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Does Punishment Pay?


BEN WATTENBERG: Hello, Iím Ben Wattenberg.

It seems as if a crime wave has crashed over America. The publicis looking for answers. Scholars are arguing. Is the solutionpunishment, or prevention, or both?

Joining us to sort through the conflicts and the consensus areProfessor Lani Guinier of the University of Pennsylvania Law School,former Justice Department official and author of the newly published'The Tyranny of the Majority'; and Judge Robert Bork of the AmericanEnterprise Institute, former solicitor general and author of thebest-selling book 'The Tempting of America'; and Professor PhilipHeymann, on leave as director of Harvardís Center for CriminalJustice. Professor Heymann recently resigned as President Clintonísdeputy attorney general. And, finally, Professor John DiIulio ofPrinceton University and the Brookings Institution, author of 'NoEscape: The Future of American Corrections.'

The first question before this house is does punishment pay? Thisweek on 'Think Tank.'

Americans are frightened about crime, and why not? Crime isup--way up. The violent crime rate rose nearly fivefold in the last40 years. Violent criminals serve only about a third of theirsentences, and while on parole, one in three commit new crimes.

This rising tide of crime led President Bushís attorney generalWilliam Barr to issue a controversial report entitled 'The Case forMore Incarceration.' According to Barr, the simple fact is that thebest way to stop crime is to put criminals in prison--in other words,a thug in jail canít shoot your sister. Hardliners say suchincapacitation works.

Today, more than a million criminals are in prison, far more thanever before, and, as the prisons fill, the violent crime rate doesseem to be leveling off. And the large majority of offenders lockedup are dangerous. Our panelist John DiIulio stresses that 93 percentof state prisoners are either violent or repeat offenders.

Critics challenge some of this data and point out that prisons areexpensive, theyíre overcrowded, they are disproportionately populatedby African-Americans, and they are doing a terrible job atrehabilitation.

Further, the critics say, we are filling prisons with minor drugoffenders, not the really bad guys, that more punishment hasnítreduced crime, and that we ought to stress prevention.

What happened? Well, the hardliners say we got soft on crime.According to one study, as the chances went down that a criminalwould be caught, convicted, and spend time in jail, the rate ofserious crime soared. Punishment down, crime up.

We will come to prevention later, but our opening question is ifwe put more criminals in jail for longer sentences, will Americanstreets be safer?

Phil Heymann, how about that?

MR. HEYMANN: Ben, itís not a surprise. It depends on who you putin jail. If you want safe streets, youíve got to identify violentpeople, and we have to lock up violent people as long as theyíreviolent or likely to be violent. We also have to stop growing them,so the answer is both prisons and prevention.

MR. WATTENBERG: John DiIulio, does punishment pay? Does it work?

MR. DIIULIO: Well, I think, you know, the question--if prison isnot the answer, what is the question? If the question is how do wesolve Americaís social ills, then prison is not the answer, but ifthe question is how do we handle--how can we best handle violent andrepeat criminals, then I think prison is far more of an answer thanmany of the critics of incarceration suppose.

Just one statistic: We know from prisoner self-report surveys thatthe typical prisoner in the year prior to incarceration commits adozen serious crimes a year, excluding all drug crimes. I thinkthereís some social benefit to locking those people up.

MR. WATTENBERG: So that every additional year you keep them inprison is, in theory at least, another 12 crimes that have nothappened?

MR. DIIULIO: Up to a point. The real difficulty is the question ofat what point are we holding large populations of geriatric prisonerswho no longer pose a threat?

MR. WATTENBERG: All right. Bob Bork, one of our charts showed orintimated that crime has gone up because the society has become toolax in punishing them. This gets back, I guess, to the whole WarrenCourt argument. Do you agree? Is that the principal cause of violentcrime in America?

MR. BORK: Well, I think itís one of the causes, but I wouldsuppose another cause is the way we have handled social welfareprograms so that we have these enormous illegitimacy rates and peoplebeing raised by one probably incompetent parent. And you see violentcrime rising with those developments. That is--that goes toprevention, of course, but I think thatís important.

MR. WATTENBERG: Lani Guinier, you saw that chart. The rate ofpunishment, number of days in jail, went down at the same time thecrime rate went up. Do you accept the idea that that is acause-and-effect relationship?

MS. GUINIER: I donít find that particular chart helpful to me inexplaining why I feel more scared living in my house today than I didfive years ago. My concern with a focus on punishment is not todisagree with what other people have said. I agree that violentcriminals should be imprisoned. I donít want them roaming the streetsany more than anyone else does. My concern is that punishment seemsto assume that those people that weíre punishing, or those peoplethat we believe will not commit crimes for fear of being punishedactually have an investment in the society that theyíre afraid tolose, and thatís the part Iíd like to focus on.

MR. BORK: They have an investment in what sense?

MS. GUINIER: That you have a lot of young kids, a lot of young menwho are committing crimes recklessly or perhaps rational ly and weare assuming that if we simply have a threat of incarcer ation, thatthat will act as a deterrent to their behavior, and Iím not convincedthat that is, in fact, true.

MR. BORK: Well, the point being made, I think, is that, deterrentor not, if theyíre in prison, they are not committing violent crimes.

MR. WATTENBERG: Lani said a moment ago that she does not feel assafe in her house as she did five years ago. Does anybody--I mean,letís just take off. I do not feel as safe in my house as five yearsago or 10 years ago. Do you feel as safe?

MR. BORK: No, I certainly donít.


MR. WATTENBERG: You do feel as safe.


MR. WATTENBERG: Weíre going to come back to you.

MS. GUINIER: Thatís because he looks at all the statistics.(Laughter)

MR. HEYMANN: Iím like John. I look at the statistics.

Whatís happening is, yeah, thereís been a great increase in crimeand in imprisonment rates both since 1985 or í86, but overall thereisnít a great change in the violence rate in the United States. Whatweíve got--

MR. WATTENBERG: Since when?

MR. HEYMANN: Oh, if you went back to 1973, í74.

MR. WATTENBERG: But we had a huge crime increase and then sort ofa wobbly plateau, so it is--I think we agree it is at unacceptablelevels.

MR. HEYMANN: Maybe 20 years ago--

MS. GUINIER: Doesnít that also--

MR. HEYMANN: --we had a huge--

MS. GUINIER: Doesnít that also depend on where you live?

MR. HEYMANN: Well, thatís--thatís the point.

MR. WATTENBERG: I mean, are well-to-do, distinguished citizens ormedium-well-to-do or people not living in the inner cities, are theyat greater risk? Because, I mean, thatís whatís driving the politicsof this thing. Are they, in fact, at greater risk?

MR. DIIULIO: They are not. Two things are true here. Number one,if your baseline is 1960, even, then weíve had a dramatic increase inviolent crime, because you had this increase in the 1960s, and by thetime you get to the mid í70s, itís up there, and then it sort oflevels off, okay, nationally. So it depends on what our baseline is.

Secondly, virtually all of the increase in violent crime hasoccurred in inner city neighborhoods, especially among juvenilesliving in inner city neighborhoods. The probability that someoneliving in a middle-class or affluent suburb is going to bevictimized--murdered, raped, robbed, assaulted, and so on--is lesstoday than it was 20 years ago.

Now, itís higher today than it was 40 years ago, okay? So lots ofdifferent things are going on here.

MR. WATTENBERG: Itís lower in the suburbs than it used to be?

MR. DIIULIO: Thatís right.

MR. WATTENBERG: Why is everybody all of a sudden going crazy aboutthis thing? What is--I mean, you had the Congress, the Senate passedthis bill with $22 billion like it was a roller coaster. Crime hasvaulted to be the number one issue in America. Whatís going on, Phil?

MR. HEYMANN: We do have a burst of youth crime. Eighteen year oldsare committing twice as many homicides per 100,000, per whatevernumber of them, as they were in 1986, in the latest figures.Robberies are also up, and thatís frightening, but itís not in thesuburbs, itís in the central cities, thatís correct.


MS. GUINIER: But I think that part of the reason itís sofrightening to people is that they see that itís now in the centralcities, but they donít have any assurance--

MR. WATTENBERG: Thatís right.

MS. GUINIER: --that thatís where itís going to stay.

MR. WATTENBERG: One of the proposals that has achieved a greatdeal of prominence about what to do about this is the so-called'three strikes and youíre out' idea. Do you like that?

I know your answer. (Laughter)

MR. HEYMANN: I think there are two questions. One is, does it makeany sense for the states?


MR. HEYMANN: And there I think it plainly doesnít make any sensefor anybody, because youíre going to catch an armed robber who getsconvicted for the third time at the age of 25, and the questionis--just to be extreme--do you want to hold him in his 50s, 60s, 70s,and 80s? That will cost between 600 [thousand dollars] and $800,000.Please, take my word for it, it costs between 20 [thousand dollars]and $30,000 a year.

The answer is no. I mean, any sensible person would answer no, youdonít want to hold an armed robber whoís been convicted three timesand is 25 in his 50s, 60s, 70s, and 80s--

MR. WATTENBERG: Do you agree with that?

MR. BORK: No, Iím sorry--

MR. WATTENBERG: You have a problem with three strikes and youíreout?

MR. BORK: Yeah, because I donít know why youíd give them threestrikes in the first place. (Laughter)

MS. GUINIER: No, that also is true.

MR. WATTENBERG: John DiIulio, do you like three strikes and youíreout?

MR. DIIULIO: I love it--

MR. WATTENBERG: Oh, you do?

MR. DIIULIO: --and Iíll tell you why. I appreciate exactly whatPhil said. Heís right in what he said, but I look at a few otherthings, as well.

Number one, you have people--again, the average prisoner commits adozen serious crimes a year, excluding all drug crimes. Excluding alldrug crimes.


MR. DIIULIO: Secondly, the typical prisoner, especially in largejurisdictions, has nine previous arrests and as many as six previousconvictions. So theyíre committing lots of crimes that arenítdetected and arenít punished.

Third, I understand that once a criminal reaches his 40s, 50s,60s, 70s--

MR. WATTENBERG: Eighties and 90s, as well --

MR. DIIULIO: --heís unlikely--unlikely to commit predatory streetcrimes.

But I would ask the question--thereís a moral dimension to this,as well, which is does anyone think we ought not to incarcer ate the70 year old, who, for life -- the 73-year-old murderer of civilrights worker Medgar Evers? I think we ought to incarcerate thatperson for life. The community has a moral writ not only to protectitself but to do justice.

MR. WATTENBERG: I happen to think the three strikes and youíre outthing is a silly concept. The part that has been talked about that Ithink makes sense is to establish federal prisons to put violentstate prisoners in jail at no cost to the state if the states changetheir penal codes so that parole for violent criminals will notaverage 35 percent but will go to 85 percent. That keeps the peopleoff the street when theyíre in their crime-prone years. Now, do youagree with that part of this argument, the 85 percent parole?

MS. GUINIER: Who do we want to give discretion to in terms ofadministering the criminal justice system, and do we want to take itaway from the parole board, do we want to take it away from judges,who will not be able to impose sentences based on the particularcircumstances of the individual, but are obliged to impose mandatoryminimum sentences? Do we want to give it to prosecutors, which isessentially what three strikes and youíre out does, it gives it tothe prosecutor?

I donít trust the prosecutor any more than some people trust thejudge or the parole board. I donít think that simply redis tributingthis enormous discretion to particular prosecutors without monitoringwhat theyíre doing--

MR. WATTENBERG: Right, but do you think that the 35 percent levelat which we let people out, 35 percent of their sentence, is that toolow? Should that be increased?

MR. HEYMANN: If you want the guy to be in jail for 10 years and ifthe state sets the sentence 10 [years] to 30 [years], then servingone-third of a 30-year sentence is what you wanted in the firstplace.

MS. GUINIER: But parole operates in some ways have been extendedin certain circumstances for good behavior in prison, which thenhelps the prison authorities.

I mean, I just, I guess, resist the notion that there areuniversal rules that we can, sitting in this room, come up with todetermine who should be in a position to exercise this discretionwithout our worrying about it.

MR. DIIULIO: But then before you, you know, I think itís easy todismiss three strikes and youíre out as silly, but letís rememberright now as we speak, for every person whoís convicted of a crimeand goes to prison, three people are put on the streets underprobation and parole supervision.

Letís also remember that literally millions of crimes arecommitted each year by community-based felons, people who are underso-called correctional supervision, where probations and paroleagents have, on average, 10 minutes per case per week to supervisethese people, okay?

And letís also remember that three strikes and youíre out isanother way of saying truth in sentencing. Itís another way of sayingtruth in sentencing, because if the states, the 30 states that arenow considering--

MR. WATTENBERG: Well, so is that 85 percent provision--

MR. BORK: Right, and Iíd be happy with either of those things.

MR. WATTENBERG: Let me ask you a political point here,something--thereís a political inversion going on. The liberals, whoare supposed to be for more federal power and letís get in there andhave the feds establish these guidelines on how long you ought toserve, theyíre against it. But conservatives are saying,'Right on.Letís have another Great Society federal pie program that imposescarrots and sticks on the states.'

I mean, you approve of this--

MR. BORK: Oh, yeah.

MR. WATTENBERG: --and you do not like the federal governmentbutting into things.

MR. BORK: I wouldnít say I donít like the federal government--

MR. WATTENBERG: Well, I mean, you--no, listen, youíre--Judge Borkis my colleague, and I would argue you are profoundly suspicious ofany new federal programs, and yet you are for this one.

MR. BORK: Yeah. I think itís clear that we have to do somethingabout incarceration rates. I think the public does not trust judgesand the general apparatus that deals with criminal justice, becausethey feel theyíre too liberal.

MR. WATTENBERG: All right. We have talked about punishment. Nowletís take a look at prevention.

President Clinton recently discussed the matter.

(Begin videotaped segment)

PRES. CLINTON: We need to recognize that a lot of the kids thatare getting in trouble have grown up in neighborhoods where there isno longer a strong sense of community, where their own families arenot able to support them, and where there is not very much work, andwhen you have neighborhoods in which you lose family, community, andwork, you are in a world of hurt, and we have to give those kidssomething to say yes to.

(End videotaped segment)

MR. WATTENBERG: There are, indeed, plenty of ideas aboutprevention. They include drug rehabilitation, a hundred thousand morepolice on the streets, gun control laws, less violence on television,boarding schools, boot camps, and community policing, a mostinteresting idea--so interesting that I recently joined somecommunity-based policemen on a bicycle patrol

(Begin videotaped segment)

MR. WATTENBERG: Is this the wave of the future in policing, doingthis kind of stuff?

POLICE OFFICER #1: I think so.

POLICE OFFICER #2:: Here and now it is. The benefit--you know,every different department or every city has different concepts ofwhat communitywide policing should be, and our concept is you spendhalf the time in the community and half the time in pro-activeenforcement.

(End videotaped segment)

MR. WATTENBERG: I ended up, in that particular sequence, wearing abulletproof vest, Iíll have you know, and it makes you kind of looklike that, but you feel a lot safer.

Anyway--Does community policing work, John?

MR. DIIULIO: We donít know, because it hasnít been tried in fullanywhere in the country, and the reason it hasnít been tried isthough itís a good idea and though there have been lots of niceexperiments with it in places like New York and Los Angeles andPhiladelphia and other jurisdictions, we donít have enough policeofficers to do it, and the truth of the matter is that communitypolicing, which is a concept I strongly favor, is a do-more-with-morestrategy, itís not a do-more-with-less strategy.

MR. WATTENBERG: We are all talking crime, crime, crime, but weknow the black rates of criminal activity and of criminal victimhoodare substantially--five or six times higher than the white rates.

When we talk crime, crime, crime, are we really using code forblack, black, black?

MS. GUINIER: To a great extent, yes, and I think thatís a problem,not because we shouldnít deal with the disproportionate number ofcrimes that young black men may be committing, but because if wecanít talk about race, then when we talk about crime, weíre reallytalking about other things, and it means that weíre not being honestin terms of acknowledging what the problem is and then trying to dealwith it. Itís a way of distancing ourselves from the real problem,which is the terrible rise in urban violence.

MR. DIIULIO: I think when we talk about crime, we are talking incode. I think we ought to stop talking in code and be explicit aboutit.

Let me come back to one of your earlier questions, Ben, in thisregard--why weíve had the shift in this debate on crime. I think ifmiddle-class and upper-class neighborhoods were having the sort ofcrime problem that weíre having in inner-city neighborhoods, youwouldnít have the kind of community-based corrections programs thatwe have. Itís because these people are politically powerless anddonít matter that we have a criminal justice system that lets them bevictimized repeatedly.

And itís the same reason why, for all the social programs thatweíve put in place to address their problems, we have yet to make aserious national commitment on having a serious national urbanstrategy.

MR. BORK: Well, Iím not so sure about that. I mean, when you lookat the people who object to increasing punishment and so forth, theytend to be liberals and to be the Black Congressional Caucus objectsto these things, so itís not that we are ignoring them, itís thatsome of their own representatives donít want these folks.

MR. DIIULIO: Oh, but I think we--I agree with that. Thereís noquestion. I think there is a disconnect there. The one segment of theAmerican population that supports most strongly stern criminaljustice measures is socio-economically deprived blacks and Latinosliving in inner city neighborhoods. These are also people whostrongly support social programs. We need both. Theyíre not gettingeither.

MR. WATTENBERG: So you say--we will talk about social programs ina moment, but you are saying that we ought to get even tougher oncrime in the inner cities?

MS. GUINIER: Right. One thing we might do, and I donít know thatwe donít, but it seems to me we should be assigning police based onthe crime rate, not based on the population. I donít think we dothat.

MR. WATTENBERG: Bob Bork, letís just move on to one other item. Doyou think these--the Brady bill, gun control, is going to be a usefultool in preventing crime?

MR. BORK: No, I donít. I donít think it will at all. There are somany illegal guns out there now that the supply probably wonít becontracted for years and years and years. Probably what theyíll do iswind up--if you keep moving in the direction of the Brady bill--windup taking guns away from people who really want them forself-defense.

MR. WATTENBERG: Lani, what about the issue--letís just run throughsome of these--of violence on television. Is that driving some ofthis crime wave?

MS. GUINIER: Well, I donít think itís violence on television perse. I think that we have a very violent culture. I think even the waythat we conduct some of our discourse is violent. Sheldon Hackneycalls it drive-by debate. (Laughter) I think that when you have aculture that believes that the way that you have a conversation is tohave a fight, yes, that message gets communicat ed down to people whoare growing up without a lot of resources and without a lot ofoptions and their response, Iíve heard John say before, is radicallyself-interested and radically present oriented, and thatís dangerousfor them and itís dangerous for us.

MR. DIIULIO: Weíve come to two schools of thought about what to doabout the social problems that drives lots of the other problems inthe inner-city. One school of thought says itís a result of perverseand unintended consequences of federal policies; welfare and so forthand so on. And the conservative response to that, traditionally, hasbeen: So letís try to restigmatize illegitimate birth. Letís try tobasically recreate the conditions that gave us the stable family andthe working class community.

My view is that thatís gone. Itís never coming back. Forget aboutit. This leaves us with some sort of a public policy response. WhereI depart from my more liberal friends and colleagues is many of themseem to think that the answer is retreading great society programs:More Head Start. Summer education and training program: None of theseprograms have worked.

You want to talk root causes? Letís talk root causes. Letís gettruly radical.

MR. WATTENBERG: O.K. Weíre approaching the end of this veryinteresting discussion. Let me ask you if you could briefly, tellus--weíll go around the room--what do we agree on and what do wedisagree on? Lani?

MS. GUINIER: I think we agree that there is a crisis of confidencein the ability of our government decisionmakers to make the rightdecisions without more accountability and more informa tion. I doníttrust the Congress, the President, or this Adminis tration to do theright thing in a politically charged environment.

I think what we disagree on is what the solution is and I wouldlike to hear more stories about local experiences with combattingcrime and with encouraging our young people to invest in their futureand in encouraging us to invest in our young people, rather than justpunishing them.


MR. BORK: I think we agree that incarceration at least reducescrime by taking dangerous criminals off the street during the yearsin which they commit crime.

I think we disagree about how one tries to prevent crimes in thefuture. I donít think that there are any local programs out therethat are working so well that we can go adopt them. I think that inthe long term -- and itís very coercive to do some of the thingsweíre talking about -- in the long term, we have to adjust our socialprograms to get fathers back in the family and to stop illegitimacy.

MR. WATTENBERG: Phil Heymann?

MR. HEYMANN: Well, I think that we agree that we have to do bothlocking up of people who are dangerous while they are dangerous, notafterwards, and some kind of prevention to deal with the 10-year oldcrowd thatís coming along and the 5-year old crowd after them.

I certainly disagree with what Bob just said, and I think itís animportant disagreement. I think that there are programs out therethat will work and we have to find those programs and encourage them.

MR. WATTENBERG: Is the Clinton Administration on the right track?

MR. HEYMANN: The Clinton Administrationís heart is in the rightrplace, but whether its politics will allow it to go where its brainand its heart tell it, it should go--weíll have to see.


MR. DIIULIO: I think we agree that there are a lot of violent andrepeat criminals out there. We disagree about just how many there areand how we ought to handle them. I think we disagree somewhat aboutthe capacity of government to intervene and solve these problems. Iagree that there are lots of good state and local programs out there;I am very, very dubious about whether they can be replicated widelyby national policy fiat.

MR. WATTENBERG: Is the Clinton Administration and the Congressmoving in the right direction?

MR. DIIULIO: I donít think the Clinton Administration and theCongress know what direction theyíre moving in.(laughter)

MR. WATTENBERG: On that note, thank you professors Guinier,DiIulio, Judge Bork, and professor Heymann -- and you. Until nexttime, for Think Tank, Iím Ben Wattenberg. END

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