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Thinking about Crime: Sense and Sensibility in American Penal Culture
In this wide-ranging analysis, Michael Tonry argues that those responsible for crafting America's criminal justice policy have lost their way in a forest of good intentions, political cynicism, and public anxieties. American crime control politics over time have created a punishment system no one would knowingly have chosen yet one that no one seems able to change. Prevailing sensibilities rather than timeless truths govern the American war on crime, resulting in policies both wasteful and harsh. U.S. crime trends closely resemble those of other nations, yet American policies, shaped by different sensibilities, are much more punitive.
Seamlessly blending history with an easy presentation of day-to-day realities and empirical evidence, Tonry proposes tangible, specific solutions that can serve as a platform for criminal justice reform. We know how to create an effective and humane criminal justice system. Now we must have the courage to do so, by abandoning the current status quo, which is both costly and cruel in favor of practices that will move America closer to the mainstream of contemporary Western values.
Seamlessly blending history with an easy presentation of day-to-day realities and empirical evidence, Tonry proposes tangible, specific solutions that can serve as a platform for criminal justice reform. We know how to create an effective and humane criminal justice system. Now we must have the courage to do so, by abandoning the current status quo, which is both costly and cruel in favor of practices that will move America closer to the mainstream of contemporary Western values.
272 pages, Paperback
First published January 1, 2004
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About the author
Michael Tonry
104 books14 followersProfessor Michael Tonry is the McKnight Presidential Professor of Criminal Law and Policy, director of the Institute on Crime and Public Policy of the University of Minnesota, and a Scientific Member of the Max Planck Institute on Comparative and International Criminal Law in Freiburg, Germany. Previously he was professor of law and public policy and director of the Institute of Criminology at Cambridge University. Since 2001, he has been a visiting professor of law and criminology at the University of Lausanne, Switzerland, and since 2003, a senior fellow in the Netherlands Institute for the Study of Crime and Law Enforcement, Free University Amsterdam. He has been a Fellow of All Souls College, Oxford, and has held visiting posts at the University of Leiden, The Netherlands, and the Max Planck Institute in Freiburg.
Professor Tonry is author or editor of a number of books including Between Prison and Probation (with Norval Morris; OUP 1991), Malign Neglect (OUP 1995), Sentencing Matters (OUP 1996), Thinking About Crime (OUP 2004), Punishment and Politics—Evidence and Emulation in the Making of English Penal Policy (Willan 2004), Punishing Race (OUP 2011), and, as editor, Prosecutors and Politics in Comparative Perspective (Chicago 2012) and Crime and Justice in America, 1975-2025 (Chicago 2013).
In earlier careers, Professor Tonry was a commercial lawyer with large law firms in Chicago and Philadelphia, practiced as a sole practitioner in Castine, Maine, and directed a private sector research firm. He founded and, from 1987 to 1990, directed the MacArthur Foundation-United States Department of Justice Program on Human Development and Criminal Behavior. From 1986 to 1990, he was editor and publisher of The Castine Patriot, a weekly small town newspaper; from 1990 to 1999, editor of Overcrowded Times—Solving the Prison Problem; and from 2000 to 2010, editor of Criminology in Europe. He founded and edits Crime and Justice - A Review of Research and three Oxford University Press book series: Studies in Crime and Public Policy, Oxford Handbooks on Criminology and Criminal Justice, and (with Antony Duff) Studies in Penal Theory and Philosophy.
Professor Tonry is author or editor of a number of books including Between Prison and Probation (with Norval Morris; OUP 1991), Malign Neglect (OUP 1995), Sentencing Matters (OUP 1996), Thinking About Crime (OUP 2004), Punishment and Politics—Evidence and Emulation in the Making of English Penal Policy (Willan 2004), Punishing Race (OUP 2011), and, as editor, Prosecutors and Politics in Comparative Perspective (Chicago 2012) and Crime and Justice in America, 1975-2025 (Chicago 2013).
In earlier careers, Professor Tonry was a commercial lawyer with large law firms in Chicago and Philadelphia, practiced as a sole practitioner in Castine, Maine, and directed a private sector research firm. He founded and, from 1987 to 1990, directed the MacArthur Foundation-United States Department of Justice Program on Human Development and Criminal Behavior. From 1986 to 1990, he was editor and publisher of The Castine Patriot, a weekly small town newspaper; from 1990 to 1999, editor of Overcrowded Times—Solving the Prison Problem; and from 2000 to 2010, editor of Criminology in Europe. He founded and edits Crime and Justice - A Review of Research and three Oxford University Press book series: Studies in Crime and Public Policy, Oxford Handbooks on Criminology and Criminal Justice, and (with Antony Duff) Studies in Penal Theory and Philosophy.
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Displaying 1 - 5 of 5 reviews
January 3, 2024
A little dated now that the First Step Act has become law, but still many great insights
Here are my notes:
The United States has a punishment system that no one would knowingly have built from the ground up. It is often unjust, it is unduly severe, it is wasteful, and it does enormous damage to the lives of black Americans.
What was in effect a form of false consciousness led drug and crime policy makers to adopt policies that were too harsh, too simple, and too wasteful.
P.12 Many Americans appear to believe that crimes occur primarily because offenders are bad people because punishments are insufficiently severe. If that is true, incapacitating the incorrigibly bad people and threatening lengthy prison sentences for the others should reduce crime rates.
P.19 The American system ties criminal justice policies and decisions in individual cases to election returns and to officials’ personal and political self-interest. Rather than buffer policy and decisions about individuals’ fates from emotional overreactions, moral panics, and changing sensibilities, American institutional arrangements are almost designed to assure their influence.
P.23 The risk society story is that the insecurities and social isolation of our times have made us preoccupied with uncertainty, danger, and risk. Modern crime control and penal policies accordingly are concerned above all to identify, quantify, and reduce risk or the perception of risk. Insecurity is so profound and so pervasive that traditional concerns about fairness, justice, and equality have become unaffordable luxuries.
P.51 [Postmodernist Angst] Few people were unaffected by recessions, globalism, or economic restructuring; nor by social changes associated with the women’s, civil rights, and and gay rights movements; nor by increased immigration, ethnic diversity, and cultural pluralism. Routines and expectations had to change. Peoles’ lives became less constrained and predetermined but greater autonomy and wider possibilities brought greater uncertainty. Values and certainties were undermined and questioned. And, for much of the last thirty years, crime rates increased and fear of crime penetrated into more peoples’ lives, and more deeply. Most crimes, especially the street and violent crimes that are most feared, are committed by people at the social and economic margins, and disproportionately by members of racial and ethnic minorities.
P.52 Garland’s story has four main components. The first is the salience of “high crime rates as a social fact. The second is the use of expressive punishments as a demonstration of state sovereignty. The third is the risk society story of instability, change, risk, insecurity, anxiety, and displacement. The fourth is the “criminology of the other.”
P.54 The outcast in the social and political climates of the 1980s and 1990s inevitably were the welfare poor, urban blacks, and marginalized working-class boys.
P.56 Garland’s account of the relationship between postmodernist angst, crime control policies, and punishment practices, notwithstanding its many merits, does not explain why U.S. policies are as they are.
P.93 reasonable people, for example, differ about the desirability of the sex-offender registration procedures required by “Megan's Laws.” Opponents or skeptics see them, or at least some of their features, as the undesirable fruits of a moral panic– overbroad, stigmatizing, and inviting vigilantism. Proponents, however, see that tragic death as having, at last, focused attention on the need for more effective protection of children from sex offenders and provided some momentum to the effort to achieve it.
P.99 Durkheim argued that one of the criminal law’s functions is to identify and reinforce basic social ideas about right and wrong, that “crime brings together upright consciences and concentrates them.” The criminal law is seen as performing a dramaturgical function, with punishment directed primarily at the community and not at the offender, and working not directly through deterrence and incapacitation but indirectly through affirmation and reiteration of basic norms.
P.162 [Reintegrative shaming] Braithwaite’s notion is that reactions to crime should simultaneously express disapprobation and support, in much the same way as parents communicate to children that they have misbehaved but that they are still loved.
P.172 In the 1970s, there were heated and extended political fights over preventive detention. Due process champions for years successfully opposed federal adoption of legislation that would permit persons accused of crimes to be confined before trial because of dangers they might present to public safety. Defendants are presumed innocent, the argument went, and pretrial confinement is allowable only to assure defendants’ presence at trial. Detention for any other reason except in the case of capital crimes is an unconstitutional invasion of citizens’ liberty interests.
P.202 Precisely how severely criminals may justly be punished depends on why punishments are imposed, and reasonable people differ in their views about this. Retributivists believe that punishment should be tied closely to offenders’ blameworthiness, and that the amount of punishment should be scaled to the relative seriousness of their crimes. The more serious the crime, the severe the deserved punishment, and vice versa.
Consequentialists believe that punishment can be justified only in terms of its good effects. Consequentialists also believe that pain and unhappiness, including those of offenders, are undesirable. Punishments accordingly may be imposed only to such an extent as can be justified on the basis of evidence or plausible hypothesis that their crime prevention effects will prevent more pain and unhappiness than they cause.
P.218 Certainty of punishment is what matters, not severity. Nor does existing evidence on the incapacitative or rehabilitative effects of prion support current sentence lengths.
Here are my notes:
The United States has a punishment system that no one would knowingly have built from the ground up. It is often unjust, it is unduly severe, it is wasteful, and it does enormous damage to the lives of black Americans.
What was in effect a form of false consciousness led drug and crime policy makers to adopt policies that were too harsh, too simple, and too wasteful.
P.12 Many Americans appear to believe that crimes occur primarily because offenders are bad people because punishments are insufficiently severe. If that is true, incapacitating the incorrigibly bad people and threatening lengthy prison sentences for the others should reduce crime rates.
P.19 The American system ties criminal justice policies and decisions in individual cases to election returns and to officials’ personal and political self-interest. Rather than buffer policy and decisions about individuals’ fates from emotional overreactions, moral panics, and changing sensibilities, American institutional arrangements are almost designed to assure their influence.
P.23 The risk society story is that the insecurities and social isolation of our times have made us preoccupied with uncertainty, danger, and risk. Modern crime control and penal policies accordingly are concerned above all to identify, quantify, and reduce risk or the perception of risk. Insecurity is so profound and so pervasive that traditional concerns about fairness, justice, and equality have become unaffordable luxuries.
P.51 [Postmodernist Angst] Few people were unaffected by recessions, globalism, or economic restructuring; nor by social changes associated with the women’s, civil rights, and and gay rights movements; nor by increased immigration, ethnic diversity, and cultural pluralism. Routines and expectations had to change. Peoles’ lives became less constrained and predetermined but greater autonomy and wider possibilities brought greater uncertainty. Values and certainties were undermined and questioned. And, for much of the last thirty years, crime rates increased and fear of crime penetrated into more peoples’ lives, and more deeply. Most crimes, especially the street and violent crimes that are most feared, are committed by people at the social and economic margins, and disproportionately by members of racial and ethnic minorities.
P.52 Garland’s story has four main components. The first is the salience of “high crime rates as a social fact. The second is the use of expressive punishments as a demonstration of state sovereignty. The third is the risk society story of instability, change, risk, insecurity, anxiety, and displacement. The fourth is the “criminology of the other.”
P.54 The outcast in the social and political climates of the 1980s and 1990s inevitably were the welfare poor, urban blacks, and marginalized working-class boys.
P.56 Garland’s account of the relationship between postmodernist angst, crime control policies, and punishment practices, notwithstanding its many merits, does not explain why U.S. policies are as they are.
P.93 reasonable people, for example, differ about the desirability of the sex-offender registration procedures required by “Megan's Laws.” Opponents or skeptics see them, or at least some of their features, as the undesirable fruits of a moral panic– overbroad, stigmatizing, and inviting vigilantism. Proponents, however, see that tragic death as having, at last, focused attention on the need for more effective protection of children from sex offenders and provided some momentum to the effort to achieve it.
P.99 Durkheim argued that one of the criminal law’s functions is to identify and reinforce basic social ideas about right and wrong, that “crime brings together upright consciences and concentrates them.” The criminal law is seen as performing a dramaturgical function, with punishment directed primarily at the community and not at the offender, and working not directly through deterrence and incapacitation but indirectly through affirmation and reiteration of basic norms.
P.162 [Reintegrative shaming] Braithwaite’s notion is that reactions to crime should simultaneously express disapprobation and support, in much the same way as parents communicate to children that they have misbehaved but that they are still loved.
P.172 In the 1970s, there were heated and extended political fights over preventive detention. Due process champions for years successfully opposed federal adoption of legislation that would permit persons accused of crimes to be confined before trial because of dangers they might present to public safety. Defendants are presumed innocent, the argument went, and pretrial confinement is allowable only to assure defendants’ presence at trial. Detention for any other reason except in the case of capital crimes is an unconstitutional invasion of citizens’ liberty interests.
P.202 Precisely how severely criminals may justly be punished depends on why punishments are imposed, and reasonable people differ in their views about this. Retributivists believe that punishment should be tied closely to offenders’ blameworthiness, and that the amount of punishment should be scaled to the relative seriousness of their crimes. The more serious the crime, the severe the deserved punishment, and vice versa.
Consequentialists believe that punishment can be justified only in terms of its good effects. Consequentialists also believe that pain and unhappiness, including those of offenders, are undesirable. Punishments accordingly may be imposed only to such an extent as can be justified on the basis of evidence or plausible hypothesis that their crime prevention effects will prevent more pain and unhappiness than they cause.
P.218 Certainty of punishment is what matters, not severity. Nor does existing evidence on the incapacitative or rehabilitative effects of prion support current sentence lengths.
May 20, 2015
Essentially a summing up of Tonry's long career, making all the reformist arguments about penal culture (racial audits, no mandatory minimums, less time in prison, no more real offense sentencing, less preventive detention) while tying it to the author's claim that harsh American crime policies are the result of "moral panics" that alter "sensibilities" about law and justice. I buy it, but it would've been nice to see him invoke Kuhn, Foucault, and maybe even Althusser to make this point, instead of his buddies David Garland et al. Not a scintillating read--he sometimes repeats sentences from the introduction verbatim elsewhere in the text--but definitely a useful one. Toward the end, he gets the date wrong for the extremely important McCleskey capital punishment case, placing it in 1997 while still quoting Justice Lewis Powell, who'd retired a decade earlier. So it goes.
July 16, 2012
Cogently explains why American crime policies are so barbarous and ineffective, compared to other Western nations, and compared to our own nation in other eras. The gist: cultural sensibilities swing on a pendulum, and so do crime trends. In the late 20th century, the former swung to a point of fear/insecurity just as crime trends peaked. Add to the mix opportunistic politicians, politically vulnerable judges/prosecutors, and bloodthirsty media -- you get moral panics that produce crazy punitive laws.
I had to read this for research. The style is clear and mercifully concise, and the content is backed by good data and references.
I had to read this for research. The style is clear and mercifully concise, and the content is backed by good data and references.
October 5, 2009
Great overview of the sensibilities of our current incarceration problem. Good numbers, and a good final chapter which wraps it all up. If you are interested in legal reform, you may like this. If not, it will be boring.
February 5, 2020
A thoughtful look at American criminal justice with substantial prescriptions for reform. My only objection to the book is that, in some places, the author lumps women's treatment by the criminal justice system in with racial minorities under the umbrella term of minorities, and this isn't necessarily the case. Women, particularly white women, often receive lighter and shorter sentences than men, especially men of non-white races. Other than that, which could be corrected with a little qualification or differentiation, I think this should be required reading for U.S. politicians.
Displaying 1 - 5 of 5 reviews