Special thanks to Carol V. Rose and Wilson A. Schooley for their dedicated work on this special issue of Human Rights on tough-on-crime legislation and its effect on society.
Deep in the heart of America is a visceral animus against injustice, especially when it is suffered by the powerless at the hands of the powerful. We hate unfairness to children, old people, and dogs. We abhor the heavy hand of authority inequitably wielded. Yet, despite our organic passion for mercy and fair play, we find ourselves riding into twenty-first century law enforcement on the dark horse of retribution. Like nineteenth century Wild West sheriffs, we have returned the aim of criminal law to retributive rather than restorative justice. The understandable rise of victims’ rights has meant—as though the two were on opposite ends of a teeter totter and must necessarily be inversely related—the fall of fair protections for the accused.
If this trend was both building and disturbing before September 11, in that tragedy’s aftermath it has only gained further momentum and legitimacy. Human Rights Watch says abuse in the name of anti-terrorism has become an international affliction. But the flash point was here in the cradle of liberty where we, of all nations, should know better.
Plainly, there are no easy solutions. Crime must be punished. Rights—the rights of all of us—must be protected. Ideally, there is a balance to be struck. We have moved very far, though, from the notion of hating the offense and loving the offender. The accused in America are often vilified by the media, the public, and the prosecution. In a recent high-profile case in California involving an undeniably horrific crime, two different radio station broadcasters independently announced the arrest of the accused, "which, of course, means he is presumed guilty." "Three strikes" laws have shut into our prisons more men and women than they can humanely hold and shut out rehabilitation. Thirty-eight of our fifty states kill those convicted of certain crimes. It appears our organic national decency toward dogs does not extend to fallible humans. In our new view, make a mistake, don’t get a break.
We may be at a crossroads, of a sort, on these issues. For example, as we go to press, the U.S. Supreme Court has granted certiorari in a Ninth Circuit case holding a twenty-five-year-to-life sentence imposed under California’s "three strikes" law violates the Eighth Amendment’s prohibition against cruel and unusual punishment. So, in this issue of Human Rights, we look at the costs of making crime not pay. Authors from across the spectrum—professor to judge to administrator to prosecutor—explore how being tough on crime has become tough on justice.
Wilson A. Schooley