The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
These days most people don't remember psychiatrist Karl Menninger. But in his day, he was an important public intellectual. His 1966 book The Crime of Punishment argued that all punishment is cruel and useless and that criminal behavior should instead be treated as mental illness. As Dr. Menninger put it, those who asked us to spare a thought for the victims were being "melodramatic" and "childish" and appealing only to the "unthinking."
I wrote about him in my individual Commissioner Statement in the recently-released report of the Commission on Civil Rights on police practices and criminal justice. It wasn't the main thrust of my argument. (My main point was that African-American rates of crime victimization are very high, that police have historically been less protective of African-American victims, and that reformers of police procedures need to be sensitive to this and avoid creating incentives for police to back off from combatting crime in African-American communities.)
But I couldn't help writing a bit about Menninger, since thinking like his is part of why the nation suffered soaring rates of crime in the late 1960s, 1970s and into the 1980s. The following Menninger quotes are from my Statement. (The italics are Menninger's)
"I suspect that all the crimes committed by all the jailed criminals do not equal in total social damage that of the crimes committed against them."
"And there is one crime we all keep committing, over and over. … We commit the crime of damning some of our fellow citizens with the label 'criminal.' And having done this, we force them through an experience that is soul-searing and dehumanizing."
"The inescapable conclusion is that society secretly wants crime, needs crime, and gains definite satisfactions from the present mishandling of it! We condemn crime; we punish offenders for it; but we need it. The crime and punishment ritual is a part of our lives. We need crimes to wonder at, to enjoy vicariously, to discuss and speculate about, and to publicly deplore. We need criminals to identify ourselves with, to secretly envy, and to stoutly punish. Criminals represent our alter egos—our 'bad' selves—rejected and projected. They do for us the forbidden, illegal things we wish to do and, like scapegoats of old, they bear the burdens of our displaced guilt and punishment—'the iniquities of us all.'"
As Menninger's and similar views become more common among policymakers, incarceration rates dipped, while crimes rates soared, especially in African-American neighborhoods in large cities. Meanwhile, he was given many honors, including the Presidential Medal of Freedom by President Jimmy Carter.
We've been lucky in the last couple of decades. Crime rates are down (though they not yet down to what they were in 1960 and there has been a slight uptick in the last couple of years.) Let's face it: Part of that good fortune is due to our higher rates of incarceration.
(Note that while our rates of incarceration are indeed high relative to most other countries, international comparisons are sometimes misleading in that some other countries institutionalize more of the mentally ill, while the number of persons in mental institutions in the U.S. has dropped sharply from a high of about 550,000 in 1950 to about 30,000 in the 1990s. As a result, some of those who really would have been better treated in mental hospitals wind up in prisons today. In that sense, Menninger wasn't totally wrong, he was just ahead of his time.)
I don't doubt that things can be done to improve police practices in African-American communities (and indeed in all communities). I don't doubt that there are people who are incarcerated today who don't need to be. But … well … just don't get carried away. We've come a long way in the last couple of decades. Those who live in previously high-crime communities have benefited most. Let's be cautious. Let's not lose what we've gained.