In delivering the first annual Barrock Lecture on Criminal Law yesterday, Yale Professor Tracey Meares set a high bar for future speakers. (A webcast is available here, and a written version will appear in the summer issue of the Marquette Law Review.) Tracey’s talk was a call for police to move from an emphasis on deterring crime through the threat of harsh punishment to a more holistic approach to crime control that includes promoting more positive attitudes towards the law and legal authorities. She identified procedural justice — basically, treating people with fairness and respect — as an important component of the more holistic strategy. Her particular concern lies with crime and policing in inner-city, minority neighborhoods, where punishment-alone approaches have resulted in shockingly high incarceration rates among young, poorly educated, African-American men. Tracey argues that an approach combining punishment with procedural justice offers better prospects for reducing crime and improving the quality of life in these difficult environments, and points to her own work with Project Safe Neighborhoods in Chicago as an example of the violence-reduction that can be accomplished when the police engage with the community in new ways.
I recently made a similar argument that the same sorts of benefits might be derived from prosecutors paying more attention to procedural justice in plea bargaining. (A copy of my article is available here.)
As Tracey indicated in her talk, there is plenty of evidence indicating that deterrence has limited value as a crime-control strategy.
This is not to deny that punishment may produce some deterrence effects, but it is to say that merely increasing punishment in order to reduce persistently high crime rates is not likely to be the most effective strategy, and may even become counterproductive at some level of punishment severity. (Indeed, such a point of negative marginal returns has arguably been reached in some high-crime, high-incarceration urban neighborhoods.) There is also plenty of evidence to support the hypothesis that, when people interact with the police, their views of the police are shaped at least as much by how respectfully they are treated as by the outcome of the interaction. All of this lends plausibility to Tracey’s view that procedural justice has played an important role in the success of Project Safe Neighborhoods.
Like Tracey, my plea-bargaining article also emphasizes the potential crime-control benefits of procedural justice. But I think it is also important to note there is an ethical dimension to procedural justice. Regardless of what a person has done or is suspected of doing, it is necessary to separate the misconduct from the person, and to recognize that the person has an essential worth — that basic dignity that inheres in all human beings — that must always be respected. Of course, police officers must be given the authority to protect themselves and the communities they serve, but unnecessary degradation of others should always be avoided — regardless of whether respectful treatment also happens to produce a crime-reduction benefit. Likewise, an excessive reliance on deterrence-based approaches also raises important ethical concerns. When punishment reaches a level of gross disproportionality to the severity of the crime — see, for example, California’s notorious “three-strikes” law, which has imposed sentences of 25 years to life on shoplifters — then punishment can no longer be viewed as something that is morally deserved by the offender. And if the punishment is backed merely by dubious theories of deterrence (or incapacitation), then it appears we are imposing the sort of needless suffering on others that is inconsistent with respect for their equal dignity as fellow human beings.