Victims in the War on Crime

The Use and Abuse of Victims' Rights

Markus Dirk Dubber

• Publisher: NYU Press
• Year: 2006
• ISBN:
  9780814771419
• Topic: Law
• Subtopic: Civil Rights in Law
• Index: Law

Two phenomena have shaped American criminal law for the past thirty years: the war on crime and the victims' rights movement. As incapacitation has replaced rehabilitation as the dominant ideology of punishment, reflecting a shift from an identification with defendants to an identification with victims, the war on crime has victimized offenders and victims alike. What we need instead, Dubber argues, is a system which adequately recognizes both victims and defendants as persons.

Victims in the War on Crime is the first book to provide a critical analysis of the role of victims in the criminal justice system as a whole. It also breaks new ground in focusing not only on the victims of crime, but also on those of the war on victimless crime. After first offering an original critique of the American penal system in the age of the crime war, Dubber undertakes an incisive comparative reading of American criminal law and the law of crime victim compensation, culminating in a wide-ranging revision that takes victims seriously, and offenders as well.

Dubber here salvages the project of vindicating victims' rights for its own sake, rather than as a weapon in the war against criminals. Uncovering the legitimate core of the victims' rights movement from underneath existing layers of bellicose rhetoric, he demonstrates how victims' rights can help us build a system of American criminal justice after the frenzy of the war on crime has died down.

PART I

The War on Victimless Crime

1

Waging the War on Crime

The essential paradox of the war on crime is that it has everything and nothing to do with victims and their rights. On its face, the war on crime has been fought on behalf of victims’ rights, including their most important right, the right not to become crime victims in the first place. Under the surface, however, the war on crime has been a war on victimless crime, fought by the state for the state, rather than for personal victims. The first part of this book is devoted to exposing the inner workings of the war on victimless crime, which reduces its professed beneficiaries, victims, to instrumental significance at best and transforms them into enemies at worst.

The second part of this book is about the other, more visible, prong of the paradox, the war on crime as the protector of victims’ rights. Part II takes the war on crime, and its victims’ rights movement, at face value, amplifying its legitimate core of crime as a traumatic interpersonal event into a law of victimhood.

Part I, by contrast, has little occasion to mention victims or their rights. And that’s exactly the point: victims have no part to play in the actual operation of the crime war, other than as cover or as nuisance. That’s why the nexus between victims’ rights and the war on crime is so perverse, and why the vindication of victims’ rights will remain an illusion as long as it persists.

For some thirty years, American criminal law has waged a war on crime. From Robert Kennedy’s war on organized crime¹ and Lyndon Johnson’s war on poverty, crime, and disorder² to Richard Nixon’s war of “the peace forces” against “the criminal forces,” “the enemy within,”³ the war on crime evolved into an extended comprehensive police action to exterminate crime by incapacitating criminals.⁴ As wars go, the crime war has been unusual, and unusually successful, in that its casualties have also been its success stories; it has managed to incapacitate millions, most through imprisonment, some through death, most temporarily, some permanently. In 1970, the American prison and jail population stood at around three hundred thousand. Today, it tops two million, with another four million or so under various forms of noncarceral control, including parole and probation, for a total of more than six million people, or 3 percent of American adults, under state penal control.⁵

The war on crime has been fought on many fronts, and with many weapons. Most dramatically, it has brought us the resurgence of capital punishment as a measure for the permanent incapacitation of violent predators. Less dramatically, but more pervasively, ever harsher laws combating the plague of violent recidivism have pursued a similar incapacitative strategy.⁶

As a war on violent criminals, the crime war has attracted a great deal of attention. Over decades, the media have eagerly recorded its campaigns and initiatives, kicked off with great fanfare by generations of state officials (and would-be state officials) eager to incorporate the tough-on-crime plank into their political platforms. The crime war’s failures have made for particularly and persistently good news, as criminal violence has continued even in the face of an all-out campaign to eradicate it. These failures have led to calls not for the abandonment of the campaign but for its expansion and more rigorous prosecution.

To understand the war on crime, however, one must go beneath the sensational and well-covered surface of crimes of violence suffered by innocent victims at the hands of murderers, rapists, robbers, kidnappers, and other assorted miscreants. There, in the murky depths of criminal law in action, one finds the everyday business of the war on crime: the quiet and efficient disposal of millions of dangerous undesirables for offenses with no human victim whatsoever. To analyze this disposal regime is the main goal of this part.

The war on crime, though ostensibly waged on behalf of crime victims, has been first and foremost a war on victimless crime. The paradigmatic crime of the war on crime is not murder but possession; its sanction not punishment but forfeiture; its process not the jury trial but plea bargaining; its mode of disposition not conviction but commitment; and its typical sentencing factor not victim impact, but offender dangerousness as “evinced” by a criminal record. Our prisons and jails (which we persist in calling “correctional” institutions) are filled not with two million murderers, nor are the additional four million probationers and parolees superpredators. No, our comprehensive effort to control the dangerous by any means necessary reaches “possessors” along with “distributors,” “manufacturers,” “importers,” and other transgressors caught in an ever wider and ever finer web of state norms designed for one purpose: to police human threats.

Policing human threats is different from punishing persons. A police regime doesn’t punish.⁷ It seeks to eliminate threats if possible and to minimize them if necessary. Instead of punishing, a police regime disposes. It resembles environmental regulations of hazardous waste more than it does the criminal law of punishment.

In a sense, the current regime of penal police marks the end of criminal law as we know it. It’s no more about crimes than it is about law, as these concepts have come to be understood. Crimes, as serious violations of another’s rights, are of incidental significance to a system of threat control. By the time a crime has been committed, the system of threat identification and elimination has failed. Law, as a state-run system of interpersonal conflict resolution, is likewise irrelevant. Persons matter neither as the source nor as the target of threats. Penal police is a matter between the state and threats.⁸

A penal police regime may look like traditional criminal law. But this appearance is deceiving. A crime consists no longer in the infliction of harm but in the threat of harm. Harm itself turns out to be the threat of harm. So to punish crime means to eliminate—or at least to minimize— the threat of the threat of harm.

The effort to disguise itself as bread-and-butter criminal law is an important component of a modern police regime.⁹ The camouflage is crucial to its success because nonnegligible public resistance would interfere with the state’s effort to eliminate as many threats as efficiently and as permanently as possible. It’s therefore in the interest of a police regime both to retain traces of traditional criminal law and to infiltrate traditional criminal law by manipulating its established doctrines, rather than to do away with it altogether.

To illustrate the inner workings of the war on crime, I carefully analyze the theory and practice of possession offenses, the new paradigm of criminal law as threat police. Possession offenses have not attracted much attention.¹⁰ Yet they are everywhere in modern American criminal law, on the books and in action. They fill our statute books, our arrest statistics, and, eventually, our prisons. By last count, New York law recognized no fewer than 153 possession offenses; one in every five prison or jail sentences handed out by New York courts in 1998 was imposed for a possession offense.¹¹ That same year, possession offenses accounted for more than one hundred thousand arrests in New York State, while drug possession offenses alone resulted in over 1.2 million arrests nationwide.¹²

The dominant role of possession offenses in the war on crime is also reflected in the criminal jurisprudence of the U.S. Supreme Court. They are the common thread that connects the Court’s sprawling and discombobulated criminal procedure jurisprudence of the past thirty years. As we will see, virtually every major search and seizure case before the Court, from 1968’s Terry v. Ohio¹³ (which relaxed Fourth Amendment requirements for so-called Terry stops and frisks) to Illinois v. Wardlow¹⁴ (which further relaxed Terry’s already relaxed requirements in “high crime areas”).

Possession offenses also figure prominently in scores of Supreme Court opinions on substantive criminal law. What do the defendants in the following Supreme Court cases have in common:Pinkerton v. United States (which gave the infamous Pinkerton conspiracy rule its name),¹⁵ United States v. Bass (the Court’s leading lenity case),¹⁶ Stone v. Powell (one of the Court’s key habeas corpus cases),¹⁷ McMillan v. Pennsylvania (the case that laid the foundation for one of the key doctrinal strategies of the war on crime, the shifting of proof elements from the guilt phase to the sentencing hearing and therefore from the jury to the judge),¹⁸ Harmelin v. Michigan (one of the Court’s leading cases on the principle of proportionate punishment),¹⁹ and Lopez v. United States (the Court’s unanticipated 1995 attack on federal commerce clause jurisdiction)?²⁰ They were all convicted of possession offenses. And, last but not least, there’s Apprendi v. New Jersey, 2000’s big hate-crimes case. Charles Apprendi had fired several rifle shots into the home of a black family that lived in his otherwise all-white neighborhood. What was Apprendi sentenced for, after a guilty plea? Three counts of possession.²¹

So broad is the reach of possession offenses, and so easy are they to detect and then to prove, that possession has replaced vagrancy as the sweep offense of choice. Unlike vagrancy, however, possession offenses promise more than a slap on the wrist.²² Backed by a wide range of penalties, they can remove undesirables for extended periods of time, even for life. Also unlike vagrancy, possession offenses so far have been insulated against constitutional attack, even though they too break virtually every law in the book of cherished criminal law principles.

To better understand the workings of policing through possession and of the crime war in general, part I of this book develops a kind of phenomenology of possession. We come to appreciate the many and complex uses of possession as a policing tool, some direct, others indirect, some foundational, others supplemental. And we see how possession has managed to escape the serious scrutiny of courts and commentators.

Like its prototypical policing tool, the war on crime hasn’t attracted much scholarly attention, at least as the comprehensive penal regime that it is.²³ Much has been written about the war on drugs. The drug war certainly has been an important part of the war on crime, but it’s a mistake to conflate the two. The war on crime is a general strategy of state governance that uses various tools to achieve its goal of eliminating threats, above all threats to the state itself. The war on drugs is but one prong in the war on crime’s widespread assault on anyone and anything the state perceives as a threat. To treat the war on crime as synonymous with the war on drugs is to underestimate the significance of the war on crime as a phenomenon of governance.

Only by widening one’s focus of inquiry from the war on drugs to the war on crime can one appreciate the comprehensive strategy of governance by possession. While drug possession is a popular and extremely powerful policing tool, other possession offenses also make significant contributions to the crime war effort. Terry and Wardlow, for example, were gun possession cases; so was Apprendi. The most recent national effort to incapacitate human hazards, Project Exile, likewise employs tough federal statutes that criminalize the possession of guns by felons and during violent or drug-related crimes.²⁴ And as we will see, other possession offenses often come in handy, as well.

We desperately need a detailed account of the war on crime. Without understanding how it came about, how it works, and what it has accomplished, we cannot hope to move beyond it. But move beyond it we must, as the crisis of crime that triggered the war on crime already has begun to subside.²⁵ The crime war will go the way of crime hysteria.

Rebuilding American criminal law, however, isn’t simply a matter of undoing the damage caused by the war on crime. The war on crime could not have succeeded as easily as it did if it hadn’t found fertile soil in the reigning orthodoxy of American criminal law: treatmentism. All the war on crime had to do was flip over the treatmentist coin from its benign rehabilitative to its unsavory incapacitative side.²⁶ It stands as a powerful reminder of the uncomfortable fact that treatmentism, once celebrated as the progressive reform of the atavistic practice of punishment, always allowed for incapacitative “treatment” for incorrigible criminal types.

The war on crime once and for all dashed the naïve hope that the incapacitative arm of treatmentism would simply whither away as criminal policy became increasingly enlightened. When push came to shove, it was the rehabilitative wing of treatmentism that buckled and eventually broke under the pressure of a crisis of crime, where it mattered not whether the crisis was real, imagined, or even artificially generated for political gain. For the victims of the war on crime, it was real enough.

The analysis of the war on crime in this, the first, part of the book proceeds as follows. Chapter 1 lays out three of the basic characteristics of the war on crime as a system of controlling threats, rather than of punishing persons. The war on crime is preventive in that it focuses on the threat, rather than on the occurrence, of harm. It’s communitarian in that it seeks to eliminate threats not to persons but to communities of one sort or another. And it’s authoritarian insofar as the community it protects against outside threats ultimately turns out to be the state.

Chapter 2 then presents the phenomenology of possession as the crime war’s penal policing tool of choice. Through the analysis of statutes, doctrine, Supreme Court jurisprudence, and statistics, we see just how and why possession has proved uniquely useful in the identification and incapacitation of criminal threats and has emerged as the new and improved vagrancy.

Finally, in chapter 3 this in-depth analysis of possession is placed within the broader context of the war on crime as state nuisance control. Here we see how the state depersonalizes criminal law by turning to crimes both victim- and offenderless to maintain its authority in the name of conveniently vague concepts like “public welfare” and “social interests.” The war on crime, in the end, reveals itself not as an aberration from the principled path of Anglo-American criminal law but as the culmination of the progressive project to reform the barbaric practice of punishment in light of ill-considered social science. This project can be traced back to the early decades of this century and found its most influential manifestation in the Model Penal Code.

Penal police is about...