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Dangerous offenders: The elusive target of justice
Journal of Criminal Jlgtice, Vol. 15 (1987) pp. 93-96 All rights reserved. Printed in U.S.A.
0047-2352/87 $3.00 + .00 Copyright ~ 1987 Pcrgamon Journals Ltd.
BOOK REVIEWS Dangerous Offenders: The Elusive Target of Justice by Mark H. Moore, Susan R. Estrich,
to reply to the objections {hat have been raised, and to propose a model or frameDaniel McGillis, and William Spelman. work for future dangerous offender programs. On the whole, Moore and his colHarvard University Press (79 Garden leagues make an excellent case that the Street, Cambridge, Massachusetts 02138), dangerous offender is worth pursuing. 1985, 264 pp., hardcover--$25.00. Along the way they provide an insightful portrait of the intricacies of the criminal Whether they go by the name of "career justice system and the role of empirical criminals" or "dangerous offenders," those research in policy formation. relatively few offenders who are thought to It is inevitable, of course, that an effort of commit a disproportionately large share of this scope should have some weaknesses, and society's serious crimes now find themselves I will turn to these first. In general, the book at the center of the debate on how to improve seems weakest in dealing with the more the functioning of the criminal justice sys- philosophical issues raised by dangerous oftem. Moore and his coauthors prefer the fender programs. In the first chapter, which term "dangerous offender," to underscore struck me as the least well focused section of that it is not simply the frequency or duration the book, the authors document the fact that of an individual's offending, but also the seri- there is a crime problem and that people are ousness of the offenses that together merit most afraid of violent crime committed by the special .attention of the entire criminal strangers. The purpose of the first chapter justice system. seems to be to justify even raising the issue of The move toward focusing on dangerous the dangerous street offender, given other, offenders has met with three main objec- more pervasive forms of criminality. The autions. One objection has been that such a thors rest their case primarily on the degree focus furthers the (alleged) misidentification of fear generated by the dangerous offender; of serious criminality with the lower class, such an argument, however, is not likely to street criminal rather than with the high sta- be at all persuasive to those critical crimitus, white collar offender (e.g., Kramer, nologists who see that fear as proof that the 1984). A second objection has been that the average citizen has been tricked into mislacategory "dangerous offender" leads to vio- beling the real problem. lations of justice throughout the criminal jusAnother philosophical problem concerns tice process, but especially at sentencing the possible injustice inherent in a danger(e.g. yon Hirsch, 1984). The third objection ous offender program. This objection is is that the system is already reasonably well best illustrated by looking at the issue of focused on the dangerous offender, and "selective incapacitation." As the concept therefore further efforts along this line would is usually framed, if it can be shown that not be cost effective (e.g., Walker, 1985). some convicted offenders represent a high The purpose of Dangerous Offenders, risk to continue their criminal behavior, then, is to review what is and what is not then this group should be allocated sociknown about dangerous offender programs, ety's scarce prison space. The authors point 93
94
BOOK REVIEWS
out that three objections have been raised to this. First, the model that predicts future criminality usually includes noncriminal variables, such as age and employment record. Second, some offenders are inevitably misidentified as dangerous (false positives). And third, even if there were no false positives, the system would be in the position of punishing individuals for their future rather than their past behavior. Moore et al. attempt to avoid these problems by basing their model on retributive rather than utilitarian values. Only criminal behavior is used to predict, and long term imprisonment is viewed as just deserts for the dedicated offender. Incapacitation (accompanied, it is hoped, by lower crime rates) is seen as simply a by-product of the punishment model. The authors' argument hinges on the conclusion that dangerous offenders are more blameworthy because the frequency of their acts indicates a more perverse character. It is difficult to do justice to the authors' argument in a few paragraphs. In a critique of a slightly earlier draft of their position, yon Hirsch (1984) found the reliance on unadjudicated offenses, as well as the idea of significantly enhancing the punishment for subsequent offenses, totally unacceptable from a justice point of view. For my part, I find the concept of justice, at least in the area of crime and punishment, totally unworkable. With respect to the logic put forth by Moore et al., one could just as easily maintain that persistent, dangerous criminal behavior indicated either a character defect or a deviant value system, such that one cannot really blame the offender for choosing morally wrong behavior. Nevertheless, the authors do an excellent job of sensitizing the reader to the philosophical issues and of challenging those who would rely on a more utilitarian approach to clarify their principles. Cut loose from its retributivist moorings, Dangerous Offenders does present a well thought out due process model for crime control. Assuming we can overcome the philosophical hurdles, what does a concentration on dangerous offenders offer us? The authors review four types of programs: police
oriented, prosecutor oriented, bail reform, and sentencing (including parole release). They are very cautious to note that to date there is no empirical evidence of any crime reduction associated with any dangerous offender program. Their model, however, is not purely speculative. Much research and anecdotal evidence leads to the conclusion that a relatively small proportion of offenders commit a relatively large proportion of violent crime (e.g., robbery, rape, felonious assault). Furthermore, although repetitive and dangerous offenders are likely to accumulate in the system, there is good evidence that they do so less than what would be expected, given their rate of offending. Given their concerns with justice and due process, as well as an awareness of the limits of what the system is capable of, Moore et al. recommend defining the dangerous offender as someone who within a three year period (excluding incarcerations) has two convictions for violent crimes plus either two other arrests for violent offenses or two other convictions for serious property crimes. The boundaries of what is or is not a violent offense are left deliberately vague. Armed robbery clearly is; "mugging" is used to illustrate a serious property crime. Presumably, some local variation is expected and even desirable, especially in the experimental stages of programs. The authors' expectation, though, is that their definition would target about five percent of currently known offenders for special attention. The special attention that they recommend is largely reactive. That is, once a dangerous offender, as defined by the records, becomes a bona fide suspect, then a variety of special programs become activated. The authors are relatively skeptical about bail-related and sentencing programs, but they make a good case for probable benefits of programs that involve the cooperation of police and prosecutor, especially post-arrest case enhancement programs. In many ways the authors understate their case. Although they imply that modest crime reductions (five to fifteen percent) might come from some programs, they never really estimate what might occur if all
BOOK REVIEWS of their proposals were implemented simultaneously. They are aware, of course, of how improbable this is. Simply bringing about the significant improvement in official records that would be necessary to identify dangerous offenders would be a major undertaking. The authors are also concerned about possible replacement effects (other offenders committing more crimes as dangerous offenders become incarcerated) and the danger that the system might begin to overlook the more abundant routine offenders as everyone rushes to focus on dangerous offenders. I do have a few minor quibbles with the composition of the book. Many of the figures and tables are difficult to interpret without searching the text. I found figures 4 and 6 especially confusing, and perhaps mislabeled. Table 9 appeared to have some computational errors in it. Also, the book has 394 footnotes in 214 pages of text. For anyone reluctant to skip over footnotes, this requires a distracting amount of page flipping--sometimes to find an important qualification, other times for an "op. cit." I would definitely have preferred a separation of reference a n d content notes, with the latter at the bottom of the page. On the whole, however, Dangerous Offenders is a well written and a well thought out book. Although it is doubtful that any reader will agree with all the points made, especially the more philosophical ones, the authors have done a commendable job of raising the issues and integrating them into a host of practical, system-related concerns. Because the central topic cuts across all areas of criminal justice, this book will be of interest to academics and practitioners alike; indeed, it is difficult to imagine a specialist who would not find something relevant within. Although certainly not a textbook, it could easily serve as a focus for courses in public policy analysis, current-critical issues, or applied ethical-philosophical issues.
R o b e r t J. H o m a n t School of Education and H u m a n Services University of Detroit Detroit, Michigan 48221
95 REFERENCES
Kramer, R.C. (1984). The ideological construction of crime: An analysis of the L.E.A.A. Career Criminal Program. Deviant Behavior 141:10-15. yon Hirsch, A. (198z~). The ethics of selective incapacitation: Observations on a contemporary debate. Crime Delin 30:175-94. Walker, S. (1985). Sense and nonsense about crime: A policy guide. Monterey, CA: Brooks/Cole.
Punishment and Restitution: A Restitutionary Approach to Crime and the Criminal by Charles F. Abel and Frank H. Marsh. Greenwood Press (88 Post Road West, Westport, Connecticut 06881), 1984, 232 pp., hardcover--$29.95. Like those handy one-size-fits-all kitchen gloves, restitution wraps nicely around just about everybody's notion of justice. For the retributist, it only seems fair that the offender restore the victim to the status q u o ante. The knowledge that any ill gotten gains, would, as a matter of course, be returned again to the victim(s) might tip the balance of rational calculation against the offense, a deterrence proponent might argue. And, if nothing else, then the explicit recognition of a victim and a commitment to make him/her whole again may be a first good step down the road to rehabilitation. Of course, no theory of punishment n e e d s a restorative sanction any more than they necessarily rely on executions, imprisonment, fines or community supervision. Specific sanctions, history tells us, are all like the kitchen gloves--temporarily useful, but in the end, disposable. Abel and Marsh are so strongly attracted to restitution that they have written a book advocating it as the exclusive disposition for criminal offenders. Uncertain as to whether restitution is a philosophy of punishment or a tool of the standard punishment rationales, they sometimes use the concept in the former way, other times in the latter. Their book is divided into two parts: the first seeks to justify the use of restitution, the second aims to tell us how to implement it. Their
0047-2352/87 $3.00 + .00 Copyright ~ 1987 Pcrgamon Journals Ltd.
BOOK REVIEWS Dangerous Offenders: The Elusive Target of Justice by Mark H. Moore, Susan R. Estrich,
to reply to the objections {hat have been raised, and to propose a model or frameDaniel McGillis, and William Spelman. work for future dangerous offender programs. On the whole, Moore and his colHarvard University Press (79 Garden leagues make an excellent case that the Street, Cambridge, Massachusetts 02138), dangerous offender is worth pursuing. 1985, 264 pp., hardcover--$25.00. Along the way they provide an insightful portrait of the intricacies of the criminal Whether they go by the name of "career justice system and the role of empirical criminals" or "dangerous offenders," those research in policy formation. relatively few offenders who are thought to It is inevitable, of course, that an effort of commit a disproportionately large share of this scope should have some weaknesses, and society's serious crimes now find themselves I will turn to these first. In general, the book at the center of the debate on how to improve seems weakest in dealing with the more the functioning of the criminal justice sys- philosophical issues raised by dangerous oftem. Moore and his coauthors prefer the fender programs. In the first chapter, which term "dangerous offender," to underscore struck me as the least well focused section of that it is not simply the frequency or duration the book, the authors document the fact that of an individual's offending, but also the seri- there is a crime problem and that people are ousness of the offenses that together merit most afraid of violent crime committed by the special .attention of the entire criminal strangers. The purpose of the first chapter justice system. seems to be to justify even raising the issue of The move toward focusing on dangerous the dangerous street offender, given other, offenders has met with three main objec- more pervasive forms of criminality. The autions. One objection has been that such a thors rest their case primarily on the degree focus furthers the (alleged) misidentification of fear generated by the dangerous offender; of serious criminality with the lower class, such an argument, however, is not likely to street criminal rather than with the high sta- be at all persuasive to those critical crimitus, white collar offender (e.g., Kramer, nologists who see that fear as proof that the 1984). A second objection has been that the average citizen has been tricked into mislacategory "dangerous offender" leads to vio- beling the real problem. lations of justice throughout the criminal jusAnother philosophical problem concerns tice process, but especially at sentencing the possible injustice inherent in a danger(e.g. yon Hirsch, 1984). The third objection ous offender program. This objection is is that the system is already reasonably well best illustrated by looking at the issue of focused on the dangerous offender, and "selective incapacitation." As the concept therefore further efforts along this line would is usually framed, if it can be shown that not be cost effective (e.g., Walker, 1985). some convicted offenders represent a high The purpose of Dangerous Offenders, risk to continue their criminal behavior, then, is to review what is and what is not then this group should be allocated sociknown about dangerous offender programs, ety's scarce prison space. The authors point 93
94
BOOK REVIEWS
out that three objections have been raised to this. First, the model that predicts future criminality usually includes noncriminal variables, such as age and employment record. Second, some offenders are inevitably misidentified as dangerous (false positives). And third, even if there were no false positives, the system would be in the position of punishing individuals for their future rather than their past behavior. Moore et al. attempt to avoid these problems by basing their model on retributive rather than utilitarian values. Only criminal behavior is used to predict, and long term imprisonment is viewed as just deserts for the dedicated offender. Incapacitation (accompanied, it is hoped, by lower crime rates) is seen as simply a by-product of the punishment model. The authors' argument hinges on the conclusion that dangerous offenders are more blameworthy because the frequency of their acts indicates a more perverse character. It is difficult to do justice to the authors' argument in a few paragraphs. In a critique of a slightly earlier draft of their position, yon Hirsch (1984) found the reliance on unadjudicated offenses, as well as the idea of significantly enhancing the punishment for subsequent offenses, totally unacceptable from a justice point of view. For my part, I find the concept of justice, at least in the area of crime and punishment, totally unworkable. With respect to the logic put forth by Moore et al., one could just as easily maintain that persistent, dangerous criminal behavior indicated either a character defect or a deviant value system, such that one cannot really blame the offender for choosing morally wrong behavior. Nevertheless, the authors do an excellent job of sensitizing the reader to the philosophical issues and of challenging those who would rely on a more utilitarian approach to clarify their principles. Cut loose from its retributivist moorings, Dangerous Offenders does present a well thought out due process model for crime control. Assuming we can overcome the philosophical hurdles, what does a concentration on dangerous offenders offer us? The authors review four types of programs: police
oriented, prosecutor oriented, bail reform, and sentencing (including parole release). They are very cautious to note that to date there is no empirical evidence of any crime reduction associated with any dangerous offender program. Their model, however, is not purely speculative. Much research and anecdotal evidence leads to the conclusion that a relatively small proportion of offenders commit a relatively large proportion of violent crime (e.g., robbery, rape, felonious assault). Furthermore, although repetitive and dangerous offenders are likely to accumulate in the system, there is good evidence that they do so less than what would be expected, given their rate of offending. Given their concerns with justice and due process, as well as an awareness of the limits of what the system is capable of, Moore et al. recommend defining the dangerous offender as someone who within a three year period (excluding incarcerations) has two convictions for violent crimes plus either two other arrests for violent offenses or two other convictions for serious property crimes. The boundaries of what is or is not a violent offense are left deliberately vague. Armed robbery clearly is; "mugging" is used to illustrate a serious property crime. Presumably, some local variation is expected and even desirable, especially in the experimental stages of programs. The authors' expectation, though, is that their definition would target about five percent of currently known offenders for special attention. The special attention that they recommend is largely reactive. That is, once a dangerous offender, as defined by the records, becomes a bona fide suspect, then a variety of special programs become activated. The authors are relatively skeptical about bail-related and sentencing programs, but they make a good case for probable benefits of programs that involve the cooperation of police and prosecutor, especially post-arrest case enhancement programs. In many ways the authors understate their case. Although they imply that modest crime reductions (five to fifteen percent) might come from some programs, they never really estimate what might occur if all
BOOK REVIEWS of their proposals were implemented simultaneously. They are aware, of course, of how improbable this is. Simply bringing about the significant improvement in official records that would be necessary to identify dangerous offenders would be a major undertaking. The authors are also concerned about possible replacement effects (other offenders committing more crimes as dangerous offenders become incarcerated) and the danger that the system might begin to overlook the more abundant routine offenders as everyone rushes to focus on dangerous offenders. I do have a few minor quibbles with the composition of the book. Many of the figures and tables are difficult to interpret without searching the text. I found figures 4 and 6 especially confusing, and perhaps mislabeled. Table 9 appeared to have some computational errors in it. Also, the book has 394 footnotes in 214 pages of text. For anyone reluctant to skip over footnotes, this requires a distracting amount of page flipping--sometimes to find an important qualification, other times for an "op. cit." I would definitely have preferred a separation of reference a n d content notes, with the latter at the bottom of the page. On the whole, however, Dangerous Offenders is a well written and a well thought out book. Although it is doubtful that any reader will agree with all the points made, especially the more philosophical ones, the authors have done a commendable job of raising the issues and integrating them into a host of practical, system-related concerns. Because the central topic cuts across all areas of criminal justice, this book will be of interest to academics and practitioners alike; indeed, it is difficult to imagine a specialist who would not find something relevant within. Although certainly not a textbook, it could easily serve as a focus for courses in public policy analysis, current-critical issues, or applied ethical-philosophical issues.
R o b e r t J. H o m a n t School of Education and H u m a n Services University of Detroit Detroit, Michigan 48221
95 REFERENCES
Kramer, R.C. (1984). The ideological construction of crime: An analysis of the L.E.A.A. Career Criminal Program. Deviant Behavior 141:10-15. yon Hirsch, A. (198z~). The ethics of selective incapacitation: Observations on a contemporary debate. Crime Delin 30:175-94. Walker, S. (1985). Sense and nonsense about crime: A policy guide. Monterey, CA: Brooks/Cole.
Punishment and Restitution: A Restitutionary Approach to Crime and the Criminal by Charles F. Abel and Frank H. Marsh. Greenwood Press (88 Post Road West, Westport, Connecticut 06881), 1984, 232 pp., hardcover--$29.95. Like those handy one-size-fits-all kitchen gloves, restitution wraps nicely around just about everybody's notion of justice. For the retributist, it only seems fair that the offender restore the victim to the status q u o ante. The knowledge that any ill gotten gains, would, as a matter of course, be returned again to the victim(s) might tip the balance of rational calculation against the offense, a deterrence proponent might argue. And, if nothing else, then the explicit recognition of a victim and a commitment to make him/her whole again may be a first good step down the road to rehabilitation. Of course, no theory of punishment n e e d s a restorative sanction any more than they necessarily rely on executions, imprisonment, fines or community supervision. Specific sanctions, history tells us, are all like the kitchen gloves--temporarily useful, but in the end, disposable. Abel and Marsh are so strongly attracted to restitution that they have written a book advocating it as the exclusive disposition for criminal offenders. Uncertain as to whether restitution is a philosophy of punishment or a tool of the standard punishment rationales, they sometimes use the concept in the former way, other times in the latter. Their book is divided into two parts: the first seeks to justify the use of restitution, the second aims to tell us how to implement it. Their