Executive branch signals return to tough on crime policies

Over the past few years, criminal justice scholars and policy makers shifted from “tough on crime” language to “smart on crime” language. Under the current administration, we are seeing a swing back to tough on crime language and the policies that go with it. It remains to be seen how far these policies will go, but it is clear they are contradictory to bipartisan efforts to reform the criminal justice system.

Using tough on crime language accomplishes two things. First, it allows policy makers to criminalize certain groups of people. Second, it is a tool for policy-makers to obtain support for their policies and platforms.

When using tough on crime language, policy-makers often focus on those who pose the most risk to society, claiming that an entire group of individuals is a threat to our security. Sociologist Katherine Beckett, for instance, argues tough on crime language and policies were the basis of the Southern Strategy in the 1960s. According to her analysis, Republican politicians used tough on crime discourse to link crime, race, and the Civil Rights Movement to criminalize protestors and win votes of Southern White Democrats.

Democrats are not immune to this tactic. The War on Drugs is a classic example of bipartisan support for tough on crime policies. As Doris Marie Provine, emerita professor in Arizona State University’s Social and Justice Inquiry program, argues, the War on Drugs began with Republican presidents (Nixon and Reagan) calling for tougher measures on various drugs, particularly crack cocaine. In an effort to avoid appearing “soft on crime,” Democrats responded in kind.

The fight to appear tough on crime led to the 1994 Violent Crime Control Act. Both Clintons used tough on crime discourse to get support for and pass the bill. Hillary Clinton used John DiLulio’s warning about “superpredators” to support the legislation. As he signed it, Bill Clinton stated, “gangs and drugs have taken over our streets and undermined our schools.”

The use of tough on crime language led to an increased use of incarceration and harsher sentencing policies as a response to a multitude of criminal and social ills. These policies created the current era of mass incarceration and the racial disparities that come with it. The massive costs of these policies, however, led many to rethink the tough on crime mentality. Instead, policy-makers started arguing for “smart on crime” policies.

In tracing the move from “tough on crime” to “smart on crime” discourse, Justice Studies scholars David L. Altheide and Michael J. Coyle found policy-makers and legislators were concerned about appearing soft on crime. The scholars found that when “smart on crime” language was not linked to being “tough on crime,” policy-makers were viewed as soft on crime. As such, they initially argued being tough on crime required being smart on crime. As Justice Studies scholar Michael J. Coyle explains, they argued smarter crime policies are necessary to reduce crime rates and victimization. This argument was echoed by Kamala Harris, as California’s Attorney General, who argued that being smart on crime was essential to being “truly tough on crime.” It was not until the late-1990s that being smart on crime became distinct from being tough on crime. By the early 2000s, Altheide and Coyle argue, smart on crime “became more prevalent, and the meaning associated with rethinking prison sentences and early release became established.”

The key difference in the two types of discourse is the types of policies supported. Smart on crime policies call for a rethinking of the types of policies used and the purpose of those policies. Rather than focusing on incarceration as the main form of punishment, smart on crime policies include alternatives to incarceration such as house arrest that also reduce recidivism. These policies also focus on preventing crime and the post-incarceration transition to the community. The goal is to use evidence-based programs and practices that reduce crime and are cost effective.

Smart on crime policies cover a variety of areas. For instance, then Attorney General Eric Holder’s 2013 new “Smart on Crime” initiative included calls for specialized courts as alternatives to incarceration and reducing collateral consequences to a conviction to reduce the likelihood of recidivism. On the state level, these policies include changes to sentencing laws and increased funding for treatment programs.

These policies generally have bipartisan support. For instance, both Van Jones and the Koch Brothers are fighting for such reforms. Despite these calls, the last month suggests a shift away from these policies—at least on the federal level.

The President’s statement on law enforcement, argument that increased deportations will prevent crime, and recent executive orders are a clear sign the executive branch is returning to an era of going after low-level crimes and offenders and strict sentencing rules. The appointment of Jeff Sessions as Attorney General also suggests a more concerted effort to focus on tough on crime policies.

As research shows, however, such policies have little impact on crime rates. If past is precedent, the shift back to tough on crime discourse and policies will do little more than increase federal funding with a marginal impact on crime rates. Only time will just how much will be spent on ineffective policies.

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