America’s ‘Era of Punitive Excess’ Must End, say Leading Criminologists

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Two of the country’s prominent criminologists have called for a “roll back” of the massive U.S. justice infrastructure which, they argue, has allowed an excessive punishment regime to flourish at the expense of the most marginalized sectors of American society.

Reversing a trend that has been decades in the making means replacing both the laws and the policymakers responsible for a system that imprisons African Americans at a rate six to eight times higher than for whites―and incarcerates Latinx individuals at rates of between 1.5 to two times higher, wrote Jeremy Travis and Bruce Western in an essay published Tuesday by the Brennan Center for Justice at New York University Law School.

“In its multiple manifestations, damaging impact, political durability, and unbridled reach into all aspects of American life, the modern expression of society’s need to marginalize the poor and people of color through criminalization and punishment has become a stubborn social fact,” they assert.

Jeremy Travis

Jeremy Travis

The article, co-written by Travis, Executive Vice-President of Criminal Justice at Arnold Ventures, and Western, a professor of sociology at Columbia University, introduces a series of essays to be posted in the coming months by experts in criminal justice as well as impacted people exploring what the authors call the “Era of Punitive Excess.”

Travis and Western, co-founders of the Square One Project at the Columbia Justice Lab, have long been prominent advocates for policies to reduce mass incarceration. But their essay took their arguments into the realm of social activism in its pull-no-punches appeal for “mobilization.”

“An all-out mobilization is required to roll back the harmful reach of the state in the operations of a justice system that causes so much injustice,” they wrote.

“We applaud the efforts of those who tackle these challenges. Yet a clear-eyed realization of how far the country has strayed from the path of true justice requires more than system reform.”

Arguing that the country faces a “democracy deficit,” Travis and Western note that the laws and regulations responsible for America’s harsh punitive policies were passed by elected representatives, and enforced by elected prosecutors, judges and mayors who, in turn, appointed the police chiefs to carry out their “tough-on-crime” strategies.

Those who hope for a change will need to be just as determined to make their opinions felt at the ballot box, they suggested.

Bruce Western

Bruce Western

“If the past half-century demonstrated the electoral effectiveness of tough-on-crime rhetoric, then reversing the trends we have observed will require a new public discourse about how best to respond to harm,” they wrote.

Acknowledging that those most effected by the “era of punitive excess” were not politically powerful, they pointed to “hopeful signs” of a change in the political climate, ranging from the election of reformist prosecutors in many cities, to last summer’s nationwide protests following the police killing of George Floyd.

Most encouraging, they said, was the election of a “new national administration explicitly committed to reversing the most harmful policies of the past.”

But they added that long-term change must also be informed by a national debate about the purposes and practices of punishment in a democracy.

“How can a society respond to harm while minimizing the imposition of punishment?” they asked.

“Even more, can our society respond to harm in ways that respect the human dignity of all involved, do not exacerbate conditions of poverty, provide communities with agency over communal life, and promote healing and racial justice?”

‘Entrenchment of Racial Hierarchy”

However, two essays released simultaneously with the introductory article offered a discouraging outlook for a serious national reckoning with the abuses of the U.S. carceral state.

Unless the nation comes to grips with the role played by the justice system in the “entrenchment of racial hierarchy,” little is likely to change, warned Theodore R. Johnson, a senior fellow at the Brennan Center.

“The ugly truth lurking within the nation’s structures and policies – one that the criminal justice system crystallizes with astonishing clarity—(is) the unwillingness to confront a history of racial oppression and the continued devaluation of people of color,” Johnson wrote.


Theodore Johnson

In a similar vein, Jonathan Simon, the Lance Robbins Professor of Criminal Justice at UC Berkeley, wrote that U.S. justice reform was still hostage to “powerful punitive myths that have become a genuine American civil religion.”

Beliefs, for example, that punishment was the primary instrument of rehabilitation for wrongdoers have “enjoyed extraordinary popularity in our history, helping to make criminal law one of the primary subjects of both popular entertainment and electoral politics,” Simon wrote.

“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.”

All three essays can be downloaded here.

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