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April 01, 2002

Crime, Punishment, and Perception

by Joseph Kennedy

Behind the revolutionary increase in the severity of criminal punishment in our society during the last few decades lies a simple but neglected pattern: abstract categories of crime and criminals are conceived of in the most serious and extreme possible terms. The terms "drug dealer," "child molester," and even "violent crime," evoke images of offender and offense that are far more serious than the average offender or offense. This dynamic shapes in a fundamental way how we look at the roles of victims, judges, and law enforcement. Simply put, we think of crime and criminals in monstrous terms, and we have created a criminal justice system designed for punishing monsters even though we live in a society where such monsters are very much the exception to the rule.

Our society has been engaged in what I would call deep scapegoating through criminal punishment. A scapegoat is generally understood to be one who is made to bear the blame of others, but I define deep scapegoating as the identification of some person, group, or thing on which one projects blame for conditions that clearly have no identifiable cause. In our case, crime and criminals, in general, have come to serve as deep scapegoats for anxieties about the solidarity of our society, anxieties that are rooted in the enormous economic, social, and ideological changes of the last three decades.

Like an alcoholic who lives from drink to drink, our society has gone from one moral panic about crime to another during the last few decades. Many of the public’s major crime obsessions of the 1980s and 1990s have proven to be gross distortions of reality. Reported epidemics of child kidnapping, ritual satanic abuse, murders by serial killers, juvenile violence, and crack cocaine addiction have turned out to be more fiction than fact. In each case, a monstrous type of offender (or in the case of crack cocaine a monstrous type of drug) was imagined to be responsible for widespread crime. Offenders were imagined as "monstrous" in the sense that they were readily seen as both incredibly powerful and absolutely remorseless. The juvenile "superpredators" of the 1990s were imagined to kill whole families on a whim; the satanic ritual abuse rings of the 1980s were imagined to have infiltrated all levels of government. As a result, hyperpunitive strategies were adopted for dealing with crime, judges were stripped of discretion to mitigate punishment, and the interests of the offender became submerged in a discourse that focused almost exclusively on the suffering of crime victims.

Each panic was an exercise in deep scapegoating. In each case, the crime problem was constructed in a way that tapped into underlying anxieties about intractable social problems. "Monster drugs" such as crack cocaine that were seen as capable of instantly addicting well-raised middle-class children served as a focal point for fears that youth were being transformed by a variety of cultural forces beyond the control of their parents. Anxieties about the growing anonymity of an ever more transient society were projected onto stories of random violence by strangers. Frustrations about the quality of daycare and the increasing toll on parenting time taken by longer workweeks were funneled into obsessive concerns about child kidnapping and ritual sexual abuse.

This use of monstrous offenders to achieve deep scapegoating shapes how we think and talk about criminal justice on a very fundamental level. Within the court system, the monstrous offender has engendered two complementary, mythical figures in the public imagination. The first is the softhearted judge. The presence of monsters in society demanded a second scapegoat to explain why such obvious dangers had not been detected and captured. The softhearted judge, a mythical figure born sometime during the Warren Court era, plays this role. Monsters were loose amongst us because judges—blinded by arguments about moral relativism and socioeconomic inequality—failed to recognize the obvious evil of the offenders before them. In this story, social anxieties about normlessness and moral relativism are first projected onto the softhearted judge and then vanquished through the use of determinate sentencing practices that strip judges of discretion.

The neglected victim is the other major figure in this mythic story. In the standard account, victims are neglected in criminal justice because of an overly solicitous concern for the interests of the defendant. While this account explains much about society’s new solicitude for crime victims, a deeper and more powerful theme runs through the almost sacred status of crime victims in public policy debates about punishment. The extraordinary influence of crime victim narratives in contemporary policy debates represents a rejection of a form of instrumental reasoning that trades off one form of human welfare against another. Telling Willie Horton’s victims that the furlough program that released him was 99 percent successful, for example, was not politically palatable because trading off one rape and robbery against ninety-nine trouble-free releases of life prisoners smacks too much of the same sort of mechanical reasoning that increasingly dominates public debates about issues such as health care, public safety, and fiscal policy generally. While instrumentalist reasoning is inescapable in contexts that are more transparently economic in nature, the exaltation of victim narratives in crime policy debates has become a relatively easy way to vent social anger against this inescapable feature of modern social life. The crime victim’s story comes to be seen as sacred in order to affirm the irreducible value of innocent human life.

The monstrous offender, the softhearted judge, and the neglected victim—this troika of unrepresentative figures has dominated and distorted the way we think and talk about crime in this society over the last few decades. We have set sentences with the most serious offender in mind, but those sentences are applied to offenders much less culpable and dangerous as well. We protect all possible future victims of crime by locking up many more people than we need to and for far longer than we should. Recently, however, some signs of hope have emerged. Increasing public concern about claims of innocence by capital defendants, the growing popularity of drug courts, and emerging doubts about the wisdom of draconian measures such as "three strikes" laws all suggest that public attitudes about crime and criminal justice may be changing.

Nietsche once said that when you stare into the abyss, the abyss stares into you. In staring into the abyss of crime and the suffering it causes, society has seen a reflection of itself distorted by the rippling effects of its own anxieties. This abysmal vision has reached deep into our collective psyche and has driven us to punish too harshly. Perhaps it is time to begin edging our way back from an abyss of our own imagination.

Joseph Kennedy

Joseph Kennedy is an assistant professor at the University of North Carolina School of Law and is writing a book to be published by Oxford Press on the topic of this article. This article is based on Monstrous Offenders and the Search for Solidarity Through Modern Punishment, 51 Hastings L.J. 829 (2000).