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Crime and Justice in America, 1975â"2025
By Michael Tonry
The University of Chicago PressCopyright © 2013 The University of Chicago
All rights reserved.
Evidence, Ideology, and Politics in the Making of American Criminal Justice Policy
Criminal justice policy and research in the United States have mostly marched in different directions since the mid-1970s. Sizable bodies of high-quality research have accumulated on many subjects on which policy making in a rational world would be evidence based, but only on a few have they had substantial influence. Policy making on some subjects has occurred mostly in an evidence-free zone. The comparatively slight influence of scientific research findings is a modest payoff from 50 years of public investment. The report of the President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society, observed that "what has been found to be the greatest need is the need to know" (1967, p. 273) and that "we need to know much more about crime. A national strategy against crime must be in large part a strategy of research" (p. 270). "Accurate data are the beginning of wisdom," likewise observed America's first national crime commission, the Wickersham Commission (National Commission on Law Observance and Enforcement 1931, p. 3), in recommending a plan for creating a body of knowledge "covering crime, criminals, criminal justice, and penal treatment" at federal, state, and local levels and proposing to entrust this task to a single federal agency.
The 1967 President's Commission proposed the establishment of an independent national institute on criminal justice research equivalent to the National Science Foundation or the National Institutes of Health. The US Congress in the Omnibus Crime Control and Safe Streets Act of 1968 established the Law Enforcement Assistance Administration (LEAA), with an embedded research institute, inside the US Department of Justice. Within a few years, billions of dollars were appropriated to fund justice system improvements and research.
LEAA funding for police education in the 1970s catalyzed the establishment of criminal justice and criminology programs throughout the United States. They proliferated, and some matured into world-class institutions. In 1970, there were but a handful of criminology programs, mostly within sociology departments. Most awarded degrees in traditional social science disciplines. Today there are hundreds of undergraduate criminal justice and criminology departments. In many universities, they are among the largest, fastest-growing, and most popular degree programs. Forty or more universities offer criminal justice and criminology doctorates, and many more are granted on related topics in other social science disciplines.
Criminal justice and criminological research blossomed. By fostering cadres of research professionals, the new university departments created a mass of intellectual capital that had never before existed in the United States or any other country. Large high-quality literatures accumulated, specialist research journals thrived, and research-based understanding of the causes of crime and the operation of criminal justice institutions and processes advanced substantially. Subjects in which notable progress was made include policing, sentencing, the effects of sanctions, rehabilitation of offenders, firearms and violence, drug policy, and developmental criminology.
Despite those advances, however, the members of the President's Commission—assuming that some are still paying attention—would have little cause for delight about the influence of research on policy making. Their aim was not to motivate expansion and improvement of education and research as ends in themselves but as means to facilitate the development of evidenced-based methods for preventing crime and creating more just, effective, and economical criminal justice systems. From that perspective, the policy payoffs on the national investment in a research infrastructure have been much less than the commission's members must have hoped for.
No one would expect well-vetted, reliable research findings inexorably, automatically, or easily to shape or influence policy decisions. Vested interests, politics, competing priorities, and personalities all have roles to play. The limited influence of scientific knowledge on criminal justice policy in the United States since the early 1980s nonetheless remains conspicuous. In the pages that follow, I discuss influences and processes that have limited the role of evidence. Section I discusses illustrative realms in which evidence has and has not mattered. Section II steps back to discuss the unfortunately named "research utilization" literature, which provides frameworks for understanding and vocabulary for discussing the influence of scientific findings on policy. Section III steps to the side to discuss the development of specialized government research institutes and university departments and the comparative failure of the National Institute of Justice to serve as a federal engine for developing scientific knowledge and motivating the development of evidence-based policies. The President's Commission members cannot have expected a single federal agency to shape a nation's policy processes, but they could reasonably have hoped that it would provide leadership and a model for the states. Section IV considers why the initiatives the President's Commission set in motion did not generate the evidence-based, or at least evidence-informed, policy processes they imagined.
I. When Evidence Has and Has Not Mattered
Research-derived evidence influences policy and practice in some places, at some times, and on some subjects. Sometimes research matters, sometimes not. The time, the place, and the subject are important. The salience of research to developments in policing and sentencing provides a stark contrast of success and failure.
The world of policing has been permeable to and influenced by research since the mid-1970s. Policing scholars—notably including John Eck, Herman Goldstein, George Kelling, Stephen Mastrofsky, Mark H. Moore, Lawrence W. Sherman, Wesley G. Skogan, Michael E. Smith, David Weisburd, and James Q. Wilson—have been in the middle of successive transformations of American policing. Research in the 1970s concluded that some traditional practices—rapid response to calls, street patrol, and motorized patrol—were less effective than police had long believed and undermined support for top-down professional policing. Work by Herman Goldstein and others importantly influenced the development and dispersion of community and problem-oriented policing. Work by Lawrence Sherman and others on "hot spots," crackdowns, and geographic information systems led to major changes in police practice. Major research programs carried out or funded by the Police Foundation, the Police Executive Research Forum, and the National Institute of Justice tested and evaluated the effects of new initiatives and contributed to their refinement. Research and evidence have not been the only or the deciding influences on policy changes, but they have had influence and made a difference.
Research on sentencing topics paralleled police research in the 1970s in undermining traditional ways of doing criminal justice business, for example, correctional treatment programs, discretionary parole release, and voluntary sentencing guidelines. After 1980, however, neither positive nor negative research findings were influential. Evaluations showed that parole guidelines and presumptive sentencing guidelines sometimes achieved their goals of reducing disparities, increasing consistency, and facilitating correctional planning and budgeting, but few states adopted either. Conversely, evaluations showed that voluntary sentencing guidelines seldom if ever reduced disparities, but states continued to establish them. Research in the 1970s and 1980s showed that mandatory minimum sentences had few or no deterrent effects, were often circumvented, and often resulted in unjustly severe punishments, but every state and the federal government enacted new ones in the 1980s and 1990s. The national American decline in crime rates since 1991, unprecedented imprisonment rates and costs, and the great recession of recent years have not resulted in major changes in sentencing laws. Evidence of the effectiveness of the signature laws of the tough on crime period—mandatory minimums, truth-in-sentencing, three-strikes, life without possibility of parole—remains as exiguous as it has been for 30 years, but so far states and the federal government have made few significant changes to them (Austin et al. 2013).
Evidence on other subjects has been as influential as concerning policing and as little heeded as concerning sentencing. Large, sophisticated literatures have developed on drug law enforcement, firearms and violence, and deterrent effects of sanctions. There is strong evidence that mass arrests of street-level drug dealers had little or no effect on drug sales, use, or availability but filled prisons with young, disadvantaged, minority inmates; that firearms make violent crimes more dangerous, elevate American homicide rates, and result in high rates of suicidal and accidental deaths and injuries; and that making sanctions more severe has either no discernible crime-preventive effects or effects that are so highly context specific as not to be salient to setting general policies. In each case, the evidence documents failures of current policies and massive undesirable consequences. The evidence has almost entirely been ignored.
Large, sophisticated literatures have likewise accumulated on correctional treatment programs and developmental interventions targeting factors in early childhood associated with high rates of delinquency and antisocial behavior. Well-designed, managed, and targeted rehabilitative programs of many kinds have been shown to have positive effects on offenders' personal deficits and problems and on subsequent offending. Developmental researchers have identified a wide range of risk and protective factors related to problem behaviors and have developed, tested, and implemented interventions that change young people's lives for the better. Policy makers have leapt on both sets of findings. Public and private investments in correctional treatments and early childhood interventions have increased substantially.
II. When and Whether Evidence Matters
Social science evidence has influenced policy making on some subjects at some times but not on others. Since the 1970s, writers on "research utilization" have been trying to figure out when and why evidence matters (e.g., Lindblom and Cohen 1979). An early National Research Council report, Knowledge and Policy: The Uncertain Connection, noted that numerous social science studies of policy interventions by then had accumulated and numerous efforts had been made to increase their relevance to policy making, but it observed that "we lack systematic evidence as to whether these steps are having the results their sponsors hope for" (Lynn 1978, p. 5). In 2012, another National Research Council report, Using Science as Evidence in Public Policy, concluded that the connection between social science knowledge and policy remained "uncertain" and that "despite their considerable value in other respects, studies of knowledge utilization have not advanced understanding of the use of evidence in the policy process much beyond the decades-old National Research Council (1977) report" (Prewitt, Schwandt, and Straf 2012, p. 51).
Scholarship on research utilization has long been skeptical of bureaucratic rationality models and of the idea that policy decisions do or should flow more or less directly from scientific evidence. The 2012 National Research Council report observed that "some mixture of politics, values, and science will be present in any but the most trivial of policy choices. It follows that use of science as evidence can never be a purely 'scientific' matter; and necessarily be used just because it is available.... Re-election concerns, interest group pressure, and political or moral values may be given more weight and may draw on reasons outside the sphere of what science has to say about likely consequences" (Prewitt, Schwandt, and Straf 2012, pp. 15, 17).
The literature on research utilization is simultaneously mundane and creative. It is mundane in the sense that experienced policy makers, and others familiar with policy processes, will find little in it that is surprising. Few in either category will be surprised to learn that evidence seldom influences policy or practice directly. For evidence to matter, officials must be aware of it; they must consider it credible; they must think its implications important; they must believe the effort required to change policies is worth the hassle involved; and they must be prepared to work to overcome a series of political, ideological, and bureaucratic obstacles. Nothing surprising there.
The literature is creative in that it provides frameworks and vocabularies that illuminate issues and aid in understanding why some attempts at change succeed and others fail. Charles Lindblom and David Cohen (1979), in the classic work on this subject, explored ways in which learning generated by systematic research, which they called "professional social inquiry" (PSI), influences policy. PSI can influence policy, they say, only when "social learning" has occurred that can overcome the influence of "ordinary knowledge." On important issues, change is difficult until social learning has produced new attitudes and political dispositions.
David Green and I have shown the importance of "windows of opportunity" (Tonry and Green 2003). Some policy options are politically or bureaucratically imaginable at some times but not at others. The assassinations of Robert F. Kennedy and Martin Luther King in 1968, for example, created windows of opportunity through which evidence about the negative public health effects of handguns could pass and lead to the enactment of federal gun control legislation. Windows of opportunity in some ways exist in the eyes of their beholders. National Rifle Association members might describe the 1968 assassinations that catalyzed major federal gun control legislation as a "moral panic" (Cohen 1972), in the same way I would use the term to refer to the deaths of Len Bias, Megan Kanka, and Polly Klass that precipitated enactment of the federal 100-to-1 crack cocaine sentencing law, "Megan's laws" throughout the United States, and California's three-strikes law. The late 1980s rise in youth violence that led to the short-lived invention of "superpredators" likewise fueled unprecedentedly harsh policies toward juveniles in the early 1990s.
Carole Weiss (1986) showed that in any place and time, boundaries exist beyond which change is not possible or even politically imaginable. Public opinion pollster Daniel Yankelovich (1991) extended the notion to explore the "boundaries of public permission" outside of which policy changes are unlikely, but within which change is possible if advocates and public officials are prepared to invest the necessary effort. Windows of opportunity open in particular places at particular times; policy prescriptions that attempt to push social learning too far are not taken seriously (Stolz 2001).
Finally, the influence of systematic evidence on policy depends on the permeability of a series of filters through which the evidence must pass (Tonry and Green 2003, pp. 486–89). One is the filter of prevailing paradigms and ways of thinking. Others are prevailing ideology, short-term political considerations, and short-term bureaucratic considerations (and inertia).
The obstacles to the adoption of policies based on systematic evidence, alas, are far easier to describe than to overcome. Whether policy makers in particular places and times pay attention to research evidence depends on the subject. An extreme instance of obliviousness to evidence can be seen in the English Labour government's handling of its Crime Reduction Programme. Created in 1999 and promoted as an exercise in the development of evidence-based policies and practices, it was budgeted at £400 million over 10 years. Ten percent of the initial funding was set aside for independent evaluations of pilot and demonstration projects. The program was abandoned within 3 years for a variety of reasons, the most important of which was that the government knew what it wanted to do and in the end was not much interested in receiving independent assessments of whether what it wanted to do actually worked (Maguire 2004; Nutley and Homel 2006).
Excerpted from Crime and Justice in America, 1975â"2025 by Michael Tonry. Copyright © 2013 The University of Chicago. Excerpted by permission of The University of Chicago Press.
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