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Losing Our Punitive Civic Religion

Much of the American legal system is based on a set of enduring myths about who are criminals and how they should be treated.

  • Jonathan Simon
April 13, 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.

Like the Covid-19 dead, the mass suffer­ing and racial dispro­por­tion­al­ity of our highly punit­ive crim­inal justice system — police, pris­ons, court super­vi­sion, immig­ra­tion deten­tion — sit heav­ily on Amer­ican soci­ety today. With pris­ons second only to long-term care facil­it­ies in rates of Covid-19 deaths, we might do well to recog­nize that they bear the very same burden in some import­ant ways. In both trans­mis­sions and punish­ments, the United States has become infam­ous glob­ally as the coun­try with a single digit share (5 percent) of the world’s popu­la­tion, and as of Febru­ary a double-digit share (20–25 percent) of both Covid-19 cases and pris­on­ers.

Accel­er­ated by the paral­lels between these crises, the United States is exper­i­en­cing a remark­able wave of interest in reform­ing our crim­inal justice system. Seri­ous atten­tion is even being given to the argu­ment that it is past time to abol­ish (or at least “defund”) such long-stand­ing crim­inal justice insti­tu­tions as police and pris­ons. But neither reform nor abol­i­tion will get very far unless we under­take a substan­tial rethink­ing of what we want and expect from crim­inal law and punish­ment. Centur­ies of enthu­si­astic innov­a­tion in both (always in the name of reform, and often with abol­i­tion of some crueler penal­ties in mind) have instead left us not with mean­ing­ful change, but with a set of power­ful punit­ive myths that have become a genu­ine Amer­ican civil reli­gion — one that offers crim­inal account­ab­il­ity as a kind of sacra­ment of legal fidel­ity, and state punish­ment as a primary source of indi­vidual correc­tion and social improve­ment.

These beliefs have enjoyed extraordin­ary popular­ity in our history, help­ing to make crim­inal law one of the primary subjects of both popu­lar enter­tain­ment and elect­oral polit­ics, and render­ing crim­in­o­logy a form of popu­lar science. To call them myths is conten­tious, but it is our very lack of interest in test­ing them empir­ic­ally that sustains support for everything from library fines to the death penalty. Left largely unchal­lenged in courts, legis­latures, pulpits, news­pa­pers, and univer­sit­ies, these myths make it exceed­ingly easy for Amer­ic­ans collect­ively to address crim­inal law and punish­ment, when what we require instead is the more demand­ing work of reform­ing our demo­cracy and rein­vent­ing our forms of social solid­ar­ity.

Perhaps the oldest myth in our punit­ive civic faith, one with roots in medi­eval theo­logy, has the high-minded label “account­ab­il­ity.” People who commit crimes have to be held account­able; their debt to soci­ety must be paid. Left unsaid is why crimes, which gener­ally are complex social events with many causes, should be thought of as creat­ing a “debt,” and why punish­ment should be seen as a “repay­ment.” The appeal of account­ab­il­ity, of paying your debt to soci­ety, is supposed to be requal­i­fic­a­tion and rein­teg­ra­tion; in real­ity, it has usually meant the oppos­ite.

The United States is hardly alone in emphas­iz­ing account­ab­il­ity as a prin­ciple. It can be found in the penal law of all nations and also in modern human rights law, which is partic­u­larly insist­ent that crimes against human­ity not be forgiven, even as part of recon­cili­ation in conflict-ridden soci­et­ies. But Amer­ica is unique in the degree of our zeal for full payment. We allow thou­sands to die in prison. We pursue even those who even­tu­ally win release with demands for finan­cial repay­ment of the cost of their punish­ment. Letting people go without paying their full debt is treated as an anathema on both sides of our polit­ical divide, even though many experts agree it will be essen­tial if we are to clear our chron­ic­ally over­crowded pris­ons, which were sites of medical suffer­ing even before Covid-19.

Myth two divides the popu­la­tion into the hard­work­ing and the idle, attrib­ut­ing crime to the latter. This myth dates back to the post-revolu­tion­ary period, when the disrup­tion of the war, economic trans­form­a­tion, and increased immig­ra­tion led to the first of many polit­ical turns toward crim­inal law as a means to improve the social order of the new demo­cracy and its concom­it­ant slave soci­ety.

The birth of the penit­en­tiary in the North­east in the early 1800s as a place of forced labor and solit­ary confine­ment was perhaps the most famous and influ­en­tial response. A less visible form of the merger of forced labor and contain­ment was slavery and espe­cially the carceral form of plant­a­tion slavery in the Missis­sippi Delta during the cotton boom. The prison and the plant­a­tion were supple­men­ted by forms of organ­ized poli­cing, namely the slave patrol in the South and the “London” model of uniformed muni­cipal police, organ­ized along semi-milit­ar­ized lines. In both cases idled work­ers were effect­ively crim­in­al­ized (e.g., unac­com­pan­ied enslaved persons were prosec­uted and imprisoned as “vagrants”).

Today, the almost reli­gious zeal with which 19th century reformers once touted the curat­ive value of forcing the idle to work has slackened some­what, but in other ways it lingers, espe­cially for the poor. Our pris­ons still make people work without rights or minimum wage compens­a­tion but without impart­ing mean­ing­ful skills that could open employ­ment oppor­tun­it­ies on reentry. And young people out of work or school are still the most likely targets of poli­cing and prosec­u­tion. In a soci­ety that seems to have less paid work for many, this is a formula for more punish­ment, not less.

Perhaps the most punit­ive myth of all, one that has been a recur­rent source of crim­in­al­iz­a­tion and extreme punish­ment, is only about a century old: the belief that our law enforce­ment insti­tu­tions — judges, police, prosec­utors, prison offi­cials — are expert at identi­fy­ing the truly danger­ous, whose removal to prison would make soci­ety much safer.

This article of civic faith is rooted in the astound­ing success of the racist pseudos­cience of eugen­ics. The early 20th century move­ment among eugen­i­cists to control repro­duc­tion and immig­ra­tion and to increase law-enforce­ment powers prom­ised that crime could virtu­ally be elim­in­ated by remov­ing or incar­cer­at­ing (or even ster­il­iz­ing) those with genet­ic­ally based “crim­inal traits.” The primary targets were immig­rants from east­ern and south­ern Europe, African Amer­ic­ans, and rural whites, all of whom were presumed to be crim­in­ally inclined based on hered­ity and race.

It was after immig­ra­tion was effect­ively cut off in 1924 that eugenic theory made Black communit­ies the cent­ral focus of punit­ive enforce­ment. The scan­dals asso­ci­ated with ster­il­iz­a­tion in the United States and elim­in­a­tion­ist prac­tices toward the disabled in Nazi Germany ulti­mately discred­ited eugen­ics as science.

But the belief that most seri­ous crime was caused by a danger­ous and devi­ant minor­ity survived. While the search for causes slipped from biology to soci­ology, the reli­ance on crim­inal records guar­an­teed that the eugenic era’s racial­ized think­ing about crime would continue. Today we are increas­ingly likely to rely on stat­ist­ical indic­at­ors driven by algorithms to identify the danger­ous, but advan­cing tech­no­logy erases rather than removes the racist legacies of this approach. We continue to believe that the people we currently jail after arrest, or those we imprison after convic­tion, were prop­erly selec­ted for their danger­ous­ness. This belief makes seri­ous efforts to end pretrial deten­tion or prolonged impris­on­ment a bridge too far for contem­por­ary politi­cians.

By the 1970s, all of these myths were losing their cultural cred­ib­il­ity, demon­strated in seri­ous discus­sions of redu­cing reli­ance on impris­on­ment and recon­ceiv­ing the concept of public safety. By the end of the decade, however, a new campaign to address social instabil­ity through more poli­cing and impris­on­ment was ascend­ing. A new myth — that cleans­ing neigh­bor­hoods of likely offend­ers (“Broken Windows”) would save them from a tide of viol­ence and poverty — helped justify the largest increase in pris­ons and poli­cing in our history.

Our punit­ive past, however, need not doom us to a punit­ive future. The ideas that have become our civic faith need to be rein­ven­ted in light of our evolving commit­ment to decency and subjec­ted to the kind of exper­i­ment­a­tion and test­ing we demand from other aspects of govern­ment. Can account­ab­il­ity be honored in ways other than punish­ment? Can dignity and secur­ity be afforded to people by means other than wage labor? Can risk factors that increase the chances of people becom­ing involved in crim­inal conduct be recog­nized and redressed without labelling the people exposed as “danger­ous”? Can the govern­ment promote neigh­bor­hood effic­acy and morale without hound­ing the unhoused and hungry from our streets and parks? These are ques­tions that are too often treated as if we already knew the answer were “no” — a faith that’s past time to lose.

Jonathan Simon is the Lance Robbins Professor of Crim­inal Justice Law at UC Berke­ley.