Political Process and Crime
POLITICAL PROCESS AND CRIME
If politics is the authoritative allocation of values, then crime and politics are inextricably linked. Substantive criminal laws articulate, as do few others, the basic values of society. Agencies of law enforcement and the administration of criminal justice possess a near-monopoly on the legitimate use of violence, and exercise vast power in deciding whether and how to enforce the law. The criminal justice system is composed of a sizable set of government officials who together have an important impact on politics. The symbols of crime affect the nature of political promise and expectation.
Crime, morality, and public authority
Substantive criminal laws both reflect and reinforce the dominant morality in society. Many proscriptions of the criminal law are virtually universal and not politically problematic—for example, taboos against incest and prohibitions against murder and theft—yet consensual affirmation of these values reinforces existing structures of political authority. Other laws are not so widely accepted, and they reflect the power of dominant groups in society. But whatever the degrees of consensus about the substantive criminal laws, their administration is likely to be problematic and to pose problems requiring resolution through political processes.
At times, specific controversies in the criminal law are tied to larger concerns of political theory about the nature and function of the state. For example, classical liberal political theory (Mill) informs the position of those who oppose the prosecution of so-called victimless crimes, whereas another philosophical tradition embracing a broader role for the state underlies the arguments of those who would permit legislation proscribing victimless crimes (Devlin). For example, during a long period the common law accepted marriage and later the right to chastise as absolute defenses in criminal cases where men were charged with assault and battery of their wives. As such, these rules reinforced the dependence of women upon men. Similarly, the ways in which criminal laws were construed and enforced strengthened the institution of slavery and thwarted efforts to organize labor. Decisions to treat acts of political rebellion as "common crimes" rather than acts of conscience have also had the effect of defusing political opposition and reaffirming the authority of dominant elites (Balbus). The selection and administration of sanctions also reflect political considerations. In eighteenth-century England, policies to expand provisions for capital punishment, as well as nineteenth-century efforts to restrict them, were shaped by considerations of how best to enhance the authority of the Crown. In twentieth-century America, restrictions on capital punishment followed an increase in the political power of blacks. Criminal trials have also long been used to consolidate political power. Throughout history, and especially in the modern era, revolutionary regimes and military victors have mounted political trials to consolidate support and to brand opponents as common criminals (Kirchheimer).
The politics of law enforcement and administration
Law enforcement and administration are connected with politics on a number of levels. Dominant political theory and ideology affect the structure, organization, and expectations of a society's criminal justice institutions. In turn, these institutions affect the ways in which the criminal law is enforced and administered.
Political culture, theory, and ideology. Although the connection between political theory and ideology and concrete practice is neither direct nor always clear, the links are there, and to understand practices and institutional arrangements, one must appreciate the theoretical and ideological milieu that justifies and legitimizes them. Theories of authority and the nature and function of the state vary widely, and it is such factors that in part account for variations in concrete institutional practices in the criminal process. In this sense, social and political theory are at the root of the criminal process.
To illustrate, a major tradition in continental political theory and legal philosophy has emphasized the autonomous nature of the state and justified strong central authority (Hegel). This tradition stands in sharp contrast to the liberal democratic tradition of Great Britain and the United States, which has been intensely skeptical of authority, has celebrated pluralism, and has advocated the decentralization and fragmentation of power (Locke; Hartz). These differing traditions have influenced both the structure of and expectations about governmental institutions, including the criminal process (Tocqueville). The influences of American political thought on the criminal process are exemplified by the importance given to the rights of the criminally accused in the Bill of Rights, and by the tradition of local, decentralized administration of justice. The connections among ideology, political culture, and the criminal process in nonwestern and socialist countries are even more striking (Bayley; Li).
There are numerous other contrasts between Anglo-American and continental criminal justice that are related to the differing political traditions. A public criminal law as distinct from private tort law, public prosecutors in contrast to private prosecution by the victim, a national police force, and a comprehensive national judicial system—all signs of highly developed central authority—emerged much earlier and have evolved more fully on the Continent than in England and the United States. The American political tradition, in particular, has been intensely skeptical of central authority and strong positive government, and has resisted the penetration of remote political authority by means of the criminal law into the daily affairs of citizens. This has led to local control and local administration of criminal justice to a degree unheard of in Europe. In the United States, most major officials in the criminal justice system—judges, prosecutors, sheriffs, court clerks, and in a few jurisdictions, public defenders as well—are elected locally, a practice that is regarded by many continental observers as inconsistent with the ideals of evenhanded administration. Indeed, in the United States both the financing and the administration of criminal justice firmly remain a function of local (as opposed to even state) government. As a consequence, American criminal justice officials are expected not only to administer the law evenhandedly, but also to be responsive to their local publics, tasks that often foster irreconcilable tensions.
Contrasting continental with American views on plea-bargaining illustrates the importance of different traditions of theory and ideology in understanding the operations of the criminal justice system. In West Germany, for example, plea-bargaining is viewed with disdain as a practice that is only slightly short of corruption and one that would undermine the very authority and integrity of the state. In contrast, even though there is considerable debate over plea-bargaining, the practice is generally accepted in the United States as a valuable, if problematic, tool for flexible and efficient administration of justice. This and other practices, such as rules of evidence and the right to silence, must be understood in light of different traditions in political thought about the nature and authority of the state.
The administration of criminal justice. Because of its local orientation and the weakness of state and national governments, the administration of criminal justice in the United States has long reflected local political culture. Indeed, in America the history of the administration of criminal justice is primarily an aspect of the history of local governments. This history reveals how the styles, aims, and practices of the police and courts have varied according to local political influences. In the urban centers of the nineteenth and early twentieth centuries, such influence was direct and immediate. Those engaged in gambling, prostitution, loan-sharking, extortion, and the like often developed close ties with police and other public officials in order to ensure against investigation and arrest. Laws were also used selectively to control newly arrived immigrants, mediate tensions between contentious community groups, combat efforts to organize labor, and protect persons and property (Walker).
The distinguishing features of accounts of law enforcement officials in the nineteenth and early twentieth centuries are the unbridled use of discretion and the frequency of appeals to particularistic (as opposed to universalistic) values. Bribery, appeals to friendship, family and political influences, racism, and prejudice of all kinds served to lighten official responses to crime in some cases and to heighten them in others. Some accounts detail the routine and perfunctory nature of arrest and proceedings against the riffraff of the "criminal classes" (Friedman and Percival).
But even with the decline of widespread corruption and the rise of a full-time professional criminal justice system in the mid-twentieth century, local political culture continues to shape policies of law enforcement and administration. Although there is now little direct political influence on the day-to-day activities of the police and courts in most American cities, the type of political culture dominant in a community still significantly affects what types of police officials are recruited and what policies they pursue. In one community, police might routinely arrest everyone for whom there is probable cause, whereas in another they may negotiate among disputants, overlook some offenses, and the like. Such differences are systematically related to differences in political cultures (Wilson). Similar patterns are found in courthouses. Courts in reformed "good government" communities are less likely to embrace plea-bargaining and are more inclined to hand down harsher sentences than are courts in communities where traditional political machines prevail. As with the police, this is because officials with different backgrounds and experiences are recruited in the various types of communities (Levin; Feeley). For example, the styles, policies, and practices of police, prosecutors, and courts in the older, ethnically mixed industrial cities with traditions of well-organized local party organizations are quite different from those in the newer cities of the West, which have neither the ethnic mix nor the tradition of tight-knit party organizations.
It is a general proposition that policies of public-service institutions are formed and significantly shaped by those at the lowest level of administration. This proposition applies to the administration of criminal justice. The criminal process is an overdetermined system—there are more rules to enforce than resources for enforcement, the same conduct can be variously defined, even the most carefully drawn rules permit considerable leeway of interpretation, decisionmaking takes place in settings of low visibility, officials are charged with contradictory tasks, and there are few organizational devices for overseeing and supervising subordinates. As a consequence, law enforcement and administration are selective and discretionary. One result is that actual policy, the law-in-action, is shaped to a considerable extent by the adaptation of formal rules to individual values and by the organizational exigencies of those who are charged with enforcement and administration. Such factors go a long way toward accounting for the patrol, investigation, and arrest practices of police (Wilson; Skolnick), decisions by courts (Feeley; Vera Institute), and policies of prison administrators (Sykes).
This inevitability of discretion fuels the politics of the administration of justice. In their broadest form, these politics require selecting from a number of competing and antagonistic values emphasized by various agents of law enforcement and administration. One writer has constructed ideal types of clusters of values that compete for attention: the "crime-control model" emphasizes maximization of public safety through swift and efficient proceedings and reliance on expertise; whereas the "due process model" emphasizes the protection of individual rights, is skeptical of fact-finding by public officials, and requires careful, contested proceedings at each stage of the criminal process. Debate over these values, reinforced as it is with community expectations, limited resources, and the semiautonomous and antagonistic nature of various criminal agencies, constitutes the politics of the administration of criminal justice (Packer).
Practical politics and the criminal process
Prosecutors, politics, and patronage. In the United States, the criminal justice system serves direct practical political purposes as well. Owing to the salience of crime as a public issue and the visibility of their positions, many criminal justice officials use their offices as stepping-stones to higher public office. For example, a great many members of congress and governors have served as criminal prosecutors, and the mayors of a number of large American cities have been police chiefs.
To be effective, political organizations must have the ability to reward activists, and law enforcement and courthouse positions have traditionally been used for this purpose. These positions have been especially valuable because they provide security, high pay, and high prestige and often require little work. Studies of the classic urban political machines of the late nineteenth and early twentieth centuries reveal that various appointments in police forces and courthouses (from bailiffs to high court judges) were effectively used to reward supporters and induce loyalty to the local political organization. Although the expansion of civil service rules and the introduction of "good government" reforms have muted this practice, police and courthouse positions, which in many states are still exempt from merit selection rules, continue to be used as political patronage (Levin; Feeley).
Crime and symbolic politics. Historically in Western democratic societies crime and crime policy have not been a highly salient political issue in electoral politics. However, for a variety of reasons crime does emerge as a major political issue from time to time. In the early twentieth century in the United States, crime emerged as a major concern on the national political agenda, and resulted in the passage of several new federal criminal statutes, including prohibition, the Mann Act (prohibiting "White Slavery") and laws making bank robbery a federal offense, the establishment of the Federal Bureau of Investigation (F.B.I.), and the establishment of a Presidential crime commission (The Wickersham Commission). In the latter part of the twentieth century, crime again emerged as a salient issue in the United States and throughout Western Europe, and again it had a significant impact on the political process. Judges began to impose longer sentences and legislatures provided for still tougher sentences under determinate sentencing, mandatory minimum sentencing, truth-insentencing, "three-strikes" sentencing laws, and the like. Similarly, courts began cutting back on rules of criminal procedure, making it somewhat easier to secure convictions and impose the death penalty, which was a resurgence in the United States in the 1980s and 1990s, after near de facto abolition in the 1960s and 1970s. Some of these responses were brought about by a steadily rising crime rate during the 1960s through the 1980s, but the changes were sought by specific groups that were organized to press for them. Since the 1970s in the United States, prison guards and law enforcement organizations have been potent forces in political campaigns, providing substantial sums and endorsements to candidates who support "law and order" proposals. This issue dynamic first emerged on the national political agenda in the 1964 presidential race between Lyndon Johnson and Barry Goldwater, and has periodically resurfaced in presidential races since then. One of the most significant aspects of this development has been the rise of victims' rights organizations. Throughout the 1980s and 1990s, victims rights groups formed, often spearheaded by the family member of a victim of a serious crime, and for the first time victims as a group became a powerful political force. This unprecedented development has led to changes in several areas of the criminal law. One of the first such groups to form was Mothers Against Drunk Driving (MADD), which organized court-watch groups that put pressure on judges to convict those charged with drunk driving (rather than downgrade the charge) and impose stiffer sentences. Others followed in their wake: victims groups sought and obtained the right of victims to address the court at sentencing (the so-called victims' impact statement) and at parole, successfully lobbied legislatures for sexual predator notification law, changes in criminal procedure and rules of evidence to reduce the trauma for child victims and victims of sexual assault to testify in court. And beginning in the 1980s, in the wake of the assassination attempt on President Ronald Reagan, groups supporting gun control were energized and combined with law enforcement agencies to successfully lobby for stricter gun control legislation on both the state and national levels.
There are two quite different explanations for the emergence of crime as an electoral issue in the United States, Great Britain, and Western Europe. One holds that as crime increased, segments of the electorate and politicians responded by pressing for new policies to address the problems. However, another view holds that the issue is more complicated. Although the fear of crime is widespread and deep-seated, most citizens have limited direct personal experience with crime and the administration of criminal justice. Some argue that crime must be understood in terms of "symbolic politics" (Edelman). They hold that it is the combination of intense concerns coupled with limited direct experience that makes crime such a potent symbolic issue. This can be termed the dramaturgy of law and order. To illustrate, crime is a valuable political opponent. It is a universally despised enemy that has no defenders. At a societal level, crusades against crime serve to reinforce dominant cultural values and social solidarity (Erikson). At an organizational level, the intense emotional arousal that is generated over crime policies can be an important factor in binding voluntary organizations together (Gusfield). This theoretical perspective is nicely illustrated by a careful study of those who supported a particularly tough version of a "three-strikes" law adopted by voters in an initiative that provided for sentences of twenty-five years to life for those convicted of a third felony (Tyler and Boeckman). The authors of this study interviewed a random sample of voters to identify factors that predicted support for or opposition to this law. Support for these dramatically increased sentences, they found, was not associated with a belief that the criminal justice system had been too lenient. Those who thought the system was too harsh were just as likely to support this law as those who thought it was too lenient. Rather, the best predictors of support for the tough new law were those who felt that there was too much racial and ethnic mixing and conflict in society, and those who felt that authority in the family was diminishing. In short, these findings are consistent with the perspective of those who hold that much of politics, and especially the politics of law and order, is symbolic politics in the sense that crime (and other issues) may be convenient "condensation" symbols and proxies for insecurities of a more personal and direct nature (Scheingold). The success of this strategy, or at least the continued salience of crime and crime policy as an important issue in national politics, has led one observer to suggest that modern politics is the practice of "governing through crime."
A more straightforward approach might counter with the observation that crime and public safety emerged as a salient issue on the political agendas of North American and European countries in the late 1960s as crime rates escalated, and that since the mid-1990s it has begun to recede, after about a decade of declining crime rates. Perhaps, but one of the big changes that has occurred since the 1970s is the emergence of organized interest groups—and particularly victims rights groups—which have crime policy as their central if not only focus. In countries where single-interest groups can easily organize and flourish, such as the United States and Great Britain, this may lead to deep and permanent changes.
Crime and the political process are linked on many levels. Political theory, ideology, and culture foster expectations about the substance and form of the criminal justice system. The structure of political institutions shapes the structure, and hence the substance and administration, of the criminal law. Discretion, inevitable in an over-determined system, gives rise to the politics of administration. Local political organizations rely upon the criminal process for their support, and in turn the criminal process is shaped by them. The symbols of crime, law, and order shape political rhetoric and public expectation.
Malcolm M. Feeley
See also Assassination; Bribery; Crime Causation: Political Theories; Crime Commissions; Criminalization and Decriminalization; Criminal Justice System; Criminology: Modern Controversies; Fear of Crime; Mass Media and Crime; Public Opinion and Crime; Terrorism.
Balbus, Isaac. The Dialectics of Legal Repression: Black Rebels before the American Criminal Courts. New York: Russell Sage Foundation, 1973.
Edelman, Murray. The Symbolic Uses of Politics. Urbana: University of Illinois Press, 1964.
Erikson, Kai T. Wayward Puritans: A Study in the Sociology of Deviance. New York: Wiley, 1966.
Feeley, Malcolm M. The Process Is the Punishment: Handling Cases in a Lower Criminal Court. New York: Russell Sage Foundation, 1979.
Gusfield, Joseph R. Symbolic Crusade: Status Politics and the American Temperance Movement. Urbana: University of Illinois Press, 1963.
Hartz, Louis. The Liberal Tradition in America: An Interpretation of American Political Thought since the Revolution. New York: Harcourt, Brace, 1955.
Hegel, Georg W. F. The Philosophy of History (1881). Translated by J. Sibree. Prefaces by Charles Hegel and J. Sibree. New introduction by Carl J. Friedrich. New York: Dover, 1956.
Kirchheimer, Otto. Political Justice. Princeton, N.J.: Princeton University Press, 1961.
Li, Victor H. Law without Lawyers: A Comparative View of Law in China and the United States. Boulder, Colo.: Westview, 1978.
Locke, John. The Second Treatise of Government (1690). Edited with an introduction by Thomas P. Reardon. New York: Liberal Arts Press, 1952.
Mill, John Stuart. On Liberty (1859). Edited with an introduction by Currin V. Shields. New York: Liberal Arts Press, 1956.
Packer, Herbert L. The Limits of the Criminal Sanction. Stanford, Calif.: Stanford University Press, 1968.
Scheingold, Stuart. The Politics of Law and Order. New York: Longman, 1984.
Skolnick, Jerome H. Justice without Trial: Law Enforcement in Democratic Society, 2d ed. New York: Wiley, 1975.
Sykes, Gresham M. The Society of Captives: A Study of a Maximum Security Prison. Princeton, N.J.: Princeton University Press, 1958.
Tocqueville, Alexis de. Democracy in America (1835). 2 vols. The Henry Reeve text (translation) as revised by Francis Bowen. Further corrected and edited with introduction, editorial notes, and bibliographies by Phillips Bradley. Foreword by Harold J. Laski. New York: Knopf, 1945.
Tyler, Tom, and Boeckman, Robert. "Three Strikes and You're Out, but Why? The Psychology of Public Support for Punishing Rule Breakers." Law and Society Review 31 (1997): 237.
Vera Institute of Justice. Felony Arrests: Their Prosecution and Disposition in New York City's Courts. Rev. ed. New York: Longman, 1981.
Walker, Samuel E. Popular Justice: A History of American Criminal Justice. New York: Oxford University Press, 1980.
Wilson, James Q. Varieties of Police Behavior: The Management of Law and Order in Eight Communities. Cambridge, Mass.: Harvard University Press, 1968.