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Crime, the Myth

It’s up to society to say what is and isn’t a crime, and it varies more than one might think.

  • Emile DeWeaver
May 3, 2021
View the entire Punitive Excess series

This essay is part of the Bren­nan Center’s series examin­ing the punit­ive excess that has come to define Amer­ica’s crim­inal legal system.

Crime is not real. This asser­tion flies in the face of common sense and consensus. Of course crime is real, one would be justi­fied in think­ing — we see “crime” every day on the news. Charles Manson was, in fact, respons­ible for nine murders. Dylann Roof did, in fact, enter the Emanuel African Meth­od­ist Epis­copal Church and kill nine people. Crime rates are, in fact, either up or down or stable on a given day in every city in the United States.

So how could crime be a fiction? The reader and I likely agree that people hurt others and trans­gress moral bound­ar­ies. We may also agree that communit­ies have the job of figur­ing out how to prevent and remedy such trans­gres­sions because a basic precon­di­tion for happi­ness is safety. If, however, we are actu­ally to create a soci­ety that is safe for every­one, we’ll profit from chal­len­ging our belief in the “real­ity” of crime.

Begin this chal­lenge by consid­er­ing race. For hundreds of years, race’s real­ness was a “fact,” but today, scient­ists under­stand that race is not real. What “real” means is well described by journ­al­ist Jenée Desmond-Harris. “By ‘real,’ I mean based on facts that people can even begin to agree on. Perman­ent. Scientific. Object­ive. Logical. Consist­ent. Able to stand up to scru­tiny.” Racism is real, as real as Dylann Roof. Race, however, is a fiction, and the creation of this fiction was a polit­ical project aimed at a polit­ical end.

It is in this sense that crime is also fiction, and I’ll offer one more example before I come to my point. Consider the differ­ence between a person and a person’s myth­o­logy — specific­ally, consider King Arthur of medi­eval England. Histor­i­ans debate whether or not Arthur was a histor­ical person whose accom­plish­ments have been wildly exag­ger­ated (his legend features sorcer­ers, an unbreak­able sword that cuts through anything, and a lady who lives beneath a lake) or whether he is a pure fiction.

As a thought exper­i­ment, let’s say he was a histor­ical figure around which a fictional legend arose. You would be justi­fied in saying that King Arthur is real; his myth­o­logy is not. What if, however, this distinc­tion isn’t avail­able to you. Would it make sense to say King Arthur is real if we make no distinc­tion between his histor­ical person and a king who killed giants and dragons with a magic sword?

The national conver­sa­tion about crime engages a similar myth­o­logy: prevail­ing narrat­ives routinely deny us the abil­ity to make the distinc­tion between myth and real­ity. These narrat­ives are, like racial narrat­ives, polit­ical projects aimed at polit­ical ends. Given the confla­tion between myth and real­ity, it makes as much sense to call crime real as it does to call the legend of King Arthur real. If we want to call crime real, we have to locate the truth of what it is and what it isn’t. We have to dispel the myth­o­lo­gies of crime.

One myth is that we punish people for commit­ting crimes. The truth is we punish people less because of what they do and more because of who they are. If I kill a stranger on the street for disobey­ing my orders, I’m a murderer. Police officers routinely kill unarmed people for, accord­ing to police claims, resist­ing arrest — arrests, as in the case of George Floyd, where no mean­ing­ful “crime” has been commit­ted — but we don’t treat police forces like crim­inal insti­tu­tions.

If I steal toilet paper from a conveni­ence store, I’m a thief who deserves incar­cer­a­tion, but when Donald Trump and his “univer­sity” steal $25 million from students, he’s merely someone who has to return the money he stole. On Janu­ary 6, Trump incited an insur­gency in nation’s capital that resul­ted in multiple deaths. If Patrisse Cullors, the cofounder of Black Lives Matter, incited an insur­gency in the Capitol, she’d likely be shot to death on the street without a trial.

In these compar­is­ons, there’s no moral differ­ence that justi­fies crim­in­al­iz­ing me or Cullors but not police officers or Trump. Yet popu­lar narrat­ives in the United States have manu­fac­tured a moral differ­ence. Such fabric­ated differ­ences often rest on narrat­ives about how the actions of a “crim­inal” harm people or soci­ety. But when we compare the scale of harm done to soci­ety by Trump or Officer Derek Chau­vin to the harm done by, say, a 16-year-old drug dealer, crime (or the absence of it) is no longer a func­tion of the harm a person causes — it’s a func­tion of priv­ilege, which neces­sar­ily implic­ates the perpetu­ation of white suprem­acy. In other words, the truth beneath the myth­o­logy of crime is that many Amer­ic­ans feel justi­fied in punish­ing people not because of what the people have done but because of their social posi­tion relat­ive to the white power struc­ture.

Then there’s a second myth, that crime is an act commit­ted by an indi­vidual. Call­ing an act a crime is instead a choice we make as a soci­ety about how we respond to harms commit­ted in our community. I recently exper­i­enced how this myth oper­ates while stand­ing in line at a local Walgreens.

I was about to check out at the cash register when I looked up from my phone and noticed a secur­ity guard becom­ing excited, even agit­ated. He altern­ated between whis­per­ing to a store clerk and posi­tion­ing himself to track someone in the surveil­lance mirrors on the store’s ceil­ing.

The scene awakened trauma in my body. I remembered all the times I’d been caught shoplift­ing as a child, how quickly and easily our crim­inal legal system could destroy a young life, family, and community in the name of justice. I began to scan the secur­ity mirrors too, think­ing please don’t let this be some kid. The secur­ity guard ducked into an aisle. I tracked him in the mirrors to determ­ine his target. The person steal­ing wasn’t a kid.

I sighed with only slight relief because the person’s age was of little consol­a­tion. From the state of his hoodie, it seemed likely that he was a home­less person. We’re in the middle of a pandemic, I thought, and he’s strug­gling to survive. The secur­ity guard inter­cep­ted him. By then, more and more people — both staff and custom­ers — had real­ized what was happen­ing. The store grew tense, fear­ful.

I watched the guard escort the man along the back of the store. When I was 18, I was a secur­ity guard; I knew the next step for the guard was to call the police. I was about to pay for the coffee I had bought, so I asked the clerk to ring up the sale and told her I’d be right back. The secur­ity guard moved toward the store exit with his charge. I stopped them and addressed the home­less man.

“Hey, man,” I tried to sound as casu­ally author­it­at­ive as I could. “Go back, get whatever you want, and I’ll pay for it.”

Some­thing quite phenom­enal happened.

The store’s tense, fear­ful atmo­sphere evap­or­ated. A look of deep relief washed over the secur­ity guard, and he stepped back without protest. The people stand­ing in line relaxed. A woman work­ing in the photo depart­ment left her post to open a third check­out stand specific­ally to get this home­less man checked out. She smiled and treated him like a human being. It’s true that I had to buy this treat­ment for him ($30 for toilet paper, food, and a razor), but that did not make the decisions every­one made in that store any less real or less import­ant. All it would have taken is for one person to insist on police involve­ment, and that home­less man would have been arres­ted. It took the entire community wait­ing in that store to save this man.

The home­less man had in one second gone from a crim­inal whom people feared and even reviled to a member of a community who needed support. Not only did this community — the people in the store — choose to support him, they seemed hungry to do it. They’d just needed to be shown a path and given the oppor­tun­ity to be the community that the man deserved. The differ­ence between crime and not-crime wasn’t the home­less man’s actions or his intent. It was his community’s response.

Emile DeWeaver is the senior strategist of advocacy at Prison Policy Initi­at­ive.