Who Are the Criminals?

The Politics of Crime Policy from the Age of Roosevelt to the Age of Reagan

John Hagan

• Publisher: Princeton University Press
• Year: 2012
• ISBN:
  9781400845071
• Topic: Law
• Subtopic: Legal History
• Index: Law

How Americans came to fear street crime too much—and corporate crime too little How did the United States go from being a country that tries to rehabilitate street criminals and prevent white-collar crime to one that harshly punishes common lawbreakers while at the same time encouraging corporate crime through a massive deregulation of business? Why do street criminals get stiff prison sentences, a practice that has led to the disaster of mass incarceration, while white-collar criminals, who arguably harm more people, get slaps on the wrist—if they are prosecuted at all? In Who Are the Criminals?, one of America's leading criminologists provides new answers to these vitally important questions by telling how the politicization of crime in the twentieth century transformed and distorted crime policymaking and led Americans to fear street crime too much and corporate crime too little.John Hagan argues that the recent history of American criminal justice can be divided into two eras--the age of Roosevelt (roughly 1933 to 1973) and the age of Reagan (1974 to 2008). A focus on rehabilitation, corporate regulation, and the social roots of crime in the earlier period was dramatically reversed in the later era. In the age of Reagan, the focus shifted to the harsh treatment of street crimes, especially drug offenses, which disproportionately affected minorities and the poor and resulted in wholesale imprisonment. At the same time, a massive deregulation of business provided new opportunities, incentives, and even rationalizations for white-collar crime—and helped cause the 2008 financial crisis and subsequent recession.The time for moving beyond Reagan-era crime policies is long overdue, Hagan argues. The understanding of crime must be reshaped and we must reconsider the relative harms and punishments of street and corporate crimes. In a new afterword, Hagan assesses Obama's policies regarding the punishment of white-collar and street crimes and debates whether there is any evidence of a significant change in the way our country punishes them.

Chapter 1

The President’s Secret Crime Report

RONALD REAGAN WAS ELECTED PRESIDENT in November 1980 with an agenda that included making the country safer from violent forms of street crime. This goal seemed quite sensible to most voters at the time. The Reagan administration promised a “get tough” approach to the punishment of crime. There would be reasons for questions later, especially about the very punitive response to crack cocaine, the drug whose epidemic use spread rapidly through America’s racial ghettos and spiked a fearful, massive, and enormously expensive growth in American reliance on imprisonment that has lasted for more than a quarter century.

But there was steadfast agreement in the innermost circle surrounding President Reagan in 1980, a circle that included his personal lawyer, William French Smith, who became attorney general, and Reagan’s closest political adviser, Edwin Meese, who succeeded as attorney general when Smith returned to his California law practice. Both Smith and Meese believed it was time to lift what a presidential board soon called “the veil of fear over crime.” Fear of crime was the administration’s overriding concern.

Early in his administration Ronald Reagan appointed a presidential advisory board with the mandate to, in conjunction with the National Institute of Justice, recommend justice system policies and research priorities. The appointees were replacements for board members selected by Jimmy Carter before he left office, some of whom filed lawsuits about their removal. The nineteen Reagan appointees consisted of a former speechwriter, campaign contributors, and criminal justice officials, as well as enduring political figures such as Mitch McConnell, presently the U.S. Senate minority leader from Kentucky. The board held hearings in Los Angeles, Atlanta, New Orleans, and Nashville, and met with police chiefs from all over the country. The experience of the board offers instructive insights into how crime policies and priorities are often advanced in America.

The president’s advisory board reported finding great fear of crime wherever the members went. The board chairman reported that Attorney General Smith had walked the streets of Newark and “talked with residents and shopkeepers and heard their daily concerns about the peril in their community and threats to their lives and property.” Board members visited high-crime areas of Los Angeles, where they “saw the barred windows, locked storefronts, graffiti-ridden buildings, a walled-in shopping center and felt the apprehension of the people on their streets.” They found that homicide was the leading cause of death in Los Angeles, with some 1,700 criminal assaults occurring daily.

The advisory board members were convinced that fear of crime was growing and that the president urgently needed their input. They wanted to give clear voice to their concerns and recommendations. They took as the subtitle of their report “The Police, Court, and Correctional Officials Who Administer America’s Criminal Justice System Speak Out for Change.”

A Hired Pen

Given the gravity of the topic and the circumstances, the board was determined to write a persuasive report with recommendations that would “strengthen the hand of the law in the contest with the lawless.” The board took this commitment so seriously that it decided to hire a professional writer to sharpen their message and the power of their recommendations. Their choice was Joseph Persico.

The board’s choice of Persico was somewhat surprising in that he came to the task with a measure of skepticism based on his firsthand experience with Nelson Rockefeller’s passage of drug laws in the state of New York. Persico later would write award-winning books about Franklin Roosevelt and the Nuremberg Trials, and he co-authored Colin Powell’s autobiography. He had already displayed a capacity to write nonfiction with a best-selling biography of Nelson Rockefeller that included a chapter titled “The Imperial Governor.” Persico was in an ideal position to write about Rockefeller because he had been his principal speechwriter for more than a decade and had observed firsthand the development of New York State’s drug laws.

New York’s drug laws were among the most punitive ever passed in the United States and have only recently been moderated. New York’s laws foreshadowed Reagan’s war on drugs, as reflected in an anecdote told by Persico. He recalled that Rockefeller was warned about the consequences of his punitive proposals by an adviser who presciently predicted that “the jails could not hold all the prisoners that this law would generate, and that pushers would recruit minors to carry their dope” (Persico 1982:146). I will have reason to return to this prediction later in the book. At the time, this advice had already led Persico (148) to wonder about the role of research in the development of crime policy: “Where did Nelson Rockefeller get this idea? Had penologists and jurists (like the President’s Advisory Board) urged him along this course? Was it the product of professional investigation and research?”

The answer was perhaps surprising. Rockefeller had simply heard from an interested family friend about low rates of drug addiction in Japan and the use of life sentences for drug pushers in that country. The friend was William Fine, president of the Bonwit Teller department store, who had a drug-addicted son and who chaired a city drug rehabilitation program. Rockefeller later attended a party at which Reagan asked Fine for further information about Japan’s drug laws. Worried about his reputation as a liberal and his limited credentials as a crime fighter, Rockefeller diverted Reagan’s request and moved swiftly ahead with his own severe state drug legislation. This gave Persico an answer to his question about the role of research in Rockefeller’s crime policy: “the law under which thousands of narcotics cases would be tried in the courts of a great state had been . . . improvisation without the deadening hand of oversophisticated professionals” (Persico 1982:148).

So Persico approached the president’s crime report with the skepticism of a hired pen and a disillusioned political speechwriter, yet he also brought a notable writing talent to the task of drafting a presidential report. He crafted an interesting title, “Too Much Crime . . . Too Little Justice,” and introduced the then innovative technique of interposing provocative quotations from members of the board as bolded sidebars throughout the report.

The recurring theme of the report was captured in a quotation from the president of the National Organization for Victims Assistance, who ominously remarked that “If there is any problem as destructive as crime, it is the fear of crime” (National Institute of Justice [NIJ] 1984:5). James K. “Skip” Stewart, the director of the National Institute of Justice, noted in his preface to the report two research literatures that channeled this fear: (1) data revealing that the majority of crimes were committed by a small minority of highly active offenders, and (2) studies challenging the value of indeterminate sentences in reducing criminal behavior. Chapter 4 shows just how important these two research sources were to a “developmental criminology” that set a foundation for crime policy during the age of Reagan. Indeed, much that has gone wrong in American criminology, and the role it has played in the formation of national crime policy, may be traced to the misguided influence of the above two areas of research.

Yet these research lines were not what focused Persico’s drafting of the report to the president. Rather, the very first highlighted quotation, from Houston’s police chief, in the opening chapter of the report reflected a sense of uncertainty in Persico’s approach, perhaps resulting from his past experience with Rockefeller. He chose to lead in bold lettering on the first page of the report with the following overview by Houston police chief Lee Brown of the advisory board’s work: “We have looked at the causation of crime from perspectives ranging from economic factors and phases of the moon to biological phenomena. . . . Do we know what we need to know? Are we asking the right questions? I am afraid at the present time we are not” (NIJ 1984:4).

The Reagan administration never allowed “Too Much Crime . . . Too Little Justice” to see the public light of day. Although the Institute used its own budget to print more than a thousand copies of the report, which were dramatically bound in a dark, blood red cover, these copies of the report never left the loading dock for distribution. At the last moment, someone in the Department of Justice halted the release of the report. The only bound copy I was able to find is preserved in the collected papers of Joseph Persico at the State University of Albany Library. The board quietly went out of existence when the Reagan administration passed the Anti-Drug Abuse Act of 1986.

Too Much Crime . . . Too Little Justice

Why would the work of nineteen prominent Americans and a talented professional writer on a topic as important as serious and violent crime have been suppressed when the work was already completed and the report was bound and ready for public distribution? Joseph Persico’s answer is perhaps discernible from his reaction to his own exposure to Governor Nelson Rockefeller’s earlier development of drug enforcement policy. Persico (1982:149) writes:

I never fully understood the psychological milieu in which the chain of errors in Vietnam was forged until I became involved in the Rockefeller drug proposal. This experience brought to life with stunning palpability psychologist Irving Janis’ description of group think: “the concurrence-seeking tendency which fosters over-optimism, lack of vigilance and sloganistic thinking about the weakness and immorality of outgroups.”

It may have been the déjà vu nature of this experience that framed Persico’s writing of the president’s report. It was probably the uncertain tone and content of the report that caused Reagan’s Justice Department to block its distribution.

In bold contrast to the report, there was stirring certainty to Ronald Reagan’s message to the voting public about crime. Reagan voiced a strong conviction that there was altogether Too Much Crime, just as the title of the report indicated. But the subtitle, “Too Little Justice,” sounded a note of fatal ambiguity. Was there too little justice for the victims? Or was it also, or alternatively, too little justice for the defendants accused of the crimes? Or was the problem the taxes paid by the public for the justice system? The report signaled uncertainty from the outset, admitting that “traditional approaches—the addition of more police, detective work, more judges, probation, parole and rehabilitation—as commonly practiced—have not been proven substantially effective in preventing crimes, solving crimes or weaning repeat offenders from a life of crime” (NIJ 1984:4).

Furthermore, the report acknowledged that U.S. prisons were already extremely costly and overcrowded. The number of Americans imprisoned had more than doubled over the previous decade, and the report lauded certain jurisdictions in which “prison crowding [had been] reduced through research-inspired management innovations.” The advisory board probably could not have imagined that the number of Americans in prison would more than quadruple over the next several decades, but the board members were already worried about the financial if not human costs of a growing reliance on imprisonment. The report was fundamentally uncertain about what to do about this situation. This uncertainty undermined the administration’s strong views and “can do” message about crime control.

The report looked to further research for its answers to the crime problem and placed its greatest emphasis on the work of Alfred Blumstein, who would later become president of the American Society of Criminology. Blumstein became the age of Reagan’s most influential criminologist, but he also later became one of the most quoted critics of the policies of this era. Blumstein was an operations researcher with a background in the use of engineering principles to organize and conduct major social and governmental programs. He had worked on planning for the Vietnam War and had played a prominent scientific advisory role in the earlier Johnson administration’s presidential commission, named for its topic, The Challenge of Crime in a Free Society. I briefly introduce Blumstein’s approach here and then discuss it more fully in later chapters.

The aspect of Alfred Blumstein’s research agenda (Blumstein, Cohen, and Nagin 1978; Blumstein et al. 1986) that captured the advisory board’s hopes involved the concept of the “career criminal” and Blumstein’s broader interest in the study of criminal careers. The board was encouraged but also frustrated by the perceived promise of this research agenda. It found that

We are presently refining, through research, possibly the best crime-fighting tool available—a capacity to identify the minority of career criminals who commit the majority of crimes. Yet, too many police forces, prosecutors, judges and parole authorities still lack the resources to put this tool to work and thus concentrate on these one-person crime waves. (NIJ 1984:4)

The board blamed the unrealized potential of career criminal research to reduce crime on poor coordination in the justice system. The board saw the losers in this situation as the victims of crime who were “pawns of the judicial process” and whose rights “are subordinated to the rights—even the convenience—of their victimizers.”

All of this led the board members to an uncomfortably ambiguous conclusion. They were painfully aware of prison overcrowding and escalating costs. They also knew that crime rates in the early 1980s were not actually increasing. In fact, from 1980 until 1985, American rates of serious and violent crimes declined from their previous peak level. This was the longest sustained break in rising crime rates from the early 1960s to the early 1990s. So, despite the Reagan administration’s concern about crime victims, serious and violent victimization actually decreased during this president’s first term in office.

Notwithstanding this period of declining street crime and a much longer and more sustained decline beginning in the early 1990s, however, rates of imprisonment in the United States uniformly and unrelentingly increased. When Joseph Persico linked his earlier experience with the Rockefeller drug laws to the present downturn in serious violent crime, he must have realized that he was a hired pen caught in a potentially contradictory predicament.

The advisory board and its writer came to a meeting of minds by placing the emphasis of the report on fear of crime rather than on crime itself. They fudged the facts by claiming crime rates were steady when they were actually falling, and they reasoned that even steady crime rates at an unacceptably high level were a source of damaging fear. Rather than use the crime decline to reduce the fear of crime, they emphasized what they discerned as a fearful spiral of community decline:

Fear of crime continues to rise even though actual crime rates have tended to be steady (at unacceptable levels). This fear by itself has produced tangible negative economic and social costs particularly for our inner cities. Crime-wary residents and business people make decisions about where and when they will work, shop, locate, open and close stores which can hasten a declining neighborhood’s descent into decay. (NIJ 1984:5)

The board worried that “despair has begun to set in that anything can be done about this condition.” The report tried to argue that a reasoned pursuit of research-led innovations could prospectively show a way to more hopeful solutions. However, for political advisors in the Reagan administration, such as Edwin Meese, this conclusion must have sounded like Waiting for Godot. The report never left the loading dock and has remained an essentially secret document for the past third of a century.

I argue in this book that the suppression of President Reagan’s secret crime report coincided with a missed opportunity. The missed opportunity was the rationale that the downturn in crime could have provided for shifting resources away from the rapidly rising reliance on imprisonment that was still gaining momentum. However, this policy option was the “path not taken” throughout the last quarter of the twentieth century, when imprisonment increased to historically massive levels. To understand this outcome requires a better understanding of the politics of crime in America.

From Roosevelt to Reagan and Beyond

There was a time when it was thought that presidential politics had little to do with crime in America. Most crimes were prosecuted under state laws and in state and municipal courts, with those convicted of the crimes then sent to local and state jails. However, Jonathan Simon (2007) argues that this began to change during the Great Depression and with the election of Franklin Roosevelt. Even earlier, perhaps beginning most obviously with the national passage of Prohibition nearly a century ago, crime became an increasingly important focus of federal as well as local politics.

In his book, Governing Through Crime (2007), Simon argues that crime, and even more so the fear of crime, is...