Assignment Help| Many people in the United States believe that a solution to the high violent believe that a solution to the high violent

questions #1:

Many people in the United States believe that a solution to the high violent and serious crime rates relative to European and Asian countries is to punish offenders harsher than we currently do. Using Chapter 5 in Dr. Tonry’s book as a guide, interrogate the validity of this belief (be sure to empirically support your conclusion)

Question #2:

In Chapter 5, Dr. Tonry provides a clear picture of why punishment takes the shape that it does in the United States, at least since the late 1970s. Given that the study of punishment and society explores the social, political, economic, and historical conditions in the society in which punishment forms arise, what social, political, economic, and historical conditions stood out to you that explain why Black Americans are disproportionately arrested and imprisoned for drug crimes?

 

HERE IS THE REFERENCE WHICH IS CHAPTER 5

In trying to understand the American criminal justice
system, race matters. It helps explain why imprisonment rates are so high, why profiling by the police continues, and why the federal 100-to-1 law so long endured. Race relations, however, do not explain why American drug and crime control policies are so severe. The damage done to black Americans would be much less if the criminal justice system were not so harsh. If the American imprisonment rate were the same as the average of other developed countries, around 100 per 100,000 people, rather than approaching 800, the absolute numbers of black Americans entangled in the arms of the law would be vastly lower. There would be many fewer devastated lives, fatherless children, and fractured families. Many more young black offenders would have had the chance to do what most other young offenders do: put their mis- takes behind them and get on with living normal lives.
Crime has always been preponderantly a young man’s game, every- where and at every time, and most young men age out of it. They find love, or God, or a decent job, and realize that’s what they really want. Many hundreds of thousands of young black American men have been unable to do that. When—if—they leave prison, many face obsta- cles that make living a conventional, satisfying life an impossible dream.

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The history of American race relations, the social psychology of race and crime, and the politics of racial resentment explain much that is wrong with the American criminal justice system and why it does such disproportionate damage to black people. They do not, however, explain why it is so harsh. Nor can they explain why the American justice system is so much harsher than those of other countries with which the United States might ordinarily be compared.
Deeper forces are at work. One is a historical tendency in American life to political extremism. It has appeared time and again in popular political movements aimed at immigrants, ethnic minorities, commu- nists, and foreign enemies. It appeared in the Red Scares of the 1920s, isolationism and xenophobia in the 1930s, Japanese internment in the 1940s, McCarthyism in the 1950s, and backlash to the civil rights movement in the 1960s, 1970s, and 1980s. It reappeared in the Tea Party movement in 2009.
A second is a tendency toward moralistic excess predicated on reli- gious certainties, particularly of the fundamentalist Protestant kind. A wide range of recurring hotly contested political issues—abortion, school prayer, capital punishment, governmental support of religion— are distinctively, almost uniquely American. Those issues prompt dis- agreements everywhere, but only in the United States have they produced powerful, enduring single-issue interest groups, nonnego- tiable politics, and long-term gridlock. Only in the United States have they resulted in adamant refusal to accept unfavorable court decisions and, in the cases of abortion and school prayer, decades-long campaigns to change constitutional doctrines. They are intelligible to outsiders only when the force of religious beliefs in American life is understood.
A third is a structure of government that makes U.S. jurisdictions uniquely vulnerable to influence by extreme emotions and political pas- sions. Only in America and Switzerland are judges and prosecutors elected. Only in America are they chosen in partisan elections or selected according to openly political criteria. And only in America have drug and crime control policies been enduring and central political issues in national politics for nearly fifty years. If political extremism, religion- based beliefs, or short-term emotion make Americans excited, the structure of American government gives elected officials powerful

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incentives to respond. If drug use and crime are seen as raising pri- marily moral issues, and drug users and criminals are conceived of pri- marily as moral reprobates, it should not be surprising that governmental policies lack moderation and balance. Only the United States, as a result, has “wars” on drugs and crime, capital punishment, three-strikes-and- you’re-out laws, life sentences without the possibility of parole, truth in sentencing laws, and Megan’s laws that are at least as important for the moral messages they express and the political concerns they symbolize as for any effects they might have.
The self-righteousness, emotionalism, and lack of empathy and pro- portionality that characterize America’s metaphorical wars on drugs and crime also characterize the “War on Terror.” Many Americans are ashamed of things their national government has done, or has permitted to be done, in the name of protecting national security. If we understood better the underlying causes of inhumane excesses in the War on Terror, we would better understand why American drug and crime control pol- icies are so severe. Seeing ourselves through others’ eyes might help.
For most of my adult life I’ve had the good fortune to spend part or all of each year in small towns on the coast of Maine. European friends often come to visit. In recent years each in one way or another has asked the same question. They are bewildered by the contrast between the friendliness, openness, and decency of the people they meet on the street, in stores, and on front porches, and the inhumane values, dishon- esties, and brutalities of the national governments those people repeat- edly elected. In recent years what they’ve had in mind are Guantánamo, Abu Ghraib, rendition, and torture.1 “How does that happen?” they wonder.
What they don’t at first understand is that many American drug and crime control policies, of which typically they know little, are as oblivious of basic decencies and human rights as are many elements of the American War on Terror. At its most populated, for example, Guantánamo housed 680 inmates. In 2009 more than 30,000 souls lived in American super maximum-security prisons under conditions in many instances bordering on sensory deprivation. Every country has high-security prisons, but they hold tens or hundreds of inmates and under far less harsh conditions.

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In the Bush II administration’s plans Guantánamo inmates were to be held for indefinite periods, potentially until the end of the War on Terror, without charges, access to courts, or opportunity even for independent judicial review of whether there were adequate grounds to hold them. In 2008 nearly 42,000 American prisoners were serving sen- tences of life without the possibility of parole; that number will soon reach 50,000. Few other Western countries authorize sentences that require an offender to spend the rest of his life behind bars. In those that do, the numbers of affected prisoners are in single or double digits.
One of many human rights objections to Abu Ghraib Prison in its worst years was that it was grossly overcrowded. More than 7,000 pris- oners were held in a facility designed for less than half that number (Schlesinger et al. 2004, p. 60). California prisons in recent years have continuously operated at 200 percent of capacity. On June 30, 2007, California housed 166,277 inmates in prisons designed to accommodate 84,653 (California Department of Corrections 2008, tables 4, 5). Many prisoners are held in open dormitories filled with bunk beds, often in spaces previously used as cafeterias, gymnasiums, and corridors. Few other developed countries house more inmates than their prisons are built to hold, and many for human rights reasons forbid holding more than one prisoner in a cell.
Add to those examples the American practices of prosecuting chil- dren as adults (in many countries, the minimum age of criminal respon- sibility is fifteen or higher), sentencing children to lifetime sentences without parole (impossible in any European country), and executing criminals (impossible in any other developed Western country). The differences are stark, and they are not to America’s credit.
Nor are racial disparities to America’s credit. International organiza- tions have repeatedly decried disparities in American prisons. Examples can be found in several reports prepared by the Committee on the Elimination of Racial Discrimination (CERD) of the United Nations, cre- ated to review compliance with the International Convention on the Elimination of All Forms of Racism. The United States has ratified the convention and is obliged to file periodic reports on American compli- ance with it. Twice, in 2001 and 2008, CERD reminded the United States that the convention forbids discrimination in any form, including as a result of practices not motivated by discriminatory intent. In 2008,

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taking particular note of racial profiling and disparities in adult impris- onment, youth confinement, and capital punishment, CERD reminded the United States that ratifying states are required to “prohibit and elimi- nate racial discrimination in all its forms, including practices and legisla- tion that may not be discriminatory in purpose, but in effect” (2008, 2).2
Governments in the end can operate only within the “boundaries of political permission” that citizens set (Yankelovich 1991). Governmental actions and policies outside those boundaries lack legitimacy and are in the long term unsustainable. America’s policies toward its foreign enemies are thus possible only because American citizens support or at least accept or tolerate them. Abu Ghraib, Guantánamo, rendition, and water-boarding fell within the boundaries permitted by American political culture in the first decade of the twenty-first century. No one has ever suggested that the Bush administration was in danger of losing the 2004 election because of them, or that government officials who supported them were in political jeopardy. That is also true concerning capital punishment, sentences of life without the possibility of parole, three-strikes laws, decades-long mandatory minimums, and prosecu- tion of children as if they were adults. Support for such policies has not imperiled their supporters’ reelection. Opposition to them has.
All of these policies, foreign and domestic, operate as if on the premise that the individual human beings they affect need not be regarded with sympathy and respect. The German idealist philosopher George Wilhelm Friedrich Hegel, writing about punishment, distin- guished between treating criminals as human beings or as animals (1991, 126, 160). He meant by this that human beings are moral agents whose capacity for moral choice should be respected and whose wrongs should be addressed in moral terms. Animals, by contrast, lack moral agency and may be dealt with instrumentally. If they are dangerous they may be isolated or killed. If they do things people don’t want them to do they may be retrained or restrained. Ethicists argue over whether particular harms to animals can be justified—killing them for food or fur, factory farming, removing their claws and voice boxes for human conve- nience—but the objections do not relate to animals’ capacities for moral choice. That is a uniquely human capacity.
In Hegel’s terms American policies directed at foreign and domestic “enemies” treat people as if they are animals. Treating them as human

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beings requires that we respect human rights and deal with them fairly. It also requires that we deal with them in ways that are proportionate to the moral character of their wrongdoing. To treat offenders or external enemies as human beings requires that they be treated as individuals, and that what is done to them be capable of justification by reference to the moral character of their actions.
More recently, the American philosopher Ronald Dworkin (1986) observed that the fundamental and irreducible requirement of the notion of equality before the law is that legal institutions and practices accord equal respect and concern to all people. This means that their individual stories should be heard and given fair consideration, and that they should be treated as others like them are. This test is no better satisfied by confinement of citizens in prison for the rest of their natural lives than by confinement of foreigners in Guantánamo for so long as the U.S. government chooses.
Modern Americans give their leaders political permission to operate within much wider human rights boundaries than citizens of other coun- tries allow their leaders. How come? The answers are becoming clear. Two recurring features of American history—what the historian Richard Hofstadter (1965) called the “paranoid style” in American politics and the influence of Protestant fundamentalism—have in our time combined with outmoded features of U.S. constitutional arrangements to produce policies incomparably harsher than those in other Western countries. And the peculiar history of American race relations has meant that the burdens of those policies are disproportionately borne by disadvantaged black Americans, which, to the white and middle-class majority, makes them relatively easy to bear. As Stan C. Proband has often observed, Americans have a remarkable capacity to endure the suffering of others.3
It may simply have been colossally bad luck for black Americans that the success of the civil rights movement coincided with a period of acute social anxiety. There were similar periods earlier in the twentieth century. In the period 1920-40 the aftermath of World War I coincided with the Roaring Twenties, Prohibition, the Great Depression, the Russian Revolution, and the rise of Nazism and fascism. The Red Scares of the 1920s and the xenophobia of the 1930s were among the results, but blacks were not especially targeted (immigrants and foreigners were), and the criminal justice system did not become vastly more

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repressive. The period 1945-60 coincided with the end of World War II, the descent of the Iron Curtain, nuclear war anxieties, and the breakup of colonial empires. The McCarthy era and hysterical anticommunism were among the results, but this time also blacks were not targeted (foreign enemies and their purported sixth columns were), and the criminal justice system was little affected.
The most recent period of heightened social anxiety is typified by globalization and economic restructuring, political terrorism, increased population diversity, and the social movements emblemized by civil rights, women’s rights, and gay rights. Some refer to our time as “late modernity,” a time characterized by rapid social change, economic dis- ruption and uncertainty, and moral skepticism (Garland 2001).
In each of these periods the paranoid style has been manifest, exac- erbated in the last two by the rigid moralism of Protestant fundamen- talism. In each period the organization of American government has meant that few devices existed to insulate government policies and practices from the influence of political extremism, ideological excess, and emotionalism. Legislative elections are frequent. Most judges and prosecutors, almost uniquely among developed countries, are elected. Many worry about how the media or interest groups will respond to their decisions and, being human, sometimes make different—and harsher—decisions than they otherwise would.
In recent decades some judges and many prosecutors have responded to public passions and emotions with demagogic election campaigns. Incumbents were often attacked for “leniency.” In the 1980s it was not uncommon for judicial candidates to emphasize how punitive they would be if elected, and for campaign advertisements to show candi- dates standing before slamming jailhouse doors.
What has been different in recent decades, however, has been the targeting of behaviors for which black Americans are disproportion- ately arrested. Those criminal justice system policies and practices provided enemies within—enemies with whom most white Americans do not identify. Because of the history and social psychology of American race relations white Americans do not extend the same solicitude and sympathy to disadvantaged black people that they extend to people like themselves.

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This chapter develops the arguments and evidence on which the pre- ceding observations are based. The first two sections briefly demonstrate that American crime and drug control policies, like American practices in the War on Terror, are incomparably harsher than those of other Western countries, and that the explanations for why that is so must be sought in American history and culture. The third section finds those explanations in the paranoid streak of American political culture, the moralism of evangelical Protestantism, and the structure of American government.
INCOMPARABLE AMERICAN CRIME CONTROL POLICIES
Most people with even superficial knowledge of American crime con- trol policies know that only the United States among Western countries retains capital punishment and that American imprisonment rates are four to ten times higher than those of comparable countries. Table 5.1, offering those comparisons and others, shows that American criminal justice policies are incomparably more severe than those elsewhere.
IMPRISONMENT RATES
When American imprisonment rates began their unprecedented climb in 1973 they were around 160 per 100,000 population, jail inmates included, not much different from those in other Western countries and lower than some, as they had been for most of the twentieth century.4
In 2010 American rates were around 780 per 100,000, four to five times higher than those in Spain, England, and New Zealand (150 to 200 per 100,000) and seven to ten times higher than those in most other Western countries (70 to 110 per 100,000; International Centre for Prison Studies 2010).
CAPITAL PUNISHMENT
America has capital punishment; no other Western country does (Hood and Hoyle 2008, 2009). The 3,270 residents of American death
rows at the beginning of 2010 had no equivalents in other developed Western countries. The differences are starker, however. Only in the past decade, in hotly contested decisions with spirited dissents, has the Supreme Court declared unconstitutional the execution of people who are mentally handicapped or who were younger than 18 when their offenses were committed (respectively, Atkins v. Virginia, 536 U.S. 304 [2002]; Roper v. Simmons, 543 U.S. 551 [2005]).
LIFE WITHOUT THE POSSIBILITY OF PAROLE
Here too America has it and few other countries do. Few prisoners in other developed countries correspond to the 42,000 poor souls in prison in 2008 who were doomed to spend the rest of their lives there (Nellis and King 2009). Children as young as twelve have been sen- tenced to lifetime without parole (Canedy 2001; Liptak 2007a); until recently there were no limits. In Graham v. Florida, 130 S. Ct. 2011 (2010). the U.S. Supreme Court held that life without the possibility of parole

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for offenses other than homicide committed by juveniles violates the Eighth Amendment’s prohibition of cruel and unusual punishments. This does not mean that people sentenced for crimes committed as a juvenile will not be held until they die. All that is required is that there be a possibility of release. LWOP sentences for juveniles convicted of homicide remain constitutional.
In many European countries the longest sentence that may be imposed for a single offense, including murder, is fourteen years (and that’s usu- ally before automatic time off for good behavior). When the German Parliament enacted a law authorizing real life sentences, the Federal Constitutional Court struck it down (van Zyl Smit 2002). The court rea- soned that hope for the future, belief in the possibility of a better life, is a basic human right. It ruled that a meaningful review of the need for continued confinement, affording a realistic possibility of release, must be afforded every inmate within fourteen years following confinement. German law was changed accordingly. The other Anglo-Saxon countries tend to be tougher than that but are in no way comparable to the United States. Statutes in a few other countries call for real-life sentences under narrowly specified conditions, and a few people are serving them, but no other country’s practices are even vaguely comparable to American life sentences without parole (Appleton and Grøver 2007).
THREE-STRIKES AND MANDATORY MINIMUM SENTENCE LAWS
More than half the states have three-strikes laws, including, most noto- riously, the California law that applies to tens of thousands of cases and requires twenty-five-year sentences, or longer, following conviction for any third felony, no matter how minor, and for some misdemeanors. Classic cases, which were unsuccessfully appealed to the U.S. Supreme Court, involved robbery of several slices of pizza (Associated Press 1995), theft of a couple of DVDs from K-Mart (Lockyer v. Andrade, 538 U.S. 63 [2002]), and theft of three golf clubs (Ewing v. California, 538 U.S. 11 [2003]). Every American state has mandatory minimum sentence laws, many calling for sentences measured in decades. With a few minor exceptions in other English-speaking countries, other Western coun- tries do not have such laws (Tonry 2009).

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THE AGE OF RESPONSIBILITY
In the United States, the age of criminal responsibility, the age at which a person is deemed developmentally capable of committing a crime, is generally ten to twelve. In most of continental Europe that age is higher. In the Netherlands it is twelve; in Germany fourteen; in the Scandinavian countries fifteen; in Belgium eighteen. No matter what they do, twelve- and thirteen-year-olds in most countries, and fourteen-year-olds in many, cannot be criminally prosecuted. The state must find other, more constructive ways to respond to its most troubled young people (Tonry and Doob 2004).
JUVENILE WAIVERS
It is very rare in most countries that have juvenile courts for juveniles to be prosecuted and punished in adult courts. Most Western countries forbid it. That happens to tens of thousands of young Americans each year. Some states, such as New York, do it by dropping the top age of juvenile court jurisdiction to fifteen, well below the developmental ages of emotional and cognitive maturity. Others do it by making all serious violent crimes triable in adult courts. Still others do it by giving prosecutors and judges wide dis- cretion to transfer young people to adult courts (Tonry and Doob 2004).
There are thus stark differences between American criminal justice sys- tems and those of other Western countries in their absolute severity and in the importance they attach to the human rights of individual citizens. Cross-national criminal justice comparisons usually focus on impris- onment rates. As these differences demonstrate, the gap is far wider.
WHY ARE AMERICAN PENAL POLICIES SO HARSH?
The question usually asked is narrower than that: How can we explain national differences in imprisonment rates? None of the commonly offered answers provides much illumination.

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Crime rates and trends are not the explanation. Crime trends have been much the same throughout the Western world since 1970: rises through the early or mid-1990s and declines since. There is no relation- ship, however, between crime rates and imprisonment rates. Since 1973, in the face of similar crime rate trends in most Western countries, imprisonment rates increased five-fold in the United States and dou- bled in England and Spain, but declined by more than half in Finland, held steady in the rest of Scandinavia, Germany, Switzerland, Austria, and Belgium, and zigzagged in France and Italy (Tonry 2007). In Canada, where since 1980 crime trends have closely paralleled those in the United States, the imprisonment rate has fluctuated around 100 per 100,000 for fifty years (Webster and Doob 2007).
Nor is public opinion the answer. In the English-speaking countries at least, penal policies and imprisonment rates vary enormously, but public opinion has stayed much the same. Majorities of the public believe crime rates are rising when they are falling. Large majorities believe judges are too lenient, on the basis of mistaken underestimates of the severity of punishments. The sentences citizens say they believe are appropriate are typically less severe than those judges actually impose. When citizens are asked whether they prefer more punitive policies or increased investment in rehabilitative programs, majorities usually prefer rehabilitation (Roberts et al. 2003).
David Garland in his 2001 book, The Culture of Control, attributes toughened penal policies in England and America to a number of con- ditions of “late modernity.” These include the limited capacities of gov- ernments to affect crime rates, the destabilizing effects of economic globalization, increasing population diversity, increased sensitivity to risks of all kinds, and increased vulnerability to crime of privileged seg- ments of the population. The result, he suggests, is a proliferation of “expressive” policies meant more to reassure the public and show that government is doing something, anything, than to reduce crime.
The insuperable difficulty for the analysis is that, if Garland is correct, all Western countries should have experienced steeply rising imprison- ment rates and steadily harshening penal policies. The developments he describes happened everywhere; imprisonment rates and policy trends, however, diverged dramatically.

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Recent research looks deeper and tries to explain imprisonment trends and penal policy differences in terms of such factors as income inequality, citizens’ perceptions of the legitimacy of governmental insti- tutions, citizens’ trust in each other and in government, the strength of the welfare state, and the structure of government. All these things matter. Moderate policies and low imprisonment rates are associated with low levels of income inequality, high levels of trust and legitimacy, strong welfare states, professionalized as opposed to politicized criminal justice systems, and consensual rather than conflictual political cultures (Lappi-Seppälä 2008). For each of those factors the United States falls at the wrong end, the end associated with more punitive policies and prac- tices, but that’s the beginning, not the end, of the search for explana- tions. The question is, Why is the United States at the wrong end of every distribution?
WHY ARE HUMAN RIGHTS CONCERNS SO WEAK IN THE UNITED STATES?
That is the $64,000 question. American politicians, and therefore ulti- mately American citizens en masse, do not much care about the human rights of opponents in the War on Terror. And, as I demonstrated earlier, Americans do not much care about the human rights of their domestic enemies in the wars on drugs and crime.
If we Americans did care much about human rights we would want to know that every human being accused of crime and threatened with punishment is treated, in Dworkin’s terms, with equal respect and concern. We would want to know that every human being accused of crime and threatened with punishment is treated, in Hegel’s terms, as a human being, not as an animal, in accord with his or her personal merits and demerits. We would oppose ham-fisted, one-size-fits-all policies that ignore offenders’ humanity and the circumstances of their offenses and their lives. We would demonstrate the characteristics that Winston Churchill, home secretary of England and Wales in 1910, said “are the symbols which in the treatment of crime and criminals mark and mea- sure the stored up strength of a nation, and are the sign and proof of the

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livingvirtueinit.”Theseinclude”constantheart-searchingbyallcharged with the duty of punishment, a desire and eagerness to rehabilitate in the world of industry all those who have paid their dues in the hard coinage of punishment, tireless efforts towards the discovery of curative and regenerating processes, and an unfaltering faith that there is a treasure, if only you can find it, in the heart of every person” (quoted in Gilbert 1992, 214).
There are four major reasons why American cultural attitudes and political practices accord so little value in our time to basic human rights even of our own citizens. Two—what has been called “the paranoid style” in American politics and a Manichaean moralism associated with fundamentalist religious views—are recurring characteristics of American society. The third is the obsolescence of the U.S. Constitution and a political culture that allows raw public emotion to drive govern- mental action and policy. The fourth, aggravating and aggravated by the first three, is the distinctive history of race relations in America.
POLITICAL PARANOIA
Richard Hofstadter, the great mid-twentieth-century American historian, described “the paranoid style” as a recurring characteristic of American politics.What is deeply disapproved is seen as evil or immoral, and few means are off-limits in pursuit of its eradication. Distinguishing clinical definitions of paranoia from the paranoid style in politics, Hofstadter wrote:
The clinical paranoid sees the hostile and conspiratorial world in which he feels himself to be living as directed specifically against him; whereas the spokesman of the paranoid style finds it directed against a nation, a culture, a way of life whose fate affects not him alone but millions of others…. His sense that his political pas- sions are unselfish and patriotic, in fact, goes far to intensify his feelings of righteousness and his moral indignation. (1965, 4, emphasis in the original)
American political paranoia waxes and wanes and finds different tar- gets at different times. It manifests itself on the left and the right, though

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in recent decades mostly on the right. In the twentieth century it waxed three times. The first was in the 1920s and 1930s and is exemplified by Prohibition, the Red Scares of the 1920s, and the xenophobia of the entire period. It wound down only when the onset of World War II gave people more important things to worry about. The second was in the late 1940s and 1950s and is exemplified by Senator Joseph McCarthy, the House Un-American Activities Committee, and the John Birch Society. It waned only when the optimism and idealism of the 1960s pushed it aside. The third, still ongoing, dates from the late 1960s and is exemplified by the recent decades’ wars on drugs, crime, welfare recipients, and illegal immi- grants, and most recently by the Tea Party movement.
Hofstadter, and many other writers, most famously Daniel Bell (1963), were trying in the 1950s and 1960s to explain the excesses of the McCarthy era and what Hofstadter called the “pseudo-conservative politics” of the emerging radical right wing of the Republican Party associated with Barry Goldwater. Here is how he described the political paranoid:
The paranoid is a militant leader. He does not see social conflict as something to be mediated and compromised, in the manner of the working politician. Since what is at stake is always a conflict between absolute good and absolute evil, the quality needed is not a willingness to compromise but the will to fight things out to a finish. Nothing but complete victory will do. (1965, 31)
The National Rifle Association and major elements of both sides of the abortion debate are contemporary single-issue examples, unwilling ever to give an inch or to acknowledge even a trace of merit in their opponents’ arguments and fearful that the slightest political loss will lead to a slippery slope on which all will be lost. As seen from the right, if banning or tighter regulation of semi-automatic weapons is countenanced every heirloom hunting rifle will soon be confiscated. As seen from the left, any tighter controls or additional conditions on sec- ond- or third-term abortions will lead inexorably to the disappearance of women’s “right to choose.”
Every political battle is crucial, Hofstadter observed. The proponents of morality will fight to the end: “The central image [held by practi-

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tioners of the paranoid style] is that of a vast and sinister conspiracy, a gigantic and yet subtle machinery of influence set in motion to under- mine and destroy a way of life” (1965, 29).
The right wing of the Republican Party deserves most of the blame for the impoverishment of American criminal justice policy since the 1970s and the diminution of human rights values in it, just as it deserves the blame for Abu Ghraib, Guantánamo, rendition, and the “torture memo.” I can remember as a boy in the 1950s wondering what the “Impeach Earl Warren” billboards were about. They were placed beside American highways throughout the country by the John Birch Society. Warren’s impeachable offenses, I much later came to under- stand, related to Brown v. Board of Education, 347 U.S. 483 (1954), the Supreme Court’s landmark decision declaring segregated schools unconstitutional, and the Court’s early, halting efforts to strengthen the procedural protections afforded criminal defendants.
In the 1950s the John Birch Society was widely seen as a radical fringe group. By the 1960s many of its views had been adopted by Goldwater and the (then) far right wing of the Republican Party. Hofstadter observed that Goldwater “arrived at the position, far from conservative in its implications, that the decisions of the Supreme Court are ‘not necessarily’ the law of the land. . . . It is only in our time, and only in the pseudo-conservative movement, that men have begun to hint that dis- obedience to the court is not merely legitimate but the essence of con- servatism” (1965, 99-100).
By the 1970s such views became mainstream Republican doctrine. The John Birch Society’s effort to impugn the integrity of the courts and to reduce their legitimacy in the eyes of the American people has remained a prevailing theme of the American right, with pernicious effects.
One consequence has been the declining legitimacy of the courts and the legal system in the eyes of the American public, as the John Birch Society and its successors wanted.”Impeach Earl Warren” was fol- lowed by forty years of attacks on “activist” and “lenient” and “liberal” judges who were said to be frustrating the will of the people. This is a bit odd inasmuch as conservative Republican presidents have appointed most sitting federal judges since 1968, and Democratic President Bill

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Clinton never fought very hard to appoint liberal judges. Nor so far has President Barack Obama. Republican presidential aspirants’ speeches even in 2008 regularly decried “activist” “liberal” judges.
Research on public opinion about punishment tells a subtle story about the effects of conservatives’ efforts to undermine the legitimacy of the judicial system. Tom Tyler (2006) and others have demonstrated the importance of the perceived legitimacy of legal institutions in the eyes of people they affect. People who believe that police and judges treat them impartially and fairly, consider their interests, and listen to their stories are more likely to respect legal institutions and to accept adverse decisions as appropriate than are people who believe they are treated unfairly. Neither Hegel nor Dworkin would be surprised by this. A dif- ferent conception of legitimacy instructs that citizens who believe insti- tutions operate fairly and honestly are more likely to respect them in general than are people who do not believe these things. Duhh!
The unhappy consequences of a half-century’s effort to undermine the legitimacy of the courts can be seen when Americans’ attitudes are compared with those of people in other countries. In both the United States (Roberts et al. 2003) and the Netherlands (Elffers and de Keijser 2006), for example, public opinion research has examined whether citizens believe judges sentence too severely, too leniently, or just right, and what sentences citizens say they themselves would impose in particular cases. The findings from English-speaking countries show that large majorities of citizens believe judges sentence too leniently. However, when the sentences citizens say they would impose are com- pared with those judges do impose, the comparison almost always shows that judges impose longer sentences than citizens say they would. Citizens’ beliefs about sentences are not based on the ordinary run-of-the-mill cases that make up the bulk of court dockets, but on aberrant or special cases that are distinctive or sensational enough to attract media attention. As a result most people systematically underes- timate the sentences typical offenders receive.
A parallel but more nuanced body of research in the Netherlands produces similar and also strikingly different findings. Do Dutch citi- zens believe judges sentence too leniently? Yes. Do judges know that citizens believe this? Yes.

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So far the story is the same, but then it diverges. Do Dutch judges impose sentences less severe than Dutch citizens would? Yes. Dutch cit- izens, unlike American citizens, are right: judges are less severe than citizens say they would be.
But now the corker: Do Dutch citizens believe judges should impose harsher sentences in order to reflect citizens’ preferences? No. That last finding is unimaginable in the United States. For decades voters have been electing politicians who run against “lenient” judges.
How do Dutch citizens explain this finding, which to Americans is bizarre? It’s easy. They trust their judges. They say that it is the judge’s job to consider the facts of cases, consult the relevant laws, and then in good faith make decisions he or she believes to be right. For a judge to do anything else would be to make a decision he or she believed to be wrong, and that’s incompatible with what an honest, conscientious judge is supposed to do.
Why would Americans have such a different outlook? To a large extent it is because conservative politicians’ efforts for fifty years to dele- gitimize judges have sunken in. And partly it is because many American judges and prosecutors are blatantly political. Dutch judges, like those of most developed countries, are apolitical career civil servants who are selected meritocratically. Most American judges are chosen in partisan political elections, and for limited terms. Many run for office spending campaign funds donated by lawyers who practice before them, and most of the rest are appointed in partisan political ways. It doesn’t take a great deal of cynicism for Americans to believe that what prosecutors and judges do is influenced by their political self-interest and the possible effects of their decisions on future electoral or other political prospects.
If judges cannot be trusted to handle cases brought against alleged terrorists and criminals, then other agencies of government must do it. If alleged terrorists and offenders and drug dealers and illegal immi- grants and welfare recipients are evil, the embodiment of immoral behavior, then of course their interests need not be taken into account in deciding how to address the threats they represent.
All of us in our personal lives want to be treated with equal respect and concern in proceedings that affect us and our interests and our loved ones and their interests. The paranoid style, however, has too often

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led policy makers to forget that their enemies are human beings and to abandon the sympathy and mutual respect that distinguish human beings from animals. From that forgetting come Guantánamo and Abu Ghraib and three-strikes laws and life sentences without the possibility of parole for children.
RELIGION AND MORAL INTOLERANCE
Several of the British colonies in America were established by people fleeing religious intolerance—the Puritans in Massachusetts Bay, the Quakers in Pennsylvania, and Roger Williams’s nonconformists in Rhode Island are the classic examples. Even so, within a half century people were being killed for religious reasons. Kai Erikson’s Wayward Puritans (1966) is most famous for its account of the Salem witch trials. It also describes, however, a gradual descent into intolerance in Massachusetts that led to the maiming and execution of Quaker mis- sionaries who dared express divergent religious views. And, lest we forget, the “witches” in Salem were executed because they were adjudged to be heretics.
A sizable historical literature on nineteenth-century America recounts recurring episodes of religion-based intolerance (e.g., Myers 1943; D. B. Davis 1960). Usually these were related to the status anxieties and xenophobia of established groups triggered by the in-migration of new ethnic groups, often bringing their own religions and worldviews. The temperance movements in the middle and again in the late nineteenth century, for example, usually involved status conflicts bet- ween abstemious descendants of earlier Protestant settlers and newly arrived, more bibulous Catholics (Gusfield 1963). In much the same way moralistic crusades against drugs and crime in our time have provided devices for fundamentalist Protestants to express disapproval of and social distance from people different from them, including black Americans.
Similar patterns existed in other times. David Garland (2005) has demonstrated that lynchings in America during their peak period, 1890-1930, were in significant part the product of status anxieties among southern white Protestants. In the 1920s the Ku Klux Klan defined itself

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primarily as a campaign to preserve Christian values: “The Klan drew heavily on white evangelical Protestants for its mass membership, and evangelical clergy were disproportionately prominent among the lead- ership” (Wald and Calhoun-Brown 2007, 208).
When Hofstadter wrote in the 1960s it was apparent that the funda- mentalist Protestant groups, which were rapidly expanding and becoming prosperous, made up one important strand of the paranoid style of his era. He observed, “Most prophetic of the future of the right wing was [McCarthy’s] strong appeal for fundamentalist-oriented Protestants” (1965, 70).
In our time it is clear that some (though definitely not all) funda- mentalist Protestant groups are among the strongest proponents of the paranoid style of contemporary politics concerning issues ranging from the war in Iraq, support for Israel against the Palestinians, and opposi- tion to abortion and gay rights to support for capital punishment and severe criminal justice policies. The notion that these are issues of good versus evil, of absolute right and absolute wrong, helps explain the reli- gious right’s fervor and its intolerance.When added to the resurgence in recent decades of the paranoid style in American politics it is small wonder that the interests of people seen as enemies or threats typically receive short shrift.
Taken together these events and ideas make the success of the Republican Southern Strategy, and its effects on crime control policy and black Americans, more understandable. The civil rights movement produced status anxiety among white southerners, worried about main- taining their traditional higher status than that of blacks, and among working-class white voters, worried about economic and social threats newly empowered blacks might pose. Because politicians after 1970 no longer could openly appeal to antiblack sentiments they used code words, one of which was crime. The wars on drugs and crime rapidly expanded as politicians kept their promises. Because it was dispropor- tionately black people who went to prison white voters felt able com- fortably to pay that price, especially since it perpetuated the economic and social tradition of white dominance over a socially disorganized black underclass.

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The sizable political science and religion literatures on religion and politics in the United States are silent, except in passing, on the influence of Protestant fundamentalism on American crime policy generally. They focus on abortion, women’s and gay rights, and separation of church and state. None of the major recent works includes the terms crime or capital punishment in its index (e.g., Layman 2001; Green 2007). One leading work, however, Religion and Politics in the United States (Wald and Calhoun-Brown 2007), explains how and why Protestant fundamentalism shaped American crime control and punishment pol- icies for three decades. Whereas Catholics and mainstream Protestants espouse a commitment to social welfare consonant with their belief in “a warm, caring god,” the fundamentalist “image of a cold and authori- tative deity lends support to government’s role in securing order and property” (121). Richard Snyder, a former dean at New York Theological Seminary, explains the fundamentalist vision this way: “If we believe that all persons are essentially corrupt save for the extraordinary inter- vention of God’s grace in their lives, it is a simple step to think that those who are poor, or sick, or in trouble with the law, or different from us in any way are somehow evil. The redeemed are God’s children; the unre- pentant are children of Satan” (2001, 14).
Fundamentalists are “characterized by a quest for certainty, exclu- siveness, and unambiguous boundaries” and attempt “to chart a morally black and white path out of the gray zones of intimidating cultural and religious complexity” (Nagata 2001, 481). In its 1995 Contract with the American Family Pat Robertson’s Christian Coalition accordingly called for increased penalties for convicted criminals (Wald and Calhoun- Brown 2007, 351). A year later Bennett, DiIulio, and Walters (1996) pro- duced the fullest elaboration of fundamentalist crime control policy analysis ever published.
The near absence of crime control and punishment from the politics and religion literature is odd. The nexus seems self-evident. The Republican resurgence of the past forty years is attributable in large part to the Southern Strategy. The political influence of the religious right on Republican politics is well known (e.g., Green 2007). As one major review of the literature on fundamentalism and conservative politics

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observed, “The [religious right] enjoys something like a veto power in the Republican Party” (Woodberry and Smith 1998, 48).
By contrast the criminology literature, though small, has ferreted out the connection. Unnever, Cullen, and Applegate’s examination of atti- tudes toward capital punishment concludes that those fundamentalists “who have a rigid and moralistic approach to religion and who imagine God as a dispassionate, powerful figure who dispenses justice are more likely to harbor punitive sentiments toward offenders” (2005, 304). A slight but fascinating article based on a representative survey of Oklahoma City residents showed that Protestant conservatives viewed nearly all crimes as “very wrong” and thus did not differentiate among them in terms of seriousness (Curry 1996, 462). This finding goes a long way toward explaining why traditional ideas about proportionality in punishment are irreconcilable with many modern three-strikes, mandatory minimum, and life without the possibility of parole laws.
CONSTITUTIONAL STRUCTURE
“It can be argued, of course,” Hofstadter observed, “that certain features of our history have given the paranoid style more scope and force among us than it has had in many other countries of the western world” (1965, 7). Outmoded constitutional arrangements are among the most important of those explanatory features. Those arrangements provide little insulation from the influence of paranoid politics, fundamentalist moralism, and short-term emotionalism when they arise.
Major elements of the U.S. constitutional system are designed to address eighteenth-century problems. They make the United States almost uniquely vulnerable to the policy excesses associated with the paranoid style and religious fundamentalism.
Extreme politicization of criminal justice policy is directly related to whether prosecutors and judges are selected politically or meritocrati- cally, whether they are career professionals or political opportunists, and whether political and constitutional conventions allow elected politicians to participate in decision making about individual cases. These three considerations fundamentally differentiate the United States from most other Western countries. Almost nowhere else are judges

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or prosecutors politically selected; usually they are career civil servants who begin specialized training in law school. And almost nowhere do prevailing conventions justify a direct political voice in punishment decisions (Tonry 2007).
The U.S. Constitution was written to address eighteenth-century problems and reflects eighteenth-century ideas. The colonists were angered by governance by a distant British Parliament in which they were not represented (remember from elementary school the revolu- tionary-era slogan “No Taxation without Representation”?); capricious actions by imperious local representatives; and the inability of citizens to seek redress for grievances. The principal solutions centered on pro- tection of individual liberty and insulation of citizens from the power of an overweening government. Protection of individual liberty was addressed by adoption of the Bill of Rights, creating fundamental personal rights (speech, religion, redress for grievances) and entitle- ments (jury trials, representation by counsel, no unreasonable searches and seizures, no cruel and unusual punishments).
Protection from an overweening government was sought in two ways. First, complicated systems of checks and balances were created to fragment governmental power, principally by creating a strong horizontal separation of powers among the three branches of the federal government, and by a vertical differentiation of the spheres of interest of the federal and state governments (which in turn have their own sys- tems of horizontal and vertical separations of power). Second, provi- sions in the federal Constitution calling for frequent elections to the House of Representatives (two years) and presidency (four years), and in state constitutions for frequent elections at county levels for state leg- islators, judges, and prosecutors, were meant to push major elections to local levels, to require them at short intervals, and thereby to make offi- cials accountable to local opinion.
The results more than two hundred years later include in many states partisan elections of judges and prosecutors who run for office on the basis of emotive appeals. If the public is anxious about crime or angry at criminals, or if particular cases become notorious, there is nothing to stop prosecutors from seeking personal political benefit by posturing before public opinion or handling cases in particular ways only because

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they have become notorious. Because local prosecutors are accountable through elections and are in the executive branch of government, the U.S. Supreme Court has held that their discretionary decisions are effec- tively immune from judicial review (allegations of corruption are the principal exception; Bordenkircher v. Hayes, 434 U.S. 357 [1982]). Judges also are elected in most states and know that decisions that are highly unpopular with much of the public can lead to their defeat.
Most chief prosecutors and many judges aspire to be elected or appointed to higher political or judicial office, which means that they worry about controversies that might diminish their future professional prospects, and no doubt sometimes deal with particular cases in particular ways to curry popular approbation or avoid popular con- demnation. Criminal justice issues are openly politicized and polemi- cized in local elections of judges and prosecutors. It is not surprising that candidates for state and federal legislatures and governor and president do likewise, even though they have no direct roles to play in handling individual cases.
Constitutional arrangements place the United States at one end of a continuum distinguishing consensual from conflictual political systems (e.g., Lijphart 1999). Consensual political systems are usually character- ized by more than two major political parties, coalition governments, proportional representation, and multiseat electoral districts. Major policy decisions are based on broad consultation within and outside the coalition government. Even after elections resulting in changes of government, major policy decisions are seldom altered abruptly. This is partly because a new coalition government is likely to contain parties from the old coalition, and partly because parties newly in power are likely to have been involved in the development of policies of the former government.
Conflictual political systems are typically characterized by two major parties, single-party governments, first-past-the-post electoral systems, and single-member districts. Elections are winner-take-all events. Parties that are out of power often define their positions in opposition to those of the government of the day and, not having played a major role in developing existing policies, have no particular reason to main- tain them. Dramatic changes in direction are much more common in

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conflictual than in consensual systems, partly because the newly elected government campaigned against existing policies and feels obligated to change them.
Its eighteenth-century governmental institutions have made the United States the paradigm case of a conflictual system. Most European constitutions by contrast took shape in the twentieth century and aimed to assure broad-based political representation. They diffused rather than concentrated political power and provided for parliamentary rep- resentation of any party receiving votes above a designated minimum, often 5 percent.
No other Western country has a constitution primarily designed to address eighteenth century problems. All except that of England and Wales include entrenched bills of rights. Most were designed to address the challenges of pluralistic societies and call for electoral systems of proportional representation. Most are generally governed by multiparty coalitions. Policy making on important subjects is generally based on wide consultation within the coalition, with other political parties, criminal justice professionals, NGOs, and interest groups. This takes time. Several years often elapse between initial proposals for changes and their eventual enactment. Changes based primarily on political impulses, overwrought emotions, and short-term political consider- ations happen, but they are not common.
The constitutional features of American government, by contrast, make the United States uniquely susceptible to the wholesale politiciza- tion of criminal justice policy. The structure of American government was meant to tie officials closely to community needs and beliefs, and democratic ideology celebrated the importance and influence of public opinion, even if it was ill-informed, mercurial, or mean-spirited. Constitutional draftsmen worried about the dangers that passing pas- sions would sometimes produce unjust laws. If public emotions become generally inflamed, as happened after the events of September 11, the inflammation is likely to be widespread. James Madison, in Federalist Paper No. 10, observed,”The form of public government…enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. . . . A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and

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concert result from the form of government itself; and there is nothing to check the inducements” to adopt rash, unwise, or unjust policies (Hamilton, Madison, and Jay 2006 [1818]).
Democracies ultimately have no protection against majorities’ oppression of minorities, Madison admitted, but he took solace in the protections offered by the dispersion of political power: “The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States.” Unjust laws might be enacted in Illinois, but that does not mean they will be enacted anywhere else. When Madison wrote and for nearly two centuries later, he was right. Travel across the United States took time, there were no electronic media, newspapers dealt mostly in local news, and advocacy groups could not develop the infrastructure to be active throughout the country.
The problems Madison worried about did not fully take shape until late in the twentieth century, when ubiquitous electronic and broadcast media meant that detailed reports of horrible incidents anywhere, and ensuing emotionalism could sweep across an entire continent. Most Americans, probably most citizens of the world, saw pictures of airplanes hitting the World Trade Center. Most Americans quickly learned of the tragedies of Polly Klaas and Megan Kamka, and of the villainies of Willie Horton. A form of government that is designed to respond quickly to changes in public opinion is not well placed to resist emotional calls to enact harsh laws to punish bad people or to protect good ones.
Crime rates rose throughout the United States for twenty-five years beginning in the 1960s. The Republican Southern Strategy placed crime at the center of the political agenda. Conservative politicians cam- paigned repeatedly for tougher laws and longer sentences. Small wonder that nearly every American state enacted harsher laws and experienced sharp rises in the number of people in its prisons.
RACE
The history, psychology, and sociology of American race relations, dis- cussed in chapter 4, combine into the fourth explanation. Unlike the first three its logic applies more to domestic than to foreign enemies,

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unless lack of empathy for the minority enemies in the wars on drugs and crime, people who look and seem different from the majority white population, is extended by analogy to the enemies in Iraq and Afghanistan and elsewhere, who also seldom look much like the white American middle class.
American political culture has still not come to grips with the legacy of slavery and Jim Crow. I used to get a bit impatient with people who seemed to see the half-empty glass of American racial progress rather than the half-full one of enduring injustice, but I am now convinced that I was wrong.
Obliviousness to the interests of black Americans continues to char- acterize American drug and crime control policies. Racial disparities in imprisonment continue to be driven by policy choices that should have been foreseen when enacted, and are indubitably recognized now, to affect disadvantaged black Americans disproportionately.
These sad patterns of racial insensitivity, however, make sense in light of the other three explanations. If crime and drugs are matters of good and evil, and criminals and drug users are evil, then there is little reason to expect sympathy or solicitude toward them from the holders of those views. If many whites harbor racial resentments of black peo- ple and are affected by unconscious stereotypes of black criminals there is little reason to expect them to sympathize with black suspects, defendants, or prisoners. People on death row or serving lifetime without the possibility of parole or decades-long prison terms deserve what they get, and once they get it there is no reason to think further about them.
Analyses of social stratification and racial hierarchy discussed in chapter 4 make it clear how and why the race card was played, as Hofstadter predicted more than forty years ago. Although, he observed, Republicans historically had sympathy with the plight of blacks in the South,
By adopting “the Southern strategy,” the Goldwater men aban- doned this inheritance. They committed themselves not merely to a drive for a core of Southern states in the electoral college but to a strategic counterpart in the North which required the search for

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racist votes. They thought they saw a good mass issue in the white backlash which they could indirectly exploit by talking of violence in the streets, crime, juvenile delinquency, and the dangers faced by our mothers and daughters. (, )
What is distinctive about our time, compared with the 1950s and 1960s about which Hofstadter wrote, and compared with earlier periods of American history, is that the paranoid style of American politics moved from the fringes to the center and has for much of the past thirty years set the tone for policies concerning internal and external enemies. The only way the paranoid style will lose its power is if Americans stop elect- ing its practitioners and thereby show that the boundaries of political permission within which government may operate have narrowed. Thus the answer to the question I asked at the outset—”How does it happen that American governments routinely violate the human rights of their enemies, domestic and foreign?”—is that majorities of American voters have allowed them to do so.
One of the things most people know about Socrates is the aphorism “The unexamined life is not worth living.” Among the things the apho- rism means is that we should know who we are and how and why we are and what we believe, and that knowing those things we will want to make ourselves better. The same should be true of countries, and for some countries it is. After World War II, Europeans learned the dangers of the too-powerful state and the importance of protecting individuals from it. That’s one reason why European governments and institutions have been reluctant to deny procedural protections to people alleged to be terrorists and why most European governments loudly condemn Abu Ghraib, Guantánamo, rendition, and the use of torture. And it’s a reason why other Western countries have abolished capital punishment and why they have not followed the American lead in adopting life without the possibility of parole, three-strikes laws, and prison sen- tences measured in decades, and why they refuse to treat children as if they were adults. Other Western countries have decided that human rights matter and, using a metaphor long ago proposed by Ronald Dworkin (1977), should be treated as trumps when they conflict with what governments want to do.

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Winston Churchill also observed, “The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country” (quoted in Gilbert 1992, 214). The United States fails by a huge margin to pass Churchill’s test, and more than anyone else, black Americans bear the burdens of that failure.