Resumen Reading Week 1: Crime and Public Policy - Michael Tonry (2016)Resumen Inglés
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CRIME AND PUBLIC POLICY - Michael Tonry
What is harmful and what is not varies with time and space. Some behaviours are criminal in
almost all places, but some others are not crimes in most countries, but in earlier times they
were. Others were until recently generally not considered the law’s business, though now they
are. Still others became significant crimes only when they recently became technologically
Some of the differences are products of fundamental national differences in judgement about the importance of particular cultural values. Durkheim said that criminal law is an outgrowth of a society’s most fundamental social norms (the conscience collective), and should embody, express and reinforce them. As cultural norms change, which over time they do, laws change with them, but the transitional periods are typically inflexible and rocky.
Other differences do not so much reflect cultural difference about desirability of behaviour as they do divergent opinions about the most effective ways to deal with it. For example, drug policies in Holland, think that less aggregate social harm will result from tolerant than from repressive drug policies. Which is better cannot be answered in any absolute way.
With so many different kinds of crime, so many ways of thinking about them and so many ways to deal with them, policy making is contested and complicated. Some noncontroversial conclusions about crime and public policy: Property crime and homicide rates have declined in the US and in most other developed countries since the early to mid-1990s, but no one has convincingly explained why.
Little is known about crime rates and trends for many crimes, including cybercrime, environmental crime, organized crime, prostitution, smuggling, etc.
Little is known about the costs of crime and the cost-effectiveness of alternative crime control approaches.
Countries vary enormously in how they use their criminal justice systems. Some, such as US, rely on deterrence and incapacitation to attempt to control crime. Others, notably the Nordic countries, rely on punishment’s moral educative effects coupled with strong social welfare approaches.
Every country uses a wide range of criminal justice, regulatory, preventive and harmreduction approaches to dealing with crime, and within countries there are typically major differences between crimes. Crime is a legal concept, strictly speaking.
1 I. AIMS, METHODS AND FUNCTIONS A) Criminal Law Enforcement Is what the criminal justice system does.
o Police investigate and arrest people.
o Prosecutors decide whether or not to initiate a prosecution and if so, for what. They negotiate guilty pleas, try cases, and make recommendations to judges about sentences.
o Judges preside over pre-trial proceedings and trials, review and accept guilty pleas, and impose sentences.
o Corrections authorities of different sorts run prisons, jails and probation and paroles systems.
o Governors and the US president have authority to issue pardons and to commute sentences.
o Legislatures enact and revise laws defining crimes and governing penalties. Sometimes there laws ranges within which judges may take decisions and others they have little discretion about the sentences they impose.
The system is highly discretionary. The criminal justice system is premised on legal threats.
Criminalization broadcasts the message that certain behaviour is forbidden, and sentencing laws threaten what may happen if citizens ignore the criminal law’s adjurations. There is no doubt that some sentences incapacitate some offenders, but there is doubt about the incapacitative efficiency of imprisonment. Some will not reoffend in any case, some others will quickly be replaced, and some will age out of crime.
The evidence about rehabilitation has been changing rapidly. In 1970s the conventional view was that few programs could be demonstrated effectively to reduce later offending. Since the early 1990s the consensus has been that well-managed drug treatment programs can reduce both drug use and offending. There is little evidence concerning the criminal law’s moral educative effects.
B) Prevention (better than investments in prosecutions and imprisonment) There are three main forms of prevention: situational, developmental and community.
There is no doubt that situational prevention methods (bullet-proof glasses, CCTV) can reduce crime rates, especially for those committed impulsively.
The evidence is overwhelming that a wide range of developmental prevention programs can reduce at-risk children’s later likelihood of offending. Those identify risk and protective factors in children’s live and attempt to weaken the former and strengthen the latter. Cost-benefit.
Community prevention takes two main forms: 1) creation of community self-help crime prevention organisations (neighbourhood watch); 2) situational crime prevention at community and architectural levels (improving street lighting, altering traffic-flow patterns).
2 C) Harm Reduction Harm-reduction strategies aim to achieve policy goals at the lowest aggregate social cost.
Finnish criminal justice policy making explicitly incorporates harm-reduction principles: “The aim of minimalization (not elimination) emphasizes the costs and the harmful effects of criminal behaviour instead of simply minimizing the number of crimes. Not only the costs of criminality but also the costs and suffering caused by the control of crime must be taken into account. The formula draws attention to the material and immaterial losses that arise from operation of the system of sanctions”.
D) Regulation Approaches to dealing with drugs and prostitution in the Netherlands and some other European countries contain major regulatory elements. Political ideology often predicts whether political leaders favour law enforcement or responsive regulatory approaches.
Conservatives tend to oppose adoption of regulatory regimes for drugs and prostitution.
Political liberals tend to favour tougher law enforcement approaches for dealing with business crime, but are typically more receptive for regulatory approaches for dealing with drugs and prostitution.
E) Decriminalization Decriminalization eliminates crime by definition. Sometimes it happens de jure, as when laws criminalizing adultery and prostitution are repealed. Sometimes it happens ipso facto, as when prosecutors stop enforcing those laws.
F) Non-intervention One policy option that is always available is to do nothing. In juvenile delinquency, it is known that most of them desist from criminality because it is a common characteristic of adolescence. Also, labelling and being processed through the criminal justice system is crimogenic (stigma, in contact with more deviants, fulfilling the prophecy). Non-intervention may be the wisest public policy in some cases. Formal decriminalization is the safer policy option, but when that is not politically feasible, the de facto form is better than none.
II. RATES, TRENDS AND COSTS A) Rates and trends A good bit is known from official police crime and victimization survey’s findings about rates and trends of common law offenses. The pattern in the US is that crime rates began climbing sometime in the 1960s, peaked in the early 1990s, and fell rapidly thereafter.
B) Costs and Cost-Effectiveness There is little reliable evidence on the costs of crime. Systematic efforts to calculate it are plagued by errors and conceptual and ideological blind spots. Evidence on cost-effectiveness of alternative policy choices is in better shape, especially on choices between investment in law enforcement and in developmental prevention or rehabilitative programs.
3 Studies of the costs of crime exaggerate costs of violent crimes enormously. That is because it includes victim’s pain and suffering as a cost of crime. Cohen developed his estimates based in contested cases in which crime victims filed suit for damages and won. This is inappropriate for two reasons: 1. The estimates are exaggerated. They are applied to all crimes, within generic categories.
2. Cohen’s estimates are often used by him and others in cost-benefit studies of criminal justice system policies. The difficulty it that cost-benefit analyses take heavy account of victims’ “intangible costs” and “lost earnings” but no account of offenders’ intangible costs. Taking Bentham into account, “everyone’s happiness and unhappiness should count in deciding whether a practice or policy is justifiable”.
C) Choosing Policies Efforts to prevent and control crime and minimize its harms and costs are not fully rational.
They implicate economic, political, social, ideological, and moral issues that shape the limits of politically possible policies. Social liberals often see street crime and drug abuse as inevitable but prefer to try to prevent crime by improving criminogenic social conditions rather than primarily through deterrence, incapacitation and rehabilitation.
Everyone’s happiness and unhappiness should count. Laws and other public policies should be based on best-faith efforts to achieve the greatest public benefit at the least human cost.
Finnish policy makers have a distinctive way: crime policy should take all the costs of crime into account, including the costs of law enforcement. No suffering should be imposed on offenders that is not justified by greater suffering from which others are saved (Bentham).
Policy makers should try as best they can to restrain the influences of emotion and expressive considerations on public policy about crime.