening proportions are the obvious results of this political strategy
of social control. Are we going to continue with this social policy of focusing
on social control or can we move beyond this reactive policy to embrace
pro-active strategies that will address issues of social justice in our
communities? This paper emphasizes the need to provide alternative
measures to this current political and public obsession with the crime control
industry as an acceptable means in which to address our societal problems.
This paper argues that crime is a community problem, and the solutions
to crime lie within the community and not with the apparent over-reliance
on the criminal justice system. In other words, this composition focuses on
the concept of social justice versus social control. Are there other ways in
which to control or reduce the incidence of crime beyond hiring more
police officers and building more prisons? If crime is the result of such
social injustices as poverty, racial disharmony, gender inequality, illiteracy,
homelessness and unemployment, then clearly the appropriate social policy
is one which addresses these broad social issues prevalent in our
communities.
Economic Disparity
The evidence of increasing levels of social injustice in our communities
is often best illustrated by examining the growing economic disparity in
North America. Current and past social and political policy has continued in
this decade to widen the gap between rich and poor. The level of economic
sovereignty of many North Americans has been declining with more and
more people falling below the official poverty line and the concentration
of wealth increasing in the hands of a few fortunate people (Chomsky,
1993; Scarpitti, 1992; Shepard, 1996).
Reaganomics, Thatcherism or Mulroneyism are the terms used to
describe the economic policies formulated and solidified under the Reagan
government in the United States and Mulroney government in Canada.
This ideological economic mind set emphasizes the "trickle down" economic
theory that favors privileged groups such as businesses or wealthy individuals.
This economic policy provides tax breaks and other economic advantages
SOCIAL CONTROL vs. SOCIAL JUSTICE 67
to the wealthy with the assumption that this would encourage investment,
stimulate economic activity and create more jobs. However, the available
data certainly portray a completely different image of trickle down
economics. The data suggest that increasing numbers of Americans and
Canadians are falling below the official poverty line (Statistics Canada, 1997;
Scarpitti, 1992; Shepard, 1996).
Data suggest that in 1991, 35.7 million people or 14.2 percent of the
U.S. population were below the poverty line. The number of Americans
below the poverty line in 1982 was 21 million or 9-1 percent of the
population. Out of the 35.7 million people who were classified as living
below the official poverty line in 1991, 13-6 million or 38 percent were
children under 18; another 3-8 million or 12.4 percent were over 65 years
of age (U.S. Statistical Abstract, 1993). Millions more were female-headed
households with children under 18 years of age and with the husband not
present, ill, disabled or going to school; of the remainder, the majority
-worked either full or part time in the previous year, but their wages were
not sufficient to elevate them above the poverty threshold. These jobs are
often referred to by sociologists as "Mcjobs": minimum wage, limited benefits,
limited mobility jobs which are often offered in the fast food, retail and
service-oriented occupations. Even if an individual works a full-time Mcjob,
a forty hour week, their yearly income still falls below the poverty line.
Members of minority groups are especially likely to be included among
the poor. Gross over-representations of many minority groups are present.
The median incomes of minority families range from 57 to 63 percent of
the median incomes of white families (U.S. Statistical Abstract, 1993), while
unemployment rates for black and Hispanic workers average about double
the rate for white workers.
In Canada, very similar economic difficulties are being experienced by
many individuals and communities. The number of people living below
the poverty line in Canada in 1981 was 3,624,000 while the number in
1992 was 4,430,000, an increase of 696,000 Canadians, a 19 percent increase
of people living below the poverty line in 11 years (Statistics Canada,
1997). The rate of unemployment in Canada in 1971 was 6.2 percent; by
1981 it was 7.5 percent; 10.3 percent in 1991; and 11.3 percent in 1992
(Statistics Canada, 1997). The average monthly number of unemployment
insurance beneficiaries in Canada in 1981 was 720,280; in 1991 it climbed
to 1,385,710, an increase of 92 percent (Statistics Canada). In 1980 there
was one food bank in Canada; by August 1992 there were over 342 food
Criminal Justice System
banks registered with the Canadian Association of Food Banks (Statistics
Canada, 1997). The poverty rate for adult women in Canada in 1992 was
17.4 percent; the poverty rate for adult men in 1992 was 13.1 percent
(Statistics Canada, 1997). The 1992 poverty rate for single parent families
headed by women in Canada was 62 percent, three to four times that of all
other family types (Statistics Canada, 1997). In the fall of 1997, a provincial
poverty organization released its first report entitled Ontario Campaign
2000, which demonstrated a drastic increase in the number of kids living in
poverty in Ontario, Canada's wealthiest province. The figures indicate that
the number of children living in families that are earning less than $20,000
a year doubled between 1989 and 1995. The child poverty rate climbed
from 11 percent in 1989 to 19.1 percent in 1995, the highest growth rate
in Canada (Ontario Campaign 2000, 1997).
One does not have to be extremely socially or politically astute to
understand the consequences of this increase in the number of people
being pushed into the poverty class. The elements of this culture of poverty,
of course, have serious distinctions on the quality of life experienced by
societal participants. Equality of opportunity and condition in reference to
physical and mental health, education, housing and criminal justice are all
affected and determined within this culture of poverty. The socially disruptive
aspects of poverty conditions condemn individuals to a life of great despair
and servitude. Social decay virtually begins at birth for many children in
American and Canadian society. The level of hopelessness and helplessness
of these individuals only ensures a desperate marginalized class of people
who often become involved in activities labeled as criminal or antisocial. It
is argued here that desperate people do desperate things and will often
employ street survival methods to support themselves or their families
(Galbraith, 1956; Chomsky, 1993; Neubeck, 1996).
Fortress Mentality of Intolerance
Although exposing the realities of economic policies and practices
allows one to discover the horrors of this type of capitalism, one must also
become conscience of the rhetoric of producing ideological adherence to
these social and political policies that support such inequality of condition
and opportunity. We have gone through and continue to be exposed to an
intolerant ideological mandate that fosters fear, individual blame and hostility
which has created a "fortress mentality environment" in response to social
and political problems or policies. The zero tolerance mandate of the past
68
SOCIAL CONTROL vs. SOCIAL JUSTICE 69
two decades has meant no tolerance for political or social policy or discussion
that might be outside of what government purports to be good for the
people. We have experienced and continue to experience an extremely
rigid and coercive political ideological mandate that attacks those who dare
to speak out or question the current political regime. This ideologically
mandated adherence attacks and diminishes any discourse or intellectual
debate of alternative ways of thinking about our society. This "with us or
against us" format has censored if not eliminated most discussion and debate
on social, public and political policy. The "just say no" to open and free
political and social debate compels us to be socially reduced to a level of
"group think" in response to our social problems and solutions. The skilful
and masterful use of new media- and information-based technology ensures
that political forces can produce and reproduce political ideology and
agendas with vigor like never before (Marcuse, 1964; Watkins, 1992).
The consequences of this level of indoctrination and dogmatic subjection
may be best emphasized by sharing my experience of teaching college
students in the 1990s. Most of these students have been subjected to the
unrelenting barrage of Reaganomics and Mulroneyism from their early years.
Most, if not all, of the students that I come into contact with have certainly
accepted the political ideology of Reaganomics. More frightening, however,
is that they do not seem to be aware that their perspective is a political
ideological concept and that there might be other realities or legitimate
ways of seeing the world. The students acceptance of this political ideology
often manifests itself as a rigid, hostile and intolerant level of understanding
society. This political ideology obviously has a significant effect on the
student's understanding of social problems and policies. I have found that
it takes a great amount of time and patience to bring to these students that
there may be other ways of seeing the world and that there might be
legitimate and feasible solutions to social problems that are outside the
current political regime's way of thinking.
We have gone through a time reminiscent of the 1950s McCarthy era
of fear mongering, isolating diverse opinion and casting suspicion upon
individuals who dare to think and respond differently to the current political
assertions and ideology. Political ideologies have certainly adopted the
language of war in asserting the war on crime, the war on drugs, the attack
on the poor and the subsequent censoring of political discourse. The fortress
mentality of "either you are with us" or "you are against us" is often utilized
in this war. The language of war demands that we abrogate some of our
70 Criminal Justice System
rights for the common good and focus on the enemy in order to conquer
the threat. Of course people are easily co-opted during times of war and
often oppress any dissenting opinion or dialogue. Placed within a threatening
environment, people will often come together for the common good. The
political rhetoric of the past two decades has exploited images of crime,
drugs and poverty to project a level of fear and contempt in most people.
With this fear generating political opportunistic rhetoric comes the ideological
imperatives of reactionary, get tough, zero tolerance, get them before
they get you, protection of society emphases and the negating of individual
democratic rights and process.
The political rhetoric of Reaganomics provides clear dichotomies in
reference to the role of government or the state. Social economic policies
of less government control of business, free trade, and laissez-faire treatment
of market forces become most evident. However, the role of the state in
responding to social crisis becomes problematic in that the current political
ideology has directly challenged the notion of the "welfare state" without
any redeeming public comment or debate. The principles inherent in the
welfare state have come under attack in the "war" and, for the most part,
our political policy is moving further away from these principles with no
apparent public debate or concern. President Franklin D. Roosevelt's 1930s
New Deal went together with the Great Society legislation proposed by
President Lynden B.Johnson in the 1960s, and created many of America's
welfare institutions and programs (Scarpitti, 1992; Shepard, 1996; Neubeck,
1996). Canada's rich history of social programs, often called the "Social
Security Net," such as health care, old age pensions and student assistance,
are all products of a time in which people believed that the government
had a role in assisting its citizenry. The overall principles inherent within
the welfare state suggest that the government has the responsibility for
the well-being of its citizens and that this cannot be entrusted to the
individual, private corporations or the local community.
In a welfare state, government attempts to smooth out the effects of
recessions and economic booms. The welfare state typically protects people
against poverty by means of welfare or unemployment benefits, old age
pensions, public education and public housing. The current political
environment has fostered hostility, if not hate, by attacking these elements.
This rhetoric blames individuals for their social plight and negates any scrutiny
or analysis of institutional explanations for social ills. This political agenda
of enforcing personal responsibility reduces the analysis of social problems
SOCIAL CONTROL vs. SOCIAL JUSTICE 71
to the level of blaming the individual by suggesting that they are lazy or
incompetent. The assumption is that the solution lies with the individual,
and there is no scrutiny of the system as a contributor to social problems.
It is argued here that the current political agenda has generated an
"anti-welfare" philosophy that has attacked the concept of the "welfare
state" model of democracy. The emerging ideology presents a "corporate
state" model of reliance on market forces, individualism and a Social
Darwinism of the survival of the monetarily advantaged. This shift needs to
be further explored to assess the social consequences of reducing the
ability of the welfare state to provide opportunities for all its participants.
The reduction of the welfare state emphasis has serious implications for
further levels of social inequality and despair. One needs to assess the
consequences of this reduction and recognize that further social control by
the state will be necessary to keep the "restless many" within societal
norms. As more and more people experience greater social depredation,
poverty, hopelessness, helplessness and increased levels of violence in
their lives, greater levels of social control mechanisms must be
operationalized to apprehend such expressions.
Social Control Model
The social control model that is currently in place in North America
continues to expand and is gaining greater social acceptance. Most states
have adopted some kind of "get tough with criminals" legislation, which
demands longer jail sentences or reduces or abolishes parole opportunities.
Many provinces in Canada have applied similar "get-tough" legislation.
Expressing support for longer jail sentences and promising to execute
more inmates has become political falderal over the last couple of years.
Political platforms are becoming more and more focused on crime as a
central political issue, which results in generating public concern and
acceptance for further reactionary state control of crime.
The social control model being projected by most social and political
initiatives includes traditional approaches to controlling crime such as utilizing
the police, prisons and the courts. The U.S. is currently arresting and
incarcerating more of its citizenry than any other country in the 'world.
Donziger (1996:xii) notes that:
Rates of crime have remained stable even while prison
populations exploded; we have the highest rate of
imprisonment in the world;... one out of three young African-
72 CriminalJustice System
American men are under the supervision of the criminal
justice system, compared to one out of four only five years
ago.
There were 329,821 inmates in state and federal prisons at the end of
1980; by mid-decade, that number had increased by 52.4 percent to 502,752
inmates; and by the end of the decade there were 712,967 inmates, an
increase of 116.2 percent over 1980. That represents about nine percent
per year. On January 1, 1994, the adult prison population stood at an
all-time record high of 995,730, an increase of nearly 40 percent over the
beginning of 1990 and an increase of 202 percent over 1980. At the end of
June 1994, the nation's state and federal prison population topped one
million for the first time, hitting 1,012,851 inmates (United States Dept. of
Justice, Bureau of Justice Statistics, May 1995).
Total financial spending on state and federal prisons in the fiscal year
1994 was approximately $22.4 billion; about $2.4 billion of that amount
was spent on capital improvements. The average per day cost of
incarceration per inmate in 1993 was $52.38 ($19,118.70 per inmate per
year). As of January 1, 1994, the average cost of new prison construction
was $28,194 per bed for minimum security facilities and $80,004 per prison
bed for maximum security facilities. A total of $74 billion tax dollars were
spent in 1990 on criminal and civil justice, an increase of 22 percent since
1988 (United States Department of Justice, Bureau of Justice Statistics, May
1995). Donziger (ibid:xii) notes that:
The battle to stop crime had inverted many of our own
national priorities. Some prisons had new gyms and libraries
•while many public schools were in a state of despair, with
overcrowded classrooms and poor equipment; that some
prison guards make more than university professors; that we
have the highest rate of child poverty in the industrialized
•world; that in some states we spend about $100,000 to build
a new prison cell and another $22,000 each year to operate
it; that spending on crime fighting has risen three times faster
than defense spending; and that private businesses reap
enormous profits from the fear of crime and the expansion
of the criminal justice system.
SOCIAL CONTROL vs. SOCIAL JUSTICE 73
Some estimates suggest that crime directly and indirectly costs Americans
as much as $425 billion each year in financial loss in regards to property
and violent crimes, emergency room care, alarm systems and loss of income
due to criminal injuries (Mandel, 1993). Moreover, between 1985 and 1990,
spending for criminal justice increased almost twice as fast as all government
spending.
The Canadian experience is very similar in regard to financial spending
on criminal justice apparatuses. Government spending on police, courts,
corrections, legal aid and prosecutions approached $10 billion in 1994/95
or $340 for every person in Canada. This represents a 13 percent constant
dollar increase since 1988/89- Police, courts and corrections accounted for
three cents of every tax dollar spent in Canada in 1994/95. Over one-half
of this tax revenue is paid towards policing (58 percent) and about one-
fifth (19 percent) for adult corrections. The remainder was spent on courts
(8 percent), legal aid (7 percent), youth corrections (5 percent) and
prosecutions (3 percent) (Statistics Canada, Canadian Centre for Justice
Statistics, 1997).
Although the financial costs are important to highlight, the economic
drain on our communities, the "social costs" of such behaviour and state
responses must also be considered. The social degradation that many people
experience before and after coming to the attention of the state apparatus;
the human pain and suffering; the psychological and sociological effects on
individuals and communities; the generations of individuals who are
continually living in fear for their lives or the lives of their children are
some of the elements that need to be considered when assessing the
social costs of crime in our society. The social cost of reacting to crime after
it occurs are staggering. The reactionary model condemns individuals and
communities to limited participatory levels when there are extreme stages
of mistrust, suspicion, fear and anger. Levels of violence, threats of violence
and social depravation 'within many of our communities, it is argued here,
are expressions of larger social economic problems that must be addressed.
The deterrence value of the current social control model does not deter or
prevent crime but reacts or responds to crime and, therefore, is ineffective
in reducing criminal activity. If we see crime in our communities as a festering
wound, we are putting a small bandage on that wound that does very little
to cure the problem. The failure of the social control model must be
highlighted in order to argue that we must try an alternative thesis if we
seriously wish to lessen human suffering and degradation in our communities.
74 CriminalJustice System
The social control model emphasizes crime control, with the focus on
the protection of society. It becomes a means for promoting and demanding
conformity to social norms and values. The general features of the social
control model being projected here are that it is reactive, it utilizes due
legal process, it exercises significant discretionary influences, it relies on
offending/status offenses, has a punishment focus and executes determinant
sentences. The key personnel in this model are lawyers and other criminal
justice actors, and the key agency is the legal structure within the criminal
justice system. The tasks of the model are to incarcerate and punish. The
understanding of client behavior emphasizes individual responsibility and
accountability. The purpose of intervention is the protection of society,
retribution and deterrence, and the objectives are order maintenance
(Corrado, 1992; Davey, 1995; Irwin, 1997) (see Figure 1).
Social Justice Model
The social justice model embraces pro-active or prevention strategies
that address the many social injustices in our communities. The social justice
model, its emphasis being within the philosophy of the welfare state,
promotes the cooperation of people in producing a united community so
that every member has an equal and real opportunity to grow and learn to
live to the best of their abilities. These ideal conditions of social justice
through social union are essentially those of democracy. The emphasis
here challenges our current social and political policies of reacting to crime.
The social justice model asks one to develop programs and policies to
enrich and empower the lives of citizens in order to prevent crime from
occurring. The assumption here is that when people realize equality of
opportunity and condition, they will not become involved in criminal
behavior (Neubeck, 1996; Donziger, 1996; Allen, 1995).
The right to social justice in our communities is illustrated by sound
social and political policies that would allow for every child a normal birth,
a healthy environment, abundant good food and liberal, appropriate
education; for every mature person, a secure job adapted for his or her
abilities; and for all persons, an income adequate to maintain them efficiently
in the position of their highest social service. All persons should be afforded
such influence with the authorities that their needs and ideas receive due
consideration. The social justice model emphasizes social and economic
opportunities for the citizenry which would result in the decreased necessity
for people to become involved in crime, the decrease of people victimized
SOCIAL CONTROL vs. SOCIAL JUSTICE 75
by crime and a reduction of the crime control apparatus (Neubeck, 1996;
Donziger, 1996;Allen, 1995; Shepard, 1996).
The characteristics of the social justice model and its emphasis on the
welfare of the individual and the community provide an alternative approach
to individuals who have become involved in delinquent activities. The
social justice response to breaches of law focuses on the offender. The
general features project informality, generic referrals, individualized
sentencing and indeterminate sentences. The key personnel to
operationalize this model are child-care experts and social workers. The
key agencies would, therefore, be the social work and service agencies
assigned the task of diagnosis of individual problems and their environments.
The understanding of client behavior is environmentally determined, and
the purpose of this state intervention is to provide treatment or parens
patriae, in the case of juveniles. The overall objective of this model is to
respond to individual needs in order to facilitate rehabilitation (see
Figure 1).
Conclusion
It was intended that this discussion of social justice serve as a source of
fresh ideas and alternatives to the over-utilized crime control model ideology.
The disclosing of alternative measures stimulates much discussion and
commentary. This effort highlights that there may be feasible preventive
and alternative methods to keep our communities safe. This paper argues
that the time is now to offer alternative ideas and solutions to the often
intolerant, neo-conservative ideologies that persuade many of our social
policies and discourse. The many proponents of "social justice concepts,"
for the most part, have been silenced by the relentless barrage of short-
term, limited vision, social control initiatives that offer a quick, easy fix that
is most seductive in hard economic times. This discussion of alternative
measures to the criminal justice system is not only timely but necessary to
rejuvenate the notions and concepts of social justice models. If there is no
justice, there shall be no peace.
76 CriminalJustice System
Figure 1: Criminal Justice Models
Source: Adapted from Corrado, Raymond, et. al. Juvenile Justice In Canada: A
Theoretical and Analytical Assessment. Toronto: Butterworths, 1992.
Social Control/ Social Justice/
Crime Control Model Welfare Model
Characteristics Focus on Protection Focus On Offender
of Society
General Features: Due Process/ Informality
Discretion
Offending/ Generic Referrals
Status Offenses
Punishments Individualized
Sentencing
Determinate Indeterminate
Sentences Sentencing
Key Personnel: Lawyers/Criminal Child-care/
Justice Actors Social Workers
Key Agency: Law Social Work
Tasks: Incarceration/ Diagnosis
Punishment
Understanding of
Client Behavior: Responsibility/ Pathology/
Accountability Environmentally
Determined
Purpose of
Intervention: Protection of Provide Treatment/
Society/Retribution Parens Patriae
Deterrence
Objectives: Order Maintenance Respond to
Individual Needs/
Rehabilitation
SOCIAL CONTROL vs. SOCIAL JUSTICE 77
Discussion Questions
1. Explain the incidence and consequences of economic disparity in Canada
and the United States during the 1980s and 1990s.
2. What consequences, if any, might this economic disparity have on crime
rates?
3. Explain the "fortress mentality of intolerance" as described in the article.
4. Explain the concept of the "social control model."
5. Explain the concept of the "social justice model."
6. Compare and contrast the social justice model and the social control
model and explain which model might be more affective in building
healthy communities.
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An Ounce of Prevention
or a Pound of Cure?:
Toward More Cost-
Effective Crime Sontrol in
Community Contexts
Ian M. Gomme
University of Southern Colorado
Introduction
Crime and its control are serious problems in the United States. The
U.S. crime rate increased dramatically from the late 1960s through the
1970s. It peaked in 1980, declined until 1984 and then rose again until
1991 • While crime rates have leveled off and declined in recent years, they
remain far higher than they were less than three decades ago. According to
the Uniform Crime Reports, a data source known to underestimate the
incidence of illegal activity, 21,597 murders, 97,494 rapes and 580,545
robberies took place in the United States in 1995. In the same year, police
recorded over one million aggravated assaults, over 2.5 million burglaries,
over eight million larcenies and almost 1.5 million auto thefts (Federal
Bureau of Investigation, 1996). Each year, the probability of an American
citizen becoming the victim of a murder, robbery, rape, assault or burglary
is about one in fifteen. One in four American households is touched by
crime annually. The likelihood of victimization now exceeds the chances
of being injured in a traffic accident and is sufficiently high that almost all
Americans will become victims of crime at some point in their lifetimes
(Henslin, 1996; Coleman and Cressey, 1996).
Even 'when crime rates actually decline, concern about becoming the
victim of a violent or property offense remains high. A national survey
conducted in the U.S. in 1994, for example, revealed that 77 percent of
Ian M. Gomme has been a criminologist at the University of Southern Colorado since
1995. Formerly he was chair of Sociology at the Memorial University of Newfoundland
in Canada. His current research interests are homicide, the impact of technology on
criminal justice and the role of community policing strategies in the prevention of
crime. He is author of The Shadow Line: Deviance and Crime in Canada (Harcourt
Brace) and has published articles on policing, Crown prosecutors, electronic monitoring,
delinquency and fear of crime.
CHAPTER
5
80 Criminal Justice System
those interviewed were concerned about becoming the victim of violence.
As many as 58 percent of American women and 44 percent of Canadian
women are afraid to walk outdoors at night in their own neighborhoods
(Maguire, Pastore, and Flannigan, 1993; Underwood, 1991).
Crime is also costly in economic terms. First, it deprives people of
their money and property. Second, because crime injures and kills, it impedes
both individual and collective productivity. Third, crimes involving drugs,
gambling and prostitution divert funds from the legitimate economy into
an illegitimate one which cannot be taxed. Estimates of the annual costs of
street crime in the United States run as high as $450 billion (National Research
Council, 1994) while comparable estimates for white-collar and corporate
illegalities such as tax evasion, fraud, false advertising and antitrust violations
run at least three times as high (Conklin, 1995).
Most efforts to curb illegal conduct to date have emphasized a strong
dose of curative criminal justice in the form of policing, court adjudication
and correctional processing. Not only has this approach proven extremely
costly in monetary and human terms, but its effectiveness is highly debatable.
The monetaiy costs of the police, the courts and the corrections system
were approximately $41 billion, $21 billion and $32 billion respectively in
1992. Between 1982 and 1992, expenditures increased 117 percent on
policing, 170 percent on courts and a whopping 247 percent on corrections
(Bureau of Justice Statistics, 1996). The rising cost of operating the criminal
justice system coupled with government spending restraints is increasingly
requiring that funds for prison expansion be siphoned away from health
and education (Henslin, 1996; Coleman andCressey, 1996).
In human terms, the United States' incarceration rate exceeds that of
other developed countries including South Africa and Russia (Mauer, 1991).
It rose from 98 per 100,000 in 1973 to 387 per 100,000 in 1994 (Bureau of
Justice Statistics. 1994). It has doubled in the last decade and, in the face of
the public's unrelenting demand for tougher sentencing, will undoubtedly
continue to rise. At the beginning of 1995, 1,053,739 men were behind
bars in federal and state facilities (Bureau of Justice Statistics, 1994).
Crowding and racial disparity in American jails and prisons continue to
worsen. Forty one states currently operate at least 100 percent over capacity
while the comparable figure for the federal system is 25 percent (Bureau
of Justice Statistics, 1995). While African Americans represent only 12 percent
of the U.S. population, they account for over one-half of those incarcerated.
Racially disaggregated incarceration rates indicate that African Americans
are six to seven times more likely than whites to be imprisoned (Tonry,
AN OUNCE OF PREVENTION OR A POUND OF CURE 81
1994). In 1993,1947 African Americans per 100,000 black residents were
incarcerated in U.S. jails and prisons compared to 306 whites per 100,000
white residents (Mauer, 1994). At present, one in three African American
males in their twenties is under some form of correctional supervision
(Mauer, 1995). In America's inner cities, some studies have indicated that
over one-half of young African Americans are under correctional supervision
(Tonry, 1995).
Having such large numbers of youthful black males under correctional
control is having devastating consequences on the social and economic
viability of life in the African American community. Incarceration effectively
removes young men from the black community for extended periods of
time, and the acquisition of criminal records hardly facilitates their attempts
to reintegrate themselves into society. Becoming enmeshed in the criminal
justice net severely disrupts family life and contributes to unemployment,
poverty and the creation of single-parent, female-headed households
(Tonry, 1994). Not only does the differential rate of correctional supervision
create conditions which are themselves criminogenic, it further exacerbates
antagonisms along racial lines.
The effectiveness of crime control approaches is routinely called into
question. With respect to policing, neither numbers, nor resources, nor
patrolling practices have been firmly linked to crime reduction (Sherman,
1995). As Gottfredson and Hirschi (1990) point out, policing is not a factor
in the overwhelming number of robberies, burglaries, assaults, homicides,
thefts or drug deals because the offender neither knows nor cares about
the probability of being observed by the police. The evidence fails to
support arguments that the augmentation of police forces or equipment,
differential patrol strategies or varying intensities of surveillance impacts
on crime. Similarly, others maintain that there is little connection between
levels of incarceration and crime rates. Crime rates rise and fall independently
of increases and decreases in imprisonment (Rutherford, 1986; Irwin and
Austin, 1994).
Perhaps the most damning piece of evidence in attempting to assess
criminal justice system effectiveness is the high rate of recidivism that
characterizes those released from confinement. Studies of prison populations
indicate that 85 percent of prisoners are not first time offenders and that
more than 20 percent have been convicted six or more times. Sixty percent
of those imprisoned have been incarcerated for a prior offense (as opposed
to having received probation)(Greenfield, 1985; Bureau of Justice Statistics,
1988; Beck, 1989). One study of recidivism at the state level demonstrated
that three years after release, 63 percent of former prisoners were
82 CriminalJustice System
rearrested, 47 percent were reconvicted and 4l percent were reincarcerated
(Beck, 1989). A similar study tracking young parolees over six years revealed
that 69 percent were rearrested, 53 percent reconvicted and 49 percent
reincarcerated (Bureau of Justice Statistics, 1987).
The enormously high economic and social costs associated with efforts
to find a cure for crime and the fact that current curative strategies are of
questionable effectiveness underscore the appropriateness of exploring
the potential of preventative alternatives. The old adage that an ounce of
prevention is worth a pound of cure rnay very well apply to crime control
in the United States. In exploring this supposition, we begin by outlining a
specific preventative strategy called situational crime prevention (Clarke,
1995). After discussing its theoretical bases, the principal tactics of this
strategy are described and assessed. Potential shortcomings of the situational
approach are then investigated paying particular attention to the tension
between "displacement' on one hand and "diffusion of benefit" on the
other. The paper concludes by examining the links between situational
crime prevention and community policing and by exploring the future
prospects of achieving reductions in crime through preventative measures.
Situational Crime Prevention
Situational crime prevention is a strategy aimed at reducing criminal
victimization by precisely targeting specific types of illegal predation.
Following the identification of the nature and social dynamics of a particular
form of criminal activity, prevention initiatives involve the alteration of
situational factors in the immediate environment that limit the opportunity
for commission, reduce the instrumental and expressive rewards associated
with the successful execution of the prohibited act, and increase the risk of
apprehension (Clarke, 1992; 1995). Specific strategies involve a variety of
means of target hardening that range from the simple, informal and relatively
inexpensive to the complex, formal and very costly. At one end of the
continuum are measures designed to increase natural surveillance (e.g.,
trimming shrubs and improving lighting) and to strengthen physical barriers
(e.g., fortifying doors and windows with stronger locks). At the other are
sophisticated technological alarm and monitoring systems (e.g., closed circuit
television) and legislative constraints (e.g., juvenile curfews and gun
controls).
There are several reasons why situational crime prevention is an
approach holding considerable appeal for academic criminologists, policy-
makers, program planners and law enforcement practitioners alike. First,
the approach is solidly grounded in the criminological theories of routine
AN OUNCE OF PREVENTION OR A POUND OF CURE 83
activities (Cohen and Felson, 1979), lifestyle-exposure (Hindelang,
Gottfredson and Garofalo, 1978), and rational choice (Clarke and Cornish,
1985; Cornish and Clarke, 1986). Second, the approach involves a clearly
defined, action-oriented applied research methodology (Gladstone, 1980).
Third, evaluation studies have demonstrated some clear evidence of success
for initiatives aimed at situational crime prevention. The theoretical
framework and related research have provided a precise inventory of
pragmatic and feasible preventative measures. Fourth, situational crime
prevention meshes well with recent developments in law enforcement
that extol and enhance community involvement in problem-solving policing.
Theoretical Bases of Situational Crime Prevention
Two related theoretical traditions provide the explanatory framework
that serves as the foundation for situational crime prevention—routine
activities/lifestyle-exposure and rational choice. The routine activities and
the lifestyle-exposure perspectives explain crime by charting the way in
'which everyday living practices create a structure of opportunity that brings
people into direct contact with predatory criminals. Routine activities theory
provides a detailed explanation of a particular type of victimization in
which a predator intentionally and purposefully takes or damages the
property of another or inflicts harm on his or her person. Rational choice
theory focusses on the way in which offenders make conscious decisions
in selecting illegal over legal conduct.
Routine Activities
Cohen and Felson (1979) link fluctuations in crime rates to changes in
people's routine activities that create the convergence in space and time
of three elements: 1) a motivated offender, 2) a suitable target and 3) the
absence of guardianship against predation. More recently, two other factors
have been added to this framework: 4) crime facilitators (Clarke, 1992)
and 5) intimate handlers (Felson, 1986).
The convergence or separation in time and space of the initial three
factors, Cohen and Felson maintain, is sufficient to explain increases and
decreases in crime rates in the absence of alterations in society's economic
and social structure. Structural conditions such as economic recession, racial
heterogeneity, rising unemployment and heightening rates of family
dissolution are less relevant as direct explanations of intentional predatory
crime than are alterations in space and time of patterns of behavior that
bring together offenders and targets in the absence of guardianship. Indeed,
84 CriminalJustice System
Cohen and Felson maintain that a target without protection is the key
element that produces victimization.
There are three important facets of the time dimension. The first,
periodicity, refers to regular cycles of behavior associated with domestic
activity, work and leisure. The second element, tempo, concerns the number
of lifestyle events occurring in a particular time period. The final
consideration is timing. Timing refers to the coordination among different
but interdependent activities that comprise the rhythm of life for both
potential offenders and prospective victims.
With respect to motivation, routine activities analysis does not seek to
explain why certain individuals or groups are criminally inclined. The theory
treats the motivation of offenders largely as a given. It is the spatio-temporal
organization of social activities that translates criminal proclivity into action.
Targets vary in suitability on a number of important dimensions. First,
some targets are more valuable than others either monetarily or symbolically.
Second, some targets are more visible and accessible than others. Finally,
targets vary in terms of their "inertia." By target inertia, Cohen and Felson
refer to such considerations as the size and weight of the objects to be
stolen or to the strength and combat skill of the person to be accosted.
Guardianship refers to the degree to which targets are protected. In
routine activities terms, vulnerability is a function of both social organization
and technology. On one hand, the organization of groups and the technology
available affect both access to targets and the ways and means of attack.
On the other hand, social organization and technology also affect resistance
to assailment. In general terms, women's participation in the labor force is
a broad change in social organization that has varied over time and across
geographical regions. In places and times where most women work within
the house providing care to young children, burglary rates are lower than
in places and times where most women work for pay outside the home
and where children are non-existent, in day care or fully grown. The fact
that larger numbers of people are at home for extended periods of time
each day dampens the enthusiasm of all but the most intrepid of burglars.
Furthermore, target accessibility and target guardianship have changed
dramatically over the past 50 years as a consequence of the invention and
implementation of new technologies such as phones, closed circuit
television systems, ATM cards, time-locked safes and alarm systems.
Central to routine activities theory is the observation that some locations
and some types of behavior entail greater risks of victimization than do
others (Messner and Blau, 1987). Work and leisure figure prominently in
AN OUNCE OF PREVENTION OR A POUND OF CURE 85
the production of crime because they determine in large part the amount
of time that people spend in and out of their dwellings. Important to the
consideration of victimization risk is the fact that lifestyle governs where
one is during the day and in the evening, whether one is in the company
of friends or strangers, whether those in one's immediate environment are
the same or different in terms of demographic characteristics, and whether
the locations of activity are characterized by the presence or the absence
of crime facilitators.
Crime facilitators are of two major types—tools such as firearms and
automobiles and disinhibitors such as drugs and alcohol. Guns and cars are
tools that make drive-by shootings possible. Alcohol figures prominently in
homicides, sexual assaults and other crimes in part because it impedes
judgment and reduces inhibitions (Collins, 1981).
Also of importance in more recent versions of this approach is the
presence or absence of "intimate handlers" for offenders. Intimate handlers
are people capable of constraining potential offenders from violating the
law through such means as affective ties and the provision of adequate
supervision. People who are attached to law-abiding significant others and
who are the objects of informal supervision are less likely to engage in
criminal activity than those who are detached and unsupervised (Hirschi,
1969; Felson, 1986).
Routine activity theory posits that social structural variables affect criminal
opportunity which in turn affects the rates of certain types of crime.
Important structural variables impacting on lifestyle include a community's
ratio of males to females, its age distribution, its family organization, its
affluence and the nature of its marketplace. Cohen and Felson note that
changes on these dimensions have altered lifestyles from what they were
before World War II. North American society in the 1970s, for example,
was younger and more affluent than it was during the 1930s. Moreover,
changes in the economy and in the labor force reduced the number of
women spending their days working within the home. Compared to earlier
times, the market during the 1970s involved a vastly larger number of
goods that were at once valuable, compact and light. This trend continues
as we near the end of the century, and in the face of such changes, Cohen
and Felson suggest that increases in rates of theft, shoplifting, burglary and
robbery should not be surprising.
Cohen and Felson argue that placing motivated offenders in contact
with suitable targets in the absence of adequate guardianship affects the
likelihood of illegal conduct in more than an additive fashion. They maintain
86 Criminal Justice System
that the interaction of these elements produces effects that are multiplicative.
Therefore, their convergence results in sharp increases in crime that are
relatively immune to control through doctrines and policy initiatives aimed
at deterrence. Rather than pouring efforts into trying to increase the
effectiveness of the crime control tactics of the police, the courts and
corrections, routine activities and lifestyle-exposure theorists reason that
modest alterations in lifestyle are likely to meet with greater success. Since
high material standards of living create opportunities for crime, the policy
directives based upon routine activities analysis stress the importance of
controlling victimization through increased guardianship. In other words,
steps must be taken to make targets either less suitable or less accessible.
Rational Choice
The rational choice perspective complements routine activities and
lifestyle-exposure approaches by incorporating insights from economic
explanations of crime. In so doing, rational choice theory borrows from
economics the concept of "expected utility" (Akers, 1997). Like economic
approaches, the rational choice perspective portrays offenders as rational
decision-makers seeking to maximize their own best interests while
minimizing their social and economic costs. Offenders base decisions on
their projections concerning effort and reward balanced against their
expectations concerning identification, apprehension, punishment and other
liabilities (Cornish and Clarke, 1986).
Taking account of offenders' background traits and circumstances as
well as their immediate motives and intentions, their moods and feelings
and their moral judgments concerning their contemplated illegality, rational
choice seeks to provide a better account of the spontaneous and reckless
nature of much illegal conduct. It does so by recognizing the non-
instrumental motivations underlying much crime and by acknowledging
the restricted nature of offenders' rationality (Clarke and Felson, 1993). In
this light, rational choice views crime as purposive behavior designed to
meet offenders' needs for status, sex and excitement as well as for money
and material goods. Meeting these instrumental and expressive needs
requires that potential offenders make at least rudimentary choices and
decisions about whether or not and how to participate in criminal events.
Also considered in the rational choice perspective are offenders' perceptions
of their abilities to create and take advantage of illegitimate opportunities
and their assessments of the risks of getting caught (Clarke, 1977; 1980).
AN OUNCE OF PREVENTION OR A POUND OF CURE 87
This latter concern is what Cusson (1993) has termed "situational
deterrence."
Rational choice theorists emphasize that avoiding risk and limiting effort
figure prominently in offenders' decisions concerning target selection. They
remain aware of the limited and circumscribed nature of terms like
"reasoning criminal" and "rational crime" and recognize that the level of
rationality in much crime, while minimal, is by no means non-existent (Akers,
1997).
The Tactics of Situational Prevention
The situational convergence of offenders and targets in time and space
sets the stage for the criminal event. At that point, offenders must make at
least rudimentary rational choices about target selection. They must also
decide -whether or not and how to strike. Decisions involve a calculated
determination of target suitability. Is it valuable enough to ensure that the
potential benefits of acquisition outweigh the potential losses that might
accrue from detection, apprehension and punishment? Is the target
sufficiently accessible? Is the level of guardianship low enough to render it
vulnerable? Offenders' answers to these questions profoundly shape the
evolution of criminal events and offer the key to situational crime prevention.
Where the convergence of offenders and targets in time and place can be
minimized or where offenders can be dissuaded from selecting certain
targets because they are insufficiently valuable, inert or well guarded, criminal
events will be curtailed or altogether eliminated.
While existing research on situational crime prevention is limited in
scope and rigor, preliminary efforts do indicate some measure of success
with a series of strategies. Among the more common of these tactics are
target hardening, access and egress management, formal and informal
surveillance and facilitator regulation.
Target Hardening
Target hardening involves reducing or entirely removing opportunities
for criminal predation. Some target hardening tactics involve the construction
of physical barriers to separate the potential offender from the target. Others
involve the removal of the target or a reduction in its numbers or value.
Safes, steering wheel locks, public transportation driver-screens and bank
teller cage-shields are examples of physical barriers that reduce the likelihood
of victimization (Poyner et al. 1988; Clarke, Field, and McGrath, 1991;
88 CriminalJustice System
Webb, 1994). The reduction of cash on commercial premises (Clarke and
McGrath, 1990), the use of phone cards to limit or eliminate money retained
in the coin boxes of phones, exact-fare systems on public transit (Chaiken,
Lawless and Stevens, 1974) and rules prohibiting patients from keeping
valuables in their rooms (Moore, 1987) are means by which targets are
either reduced in value or altogether eliminated.
Other potentially effective target hardening strategies facilitate the
tracing of stolen commodities through various forms of property
identification. VIN numbers on automobiles and serial numbers on electronics
equipment are examples of ready-made identification systems that constrain
the sale and aid in the recovery of stolen property. Police programs of
property identification involve etching some sort of signature such as an
owner's Social Security Number on goods. Another more technologically
sophisticated measure involves the use of transmitter devices (e.g., LOJACK)
placed in automobiles that facilitate their location should they be stolen
(Clarke and Harris, 1992a; 1992b). The rationale underlying these initiatives
is that offenders will learn over time that targets will be both harder to
acquire and, if acquired, more easily identifiable and recoverable. For the
offender, these factors increase both the degree of risk and the level of
effort that must be expended.
Another means of protecting targets involves deflecting offenders by
encouraging them to make use of legitimate alternatives. Utilization of
decoys channels potentially destructive behavior along more acceptable
paths. Large numbers of strategically located trash cans reduces littering
and the provision in public restrooms of graffiti boards limits vandalism.
Access and Egress Management
Controlling access is aimed at excluding offenders from places such as
office buildings, industrial sites, residential neighborhoods, apartments and
commercial outlets where crimes might be committed. Regulating egress
is a means of keeping people from leaving premises with goods that do
not belong to them. Management initiatives range in sophistication from
the simple to the complex. Relatively simple strategies involve the closure
of roads and pathways (Matthews, 1990), the erection offences and other
barriers (Poyner and Webb, 1987) and the checking of identity cards. More
sophisticated tactics involve the utilization of various technologies. Personal
identification numbers (PINs) are used routinely to limit access to worksites
and banking machines. Airport security devices are used to check passengers
AN OUNCE OF PREVENTION OR A POUND OF CURE 89
and their baggage for prohibited substances and objects (Wilkinson, 1977;
1986). Retail outlets and libraries use similar devices to guard against the
illegal removal of property. Merchandise is tagged (Hope, 1991) and books
(Scherdin, 1986) are striped in such a way as to set off alarms if protected
items are illegitimately removed from the premises.
Formal and Informal Surveillance
Surveillance involves monitoring people and locations for the purposes
of deterring crime or apprehending criminals. Surveillance ranges from the
formal through the informal. It is considered formal when it involves persons
or organizations, usually police forces or private security agencies, acting in
an official crime prevention capacity. Security patrols, alarm systems, photo
radar and officially monitored closed circuit television (CCTV) are examples
of surveillance falling more at the formal end of the continuum (Mayhew
et al., 1979; Poyner, 1991; Tilley, 1993; Bourne and Cooke, 1993). Also
considered formal surveillance are those instances where employees
perform security-related functions in addition to their primary "work-related
responsibilities. Doorpersons at hotels and apartment buildings (Waller and
Okihiro, 1978), park and parking-lot attendants (Laycock and Austin, 1992)
and train conductors (Mayhew et al., 1976) are examples.
Informal or natural surveillance comprises strategies aimed at increasing
awareness and visibility to such an extent that criminal activity -will be
more easily observable by ordinary citizens as they carry on their normal
activities. Following the observance of an illegal act, citizens are in the
position to intervene, call police or identify the culprit. For potential
offenders, each of these possibilities serves to heighten risks and increase
the effort required thus dampening their enthusiasm for perpetration. Among
tactics designed to increase informal surveillance are trimming hedges and
bushes around houses and other buildings, augmenting lighting on streets
and in parking-lots and garages and clearing displays from the front windows
and entrances of convenience stores (Tien et al.,1979; Ramsay, 1991)- All
of these measures are designed to improve sight lines thereby increasing
the likelihood that members of the public will observe crimes in progress.
Other means of surveillance such as informant hot-lines, crime-stopper
media reenactments and neighborhood and apartment watch programs
(Rosenbaum, 1988; Bennett, 1990; Merideth and Paquette, 1992) are
expressly designed to facilitate the public's reporting of crime.
90 CriminalJustice System
Facilitator Regulation
Criminologists have identified a number of factors that serve as
inducements to crime commission. Among the more prominent of these
are firearms and alcohol, both of which figure prominently in the execution
of a wide variety of violent and property crimes (Cook and Moore, 1995;
Boyum and Kleiman, 1995). Practices that restrict the carrying of guns
(Carr and Spring, 1993) and the consumption of alcohol (Collins, 1981) are
logical means of reducing crime through the curtailment of facilitators. In
similar fashion, caller ID has limited the use of phones for a variety of
illegitimate purposes including sexual harassment (Clarke, 1990).
Researchers have also noted that vandalism, disorderly conduct and
ultimately more serious forms of illegal conduct can be curbed by
immediately repairing "broken windows" (Wilson and Kelling, 1982) and
other visible signs of neighborhood disintegration (Zimbardo, 1973; Samdahl
and Christiansen, 1985; Sloan- Howitt and Kelling, 1990).
Effectiveness of Situational Crime Prevention
Considerable evidence is being amassed which suggests that situational
crime prevention can be successful in ameliorating if not eliminating a
variety of types of criminal predation (Clarke, 1995). By the same token,
evidence also indicates that some preventative measures have proven
ineffective for reasons that have little to do with the utility of the initiative
itself. Some conceptually strong strategies fail because ethical and due
process issues along with concerns over cost compromise proper
implementation. Furthermore, some measures are easily overcome by
culprits whose creativity and determination have been underestimated. In
some cases, preventative measures merely encourage offenders to escalate
their nefarious efforts (Clarke and Harris, 1992a; 1992b).
Situational crime prevention that depends largely on informal
surveillance sometimes proves ineffective because program developers
have overestimated the public's vigilance (Dwyer, 1991)- Many people
simply do not watch, do not recognize, do not respond to and do not
report crime. In addition, some preventative efforts are defeated by those
whom they are designed to protect. People making legitimate use of facilities
routinely leave doors unlocked and ajar to increase their own ease of entry
(Micucci, 1994).
Two problems are occasioned by the fact that many evaluations of
situational crime prevention are rudimentary in their designs and are
characterized by short-term follow-ups. First, the durability of preventative
AN OUNCE OF PREVENTION OR A POUND OF CURE 91
effects remains uncertain. Second, the extent of crime displacement is
unclear. It is this latter point that represents the major criticism of the
situational approach to crime prevention (Clarke, 1995).
Displacement
Displacement occurs when efforts to protect a particular target at a
particular time and place are effective but when, as a consequence, potential
offenders simply select different more vulnerable targets or undertake
alternative illegal courses of action. Where offenders change targets, strike
the same ones at different times and places, alter their tactics or switch to
a new form of crime altogether, crime is displaced rather than halted.
While a problem, displacement is not inevitable. Offenders' choices
are contingent on their judgments concerning ease of execution, risk of
being observed and apprehended and the attractiveness of alternative forms
of criminal activity. Where preventative measures remove easy
opportunities, offenders may have to settle for smaller criminal rewards,
lower their frequency of offending or select non-criminal alternatives.
Because situational prevention increases the need for offenders to expend
higher levels of energy and incur higher risks, total displacement rarely
occurs (Gabor, 1990). In support of this observation is research that points
to limited displacement surrounding preventative initiatives aimed at check
fraud (Knutsson and Kuhlhorn, 1981), theft (Poyner and Webb, 1987),
obscene phone calls (Clarke, 1990) and robbery (Clarke, Field and McGrath,
1991).
Diffusion of Benefit
Variously termed the free rider, halo or bonus effect (Miethe, 1991;
Scherdin, 1986; Sherman, 1990), diffusion of benefit is the direct opposite
of displacement. It is operative when a preventative measure brings about
a reduction in criminal predation that was not directly intended (Clarke,
1995; Pease, 1991). In other words, the beneficial influence spreads beyond
the specific crimes targeted, the particular places identified and the exact
time periods focussed upon (Clarke and Weisburd, 1994).
Clarke and Weisburd (1994) identify two types of benefit diffusion—
deterrence and discouragement. Deterrence occurs 'when potential offenders
come to believe that more preventative measures have been taken than is
in fact the case. Under such circumstances, they believe that the risks
associated with a particular crime are higher than they in fact are.
Discouragement takes place when preventative measures increase the
92 CriminalJustice System
ratio of effort to reward. Offenders must do more work for fewer rewards
and come to believe that a particular form of crime is no longer worth
pursuing.
Situational Crime Prevention and Community Policing
Policing, until recently, has been dominated by the idea of
professionalism (Walker, 1992). Professional policing is premised on the
notions of specialized expertise and autonomy. As professionals, police
have sought to use their specialized crime-fighting knowledge to address
community crime problems and to do so independently of community
input or direction. Policing from this standpoint has been highly reactive,
based largely on a system of mobile patrol, rapid response and criminal
investigation. The cornerstone of reactive policing has been a crime reporting
system based on 911 •
The primary goal of professional policing involves apprehending
criminals following their perpetration of illegal acts. The professional
emphasis, the rewards and the glamor of police work involve solving crimes
and catching criminals. Proactive efforts, where police take the initiative in
crime control independent of public reporting, have received less emphasis.
Crime prevention, through the reduction of illegal opportunities, has largely
fallen by the wayside.
From the professional perspective, contemporary crime problems are
acute and do not allow sufficient time for police to provide services that
are not directly related to crime control. Walking down streets talking to
citizens about their concerns and checking merchants' doors along the way
do not directly involve crime-fighting and therefore do not constitute "real
policing;" checking for unsecured gates, doors and windows is, after all, the
domain of the security guard.
In the face of research demonstrating a myriad of problems associated
with controlling crime through such professional means as mobile patrol,
rapid response and criminal investigation, police forces are adopting a new
strategy under the rubric of community policing (Greene and Mastrofski,
1988). Community policing places greater emphasis on non-emergency
services, decentralization and accountability. It represents a shift away from
reliance on calls for service to involving officers in a long-term strategy
aimed at improving the quality of life in neighborhoods (Goldstein, 1990).
Community policing recognizes and acknowledges the key roles that citizens
have always played in crime control through their reporting of crime,
expressions of arrest preferences and cooperation as victims and witnesses.
AN OUNCE OF PREVENTION OR A POUND OF CURE 93
It seeks to bolster citizen involvement in the crime reduction enterprise by
fostering a partnership wherein the public assists police with the
identification of crime problems and with the development of workable
solutions. Involving the public in identifying problems, gathering information
and problem solving is a distinct departure from professional policing based
on crime-fighting expertise and departmental autonomy. Also of far greater
importance in the community policing approach is educating the public
about its role in coping with crime through community-based crime
prevention strategies (Skolnick and Bayley, 1988). This latter initiative
directly involves police working with members of the public in developing
situational crime prevention tactics and in utilizing appropriate preventative
technologies.
In addition to working in partnership with the public through mutual
consultation and education, community policing involves officers in
proactive initiatives directed at preventing crime through the control of
well-known situational risk factors such as those involving the potentially
lethal combination of youth, alcohol and firearms. Through aggressive traffic
control and proactive street contacts with youth, for example, police have
turned up and confiscated large numbers of illegal handguns. Through the
implementation and enforcement of curfews for young people and the
careful monitoring of establishments licensed to dispense alcoholic
beverages, young people have been kept off the street and sober. These
initiatives have been credited with contributing to the recent reduction of
homicide rates in America (Sherman, 1995).
The Future of Situational Crime Prevention
Several factors serve as impediments to the implementation of situational
crime prevention measures. To date, the control of crime has been seen as
falling in the domain of the criminal justice system. The justice system, in
turn, offers deterrence, apprehension, rehabilitation and incapacitation as
solutions to America's crime problem. Based on the notions of individual
responsibility and moral culpability, this approach has been a highly popular
one (Bright, 1992). America's almost zealous enthusiasm for increasingly
punitive sanctions in the form of more prisons and longer sentences for
more and more crimes continues to deflect attention from less punitive but
potentially more effective alternatives such as those aimed at prevention.
Linked to some innovations in situational crime prevention are numerous
new and ever more sophisticated technologies. Listening devices, metal
detectors, closed circuit camera systems and the like dramatically increase
94 CriminalJustice System
the intrusive capabilities of various agents be they property owners, private
security personnel or police. The moral and legal boundaries between
acceptable and unacceptable degrees of intrusion are still being established,
and there are grave concerns about rights to privacy and civil liberties
more generally. These concerns are heightened in the face of Orwellian
images of the development, implementation and rapid spread of
technologies that make possible the highly efficient surveillance of the
many by the few (Marx, 1986). Challenges to civil liberty provisions have
been raised around the state's efforts to control risk factors such as guns,
alcohol and the number of youth concentrated on street corners at night.
Various groups have grounded such challenges in the argument that
government is already interfering too greatly in the lives of its citizens.
Such expressions of concern, however, overlook the fact that, to date,
many situational crime prevention measures have been instituted by private
enterprises to protect private property (Clarke, 1995).
Some scholars in the criminological community find the emphasis on
situational crime prevention problematic for two related reasons. First, some
critics argue that situational crime prevention is too accepting of
establishment definitions of the nature of the crime problem as Criminal
Code offending (Young, 1988). They point out that the illegal conduct to
be "situationally prevented" is overwhelmingly of the type perpetrated by
lower-class, minority-group, street criminals. A second and related point is
that the emphasis on altering situational circumstances conducive to criminal
predation diverts attention from crime's broader root causes—
unemployment, family disintegration, poverty and discrimination.
Despite these concerns, there are compelling reasons why situational
crime prevention has much to offer in the campaign to control crime more
effectively. First and foremost, traditional means of crime control such as
professional policing, stiffer sentencing and the expanded use of corrections
have not had the desired impact. Given the serious questions regarding
the effectiveness of conventional approaches aimed at apprehension,
punishment, deterrence, rehabilitation and incapacitation, the door is open
for the development and implementation of alternative potentially cost-
effective measures.
Second, the situational variables that represent conditions conducive
to criminal activity are comparatively easy to manipulate. Target hardening,
access and egress management, formal and informal surveillance and the
regulation of facilitators as means of crime reduction are easier to accomplish
than tackling the criminogenic factors nominated by most theories of crime.
In comparison to situational contingencies, family disharmony, lack of
AN OUNCE OF PREVENTION OR A POUND OF CURE 95
bonding, insufficient social welfare support, inadequate employment
opportunities, substandard schooling, poverty, subcultural involvement and
discrimination are very difficult to adjust purposively. Altering structural
criminogenic conditions is difficult because doing so -would not only prove
astronomically expensive but would seriously disrupt entrenched social
and economic interests.
Third, situational crime prevention fits well with the current shift away
from professional policing to community-based and problem-solving
policing. This transition promises to place far more emphasis on crime
prevention through public involvement in problem identification and solution
as well as in specified proactive preventative strategies. The latter include
better regulation of facilitators such as guns and alcohol as well as tactics
aimed at extinguishing crime hot-spots (Sherman, Garttn and Bueger, 1989)
and at protecting repeat victims (Farrell and Pease, 1993; Farrell, 1995).
Finally, situational crime prevention is both theoretically guided and
amenable to evaluation. Refinements of routine activities, lifestyle-exposure
and rational choice theories are directing pragmatic policy-relevant research
that is providing rich insight into the production of crime and its control.
Since situational crime prevention is a relatively new approach, additional,
well-designed, action-research-oriented evaluation studies are needed.
Future research is necessary to separate situational contingencies that work
from those that do not, to determine the degree of displacement and
diffusion of benefit and to guide the further refinement of preventative
tactics.
Discussion Questions
1. Assess the rationale for arguing that an ounce of prevention might be
more appropriate than a pound of cure in contemporary efforts to
control crime both formally and informally.
2. Discuss the ways in which routine activities and rational choice theories
can be combined first to explain criminal predation and second to
guide the development of effective crime control policy.
3. Which of the four prevention tactics do you think has the best (and
worst) prospects of being implemented? If implemented, which tactic
has the greatest potential to reduce property crime on one hand and
violence on the other? What factors facilitate or impede implementation
and why?
96 Criminal Justice System
4. Outline the problem for crime prevention that is posed by displacement.
How might benefits be diffused in such a way as to offset displacement?
Design a research project that could assess both displacement and
diffusion of benefit.
5. Discuss the potential for crime control occasioned by the recent
transformation from professional to community-oriented problem-
solving policing. Assess the prospects for increased police effectiveness
through the involvement of the community in situational crime
prevention.
6. Discuss the problems and prospects of situational crime prevention in
the context of concerns over civil liberties, rights to privacy and criminal
justice ineffectiveness.
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Tracking Crime:
A Professional Odyssey
R.S. Ratner
University of British Columbia
Introduction
My aim in this paper is to explore, through some biographical vignettes,
the macrosociology of social control. In doing so, I am particularly interested
in drawing critical attention to the rhetoric of community control now so
familiar in correctional circles. I have some long-cultivated misgivings about
the way this notion is advanced as a panacea to crime and the way generic
terms such as "community" and "crime" are often disconnected from
structural determinants of political economy.
The issue is important to investigate because the shift to a community
corrections approach over recent years has rekindled hope for humanitarian
and less costly reforms after a long and dismal record of segregative controls.
Unlike the modest reforms of the progressive era (probation, parole, juvenile
correction) which were really only supplemental to incarceration, the
present-day community corrections movement allegedly constitutes "a
fundamental assault on the logic of the (segregative) system as a whole"
(Scull, 1983:151). Curiously, this approach has become popular at a time
'when institutional segregative controls are by no means declining. Yet it is
clear that confinement rates have overtaxed capacity, reaching the point
of "penal saturation" (Brodeur, 1996),
1
 so that short of a massive privatization
of custodial control (which would still be reliant on public funds) the search
for intermediate punishments is a necessity, thus the continuing interest in
developing community forms of crime control.
R.S. Ratner is a Professor of Sociology at the University of British Columbia, Vancouver,
B.C., Canada. His main areas of teaching and research are critical criminology, social
movements and group interaction. His current research focuses on the problems of
coalition formation in the 'new social movements' and on the interface between
modern and postmodern theorizing in criminology.
CHAPTER
6
102 Criminal Justice System
While an expansion of community corrections seems requisite, the
concept itself is problematic given the loose conceptualization of
"community" that usually characterizes attempts to define the term.
Nevertheless, close observers of changes in criminal practice note that
an appeal to the idea of community has gained a particular
salience over the past thirty years. Community has furnished
a discursive framework for social policies which have been
conceived, designed, implemented, and legitimated. Nowhere
has this been more prominently so than within the realm of
criminal justice. (Lacey and Zedner, 1995: 301)
Again, this is a puzzling trend given that we appear to be drawn to the
idea of community primarily in its absence or in circumstances where the
realization of community has proven elusive.
2
 In any case, the idea of
community is certainly rich in symbolic power, conjuring up images of
solidarity, responsibility and social justice, so perhaps it is no surprise that
the term has resurfaced and is now dominating criminal justice debates
(Kaminer, 1994a).
In a literal sense, community control might be likened to criminal justice
reforms brought about by popular initiatives and mobilizations at a local
level (Platt, 1984). Technically, community control denotes the reduced
segregation of offenders (Greenley, 1975) and greater utilization of diversion,
reparative and community service sentencing (Shuster, 1982; McDonald,
1986). More recently the term has been extended to various forms of self-
help community development strategies and neighborhood justice systems
fostering new modes of local governance that may even challenge formal
state agencies (Crawford, 1995).
Unfortunately, the initial enthusiasm over community corrections and
prevention measures has not been justified by the results of its
implementation. Even where commitment to a community-wide strategy
is shared across different constituencies, the outcomes are disappointing.
As Hasting notes (1996: 315): "for all the energy and resources that have
been invested in prevention initiatives, the rates of crime and victimization
have stubbornly refused to fall."
Of course, many of the correctional programs launched in communities
have been tokenistic or grievously under-resourced, making success
improbable. But evaluative studies conducted over the past 20 years have
repeatedly faulted community corrections programs for failing to reduce
TRACKING CRIME 103
recidivism rates, abusing due process rights of offenders and promoting
residual neglect of institutionalized populations (e.g., Hylton, 1985; Cohen,
1985). Most worrying has been the ways in which community corrections
have extended the scope and legitimation of state control (the 'widening
of the nets' phenomenon).
3
 This is not to say that community corrections is
never an improvement over custodial control or that it is merely its covert
extension, but the problems suggest that the impediments to a revamped
correctionalism may be more complex than a lack of technical know-how
or sheer administrative bungling. It is my argument that the failures of
community control in the criminal justice area are largely attributable to
external factors that determine the fate of specific applications, namely
the constraints imposed on community programs by the political and
economic structures that engulf them. This suggests that the relations
between crime and community are, in some crucial respects, artifacts of
developments in the wider political economy, thus underscoring the
importance of delineating a macrosociology of social control. I try to do
that in an admittedly suggestive, but I hope illuminating, way by revisiting
some of my research experiences during my years as a sociologist,
experiences in 'which I discovered, usually without forethought, the
embeddedness of community in state relations. In recounting, anecdotally,
what I now view as pivotal features of six such involvements (occurring
over a 30-year span), I want to identify some of the wider determinants on
local action that are either disregarded or concealed in the ostensible quest
for more autonomous forms of social control.
Six Case Studies
Mobilization for Youth
In 19651 was leisurely engaged in sociology graduate studies at Yale
University, about to require a good paying job in order to support a sudden
outcropping of family. A friend helped me to obtain a position as program
evaluator at Mobilization for Youth (MFY) in New York City, and while this
entailed approximately five hours of travel time daily, I couldn't afford to
turn down the offer; moreover, the opportunity to participate in action
research at MFY struck me as an ideal way to kick-start my career as a
sociologist.
Mobilization for Youth was the first of the "Great Society" agencies
(Piven and Cloward, 1971: 290). It began as a large-scale delinquency
104 CriminalJustice System
prevention program on New York City's lower East Side. Its research director
was a prominent criminologist, Richard Cloward, who saw the demarcated
urban area as a natural laboratory to test the differential opportunity structure
theory that he derived from Robert Merton's earlier work on anomie (Short,
1975). The MFY program was geared to create work and educational
opportunities through educational supports, community organization and
specialized supports to adolescent groups, individuals and families (Lisak,
1987: 52; Empey, 1978: 295). It was assumed that these interventions
would reduce delinquency and other related forms of deviance (e.g.,
alcoholism and drug addiction) by changing the opportunity structures that
blocked the integration of low-income youths into the mainstream of
American society.
On May 31, 1962, Mobilization for Youth was inaugurated in a White
House garden ceremony and awarded a three-year federal grant of $12.5
million.
4
 Additional funds were provided by the Ford Foundation and by
New York City. This seemed enough to cover my salary, so I happily took
the job, which would be with a new division of MFY—Adult Employment
Programs. By the time I joined MFY in 1965, however, the bloom had
already -worn off the Great Society series of reform programs. Kennedy
had been assassinated two years earlier and Johnson's version of the New
Frontier never commanded the same moral credibility. As well, MFY was
taking a beating from both liberal and conservative critics who opposed
radical initiatives such as rent strikes, civic demonstrations and legal actions
on behalf of welfare clients, all integral to MFY's community organization
mandate: "within a short time, participants in Mobilization for Youth were
being described by the New York Daily News as 'Commies and Commie
sympathizers'" (Pfohl, 1994: 278).
Local authorities, the media and the once innovative government parent
of MFY began to harass the agency when its social activism threatened to
foment a widespread movement among the poor.
5
1 recall meetings of
worried administrators trying to recover impounded funds and FBI
witchhunts for subversives, and I was initially thankful that I could sidestep
much of the controversy through my association with the new, as yet
untainted, adult division; but I soon encountered other pitfalls not unfamiliar
to the -workings of almost any anti-poverty agency.
My role was to evaluate a program scheduled to employ 60
disadvantaged adults in a new non-professional health occupations program
designed to improve the linkage between health services and low-income
TRACKING CRIME 105
people needing them. This was part of the attempt to create a stable
economic base for the Lower East Side by seeding it with socially useful
work opportunities for low-income heads of families. Presumably, one effect
of providing such jobs would be a reduction of crime rates in the area.
6
 The
60 jobs represented a prototype New Health Occupations Program
developed and carried out in cooperation with Gouveneur Health Services
Program, an outpatient clinic in Lower Manhattan under the administration
of Beth Israel Medical Center.
7
 Multiple hurdles were overcome, but the
program encountered its greatest crisis when a new set of hospital
administrators wanted to scale back the number of contracted positions
due to budgetary and union bargaining considerations. The new hospital
officers did not consider themselves bound by arrangements they had not
made and had never individually approved. The trainees, although they
had no standing with either the prospective employer or the union
representing the hospital's employees, protested that the federally
supported MFY project was a public commitment for job openings and
entry wages. Fortunately, a compromise was reached that enabled the
hiring of a reduced contingent of trainees in the first round at slightly lower
salaries than originally budgeted and a subsequent hiring of all graduates of
the program with a new proviso that job commitments had to be assured
before training was undertaken.
What I recall most about the project was the chagrin felt by the entire
program staff over the near-failure to break the negotiative impasse, a
crisis that developed just when the trainees were about to graduate and
assume their hard-earned positions. The sense of betrayal that the trainees
felt prompted a hastily organized mini-march on Washington, and the
demonstration project came dangerously close to demonstrating that the
system didn't work and that the goal of mainstreaming the socially
disadvantaged was an unattainable dream.
Other projects launched by the division did not get as far, and some
did, so that, in sum, both the adult and youth divisions of MFY enjoyed
limited success in improving services to families and in providing job training.
The community organization (i.e., self-help) emphasis, however, "was more
problematic and failed to raze institutional barriers (e.g., slum landlords)
that stood in the way of a revitalized community. The remorseless class
nature of the system and its intensive bureaucratic defensiveness could not
be openly challenged or significantly altered. As Pfohl (1994: 279) recounts
in assessing MFY's impact on delinquency:
106 CriminalJustice System
Within a few years the program had become little more than
a reminder of the turbulent 1960s in which it'was conceived.
There was little in the way of serious assessment of its actual
effect on the rate of delinquency. Perhaps its vision was
simply never radical enough. The practical power of
sociological reformers proved no match for the strong political
and economic interests of those threatened by a fundamental
restructuring of the American opportunity system.
In the summer of 19671 wrote my last demonstration project progress
report for the funding office in Washington and made the decision to leave
MFY and the entire country—bound for a purportedly better life in God's
green acre, British Columbia, Canada—which pleased my Canadian wife
immensely and also got me out from under the shadow of Vietnam. Before
leaving New Haven and my academic apprenticeship at Yale, I invited my
"indigenous" Puerto Rican research assistant and his wife to my home so
that they could take most of our furniture back to their apartment, in the
Lower East Side. While still at my home, they received a call from a relation
in New York informing them that neighborhood residents, aware that they
had left town for the day, had ransacked their apartment and made off with
a valuable collection of musical instruments. This regretful coda helped me
to justify my decision to leave the agency, reasoning that MFY and the so-
called War on Poverty was just a proverbial drop in the bucket. That was
the only exculpatory thought I could muster given my now chosen
ontological status as craven academic.
The Spring Street Program
In the early 1970s, now ensconced in the anthropology and sociology
faculty at the University of British Columbia, I parlayed my MFY experience
and a self-cast image as criminologist to gain a research consultantship with
a delinquency diversion project administered by Vancouver's municipal
department of social planning. "Diversion" was fast becoming a buzzword
in the criminology field as juvenile corrections personnel in Canada and the
United States sought -ways to reduce utilization of the juvenile courts and
divert offenders from the stigmatizing effects of the criminal justice system.
Earlier diversion projects had raised concerns about due process abuses
and net-widening, but the Law Reform Commission of Canada strongly
recommended its adoption as a way of minimizing involvement in the
adversarial process, at least with regard to less serious offenses (LRCC,
1975).
TRACKING CRIME 107
A program aimed at treatment of child lawbreakers between eight and
fourteen years of age was already underway in Ottawa where a youth
services bureau had been established in I960. This program was referred
to as a "detached youthworkers program" involving on-site accountability
and community-based therapeutic programs in order to change delinquent
patterns (Keech et al., 1968). In 1968, one of the directors of the Ottawa
project became the head of the new Vancouver Department of Social
Planning and Community Development. In order to address a serious
problem of gang delinquency in Vancouver parks, he ordered his staff to
establish the Ottawa program on a trial basis in Vancouver. By the summer
of 1971 the Spring Street Program was under way and I was hired as
principal research consultant and evaluator. Funds were committed—through
the Vancouver Resources Board (under the aegis of the Provincial Department
of Human Resources)—for a two-year demonstration project (January 1972-
December 1973).
The project aimed to reduce the incidence of youth crime in Vancouver
by changing the behavior of juveniles whose record and background
suggested potentially troublesome or criminal tendencies.
8
 A corps of
detached streetworkers would work with children in their local communities
to modify delinquent behavior and attitudes. The formula for success was
based on small caseloads, use of community resources (particularly
recreational incentives) and a confrontative approach emphasizing
accountability. Operationalizing the concept of community was therefore
crucial in a number of respects: as a source of contacts so that streetworkers
could develop an independent recruitment network for direct referrals to
the program; as a source of interpersonal and agency supports for carrying
out the behavioral change mandate and as a natural site for peer groups
and family extensions of the streetworker-client relationship. Two aspects
of the demonstration project were highly problematic, illustrating the
difficulties in implementing both community corrections and community
control and the fate of social experiments that challenge fundamental
societal values and constraints.
First, the concept of "community impact" (i.e., progressive inclusion
of local residents in the treatment program) could not be realized because
of the mobility of clients as well as the difficulty in identifying "significant
others" in urban settings that were socially disorganized. Attempting to
involve neighbors and local proprietors in the treatment plan not only
raised issues of confidentiality but proved time-consuming and complicated.
108 CriminalJustice System
Even families and peer-groups proved difficult to integrate in the treatment
strategy since their transience disrupted efforts to promote "therapeutic
contagion." Moreover, if the streetworker did succeed in stimulating clients'
interest in new activities that might draw them closer to normal social
institutions, opportunities for sustained involvement in these activities seldom
materialized, leading clients to question the whole enterprise. Before long,
many of the clients felt embittered by the transparent fallacy of community
corrections as even the recreational incentives that lured them into Spring
Street were drying up in the program's later stages.
The second problem befalling Spring Street referred to the issue of
community control. At first it was believed that most of the bugs in the
program had already been worked out in the Ottawa prototype and that
an autonomous street-level program could readily be installed. But only a
small number of line staff at the established social service agencies seemed
to share this view; consequently, the referrals of troubled youth to the
Spring Street Program were scarce and frequently inappropriate, with much
time spent on defending the program's intake criteria and coaxing referrals
from the police and other agencies that were long on the scene and ought
to have known the youth profile that the program was seeking.
9
 But these
problems were merely a prelude to the political events that ultimately
sealed the program's fate.
In 1972 the provincial New Democratic Party (left-wing) won electoral
power for the first time owing to a split in the right-wing hegemonic bloc.
The new government announced its intention to create decentralized
resource boards comprised of ten to fifteen elected representatives of
each local community. In 1974, 14 community resource areas were
established, and in 1976 the NDP government, which had sponsored the
Spring Street Program through its Human Resources Ministry for an additional
two years (1974-76), recommended the program's dissolution since it was
thought to be in consistent with the decentralization schema. The city-wide
Vancouver Resources Board (VRB), operating under the aegis of the
Ministry's Human Resources Department, had always perceived Spring
Street as somewhat elitist and a creature of the city's fledgling Social Planning
Department. The board happily adopted the government's recommendation
and assigned detached streetworkers to local resource boards, making them
responsible to area managers rather than to a Spring Street director. Spring
Street staff fought to preserve their autonomy, arguing that the coherence
of the program depended upon their distinct identity as a special and
TRACKING CRIME 109
centralized service, but the VRB saw this as incompatible with the mandate
of each of the 14 community resource boards to determine their own
program offerings. Spring Street was dead in the water. Ironically, the
community boards had been in operation for only a month when a new
provincial election was called and a reunified capitalist bloc was returned
to power. Shortly afterwards, a bill was passed by the new government
that called for the dissolution of the community boards and its parent VRB
and for a re-integration under the auspices of the provincial Ministry of
Human Resources.
10
 The city of Vancouver was then divided into five
semi-autonomous regions, with a sharp reduction of line staff. Decisions
were once again made at the top (i.e., originating in Victoria, seat of the
provincial government) and handed down, bypassing citizen input into a
discussion of new policy—all this on the questionable premise that the
former community resource boards had not been accountable in spending
and program efficiencies.
In the midst of this political turmoil, Spring Street fared badly in its last
two years of operation, functioning without a director, housed in shabby
quarters, suffering chronic staff burn-out and 150 percent turnover, and
losing its training and research components. The triumphant Social Credit
right-wing coalition party cleaned house, declaring programs such as Spring
Street a bad precedent and incorporating its functions into their own highly
centralized bureaucracy.
Through all of the roughly three years that I served as the Spring
Street Program's research evaluator, I was continually advised by the deputy
planner in charge of the program to pay little attention to political concerns
and to concentrate on evaluating substantive program matters. In the fall
of 1973, as I embarked on the final stage of my research and write-up, I
received a letter from him cautioning that, "Considerations such as staffing,
auspices, and financing, although important matters, are political ones and
should be secondary to the above primary considerations."
u
At a subsequent meeting in early 1974 he reminded me, most
emphatically, not to discuss future auspices—"It's a political question!"
In retrospect, I probably would have endorsed that view when I first
took up my research role at Spring Street. But as time passed and events
unfolded, it became increasingly clear to me that the issue of "auspices"
(i.e., who was or would be in control of the project) had an enormous
impact on what the project could or could not accomplish. The issue of
community control—and how that was understood—was really central to
110 CriminalJustice System
the project's ability to fulfill its mandate and had a decisive effect on its
operations. Since the meaning of community control was in political flux
during the course of the program, Spring Street was at the mercy of both
left-wing decentralization and right-wing recentralization schemes that
equally undermined the program's autonomy. Sorting that out seemed
exceedingly relevant to an evaluation of the project, yet I was advised to
purge my analysis of such considerations. I did not entirely follow that
order, but neither did I pick up an important analytic thread when I failed
to focus my evaluation on the changing linguistic constructions of community
control. Indeed, delinquency diversion, the professed objective of the
program, was a subdued and almost forgotten topic within the crucible of
power struggles waged between city and province and between political
parties. If I had thought more about why the so-called community -was
hardly available to be mobilized by Spring Street workers, and why the
program "was so vulnerable to the changing political winds of community
control, I might have been able to clarify some of the challenges that wore
down the young streetworkers, now probably deep into their own middle-
aged political machinations or happily shunning demonstration programs
on some deserted isle.
Solidarity Coalition
One of the most dramatic social and political confrontations in British
Columbia history occurred in the summer and fall of 1983- It was a conflict
that went to the root of relationships between crime, community and state.
Economic downturns in the late 1970s, followed by the deep recession
of 1981-82, led to a phased abandonment of the Fordist project in many
.Western industrial democracies. Faced with declining revenues and rising
social welfare costs, governments turned to privatization and restraint
measures that became central to the emerging politics of neo-conservatism.
Full employment through policies of Keynesian demand management,
the social entitlements realized in the welfare state and labor's rights to
free collective bargaining were all under threat during this period of
protracted economic crisis. A number of governments responded to this
crisis by attempting to reappropriate a larger piece of the economic pie for
capital in the hope of generating both new revenues and political stability.
In British Columbia, the first shots in what was, in effect, a class war,
came only a few "weeks after the 1983 provincial election in which the
right-wing Social Credit (SOCKED) party held onto power, winning 35 of
TRACKING CRIME 11 1
57 seats after campaigning on a vaguely stated program of moderate
restraint. On July 7, 1983, however, the government, acting under the
tutelage of the Fraser Institute—an ideologically doctrinaire right-wing think
tank—suddenly introduced Draconian measures of fiscal restraint that were
blatantly anti-labor and anti-welfare. According to the government, the "new
economic reality" justified a radical pruning of collective rights and of the
social wage so that businesses could be competitive in the new global
environment of market relations. Twenty-six proposed bills severely
retrenched labor rights and social services, some declaring an abrupt end to
state subsidies and protections for the poor, the handicapped and the
underprivileged (Carroll, 1984). The public was almost uniformly outraged,
accusing the government of abrogating the social contract and of downright
"criminal" conduct. A Lower Mainland Budget Coalition was quickly formed
composed of existing networks and organizations of trade unionists and
community activists. In August 1983 this group merged -with the larger
Operation Solidarity led by the province's largest labor central, the B.C.
Federation of Labour, which had huge personnel and financial resources at
its disposal. Thus, the Solidarity Coalition was bom and the epic battle with
government was under way. Prior to this merger, 25,000 anti-government
protesters had demonstrated at the government offices in Victoria. On
August 10, the mass extra-parliamentary movement paraded its strength
again with an outpouring of 50,000 supporters at Empire Stadium in
Vancouver.
12
 The strident demonstrations, strike threats and hints of potential
anarchy forced the government into a negotiative position, one which
exposed a schism between the powerful labor groups and the weaker
popular-democratic groups that represented the constituencies most
vulnerable to the government's assault on welfare state provisions. Although
the government forged ahead and passed most of its bills by mid-October,
escalating strike actions, including the threat of a general strike, led to a
meeting with Solidarity Coalition representatives in November where -the
government agreed to drop some bills and modify others. The results
satisfied labor leaders who sought to maintain collective bargaining and
seniority rights but disappointed the various popular-sector community
groups who were still victimized by much of the remaining legislation. The
realization by these groups that they had not been full partners in the
coalition, and that they had, in fact, been sold-out by labor's opportunism,
was extremely disillusioning and made it more difficult to consolidate
opposition to later attempts by government to reintroduce previously
112 CriminalJustice System
withdrawn bills in order to shore up their restraint program. Graffiti scrawled
on the wall of an East Vancouver tenement summed up the mood of many
of the alienated protesters—"Rise up, eat shit, and die" (Palmer, 1986:
104). The humiliation was capped off by the re-election of the Social Credit
government in the 1986 provincial election (47 of 69 seats), a victory
achieved simply by changing the party leader and despite all
prognostications to the contrary.
While the collapse of Solidarity Coalition was disheartening, the 130-
day struggle showed that an extra-parliamentary force could be mobilized
to influence government actions, even (or especially) when social
democratic reformism—the parliamentary tactics of the opposition New
Democratic Party—was to no avail. The repressive government legislation
was barely legitimate in the arbitrary way that the bills were conceived and
introduced, and in the impoverishing and criminogenic effects their passage
would have meant for the wider community. But the confrontation also
revealed chasms between various sectors of that community so that despite
Solidarity's exhilarating togetherness, when it came down to perceptions
of whose ox was being gored by the new legislation, its unity could not be
maintained. What these events underscored, therefore, was the tenuousness
of coalitions and the ability of the state to co-opt resistance when allied
groups fail to prioritize counter-hegemonic principles.
Although I was only one of the angry multitudes at the time, I later
studied the events of this period
13
 and began extensive research on coalition-
formation in social movements, stressing alliances between labor and
community groups (Carroll and Ratner, 1995). This new interest in social
movements replaced my earlier focus on crime per se, since the Solidarity
Coalition experience convinced me that the study of crime as relatively
isolated events and behaviors resulted in trivializing and reductionist
interpretations; outcomes were better understood as spin-offs of the mode
and relations of production, a Marxist idea that I had entertained on a
rhetorical basis in previous writing, but which I had never encountered
with such immediacy. It was an eye-opener, and from that point on my
critical criminology was informed by the study of the transformative potential
of social movements. The traditional concerns of criminology seemed too
far downstream to alter the societal pay-outs that deprived various categories
of persons of the opportunity to live without having to resort to crime. If
governments were willing to impose intolerable measures in order to spur
capital-intensive economic activity; if lab our bureaucracies were shamefully
TRACKING CRIME 113
hanging onto the threads of the Fordist compact; and if social democratic
politics were now powerless to halt the dismantling of the welfare state,
then it was time to shift my thoughts to the only remaining bulwark against
community degradation—the mobilization of citizens across space and time
in social movement coalitions. It would now be difficult to detach myself
from my object of study, but at last I recognized that that had always been
the wrong thing to do.
Committees for the Defense of the Revolution
By 19851 had achieved some notoriety as a critical criminologist and
was promoted to Associate Professor after a two-year struggle with
conservative elements still lurking in my department. I was ready to expand
my intellectual horizons and, coincidentally, I was invited to join a group of
U.S. and Canadian criminologists on a junket to Cuba in order to inspect
that country's criminal justice system. Cuba had always fascinated me from
afar, beginning in 1959 when Castro and his cigar-chomping confederates
arrived in battle fatigues on the campus of Columbia University in N.Y.C.
where I was an undergraduate. One of my professors at the time was C.
Wright Mils, a renowned iconoclast who was soon to write a book defending
the Cuban Revolution (Listen Yankee, I960) and whose teaching inclined
me favorably toward the changes taking place in Cuba. Twenty-five years
later, I now had an opportunity to visit the land of the "maximum leader"
and to judge for myself how the great social experiment had fared. We
would have only eight days, but that would provide a much better
assessment than the government propaganda that monopolized the U.S.
media and also contaminated public opinion in Canada.
Our group of about 20—all academics and researchers (actually only
two of us from Canada)—were lodged at a quaint hotel in Old Havana. The
itinerary was well-planned, taking us on a tour of a Juvenile Re-education
Center, the Ministry of Justice, a provincial court, a maximum security prison,
a lawyer's collective and ending with a visit to one of the much touted
Committees for the Defense of the Revolution. Additionally, there were
meetings with the Union of Jurists, University of Havana law school
professors, the Cuban Federation of Women and the Minister of Justice
himself, who had been one of Fidel's comrades in the Sierra Maestra. I was
excited about the coming meetings, and, as usual, I was primed to ask
some hard questions.
For all the undeniable accomplishments of the revolutionary
government there were persistent charges and rumors of a "tropical Gulag"
114 CriminalJustice System
(Sobel, 1978: l4l), of hordes of political prisoners, of human rights abuses,
of a government controlled media and the outlawing of oppositional
parties.
14
 My stubborn questions about these matters earned the
disapprobation of some of my more politically correct colleagues (one
publicly reprimanded me on one occasion, although he apologized
afterwards) but not our hosts, who answered our questions with alacrity,
advising that, "There are no indiscreet questions; only indiscreet answers."
Over and over government officials told us that there were no people
imprisoned in Cuba for expressing contrary opinions, only for violations of
state security. Political prisoners of the 1960s era were described as
confessed CIA agents and pathetic remnants of the Batista regime, and the
number of such prisoners were said to have diminished to the point where
there were now "none." As the director of the maximum security penitentiary
put it, "Happily they're gone. Now that's your problem in the U.S. Reagan
can eat them together with potatoes." Some persons had been incarcerated
for crimes against the state, treason, conspiring and the like, but these
individuals were not seen as political prisoners as such. Verbal dissent was
permissible; it was when it turned to active dissent that the state stepped
in.
Unconvinced by such hair-splitting distinctions, but certainly impressed
by many other facets of the reformed justice system, I looked forward to
the last event on our itinerary, a meeting with the members of a
neighborhood Committee for the Defense of the Revolution (CDR). This
occasion, I thought, would inform me, in more personal terms, about what
ordinary Cuban citizens though of the transformations in Cuban society and
whether they saw themselves as truly participating in the governance of
the country.
The Committees for the Defense of the Revolution are neighborhood
organizations that were formed in I960 after bombs exploded amidst a
mass gathering at a speech given by Fidel Castro. Initially formed to guard
against sabotage and other forms of counter-revolutionary activity, the CDRs
have since promoted a variety of educational, public health, production
and propaganda activities.
15
 They serve as the government's main conduit
to the population at large, engaging in a myriad of campaigns. By 1984
over 80 percent of the adult population (roughly six million members)
were participating in these neighborhood watch groups, organized on a
block level throughout the country. Proponents describe them as "the
backbone of the revolution at the grass roots" (Aguila, 1984:155), though
TRACKING CRIME 115
critics revile them as a "spy network" covering the nation for the regime
and checking everything from children playing truant to adult shirkers (Azicri,
1988: 33). As the revolution stabilized with the development of the
constitutional Organs of People's Power in 1976 and the commissioning of
an official police force, the monitoring functions of the CDRs were rolled
back in favor of educational and mobilization activities. Even so, they
continue to be viewed as the "eyes and ears of the Revolution," a ubiquitous
mechanism of revolutionary socialization.
There are about 80,000 of these neighborhood committees in Cuba,
organized upwards into constituent "zones," then municipal "sections," then
provincial committees responsible to the National Directorate of Committees
for the Defense of the Revolution, in turn controlled by the Central
Committee of the Communist Party of Cuba. Managers at the block and
zone levels are locally elected and receive no pay. Municipal officials and
above are full-time salaried workers.
On the night of June 28, we boarded our tour bus and drove nearly an
hour before arriving at a "model CDR." About 30 of its members (men,
women and children) greeted us as we disembarked. We then gathered at
an outdoor meeting place built, as explained to us, with the members' own
labor and funds. After a brief greeting from the locally elected president of
the CDR, we were given a ten-minute introduction to the history, purposes
and functions of CDRs by a handsome and dignified gentleman who later
described himself (in answer to our queries) as the only "professional" at
the gathering (i.e., a salaried municipal official and a party militant). When
he finished his remarks we were invited to ask questions which he answered
along with various Cederistas from the block. Their answers were direct,
personal and moving as they praised the accomplishments of the revolution,
compared it (in the case of the older members) to the privations under the
Batista regime, spelled out the practical benefits of socialism, enumerated
the wide range of opportunities now open to them (some were able to
contrast this with their experience of living in the U.S.) and emphasized
the positive role of the CDRs on national politics and law-making. After the
formal question period we continued our discussion at the members'
homemade outdoor bar, enjoying beer, rum and refreshments. At the end
of the evening, the CDR members lined the sidewalk and fondly waved
goodbye as our bus pulled out, one feisty old woman who had been with
the revolution from the start, exhorting us to "keep up the struggle." It was
a memorable display of conviction and solidarity. On the ride back to the
116 CriminalJustice System
hotel I recall my emotions fluctuating between proud tears and creeping
suspicions about the perfectibility of the scenario.
The next afternoon, our last in Cuba, my Canadian colleague and I
visited a family at their home in Havana. I had been given the name and
address by a friend in Vancouver who knew the husband when he had
lived in Canada years ago. I phoned him and he agreed to an interview, not
before expressing some nostalgia for lox and bagels and the New York
Times.
The lobby and the elevator of Paul's apartment were in a fairly
dilapidated state, but the apartment itself was roomy and neatly furnished.
The family was comfortable, but far from affluent and didn't own a car. Paul
worked for the government as a chemical engineer and his wife was a
dentist. They had three children, one who just returned from computer
science studies in Kiev in time for his parents' 25th anniversary. Soon after
we arrived, a friend of Paul's joined us and stayed for the full three hours.
He was an education professor at the University of Havana and a member
of the party. We engaged in animated discussion about growing gender
equality, lifetime universal health care, pride in Cuba's internationalism,
free schooling and guaranteed employment, the CDRs, personal
reminiscences contrasting the old and the revolutionary regimes and the
routes to party membership. My friend and I asked everything that was on
our minds. At the end of the interview I promised to send Paul a copy of
the Times (which I did). His friend, who owned a car, gave us a ride back
to the hotel, explaining on the way that "Reagan was a problem not because
he was an American, but because he was a fascist."
And so our trip ended with these two rather intimate encounters. Yet
I wondered about the presence of a party official on each occasion. Were
the members of the CDR, and Paul's family, being monitored in some
respects, so that the wrong messages were not conveyed to outsiders and
potential critics or friends? On the one hand, the opportunity to question
party members was welcome and helped to clarify some otherwise
confusing matters; on the other hand, their presence was not requested by
us and might have revealed the intrusive workings of democratic
centralism—a top-down exercise of political authority often inhibiting free
expression. Conceivably, both scenarios were in effect. I was reminded of
Erving Goffman's dramaturgical perspective (1959) where people are seen
as brought together as teams in the collective staging affronts, role-playing
for the objective of impression-management. Were not the party members
TRACKING CRIME 117
examples of persons in position to give imprint to particular versions of
reality, preventing breaches of a performance that might call into question
the definition of the situation otherwise created by the team? Beneath
the exhibitions of togetherness and unanimity, were not both occasions a
delicately coordinated exercise in social control—or was my jaded Western
cynicism proving far too obtrusive? It was something to ponder.
16
Looking back on those instances, it seemed that the ambiguity riddling
both situations accented a perhaps inescapable tension between socialism
and democracy in the aftermath of revolutionary politics. As time passes,
as the revolution stabilizes and charisma is routinized, it becomes increasingly
difficult to equate political dissidence with counter-revolutionary terrorism
and to defend democratic centralism against a desired devolution of
revolutionary politics to democratic organizations and sensibilities. But,
whether power travels up or down the main transmission belt, it remains
concentrated in the hands of higher echelon cadres, and mass organizations
such as the CDRs continue as an instrument of the party, unable to establish
their own policies and political authority.
17
 Party control over public
participation can, of course, be rationalized by threats of U.S. invasion, but
transmission belt politics (where one end of the belt is always intact)
inevitably leads to political corruption and a litany of public order crimes in
the aftermath of revolutionary zeal. Of course participatory democracy is
no more easily achieved in capitalist democracies, but the striving for it is
supposedly integral to socialist society, so the failure to achieve it is more
disparaging and can lead to a blurring of the difference between the state
and its declared enemies.
My all too short stay in Cuba was, for the most part, inspirational, but it
also led me to realize that assessments of what constituted community
control and which actions qualified as criminal depended importantly on
one's attitude toward the state's political project, especially when the
certitude of local denizens—for example, the Cederistas—might'be
motivated by fearful attempts to avoid their own marginalization.
The Shining Path
By 1987, with our sons in the 20s and out of the house, my wife and I
felt the onset of empty nest syndrome and decided to have another child,
this time by adoption and preferably a girl. Eventually, we wound up going
to Peru where legal adoptions could be completed in a six-week period. In
May of that year, our Peruvian lawyer advised us that a child was available,
118 CriminalJustice System
so we flew to Lima, staying for the first week at a pleasant hotel in Mia
Flores, a suburb of the capital, where we experienced the first of four
earthquakes during what turned out to be a two-and-one-half-month stint
in Peru. Unfortunately, our lawyer had "lost" the child to another family in
a legal ploy, so we were forced to start the search from scratch, a task that
proved more daunting than any number of earthquakes the country's
geology could throw at us.
We knew little about Peru, except that we had a liking for its crafts,
and v^e had heard disturbing stories about terrorism, a dubious term in my
sociological lexicon—especially following my experience in Cuba. I was
soon to realize that our private quest for a child would take us on an
unexpected tour of Third World and revolutionary politics, and that we
were in the middle of a troubled but fascinating situation that would prove
more instructive than any of my prior training as a sociologist.
Peru has a long history of big landowners and other elites who grew
rich by selling off the country's resources to foreign interests (British, Russian,
Japanese and American multi-national corporations). Its own elites resisted
populist reforms and nationalization experiments, leading to scattered
peasant revolts and a failure to reconcile old and more progressive
bourgeoisie. Government debts and deficits deprived Peru of much room
for maneuver, and when the world entered a profound economic depression
in the late 1970s Peru became the prisoner of its international creditors
(Reid, 1985). A country of approximately 20 million inhabitants, one-third
live in or around the capital of Lima, with about two million dwelling in
shantytown squalor. In 1987 it was still the land of machismo and mannna.
Half of its people are Amerindians, one-third Meztiso (Spanish, Indian and
, white), 12 percent white and 5 percent African and mulatto. The Quechua
Indians, numbering more than eight million, represent the largest indigenous
ethnic group. Government policy officially prohibits racism, but European
background serves as a ruling-class credential, and Indians overwhelmingly
comprise the peasant class. By the mid-1980s, Peru's major trading partner
was the United States, and one-half of its direct foreign investment came
from that source; yet Peru remained one of the most underdeveloped
countries in South America. By 1985 unemployment and underemployment
had skyrocketed to about 65 percent, and the real minimum wage was
barely a dollar a day—less than one-half the 1973 wage.
Despite the depressing economic indicators, a newly elected president
in 1985—Alan Garcia, an intellectual populist—tried to steer Peru in the
TRACKING CRIME 119
direction of a broad-based socialist democracy through an odd mixture of
supply-side and demand-side economics aimed at both growth and
redistribution, resulting in a temporary economic boom during the first two
years of his administration. But Garcia's refusal to heed structural reform
demands imposed by the International Monetary Fund led to a renewed
crisis of inflationary upsurge and an increased cost of imports that seriously
depleted foreign reserves, producing an enormous trade deficit. The signs
of potential economic collapse were showing by the summer of 1985,
with talk of Peru being driven into a pre-revolutionary state by the
government's mistakes.
In the midst of this cataclysm, my wife and I were being driven around
Lima and its outskirts in an increasingly frantic search for an adoptable
child. The details of this search are exceedingly poignant but not necessary
to report here; suffice it to say we were put in direct touch with the misery
and suffering of the masses of the Peruvian people and the seemingly
incorrigible corruption of public officials. Personal contacts made in Vancouver
gained us introductions to informed and helpful people at different levels
of Peruvian society, so it did not take long to develop a sense of the
country's problems (and their intractability). As one businessman told me
in a moment of resigned candor, "The country has to be torn down to its
foundations for anything to ever change."
In fact, there were revolutionary groups operating in Peru attempting
to do just that. The most notorious and effective of these groups "was
"Sendero Luminoso" or "Shining Path."
18
 It was a movement rooted in a
combination of Andean mysticism, Maoism and the world view of its leader
and organizer, Abimael Guzman, a former philosophy professor, heralded
by his followers as the "fourth sword of Marxism" (after Marx, Lenin and
Mao). Sendero's goal was to create a peasant-worker republic—a new
democracy based on a primitive agrarian communism of barter exchange
reminiscent of the pre-Columbian 14th-century Inca model. The movement
regarded armed struggle as the only realistic means of achieving its goal,
and denounced the route of parliamentary reform as "bureaucratic cretinism."
Through a prolonged popular war (the armed struggle began in 1980 after
a ten-year organizing period in the Sierras) starting with the mobilization of
base support in the countryside, selective bombings and attacks, and then
the seizure of liberated zones, Sendero anticipated a final stage of
encirclement of the cities leading to the collapse of urban society and the
destruction of the Lima regime. It sounded disturbingly similar to Pol Pot's
Cambodia and surely too romantic and violent to catch on with the general
120 CriminalJustice System
population, no less any of the established political parties. Yet despite the
serious damage inflicted by Sendero, the movement enjoyed tacit popular
support, estimates ranging as high as 30 to 40 percent of the population.
Even Garcia at first attempted to negotiate with Sendero, eventually
succumbing to his generals' demands to wipe out the terrorists.
By the summer of 1984, Sendero had launched a full-scale guerrilla
war. In the middle of our stay I remember clutching onto my bedsheet as
a 6.0 earthquake shook our apartment building early one morning. The
official curfew meant that anyone found in the streets not carrying a white
flag (or equivalent) would be shot on sight by government troops. I imagined
us plunging through the apartment window, white bedsheet in hand. Such
reveries offered little relief, as banks were bombed in our immediate vicinity
on a fairly regular basis, along with other symbols of corporate enterprise
(e.g., Kentucky Fried Chicken franchises). Innocent and confused people,
especially rural peasants, were caught between the government's vicious
counter-insurgent actions and Sendero's doctrinaire brutality. It was a
despairing situation with no end in sight. Thousands of Peruvians who
could afford to leave the country were doing so, taking their savings with
them. Guard dogs patrolled rooftops everywhere, windows were barred
and exterior walls lined with protruding shards of glass and steel in
anticipation of theft and possibly anarchy. On the verge of national collapse,
some Peruvians hoped for the emergence of a Pinochet strong man, others
pined for the emergence of a unified political Left and some even awaited
a Sendero victory as the only alternative to perpetual chaos.
After a 22-month struggle to adopt a child, encountering the considerable
obstacles posed by corrupt justice officials (who our proud feminist lawyer
refused to bribe), we finally obtained a two-month-old girl (by civil consent)
and left the country, not without a harrowing airport departure where we
were required to twice pay the airport exit tax and were still nearly refused
our seats on the plane. Despite our personal ordeal, we came to love Peru
and the Peruvian people, who were caught in a terrible spiral of misfortune
which they could but stoically endure. As the blessed Canadian Airlines jet
took us back to our own world, we cradled our new child, trying to justify
our removing her from her native country and wondering who, if anyone,
was to blame for the utter degradation of Peru.
Soon after I was back in Canada, I began to read about Peru's history
and its current predicament, and I met with local Peruvians who gave me
their takes on the events of recent years. I wanted, especially, to clarify the
dynamic of terrorism so that I would not by misled by interpretations that
TRACKING CRIME 121
obscured the political complexities inherent in this value-laden term.
19
 As I
learned more about the geopolitics of the Andes region, it became apparent
that the phenomenon of terrorism in Peru could only be understood by
tracing the country's history through the various stages of imperialism in
which its development had been stunted, from the Spanish conquistadors
to the current wave of U.S. hegemony. Its history explained why a modern
industrial infrastructure and technical workforce never developed in Peru,
as foreign resource extraction neglected the expansion of domestic markets.
Continuous exploitation led to Peru's massive foreign debt, and with no
wherewithal to repay, submission to IMF austerity policies brought further
hardships and revolutionary violence.
20
 In these turbulent periods,
authoritarian regimes were invoked to preserve Peru's colonized (semi-
capitalist) status and the emergence of "national security states" were
defended by imperialist powers as the only commonsensical means to
quash escalating violence. Thus, the terrorism of Sendero and other
revolutionary groups was, in effect, triggered by the policies of multinational
capital in a deadly dialectic that miserates Third World majorities, deceptively
fixates on the terror of the Left and ignores or justifies official state terror.
21
No small wonder, given the international dimensions of this scenario, that
Third World terrorism is connected to national security issues in First World
countries so that in Peru, for example, the U.S. domestic war on drugs is
used to justify funding for eradication of Andean coca crops, while
camouflaging support for a low-intensity, anti-guerrilla war bent on
maintaining the political status quo. Having seen the signs of this in my
accidental field studies in Peru, I could agree with Edward Herman's bold
assertion (1982) that there is
... a huge tacit conspiracy between the U.S. government, its
agencies and its multinational corporations, on the one hand,
and local and business and military cliques in the Third
World, on the other, to assume complete control of these
countries and to 'develop' them on a joint venture basis
(p.3).-.- The National Security States (of Latin America) are in
place precisely because they serve U.S. interests in a joint
venture with local torturers at the expense of their majorities
(p-14).
My stay in Peru was long enough to confirm a staple sociological
perspective—that the labeling of many acts as crimes, particularly the crime
122 Criminal Justice System
of terrorism, depended on who has the power to apply and enforce those
labels; but more instructively, that the culprits were not necessarily state
functionaries, corrupt government officials or even the local bourgeoisie,
but powerful outside agents, namely First World imperialist powers and
their international brokers, projecting their economic aspirations on a world
stage, a stage on which Peru and countries like it were helpless pawns. For
the first time in my embarrassingly benighted career as a sociologist, I
recognized that the connections between crime, community and state had
to be conceived in global terms.
Community Crime Prevention
Finally, my sojourns bring me back to my academic station at the
University of British Columbia. It is 1995 and I have vaulted to the elevated
heights of full professor, struggling to ward off the complacency and cynicism
born of modest achievement and advanced age. My hopes for social
movement coalitions as a vehicle for change have begun to pale beside
the juggernaut of economic globalization. A doctoral student from the
university's Department of Community and Regional Planning requests
that I join his advisory committee. His topic encompasses both crime and
social movements, and as I specialize in both areas, I can hardly refuse.
The student is interested in examining the ability of high crime and
socially disadvantaged neighborhoods to mobilize effectively to prevent
crime. He wants to identify barriers to the successful implementation of
community crime prevention programs and he proposes that conventional
crime prevention theories are seriously flawed and must be replaced by
radical planning theory, which offers a better grounding for community-
based crime prevention. The student's principal research site is the Mount
Pleasant neighborhood of East Vancouver, presumably an ideal setting for
issues examined in his study due to the area's socially disadvantaged nature
and the presence of crime prevention programs (e.g., Block Watch). The
student, himself, resided in the area before and during the course of his
study and had been employed for a short time as a researcher at one of the
community-police storefronts. His proposal was approved, drafts of chapters
circulated for comment and in the fall of 1997, he was ready to defend his
thesis.
The core of his reported findings showed that obstacles to the
mobilization of Mount Pleasant residents around crime prevention efforts
occurred at the community level (ethnic and income heterogeneity),
organizational level (inadequate resources and leadership) and structural
TRACKING CRIME 123
level (effects of dominant institutions and ideologies), and that these levels
were critically interconnected. Above all, conventional community crime
prevention theory failed to mobilize neighborhood residents because it did
not seriously address the fact that the causes of crime were rooted in the
structural foundations of advanced capitalist societies.
2 2
 This crucial omission
pointed to the need for a new type of theory that understood community
crime prevention as a type of new social movement and exposed the
political-economic impediments to community mobilization, seeing
capitalism itself as the main obstacle to such mobilization. To quote from
the student's concluding chapter (Schneider, 1997: 351):
Radical planning provides a critique of capitalism, its
perpetuation of poverty, and its deleterious effects on many
local neighborhoods. For Williams (1981: 90), the sustained
and accelerating centralization within the metropolis distorts
and denies any sense—even memory—of a humane set of
relationships: "Bluntly, capitalism destroys neighborhoods
and communities."
Radical planning theory presumably overcomes these structural barriers by
decentralizing power and by promoting dialogical communication between
formal and informal agencies of social control (e.g., police and neighborhood
watch groups), thus leading to higher levels of community integration,
thereby containing crime.
In negative support of this alternative view, the student presented a
thorough critique of everything that was wrong or suspect about
conventional crime prevention theory, focusing on its narrow technical
orientation and its over-reliance on state intervention. Most of the questions
put to him after he finished the verbal summary of his work addressed the
gap between his empirical research and his speculative claims for radical
planning theory. The anti-capitalist criteria for social change stipulated by
radical planning theory, along with the rather quixotic emphasis on
Habermasian communicative rationality, raised numerous doubts and
questions in the minds of his examiners. When and where in history did
such rational discourse between contending interests truly exist? Was it
reasonable to abandon the state as a potentially effective change agent,
reducing the plane of struggle to strictly communal ties and unities? Should
we really expect the police to grant neighborhood councils greater control
over community policing, or were they more likely to cling to their
124 CriminalJustice System
professional and technocratic identities (i.e., law-enforcement over the less
prestigious social work)? Did it make any sense at all to involve the police
in community crime prevention strategies if they were primarily state rather
than community agents? These questions, addressing the disparities between
the ideological implications of radical planning theory and the actual
constraints of living amidst the daily social inequalities of capitalist society,
made the student's embrace of radical planning theory seem more like an
escape from the problems he was examining rather man a transcending of
them. On this count, despite a fairly tenacious defense of his theoretical
position, the student was admonished by the committee until he finally
conceded that he had been idealistic in moving so decidedly in a radical
direction, and that he would restrain this tendency in future work.
Although I had not intended to dissuade the student from adopting a
radical position, by the end of the interrogation I was unsure whether we
had pressed him into forsaking his iconoclastic views, or whether we had
only reminded him of the need to relate his preferred theoretical approach
more closely to the body of his empirical research. As I thought about what
had transpired at the student's defense, I found it disturbing to realize that
near the end of my own professional odyssey and at the beginning of his,
I had acted as a resigned apologist for the system and was urging the
student, however obliquely, to control his yearning for social justice in
favor of serious academic research. In a curiously convoluted way, I had
become a social control agent in my own right, discouraging the consideration
of more challenging standards of social justice. In that moment when I
observed the student's look of accommodative chagrin, I knew that I was
not immune to the ideological trappings of academe; on the contrary, I
was a bearer of the pragmatic mentality that brought the student's
utopianism to heel.
Conclusions
All of the above examples, however wide-ranging, attest to the intricate
relations between community and state in relation to social control. The
salient question implicit in each account is whether community control can
co-exist with state bureaucracies or whether "community" can instead serve
as an oppositional base from which to challenge state control.
23
Briefly reconsidering the linkages between crime, community and state
in the six case studies, Mobilization for Youth represented one instance in
many when strong political and economic interests, opposed to any
TRACKING CRIME 125
fundamental restructuring of the American opportunity system, ensured
that the agency was discredited and starved for funds once it became clear
that its community organization mandate -was not just aimed at lowering
delinquency rates but also at mobilizing poor people into an aggressive
social movement. Similarly, the efforts of the Spring Street Program to
divert offenders from the stigmatizing effects of the criminal justice system
were repeatedly undercut by surrounding political struggles, suggesting
that the possibilities for engaging in an authentic version of community
corrections depended upon the agendas of multi-level government
authorities -who viewed the program as little more than a "political football"
in their rivalrous quest for hegemony. The fate of the Solidarity Coalition
demonstrated the extent to which grassroots attempts to preserve
community and stave off descent into potential anarchy were undermined
by the state's cynical manipulation of weaknesses in the broad-based alliance
in order to reconstitute class dominance during a critical period of economic
adjustment. On a less familiar ideological note, the CDRs in Cuba, ostensibly
democratic organizations monitoring petty and political crimes in voluntary
compliance with party dictates, reveal the extraordinary powers of
democratic centralism to narrow the range of legitimate behaviors and
orchestrate consensus around new categories of crime (e.g., counter-
insurgency). If Cuban geopolitics justified harsh treatment of political
dissenters, the situation is particularly tense in the Andean region where
the crime of terrorism in Peru is traceable to a bloody dialectic between
Third World guerrilllas and First World imperialists, the former reliant on
peasant and worker mobilizations and the latter on collusion with global
monetary institutions (e.g., IMF) and satellite national security states. Finally,
the local case of the student's radical planning theory thesis and the university
defense shows how ideological relations are mirrored in structures of
authority so that academic mentors habitually suppress or discourage
acceptance of alternative views, and science and research serve as
codewords for conventionalism and conformity in order to protect established
values and institutions from unlicensed critique.
From the foregoing, we may conclude that it is precisely the
interpenetration of community and state relations that largely accounts for
both the chronic ineptitude of various groups to assert community control
and the long string of failures in community corrections (including the
questionable successes intended to buttress state control). The mercurial
nature of these efforts is usually due to reversals in state political strategies,
shifts in funding priorities and the vagaries of popular pandering.
126 CriminalJustice System
In response to this determinative condition, conventional criminology
has clung stubbornly to an emphasis on either rehabilitation or retribution;
consequently, four relatively new approaches in the justice field are now
vying for supremacy. Restorative justice argues for restitutive sanctions
that encourage individual change and, while claiming a reassertion of
community values, ignores institutional constraints. Ultimately, this approach
is vulnerable to incorporation within neo-liberal regimes that offer no
challenge to social inequities but, instead, view them as expressions of a
natural order deserving full compliance.
A second approach, presented under the rubrics of actuarial justice
(Feeley and Simon, 1994), risk-management (O'Malley, 1992) or the more
generic govemmentality (Foucault, 1991), resonates with neo-liberal policies
and is gaining ascendancy. Moving away from welfare liberal strategies,
this approach views society as encompassing a number of self-regulating
modes of governance, so that the role of state administrators is primarily to
govern at a distance (Rose and Miller, 1992), which means to provide only
those resources that allow individuals to compete in a market economy
according to their prudential self-interest. Those who fail this task and
constitute a threat to public safety are regulated through policies (state or
privatized) that manage the dangers they represent as high risk populations,
without wasting resources on either punishment or rehabilitation.
24
 The
assumption that these technologies of risk management make for a freer,
more productive and enterprising society shows little concern for the plight
of marginalized populations and the abandoned communities that lurk
within them. So while the actuarial approach may prove more efficient in
managing risk, there is little discussion of the justice of its precepts and a
paradoxical undermining of community.
Where risk society theory appears indifferent to the causes of crime,
communitarianism regards crime as the by-product of a failure of community.
Currently assuming the dimensions of a major social movement (Amitai
Etzioni, The Spirit of Community, 1993), communitarianism combats the
alleged disintegration of civic life by supporting the traditional family,
moralizing public education and arguing for curtailments of individual rights
where extraordinary measures are believed necessary to deter crime. The
question is whether this rather familiar constellation of church and political
activism can be revived as the dominant paradigm for collective order, or
whether its modus operand! is now too incoherent to guide choice-making
in contemporary society (Simon, 1987). Certainly, communitarianism can
be faulted for sometimes projecting inauthentic consensus in the face of
TRACKING CRIME 127
conflictual issues that demand extensive mediation (Crawford, 1995). As
with actuarial justice, cornmunitarianism can also be silent on the question
of aetiology and, given its narrow communal focus, it tends to deny a
political economy of crime.
A fourth and still germinal approach to reconceiving justice is developing
internationally precisely in order to overcome the widening obstacles to
social change. This is the phenomenon of transnational social movements
(women's, environmental, indigenous, etc.) striving to achieve solidarity
on a global scale in order to mount collective actions powerful enough to
challenge the neo-liberal version of order that now dominates the global
economy (Hegedus, 1989; Thiele, 1993). These international movements
have emerged as an incipient counterforce to economic globalization (under
the helm of transnational corporations) and may represent the only remaining
hope for defending communities and justice precepts that are not merely
the pre-figured calculations of governmentality. Of course, the construction
of a broad-based popular force capable of redefining relationships integrated
on a global level "requires the formulation of an overarching ideology to
link potential constituent groups" (Fainstein, 1987: 335). Whether such
counter-hegemonic principles can be identified, and whether such a
movement can be pro grammatically effective, are questions that cannot
be answered in advance of attempts to win specific battles (e.g., the
universal entrenchment of human rights), but knowing and resisting the
full panoply of institutional forces that block change gives these perhaps
fragmented unities a tactical advantage over the frustrated proponents of
restorative and communitarian justice who immediately fall captive to the
dominant logic of neo-liberalism.
If the last model—transnational social movements—is the preferred
route to social change (and justice), we must stop to consider whether the
search for a universalizable community politics is a mere chimera. Can the
fragments really be brought together in a more unified approach? Can they
commit to more developed political programs? Such questions underscore
the importance of identifying external constraints and of discovering how
"community" can be made to work in ways which do not simply reinforce
the organizational practices used by states to maintain power. If the role of
capitalist ideologies of social control is to foster commitment to local
community norms mainly in order to prevent a unified opposition to
capitalist rule, then community corrections may be a fatal misnomer and
provide only illusory respite from the strife of class society. This is but one
instance of the power and pervasiveness of dominant interests to use the
128 CriminalJustice System
institutions of community justice to weaken potential challenges to the
overall system. It is doubtful, therefore, that any correctional measures can
seriously address the problem of crime so long as they are presented in
terms that ignore the reality of unequal power in capitalist (or any other)
society and fail to recognize that crime is much less a behavior than an
ideological space.
25
In sum, communities seeking a genuine engagement in crime control
are ill-advised to begin their quest under the mantle of criminal justice
operating within a radically unjust society (and world). They must move
beyond reactive control policies and embrace strategies that emphasize
community development, thus enabling them to address the core issues of
social justice that have been newly problematized by the structural features
of a global economy. Doing so would signify the advent of what is meant
by community control.
Finally, what is the appropriate role of the academic analyst in this
enterprise? Certainly not that of harassing young idealists into disavowing
radical views, as was done almost shamelessly at the graduate student's
thesis defense. Rather, the analyst's responsibility, in line with the argument
of this paper, is to "make visible the structural constraints within which
groups have to operate" (Ng, 1988: 99) so that these groups can engage
more effectively in new areas of struggle and change. As global citizens
ourselves, we participate in a fundamentally moral inquiry that compels us
to use our analytic skills to help realize the most emancipatory forms of
social justice.
Discussion Questions
1. In modem urban-industrial societies, are there communities that can
serve as a base for something called community corrections?
2. Identify some forms of intermediate punishments and/or community
corrections and discuss why they are appropriate or not with respect
to: a) crime control, b) social control, c) community control.
3. Try to trace the connections between a specific crime control policy in
your locality to macro-features of the surrounding political economy in
which that policy is relationally embedded.
4. Probe the connections between terrorism, state, community, social control
and social justice, with reference to a contemporary example of alleged
terrorist behavior.
TRACKING CRIME 129
5. Consider the comparative merits of resorative, communitarian and
actuarial justice perspectives regarding social control and social justice,
applying that comparison to various forms of criminality in your locale.
6. Discuss whether there is, in your view, a natural and irremediable antipathy
between social justice and capitalism. If so, what are the practical
implications of your judgment?
Endnotes
1
 In the U.S. today, over one million people are in prison, and at least three
times that number are on probation or parole. Cf., Kaminer, 1994a.
2
 For a penetrating analysis of this impasse, see Godway and Finn, 1994.
3
 Such insidious features of community corrections were noted by Canadian
criminologists in the mid-1970s, not long after new non-custodial dispositions
and voluntaristic forms of correctionalism were introduced (Dunn and
Langley, 1976; Kaminsky, 1976). More generally, the blurring of boundaries
between institution and community, such that the latter becomes the new
and appropriate forum for control and punishment, was Foucault's concern
in his "warning about the emergence of the "punitive city" (1977).
4
 For detailed examinations of the MFY and similar community programs, see
Helfgot, 1981 and Morris and Rein, 1967.
5
 The tenor of institutional resistance to MFY's radicalism is poignantly
conveyed in Kempton, 1964.
6
 When the New Health Occupations program was designed, MFY had well-
established youth employment programs, but none available to persons
over 22 years of age.
7
 Details of the program and some of the critical problems it faced are
described in Vogel, 1971.
8
 The presenting troubles of youth in the project sample were mainly
shoplifting, theft, excessive truancy, unmanageability and sexual problems.
9
 For the final evaluative report of the project, see Ratner, 1974.
10
 For a detailed account of the emergence and demise of the community
resource boards and the VRB, see Clague et al., 1984, especially Chapter 4,
"The Vancouver Resources Board Experience," pp. 68-116.
11
 Excerpt of letter received from the Vancouver social planner, dated
September 7, 1973-
12
 As one of the crowd, on that occasion, I remember watching contingents of
various labor union and public sector agencies march around the stadium
track, and the sense of disappointment shared by onlookers when the
crisply uniformed troop of marchers thought to be the police turned out to
be only the firemen—perhaps the first sign of looming disenchantment.
13
 For a complete summary and Gramscian interpretation of the events of
1983 and the subsequent 1987 mobilization, see Carroll and Ratner, 1989-
130 Criminal Justice System
14
 Although the government claims to have released virtually all "political
prisoners," state suppression of political dissidence has not ceased (see
NACLA, 1990).
15
 For informative and sometimes critical discussions of the CDRs, see Aguila,
1984; Azicri, 1988; DomingueZ, 1978; Fagen, 1969; Salas, 1979, and Thomas
et al, 1984. Also, see the Spanish edition of the Cuban newspaper, Gramna,
October 6, 1985, pp. 2-3, which prints the full text of a speech given by
Fidel Castro at the main ceremony marking the 25th anniversary of the
establishment of the CDRs—speech delivered at the Karl Marx Theatre,
September 28, 1985, year of the 3rd Congress.
16
 See Aguirre (1984) for a thoughtful if overly disingenuous account of how
collective behavior (e.g., the CDR mass base organizations) is often
subservient to state policy.
17
 As a clear indication of where decision-making power resides, in a 1985
interview (Playboy, August), Castro, asked whether he had decided on a
successor, replied that after his death his brother Raul "would immediately
assume leadership."
18
 Sendero's full name is Partido Communista del Peru-Por El Sendero
Luminoso de Jose Carlos Mariategui. The term Sendero Luminoso refers to a
statement by Mariategui, Peru's first prominent Marxist, that "Marxism-
Leninism will open the shining path to revolution."
19
 Payne (1988: 142) refers to the very idea of terrorism as "a cliche in search
of a meaning." For other interpretations of the term, see Bakhash (1987)
and Schmid and Jongman (1988).
20
 Cf. ScheetZ (1986) and Stallings (1985) for analyses of the relationships
between international lending and state autonomy in Peru.
21
 For detailed analyses of the dialectic between terrorism from above and
below, see Crelinsten (1987), and especially Ratner (1991)—the latter analysis
focuses on contemporary Peru.
22
 For detailed discussion of these and other related points, see the student's
Ph.D. manuscript (Schneider, 1997).
23
 The concept and importance of community is a central component of the
left realist agenda for social reform, involving the formal activities of the
police, courts and prisons, not only crime prevention (Young, 1991). A
persistent faith in community underlies assessments of informalism
experiments (De Sousa Santos, 1980), popular justice alternatives (Longmire,
1981) and community justice claims for transformative social change (Henry,
1985) and increased democratic involvement (Cochrane, 1986).
24
 Castel (1991: 295-296) notes that, "The extreme image here would be one of
a system of prevention perfect enough to dispense with both repression
and assistance."
25
 ladicola (1986: 160) writes that the community control and social change
strategy "... requires the most dramatic change in power relations in the
social order, the eventual elimination of all systems of stratification as they
exist between members of the community and within the society as a whole."
TRACKING CRIME 131
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Pornography as a
Civil Rights Issue
Debra S. Kelley
Longwood College
Introduction
Issues of social justice for women are inevitably tied to issues of equality.
An issue of equality maybe one related to access to any number of valued
resources such as jobs, education, quality health care and human dignity.
Social justice is at once concerned with definining what constitutes a
dimension of equality as well as with exploring policies that further equality.
Feminism as a vast and multifaceted political discourse strives to define
social justice for women and to identify the paths by which social justice is
attained. Furthermore, feminism is active in a variety of contexts and
gatherings. In the 4th World Conference on Women in Beijing, the explicit
goals of the conference were peace, equality and development. The Human
Rights Watch Women's Rights Project (1995: xiv) establishes the association
of equality for women and sexuality in the following excerpts:
women's lack of social and economic security has
compounded their vulnerability to violence and sex
discrimination.... The control of women's sexuality and
physical integrity must be regarded as a matter of personal
autonomy and individual rights ... .Throughout the "world,
women are still relegated to second-class status that makes
them more vulnerable to abuse and less able to protect
themselves from discrimination.
Debra S, Kelley is an Assistant Professor in the Department of Sociology and Anthropology
at Longwood College. She has a Ph.D. in sociology from the University of Illinois,
Urbana Champaign. Her research interests are in the areas of criminology and gender
studies. Currently, she is involved in two research projects, a continuing study of
police community relations in rural settings and the effectiveness of civil protective
orders in domestic violence situations.
CHAPTER
7
136 CriminalJustice System
It may well be that for women greater access to the means of equal
citizenship are the true boundaries of social justice. From a feminist
perspective, social control may be argued to be those strategies and
organizing mechanisms and institutions which preclude attainment of
substantive equality. Feminists have long challenged how institutions such
as the family, the law and the various agents and agencies of the criminal
justice system operate to sustain and reinforce existing inequalities.
Central to the feminist agenda is to make the inequality of women
visible. Within various disciplines, feminists have been active in exposing
the systematic and pervasive nature of violence against women. This
violence occurs within the contexts of marriage, on the streets and the job,
from the hands of strangers and loved ones. Misunderstandings about the
nature and effects of this violence have taken the form of calling women's
high level of fear of crime a paradox given their relatively low levels of
violent victimization. But this is no paradox, it is an example of invisibility,
the silence of women. MacKinnon (1987: 169-170) eloquently expresses
this silence:
Until women listened to women, this world of sexual abuse
was not spoken of. It was the unspeakable. What I am saying
is, if you are the tree falling in the epistemological forest,
your demise doesn't make a sound if no one is listening.
Women did not 'report' these events, and overwhelmingly
do not today, because no one is listening, because no one
believes us. This silence does not mean nothing happened,
and it does not mean consent. It is the silence of women of
which Adrienne Rich has written, 'Do not confuse it with
any kind of absence.'
These silences are what Tillie Olsen (1965: 6) refers to as "unnatural;
the unnatural thwarting of what struggles to come into being, but cannot."
Such silences do not just preclude women from being more represented
among writers, artists and scholars, but fundamentally as citizens. In a
democratic society, citizens have a fundamental expectation at some level
that social justice exists independently of one's membership in racial, ethnic,
class or gender groups. To understand social justice as the fundamental
expression of the rights of citizenship includes individual liberties as well as
an understanding that our ability to achieve respect and human dignity
should not be circumscribed by irrelevant factors such as gender, race and
ethnicity. The history of civil rights in the United States is a legacy of
PORNOGRAPHY AS A CIVIL RIGHTS ISSUE 137
attempts to fulfil this ideal. But social justice demands more than the tearing
down of institutions of discrimination or the passing of legislation. Social
justice also demands new ways of thinking about what it is that is necessary
to allow human dignity. For example, the right to an attorney in felony
proceedings was provided to individuals as a result of the Supreme Court's
decision in Gideon v. Wainwright. But does the right to an attorney in
felony proceedings truly extend due process? Or is the quality of the defense
provided by the attorney an issue as well in terms of satisfying due process?
This very issue is raised by those scholars and practitioners who recognize
the limitation of simply the right to counsel devoid of qualification for
adequacy of counsel. Thus, social justice becomes not only a right extended
but a right actualized. To guarantee an attorney but comment no further on
the quality of the defense provided is neither equality before the law nor
due process that any individual would willingly perceive as an extension of
their right. Similarly women as a class have had certain rights once denied
to them extended to them, but to what extent are these rights actualized?
Does inequality in whatever manifestation preclude access to meaningless
expression of individual rights?
In the ideal balance of individual rights and social good, the former
must give to the latter because it is only by so doing that we are all
guaranteed the maximum amount of civil liberties attainable. Thus, social
justice always incorporates elements of social control. Social control restricts
individual liberty ideally in a manner consistent with the goal of producing
beneficial consequences for society. Social justice demands that society
provide services to those in need and my taxes may be used to underwrite
those services. My individual right of doing what I so choose with my
money is curtailed for me by a wider interest; a societal interest in the
public good as defined by certain social service mandates of the state.
Similarly the criminal law provides one basis by which the individual rights
of all are protected by limiting the individual expression of certain forms of
behavior. Quite often this reflects the balancing of rights such that my right
to life is balanced against another's right not to take my life unlawfully.
Without the sanction against the unlawful taking of life, my right to life
would be fairly meaningless. Thus, we accept that the aiminal justice systems
of our communities are major institutionalized sites of public safety and
crime control that have a significant role in the task of social control. However,
the criminal justice systems cannot be our salvation from all our social ills.
There are both serious limitations to what issues the criminal justice system
can effectively address and serious repercussions from society's reliance
138 CriminalJustice System
on the criminal justice system to address harms arising from social inequality.
Violence against women constitutes harm both at the individual and societal
level. To the degree that such violence is connected to the social inequality
of women in wider society, the criminal justice system is limited in its
ability to both prevent and punish such violence. So it is with the limits of
the criminal sanction in regards to pornography that this paper is concerned.
Pornography will be discussed as an issue whose effects and dimensions
are made even more problematic for women when addressed with punitive
criminal sanctions. But what is pornography? Pornography is one of those
terms used in everyday life as if it conveys the same definition to all -who
use it. In everyday usage, pornography and obscenity may be used by
different persons to convey the same idea. Legal theorists, psychologists,
sociologists, criminologists and other scholars have defined pornography in
different ways. This paper does not break new ground in definitions of
pornography. Rather definitions of pornography are approached from two
positions. First, pornography as a legal concept related to obscenity is
addressed. Second, the definition of actionable pornography under civil
rights ordinances is discussed. Prior to these discussions, pornography as
used in this paper refers to the issue itself or in the words of Walter Kendrick
(1987: 31), "pornography names an argument, not a thing." While latter
discussions will attempt to establish that pornography as a term means
more than this, at present this caveat is in place for the purpose of clarity.
The Role of Pornography and Feminist Movement
For feminists, pornography is part of the connection between violence
against women and social inequality. Early feminist attention to pornography
linked it to rape. In an essay first published in 1974, Robin Morgan asserted
that "pornography is the theory, and rape the practice" (Morgan, 1992:
88). Susan Brownmiller (1975) discussed both pornography and prostitution
as institutions that encourage and support social patterns and responses to
rape. In the writings of feminist activist Andrea Dworkin (Dworkin, 1993a:
457), pornography was argued to be the "material means of creating the
inequality" of women and the enabler as well as the instigator of "woman
hating." Beginning in the 1970s, feminist groups staged protests against
public examples of pornography. While the feminist movement has
continued to identify pornography as central to the systemic nature of
violence against women, the strategies advocated to address pornography
have varied. No consensus has emerged from within feminist movement
PORNOGRAPHY AS A CIVIL RIGHTS ISSUE 139
concerning the issue of how pornography is to be addressed. While it is not
unusual for a large political movement such as feminism to be characterized
by dissension, this dissension has seriously effected the solid positioning of
pornography as a feminist concern. One of the major sites of the dissension
has revolved around the advocacy of pornography as a violation of women's
civil rights. Specifically, the lines which divide feminist movement are drawn
around the antipornography legislation that emerged initially in 1983- The
key component to the debate is whether legally pursuing pornography as
a civil rights issues violates constitutional rights, particularly freedom of
expression in fundamental ways that will ultimately hurt the feminist agenda.
With constitutional issues at the forefront, the question of what to do
about pornography has been very much a legalistic debate. In this debate
are also the voices of grassroots feminist activists, feminist jurists, civil
libertarians, radical feminists, social scientists, governmental representatives,
presidential commissions and others who testify from their realm of expertise
concerning the harm of pornography. To discuss then how pornography
inhibits social justice for women is to enter into a debate characterized by
legal jargon, social science jargon and different positioning of issues and
concerns. It is a debate of specialized terms that are neither simple to
understand nor to explain. Thus, part of-what characterizes the debate
over pornography among feminists as well as others is an ability for various
sides to understand the jargon of the other sides. A greater part of the
dissension over pornography involves conflicting agendas. The substance
of the agenda of feminist activists is not necessarily compatible with that of
governmental bodies such as the two presidential commissions that have
been formed to investigate pornography. The agenda of radical feminism
is not the agenda of civil libertarian feminists. While this paper will not
resolve those sites of dissension, I will attempt to address the substance of
these diverse concerns.
It is with pornography as a form of sex discrimination that this paper is
concerned. Pornography is both about the role of image and the practice
of sex discrimination. This paper analyzes pornography as one of many
interconnected practices involved in the subordination of women.
Pornography both reflects and reinforces the social inequality of women
and as such it operates as a mechanism of social control which stifles social
justice for women. The key issue becomes how to place pornography
within a framework of social justice that advances equality for women
without falling prey to either reductionist or deterministic strategies. In
140 CriminalJustice System
order for pornography to be a factor in violence against -women, does it
have to be the only factor? In order for pornography to operate the way it
does, must it do so with a unilateral stroke?
As does social inequality, violence against women is produced and
reinforced by many factors. These factors in turn reinforce one another;
they are interconnected and operate almost invisibly at times. What is
produced through this network of variables are systems of inequality which
twist and turn on axes such as gender, race and economic class. Because
women do not all encounter inequality and violence in the exact same
manner does not mean that women are unaffected by gender as a
fundamental axis on which social inequality turns. Feminism acknowledges
that across boundaries of difference, the experience of gender brings all
women a type of commonality; a political commonality regarding inequality.
A commonality that no matter what else we as women are or are not, we
experience the difference gender makes in our society, a difference based
on power (MacKinnon, 1987). We need not and -we do not experience
that difference as alike beings otherwise.
Into the difference gender makes in terms of power and equality for
all women comes pornography. Pornography is a means by which the
everyday lives of all women become characterized by subordination and
violence. I argue in this paper that pornography and its relationship to
violence against women is best addressed within the context of violating
the civil rights of women as a class. The evidence of the harm of pornography
to women's civil rights supports the civil rights approach as a viable strategy
to advance the agenda of equality and social justice. In contrast, increasing
the criminalization of pornography through obscenity statutes is argued to
be a counterproductive strategy for the social justice of women. To advance
this agenda, I will present a brief overview of the social science research
that has investigated the harmful effects of pornography. I will next briefly
address the obscenity approach to pornography. Finally, I will present the
civil rights approach to pornography and discuss the merits of this for
advancing social equality concerns for women.
Pornography as a Harm
To understand the harm done by and through pornography is to enter
into a debate that has many sides and many diverse ways of phrasing the
question of harm. As MacKinnon (1993a: 15) states, while pornography
has been "legally framed as a vehicle for the expression of ideas, ... what
pornography, does, it does in the real world, not only in the mind." The
PORNOGRAPHY .AS A CIVIL RIGHTS ISSUE 141
harm of pornography is not about the harm of being offended by ideas
expressed in pictures and words. As MacKinnon (1993:15) further notes:
Pornography does not leap off the shelf and assault women.
Women could, in theory, walk safely past whole warehouses
full of it, quietly resting in it jackets. It is what it takes to make
it and what happens through its use that are the problems.
So what is the harm that is done to women in the making of pornography?
What is the harm done through the use of pornography? Evidence of harm
comes from anecdotal sources, laboratory experiments and macro-level
analysis. Evidence that pornography is strongly related to harm comes
from the fact that, in recent history, two presidential commissions have
been charged with investigating this harm. The first commission was
appointed by President Johnson and the most recent was the Attorney
General's Commission on Pornography established in 1985 under President
Reagan. The 1985 commission is generally referred to as the Meese
Commission in reference to Edwin Meese who replaced William French
Smith as attorney general (Goldstein, 1995).
1
 While the presidential
commission under Johnson was given both the time and financial resources
to solicit original research on the question of the harm pornography does,
the Meese Commission operated under both budget and time constraints
that precluded such research initiatives. The Meese Commission instead
relied on an extensive review of existing social science research and the
testimony of witnesses both in public hearings and in 'writing.
The social science research that the Meese Commission relied on was
primarily experimental research done in laboratories. Specifically, research
by Edward Donnerstein and Neil Malamuth was extensively reviewed by
the Meese Commission. Donnerstein and Malamuth are two of the most
prolific researchers into the area of the effects produced by exposure to
pornography (Linz, Donnerstein and Penrod, 1988; Malamuth and
Donnerstein, 1984; Donnerstein, Linz and Penrod, 1987). This research has
been critiqued according to problems with causality, measurement problems
and lack of generalizability due to the artificial setting of the laboratory.
A serious limitation on generalizability for laboratory experiments is
the fact that the research is not conducted in the real world but in the
laboratory. However, it is also this feature that allows experiments to
manipulate the values on a variable under controlled circumstances, a feature
that is the main strength of experiment's ability to establish causality.
142 CriminalJustice System
Furthermore the degree to which research conclusions apply to the world
outside the scope of the research study is part and parcel of a larger
methodological problem that all social science researchers encounter
regardless of their method; do subjects behave the same way when you
are observing them as they do when you are not observing them? The
very act of studying something changes it, and as a critical discipline social
science does not claim to capture reality but instead to represent a part of
the social world, framed by the researcher according to particular
methodological decisions. In essence the findings of social science can
never be critiqued in terms of how well they capture reality but rather in
reference to the strength of the research design. Regardless of the method
used, social science is not a means of either studying or revealing absolute
truth. Social science is a means by which the social world is framed according
to a methodological agenda, and thereby findings are pursued according to
that agenda. To assume that a research agenda is not political is naive. As a
political movement, feminism also asks the question of whose reality is
being referenced and framed. Whatever conclusions are made about the
social world as revealed through implementation of a research design are
always filtered; filtered through the researcher's choice of method, ethical
constraints, selection of research question, identification of crucial concepts
to address that question, the measurements of those concepts, sampling
procedures, the tools used for data analysis are ultimately filtered through
the researchers and their own personal, political agenda. No research design
is flawless, and no research project ever delivers findings and conclusions
that have not been filtered through numerous levels.
Debates over the strength of the findings of a causal connection
, between pornography and violence against women are similar to debates
over causal claims concerning other social phenomena. In fact, the
problematic nature of establishing causality within the social sciences is
well known and acknowledged by all conscientious researchers within the
field. As with other social phenomena, pornography presents the problem
of how to isolate cause and effect for a practice that itself constitutes both
cause and effect. Pornography affects the conditions of women's lives and
in turn is produced by the conditions in women's lives. To approach this
phenomena as some simplistic chain in which one may simply interrupt
the causal flow of backward and forward and say here is where pornography
begins to act directly in a linear fashion to produce violence independently
of anything else is impossible. If pornography does not work in this manner,
PORNOGRAPHY AS A CIVIL RIGHTS ISSUE 143
then it cannot be found if one is looking for it to work this way. Pornography
may appear to not exist as anything that causes harm.
The final report of the Meese Commission prefaces the discussion of
the social science research with an explanation of causality within the social
sciences. This discussion was informed and quite articulate about the strengths
and limitations of causal claims within the social sciences. According to
established social science convention, the Meese Commission stressed the
multiplicity of factors inherent in the causal connection of pornography to
violence against women and society. The other alternative to this approach
is to frame causal statements more simplistically in terms of necessary and
sufficient conditions. By this way of thinking about causality, pornography
must be present for an act of violence against a woman, and when
pornography is present, an act of violence against a woman always takes
place. As Russell (1993b) states, by this definition pornography does not
cause violence against women. However, by this approach to causality, no
social variable causes anything and hence research establishing causality
within the social sciences does not rely on this conception of causality. The
conception of causality relied on within the social sciences stresses multiple
causation where variables are argued to interact with other variables in
producing a certain effect on one or more dependent variables. The Meese
Commission stressed the multiplicity of factors involved in producing
violence against women and sought to investigate the degree to which
pornography had a causal role in this process. By this approach, pornography
is causally related to violence against women.
The ability to determine exposure to an independent variable under
controlled circumstances means that laboratory experiments are conducive
to establishing causal claims. However, laboratory experiments are flawed
by several other factors, some of which are unique to the method itself and
some of which haunt social science research in general. A central concern
of quantitative research is to use information on a group under study (i.e.,
the sample) to speak to a larger group not directly observed or studied
(i.e., the population). The ability to accomplish this task increases the
generalizability of research findings. While methods such as surveys employ
large-scale probability samples, laboratory experiments do not use probability
sampling to select subjects from a population into a sample. The use of
probability sampling as a means of selecting samples from a population
increases the degree of confidence a researcher has in making generalizations
from the smaller group under study to the larger group because probability
samples are more representative of the population from which they are
144 CriminalJustice System
drawn than are samples produced by other means. Instead of selecting
subjects from a population, laboratory experiments use random assignment
of subjects into treatment groups. The logic of random assignment assumes
that whatever the original composition of the subjects, the differences and
similarities among them will be randomly distributed across the treatment
groups. This technique allows the researcher to establish that the effect of
a particular variable on another is not due to systematic biases in the
experimental groups. However, this technique limits the ability of the
research findings to be generalized beyond those initial subjects to the
same extent possible in survey research. The fact remains that the findings
from experiments that use random assignment are generalizable, just not
in the same way as survey findings.
Social science research has also been faulted in regards to another
common source of error for quantitative research in general, measurement
precision. The concepts that social scientists use are abstract and hence
measurements of these concepts will always be prone to error. The decisions
a researcher may make in regards to operationalization of concepts can be
accessed by reference to standards such as reliability and validity. However,
there is no perfect measurement of a concept. There are only measures
that are clearer or better than other measures. So the issue becomes whether
experimental researchers have used measures that are valid estimates of
the concept under study. Experimental research has attempted to
conceptually distinguish between violent pornography, non-violent
pornography and erotica. Both films and written scenarios have been used
as the means to tap these concepts. The consensus that the Meese
Commission reached on reviewing these studies was that the experimental
research on violent pornography was less ambiguous than research on
' erotica or non-violent pornography (AGR, 1986).
Because social scientists are precluded by ethical concerns from doing
certain research on human subjects, many investigations that would provide
stronger support for the causal role of pornography in violence against
women are not permissible based on ethical standards. Because of both
ethical concerns and the limitations of social science to capture the "real,"
the strongest research on the causal connection between pornography and
violence comes from experiments within the laboratory. Because research
investigations into the causal role of pornography in violence are
characterized by measurement problems, the findings from exposure to
violent pornography are the least problematic. In the experiments on the
effects of violent pornography, Donnerstein and Malamuth (Malamuth and
PORNOGRAPHY AS A CIVIL RIGHTS ISSUE 145
Donnerstein, 1984; Donnerstein et. al., 1987) along with other researchers
have generally examined effects "in the areas of arousal, perceptions,
affective states, attitudes and behavior" (Einsiedel, 1989: 248) concerning
various forms of pornography. While research has investigated the extent
of the aforementioned effects on nonviolent pornography as well as violent
pornography, the strongest findings of harm come from research employing
some definition of violent pornography. The Meese Commission concluded
that pornography, especially sexually violent material, was harmful in several
ways. Pornography was concluded to have a causal relationship to both
"antisocial" and "unlawful" acts of sexual violence. The Meese Commission
was also convinced by the empirical research and testimony that exposure
to pornography produced attitudinal changes in persons that had the effect
of making such persons more accepting of rape myths and more likely to
report the use of force in sex as acceptable. Rape myths include notions
that women welcome coercion into sex, that women enjoy pain as part of
sex, that a woman who says "no" really means "yes" (AGR,1986: 328). In
several of the experiments, individual subjects were screened out of the
study if they displayed "hostile" personalities so these findings are among
persons designated to be "normal."
Social science research was not the only basis of the conclusion of the
Meese Commission that violent pornography harms women. Based on
testimony from a range of sources— law enforcement personnel and
individuals currently or at one time involved in the production of
pornography—the Meese Commission (AGR, 1986: 888) concluded the
following about the performers in pornography:
(1) that they are normally young, previously abused, and
financially strapped; (2) that on the job they find exploitative
economic arrangements, extremely poor working conditions,
serious health hazards, strong temptations to drug use, and
little chance of career advancement; and (3) that in their
personal lives they will often suffer substantial injuries to
relationships, reputation, and self-image.
In one of the public hearings held in Los Angeles, Margaret Prescod, a
representative of United States Prostitutes Collective, stated that for women
employed in the sex trade industiy, "prostitution and pornography are
about money, not sex" (AGR, 1986 : 86l). Furthermore, testimony before
the Meese Commission established that physical coercion is a part of both
146 CriminalJustice System
recruitment into pornography as an occupation as well as an element in
specific performances. Individuals are either recruited into commercial
pornography through advertisements seeking "models" or drift into it through
exposure to other aspects of the sex trade industry such as nude dancing
or prostitution. The youth of many of the performers involved in
pornography heightens the degree to which they are vulnerable to "clever
persuasion" (AGR, 1986: 865).
The public hearings conducted by the Meese Commission heard not
only testimony by individuals directly involved in pornography but also
from individuals who related how pornography was part of their experience
in other ways. For example, women talked of how persons both known
and unknown to them had used pornography against them. Anecdotal
sources are often criticized as less than scientific bodies of knowledge.
Unless anecdotal sources confirm the conclusions of scientific studies, they
are devalued. The experience and reality of individuals directly involved in
the social phenomena in question is viewed as inherently suspect due to
the potential for bias. The question of whether the experience of those
who offer testimony under their own volition is similar to those who do not
choose to come forward is argued to introduce bias because there is no
way to establish whether the experiences of the two groups are comparable.
To avoid the potential for bias, experiments use procedures such as random
assignment to treatment groups. Rather than being discredited, anecdotal
sources offer another way to understand the social world. If all ways of
understanding the social world are in some sense partial, then the
problematic nature of anecdotal sources makes them differ more in their
way of being problematic rather than in the fact of being problematic.
Furthermore, an initial awareness of the majority of issues falling under the
' rubric of violence against women such as wife rape emerged through
anecdotal sources. It "was through the sharing of anecdotes that the rape
crisis movement was built. As feminists well understand, the manner in
which the silencing of women's experience takes places within our society
means that breaking that silence usually begins when women share their
experience with another and realize that they are not alone, they are not
unique, they are not individually "weak. Rather than distrusting anecdotes,
feminists realize that this way of knowing is the necessary beginning to
collective action. As one of the most vocal advocates of women's equality
and similar to other grassroots activists, Andrea Dworkin often employs
anecdotal sources as her frame of reference. In the following quotation,
Dworkin (1993: 34) speaks to the strength it takes for women to offer
PORNOGRAPHY AS A CIVIL RIGHTS ISSUE 147
their experience and the reception that follows the sharing of that
experience.
The cost of trying to shatter the silence is astonishing to
those 'who do it: the women, raped, battered, prostituted,
who have something to say and say it. They stand there,
even as they are erased. Governments turn from them; courts
ignore them; this country disavows and dispossess them.
Men ridicule, threaten or hurt them. Women jeopardized by
them—silence being safer than speech —betray them. It is
ugly to watch the complacent destroy the brave. It is horrible
to watch power win.
In her testimony before the Meese Commission on pornography, Andrea
Dworkin spoke of the effects of pornography on women. The following
are but a few of the excerpts from her testimony (AGR, 1986: 771-772):
... we see the torture of women as a form of entertainment,
and we see women also suffering the injury of
objectification—that is to say we are dehumanized. We are
treated as if we are subhuman, and that is a precondition for
violence against us.
When your rape is entertainment, your worthlessness is
absolute. You have reached the nadir of social worthlessness.
The civil impact of pornography on women is staggering. It
keeps us socially silent, it keeps us socially complaint, it
keeps us afraid in neighborhoods, and it creates a vast
hopelessness for women, a vast despair. One lives inside a
nightmare of sexual abuse that is both actual and potential....
Feminism focuses on pornography as a means of making the invisibility
of women's inequality visible. To accomplish that this goal is -worthy of
pursuit, evidence from the social sciences as well as other disciplines has
been utilized. This evidence supports that pornography harms women. To
what extent have the harms of pornography been addressed by the legal
avenue of obscenity?
Overview to Obscenity
Societal concerns about pornography have been addressed through
the legal concept of obscenity. According to Sutherland (1975: 86), the
"history of obscenity regulation in American predates the United States
148 CriminalJustice System
Constitution." For example, obscenity statutes existed in the colony of
Massachusetts in 1711 and several other colonies would adopt similar laws
that would be carried with them into statehood. Therefore, initially legislation
was passed by the states to regulate obscenity with no apparent concern
for the First Amendment difficulties such legislation might pose. In fact, the
existence of these state laws would be relied on by the Supreme Court as
evidence of obscenity as unprotected expression. Although these early
obscenity statutes were primarily concerned with anti-religious writings,
they were potentially applicable to sexual material (Sutherland, 1974).
The first federal obscenity legislation in the United States was in 1842
and was directed at the importation of obscene materials, "as if domestic
manufacture were inconceivable" (Kendrick, 1987: 126). Similar to other
federal legislation that would follow, no attempt was made to define the
term obscenity. While further legislation strengthened this statute, the extent
of enforcement was minimal at best. However this situation changed with
the enactment on March 3, 1873 of "An Act for the Suppression of Trade
in, and Circulation of, obscene Literature and Articles of immoral Use." This
legislation is more commonly referred to as the Comstock Act after Anthony
Comstock who was instrumental in the passage of the act through Congress
and who was the first "special agent" assigned to enforce the law. With the
passage of the Comstock Act, which was to cover materials ranging from
literature to medical materials, the most well-known anti-obscenity statute
in U.S. history was about to receive serious enforcement. According to
Bates (1995), by the 1920s only two states had not passed their own
versions of the federal statute. Furthermore, it is the legacy of the Comstock
Act that continues to haunt rational discourse concerning legislation on
. pornography. For a more thorough discussion of the Comstock laws, the
reader is referred elsewhere (Kendrick, 1987; Bates, 1995). Suffice it to say
at this point, that the Comstock Act succeeded in proscribing the importation
and mailing of not only sexually explicit texts but information relating to
abortion and contraception as well as contraceptive devices. One of the
Comstock laws most famous offenders was Margaret Sanger, the nineteenth-
century women's rights activist. Over the course of his career, Comstock
prosecuted 3500 individuals, most of whom were found not guilty (Bates,
1995). The constitutionality of this federal statute was not challenged until
1957,. Because federal obscenity legislation made no attempt to specifically
define what constituted obscene material, it was left to the judicial branch
of government to provide the needed specification (Goldstein, 1994; Hoff,
PORNOGRAPHY AS A CIVIL RIGHTS ISSUE 149
1991; Sutherland, 1975). The history of the efforts of the judiciary to define
and provide appropriate limits for the regulation of pornography has revolved
around several constitutional issues. While the First Amendment safeguards
freedom of expression among citizens such that the government can neither
censure unpopular ideas nor suppress a debate on public issues that is
"uninhibited, robust and wide open," this safeguard has never been absolute
(Cohen, 1996). Not all forms of expression are protected speech. Certain
forms of expression are either entitled to First Amendment protection or
are entitled to limited protection. Obscenity is one of the primary exceptions .
to the status of protected speech. Child pornography and words that when
used constitute a "clear and present danger" are two other areas of expression
outside the First Amendment (Justice Holmes, Schenck v. United States,
249 U.S. 47, 52(1919)). Therefore, pornography may be banned on the
basis of its content when it is obscenity or when it is child pornography.
Pornography as pornography has really no legal status. To approach
pornography one has to go through obscenity.
The definition of obscenity relied on by American courts has evolved
over time. Initially, the recognition of obscenity as a common law crime
within the United States relied for precedent on an 1868 English case,
Regina v. Hicklin. The Hicklin test, as it became known, stated that "the
test of obscenity is this, whether the tendency of the matter charged as
obscenity is to deprave and corrupt those whose minds are open to such
immoral influences and into whose hands a publication of this sort may fall"
(cited in Bosmajian, 1976: iii). The vagueness of the Hicklin test meant
that almost any material could be held to be legally obscene. Over the
years, application of the Hicklin test to material would result in examples
from literature and art being held by state and federal courts to be obscene.
American courts relied on this test to varying degrees until 1913 when
Judge Learned Hand seriously questioned the ability of the Hicklin test to
determine obscenity (Goldstein, 1994). Subsequently, judges at both the
state and federal levels would continue to offer opinions calling for a much
needed clarification of obscenity. The Supreme Court would not provide
this clarification until 1957.
With Roth v. United States, the Supreme Court would begin to devise
its own definition of obscenity. In this case, the federal anti-obscenity statute
was challenged as unconstitutional. In upholding the convictions under the
federal statute, the Court stated that obscenity was outside First Amendment
protection. Delivering the opinion of the court, Justice William J. Brennan
wrote:
150 Criminal Justice System
implicit in the history of the First Amendment is the rejection
of obscenity as utterly without redeeming social importance.
This rejection for that reason is mirrored in the universal
judgement that obscenity should be restrained, reflected in
the international agreement of over fifty nations, in the
obscenity laws of all the forty-eight states, and in the twenty
obscenity laws enacted by the Congress from 1842 to 1956....
We hold that obscenity is not within the area of
constitutionally protected speech or press.... (Roth v. United
States, 354 U.S. 476 (1957))
Furthermore, obscenity was to be defined as "material which deals with
sex in a manner appealing to prurient interest" and the test of obscenity is
"whether to the average person, applying contemporary community
standards, the dominant theme of the material appeals to prurient interest"
(Roth v. United States, 354 U.S. 476,489 (1957)). In this decision, the Court
left the meaning of "community" open to interpretation. The community
to be referenced could be defined at the national level, the state level, the
county level and so forth. The dissension among Supreme Court justicies
over the proper reference for the community is evident in several opinions
of the Court. In the 1964 case, Jacobellis v. Ohio, 378 U.S. 184, Justice
Brennan, writing for the Court, stated that "the constitutional status of an
allegedly obscene work must be determined on the basis of a national
standard." In his dissent to this case, Chief Justice Earl Warren would counter
that the national level as the basis for the community standard was not
appropriate.
Similarly, in providing specificity to the term "average person," the
. Court only went so far as to provide examples of who would not constitute
this legal abstraction. These examples included "the young, the immature
or the highly prudish" (Roth v. United States, 354 U.S. 476 (1957)). While
the Court offered definitions of "prurient interest" as material which has "a
tendency to excite lustful thoughts" or" a shameful or morbid interest in
nudity, sex or excretion," there was no clear meaning given to this term.
Furthermore, the Court's specification that the obscenity of material must
be evaluated by reference to "the dominant theme of the material taken as
a whole" meant that isolated passages could not be the basis for a legal
finding of obscenity. Hence part of the material could appeal to "prurient
interest" as long as the majority of the work was not so characterized. In
fact, the Court would increasingly rely on the standard that the work in
PORNOGRAPHY AS A CIVIL RIGHTS ISSUE 151
question had to be "utterly without redeeming social importance" to be
held obscene. Certain legal theorists have contended that this opened the
floodgate for pornography (Goldstein, 1994). Thus, the Roth decision
provided clarity on several issues but left several issues and standards
ambiguous.
It was not until the 1973 case Miller v. California, 413 U.S. 15,27
(1973) that the Supreme Court provided further substance to the standards
to be used in defining obscenity. Here the Court stated that the state can
regulate an expression of sexual activity if the following three conditions
are established:
(a) the "average person applying contemporary community
standards" would find that work, taken as a whole, appeals
to the prurient interest; (b) the work depicts or describes, in
a patently offensive way, sexual conduct specifically defined
by the applicable state law; and (c) the work, taken as a
whole, lacks serious literary, artistic, political, or scientific
value.
In response to the dissenting justices in the opinion who feared repression
of speech under this opinion, Chief Justice Burger wrote that "to equate
the free and robust exchange of ideas and political debate with commercial
exploitation of obscene material demeans the grand conception of the
First Amendment." It is the standards as set forth under the Miller ruling
which continue to operate today to define the obscene. Did Miller actually
provide greater clarity to obscenity as a legal entity or is Miller characterized
by imperfections similar to previous decisions? The Court replaced the
standard of "utterly without redeeming social importance" with "serious
literary, artistic, political or scientific value." The Court was clear that
contemporary community standards were not to be defined at a national
level and that the determination of a work's obscenity had to be based on
the entirety of the work and not simply isolated elements. Commenting on
the Miller criteria, MacKinnon (1987:174-175) states:
Feminism doubts whether the average person gender-neutral
exists; has more questions about the content and process of
defining "what community standards are than it does about
deviations from them; wonders why prurience counts but
powerlessness does not and why sensibilities are better
protected from offense than women are from exploitation;...
152 CriminalJustice System
taking the work "as a whole" ignores that which the victims
of pornography have long known: legitimate settings diminish
the perception of injury done to those whose trivialization
and objectification they contextualize.
Following Miller, two further developments regarding the regulation of
obscenity would occur. First, the Supreme Court would uphold the
constitutionality of zoning ordinances that restricted the time, place and
manner of location concerning establishments selling and catering to
pornography. In Young v. American Mini Theatres and in City ofRenton
v. Playtime Theatres, Inc, the Supreme Court wrote that because of
secondary effects produced by pornography on the community, the state
could restrict the locations of adult bookstores through zoning ordinances.
These bookstores need not be selling material deemed to be obscene.
Specifically, this means that a legal finding of the obscenity of the material
being sold need not be established prior to enactment of zoning ordinances.
Through the use of social science research as well as reports from urban
planners, the defendants were successful in convincing the Court that the
concentration of adult entertainment establishments produced secondary
effects such as crime and lowered property values. Because the ordinances
distinguished adult theaters from "ordinary" theaters in terms of where
they could be located, the city had to offer a basis for this distinction.
Specifically, if a statute provides restrictions on protected expression based
on the content of that expression, the statute must pass "strict scrutiny" to
be held constitutional. One means by which such a statute may pass this
test is if it advances a "compelling state interest." In both these cases, the
Supreme Court held the preservation of communities to be a compelling
state interest that did not violate the equal protection clause of the 14th
Amendment and that this interest was "not a subterfuge for censorship"
(Young v. American Mini Theatres, Inc.,427 U.S. 50 (1976))
The Supreme Court would allow another course for government
regulation of explicit sexual speech in a 1982 case. In New Yorkv. Ferber,
458 U.S. 747 (1982), sexually explicit depictions involving minors, whether
it constituted obscenity according to the Miller test or not, was held to be
outside First Amendment protection. In the opinion of the Court in Ferber,
several factors were cited as crucial in the Court's decision to uphold a law
imposing criminal sanctions on the production and distribution of non-
obscene pornography involving children. One of these factors was the
PORNOGRAPHY AS A CIVIL RIGHTS ISSUE 153
general agreement concerning the harm of child pornography, which was
evidenced to the Court by the widespread existence of statutes in the
majority of states regulating child pornography. Additionally, the Court was
persuaded by the available social science data that participation in
pornography has manifest and wide-ranging negative effects on children.
Problematic Features of Criminalization Approach to
Obscenity Laws
There are several points to be made against the use of criminal statutes
in the form of obscenity laws to address pornography. As previously stated,
the ideology behind the Criminalization of pornography embraces a moral
position that is not compatible with equality concerns for •women. Women
who "work in pornography are treated as offenders not as victims of social
inequality. The reality of their victimization becomes subsumed under the
designation of offender. Similar effects were anticipated by feminist criticism
of mandatory arrest policies for domestic violence. Many feminists opposed
mandatory arrest policies because, rather than empowering -women, such
policies increased the power of the state over women while ignoring the
complicated nature of domestic violence. Under mandatory arrest policies,
cases involving the arrests of women at domestic violence scenes have
increased as have the number of women held in contempt of court for
refusing to testify against their male batterers. The criminal justice system
is not well suited to address problems of social inequality because as a
punitive arm of the state it tends to reinforce inequality. Obscenity
prosecutions then become another avenue through which marginal groups
such as women enter the criminal justice system.
Approaches to obscenity such as zoning regulations are neither
preventive nor community oriented. Zoning regulations generally have
two broad expressions: the first form of zoning requires the dispersal of
establishments selling pornography or catering to a related clientele; the
second concentrates "adult" establishments in selected parts of the
community. Neither allows communities to strengthen and rebuild
themselves. The logic of the compelling state interest that the Supreme
Court accepted in Young v. American Mini Theatres, Inc., relied on
preventing further urban deteriation, not on repairing the damage that had
been done. Furthermore, approaches to obscenity regulation such as zoning
ordinances also reflect the power dynamics of communities. This was
illustrated when Catherine MacKinnon and Andrea Dworkin were first
154 CriminalJustice System
approached by citizens of Minneapolis concerning strategies to combat the
effects of pornography. The group that approached MacKinnon and Dworkin
had been fighting the city council over a multitude of zoning ordinances
that increased the flow of pornography into their neighborhoods. These
neighborhoods were primarily poor and African American (Dworkin, 1995).
Apparently the quality of life in some neighborhoods is more worthy of a
compelling state interest than in others. In the words of Catharine MacKinnon
(1987: 211):
Do you think it makes any difference to the woman who is
coerced into pornography or who has just hit the end of this
society's chances for women that the product of her
exploitation is sold on the other side of the tracks?... It does
matter to the women who live or work in the neighborhoods
into which the pornography is zoned. They pay in increased
street harassment, in an atmosphere of terror and contempt
for what other neighborhoods gain in keeping their property
values up.
A further problematic feature is that obscenity laws are characterized
by "striking underenforcement ... consisting of undercomplaining,
underinvestigation, underprosecution and undersentencing" (AGR, 1986:
367). According to the Meese Commission report, approximately eight
police officers out of 6700 are designated to the task of enforcement of
obscenity laws. Other cities such as Chicago and Miami allocate two officers
out of 12,000 and two out of 1500 respectively to such enforcement (Arcand,
1993). The Meese Commission further concluded that one of the reasons
, for such sparse attention to obscenity is a shared perception among criminal
justice agents that violations of obscenity laws are not serious. Thus,
assignment to obscenity cases is not prominent in the hierarchy of esteemed
duties for either prosecutors or police (AGR, 1986). To push for greater
enforcement of obscenity laws then cannot ignore the place such tasks
have in the occupational subculture of the criminal justice system. There is
no reason to expect that extension of obscenity law's would meet with any
significant increase in allocation of resources or prestige concerning
enforcement.
"'jJC'hen pornography is seriously enforced it is primarily for two reasons.
First, evidence supports that child pornography is seriously policed.
However, the enforcement of these activities often serves as subterfuge
PORNOGRAPHY AS A CIVIL RIGHTS ISSUE 155
for the lax enforcement of obscenity laws. The Meese Commission noted
this point as follows:
prosecutors and lav/ enforcement officials have frequently
relied on the number of child pornography prosecutions to
give a general impression of vigorous enforcement of the
obscenity laws in their jurisdiction. (AGR, 1986: 372)
Secondly, obscenity laws are often used as the mechanism to attack
organized crime. Federal law enforcement has primarily addressed "large
nationwide obscenity distribution networks with known connections with
organized crime" (AGR, 1986: 372). Obscenity laws then are used if they
serve the purpose of attacking real crime, as represented by organized
crime, but not as a serious issue of crime outside of child pornography.
An intrinsic danger to criminalizing certain behaviors is that the
inevitable repression associated with such criminalization expands the
attraction of pornography. As Carol Smart (1989: 123) contends, the more
pornography is "repressed, the more it assumes the status of a desired
object, but also the status of a truth that moral puritans ... wish to repress."
The framing of pornography as an issue of morality has resulted in efforts
to control women's reproduction and to censor art and literature (Itzin,1992b).
Andrea Dworkin criticizes criminalization because it forces "pornography
back underground" creating a "revivified black market" that results in
pornography being "hidden, forbidden, dirty, happily back in the land of
the obscene, sexy slime oozing on great books" (Dworkin, 1993a: 46l).
Furthermore, the vagueness of the terms the Supreme Court has used
in formulating obscenity doctrine make it very difficult for statutory law to
effectively address pornography through obscenity. Catharine MacKinnon
has noted that the standard set forth in Miller "provides little protection
against a gradual deterioration of community standards once a market for
sexually degrading materials begins to mushroom" (MacKinnon, 1993a:
88).
Criminalization of pornography, rather than advancing social equality
for women, only furthers the grasp of the social control apparatus over
women. Criminalization does not make the silence of women in
pornography heard, it makes the silence deafening and seemingly
unimportant. Pornography becomes a moral issue under the umbrella of
obscenity; an issue of dirty pictures, bad jokes and a rhetorical call to the
156 CriminalJustice System
return of family values. The harm of pornography is neither addressed nor
revealed. Instead, the crime control industry has another set of behaviors
by which the most marginalized groups in society may be exploited and
imprisoned. Because, as with other issues related to the suppression of
vice such as prostitution, it is not the clients who are targeted, it is the sex
trade workers, the women. The harm of pornography revealed under
obscenity is the disruption to the normative moral fabric of society. This is
not the harm that feminists understand—this is not the harm of pornography
that needs to be visible and taken seriously. By denial of civil rights,
pornography harms the society of -women, and if one takes that society
seriously, then pornography harms the society we all inhabit.
It is the harm of pornography—both what it is and what it does—that
underlies the civil rights approach to pornography. Pornography becomes
a matter of the inequality of women—something done to women because
they are women—the organizing device by which sexuality becomes what
it is (MacKinnon, 1990).
Pornography as a Civil Rights Issue
The legal approach to pornography as a form of sex discrimination
and thereby a violation of women's civil rights first emerged through the
join efforts of University of Michigan law professor Catharine MacKinnon
and author and activist Andrea Dworkin. MacKinnon had been instrumental
in the legal development of sexual harassment as a civil rights violation.
Among other efforts, MacKinnon had been co-counsel in the case of Meritor
Savings Bank v. Vinson, 477 U.S. 57 (1986) in which hostile work
environment was accepted by the Supreme Court as sexual harassment. In
this case, pornography was part of the pattern of hostile work environment
• established as the basis for the claim. With Dworkin, MacKinnon has written
a number of city ordinances defining pornography as a civil rights violation.
The cities of Los Angeles, Minneapolis and Cambridge all considered these
ordinances. In 1983 and 1984, the city council in Minneapolis passed civil
rights anti-pornography ordinances. However, these ordinances were vetoed
by the mayor. In 1984, Indianapolis passed such an ordinance and it was
signed by the mayor. The Indianapolis ordinance was challenged
immediately on constitutional grounds. The United States District Court for
the Southern District of Indiana held the ordinance to be unconstitutional,
and this decision was affirmed by the United States Court of Appeals for
the Seventh Circuit in American Booksellers Association v. Hudnut,771.F.
2d 323 (7th Cir. 1985). The decision of the 7th Circuit was affirmed on the
PORNOGRAPHY AS A CIVIL RIGHTS ISSUE 157
merits of the decision but without opinion by the Supreme Court. In 1988,
a revised version of the Dworkin-MacKinnon ordinance was passed in
Bellingham, Washington but was struck down by Federal District Court
Judge Carolyn Dimmick. In Village Books v. The City of Bellingham, Judge
Dimmick stated that the decision in the Indianapolis case was controlling
and therefore a summary judgment was issued for the plaintiffs (Hoff,
1991; Smart, 1989). Because of the central importance of the Indiana
ordinance, the following discussion will focus on that case.
The ordinance enacted in Indianapolis was a revised version of the
Dworkin-MacKinnon ordinance originally proposed in Minneapolis. This
revised law constricted the definition to focus on violent pornography and
allowed an exception for soft-core porn. Under the Indianapolis ordinance,
pornography was defined as:
the graphic sexually explicit subordination of women, through
pictures or in words that also includes one or more of the
following:
(1) women are presented as sexual objects who enjoy
pain or humiliation; or
(2) women are presented as sexual objects who
experience sexual pleasure in being raped; or
(3) women are presented as sexual objects tied up or
cut up or mutilated or bruised or physically hurt, or
as dismembered or truncated or fragmented or
severed into body parts; or
(4) women are presented as being penetrated by objects
or animals; or
($) women are presented in scenarios of degradation,
injury, abasement, torture, shown as filthy or inferior,
bleeding, bruised, or hurt in a context that makes
these conditions sexual; or
(6) women are presented as sexual objects for
domination, conquest, violation, exploitation,
possession, or use, or through postures or positions
of servility or submission or display" (American
Booksellers Ass'n V. Hudnut, 598 F. Supp. 1316 (S.D.
Ind. 1984).
The statute also allowed that the "use of men, children or transsexuals
in the place of women" would also comprise pornography. Under this
ordinance, victims were empowered to file sex discrimination claims for
158 CriminalJustice System
both monetary damages and injunctive relief on the grounds that
pornography promotes violence against women, keeps women subordinate
and inhibits access to equal employment, education and other opportunities.
The ordinance further specified four civil causes of action which included
coercion, assault, force and trafficking. As a cause of action, the coercion
provision allowed individuals who could demonstrate that they have been
coerced into sex acts for the purposes of making pornography to seek
redress. The ordinance also prohibited forcing pornography on persons
either in a place of employment, education, the home or public places.
The ordinance also made it actionable if victims could prove that they had
been assaulted as a direct result of specific pornography. Finally, there was
a trafficking provision which stated that the "production, sale, exhibition, or
distribution" of material that met the definition of pornography as specified
in the ordinance was prohibited. The trafficking provision did exclude
exhibitions in public or educational libraries and also stated that this "shall
not be construed to make isolated passages or isolated parts actionable"
(American Booksellers Ass'n v. Hudnut, 598 F. Supp. 1316). The anti-
pornography ordinance operates through complaints and civil suits initiated
by individual plaintiffs. If a plaintiff is successful in court, monetary damages
may be collected and the pornography in question may be removed from
display or sale in the community. The principal enforcement mechanism
of the ordinance would be a civil rights commission (MacKinnon, 1993a ;
Dworkin, 1993).
Opposition to the ordinance came from national groups representing
booksellers, librarians, magazine wholesalers, distributors and publishers as
well as groups within the feminist community such as the Feminist Anti-
, Censorship Taskforce (FACT). Groups from all sides who opposed the
ordinance contended that it was a violation of the First Amendment (Hunter
and Law, 1993). The feminist voices in this coalition came primarily from
the perspective of civil libertarian feminists. In opposition to radical feminism,
which writers such as Andrea Dworkin and Catherine MacKinnon are
identified, civil libertarian feminists who oppose the civil rights approach
to pornography do not perceive sexuality as a central concern to feminism.
With the statement, "sexuality is to feminism what work is to Marxism; that
which is most one's own, yet most taken away," Catherine MacKinnon
(198£>: 3) places sexuality at the core of the feminist agenda. Furthermore,
radical feminism rejects simplistic dichotomonies such as "rape as sex" and
"rape as violence" by contending that rape is sex and violence. Practices
PORNOGRAPHY AS A CIVIL RIGHTS ISSUE 159
such as rape and pornography reveal how "violence against -women
becomes eroticized" (Dworkin, 1981: 24). The structural effect of this
eroticization not only fuses sex with violence but also "politically speaking
... pornography converges with more conventionally acceptable depictions
and descriptions just as rape does with intercourse, because both are acts
within the same power relation" (MacKinnon, 1989: 203). Not only
disagreeing over the centrality of sexuality as a feminist concern, equality
for radical feminists must be pursued with an awareness that until the law
recognizes the marginalized position of women within wider society, legal
abstractions such as freedom of expression and consent will remain empty
vessels. For radical feminists, the question of who controls women's sexuality
must confront that there is a continuum of constraints on the ability to
freely consent. This continuum ranges from the use of overt coercion and
force to the inhibiting nature of economic disadvantages. Kathleen Barry
refers to the extensive presence of pornography in society as a type of
"cultural sadism" such that it becomes a means within which this continuum
of coercion and force is actualized and by which women are silenced (Barry,
1979: xx).
Civil libertarians are primarily concerned that legal efforts such as the
civil rights approach toward pornography will result in censorship of
expression that will backfire on feminists. This resulting censorship that
emerges will have the following effects:
(1) ban some overtly feminist works;
(2) discriminate against the least popular segments of
society (including feminists and lesbians);
(3) perpetuate paternalistic and demeaning gender
stereotypes;
(4) disempower women by emphasizing their
victimization;
(5) deprive women of employment opportunities in the
sex industry; and
(6) distract attention from more meaningful approaches
to combating violence and discrimination against
women. (Weisberg, 1996: 8)
These points of contention surrounding the Indianapolis ordinance
formed the basis of the aimicus brief filed by groups such as the Feminist
Anti-Censorship Taskforce (FACT). These points speak a great deal about
the different perspective of radical feminism and libertarian feminism. Radical
160 Criminal Justice System
feminism, for example, does not view acknowledgement of women's
marginalized status and the reality of victimization as liabilities meant to be
downplayed or ignored. MacKinnon has forcefully stated:
... the parade of horrors demonstrating the systematic
victimization of women often produces the criticism that for
me to say women are victimized reinforces the stereotype
that women "are" victims, which in turn contributes to their
victimization. If this stereotype is a stereotype, it has already
been accomplished, and I come after. To those who think "it
isn't good for women to think of themselves as victims," ...
since "when is politics therapy? (MacKinnon, 1987: 220)
The differences within the feminist movement reflect different concerns
with how equality for women is to be realized, as evident in the following:
And anyone with an ounce of political analysis should know
that freedom before equality, freedom before justice, will
only further liberate the power of the powerful and will never
free what is most in need of expression. (MacKinnon, 1987:
15)
The dissension 'within the feminist movement then revolves around
several concerns. Instead of pornography emerging as an issue that could
unite the feminist movement, it has furthered the divide between various
factions. That pornography as a civil rights issue for women has divided
feminists has been as crucial an issue as the court rulings concerning proposed
civil rights ordinances. Both the civil libertarian feminists,and American
courts have rejected the political agenda of pornography as a civil rights
issue.
The political analysis offered by the defendants in American Booksellers
did not pass constitutional scrutiny by the courts. The ordinance was found
to be unconstitutional by U. S. District Court Judge Sarah Evans Barker.
Judge Barker's ruling did not disagree with either the underlying concern
or premise expressed in the ordinance. In her words,
It is difficult to quarrel either with the Council's underlying
concern that pornography and sex discrimination are
harmful, offensive, and inimical to and inconsistent with
enlighten approaches to equality or with its premise that
PORNOGRAPHY AS A CIVIL RIGHTS ISSUE 161
some legislative controls are in order. (American Booksellers
Ass'n v. Hudnut, 598 F. Supp. 1316, 1326)
This was not a factor for the court in deciding the constitutionality of
the ordinance. Some of the District Court's holdings were: (1) the definition
of pornography in the ordinance was speech, not conduct; (2) in going
beyond "unprotected obscenity" the ordinance "suppressed speech"; (3)
the compelling state interest offered was not persuasive enough to
"outweigh interests of free speech"; (4) the ordinance was "unconstitutionally
vague"; and (5) two of the causes of action "failed to meet requirements
for prior restraint" (American Booksellers Ass'n v. Hudnut, 598 F. Supp.
1316).
Because the definition of pornography used in the ordinance did not
rely on accepted legal standards for obscenity, the definition itself raised
constitutional issues. While acknowledging that the definition of the
ordinance was similar to obscenity proscriptions, it was distinct enough to
encompass speech protected by the First Amendment. The District Court
stated that the controls imposed by the Ordinance do not fall within one of
those established categories of speech which may be limited by legislative
action, such as "the lewd and obscene, the profane, the libelous and the
insulting or fighting words." Based on this legal finding, the only way for
the ordinance definition to be constitutional was if the court was persuaded
that there was a "compelling state interest" accomplished through the
ordinance. The "compelling state interest" offered by the defendants was
that "the interests of protecting women from sex-based discrimination are
analogous to and every bit as compelling and fundamental as those which
the Supreme Court upheld in Ferber for the benefit of children"
2
 (American
Booksellers Ass'n v. Hudnut, 598 F. Supp. 1316, 1332). The court was not
swayed by this reasoning as evidenced by the following excerpt of Judge
Barker's opinion:
This Court finds no legal authority or public policy argument
which justifies so broad an incursion into First Amendment
freedoms as to allow that which the defendants attempt to
advance here. Ferber does not open the door to allow the
regulation contained in the Ordinance for the reason that
adult women as a group do not, as a matter of public policy
or applicable law, stand in need of the same type of protection
which has long been afforded children. This is true even of
162 CriminalJustice System
women who are subject to the sort of inhuman treatment
defendants have described and documented to the Court in
support of this Ordinance. The Supreme Court's finding in
Ferber of the uncontroverted state interest in "safeguarding
the physical and psychological well being of a minor" and
its resultant characterization of that interest as "compelling,"
is an interest which inheres to children and is not an interest
which is readily transferable to adult women as a class. Adult
women generally have the capacity to protect themselves
from participating in and being personally victimized by
pornography, which makes the State's interest in safeguarding
the physical and psychological 'well-being of "women ... not
so compelling as to sacrifice the guarantees of the First
Amendment (American Booksellers Ass'n v. Hudnut, 598 F.
Supp. 1316, 1333).
The case was heard on appeal before the Seventh Circuit Court. In
writing for the Circuit Court, Judge Frank Easterbrook echoed Judge Barker
in his agreement with the premise of the ordinance and hence did not
question that pornography is sex discrimination:
we accept the premises of this legislation. Depictions of
subordination tend to perpetuate subordination. The
subordinate status of women in turn leads to affront and
lower pay at work, insult and injury at home, battery and
rape in the streets. In the language of the legislature,
"pornography is central in creating and maintaining sex as a
basis of discrimination. Pornography is a systematic practice
of exploitation and subordination based on sex which
differentially harms women. The bigotry and contempt it
produces, with the acts of aggression it fosters, harm women's
opportunities for equality and rights of all kinds." (American
Booksellers Association v. Hudnor, 111 F. 2d. 323, 328)
However, Judge Easterbrook held that because the ordinance was
content specific, it violated the First Amendment.
Under the ordinance graphic sexually explicit speech is
"pornography" or not depending on the perspective the author
adopts. Speech that "subordinates" women and also, for
example, presents women as enjoying pain, humiliation, or
rape, or even simply presents women in "positions of servility
PORNOGRAPHY AS A CIVIL RIGHTS ISSUE 163
or submission or display" is forbidden, no matter how great
the literary or political value of the work taken as a whole.
Speech that portrays women in positions of equality is lawful,
no matter how graphic the sexual content. This is thought
control. It establishes an "approved" view of women, of
how they may react to sexual encounters, of how the sexes
may relate to each other. Those who espouse the approved
view may use sexual images, those who do not, may not.
(American Booksellers Ass'n v. Hudnut, 111 F. 2d. 323)
Judge Easterbrook went on to include that what this evidence
demonstrated was the "power of pornography as speech" and that "if
pornography is what pornography does, so is other speech." Judge
Easterbrook also rejected the argument that pornography was of such low
value as speech that it warranted prohibition in ways similar to obscenity.
Responding to Judge Easterbrook's ruling, MacKinnon (1987: 210) notes
that pornography is said to have "value as speech because it is so effective
in doing the harm that it does." She goes on to comment that "whatever
the value of pornography is—and it is universally conceded to be low—
the value of women is lower" (MacKinnon, 1987 : 211). MacKinnon (1987:
213) locates the decision of the District Court and the Seventh Circuit
Court 'within other historical decisions involving civil rights issues:
The Supreme Court just told us that it is a constitutional right
to traffic in our flesh,... and a legislature may not give us
access to court to contest it. The Indianapolis case is the
Dred Scot of the women's movement. The Supreme Court
told Dred Scott, to the Constitution, you are property. It told
"women, to the Constitution, you are speech. The struggle
against pornography is an abolitionist struggle to establish
that just as buying and selling human beings never was
anyone's property right, buying and selling women and
children is no one's civil liberty.
American courts are not yet receptive to the legal reasoning offered
by MacKinnon and Dworkin in regards to pornography as a violation of
women's civil rights just as American courts once held persons by virtue of
their skin color to be property. Resolution of the pornography issue will
continue to force American courts to deal with the fact that "the law of
equality {read 14th Amendment} and the law of freedom of speech {read
164 CriminalJustice System
1st Amendment} are on a collision course in this country" (MacKinnon,
1993a: 71).
Outside of the United States, the civil rights approach to pornography
has also received attention. While the Supreme Court of Canada would
adopt an equality approach to pornography as a harm to women, this -was
done as an extension of criminal obscenity law. While MacKinnon did work
with the Women's Legal Education and Action Fund (LEAF) on a case
prosecuted under this new law, Andrea Dworkin refused to support the
criminal obscenity law (MacKinnon and Dworkin, 1994). In the press release
they issued, MacKinnon and Dworkin make their position clear regarding
this legal development in Canada:
Although we recognize that the equality test adopted by Butler
is an improvement on Canada's criminal obscenity law, we
still do not advocate criminal obscenity approaches to
pornography. They empower the state rather than the victims,
with the result that little is done against the pornography
industry.
Strengths of Civil Rights Approach
The civil rights approach to pornography avoids many of the
problematic features inherent to criminalization under obscenity statutes.
As a civil remedy, this approach does not involve prosecutions brought by
the state, arrests by police or incarceration for those found legally responsible
for violating the ordinance. Thus, there is no further extension of the social
control apparatus via the criminal justice system. The use of civil law "avoids
. the problem of reliance on a police force which we know to be part of the
oppression of women in the skin trade" (Smart, 1989:134). Thus, the civil
rights approach empowers women rather than the state and thereby furthers
an agenda of social equality for women. The use of the civil law as a
mechanism for grievances "allows "women themselves to define the
circumstances under which pornography may be deemed sufficiently
oppressive to call for legal action" (Smart, 1989: 134). This empowering of
women works on several levels. At one level, rather tha"n potentially being
treated as criminals, the civil rights approach allows women working in
pornography to be treated as complainants. By empowering women to
take action against the harm done to them through pornography, the falsity
of pornography as representing the sexuality of women is exposed.
PORNOGRAPHY AS A CIVIL RIGHTS ISSUE 165
Stoltenberg (1993: 70) maintains that rather than representing sexual
freedom, "pornography exploits every experience in people's lives that
imprisons sexual feelings—pain, terrorism, punishment, dread, shame,
powerlessness, self-hate." The civil rights approach to pornography locates
sexuality within the political discourse surrounding women's inequality. A
women's sexuality is seen and heard as a political issue, an issue of power
and a recognition that "to seek an equal sexuality, to seek sexual equality,
without political transformation is to seek equality under conditions of
inequality" (MacKinnon, 1990: 237).
By relying on obscenity as a legal concept, the criminalization approach
encompasses broad categories that potentially include material that does
not do the harm that pornography does as defined in the Indianapolis and
subsequent ordinances. As a violation of women's civil rights, the harm and
offense of pornography lies in the "practices themselves and the felt
implication for people's status, the light cast upon them as citizens"
(Wolgast, 1993: 441). As Wolgast maintains, "respect for individuals is an
important community value" (1993: 436) and to the degree that practices
interfere with this, not only are individuals harmed but the community as a
whole is harmed. Individuals do not have the full exercise of their rights as
citizens and communities fail to reflect the views of those who live, work
and play within their boundaries.
Because obscenity is primarily an issue of morals and degrees of sexual
explicitness, the civil rights approach offers a way for pornography to be
understood as a public policy issue and an issue of real harm to women.
Carol Smart (1989: 133) argues that in moving from a criminal approach to
a civil rights approach the debate moves from the "terrain of sex and
sexual prudery, towards that of discrimination," and that this shift would
have enormous value symbolically for women's equality. Itzen (1992b:
427) contends that the civil rights approach would better "bring pornography
and its injuries to women out into the open." Stoltenberg (1993: 74) also
speaks to this point by arguing that the anti-pornography ordinance could
"carve out social consciousness about what equal rights for women really
must mean ... and this ordinance would be a community's declaration that
women have civil rights that pornography may not trample on." Rather
than becoming more hidden, as results with increased criminalization, "the
civil rights law puts a flood light on the pornography, what it is, how it is
used, what it does, those who are hurt by it" (Dworkin, 1993a: 46l).
Given that criminalization has not halted the growth of the pornography
industiy and may veiy well have accelerated it, feminists have seriously
166 Criminal Justice System
challenged the ability of our communities to effectively attach child
pornography amidst the general saturation of society with adult
pornography. While child pornography is banned and seriously policed,
the existence and the content of adult pornography are correlated with
child pornography. A common theme in adult pornography is the portrayal
of adult women either as if they are children (e.g., dressed in school
uniforms) or in activities normally associated with a child (e.g., playing with
dolls). To the normative feature of pornography, the enjoyment of violence
by women as part of sex, is added the message that children invite sexual
encounters with adults. The distinction between adult and child is blurred
in pornography, and that blurring occurs within a context of violence and
sex as complementary. Thus, the images within adult pornography directly
play to child pornography. To the extent that legislation in line with the
civil rights approach makes a difference to adult women, it will also make
a difference to girl children (MacKinnon, 1987).
Critics of the civil rights approach have raised doubts about the ability
of the civil rights commission to act on behalf of women. Feminist criticism
has continually highlighted how institutions ostensibly created to serve the
interests of women result in serving the interests of male dominance. While
there is no guarantee that civil rights commissions as enforcement
mechanisms will not be co-opted by the state, there is also no guarantee
that they will. The feminist movement cannot wait for institutions to willing
respond to feminist demands, they must be demanded to respond. If political
strategies are not attempted because they must be approached within an
overall atmosphere that may be hostile to feminist claims, then the feminist
movement will not go forward. While it may be the essence of courtesy to
. wait for an invitation to enter, courtesy will not produce meaningful change
for women's attainment of greater civil rights. The often quoted words of
Abigal Adams (cited in Goldstein, 1994: 12) in letters to her husband John
Adams on the eve of formulating the United States Constitution should be
remembered here.
... in the new codes of laws which I suppose it 'will be
necessary for you to make, I desire you would remember
the ladies and be more generous and favorable to them than
your ancestors.... If particular care and attention is not paid
to the ladies, we ... will not hold ourselves bound by any
laws in which we have no voice or representation.
PORNOGRAPHY AS A CIVIL RIGHTS ISSUE 167
Abigal Adams's request was not honored. It becomes the responsibility
of feminists to continue to pressure institutions such as medicine, the law,
the criminal justice system to respond to the needs of women, as defined
by women (MacKinnon, 1987). That such institutions may not willingly
invite change, only makes change harder, not impossible.
Questions for Discussion
1. How may pornography be viewed as a matter of social control and
social justice?
2. How may pornography be viewed as a harm?
3. Discuss obscenity as a legal concept.
4. How does the civil rights approach define pornography? How does this
view fundamentally differ from the definition of obscenity?
5. Discuss the problems with extending the obscenity statutes.
6. Discuss the benefits for women as a class in the civil rights approach to
pornography.
Endnotes
1
 Controversy surrounded the Meese Commission both at its inception, during
testimony before the commission and upon the release of the final report.
Because the commission was appointed by former President Ronald Reagan,
some contended that certain of the final report contents (e.g.,
recommendations for extension of obscenity statutes) were predictably based
on the current political climate. While acknowledging that the Meese
Commission was flawed in several ways, this does not diminish the usefulness
of the entire content of the final report or their cogent discussion of several
crucial issues.
2
 The argument advanced by the ordinance did not equate women with
children, but instead argued that the social structural locations of women
and the prevalence of violent victimizations against women are such that
the state must consider the protection of women to be a compelling state
interest. A similar line of reasoning was recently advanced and accepted by
the United States District Court in New Haven, Connecticut in upholding the
civil rights provision of the Violence Against Women Act. Due to the disruptive
nature of violent victimization on the ability of women to fully participate in
societal realms such as the economy, the judge accepted the reasoning that
the civil rights provision legitimately promotes "a societal interest in ensuring
that persons have a civil right to be free from gender-motivated violence."
168 CriminalJustice System
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Social Justice for Women
Working in Male-Dominated
Public Sector Occupations
Catherine Orban
York University
Introduction
Before we can embrace proactive strategies that address the issues of
social justice for women in male-dominated occupations, we must unveil
the apparatuses of control that continue to normalize proper gendered
subjects. The general aim of this paper is to discuss the lived-in experiences
of women in the occupation of policing, and in so doing we reveal how
women become the social products of both occupational and organizational
police structure. It is argued that patriarchy,
1
 or the ideology therein, is
reinforced by maximizing the surveillance of women through invisible
mechanisms or techniques of control. Two agents of patriarchy located in
the occupational structure of policing are discussed— the organizational
ideology of esprit de corps and, the brotherhood as a male support system—
with special attention to how women are made subjects and not members
of the police culture.
Theoretical Overview
In "Women as Women in Law," MacKinnon (1987: 71) observed:
that women, in sex discrimination law and in the experience
of lawyering, do not exist as we, as women, see ourselves.
In these spheres we do not find women from women's point
of view. We do not have women for ourselves, women for
all women, women as members of a community of interest
Catherine Orban is an Assistant Professor at Virginia Wesleyan College in Virginia. Her
current academic interests include the situational experiences of women in policing,
gender studies, criminology, global sociology and a critical perspective of the criminal
justice system.
CHAPTER
8
174 Criminal Justice System
of women, women measured by standards that reflect the
experience and aspirations of women as such. We are not
allowed to be women on our own terms.
To fully appreciate women's experiences in male-dominated occupations,
it is appropriate to clarify the structures that continue to marginalize women's
status despite government equal opportunity initiatives. According to
MacKinnon (ibid.):"... for the purposes of sex discrimination law, to be a
woman means either to be like a man or to be like a lady. We have to meet
either the male standard for males or the male standard for females." An
analysis of female experiences in male-dominated occupations reveals a
patriarchal reality that identifies women as subjects manipulated by patriarchal
forces. As Smith (1979:112) cogently notes:
the female role in patriarchy rapidly yields a superstructure
of coercion identifiable in the intellectual, social, and political
spheres .... For, patriarchy's most obvious definition of woman
—the female body—encompasses all women regardless of
their beliefs, sympathies or affiliations and so subjects all
women to its oppressive forces.
Policewomen occupy a volatile position within their occupation. Police
work has traditionally been viewed by society as a blue-collar occupation
wherein masculine men work. Policemen are seen as "crime fighters"
(Griffiths et al., 1989: 154). Martin (1983: 89) suggests that"... working in
an all-male environment reinforces the notion that [women] are doing 'men's
work'...". Furthermore, the incorporation of women into policing threatens
men's identity. Martin and Jurik, 1996:65-66) articulate:
Women's presence also undermines the solidarity of men's
group by changing the informal rules by which officers relate
to and compete with each other. The world of the men's
locker room is filled with crude (sexual) language and talk
focused on sports, women's bodies, and sexuality that fosters
men's bonds based on normative heterosexuality.
Likewise, Hunt (1990: 15-16) argues that:
Male resistance to women can therefore be viewed as an
attempt to preserve the myth which not only legitimates police
SOCIAL JUSTICE FOR WOMEN 175
•work in the public eye but also affirms the policeman's identity
as a man.
Breaking into a male occupational culture becomes a frustrating experience
for many women. Women face conflicts between their femininity and the
masculinity of the workplace. Women actively negotiate their occupational
status with "a culture that celebrates masculinity and devalues women, and
women's changing self-images as they struggle with doing 'men's work'"
(Martin, 1983: 248). Women will do everything possible in order to gain
the approval of the administration and male co-workers.
Women become subjects from the first day they enter the police force.
The occupational role of policewomen is constrained by a patriarchal
organizational structure that employs coercive mechanisms of gender
control. As an instrument of gender control, occupational socialization
perpetuates the status quo of the male patriarchal police culture. Police
recruitment and training become the foreground in which the police
institution can exercise coercion and control over the female body.
For many women entering the workforce, the ambition of "breaking
away" from stereotypical jobs slated for women guided them to male-
dominated occupations, such as policing. Henry (1993:12) in her portrayal
of one policewoman's experience of ambition states:
Ambition was experiencing more, and saying, as a grown
woman, 'I -want more.' 'For me,' Andrea said, 'police -work
was independence, life on my own, a man's salary—a salary
I could live on. What had been available to me before was
the world of secretaries and clerks—and small pay checks.'
In Andrea's case, Henry (ibid.) explains: "[her ambition] improved her
environment and let her pursue the elusive American dream—the dream
of finding a better quality of life for herself and her family." Subsequently,
a woman's ambition of living out the American dream is tainted by gender
struggle linked to patriarchal lineage. Policewomen's experience is
embedded in patriarchal reality.
In this discussion we move beyond traditional rhetoric imbued in equal
opportunity plans that have masked the illusory nature of patriarchal
orthodoxies. Instead we focus on de-constructing the nature of gender
control in the occupation of policing, that which is made invisible in equal
opportunity discourse. Within this context the question arises: Why do
176 CriminalJustice System
policewomen subject themselves to socialization and gendering practices
that reproduce male domination? In other words: How is it that human
rights legislation pertaining to gender discrimination and sexual harassment
can be successfully implemented when the very structure in itself and
what it is targeting is infested with patriarchal lineage? How is social justice
to be upheld when the nature of justice is misogynist, homophobic and
racist? In order to answer this question, we must examine the occupational
and organizational structure of policing.
The Research Study
First, the motivation behind my research was sparked by the dearth of
Canadian scholarship on policewomen (Linden and Minch, 1982; Linden,
1984; Martin, 1983). Second, there is also a striking absence of qualitative
research methods in the examination of the female role in male-dominated
occupations. It is imperative to balance the quantitative methodology of
mainstream sociology with more qualitative methods. Foremost, we must
be vigilant with the application of patriarchal sociological practices that
rely on heavily objectified information gathered from census data,
demographic data and statistics. Thes e so-called "objectified" facts are pivotal
in obliterating human experience or trivializing social reality to just simply
"a matter of fact" knowledge. As Smith (1990: 4) explains, "patriarchal
sociology from the standpoint of women's experience ... alienates and
occludes the standpoint of experience." My work addresses the absence of
sociological research in the area of women in policing in Canada, and it
elucidates the lived in perspectives of policewomen.
Research for this study took place over a eight-month period between
. 1995 and 1996, and involved formal interviews with 25 policewomen. A
blanket guarantee of anonymity was equally maintained for all participants.
The data were gathered from a cross-sectional sample of female police
officers whose length of service varied from one to twenty-one years. The
participants' rank ranged from fourth-class constable to superintendent of
the police service. Data were collected from nine Canadian cities within
three types of policing—municipal, provincial and federal agencies. The
researcher completed approximately 570 hours of observation in police
officer interaction or four years of auxiliary police officer service. The sample
was collected by a "snowball" technique that generated leads to well-informed
contacts. The snowball technique gave the researcher a wide territory to
tap into. The primary objective in this exploratory study was to record the
SOCIAL JUSTICE FOR WOMEN 177
knowledge of women's experiences in a non-traditional occupation and to
draw upon those experiences by addressing two recurring issues concerning
women. This research clarifies a number of generic processes to which
systemic gendered discrimination occurs within the occupation of policing.
For the purposes of this paper, I will focus on two patriarchal forces that
invoke the participation of consensual male members and female subjects—
the esprit de corps and the brotherhood.
Discussion: The Nature of Gender Control in the
Occupation of Policing
The occupation of policing has been dominated by men since 1829
when Sir Robert Peel "established his London Police Force the beginnings
of the now-famous 'bobbies', to deal with street crime" (Forcese, 1992:
15). Sir Robert Peel's "urban policing" developed out of the military
organizational model. Today, the hierarchical chain of command that has
been around since its inception still remains intact. Organizationally and
occupationally, the structural features of policing symbolize an institution
that celebrates the male culture. Training, discipline and rank designations
are the fundamental tools of patriarchy that are responsible for cultivating
a heterocentric, homogeneous, white male culture.
The social organization of policing consists of occupational and
organizational rules of procedures and regulations; a set of expectations
that demands compliance to the patriarchal social code of conduct. The
social disciplining of its officers is largely carried out by social regulations
which are built into the structural features of the institution of policing.
From the moment new members enter the police force, they are disciplined
to adhere to not only occupational norms but also organizational values.
Individuals who join a paramilitary structure such as the police force are
groomed to accept authority and are prepared to exercise it by executing
their duties and responsibilities. Both men and women learn the dosand
don 'ts of police officer behavior through various socialization sites. Although
both men and women must conform to the expected standards set by the
police organization, policewomen must take on additional social codes of
conduct. Upon reflection on their experiences, policewomen saw their
place in the occupation of policing as one of "paying the dues" that went
along with working in a male-dominated occupation. Breaking into the
male police culture and women's compliance to the dominant values will
be discussed in the remainder of this paper.
178 Criminal Justice System
To begin with I would like to discuss women's social reality in terms of
the reproduction of dominant values in the workplace. In modem capitalist
society, hegemonic images of gender roles (male/female, masculine/
feminine) prevail " ... in the ongoing construction of social institutions"
(McCall, 1992: 838). Throughout the history of work, there has always
been a distinction between "men's work" and "women's work" (Bridges,
1982; Mackie, 1987; Armstrong and Armstrong, 1990). Police work is no
exception to this distinction—police work is viewed as "men's work". Police
work is stereotypically portrayed by the media as "bang, bang—shoot'em
out" and "get your bad guy" through physical altercations—known as male
machismo. A macho image revolves around men doing police work; an
image that does not include women as protector's or as keepers of the
peace.
Esprit De Corps
The nature of police work is reflected in the contradictory roles police
officer's must assume as law enforcers, peace keepers and social workers.
The time and personal effort demanded in doing police work is always
challenged by the emotional duress police officer's face when going to
critical calls, such as a violent death or a death of a young child. In police
work there are various highs and lows. Stagnate and critical times can be
both trying emotionally and stressful. Overall, police work is a distinct
occupation that is alienating. From the moment men and women enter the
occupation, they are socialized to the organizational values that embrace—
esprit de corps.
The social structure of the occupation of policing reinforces the notion
of conformity in its officers through the ideology of the police organization—
the esprit de corps. The police organization demands an ideology which
indoctrinates recruits to quickly uphold the status quo. In the reproduction
of patriarchal values in the workplace, the police organization relies heavily
on consensus—subordination of its male members and female subjects to
authority and uniformity in carrying out a set of standard rules and
procedures—that embraces the structural features of the organization.
Esprit de corps not only emotionally and spiritually connects police
officers to other police officers, it also bonds police officers to the
organization. It becomes the individual and the individual becomes an
expression of the ideology of the police culture. Esprit de corps—a feeling
of shared pride and honor—is experienced by the police officers.
SOCIAL JUSTICE FOR WOMEN 179
For the most part, esprit de corps is generally felt by all police officers.
From an analysis of the interviews, policewomen do feel empowered by
the esprit de corps. Policewomen are proud of wearing the police uniform
and preserve a sense of honor when doing police work. The following
citations demonstrate that policewomen have not removed themselves
from these dominant values. In fact, they have learned that their support
structure will not be the community but their work peers as the following
remarks indicate:
It can be a very lonely world, if you're not accepted. A lot of
policing should be about team work. You can't do it on your
own. You can do a lot of things by yourself, but optimally
you want the team behind you. Because if you get into a
sticky situation, you want to know that cavalry that you work
with is going to come running to save you.
When I put on the blue uniform I am a police officer. I'm
not a female police officer nor a male police officer, I am a
police officer. When I have that uniform on I represent
everyone in uniform.
Yes, "when I "wear the blue shield I do change. The uniform
doesn't change me. I was developed. From the day you
became a police officer that is when you are socialized, you
in other words are de-programmed. Your morals will change
first, and then you will adapt to the structure, the system.
You find out that your support structure will not be society
but your work peers.
The philosophy is—you come, they knock you down,
and then they build you up. When you get there [the academy
or the police training center] your given brown polyester
pants and you "wear running shoes until you earn your
marching orders and the blue pants. You wore the brown
pants and 'ran' everywhere, you "weren't allowed to walk. So
by the time you got your marching orders and got the pants,
you were so proud of them—like you've earned them.
From the moment women enter the academy, they are socialized to the
ideology of the organization—esprit de corps. The esprit de corps is reflected
in women's belief of what it means to wear the police uniform. To "prove
oneself is an additional social conduct that conjures conformity in its female
subjects. The belief maintained by women that wearing the uniform gave
them an esprit de corps was actually "earned" at the police academy.
180 CriminalJustice System
The Brotherhood
The expectations of the police organization are strategically structured
to create a consistent public image. Team work, professionalism,
trustworthiness, and achieving a personal best reflect the values of the
police organization. The uniformity of public image is regulated by members
that have already paid their dues; disciplined members who have become
emissaries of the patriarchal system. As the following comments indicate,
women learn from the beginning of their police career that the support
structure is not found in the public sphere but within the male police
culture.
The organization will accept women so long as they're not a
threat to the regime. And if they are a threat to the regime,
they will be singled out and their lives will be made miserable.
The first couple of years all the guys don't know if your
going to cut it, don't know how your going to react in a
situation where maybe they need you to save their backside.
So they're a little cautious around you. They don't know
what your techniques are going to be, because in policing
reality is that not everyone goes by the book.
The ethos of esprit de corps crosses the line of gender exclusion. Women
are expected to conform to obedience and authority in both the organization
and the occupational subculture.
The police academy offers a wide spectrum of activities that introduces
the new recruits to the values of the organization. After the new recruits
have completed their training time, they are assigned to a platoon. The
recruit is then assigned a coach officer, usually a senior police officer who
will train him or her in the "reality" of police work. At this point, the new
recruit will learn the importance of the esprit de corps and additional
appropriate officer behavior from the experienced police officer. Male
recruits will be introduced to the "brotherhood," while female recruits will
learn their place in the male police culture. Female police officers will
structure their experiences according to the occupational and organizational
structure. As Kanter (1977, 1979) argues, women in non-traditional
occupations are seen as tokens of the organizational structure. Male co-
workers portray these women as token subjects who are a numerical
representation for affirmative action policy.
Men will gain acceptance into policing at a rate more quickly then
women—the process of proving oneself for men is confined to what could
SOCIAL JUSTICE FOR WOMEN 181
be called the "rookie period". In the early stage of a policeman's career, he
must prove to his colleagues and superiors that he is a capable human
being. This probationary period (six weeks of formal and informal peer
evaluation), however, is short-lived. Once the examination stage is over,
the male recruits are automatically accepted into the brotherhood. The
organization relies on the police subculture—the brotherhood—to preserve
a homogeneous membership. The brotherhood not only offers the men a
male support system in which they can exchange stories on women,
relationships, home life and the frustrations of police work; the brotherhood .
also affirms that policemen are doing men's work.
Women, on the other hand, will struggle throughout their police career
to gain the acceptance of the brotherhood. Women experience
marginalization from the brotherhood. This male network has been around
since the inception of policing and is made up of administrators and
patrolmen that promote the male culture. The brotherhood is a fraternal
club in which physical and moral support is selflessly given to all its male
members. Women's realization of the brotherhood is illustrated in the
following statement:
I think there is a lot of old boys club going on at [this station]
and there's a lot of problems that what they are doing is
preserving their image. If you're not in the old boys club,
they don't give a shit about you and they will treat you very
badly.
Women's past and present experience with gender repression and
subjugation within patriarchal structures defines their place in the dominant
male police culture. Policewomen are a minority in the organization. Women
become highly visible subjects in their respective departments; their visibility
will place them under the inspection of male co-workers. Consequently,
women feel they must prove to male co-workers and the organization that
they are competent in doing "male work." There is more pressure on
female officers to not make mistakes because of their minority group status.
Women "put-out" a personal best that exceeds the six-week probationary
period in which they continue accommodating themselves to the male
patriarchal police culture. As the following comments indicate, gender
capability is a behavior skill that policewomen must demonstrate to the
organization and the brotherhood in seeking acceptance.
182 Criminal Justice System
I "wanted to prove to them only in a professional way. I
wasn't going to do it by tokenizing myself. I wasn't going to
do it by compromising my personhood.... Anybody who
would say—oh who did you sleep with to get on the job.
That came with tokenism.... I wanted to prove to them in a
professional way by knowing my stuff.
I think the first challenge every female officer faces is the
challenge of being accepted. And the type of thing that -would
accomplish that would be a situation that arises at work
where you're handling it well, the situation goes through, all
the dust has settled—the guys look at the situation and go
allright she's okay. And it sickens me that is that way. But the
fact is—that's how it is for a woman. It takes proving yourself
before being accepted.... If that doesn't happen or something
happens that you can't prove yourself, then you're in for a
rough ride.
Yes, I think women just have to work harder. It's very
difficult to try to explain that in this profession. To this day,
I think that women have to work harder. Just from what I
see, the eyes are on you more as a female than as a male
from your peers, from the other officers, from the supervisors,
and even with the public. Can this woman cut it? It's less
likely that this woman is going to cut it than a guy, because
the job has always been very male dominated—and it's
considered quote "a guy's profession." And till this day, I
believe that this is still somewhat the perception. As a woman
you're not as quick to ask for a back up for the fear that their
perception of you may be—oh, your a woman, you can't do
it. Now again with experience and life skill, that has maybe
changed.
Women intentionally downplay their gender because of the underlying
threat of being labeled a token female (Kanter, 1977). Policewomen under
pressure are compelled to accept institutional core perspectives
"incorporating values, attitudes, and views" (Salaman, 1974: 15) of the
patriarchal police structure. Women's compliance to normative expectations
is viewed in the context of conformity to patriarchal rules in order to secure
gender approval. However, to be accepted by the organization and male
police culture meant indoctrination into a closed membership that would
only, be open to male members. For the women this meant being recognized
by male colleagues as a police officer not just a token female or a woman
trying to do a man's job. These women will confront being labeled "token"
SOCIAL JUSTICE FOR WOMEN 183
female by demonstrating their skills and capability in doing "male work". In
pursuing this potentially self-destructive agenda, these women will yield
their identity and personal liberty to the male culture in order to achieve
the approval from the male rank and file.
A Critical Insight
In policing, the nature of gender control is revealed in both the esprit
de corps and the brotherhood. The dialectical relationship between the
esprit de corps and the brotherhood serves to marginalize women's status
in the occupation of policing. The agency that upholds the status quo is
the esprit de corps and the agency that reinforces homogeneity in its male
members and female subjects is the brotherhood. These two agencies co-
exist as a celebration of the male culture. These apparatuses of patriarchy
demand consensus from its female subjects. The male police culture
provides for an environment in which deindividuation will successfully occur
in this agency of gender control. The process of deindividuation is more
likely to occur in a group of male police officers than female officers.
Deindividuation is a process in which individuals, while in the presence
of others, will lose their inhibitions. The loss of these restraints will prompt
individuals within this group to execute an anti-social or pro-social behavior
(Zimbardo, 1970). The presence of others in the group can cause an
anonymic condition to occur within the group/subculture. Persons within
this group are not easily distinguished from one another because of a lack
of individual features or character. Women's sex-role identification will
marginalize their status within the male police culture. Because women are
few in numbers in the occupation of policing, this situation makes them
highly visible and vulnerable to institutional and public scrutiny. Although
men are disciplined members of the patriarchal system, group size and
activity will weaken an individual's fear of social evaluation from others in
anti-social or pro-social behavior (Prentice-Dunn and Rogers, 1983:159-
167). The neutralization of identity plays an instrumental role in socializing
police officers into the police organization. The point made here is that
male officers do not fear as much of the social evaluation from administrators
or peers because they share a common sex-role status; male bonding or
male celebration occurs in order to unite the male subculture. Men's sex-
role identification endows them with a privileged status, an inherited
acceptance into the police culture. Whereas policewomen are bequeathed
with a lesser occupational status then their male colleagues; women will
184 CriminalJustice System
struggle to earn an acceptance in the male police culture. Because of their
marginal status, they will remain outside the brotherhood.
The perpetuation of a gendered hierarchy is manifested in the
organizational and occupational structures that invoke the participation of
consensual male members and female subjects. Canadian figures show that
women make up 7.5 percent of the total police officers (Walker, 1993)-
Also the majority of women occupy positions of lesser rank than their male
colleagues. The organizational ideology of esprit de corps and the
brotherhood oversees women's occupational status in policing. While
embracing the ideology of the police culture, policewomen look for
approval of their sex based on their capability and skills. Women want to
be a part of the team. Women will subject themselves to socialization
practices in return for acceptance into the occupational culture. However,
for policewomen to be accepted into the male culture, it means the male
acceptance of differences. The esprit de corps reinforces the ideology of
patriarchy, that which is reflected in obedience to power, authority,
homophobia and the subjugation of women. The brotherhood reinforces
male collegiality, heterosexuality and trust among male members. To gain
the trust of male co-workers, women will struggle with the process of
being accepted throughout the course of their career in policing. Because
women today are still the minority in police departments, they will continue
to be marginalized until those mechanisms of gender control are replaced
with more impartial techniques of administration. In response to equal
opportunity plans administered by organizational committees and to re-
iterate MacKinnon's (1987:71) discussion on women in sex discrimination
law and in the experience of lawyering notes: "let us be women on our
own terms. Welcome difference that women bring to male-dominated
occupations. Let women be judged on what they engender to the
occupation. Difference is a benefit to the organization and occupation. In
order for social justice to occur—let us begin 'with our "habitus" or place of
being."
Discussion Questions
1. Does increasing the hiring numbers for women reduce or eradicate the
marginalized gap between female and male police officers? In other
words, can policewomen achieve equal status of their male
counterparts?
2. Define patriarchy? Can men experience patriarchal oppression? Discuss.
SOCIAL JUSTICE FOR WOMEN 185
3. Why do policewomen subject themselves to the gendering practices
that support male domination?
4. Applying a critical perspective, evaluate a human rights legislation in
terms of its plans and initiatives. Discuss both problems and prospects.
5- What kind of pro-active strategies can be implemented in order to protect
women and other minority members from discriminatory practices in
hiring and promotion? Define minority subjects? Who are they? Choose
a problem site and evaluate your strategies.
Endnotes
1
 We define patriarchy as an ideology that is ubiquitous—from the social
institution of the family, the educational system, the legal system to the
occupational structure of work sites.. These patriarchal structures function
to reproduce inequality and the division of labour (MacKinnon, 1982; Burstyn
and Smith, 1985; Maroney and Luxton, 1987). Its features are structural and
situationally experienced. Both men and "women "will experience patriarchy;
however, the patriarchal forces will have a detrimental impact on "women.
The concept of patriarchy is defined as "the totality of male domination
and its pervasiveness in women's lives" (Smith, 1993: 314). Control and
power are at the root of patriarchal values. French (1985: 91) states: "The
positive accomplishment of patriarchy ... "was to make men central (and
women marginal) to human life." The ideology of patriarchy or patriarchal
values not only stratifies "the status" of gender but also of race, class,
culture and sexuality (ibid., 112).
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The Justice Debate:
A Developmental Perspective
Ronald Stansfield
Number College
Andrea Lewis
Introduction
The justice debate can be characterized as a debate between criminal
or retributive justice and social or restorative justice. This article attempts
to link these two models to underlying structures in human consciousness,
and by doing so, argue that retributive justice is an archaic and regressive
form of justice reasoning whereas restorative justice is an innovative and
progressive form of justice reasoning.
The Spectrum of Development
By combining the Eastern contemplative tradition with the Western
developmental tradition, Wilber (1980; 1986a; 1986b) has constructed an
overall "spectrum of development" that describes the basic structures of
consciousness. The development of consciousness in the individual (i.e.,
ontogeny) and the evolution of consciousness in our species (i.e.,
phylogeny) are related according to the principle that ontogeny recapitulates
phylogeny (Arieti, 1967; Piaget, 1971; Donaldson, 1978; Habermas, 1979;
Wilber, 1986a). More simply, individual development is a modified
recapitulation of the evolution of our species.
1
 Beginning in sub consciousness
(i.e., the body), the spectrum progresses to self-consciousness (i.e., the
Ron Stansfield is a Professor at the Centre for Justice Studies at Humber College. He is
the author of two texts and co-author of another. He has written numerous articles and
presented at conferences throughout North America and Europe. Prior to becoming an
academic he worked as a police, probation and parole officer, His research interests
include future trends in justice and policing.
Andrea Lewis is a graduate of the criminology program at the University of
Toronto and the Advanced Certificate injustice Studies at Humber College. She is also
a volunteer probation officer and is planning to attend law school. Her research
interests include social justice issues generally and restorative justice more particularly.
Also, she enjoys working with spinal cord injury patients.
CHAPTER
9
Criminal Justice System
mind), and culminates in superconsciousness (i.e., the spirit) (Figure 1).
Subconsciousness, or the physical level, is characterized by basic instincts,
emotions and feelings; self-consciousness, or the mental level, is
characterized by logic, reason and verbalization; and superconsciousness,
or the spiritual level, is characterized by self-transcendence, timelessness
and enlightenment.
Figure 1 :
Level
1
2
3
4
5
6
7
8
9
The Spectrum of Development
Ontogenetic
(Wilber)
Sensoriphysical
Phantasmic-emotional
Representational mind
Rule/role mind
Formal — reflexive
Vision — logi c
Psychic
Subtle
Causal
(prenatal-6 mth)
(6 mth-2 yr)
(2-7 yr)
(6-8 yr)
(11-1 5 yr)
(21 yr- )
(25 yr- )
(28 yr- )
(35 yr- )
Source: Wilber (1986b).
As consciousness develops in the individual so do other structures. For
example, Piaget (1971) demonstrated that cognition develops through a
series of levels that begins with the sensorimotor level, continues with the
preoperational and concrete operational levels and culminates in the formal
operational level. Similarly, Maslow (1970) demonstrated that self needs
are organized in a hierarchy that begins with physiological needs, continues
with safety, belongingness and self-actualization needs and culminates in
the need for self-transcendence. Especially noteworthy is Kohlberg's (1976)
finding that moral sense or justice reasoning begins with heteronomous
morality, continues with individualism, instrumental purpose, exchange,
mutual interpersonal expectations, relationships, interpersonal conformity,
social system, conscience, social contract and utility or individual rights and
culminates in universal ethical principles.
190
THE JUSTICE DEBATE
The Spectrum of Justice Reasoning
There are a total of three levels and six stages of moral development
or justice reasoning (Figure 2) (Colby and Kohlberg, 1987). In its simplest
formulation, moral development begins with preconventional reasoning,
progresses to conventional reasoning and culminates in postconventional
reasoning. Preconventional reasoning "is the level of most children under
age 9, some adolescents, and many adolescent and adult criminal offenders
(ibid.: 16)." It consists of two stages that are characterized by punishment
and obedience, and instrumental hedonism, respectively. Conventional
reasoning "is the level of most adolescents and adults in American society
Figure 2: Stages of Moral Development
LEVEL STAGE
1 1
Preconventional Heteronomous morality
(i.e., punishment/ obedience)
1 2
Preconventional Individualism, instrumental purpose
and exchange (i.e., naive hedonism)
2 3
Conventional Mutual interpersonal expectations,
relationships and interpersonal conformity
(i.e., approval of others)
2 4
Conventional Social system and conscience
(i.e., law and order)
3 5
Postconventional or principled Social contract and utility
or individual rights
3 6
Postconventional or principled Universal ethical principles
Source-. Colby and Kohlberg, 1976.
191
192 CriminalJustice System
and in most other societies" (ibid.). It consists of two stages that are
characterized by interpersonal conformity and law and order respectively.
Postconventional or principled reasoning "is reached by a minority of adults
and usually only after the age of 20-25" (ibid.). It consists of two stages that
are characterized by social contract and a commitment to universal ethical
principles, respectively.
As well as the various levels and stages of justice reasoning, Colby and
Kohlberg (1987: 24) note that there are four basic types of justice problems:
The first problem is one of distributive justice, that is, the
way in which society or a third party distributes "honor,
wealth, and other desirable assets in the community." This is
done in terms of such operations as equality, desert, or merit
(i.e., reciprocity defined in terms of proportionality) and,
finally, equity in light of need or extenuating circumstances.
The second type of justice problem is commutative justice,
which focuses on voluntary agreement, contract, and equal
exchange. A third and closely related type of justice problem
is corrective justice, "which supplies corrective principle in
private transactions" that have been unequal or unfair and
require restitution or compensation. In addition, corrective
justice deals with crimes or torts violating the rights of an
involuntary participant and in this sense requires restitution
or retribution ... a fourth type of justice problem that is not
independent of the other three just mentioned ... is the
problem of procedural justice, which must be addressed in
issues of distributive, commutative, and corrective justice.
(Italics added)
An implicit feature of the idea that there are different types of justice
problems is the notion that there are different types of justice solutions.
This is important because it creates the possibility that justice solutions will
be out of phase with the justice problems they are intended to solve. For
example, building more prisons (i.e., a corrective justice solution) will not
solve the problem of the unequal distribution of material wealth in society
(i.e., a distributive justice problem). Rather, distributive justice problems
(e.g., social inequality) require distributive justice solutions (e.g., redistribution
of wealth) and corrective justice problems (e.g., high crime rates) require
corrective justice solutions (e.g., building more prisons).
THE JUSTICE DEBATE 193
When considered as a whole, the stages of individual moral development
constitute a continuum or spectrum of justice reasoning. The existence of
a spectrum of justice reasoning has important implications for our
understanding of abstract ideas such as justice. For example, there is an
implicit assumption underlying the current justice debate that justice is a
static structure, that is, what constitutes justice is fixed and determinate and
therefore unchanging. In contrast, the spectrum approach suggests that
our ideas about justice are inherently dynamic and develop and evolve as
individuals and societies move through the various levels of the spectrum
of development.
Also, when the spectrum approach is applied to large groups such as
an entire society, invariably there is an average mode (i.e., the mode of
justice reasoning shared by most members of society), a leading edge (i.e.,
the mode of justice reasoning shared by progressive members of society),
and a trailing edge (i.e., the mode of justice of reasoning shared by regressive
members of society). This ensures that there will be conflict that will manifest
as debate between the progressive and regressive elements in society
about how to achieve justice. As we will see below, this debate finds its
expression today in the conflict of ideas that exists between advocates of
criminal justice and restorative justice.
Criminal Justice
The idea that justice can be achieved through retribution is deeply
rooted in Judeo-Christian culture. Indeed, some of the earliest known Judeo-
Christian writings equated justice with retribution. For example, Mosaic
Law provided that:
Whoever strikes another man and kills him shall be put to
death. But if he did not act with intent, but they met by act of
God, the slayer may flee to a place which I shall appoint for
you. But if a man has the presumption to kill another by
treachery, you shall take him even from my altar to be put to
death....
2
This passage from the Old Testament expresses the relatively ancient idea
that crime must be punished and, by extension, that retribution is justice.
Mosaic Law also provided that punishment should be proportional to the
seriousness of the crime; so, for example, justice demanded a "life for life,
194 CriminalJustice System
eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn,
wound for wound, stripe for stripe."
3
Insofar as Mosaic Law emphasized the use of proportional punishment
and retribution to achieve justice, justice in the Old Testament was at stage
1 in the spectrum of justice reasoning (i.e., heteronomous morality). Colby
and Kohlberg (1987: 26) note that corrective justice at stage 1 "tends to be
retributive and based on strict reciprocity ... moderating circumstances such
as intentionality are not incorporated."
The passage of several millennia has produced important changes in
how justice is accomplished: death by torture has been replaced by death
by execution, imprisonment in penal colonies has been replaced by
imprisonment in prisons, and trial by ordeal has been replaced by trial by
evidence. Careful analysis of the contemporary American justice system
reveals that it functions at level 2 (i.e., stages 3 and 4) of the spectrum of
justice reasoning. For example, the current preoccupation with "notions of
impartiality in application of the lav/ and corrective action as protecting
society through deterrence, by removing threats to society..." is characteristic
of stage 4 of the spectrum (Colby and Kohlberg, 1987: 29). Similarly, the
requirement that capital punishment is justified only if it is not cruel and
unusual punishment is characteristic of stage 4.
An implicit feature of the criminal justice paradigm is the idea that
human beings are separate, isolated individuals distinguished by our
differences. It follows from this idea that because we are separate and
isolated, we need to be protected from others that might hurt us and when
the "others" hurts us, they must be punished for their crimes. As a result,
criminal justice advocates urge us to hire more police to keep us safe, build
more prisons to imprison those who offend us and impose stiffer penalties
to deter those who would transgress against us. Predictably, this course of
action has produced the present situation in which the United States is one
of the few Western democracies that retains the death penalty for ordinary
crimes (Amnesty International, 1989) and was one of only ten countries
worldwide that executed more than 50 people between 1985 and mid-
1988 (Figure 3). The United States also incarcerates large numbers of the
its population. For example, in 1986 the United States incarcerated
Americans at a rate of 336 inmates per 100,000 population—higher than
any other country in the world (Figure 4). It also has one of the highest
police to population ratios of any country in the world (Figure 5).
In each of these respects, the United States demonstrates a
commitment to the use of punishment to achieve retribution and effect
THE JUSTICE DEBATE 195
Figure 3: Countries Carrying out over 50 Executions Between 1985
and midr 1988
Figure 4: Prison Populations, Selected Countries, 1985
Source: Amnesty International, 1989: Appendix 17.
Source: Pease and Hukkila, 1990.
196 Criminal Justice System
Figure 5: Population per Police Officer, Selected Countries, 1984-85
justice. These features clearly identify the contemporary American criminal
justice system as operating at level 2, stage 4 in the spectrum of justice
reasoning. Colby and Kohlberg (1987: 2&-29) note that "(Corrective justice
at Stage 4 centers on the notions of impartiality in application of the law
and corrective action as protecting society through deterrence, by removing
threats to society, or by providing a means for the offender to 'pay a debt
to society.'"
Social Justice
An alternative to the criminal (i.e., retributive) justice model is the
relatively modern idea that justice can only be achieved by creating more
equity in society—social justice—and by building community—restorative
justice. One of the most memorable pronouncements of the social justice
philosophy was provided by Karl Marx when he declared: from each
according to his abilities, to each according to his needs.
4
 This recipe for
effecting justice—re-distributing the economic surplus more equitably among
the members of society—is a distributive justice solution.
i An important measure of social justice is social stratification which,
very simply, is the difference in wealth between the highest and lowest
strata in society. A comparison of the degree of social stratification in several
Source: Kurian, 1989: 565-567.
THE JUSTICE DEBATE 197
major industrialized countries reveals that the United States is less stratified
than a few countries (i.e., France and Australia) but more stratified than
most (i.e., Japan, West Germany, United Kingdom, Finland, Norway and
Denmark) (Figure 6).
Figure 6: Percentage of Total Household Income* Received by Top
10 and Bottom 20 Percent of Households in Selected
Western Industrial Countries, 1989.
Another important measure of social justice is social mobility—the
opportunity for individuals to move between social strata. One way that
social mobility can be attained is by transferring material wealth between
social strata by taxing elites and awarding benefits to the poor. A comparison
of the rate at which industrialized countries transfer wealth reveals that the
United States transfers the least material wealth of any country in a sample
of industrialized countries (Figure 7).
In each of these respects the United States ranks relatively low in its
commitment to distributive justice. These features clearly identify the
contemporary American social (i.e., distributive) justice system as operating
at level 2, stage 4 in the spectrum of justice reasoning. Colby and Kohlberg
Source: Lenski et. al., 1991:323
Figure 7: Poverty Rates* among Non-elderly Families, before and
after Taxes and Transfers, Selected Countries, Circa 1987
(1987: 28-29) note that at this stage of development distributive justice "is
based on a concern for impartiality, respect for social institutions such as
systems of authority and private properly, and considerations of social
merit or contribution to society."
Restorative Justice
Restorative justice is the corrective justice equivalent of social justice.
One of the earliest proponents of this point of view was Jesus:
You have heard it said, 'An eye for an eye and a tooth for a
tooth.' But I tell you not to resist an evil person. But whoever
slaps you on your right cheek, turn the other to him also. If
anyone wants to sue you and take away your tunic, let him
 have your cloak also. And whoever compels you to go one
mile, go with him two. Give to him who asks you, and from
him who wants to borrow from you do not turn away.
5
Source: Ross et, al., 1994: 113.
198 Criminal Justice System
THE JUSTICE DEBATE 199
This passage from the New Testament expresses the relatively modern
idea that justice involves caring, sharing, teaching and tolerance not
punishment and retribution; however, as Claassen (1996: 1) has noted,
Jesus was not advocating an abdication of responsibility for the injurious
actions of others but rather an assumption of responsibility:
What Jesus says suggests another way of responding "which
is often discounted because on the surface it sounds like the
responder becomes a 'doormat' and it includes the ridiculous
sounding idea 'love your enemy'. But it only sounds ridiculous
in the English language where we only use one word, love,
to cover the meaning of several Greek words. The Greek
"word in this text is from the root "word 'agape'. It does not
mean that Jesus expects one following his "way to have warm
and gushy feelings for the enemy. A more helpful translation
of the word 'agape' would be 'to be constructive'. So Jesus
is suggesting that the response to an injustice should be one
that is constructive.
Similarly, restorative justice was the model of justice used by the
Aboriginal people in North America, the Indigenous people of Australia,
the Maori of Aotearoa (New Zealand) and the Celtics of Ireland before
British colonization (Consedine, 1995; Bazemore andUmbreit, 1995). These
traditional pre-industrial cultures employed a restorative justice model
because they recognized the importance of maintaining peace and harmony
in their communities. This recognition was rooted in the belief that everyone
is a part of something greater, that is, people are interdependent not
independent. If one person disturbed the equilibrium, many -would
experience the negative effects—shame, anger and guilt. Therefore, it
-was more important to restore the balance than to retaliate against the
offender since retribution "would only create greater imbalance.
Recently, the ancient wisdom of Jesus and other pre-industrial peoples
has been re-discovered and revived under the rubric of restorative justice.
Generally, restorative justice advocates (cf. Claassen, 1996; Consedine, 1995)
argue that retributive justice has failed (see Appendix A) and that a new
justice model emphasizing the restoration of damaged or broken
relationships is needed. In particular, they argue that crime, very rarely, if
ever, only affects one or two people. As a result, the actions of one are the
responsibility of all, and all are needed to restore the balance and harmony
200 CriminalJustice System
within the community (Consedine, 1995). Promotion of healing is intrinsic
to the restoration of the community.
Marshall (1997) defines restorative justice as "a process whereby all
the parties with a stake in a particular offence come together to resolve
collectively how to deal with the aftermath of the offence and its implications
for the future." Similarly, Claassen (1996: 187-189) suggests that restorative
justice has eleven fundamental principles:
• Crime is primarily an offense against human relationships, and
secondarily a violation of a law (since laws are written to protect
safety and fairness in human relationships).
• Restorative justice recognizes that crime (violation of persons and
relationships) is wrong and should not occur, and also recognizes
that after it does there are dangers and opportunities. The danger is
that the community, victim(s), and/or offender emerge from the
response further alienated, more damaged, disrespected,
disempowered, feeling less safe and less cooperative with society.
The opportunity is that injustice is recognized, the equity is restored
(restitution and grace), and the future is clarified so that participants
are safer, more respectful, and more empowered and cooperative
with each other and society.
• Restorative justice is a process to "make things as right as possible"
which includes: attending to needs created by the offense such as
safety and repair of injuries to relationships and physical damage
resulting from the offense; and attending to needs related to the
cause of the offense (addictions, lack of social or employment skills
or resources, lack of moral or ethical base, etc.).
• The primary victim(s) of a crime is/are the one(s) most impacted
by the offense. The secondary victims are others impacted by the
crime and might include family members, friends, witnesses, criminal
justice officials, community, etc.
• As soon as immediate victim, community, and offender safety
concerns are satisfied, restorative justice views the situation as a
teachable moment for the offender; an opportunity to encourage
the offender to learn new ways of acting and being in community.
• Restorative justice prefers responding to the crime at the earliest
point possible and with the maximum amount of voluntary
cooperation and minimum coercion, since healing in relationships
and new learning are voluntary and cooperative processes.
THE JUSTICE DEBATE 201
• Restorative justice prefers that most crimes are handled using a
cooperative structure including those impacted by the offense as a
community to provide support and accountability. This might include
primary and secondary victims and family (or substitutes if they
choose not to participate), the offender and family, community
representatives, government representatives, faith community
representatives, school representatives, etc.
• Restorative justice recognizes that not all offenders will choose to
be cooperative. Therefore there is a need for outside authority to
make decisions for the offender who is not cooperative. The actions
of the authorities and the consequences imposed should be tested
by whether they are reasonable, restorative, and respectful (for
victim(s), offender, and community).
• Restorative justice prefers that offenders who pose significant safety
risks and are not yet cooperative be placed in settings where the
emphasis is on safety, values, ethics, responsibility, accountability,
and civility. They should be exposed to the impact of their crime(s)
on victims, invited to learn empathy, and offered learning
opportunities to become better equipped with skills to be a
productive member of society. They should continually be invited
(not coerced) to become cooperative with the community and be
given the opportunity to demonstrate this in appropriate settings
as soon as possible.
• Restorative justice requires follow-up and accountability structures
utilizing the natural community as much as possible, since keeping
agreements is the key to building a trusting community.
• Restorative justice recognizes and encourages the role of community
institutions, including the religious/faith community, in teaching and
establishing the moral and ethical standards which build up the
community.
In short, restorative justice emphasizes the use of cooperation, respect,
empathy and accountability to restore equity and effect justice. These
features clearly identify the restorative justice model as operating at level
3, stage 6 in the spectrum of justice reasoning. Colby and Kohlberg (1987:
32) note that at stage 6 corrective justice is based on dignity and respect
not retribution:
202 CriminalJustice System
Although punishment through either incarceration or
restitution is seen as necessary to protect the rights or •welfare
of potential or actual victims of crime through isolation or
deterrence, it is not retributive—it is not based on inflicting
suffering or death as "repayment" for demerit or immorality.
The offender is seen as a human being with human dignity
to be respected as far as this is compatible with justice
principles.
Predictably, because it represents a different and more advanced level
of justice reasoning, restorative justice often conflicts with retributive justice.
Whereas retributive justice emphasizes coercion, reaction, punishment and
restraint, restorative justice emphasizes cooperation, proaction, healing and
safety. Similarly, whereas criminal justice advocates urge us to hire more
police, build more prisons, execute more murderers, and sentence
Figure 8: Restorative Justice Contrasted with Retributive Justice
Cooperation Activity Goals
(Restorative)
Recognize the injustice
Restore/repair damages
Make changes for future
Heal individuals and
relationships
Teach/learn/value civility
Safety (based on
voluntary changes)
Voluntary accountability
Reintegration into
community
Source: Classen, R., 1996.
Coercion Activity Goals
(Retributive)
Safety (for duration of coercion)
Prevent chaos
Bring attention to problem
Impose logical consequences
Introduce/require listening to
importance and way of civility
Restraint to prevent harm to others
Introduce/require listening to impact
of crime on victims
Learn to handle conflict constructively
THE JUSTICE DEBATE
three- time offenders to life, social justice advocates urge us to hire more
teachers, build more schools, teach the value of human life and create
more jobs (Figure 9).
Figure 9: A Comparison of Criminal Justice and Social Justice
Strategies
Criminal Justice Strategies Social Justice Strategies
hire more police hire more teachers
build more prisons build more schools
execute murderers teach the value of human life
sentence three-time give everybody a job
offenders to life
Presently, restorative justice remains on the periphery of the justice
system, but it is gaining momentum. For example, the first victim-offender
reconciliation program (VORP) in North America was created in Kitchener,
Ontario in 1974. By 1986, 42 jurisdictions in North America had some type
of mediation program in place; by 1991,125 jurisdictions had VQRPs; and
by 1995,176 jurisdictions in Canada and the United States used mediation
(Umbreit 1986; 1991; 1995). More needs to be done in order for us as a
society to expect positive change. Restorative justice can enable positive
results, if and when it moves into the mainstream.
Conclusion
A classification of the criminal (i.e., retributive) justice and social (i.e.,
restorative) justice models according to the levels in Kohlberg's spectrum
of justice reasoning reveals that principles of criminal justice—judging,
punishing and avenging—derive from stages 4 and 5 (i.e., law and order
and individual rights) whereas the principles of social justice—caring, sharing
and tolerance—derive from levels 6 and 7 (i.e., individual principles of
conscience and universal spiritual). In short, the criminal justice model is an
archaic and regressive form of justice reasoning whereas the social justice
model is a modern and progressive one. While the future of justice is clear,
it is unclear when the future will arrive.
203
204 Criminal Justice System
Appendix A: Imprisonment: The Facts
1. The Poor go to Prison
Most offenders are disadvantaged, handicapped emotionally or
spiritually, immature or merely stupid. Very few are motivated by what
moralists of the older generation would call "the forces of evil" ... The
picture is to same in every westernized country in the world. The poor, the
dispossessed, the vulnerable, the sick and the addicted are those who fill
our prisons.
2. Imprisonment Increases Crime Rates
Prisons, long known as "universities of crime", are a primary place to
recruit new friends and new gang members, learn new criminal skills, plan
new crimes ... Most of the horrific crimes of rape and murder committed in
recent years have been carried out by ex-inmates. All prison did for them
was harden them in their attitudes, make them more bitter, and set them
up emotionally and socially to perform some horrendous act of violence.
Upon release they became walking time-bombs.
3. Imprisonment Brutalizes People
Any notion of self-responsibility is abolished upon entry. You are there
to do as you are told, when you are told. You lose most of the control of
your life and its direction ... Your senses are under attack-by noise, by
yelling from guards and inmates, televisions and radios going at all hours ...
Then there is tedium and boredom, the real killers in our prison system ...
As such it is a real form of structural violence. Then there is the physical
violence ... The macho culture of the prison sees to it that few people
'escape its all-embracing effects ... That we need riot squads, to quell
disturbances and violence, as part of our prison policy is merely indicative
of how violent prison can be.
4. Imprisonment Wrecks Relationships
Thousands of families have a partner torn from their midst and
imprisoned every year ... For the one imprisoned this means the heart-
wrenching effects of being isolated from spouse and children, and the fear
of never quite knowing what they are doing at any given time ... "Dear
John'' letters are no uncommon in prison. There is also the loss of
employment for many upon imprisonment. For the families left behind
the break can be more traumatic. There is a stigma attached to having a
THE JUSTICE DEBATE 205
family member in prison and some families have to become dependent on
the welfare system as a result. There is also the added stress of trying to
maintain a relationship when contact is limited to one hour a week; this is
providing the family can go visit. Many federal prisons in Canada are in
remote areas and some families do not have the resources to visit on a
regular basis.
5. Drugs in Prison
That drugs are readily available in prisons is known by all who live and .
work in them. If one did not already have a substance abuse problem
before entering prison, they certainly do when they leave. One of the
anomalies of imprisonment is that, it is the place where some inmates are
first introduced to drugs/They go in clean and emerge as addicts.
6. Prisons are Recruitment Grounds
There is no better recruitment area for criminal behaviour and gang
and club membership than prisons ... More often, it is the heavy gangs,
well into criminal activity, who do the most recruiting. For example, the
rise of "white power" gangs in the community can be directly attributed in
part to the time spent in prison by members.
7. Deterrence is a Myth
One of the most frequent phrases heard from sentencing judges is that
the sentence to be imposed will help deter other offenders ... It is a concept
promoted by middle-class, educated people about themselves. They are
saying that the threat of imprisonment would deter others like them from
offending ... The recidivism rates tell a different story. For example, 46% of
youth in 1990-91 were recidivists
1
 and between 1975 and 1985 the Canadian
Sentencing Commission reported that: "... 60% of those released from
federal penitentiaries on mandatory supervision were readmitted. In that
same period, 49% of parolees found themselves back behind bars as well.
The Commission concluded that incarceration had little effect on the
reduction of crime.
2
8. Prisons are Expensive
Prisons are very expensive to run. There is real irony in the fact that
after little enough is spent on some youngsters by way of education, health,
clothing and shelter during their formative years, when they hit prison the
state becomes extremely generous. The cost/day for a federal inmate was
206 CriminalJustice System
$136.06 and for a provincial inmate, $115.16 in 1991-3 Of course, very
little of these amounts will be spent directly on the inmate. Most is spent
on prison administration, mainly in the form of corrections officers wages
(75% of total provincial expenditures and 65% of federal).
3
9. The Link between Crime and Unemployment
It is one of the most difficult things to prove, yet one of the most
obvious facts of life, that high unemployment breeds an increase in crime
rates ... Research M. H. Bremner found in both Britain and the United States
that for every 1 percent rise in unemployment there was a 4 percent rise
in prison admissions ... A government that stands back and allows market
forces to determine unemployment levels becomes a co-respondent in
the increase in crime that results. There is a clear link between government
policy on unemployment (allowing market forces to prevail) and rising
crime rates. The Globe and Mail reported there is an increase in spending
on prisons during times of financial hardships, like recessions.
4
10. The Prison System is Selective
If you are poor, under-educated, young, Aboriginal, unemployed,
unskilled or addicted to drugs or alcohol, you stand a very good chance of
ending up in prison (if you become enmeshed in the criminal justice system).
Conversely, if you are educated, skilled, middle-class, Caucasian, employed,
well paid and have stable family relationships, there is only a minute chance
of its happening. One example, is the high rate of imprisonment for non-
payment of fines. In 1990-91, fine defaulters accounted for 27% of all
sentenced admissions.
5
 From this it can be deduced that those who are
poor are more likely to be imprisoned for non-payment of fines than those
who have the resources to pay.
1
 Juristat, vol. 12, no. 2, pg. 1
2
 Rudin, pg. 1.
3
 Juristat, vol. 12, no. 22, pg. 2.
4
 23 February 1983, pg. A8.
50
 Juristat, vol. 12, no. 9, pg- 8.
Source: Consedine 1995; 30-38
THE JUSTICE DEBATE 207
Study Questions
1. Describe the main differences between retributive justice and restorative
justice.
2. Explain the relationship between the spectrum of development and the
spectrum of justice reasoning.
3- Explain the relationship between the spectrum of justice reasoning and
retributive and restorative justice.
4. Explain the relationship between corrective and distributive justice.
5- Explain the relationship between restorative and retributive justice.
6. Explain the relationship between restorative justice and social justice.
Endnotes
1
 Of course, ontogeny recapitulates phylogeny only in the most general ways
and not in every minute detail (Wilber, 1986a).
2
 Exodus 21:12-14
3
 Exodus 21: 22-25-
4
 Criticism of the Gotha Programme, Goteborg, Sweden, 1875: 29-
5
 Matthew 6:38-42.
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