Vol. 14 No. 6 (June 2004), pp.424-427

THINKING ABOUT CRIME:  SENSE AND SENSIBILITY IN AMERICAN PENAL CULTURE, by Michael Tonry.  New York:  Oxford University Press, 2004.  278 pp.  Hardback.  $28.00   £17.95.  IBSN: 0-19-514101-6.

Reviewed by Cassia Spohn, Department of Criminal Justice, University of Nebraska at Omaha.  Email:  cspohn@mail.unomaha.edu.

During the past 30 years, the United States “has been engaged in an unprecedented imprisonment binge” (Austin and Irwin 2001, p.1). The imprisonment rate, which had fluctuated around a relatively steady mean of 110 per 100,000 for most of the 20th Century, increased every year from 1975 to 2002.  In fact, the prison population quadrupled from 1972 to 2002—it increased from 300,000 to just over two million in 30 years.  Stated another way, the incarceration rate increased from 110 inmates for every 100,000 persons in the population to about 475 per 100,000.  If inmates in local jails are included, the rate is even higher: 702 per 100,000.

In THINKING ABOUT CRIME, Michael Tonry explores the reasons for this unparalleled explosion in the United States prison population.   In a carefully reasoned analysis, Tonry contends that the most popular explanation, which attributes growth in the prison population either to absolute increases in crime or to changes in crime rates, is “flatly wrong” (p.26).  Although he admits that there is “a surface logic” (p.28) to this argument, Tonry asserts that comparisons of crime and imprisonment trends in the United States with those in other countries reveal that this explanation “has virtually no validity” (p.27).  As Tonry points out, during the 1990s, overall crime rates in the United States were not higher than those in other western countries.  Moreover, from the early 1960s to the mid-1990s, the violent crime rate increased rapidly in countries such as Germany and Finland as well as the United States.  The imprisonment rate, on the other hand, held steady in Germany and fell in Finland; only in the United States did the imprisonment rate increase significantly and continuously over this time period.  Tonry contends that these divergent outcomes reflect conscious policy choices; he maintains that officials in Germany, Finland, and France adopted policies designed to reduce incarceration rates, while those in the United States enacted “penal policies of unprecedented severity.”  In his words, “American imprisonment rates did not rise because crime rose.  They rose because American politicians wanted them to rise” (p.33).

The question, of course, is why politicians in the United States enacted policies—sentencing guidelines based solely on the seriousness of the crime and the offender’s prior criminal record, mandatory minimum sentences, three-strikes-and-you’re-out laws, and truth in sentencing policies—eschewed by policymakers in other countries.  Tonry contends that this result cannot be attributed—at least not entirely—to public demands for harsher penalties or to politicians’ attempts to use crime and punishment as wedge issues designed to [*425] solidify support and win elections.  Similarly, the explanation does not lie in social and cultural changes that have made us more preoccupied with uncertainty, danger and risk and, therefore, more willing to support policies designed to identify and reduce those risks.  Although he admits that “all of these claims provide points of understanding,” Tonry nonetheless asserts that “they lack a pattern that provides an intelligible picture” (p.51).   The underlying problem, according to Tonry, is that all Western countries experienced rising crime rates, toughening public opinion about crime, partisan responses to issues of crime and punishment, and a growing preoccupation with danger and risk.  Thus, none of these “plausible stories” about the development of American crime control and punishment policies can explain why these policies are so much harsher in the United States than elsewhere.

Tonry rejects the overly simplistic notion that the American crime control policies adopted during the past half-century are the outcomes of disagreements between liberals and conservatives, between the advocates of due process and those concerned primarily about public safety, or between those who cared about offenders and those who cared about victims.  Although he acknowledges that the crime control policies of a particular country do reflect the beliefs and values of its citizens regarding punishment, Tonry notes that those beliefs and values are time-bound and are molded by larger social forces.  He also observes that wide-ranging changes in punishment practices “occur because many or most people in a time and place share perceptions and beliefs that justify them” (p.69).  Stated another way, Tonry argues that American crime control policies have been shaped by American “sensibilities”—that is, “time and place-bound ways of thinking that include ideas and express values that are widely shared and little questioned” (p.70)—regarding crime, disorder, criminals, and punishment.  Using the death penalty as an example, he illustrates how evolution in sensibilities (such as views about appropriate and inappropriate methods of execution) triggers change in penal policy (such as death by lethal injection rather than by hanging or electrocution).

To say that change in sensibilities generates change in public policy does not, of course, explain WHY American sensibilities regarding crime and punishment led to the harsh and punitive criminal justice system we now have.  Tonry contends that “‘moral panics’ are part of the answer.”  Drawing on the work of philosophers, historians, political scientists, and sociologists, Tonry shows how the moral panic that follows troubling and highly publicized criminal incidents (e.g., the kidnapping and murder of Polly Klass in California, and the assassinations of Martin Luther King and Robert Kennedy) can open a window of opportunity for policy change (e.g., the passage of Three-Strikes-and-You’re-Out laws and the enactment of the Federal Gun Control Act of 1968).  The types of policy enacted during this window of opportunity will depend, according to Tonry, on the prevailing sensibilities of the time. During periods of intolerance toward drug use and drug-related crime, politicians will embrace policies that penalize drug use and mandate long sentences for those convicted of drug offenses; during [*426] periods of relative tolerance, on the other hand, such punitive policies are “unthinkable.” Noting that the “anger, emotion, and urgency that moral panics generate can be harnessed to various ends” (p.96), Tonry concludes that the prevailing sensibilities in the United States during the past two decades “produced, or at least allowed, drug and crime control policies of severity unprecedented in recent American history and unmatched in other Western countries today” (p.97).

Tonry devotes the first four chapters of THINKING ABOUT CRIME to developing these arguments regarding the interrelationships among patterns of crime, sensibilities regarding crime and punishment, and crime control policies.  In Chapter Five he explores in more detail the reasons why only the United States adopted penal policies of unprecedented severity.  Using historical data on crime trends in the United States, England, Scandinavia, the Netherlands, and Belgium, and evidence regarding the war on drugs, Tonry illustrates that crime rates in all of these countries changed slowly and in similar ways and that the harsh anti-crime policies enacted in the United States during the last two decades of the twentieth century did not cause recent declines in the American crime rate.  In Chapter Six he shows how moral panics about sexual and violent crimes and about drug abuse, coupled with intolerant attitudes toward deviance, can lead to “formerly unthinkable policies.” He discusses in detail three such policies: the real offense sentencing provisions of the federal sentencing guidelines, which require judges  to sentence offenders for their actual offense behavior (including offenses for which the defendant was not charged, for which charges were dismissed, or for which the defendant was acquitted); the treatment of the offender’s youth as an aggravating circumstance under the Virginia sentencing guidelines; and Professor Dan Kahan’s argument that punishment should degrade and express disgust of the offender.  In Chapter Seven, aptly titled “Unthought Thoughts,” Tonry continues his analysis of the ways in which sensibilities shape policies.  He focuses on “issues and ways of thinking that are common in particular times and conspicuously absent in others” (p.169).  After briefly discussing preventive detention of defendants prior to trial and prosecutorial sentence appeals, he devotes the remainder of the chapter to three other subjects:  the Model Penal Code’s focus on the treatment and rehabilitation of offenders;  researchers’ failure to differentiate between the recidivism of offenders released after serving a first prison term and the recidivism of all released offenders; and models of the costs and benefits of punishment that do not include the effects of penal policies on offenders, their families, and their communities. 

Tonry’s thoughtful prescriptions for undoing the damage wrought by the war on crime and the war on drugs, and for ensuring that damaging and ineffective crime control policies are not adopted in the future, are presented in Chapter Eight.  Tonry argues that contemporary American sentencing laws should be subjected to ethical introspection, that the judges and prosecutors who determine punishments should be insulated from partisan political pressures and, thus, should be made into career civil servants, and that sentencing policies and practices should be refashioned “to make them less severe, [*427] costly, and destructive, and to diminish the disproportionate burdens they impose on minority communities and people” (pp.213-214).   Consistent with arguments first put forth in MALIGN NEGLECT (Tonry, 1995), and SENTENCING MATTERS (Tonry, 1996), he calls for the enactment of safety valve laws authorizing corrections officials to grant early release to offenders serving sentences in excess of ten years, the repeal of all three-strikes laws and all laws requiring judges to impose mandatory minimum sentences, and the addition of sunset clauses to all existing sentencing laws.  He also suggests that all new proposals for sentencing legislation should (1) include projections of their impact on courts and corrections, (2) estimate the additional resources that will be needed to implement the policy and appropriate funds to pay for them, and (3) estimate the effect of the policy change on women and racial and ethnic minorities.  Finally, and perhaps most controversially, he recommends that all criminal justice practices be subjected to “disparity audits . . . to establish whether and to what extent they exacerbate or ameliorate disparities in outcomes affecting women and members of minority groups” (p.225).

THINKING ABOUT CRIME is a provocative and important book that should be required reading for policymakers and students of criminal justice.  Tonry presents a convincing and carefully crafted analysis of contemporary crime control policies, which he contends are overly severe, wasteful, and unfair.  Using historical and cross-national data, he demonstrates that the harshly punitive policies adopted by the United States—but rejected by policymakers in other Western countries—have been shaped by American  sensibilities toward crime, criminals, and punishment.   Tonry’s prescriptions for reform are reasonable; following them will produce a more humane and effective criminal justice system.

REFERENCES:

Austin, James and John Irwin.  2001.  IT’S ABOUT TIME:  AMERICA’S IMPRISONMENT BINGE (3rd edition).  Belmont, CA:  Wadsworth.

Kahan, Dan.  1996. “What Do Alternative Sanctions Mean?” 63 UNIVERSITY OF CHICAGO LAW REVIEW 591.

Tonry, Michael.  1995.  MALIGN NEGLECT: RACE, CRIME AND PUNISHMENT IN AMERICA.  New York:  Oxford University Press.

Tonry, Michael.  1996.  SENTENCING MATTERS.  New York:  Oxford University Press.

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Copyright 2004 by the author, Cassia Spohn.