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Kleiman: We’ve known for a long time that swiftness and certainty are more important than severity. What’s not adequately understood is that severity is the enemy of swiftness and certainty. A severe punishment can’t be swift because there’s a lot of due process involved, and it can’t be certain, because you’re chewing up a lot of resources. That 25-year mandatory sentence under the California “three strikes” law—that’s 25 people who can’t be locked up for a year. It’s a little strange that the people who are loudest about opposing wasteful government spending haven’t noticed that long prison terms are wasteful government spending.
reason: You describe a tension between safety and vengeance, results and catharsis. What do you say to people who argue that vengeance is an important part of justice?
Kleiman: I agree that vengeance is an important part of justice. The tone-deafness of official criminology and the academy to the need for vengeance, it seems to me, has contributed to the problem. If you acknowledge the need for vengeance, then you can say “but it ought to be proportional.”
The resistance to using DNA testing to find out whether somebody is guilty comes from prosecutors, the cops, and the victims—not all of them, but often enough. The psychological mechanism is clear. From the victim’s point of view, what matters is that somebody was punished for that crime. But it ought to matter a little bit whether it was the right person.
reason: What about critics who point out that crime rates have dropped, especially since the 1990s? Does this mean incarceration works?
Kleiman: Of course our high rate of incarceration to some extent must work, because people who are in prison aren’t committing crimes on the outside. Now, if we counted the crime rate inside prisons, the crime drop would not have been as dramatic. I was a strong advocate of building more prisons, back when we had fewer than half a million prison cells. The first additional half million was well worth doing; the next million and a half, not so much. We made do with a fifth as many prisoners as we have now. Everyone else in the world does that. We ought to figure out how to do that.
As [Justice Fellowship President] Pat Nolan says, right now we’re imprisoning a lot of people we’re mad at. We only ought to imprison people we’re afraid of. There are three groups of people who ought to be in prison. There are people who do such appalling stuff that we want to make an example of them—say, Bernie Madoff. There are people who are violent criminals and whose rate of crime is high enough that it’s worth $40,000 a year not to have them in our hair. And then there are people who won’t behave on the outside. You put an ankle bracelet on him, he takes the ankle bracelet off; he’s picked himself a prison cell. Everybody else we can adequately punish and control in the community.
reason: Why do you think the justice system has evolved (or devolved) into an exercise in brute force?
Kleiman: The key thing about the American system is that we have police chiefs who are appointed by elected mayors and prosecutors who are themselves elected officials. They are very sensitive to what the voters want. And what the voters have wanted ever since the crime movement in the 1960s is revenge on the criminals. In some ways, I think voters were right to say, “Hey, crime’s a big problem. We should do something about it.” Unfortunately, they were badly misled by their politicians into thinking that random severity was a good solution.