Though the contemporary US is more of a “nation of laws, not men” in 2021 than it was in the 19th Century, it’s still valid to assert that community understandings of crime, transgression and justice are the foundational constraint—or starting condition—of any reshaping of crime and justice in a better future.
This is true anywhere in the contemporary world. Laws that are aspirational statements about ideal moral behavior that have no grounding in how people really live and think are unenforceable and mostly end up being pretexts for arbitrary harassment by the authorities, often directed at marginalized or subordinated groups. The average speed on an American interstate is usually about eight to twelve miles per hour over the posted limits, and no one driving at that average expects to be pulled over and ticketed for speeding.
So what do Americans think about crime and justice, if we need to understand that as a starting condition? Polls and surveys provide one kind of answer. A recent Pew Survey has a lot of valuable information in it along those lines. Violent crimes and property crimes of all types are down sharply over the last thirty years, with a slight recent uptick. Americans across almost all socioeconomic categories nevertheless continue to believe, as they have steadily for the last thirty years, that crime is rising on the national level, even if they concede it is not rising locally. (Gallup shows the same thing.) Younger people and people at the lower end of the socioeconomic scale are more commonly the victims of reported crimes. The actual distribution of crime rates is wildly uneven—there are in fact places with relatively high crime rates compared even to communities of roughly the same demographic make-up.
Pew reports that only about half the crimes that are committed are actually reported, which seems especially important to understand. Is that resignation based on an understanding that the police won’t bother to solve the crime (or simply don’t have the ability to do so) or is a judgment that the crime isn’t important enough to the victim that it’s worth getting someone in trouble for it? Or both? The Pew report shows that the most reported crimes are auto theft and aggravated assault, the least reported are household theft, personal theft and rape or sexual assault. That already seems like a heterogenous mix in terms of the reasoning involved. Add in what is most and least solved by police investigation and it is even more so: auto theft is the least solved, along with other kinds of burglary and theft, rape is in the middle, and murder is by far the most solved even if it is the least common. That also seems telling—that doesn’t seem like a result purely of police procedure or legal requirement, but also a deep cultural and political expectation that murder—or at least some murders—have to be redressed.
Surveys by Pew and other organizations throw a bunch of other discrete observations into the hopper of trying to understand everyday foundational views of crime and justice in American communities. The death penalty is still supported by a majority, majorities favor decriminalizing marijuana, and so on. More importantly, surveys also show something crucially important, which is that what Americans think of crime, justice and policing varies hugely by race, age, and gender. There are no “Americans” in this respect, or averaging them out doesn’t tell you what people in a specific place at a specific moment actually feel and about what their feelings are materially related to.
That’s especially important in the context of understanding that while many whites in majority white communities may mostly feel safe about crime in their own neighborhoods and daily lives, when they say that they feel as if crime is an ever-growing problem nationwide and that they have intense desires to see crime dealt with at that scale, they are to some extent using “crime” as a substitute category for people of color, for young people, for communities in large cities—essentially for a vast swath of sociologies that they find distressing or fearful. No better future can arise out of playing to that kind of sensibility—Americans have been steadily more divided in more and more dangerous ways since Richard Nixon’s presidency precisely by conservative efforts to feed and intensity those feelings.
So there have to be other ways to examine and think about how differently situated Americans think about crime in everyday life, through ethnography (in particular what Jeff Ferrell has called “cultural criminology”), though tracing ordinary conversations and community-level deliberations, even through fiction and popular culture. (Though one thing that’s interesting about the ethnographic work is that it’s generally focused on people who commit crimes or who are incarcerated and their directly proximate social networks. That’s partly because studying what people think of crime or moral transgression in a broader sense is almost impossible to disaggregate from the entirety of their social imagination.)
It’s a vast ground to have to cover, so let make a few intuitive and impressionistic observations that I will freely acknowledge could be contested, contradicted or modified, especially by being more situated sociologically, discursively or geographically.
1) Many Americans care very much about the difference between transgressions that they believe involve the direct, conscious agency of a specific individual and actions that they think are highly mediated by systems, workplaces, hierarchies, the commands of authorities, or are mediated by circumstances that deflect conscious agency—alcohol or drugs, threatening or unsettled environments, inaccurate or misleading information, etc. That distinction is a major part of contemporary criminal law as well, but it has roots that run deeper (and often with more complexity and circumstantial sensitivity than criminal codes). The condemnation of “situational ethics” that became common among some American conservatives in the 1960 was always propositionally incoherent or hypocritical, because most of them were just as prone to situational judgment. It’s a deep part of how most of us think about transgression, crime and justice.
2) American ideas about transgressive social behavior do not always encode themselves in terms of “crime” or a demand for legal consequences. In many cases, people would like to have (and sometimes fashion) other forms of constraint or redress for transgressions. The gravity of involving police and the criminal justice system is often understood clearly and in many cases people will seek to avoid that even if they feel seriously harmed or aggrieved, whether it is because they perceive police power to be unreliable or intrusive or because they believe the system will mismatch the transgression with consequences that are beyond the victim or survivor’s ability to control or shape. A tremendous amount of online and everyday conversation is about exploring the zone between “that was wrong, but not a crime”, “that ought to be a crime, even though it isn’t”, and “that’s a crime, but I wouldn’t bother reporting it”.
Relatedly, there’s a complex conceptual and interpretative terrain that most people acknowledge is complicated between ignoring implicit or understood principles, breaking formal rules, and doing something that is or ought to be imagined as a crime. That spectrum doesn’t necessarily work as a hierarchy of bad-worse-worst, either: under some circumstances, people can be far more outraged, concerned or mobilized by a transgression that involves ignoring implicit or unstated constraints than they are by something that is formally criminal. Read the subreddit r/IdiotsInCars for one potent example of how a group discourse can deem certain kinds of violations of understood practice to be substantially worse than the technical legalities governing driving. Any attempt to rethink criminality and justice going forward has to be attuned to what determines placement on this spectrum, and has to avoid some icy rationalism that deems violations of the implicit or informal unworthy of consideration.
3) Following on this, there’s a major discussion threading through a lot of American life about complex, composite actions that are considered to be very wrong but that legal experts and government officials will argue either can’t be punished by law or are so complicated that it’s rare to have a case that can be brought successfully. Much of the fallout of the Trump Presidency continues to spur a particular subset of these discussions (and highlights why they often become political or are associated with partisan politics); another node of popular and public debate along these lines swirled around the 2007-08 financial crisis. I’d argue that at the community level, many people across a fairly wide socioeconomic spectrum are dissatisfied with the way that legal systems seem to protect, deflect or complicate any effort to create consequences for people who are otherwise regarded as having decisive authority over organizations and systems—say, for example, the way that top-level Wells Fargo executives have escaped any meaningful consequences from a wide range of company misconduct between 2008 and 2018 (the CEO resigned in 2018, but he was also given $18 million in compensation that year, which I think most Americans would not regard as a consequential punishment for failed leadership.)
A more concrete example would be the story of “Shingle Mountain” in Dallas, where an entrepreneur dumped huge amounts of roofing shingles on two tracts of land that weren’t properly zoned or cleared for that purpose and then was unable to obey court instructions to clear the property on grounds of being bankrupt—despite having cleared hundreds of thousands of dollars in profit earlier on. People with homes right next to the dump site (on land zoned “agricultural”) had to endure the dangerous environmental consequences of the shingles until the city finally and laboriously oversaw a clean-up. That’s the kind of case where I’d say most Americans would agree the person who created the dump has done something seriously wrong for which there ought to be some kind of proportionate consequences but where the legal system seems unable to respond either with criminal or civil outcomes that fit the case.
4) There’s a huge variation in the degree to which individuals are considered responsible for reducing their exposure to crime. That’s most infamously contested in the cultural politics of sexual assault, though the tide finally seems to be turning towards putting the onus on men not to commit sexual assault rather than on women to avoid being in circumstances in which sexual assault is considered more likely. But similar contours of discussion surround many crimes and transgressions: does the failure to secure a house or a car make theft more likely and therefore the owner’s “fault”, in some sense? Is the victim of a scam or a con at fault for trusting when they should not have? Does a college student who goes into a dive bar and gets beaten up for being where they’re not wanted bear some responsibility for it? This terrain is a really active zone of popular debate, and I’d suggest that no one has completely consistent answers across the board within these conversations.
5) On the other hand, I’d argue that there’s extremely broad shared consensus, even in bitterly divided times, about the worst kinds of moral transgressions and the need for them to be punished by incarceration for life or execution. Murder and attempted murder against random strangers, especially in public settings; violence against children or the elderly; “stranger” rape; torture and dismemberment by one private individual against another. Precisely because there is so much consensus, there is tremendous pressure on prosecutors and police to charge someone with these crimes—which has often produced unjust outcomes as they reach for someone, anyone (often a person of color, a low-income suspect, a person with disabilities) who doesn’t have the resources to defend themselves properly. But even a good enough justice system in a better future couldn’t dispense with the need to find and punish individuals who commit these kinds of offenses—nothing is likely to change, nor should change, in how these acts are regarded even if their frequency changed or we widened our sense of who is guilty of transgression (e.g., the US military and intelligence services largely got away with sanctioning torture whereas an individual charged with bodily torture of another individual would likely face severe criminal consequences and broad consensus that they ought to).
A “good enough” future for crime and justice has to arise from these lived understandings, from this cultural substrate, with all its contradictions and its ties to present inequality and injustice, all of its inconsistent rooting in American history, in liberalism and common law, and so on. Other conceptions of personhood and transgression available in the present, no matter how much they promise a comprehensive view of human life and agency, are wholly unsuitable. I’ll talk about that next time, specifically, about the terrible fit between the possible futures of justice and the new cognitivism embodied in the work of scholars like Daniel Kahneman.
Image credit: "Warning Motorists Have You Locked your Car Crime! poster, Harley Street, Westminster, London, UK" by gruntzooki is licensed under CC BY-SA 2.0