The Sounds of Silence: American Criminal Justice Policy in Election Year 2008

10-6-2008 National:

One of the striking features of the 2008 election cycle has been the absence of crime as a national political issue. Nobody has declared metaphorical war on any type of crime, run an ad about the depredations of a parolee, or even promised 100,000 cops. It may simply be that for a country embroiled in two nonmetaphorical foreign wars and deeply nervous about the state of the economy, crime is a second-order concern. It could be that the big drop in crime of all types throughout the 1990s has made the issue seem less pressing. Whatever the explanation, things are awfully quiet out there.

This Issue of the Federal Sentencing Reporter was conceived as a vehicle for stirring things up a bit. We asked an array of very smart folks from widely differing political and institutional perspectives to tell us what criminal justice issues America should be thinking about and what should be done about those issues. The twenty-three responses in these pages are not only fascinating individually, but collectively they may suggest one hopeful explanation of the near invisibility of crime as a hot-button issue in this political season. Despite some very real differences of opinion, there are a substantial number of points on which our authors and other serious and informed observers of American criminal justice from across the political spectrum now concur. Electoral politics encourages the magnification of even tiny differences of opinion into titanic battles over principle if one side or the other thinks it advantageous, but political warfare may be less likely where the wise heads of both sides largely agree.

In this introductory essay, I try to identify the big themes, and some general points of agreement and disagreement, so ably discussed by our contributors.

I. The Big Picture—What Works, How Much Is Enough
Running throughout many of the contributions to the Issue is an express or tacit recognition that over the last two decades something went very right. Crime dropped dramatically in the 1990s and has stayed roughly at those lower levels since. But along with gratitude for less crime, many of our contributors share the conviction that America has overused the tools of the criminal justice system by applying its heavy hand to kinds of conduct not truly criminal or by overpunishing even the indisputably blameworthy.

Brian Walsh of the Heritage Foundation argues that the national government has overreached in two ways—by steadily expanding federal criminal jurisdiction to cover crimes that are traditionally the responsibility of state and local authorities, and by criminalizing conduct, particularly business conduct, without requiring proof of criminal intent.1 Congressman Bobby Scott, chair of the House Subcommittee on Crime, Terrorism, and Homeland Security, levels the more general critique that federal and state governments alike have indulged in an orgy of overincarceration, devoting far too many resources to punishment and far too few to crime prevention and to rehabilitation of those convicted. ....for the remainder of the article.... by FRANK O. BOWMAN, III, Floyd R. Gibson Missouri Endowed Professor of Law, University of Missouri School of Law; Editor, Federal Sentencing Reporter