Title: Perspectives on Crime and Justice: 1997-1998 
Lecture Series.
Series: Research Forum
Author(s): George L. Kelling, Randall Kennedy, David
F. Musto, Joan Petersilia, Philip Cook
Published: National Institute of Justice, November
1998
Subject(s): Crime patterns and future trends, drug
abuse, gun violence, intermediate sanctions, law
enforcement
135 pages
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U.S. Department of Justice
Office of Justice Programs
National Institute of Justice

Perspectives on Crime and Justice: 1997-1998
Lecture Series

Research Forum
Volume II 
November 1998

National Institute of Justice
U.S. Department of Justice
Office of Justice Programs
810 Seventh Street N.W.
Washington, DC 20531 

Janet Reno
Attorney General

Raymond C. Fisher
Associate Attorney General

Laurie Robinson
Assistant Attorney General 

Nol Brennan
Deputy Assistant Attorney General

Jeremy Travis
Director, National Institute of Justice

------------------------------

Office of Justice Programs
World Wide Web Site
http://www.ojp.usdoj.gov

National Institute of Justice
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http://www.ojp.usdoj.gov/nij

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------------------------------

National Institute of Justice

Perspectives on Crime and Justice: 1997-1998
Lecture Series

George L. Kelling
Randall Kennedy
David F. Musto
Joan Petersilia
Philip Cook

November 1998

NCJ 172851

NIJ
Jeremy Travis
Director

Cherise Fanno
Program Monitor

The Professional Conference Series of the National
Institute of Justice supports a variety of live,
researcher-practitioner exchanges, such as
conferences, workshops, planning and development
meetings, and similar support to the criminal
justice field. The Research Forum publication
series was designed to share information about
this and other forums with a larger audience.

Opinions or points of view expressed in this
document are those of the authors and do not
necessarily reflect the official position of the
U.S. Department of Justice. 

The National Institute of Justice is a component
of the Office of Justice Programs, which also
includes the Bureau of Justice Assistance, the
Bureau of Justice Statistics, the Office of
Juvenile Justice and Delinquency Prevention, and
the Office for Victims of Crime. 

------------------------------

Preface

The issues of crime and justice loom large in our
public discourse. Most people would agree that we
suffer from too much of the former and enjoy too
little of the latter. Nevertheless, forging a
broad policy consensus on the public response to
these twin challenges can be a daunting task. Too
often, the national debate on crime and justice is
dominated by the crime of the day, the solution of
the moment, or the favorite criminological theory
of the year. In this environment it is easy for
fresh insights, common sense, and solid research
to be trampled in the rough exchange of opposing
ideologies and competing soundbites. 

Proud as we are of our research and development
projects to advance our understanding of crime--
particularly its prevention and control--and to
evaluate our society's attempts to achieve
justice, NIJ recognizes that they too infrequently
inform the larger effort within our society to
develop policy directions that reflect the best
thinking of the best minds. Other perspectives are
needed to understand the larger movements and
deeper currents in the flow of knowledge.

To promote informed rational discourse and provide
brief respites from our daily preoccupations, the
National Institute of Justice (NIJ) established
the first Perspectives on Crime and Justice
Lecture Series for 1996-1997. NIJ invited the
Nation's most prominent academics to momentarily
set aside their research projects and to share
their policy perspectives on crime and justice
with an audience of policymakers, researchers,
opinion leaders, congressional staff, Federal
officials, journalists, and criminal justice
professionals. We asked these great minds to
challenge us to see the big picture and
intellectually stimulate us.

Our inaugural series last year was a great
success. We heard from James Q. Wilson on "What,
If Anything, Can the Federal Government Do About
Crime?," Peter Reuter on "Why Can't We Make
Prohibition Work Better? Some Consequences of
Ignoring the Unattractive," Mark H. Moore on "The
Legitimation of Criminal Justice Policies and
Practices," Cathy Spatz Widom on "Child Victims:
In Search of Opportunities for Breaking the Cycle
of Violence," and Norval Morris on "Crime, the
Media, and Our Public Discourse." We have captured
their lectures on individual videotapes and have
released a published volume of all five lectures,
as well. (See the inside back cover for ordering
information.) As important as the lectures are, we
also had lively question-and-answer periods after
each lecture--and many of those discussions
resonated in meetings and debates in Washington,
D.C., and elsewhere throughout the year. 

Encouraged by the success of that first lecture
series, NIJ decided to host a second group of
prominent speakers. The talks from the recently
concluded Lecture Series for 1997-1998 are
compiled in this volume. George L. Kelling
reflected on the 15 years since the broken-windows
thesis was first published. Randall Kennedy
critiqued the explicit use of race in police
practice. David F. Musto reminded us of our
Nation's history of drug use and abuse. Joan
Petersilia assessed 20 years of the
alternatives-to-incarceration movement. Philip
Cook examined the epidemic of youth gun violence
that swept the United States in recent years.

We hoped these lectures would shake us from the
lethargy of our daily struggles with in-baskets,
data sets, committee markups, agency budgets, and
other pressing matters and make us somewhat
uncomfortable with our conventional wisdom. If one
of the objectives in establishing this series was
to foster a constructive debate that lasts far
beyond a morning lecture, I think we have
succeeded. 

The next lecture series, which premieres in
December 1998, promises equally stimulating
presentations.

Jeremy Travis
Director
National Institute of Justice

------------------------------

Contents

Preface

Lecture 1: Crime Control, the Police, and Culture
Wars: Broken Windows and Cultural Pluralism
George L. Kelling, Ph.D. 

Lecture 2: Race, the Police, and "Reasonable
Suspicion"
Randall Kennedy

Lecture 3: The American Experience With Stimulants
and Opiates
David F. Musto, M.D.

Lecture 4: A Decade of Experimenting With
Intermediate Sanctions: What Have We Learned?
Joan Petersilia, Ph.D.

Lecture 5: The Epidemic of Youth Gun Violence
Philip Cook, Ph.D.

------------------------------

Crime Control, the Police, and Culture Wars:
Broken Windows and Cultural Pluralism

Presentation by 
George L. Kelling, Ph.D.
Professor, School of Criminal Justice, Rutgers
University

Research Fellow, Kennedy School of Government,
Harvard University

Adjunct Fellow, Manhattan Institute

December 2, 1997
Washington, D.C.

Since the 1982 publication of "Broken Windows" in
the Atlantic Monthly, I have been closely
identified with its ideas, along with James Q.
Wilson, the first author and the originator of the
metaphor.[1] I mention Professor Wilson here to
acknowledge his senior and generous role in our
past collaborations and to indicate that my
current pursuits are mine alone and should not
reflect on him. 

Briefly, the theory of "Broken Windows" contends
that a broken window left unfixed is a sign that
nobody cares and leads to more damage; similarly,
disorderly conditions and behaviors left untended
are signs that nobody cares and lead to serious
crime, abandonment of neighborhoods to criminals,
and urban decay. The policy corollary is that
minor problems warrant serious attention, a
premise that challenges reigning criminal justice
practice. 

My pursuit of these ideas has been both practical
and intellectual. I consulted in the
implementation of programs addressing disorder and
minor crime in New York City, both in its subways
and with the city's "squeegee men"--street
hustlers who, under the pretense of washing car
windows, extort money from drivers. I also
observed William Bratton implement assertive
order-maintenance policies, first as Chief of the
New York Transit Police and later as Commissioner
of the New York City Police Department.

Like all metaphors that flourish, "broken windows"
embeds ideas that appear simple. They are
expressed allegorically, making them vivid,
readily communicable, and comprehensible. While
not exactly a household phrase, "broken windows"
nonetheless communicates well to a broad lay
audience and local politicians. More recently,
criminal justice practitioners and academicians
have been attracted to the idea as well. 

But metaphors are tricky. As they become
entrenched and everybody believes he or she knows
what they mean, their underlying complexity drops
out of sight. And, as I have written elsewhere,
"Metaphors gain ideological power as their
literary power fades. When metaphors lose their
capacity to attract attention--when they become a
linguistic habit--they become dangerous: A trick
of language becomes an intellectual trap."[2]
Finally, a metaphor may take on a life of its own-
-or even gain a meaning the exact opposite of its
origin and intent. 

There is ample evidence in criminal justice of
metaphors as intellectual traps. The "criminal
justice system," the "war on drugs," "white-collar
crime," and the "thin blue line" all constrict
thinking and distort crime control policy.
Although "broken windows" has not become as
universally known as these metaphors, it has
become closely associated with the dramatic crime
reductions in New York City. In addition,
Catherine Coles' and my recent book, Fixing Broken
Windows: Restoring Order and Reducing Crime in Our
Communities, has been widely disseminated and
reviewed and is receiving, at times, critical
attention.[3] 

Not surprisingly, attacks on the theory of "broken
windows" come mainly from the political left.
"Broken windows" challenges many of the left's
axioms: To deal with crime one must deal with the
social "causes" of crime--poverty, racism, and
social injustice; minor offenses like prostitution
and aggressive panhandling are victimless crimes;
police order-maintenance activities constitute a
"war against the poor and minorities"; behaviors
called disorderly are really expressions of
cultural diversity that challenge middle-class
mores; and finally, individual rights eclipse
community interests on virtually every dimension
short of imminent violence. These axioms have been
a part of mainstream criminology since the 1960s.

The political right "get tough" faction, on the
other hand, is quite enthusiastic about restoring
order. Indeed, it can get fervid about the idea.
For the far right, zero tolerance has become the
call to arms justifying "turning the police loose"
sweeps that target youths in high-crime
neighborhoods and arrest massive numbers of people
in the name of restoring order.

Although both the far right and the far left have
misinterpreted and misappropriated the ideas in
"broken windows," they have raised important
issues. The first is the extent to which the
original "Broken Windows" article invites police
abuse or misinterpretation. The second is the
extent to which the "root causes" theory continues
to penetrate criminal justice thinking. The third
and final issue concerns the current declines in
crime and the role of order maintenance in those
declines. 

I believe that root-cause, liberty-interest
zealots on the left and "lock 'em up" fanatics on
the right have dominated criminal justice thinking
and practice since the 1960s. Both the far left
and the far right were more concerned with their
constituencies than with what was occurring in
urban communities. The prevention of crime became
synonymous with broad social and economic change
and the practice of criminal justice became
synonymous with processing offenders. Imprisonment
soared, yet neighborhoods spun out of control.
Some communities, often with a lot of help, are
now reasserting control of their territory. 

Police Abuse of Citizens

Did Professor Wilson and I invite or foster police
abuse of citizens in the original "Broken
Windows"? Two paragraphs in the original article
are vulnerable to suggestions that we did.

The first refers to the historic role of police in
maintaining order in neighborhoods. We addressed
the issue of how a neighborhood or a community
reasserted control of its turf:

The police in this earlier period assisted in that
reassertion of authority by acting, sometimes
violently, on behalf of the community. Young
toughs were roughed up, people were arrested "on
suspicion" or for vagrancy, and prostitutes and
petty thieves were routed. "Rights" were something
enjoyed by decent folk and perhaps also by the
serious professional criminal, who avoided
violence and could afford a lawyer.[4] 

The second refers to persistent gang activities in
Chicago's Robert Taylor Homes and the residents'
insistence that police do something about them
(the "ass-kicking" paragraph):

But do what? Though the police can obviously make
arrests whenever a gang member breaks the law, a
gang can form, recruit, and congregate without
breaking the law. And only a tiny fraction of
gang-related crimes can be resolved by an arrest;
thus, if an arrest is the only recourse for the
police, the residents' fears will go unassuaged.
The police will soon feel helpless, and the
residents will again believe that the police "do
nothing." What the police in fact do is to chase
known gang members out of the project. In the
words of one officer, "We kick ass." Project
residents both know and approve of this.[5]

I was indignant about the circumstances residents
faced in the Robert Taylor Homes during the early
1980s. I recall one African-American woman in her
forties whom I interviewed in her apartment while
I was evaluating HUD's Urban Initiatives Anticrime
Program. She had three sons: two in their early
teens and one who had just turned 19 and joined
the military. She had been raped several months
earlier in the laundry room by two youths. After
raping her, they hurled her down a flight of
stairs, smashing her jaw. Her teeth were still
wired together when we talked. During the
interview, she pointed out one of the youths--out
of jail on bail or recognizance--who was walking
past her apartment four or five stories below. She
did not think he was there to menace her in
particular; the menacing swagger of gang members
was simply life as usual in the Robert Taylor
Homes.

She began to cry. I mistakenly assumed that she
was upset about the rape, the assault, and the
ongoing presence of her assailants. She explained,
however, that for years her older son had
protected her young sons from violence and being
recruited into gangs. Now he was in the service.
She saw no way she could save her young sons from
gangs.

The police response to gangs had been to "send a
car" to do "something." What they were to do was
unclear. When the sergeant we wrote about in
"Broken Windows" told me he "kicked ass," he was
not conducting a war against the poor. He had been
raised in Chicago's highrise public housing and
was not prepared to walk away from its problems.
Given police practice at that time, he did not
know what else to do and was given little, if any,
advice from the police department. 

"Broken Windows" explored ideas: the relationship
between disorder and fear; the persistent demand
from citizens that police do something about
disorder; the growing evidence that police and
citizen priorities were "out of whack"; the role
of citizens in crime control; the potential of
police and other criminal justice agencies to
prevent crime; and, most important, the source of
police authority to restore and maintain order. 

This final issue, the source of police authority
to restore and maintain order, was a perplexing
one, especially in light of then-current trends
towards decriminalizing minor offenses and the
potential for abuse inherent in loitering and
vagrancy statutes. We fussed about this:

We inevitably ask, what constitutes an
"undesirable person" and why should we
"criminalize" vagrancy or drunkenness. A strong
and commendable desire to see that people are
treated fairly makes us worry about allowing the
police to rout persons who are undesirable by some
vague or parochial standard.[6]

And, in another example:

The concern about equity is . . . serious. We
might agree that certain behavior makes one person
more undesirable than another, but how do we
ensure that age or skin color or national origin
or harmless mannerisms will not also become the
basis for distinguishing the undesirable from the
desirable? How do we ensure, in short, that the
police do not become the agents of neighborhood
bigotry? 

We can offer no wholly satisfactory answer to this
important question. We are not confident that
there is a satisfactory answer, except to hope
that by their selection, training, and supervision
the police will be inculcated with a clear sense
of the outer limit of their discretionary
authority.[7]

Other examples from the article could be given.

How could such inquiries have made it sound like
we "unequivocally endorse the use of extralegal
methods and the need to 'kick ass' to keep people
in order"?[8] Because citizens give order high
priority, did we propose a "heavy-handed,
truncheon-wielding army of police officers
descending on their neighborhood . . ."?[9] Is it
true that "Broken Windows" is a "euphemism
enabling cops to hassle anyone who offends the
police sense of order . . . "?[10] In each case,
it is not.

This does not suggest that random, arbitrary, and
repressive policing has not been committed in the
name of "broken windows." It has. Claiming,
however, that "broken windows" is the "seed" of
brutal policing, as one retired chief of police
has, is disingenuous.[11] This is tantamount to
saying that anyone who supports criminal
investigation supports torture, because we know
that torture was "business as usual" among
detectives for decades until the Supreme Court
acted in the 1960s. Both criminal investigation
and order maintenance are powerful tools that must
be used wisely and humanely.

Moreover, no support exists for the claim of one
criminologist that "this approach ['broken
windows'] has been discredited by the courts in
America repeatedly."[12] In fact, the legal basis
for the maintenance of order is becoming
increasingly firm as police, prosecutors, and city
attorneys adapt civil law and nuisance abatement
as well as misdemeanor ordinances to deal with
disorder. As courts are becoming more exposed to
communities and as communities' interests become
better articulated, a judicial shift toward a more
balanced approach to individual rights versus
community interests can be discerned. The recent
California Supreme Court decision upholding the
use of nuisance-abatement ordinances to restrain
gang behavior is an example of this shift in legal
thinking.[13] Begging and the extent to which it
is a First Amendment free-speech issue has been
the source of most litigation. No one has had the
final word yet.

Abuses and corruption are inevitable in policing,
whether they are the outcome of order maintenance,
drug enforcement, arrests, or criminal
investigation. Leadership and administrative
processes, including holding people accountable
when they become abusive, must be used to keep
abuse to a minimum. Anechiarico and Jacobs,
however, point out in their book, The Pursuit of
Absolute Integrity, that pursuing the goal of
absolute integrity is a certain path to
organizational paralysis.[14]

The "broken windows" metaphor expresses complex
and highly nuanced issues simply. It appeals
strongly to citizens and reopens questions of
public policy that many thought had been answered.
But, its apparent simplicity makes it easy to be
distorted by both the left and right. Nonetheless,
a good share of the debate about order maintenance
has been civil, and some has been thoughtful. New
York City's experience during the early 1990s,
however, changed this. It became the front line of
the culture wars. As Professor Wesley Skogan
sardonically said to me at a recent meeting of the
American Society of Criminology: "When the
criminological war crimes trials begin, you and I
are going to be the first two at the docket." I
suspect he was slightly wrong; Professor James Q.
Wilson and former New York City Police
Commissioner William Bratton, not to mention my
wife and coauthor Catherine Coles, will be among
the first as well.

The Failure of the "Root Causes" Theory

The idea that social injustice, racism, and
poverty are the root causes of crime received an
enormous boost during the 1960s, especially by
President Johnson's Commission on Law Enforcement
and Administration of Justice. I have little
quarrel with the idea that links exist between
these issues and crime; however, I am certain that
they are complex and indirect. James K. "Chips"
Stewart, a former director of the National
Institute of Justice, was among the first to argue
the inverse of the root-causes argument: Social
injustice and poverty are caused by crime.
Disorder, fear, and crime undermine social and
economic institutions to such an extent that
families, schools, churches, commerce, and other
institutions cannot function. I believe that we do
not need to choose which comes first; crime and
other social problems are intimately and complexly
linked.

I also believe, however, that it is false to leap
from the idea that these problems are linked to
the idea that we must deal with "root causes" to
reduce crime. Police entered the 1960s certain
that they could control or reduce crime; it was
only a question of enough personnel. Preventive
patrol and rapid response to calls for service
were self-evidently effective. Chief after chief
testified that if only he could have so many new
positions, he could reduce crime substantially.
The number of police soared in many cities, along
with crime. 

By the late 1970s, the surge in nationwide crime
rates and research findings on preventive patrol
and rapid response ended such certainties. The
idea that preventive patrol and rapid response
didn't work was mixed in with the root-causes
argument in a perverse logic: Crime is caused by
poverty, racism, and social injustice; to deal
with crime one must deal with these root causes;
police and other criminal justice agencies have
little to do with the root causes of crime;
therefore, police and other criminal justice
agencies can do little about crime. Police can
push crime around from wealthier, better defended
neighborhoods to poorer, less well-defended
neighborhoods; however, this only increases social
injustice. 

This logic penetrated deeply into policing, in
effect "depolicing" the crime problem. Many
staunch advocates of the root-causes theory were
associated with the development of community
policing, which contributed to the misperception
that community policing was not serious about
crime and akin to "soft" policing, community
relations, or social work. The idea that community
policing was "soft policing" was so ingrained that
even the cautious and highly discretionary
order-maintenance activities described in Fixing
Broken Windows were too strong for some chiefs:
"There is another war raging among and within the
ranks of America's police departments. The 'Fixing
Broken Windows' philosophy is pitted against that
of 'Community Policing.'"[15] 

While crime was spinning out of control in many
communities, many advocates of the "broken
windows" theory said, although they wanted to
achieve social justice and end racism, there must
be other approaches to crime control than massive
social change and case processing. This raised
fears and charges in many quarters that they were
backing away from civil and human rights. One such
charge regarding "broken windows" was: "Wilson and
Kelling express little interest in developing
mechanisms and agencies which may empower the poor
and the powerless, and they seem even less
interested in directing resources towards the
disadvantaged and marginalized." This charge is
not only irrelevant to the issues Professor Wilson
and I were exploring; it is untrue.

Mixing root-causes ideology with the
case-processing model (police as the front end of
the criminal justice system) left arresting
offenders as the only police business. (For a good
example of this model as it pertains to juveniles,
see a 1964 publication of the International
Association of Chiefs of Police, Juvenile
Delinquency and Youth Crime: The Police Role.[16])
To the extent that police prevented crime, they
did so merely through incarceration and primary
and secondary deterrence linked to arrest,
jailing, and imprisonment. (Departments may have
had small crime-prevention units that met with
neighborhood groups about locks and alarms, but
they were part of the "empty holster" crowd. Real
policing was arresting the bad guys.) Under this
view, police tactics largely remained at the level
of "sending a car," alienating police from
community residents: Police whisked in and out,
seemingly "not getting it" or not caring. It also
set the terms of the relationship between police
and young people: Police indiscriminately hassled
youths, estranging many who desperately needed
police protection and influence. Finally, "sending
a car" poisoned the police culture, turning many
good officers into "dirty workers," doing what had
to be done and "covering ass." In the meantime, as
Ed Davis, Chief of Police in Lowell,
Massachusetts, points out, "Even when everybody
does their job well--police make good arrests and
investigations, prosecutors handle cases well,
etc.--problems on the street get worse and worse." 

The experience in New York City during the late
1990s, with its abrupt decrease in crime, first in
the subway system and later citywide, brought this
simmering debate to a boil. Suddenly, pundits and
the media discovered "New York style" policing.
Zero tolerance and "broken windows" were equated.
As complaints against the police rose and fell in
New York City, their rise was evidence of police
brutality and their fall was evidence of lack of
citizen confidence in the complaint system. Police
Commissioner Bratton must have been "cooking the
books." Root-causes theorists claimed that
eliminating the squeegee scam was not problem
solving; it didn't deal with why people became
squeegee men in the first place. Ideologues who
persistently attribute crime to economics went so
far as to pronounce, "We have analyzed all the
economic variables that would explain New York's
drop in crime. None do. Therefore there are hidden
economic variables that we have not yet
discovered."

The New York City experience exposed the fault
lines in academic theories of criminal justice and
criminology. "New York had not changed. Well,
maybe it was different, but at the cost of
suppressing the poor and minorities. Anyway, crime
was just being pushed around." However, New York
City residents, former residents who visited the
city, and other visitors did not need statistics:
The city was different. And while criminologists
debated "if" and "if, why?" not even Mayor Rudolph
Giuliani's political opponents ran against the New
York City Police Department--even after the Abner
Louima horror.[17]

Nonetheless, the root-causes credo must be
protected by liberals. Their fear is that if
control of crime is uncoupled from racism and
social injustice, crime control will no longer be
used to justify social and economic change.
Frankly, I understand this concern. But holding
crime control hostage to social and economic
change increases the suffering and plight of the
very populations that liberals are concerned
about. In certain respects, the liberals had it
right; the police can do little about social
inequities. But the paucity of criminological and
criminal justice imagination has left the poor and
minorities unprotected in their neighborhoods and
reduced public crime-control policy to "three
strikes, you're out" and "truth in sentencing."
Neither are bad ideas; but, as the mainstays of
policy, they have created a social disaster that
has resulted in the unnecessary incarceration of
offenders, especially African-American men. The
left, however, has as much to answer for this as
the right. The equation of prevention with broad
social change, coupled with the idea of police and
criminal justice agencies as case processors, left
no middle ground. Happily, we are at the end of
the criminal justice processing paradigm. 

Order Maintenance and the Current Declines in
Crime

The New York City story is complicated. Without
diminishing the roles of Commissioner Bratton and
Mayor Giuliani, I believe media accounts missed
the story behind the story. Community groups had
been organizing around crime prevention and
pressing for policy changes for at least two
decades. Business improvement districts reclaimed
public spaces by providing both social services
and security. Bryant Park was restored and Central
Park was reclaimed. Graffiti were eliminated from
the subway. Order was restored first in the
subway, then in Grand Central Station, Penn
Station, and the Port Authority Bus Terminal.
Private security expanded and spread throughout
the city. The Midtown Community Court was opened
to concentrate on minor offenses. Plans were being
made under former Commissioner Raymond Kelly to
eliminate the squeegee scam. In other words, a
widely shared consensus was defining new standards
of appropriate behavior in New York City and
discovering the means to enforce those standards.
The city was systematically reclaiming its turf--
from parks, to subways, to city streets. 

Mayor Giuliani recognized this shift in New York
City's ethos. In fact, he recruited a police
commissioner who had links to the turnaround in
the subway, William Bratton. Giuliani and Bratton
were as much shaped by the city as they
subsequently helped shape it. Bratton inherited a
police department that had been sapped of its
vitality by overwrought and overzealous
preoccupation with control, especially control of
police corruption and abuse. The result was an
organization paralyzed by a "stay out of trouble"
mentality and still riddled with corruption and
abuse. Bratton gave the New York City Police
Department a new vision of its capabilities and
the administrative means of implementing it. The
meaningful involvement of the police in the city's
life achieved a tipping point: Police restored
order, citizen fear of crime dropped, the rate of
crime dropped for many offenses from farebeating
to murder, and the quality of life improved. A
community reasserted control over itself and its
most unruly citizens. Did youngsters learn from
their older brothers' experiences? I hope and
believe so. Did imprisoning many youths help?
Probably, but there was no lack of youths in New
York City--their percentage of the population
increased during the early 1990s. Were drug use
patterns changing? Maybe, but there was no
evidence of this at the time.[18] The point is,
the search for an explanation or the explanation--
great man, broken windows, younger brothers,
youths imprisoned, changing economy, and others--
misses the point. Many factors worked together to
enable New York City to reassert control over its
public spaces.

The experiences of New York City were not unique.
Aside from the seemingly inevitable growth of the
suburbs, consider what was done to our cities
during the 1950s, 1960s, and 1970s. In the name of
urban renewal, entire inner-city neighborhoods
were torn apart. No provisions were made for
displaced residents, so naturally they moved into
adjacent neighborhoods. Because many of those
displaced were African-Americans, real estate
blockbusters followed them, undercutting property
values and scaring other residents into moving. In
the renewal areas, concrete blocks of multistory
public housing were built, often, as in Chicago,
with unsecured external elevators. This was the
housing of last resort for the most troubled and
troublesome families. Expanded tenant "rights,"
however, made it virtually impossible to evict
troublemakers regardless of their behavior or
capacity for mayhem. Expressway construction
followed and cut wide swaths through communities,
displacing entire neighborhoods and dividing
others. Neighborhood schools were abandoned and
students were bused throughout the city. Mental
hospitals emptied patients onto city streets and
drunkenness was decriminalized. The mentally ill
and alcohol and drug abusers drifted into urban
centers. In the name of their "liberty interests"
and to forestall family and governmental abuse,
parental and governmental authority over youths
was reduced. To ensure that children would not be
stigmatized, we abandoned the idea of early
identification of predelinquents. Meanwhile, in
the name of efficiency and improved emergency
response, police were withdrawn from public spaces
into cars and became remote law enforcers. As
"root causes" depoliced the crime problem, the use
of police as an emergency response system
depoliced public spaces.

Jane Jacobs saw virtually all of this coming in
1961 and anticipated its consequences when she
wrote The Death and Life of Great American
Cities.[19] What more could have been done to
destroy the cohesion and "small change" (daily
civilities) of neighborhood life? From physical
destruction, to tower block construction, to
busing, to single-use zoning, to
deinstitutionalization, to decriminalization, to
"freeing" youth, to withdrawing police--the very
underpinnings of urban life were destroyed or
withdrawn. Although many of the social ends that
we were attempting to achieve were lofty, their
costs in terms of urban life were great.

As I go from community to community, I am struck
by the extraordinary levels of activities that
residents engage in (and their rich and diverse
mix) to reassert influence over their communities.
The list is extensive: business improvement
districts, extended school days, new behavior
standards in public housing, community organizing,
religious programs, crime prevention through
environmental design, neighborhood youth offender
panels, private-sector involvement, situational
crime prevention, monitoring to encourage
responsible landlords, enforcement of truancy
laws, advocating for new ordinances against
panhandling, neighborhood police stations, park
reclamation, and drug courts. The list could go on
and on.

As I have observed in monitoring the Bureau of
Justice Assistance's Comprehensive Communities
Program (as well as other programs in which I have
worked), the extent and richness of activities and
the breadth of collaborations in many communities
is far greater than it was just a few years
previously. Moreover, the origins of the
collaborations are diverse. They can start with
virtually anyone: a leader of a neighborhood
organization, a mayor, a district attorney, a
police chief, a housing administrator, or a
transportation official.

Probably no individual program had great impact,
but as citizen, private-sector, and government
efforts accumulated and interacted, citizens
believed in their efficacy. Their evolving success
then was reflected increasingly in official
statistics. The evaluation and interpretation of
these programs, of necessity, lagged well behind
their implementation. Suggesting, however, that
reassertion of community control should await the
development of a proper evaluation design--if one
were possible in such circumstances--is
unrealistic. Besides, I doubt that what happened
in New York City or San Diego is replicable. Each
community reasserted control in its own way. This
does not suggest that communities cannot learn
from each other. They can, but adopted innovations
must fit within a particular context. The old role
of police as discussed in "Broken Windows"--
roughing up "undesirables"--is now unacceptable to
police as well as citizens. The new role of police
and other criminal justice agencies is to back up
the activities of citizens and social
institutions, reminding citizens of their
obligations and holding them accountable when they
do not live within broad definitions of acceptable
behaviors.

A key to police and criminal justice officials
making major gains in neighborhood reclamation and
crime reduction is "talking to them"--talking to
offenders, would-be offenders, and citizens. When
analyzing the order-maintenance activities in
Newark that Professor Wilson and I described in
"Broken Windows," the police activities in New
York's subways to end farebeating, or the current
antigun violence effort now under way in Boston, a
common thread emerges: communication. Officials
negotiate and define new thresholds of acceptable
behavior. They then let people know what the
thresholds are, that they are serious about
enforcing them, that they have the capability to
enforce them, that they will enforce them, and
finally, that they have enforced them. The purpose
of "talking to them" is to get offenders and
would-be offenders to change their behavior. It is
not that we want to arrest "in-your-face
panhandlers"; we want panhandlers to stay out of
peoples' faces. We do not want to arrest
farebeaters; we want people to pay their fares. We
do not want to arrest murderers; we want them not
to murder. 

The emphasis on changing behavior does not mean
that police and criminal justice officials will
forego cracking down on offenders who will not
listen. As in the current Boston effort, however,
it is important that police and other criminal
justice agencies continue to explain their
crackdowns to "wannabes" (would-be offenders) and
other troubled and troublesome persons. "Talking
to them" ought not to be considered a program or a
special effort; it is a core activity of police,
prosecutors, courts, and corrections. Such
communication develops neighborhood norms,
establishes the limits of what can be
accomplished, and sets expectations for citizens,
neighborhood interests, and authorities.

Many police are now committed to communities and
actively work with them to reassert neighborhood
standards. Many prosecutors at all levels, from
city to U.S. Attorneys, are awakening to their
responsibility to prevent crime. Although most
courts are generally lagging behind, drug courts
and community courts like the Midtown Community
Court in New York City are leading the way. (But
judges will wake up; most are closet politicians
and underestimate the power of popular ideas.)
Some corrections agencies are making changes as
well. Prosecutors, courts, and corrections will
have to go through the same painful adjustments in
their organizations and cultures as police have.
But, as more success stories accumulate in cities
such as San Diego; Boston and Lowell,
Massachusetts; Richmond, California,[20] and many
other places, more and more police departments and
criminal justice agencies will be forced out of
"business as usual."

Creating a Mainstream

I have argued that the "broken windows" metaphor
has been seriously distorted by both political
extremes: the far left and the far right. Each
imputed to the "broken windows" theory its own
agenda: the left, the ravages of uncontrolled
police; the right, zero tolerance. Such
interpretations of either the original article or
of Dr. Coles' and my updating of the ideas in
Fixing Broken Windows cannot be justified. For
three decades two models of crime control have
been driven largely by ideology: broad social
change and more certain and longer prison
sentences. A middle ground of crime prevention is
currently breaking through the culture war.
Mainstream liberals and conservatives are finding
not only that it works, but also that it contains
many elements about which they can agree. These 
include:

1. Achieving justice is as important as
controlling crime for police and criminal justice
agencies.

2. Policing and criminal justice practice must be
legal and constitutional.

3. Citizens, neighborhoods, and communities must
play a central role in defining neighborhood
problems, establishing priorities, and crafting
solutions.

4. A central mission of police and criminal
justice agencies is to prevent crime--that is, to
solve problems that weaken the capacity of a
neighborhood to defend itself against predators.

5. New forms of collaboration among police
organizations, criminal justice agencies, other
government agencies, service agencies, the private
sector, and religious communities are required to
control fear, crime, and disorder.

6. The unique contribution of police and other
criminal justice agencies is their capacity to use
force to solve problems--the "or else" when
miscreants do not control their behavior.

7. The case-processing model of law enforcement
continues to be an important crime control method,
especially for repeat violent offenders.

8. Police should continue to ensure that the
needy, disturbed, and homeless are referred to
social and other services.

9. Police and other criminal justice agencies
should not do for people what they can and should
do for themselves or fulfill needs for which other
social and governmental agencies are chartered.

10. Police and criminal justice agencies must
bridge gaps in social and governmental services
during periods of crisis or emergency.

The last decade has seen enormous advances in our
ability to think about preventing crime. We
understand the tragic consequences of depolicing
city streets--and the crime problem. Communities
are recapturing public spaces from miscreants and
predators. Police and criminal justice agencies
are rediscovering their basic roles in maintaining
order and preventing crime, not just processing
cases. The results have been better than we
expected, and we have not seen the best yet.

Question-and-Answer Session

Roger Connor, Executive Director, American
Alliance for Rights and Responsibilities,
Washington, D.C.: What do we do about the
loitering youths in Chicago that the neighbors
want the police to round up and drive from the
streets? Chicago police, as you know, arrested
45,000 young people in the last 2 years under a
law that said it was illegal to loiter with a gang
member. The Illinois Supreme Court just said that
these arrests are unconstitutional. What do we do
about the problem of loitering gang members, as an
example? It seems that it is present in almost
every community where I go and talk to people. 

G.K.: I don't know. But that was the same answer I
gave when they asked me what to do about the New
York subway. I really didn't know. They asked,
"What should we do?" And I said, "Why don't you
bring together a group of about six patrol
officers who work in the subways and do the line
work. Give me a couple of sergeants and at least
one chief (because at times, we need some
authority). But primarily give me line people and
then bring in some from the civilian side. First
of all, let's figure out what the problem is.
(Everyone thought the problem was homelessness,
but it wasn't.) 

It is with great amusement that I watch what is
happening in San Francisco now as Willie Brown
inherits the situation out there. They still have
the problem wrong: They think "disorder and
homelessness," rather than "disorder and crime."
It took us a year to think through what the
problem was in the subway and do something about
it. My guess is that it would probably take about
that long to figure out what to do in public
housing, too. But I'm very confident about the
process. The gun project in Boston developed in
the same way. They pondered for 15 months and
wondered if they would find anything. They went
through the systematic planning, the diagnosis, a
very rigorous problem-solving method, and finally
started to figure it out.

I really mean it when I say, "I don't know." But I
have enormous faith in the process, starting with
the Kansas City experiment. (The Kansas City
experiment was not my idea; it was the idea of
people like Charlie Brown who said, "Preventive
patrol doesn't prevent anything--we're kidding
ourselves.") A task force created the Kansas City
experiment. In event after event in which I've
been involved, we sit down with people who do the
work, bring them the research, and go through it
with them. We figure things out. There are people
in this room who could sit down with people from
Chicago or some other community and figure out
what is going on with violence and intimidation
and then deal with it.

Jolene Hernon, Writer/Editor, National Institute
of Justice, U.S. Department of Justice,
Washington, D.C.: I would appreciate any insights
or observations you have about the problems we
have here in Washington, D.C.

G.K.: Crime control gets mixed up with race and
ideology. That's what I've been talking about. I
think that has happened here in Washington, D.C.
As I understand it--and I'm not an expert in this-
-you have had the same trouble in Washington that
we had for a long time in Boston, which kept the
police department in despair. That is, the
politicians couldn't keep their hands out of the
internal workings of the department. When Mayor
Menino finally allowed Paul Evans to structure the
department to be in sync with the community, the
department flourished. I understand you've had a
fair amount of political manipulation of your
department; I don't know whether that's over. It
would seem to me that a lot could be accomplished
here. You have a lot of cops in the area; I hope
they are starting to work together. I also
understand that the U.S. Attorney's Office is very
interested in working with the police and forming
collaborations. 

My guess is that, like Boston, you couldn't move
very far unless at one level or another you have
the support of the faith communities. Although the
churches in Boston did not help devise the antigun
violence effort, they were generally supportive of
the department. They had a strong commitment from
the faith community (the Nation of Islam, the
Methodists, the synagogues, etc.) to endorse what
the police were going to do. The police and the
faith community agreed: "Yes, these youths who are
going to go away for a long time need to and
deserve to, and there are no alternatives." It
seems to me that they had a very serious problem
that was associated with the historic divisions
around race but also with equating the attempt to
control crime as somehow harassing minorities. We
must get beyond that. 

Again, it wasn't just from police officers that I
learned about "broken windows." Everywhere I went-
-in the toughest neighborhoods in Chicago (Robert
Taylor Homes) or New Haven--poor citizens demanded
order. I didn't learn about this from wealthy
citizens in suburbs. I learned about it from poor
citizens who were suffering and demanding that
police do something about it and who were
constantly frustrated by the police whisking in
and whisking out. That is a social disaster, how
we have turned police into an emergency response
system. It was at the cost, as I have said, of
depolicing our cities.

That's not a very good answer, but you know it's a 
loaded question.

Mark Engman, Special Assistant to the Chief of
Staff, U.S. Department of Housing and Urban
Development, Washington, D.C.: I am very
interested in some of the comments you made
recently about order management and a community's
desire for order. I see that myself. But on the
other hand, I see communities where the people
just don't trust the police. It seems like you
can't have order management without that trust. My
question is, how do departments get that trust so
they can move on to do the jobs they need to do?

G.K.: Well, citizens don't trust the police with
good reason. Fortunately, the officer that I
described in the Robert Taylor Homes was born and
lived in the Ida B. Wells Homes. (I understand
there was a TV special, a Frederick Wiseman film
about that, that I'm eager to see.) The police are
scared to go into these areas; they only go in to
respond to calls. In Chicago, when kids were
harassing people and they wanted cops to come,
they would say, "Man with a gun," and they'd get
13 cars up on the lawn. At least that's the way it
was; I don't want to reflect on Chicago now. I
don't think we understand the extent to which the
fear of citizens and neighborhoods leads the
police to preemptive intimidating tactics, which
alienate good citizens who are desperate for
control. I've seen it happen time and time again.
You put officers in tough circumstances, introduce
them to some citizens, leave them there, and
things simply happen. Remember Newark in the
mid-1970s? That was where our cities were going. 

I was criticized for working in "easy" cities like
Kansas City and Dallas, so I decided to work in a
tough city, Newark. Police could gain the trust of
citizens, but it took time. There were some
neighborhoods, frankly, where, if I were chief of
police and decided to have officers go on foot
patrol, I would tell their commanders to go with
them and ask citizens to patrol with them as well,
at least for several weeks. This makes two
statements: (1) I'm here to help protect and
support the officers. (2) I'm also here to control
the officers because the amount of countercontrol
that citizens have when officers are exposed on
the streets is very great and very desirable in
penetrating this "police culture" that we got
stuck with when we isolated police in cars (which
we deliberately did for control reasons). That is
why I used strong terms I may have to answer for
later when I talked about overwrought and
overzealous concern for control. One can argue
that police strategies are primarily oriented to
controlling officers rather than dealing with
problems in communities. That's a nice, honest
police machine to have in town. But, how can it be
that it is worth doing something well if it isn't
worth doing at all?

Peggy Burke, Senior Associate, Center for
Effective Public Policy, Silver Spring, Maryland:
You spoke earlier about the pitfalls of metaphors
and the extremes of case processing on the one
hand and social change on the other. Have you
given thought to the metaphor that you might use
to describe that middle ground? You listed 10
items. When you are having a public discussion
about crime prevention and control, it's helpful I
think to have language, a metaphor or whatever, to
characterize it easily.

G.K.: No, I don't have a metaphor for the middle
ground. I wish I did, but 15 years from now, I'd
probably get burned by it again. Actually,
Professor Wilson was the person who had used that
metaphor and placed it in the article. That is
something I acknowledge in the book and I
appreciate his generous support. When it comes to
creating metaphors, I'm not that good.

Ruth Davis, President and CEO, The Pymatuning
Group, Alexandria, Virginia: It might be a minor
point, but it was brought to my attention because
of your lack of reference to it. There has been a
lot of attention in the media lately to one of the
instruments of community law: the curfew. Will you
offer your feelings or comments?

G.K.: I think curfews are not a bad idea, but I am
not terribly enthusiastic about them. (This is
something that I haven't thought through.) In
using curfews, we set up a situation in which all
youths are restrained as a consequence of the
actions of a few. We had a conversation last night
at [NIJ Director] Jeremy Travis's house about what
we have done with juvenile laws. I believe we have
effectively reduced both parental authority and
governmental authority over youths, and we have to
think again about how we reinstitute some of that
authority. We have extended enormous liberties to
youths who don't have the capacity to handle them.
I would want to think a lot about how curfews fit
into that and rethink laws that protect children,
and secondly (as Frank Zimring talked about), we
want the laws to give them a license to experiment
(but also to reassure, influence, and protect
them).

I am struck by how much we, including the police,
have stopped talking to our children. I am going
to steal a story from my colleague and wife,
Catherine Coles. There was a problem with youths
hanging around in the subway and everyone was
positioned to roust them. A district attorney went
and talked to them and found out they were there
because a lot of police officers were there--it
was a safe place to be. But previously, nobody had
talked to them to find this out. Although they
"woof" and make a lot of noise, many youths are
seeking protection, influence, and help in
controlling their own behaviors. I think when we
stopped talking to them we made a big, big
mistake. And when we decided that they should have
the same liberties as young adults, it was also a
mistake.

Jean O'Neil, Director, Research and Policy,
National Crime Prevention Council, Washington,
D.C.: How do we judge the effectiveness of these
things? If you were going to talk to the
evaluation community about new lenses they had to
put on to see the picture differently, what would 
you say?

G.K.: I think this is a very troublesome issue. I
am aware that there is hardly an aggregate
statistic that you can't interpret either way you
want to. When civil libertarians say that an
increase in complaints reflects an increase in
brutality and a decrease in complaints reflects a
lack of faith in the complaint process, they are
telling it both ways. And we can do that with
reported crime. If, for example, the number of
rapes increases, it's a sign of more rapes--or
it's a sign of more women reporting rapes. With
aggregate statistics, I have no trouble playing
with the data and turning them to their opposite
meanings!

If I am right and each community will do it in a
different way because each community has different
problems, the indicators of success are going to
be different from community to community. Some of
you know that I have tried to collect indicators.
I mentioned one to you: the first homecoming in 20
years. Other indicators include the delivery of
pizza in the Eau Claire housing development in
Columbia, South Carolina; the creation of a
homebuyers' club in the Boyd Booth neighborhood of
Baltimore, where people were walking away from
houses; the removal of the grates that covered
shops by local merchants in East Boston because
they sent the wrong message. These are indicators
that say a whole lot more about what is happening
in those neighborhoods than aggregate statistics
do. 

But, I think we have to use the aggregate
statistics and we have to hound the police to make
sure they are relatively accurate. We have to
break the figures down and immerse ourselves in
the complaint statistics to see whether the nature
of complaints is changing. Are we going from
officers hitting people to officers smarting off?
Has there been a change in reporting standards?
You have to immerse yourself in those kinds of
data to understand what they mean. So
quick-and-dirty evaluations, I think, are a thing
of the past. So many issues are local, and
aggregate data have to be thoroughly explored to
understand what they mean. It is a very tough
problem.

When citizens say to me, "Things are different
here," that's very powerful testimony. I'm
serious. I do a lot of public speaking now. If I
were followed around, I would be accused of
bringing plants into the meeting because, in every
meeting I'm at, one or two people from New York
stand up and give a testimonial. "I hadn't been in
New York since 1984; I said I was never going
back. I eventually did go back to my old
neighborhood--and I had to call my father to make
sure I was at the right address. I couldn't
believe it!" But we need to break the data down--
disaggregate things and look at them closely. It's
a difficult process, and I don't think we have any
easy answers to it. 

William Earle, Assistant Director of
Management/Chief Financial Officer, Bureau of
Alcohol, Tobacco and Firearms, U.S. Department of
the Treasury, Washington, D.C.: I am a 1967
graduate of Rutgers in Newark. Last year,
Professor Wilson came here and talked to us about
the Federal role in reducing crime. He asked,
"Although the Federal Government spends a lot of
money, does it really have a role in reducing
crime?" Could you comment on what you see as the
Federal role in what you have talked about this
morning?

G.K.: Well, I have published (or proposed that it
be published) something about this. One of the
fascinating things that is happening in the
Comprehensive Communities Program (CCP) under the
Bureau of Justice Assistance is that Government
officials have "let good things happen." By that,
I mean that there is no one "Comprehensive
Communities Program" and there are no boundaries.
When you go to one community, it is one thing; in
another community, it is something else; and in a
third community, it is something else again. The
funds have been used to allow cities to carry out
their own agendas. The cities that came into CCP
with a strong agenda, vision, and leadership are
really taking off. When you look at Boston,
Columbia, Baltimore, Salt Lake City, the East Bay
area in California, and other cities with CCP
funds, very exciting things are happening--you
wouldn't believe it. The Feds are letting good
things happen. 

The second thing is I wouldn't assume that the
Federal Government has the good ideas--the ideas
are on the ground with the people out there. We
can help them develop those ideas, but basically
they have to percolate up. The Federal Government
can help by finding out about them, disseminating
them, and sharing them. For the CCP people, I
think they learned from the consultants, but they
learned much more from themselves. As they were
brought together, with opportunities to share
experiences, they really learned a whole lot. 

I think the Federal prosecutors are in a position,
as in Boston with the Bureau of Alcohol, Tobacco
and Firearms (ATF), to be in powerful
collaborations with local police that don't assume
leadership by the Federal Government. Those of you
who have read Fixing Broken Windows know that
[coauthor] Catherine Coles and I spent a good part
of the introduction saying that most of the ideas
that come from the Federal establishment haven't
been terribly good. Important things have perked
up from the ground. I think the ATF, Drug
Enforcement Administration, and other
organizations can assist communities, but they are
minor partners. It's not like the old days with
the FBI, where the FBI was the major partner. The
Federal Government should be the minor partner.
So, let good things happen, help support them,
lend your authority, and help spread the good
ideas. I can't go much beyond that except with a
warning: Don't think that your ideas are the best.

------------------------------

Notes

1. Wilson, James Q., and George L. Kelling,
"Broken Windows: The Police and Neighborhood
Safety," Atlantic Monthly (March 1982): 29-38.

2. Kelling, George L., "Crime and Metaphor: Toward
a New Concept of Policing," City Journal (Autumn
1991): 67.

3. Kelling, George L., and Catherine M. Coles,
Fixing Broken Windows: Restoring Order and
Reducing Crime in Our Communities, New York: Free
Press, 1996.

4. Wilson and Kelling, "Broken Windows: The Police
and Neighborhood Safety," 33.

5. Ibid, 35.

6. Ibid, 35.

7. Ibid, 35-36.

8. Matthews, Roger, "Replacing 'Broken Windows':
Crime, Incivilities, and Urban Change," in Issues
in Realist Criminology, ed. Roger Matthews and
Jock Young, London: Sage Publications, 1992: 35. 

9. Ibid, 37.

10. McNamara, Joseph C., "The Secret War,"
Intellectual Capital.com, Issues: Pro vs. Con
(June 12, 1997),
http://www.intellectualcapital.com/issues/97/0612/
icon.asp.

11. McNamara, Joseph C., "Brutality in the Name of
Public Safety," Los Angeles Times, August 24,
1997.

12. Manning, Peter, "Broken Windows: Prevention
Strategy or Cracked Policy?" The Critical
Criminologist Newsletter 8 (1)(Fall 1997): 9.

13. People ex rel. Gallow v. Acuna, 14 Cal. 4th
1090, 929 P.2d 596 (1997), cert. denied, 1997 U.S.
LEXIS 4093 (June 27, 1997).

14. Anechiarico, Frank, and James B. Jacobs, The
Pursuit of Absolute Integrity: How Corruption
Control Makes Government Ineffective, Chicago:
University of Chicago Press, 1996. 

15. McNamara, "The Secret War."

16. O'Connor, George W., and Nelson A. Watson,
Juvenile Delinquency and Youth Crime: The Police
Role, Washington, D.C.: International Association
of Chiefs of Police, 1964.

17. Abner Louima is a Haitian immigrant who was
viciously assaulted by New York City police
officers.

18. Bratton, William, with Peter Nobler,
Turnaround: How America's Top Cop Reversed the
Crime Epidemic, New York: Random House, 1998.

19. Jacobs, Jane, The Death and Life of Great
American Cities, New York: Random House, 1961.

20. Richmond, California, which just a few years
ago had 11 shootings in one weekend, had its first
football homecoming in 20 years this fall.

------------------------------

Race, the Police, and "Reasonable Suspicion"

Presentation by 
Randall Kennedy 
Professor, Harvard Law School

February 3, 1998
Washington, D.C.

Should police be allowed to consider race in
determining whether someone has committed or is
about to commit a crime? State and Federal police
officials routinely use race as a marker for
crime. For example, the U.S. Border Patrol has
acknowledged that its agents in the Southwest
scrutinize motorists who appear to be of Mexican
ancestry more closely than others.[1] Officials of
the Drug Enforcement Administration (DEA) have
acknowledged that blackness is a factor that
prompts them to question certain passengers
leaving airplanes.[2] Police officers across the
country have acknowledged that they scrutinize
people who seem out of place racially or who seem
incongruous, as when a black person is in a
predominantly white neighborhood late at night. 

Allow me to make the precise target of my inquiry
more clear. First, I am not focusing primarily on
instances in which police officers question,
detain, or arrest someone solely on the basis of
race. To be sure, such conduct occurs and merits
attention; indeed, it figures into my analysis.
That such conduct ought to be condemned, however,
is uncontroversial. The great majority of police
officers, lawyers, and judges would agree that
acting solely on the basis of race would be wrong
and is illegal. The controversial issue is whether
police ought to be allowed to use race at all in
determining suspicion.

Second, I am not focusing on instances in which
race is an identifying feature of a suspect. I do
not object, for example, if a robbery victim
states the race of the perpetrator and the police
use that information to pursue the criminal.
Mentioning race as part of a detailed description
of a robber is no different and no more
objectionable than mentioning that the perpetrator
had purple hair or a prominent scar. 

The focus of my attention is the routine police
use of racial generalizations to create a
"profile" of likely suspects. Police do not have a
specific suspect in mind; rather, they use race as
part of an array of factors threaded together to
create a net with which to go trawling for
criminals.

The Courts' Response

Most courts have broadly affirmed the
constitutional legitimacy of this practice.
Consider the case of United States v. Weaver.[3] A
DEA officer stopped and questioned Arthur Weaver,
who had just exited an airplane at the Kansas
City, Kansas, airport. The officer said he
questioned Weaver because he was "roughly
dressed," young, black, and on a direct flight
from Los Angeles, a source city for drugs. In
addition, the DEA officer said he suspected Weaver
because he walked rapidly from the airplane toward
a cab, had two carry-on bags and no checked
luggage, and appeared nervous. Although the young
man, as it turned out, was carrying illicit drugs,
he challenged the legality of the officer's
intervention. The Eighth Circuit Court of Appeals
upheld the officer's conduct and expressed no
misgivings about it despite the fact that he
admitted having taken race into account. Although
the Eighth Circuit Court admitted that "large
groups of our citizens should not be regarded by
law enforcement officers as presumptively criminal
based upon their race," the court explained its
position in this way:

Facts are not to be ignored simply because they
may be unpleasant--and the unpleasant fact in this
case is that the [DEA agent] had knowledge, based
upon his own experience and upon the intelligence
reports he had received from Los Angeles
authorities, that young male members of the
African-American Los Angeles gangs were flooding
the Kansas City area with cocaine. To that extent
then, race, when coupled with the other factors
[the agent] relied upon, was a factor in the
decision to approach and ultimately detain [the
suspect]. We wish it were otherwise, but we take
the facts as they are presented to us, not as we
would wish them to be.[4]

Realism is the central theme of the court's
response: "We take the facts as they are presented
to us." Because the facts indicated that black
gangs were exporting drugs to Kansas City, it
seemed reasonable for officers to direct their
attention to airline passengers fitting the
profile of such gang members, a profile that
included blackness among other factors. Judges and
others who permit or champion the approach taken
by the agent in Weaver emphasize its
effectiveness. They assert that using race as a
marker of a greater likelihood of criminal
wrongdoing by an individual or group allows
authorities to apprehend criminals and allocate
resources more efficiently than would otherwise be
possible. Proponents of this view might note that
the man targeted in Weaver was a drug courier,
just as the agent suspected. 

The court also decided that the use of race in
Weaver was not invidious or malicious because race
was only one of several factors in the officer's
calculation. It would have been wrong, the judges
declared, had the officer cited only race as a
basis for questioning Weaver. In the court's
words, "We would not hesitate to hold that a
solely race-based suspicion of drug courier status
would not pass constitutional muster." But that is
not what occurred; race was only one of several
factors on which the officer relied. 

In my view, however, as a matter of law and
policy, it is wrong for officials to use race--
even as only one of several factors arousing their
suspicion, as in Weaver.

First, the officer engaged in racial
discrimination when he used race as a factor in
his suspicion of Arthur Weaver. Racial
discrimination occurs whenever race is taken into
account--even when it is taken into account only
to a small degree and alongside other factors.

Second, use of racial distinctions in policing
should be handled by policymakers and courts in
the same way that racial distinctions are handled
in other arenas of our society; officials should
not use racial distinctions to reinforce their
suspicions unless they can offer an extraordinary 
justification.

Unfortunately, many courts have demanded only
good-faith reasonableness as a justification for
race discrimination in policing. They argue it is
a fact that people fitting certain profiles in
which race is a factor are more likely to commit
(or to have committed) certain crimes. They might
point, for example, to jurisdictions where in
1997, 90 percent of the drug couriers were
African-American men between the ages of 18 and
40. They contend that in such settings it makes
good sense to use markers, including race, to
direct attention to those people most likely to be
drug traffickers. Proponents of this view might
well quote my colleague Cornell West and declare
that "race matters."

Frequently, however, police officials and courts
lack a factual basis for concluding that race (in
addition to other factors) correlates with a
higher risk of criminal misconduct. Great care
should be taken before reaching such a conclusion.
But even if such a correlation can be decisively
established, officials should be more attentive to
the special historical significance of racial
distinctions in American life. Racial
discrimination is different from other types of
discrimination. That is why courts typically
insist, under the equal protection clause of the
14th amendment, that reasonableness is an
insufficient justification for officials to
discriminate by race. When officials discriminate
on racial grounds, courts have increasingly
demanded that such discrimination be subject to
"strict scrutiny"--the most intense level of
judicial review. Under strict scrutiny, a racially
discriminatory governmental action is upheld only
if it can be supported by a compelling
justification and if the government's racial
distinction is narrowly tailored to advance the
project at hand. In the context of affirmative
action, courts and public opinion have become
impatient with racial distinctions. The legality
of racial distinctions in policing, however, has
received conspicuously less attention, which is
remarkable and troubling.

Are Distinctions Ever Justified?

I do not want my objection to race discrimination
in policing to stand or fall, however, on a point
of constitutional law. Even if courts conclude
that a practice is constitutional, it does not
mean that the practice is wise. Routine police use
of race as a marker of criminal behavior is
profoundly unwise. Such a policy opens the door
for officers to use racial discrimination as a
means of racial harassment. My primary focus has
been on good-faith efforts by Officer Friendly (as
opposed to Officer Bigot) to use racial
distinctions to make policing more efficient. An
appreciable number of Officer Bigots, however,
populate police forces. Because current policies
allow officers too much leeway in making racial
distinctions, these policies invite abuse. Bigoted
officers can easily camouflage racial harassment
with claims that race was only one of several
factors causing them to act against a black or
Hispanic suspect. For preventive reasons
policymakers ought to insist that officers have
not only a reason but also an extraordinary reason
for using racial distinctions in policing. 

In an emergency, police could properly take race
into account when the situation is weighty,
immediate, and cannot be addressed sensibly by
other means. For example, police receive a
credible tip that a black man armed with a bomb is
somewhere in an office building. Upon entering the
building, police examine black men more closely
than those who are not black. Under such
circumstances, no one can rightly feel aggrieved.
After all, freedom from racial discrimination is
sometimes in tension with other freedoms. Care
must be taken to ensure that the definition of
exceptional emergency circumstances under which
police are acting is clear and limited. When these
precautions are taken in an emergency, the use of
race should be viewed as an unpleasant necessity
and not racial injustice. Police officials today
use racial distinctions routinely and casually
under circumstances that cannot plausibly be
described as emergencies; this is racial
injustice.

This situation nourishes the mistrust, resentment,
and anger that many Americans of color feel toward
the police. Nothing contributes more to these
poisonous feelings than the knowledge that, as a
matter of policy in many circumstances, the police
view black or brown skin as a mark or signal that
someone is suspicious and act accordingly. This is
why journalist Don Wycliff speaks for many people
when he asserts that, notwithstanding his
middle-class status, he feels "an ambivalence
tilting toward antipathy for the police." He feels
that way, he explains, because "a dangerous,
humiliating, sometimes fatal encounter with the
police is almost a rite of passage for a black man
in the United States."[5]

If the police may properly view race as a marker
of suspicion, people of color are more vulnerable
to routine questioning, traffic stops, and other
unwanted attention from the police. It follows
that people of color will have more reason than
whites to fear the police, regardless of their
compliance with the law. Racial minorities are on
average more likely to be victimized by crime than
whites, which only compounds the problem. The
residents and communities most in need of police
protection view the police with the most
ambivalence. People who otherwise might be of
assistance to the police avoid them, decline to
cooperate with police investigations, assume bad
faith or dishonesty on the part of police
officers, and teach others that such reactions are
prudent lessons of survival. In many locales,
enhancing the effectiveness of the police requires
the creation of better police-community relations.
But in many places, better police-community
relations are possible only if people of color are
confident that the police deal with them on the
same basis as they deal with whites. That
confidence cannot be created as long as police
routinely view color as a signal that someone is
suspicious. 

The Rationales and the Response

I will now address some anticipated criticisms of
my position. First, some critics resist this
reform on the grounds that so-called good-faith
race discrimination in policing is too beneficial
to give up. The rebuttal to this claim takes two
forms. One involves its cost. Proponents of
good-faith race discrimination in policing often
greatly minimize the costs of this practice and
point only to the instances in which such
practices lead to capture of criminals. They often
neglect to consider the cost (burden) to innocent
people. They emphasize the brevity of the police
intrusion and contend that that is a small price
to pay for enhanced police protection. But the man
who is pulled over for questioning in the
Southwest by the Border Patrol in part because he
appears to be of Mexican ancestry will be
vulnerable not only to one stop but a lifetime of
such stops. Nor do proponents of this type of
policing sufficiently weigh the cumulative
negative effects of this practice on policing
itself. The resentment generated by race
discrimination in policing, even in good faith,
impedes law enforcement by eroding the cooperation
and trust the police need to carry out their
difficult tasks.

Second, proponents of good-faith race
discrimination in policing often talk as if no
sensible alternatives exist. But that is not so.
Instead of placing a special burden on people of
color, authorities could decide to hire more
police officers to investigate the resulting
larger pool of suspects. Or they could impose upon
everyone nonracial schemes for dealing with
criminality, such as random stopping or stopping
everyone engaged in certain modes of
transportation. Facts alone do not determine how
we proceed; the way we proceed is a matter of
choice. The choice is whether to continue to place
an extra burden on groups that historically have
been oppressed or to burden everyone equally,
regardless of race, paying the costs that a full
and authentic embrace of racial justice sometimes
exacts.

Third, some people respond to my argument with a
shrug, saying that regardless of its merits,
police will do what they think works best despite
the formal rules that govern their behavior.
Further, some people maintain that implementing my
proposed prohibition of police use of race as a
marker of suspicion will simply cause officers to
lie. Instead of an agent saying candidly that race
was one of several factors that prompted him to
question someone like Arthur Weaver, the agent
will continue to use race as a marker of suspicion
but omit any reference to race when called upon to
justify his conduct. The fear that officers will
not stop using race as a marker of suspicion,
however, is an insufficient basis for rejecting my
argument. It is fair to assume that a substantial
number of officers would obey the new rules even
if they disagree with them. Moreover, even if
these rules drive racial discrimination in
policing underground, that is better than the
current situation in which police are authorized
and expected to use race to as a marker of
suspicion. I admit that there is a danger in
constructing a norm that likely will be
underenforced to a substantial degree.
Underenforcement will nourish further the cynicism
of people of color who believe, understandably,
that the criminal justice system habitually breaks
its promises. The correct response to this danger,
however, is not to promise less but to work harder
to bring the actual conduct of officials in line
with appropriate goals. Even when rightful rules
are underenforced, they are worth fighting for
because they set the standard for legitimacy,
exerting moral force that affects peoples' conduct
and expectations. 

In conclusion, political leaders and police
authorities ought to declare clearly that, except
in extraordinary circumstances, officers in the
field should not take race into account in
determining whether individuals appear to be
suspicious. Courts ought to prohibit police use of
racial discrimination that is justified merely
because it is reasonable. Even if courts decline
to invalidate such conduct, however, police should
reject it themselves on the grounds that it is
counterproductive.[6]

Question-and-Answer Session

Robert Wilkins, Specialist, Litigation Counsel,
Public Defenders Service, Washington, D.C.: Good
morning, my name is Robert Wilkins and I'm one of
Professor Kennedy's former students. A few years
after graduating from law school, I became an
innocent victim of exactly what Professor Kennedy
is talking about this morning. I thought I'd share
a personal experience and some statistics with you
to show you the significance of this problem. 

My family members and I were stopped by the
Maryland State Police when returning home from a
funeral. Rather than just write a speeding ticket,
the officers detained us and tested us with a
drug-sniffing dog--even though I explained to the
officer the Supreme Court case that said he
couldn't do this. We eventually sued and learned
that the Maryland State Police had a written
policy to focus on African-American males
(especially young ones in rental cars registered
in Virginia). That is exactly what we had: a
rental car from Virginia. As part of the
resolution of the lawsuit, we received a
settlement in which the Maryland State Police must
keep statistics on who they are stopping and
searching. We have learned that they search and
arrest African-Americans at five times the rate
they search and arrest whites on Interstate 95.
But they find drugs on African-Americans at a
slightly lower rate than they do on whites. If you
look at the absolute numbers, they search and
arrest African-Americans for drugs at five times
the rate that they search and arrest whites
because they target African-Americans in the first
place. It is a self-fulfilling prophecy. 

I offer that more as a comment than a question. It
is an example of how important it is to get behind
these explanations and statistics. It's very rare
that you get statistics like the ones that we have
from this lawsuit, and I think it shows the cause
of this problem.

Adrian Curtis, Director of Budget Staff, Justice
Management Division, U.S. Department of Justice,
Washington, D.C.: I think that people in the
audience may not be asking questions because they
are thinking about how you would implement or
operationalize what you are saying in "the real
world." I was thinking about the Drug Enforcement
Administration agent at the Kansas City Airport.
He had the information that it was black males who
were bringing drugs in, and he had other reasons
for suspicion. I don't know how, in his head, he
could function without saying, "Well, there is a
black male coming from Los Angeles and he looks
suspicious for other reasons also." I don't know
how he could leave race out of it. I can
understand more what Mr. Wilkins was saying than
the example you gave.

R.K.: The question of operationalizing this reform
is a great question, and I don't have a
comprehensive response. In a Nation where racial
distinctions are so much a part of everyday life,
how does one get rid of them? Over the past 30 or
40 years in other parts of our national life, such
as the workplace, we have implemented exactly what
I'm suggesting. When someone comes asking for a
job, the race of the person is apparent in most
instances. But we have a wide panoply of
antidiscrimination norms that govern the
workplace. In judging people for a job, an
employer can't give a demerit because so-and-so
appears to be a member of a racial minority.

There is a long list of empirically verifiable
sociological facts that might lead an employer to
prefer whites. But we don't allow it. We say that
even if those facts are true, we think it is bad
for our society when people engage in racial
discrimination. And we tell employers: You can't
discriminate on the basis of race. We say that
there are sanctions if you do. Does discrimination
happen? Sure, we know it happens. But it also is
clear that the incidence of it has gone down.
Also, the fact that we tell people that this is
illegitimate and the fact that we penalize people
for doing it have had the effect of changing the
mindset of some people. 

Trying to operationalize antidiscrimination norms
is a huge problem, but it is not insurmountable.
Housing discrimination, employment discrimination,
and discrimination with respect to schooling have
been confronted, although not to anyone's
satisfaction. Clearly, however, we have reason to
believe that antidiscrimination norms taken
seriously can have an effect on people's
expectations and the ways in which they conduct
themselves.

Vincent Schiraldi, Executive Director, Center on
Juvenile and Criminal Justice, Washington, D.C.: I
have done a number of studies, particularly in
California, that talk about the overrepresentation
of African-Americans in our criminal justice
system. The somewhat universal response to the
studies has been: It's discriminatory to say that
we should somehow redress this because people in
the black community are calling for this level of
policing, this level of incarceration. To undo
what we have achieved would jeopardize the good,
honest, hard-working people in South Central Los
Angeles, Anacostia, West Baltimore, and other
black communities. I'd like to hear your response
to that.

R.K.: In my book, Race, Crime, and the Law, I
stated at the outset that I am a law enforcement
enthusiast. I believe that perhaps the first duty
of government is to protect members of society.
So, certainly, it is important for everyone,
especially poor people, to be well protected by
the police. Rich people, after all, can hire
private guards and personal body guards and live
in gated communities. It's regular people and poor
people--especially poor people--who most need
police protection. Poor, minority communities are
most ravaged by crime in its various forms. So, I
certainly believe that it's important to keep in
the forefront the need for efficient, effective,
vigilant law enforcement. We need to protect
people against criminals--by all means. 

Having said that, it seems to me that it should
also be clear that one of the biggest impediments
to effective, decent law enforcement is the
feeling of resentment that many people in minority
communities in particular feel toward law
enforcement. There is a sort of schizophrenia: on
one hand, we have to be protected against the
criminals; on the other hand, like the quote I
read from Don Wycliff, we feel ambivalent. Of
course Wycliff doesn't want to be mugged, but when
he is walking down the street, he wants the
guardians of law and order to deal with him on the
same basis as the white person who is walking with
him. He is a tax-paying, good-doing,
going-to-work, disciplined person. I am
criticizing the policies that say it is legitimate
to differentiate between those two people if they
are both walking down the street late at night and
both are engaging in somewhat ambiguous behavior,
doing something that might raise the eyebrow of
the police officer. But the police respect one and
don't respect the other. The one that they act
against is the person who has the black skin; that
factor becomes the tie breaker. That factor
prompts the police's question or detention. This
feeling of resentment--I don't think one can
overemphasize this--cuts across class divisions in
minority communities and poses an impediment to
police action.

It seems to me that if one is in favor of
effective law enforcement, as one should be, one
needs to do something about this sense of
resentment. The newspapers were full of talk on
precisely this point in the aftermath of the O.J.
Simpson criminal trial; they discussed the
counterproductive consequences of this feeling of
resentment. That point needs to be kept in mind
over the long haul.

Lou Reedt, Senior Researcher, U.S. Sentencing
Commission, Washington, D.C.: I'm interested in
your opinion on whether discrimination based on an
individual's age and gender should merit the same
special protections. Both Mr. Weaver and Mr.
Wilkins were young, which factored into the
equation, as did their gender.

R.K. Age is an easy one for me. Yes, age should be
factored in. Gender poses a more difficult
question; I need to think more about it. Age and
gender should be analyzed in a different way than
race because our law currently views age and
gender differently than race. That is perfectly
proper, given the history and current dynamics of
our society. The type of discrimination that we
are properly worried about simply does not present
itself in the same way with respect to age and
gender as it does to race. For those sorts of
distinctions, we should be attentive and willing
to justify them. But our antennas should go up and
should be more sensitized and more wary with
respect to the race distinction than any other
distinction in American life, based on our
history.

Mark Engman, Executive Assistant to the Assistant
Secretary, Federal Housing Administration, U.S.
Department of Housing and Urban Development,
Washington, D.C.: In the Kansas City case, if the
law enforcement officer had seen a white person
exhibit the exact same suspicious tendencies as
the black person and did not search the white
person, it is my opinion that that would have been
bad law enforcement. 

I also have a question. Do you find that law
enforcement officers of color use the same risk
factors as white officers?

R.K.: Certainly there are many examples in which
law enforcement officers of color have acted the
same way as Officer Friendly--using race as a
marker of criminal misconduct. There are a good
many officers of color who use this marker because
there is a logic to its good-faith use; it's not
that people are acting illogically. Yes, minority
police officers use it, too. However, I think they
are wrong to use it. In my view it does not matter
who is using it. It doesn't matter if it is
Officer Friendly White, Officer Friendly Black, or
Officer Friendly Hispanic. I'm willing to grant
full faith to these officers. I just think they
are making a mistake in judgment.

Mark Engman: At the Department of Housing and
Urban Development, we work with some of the most
difficult communities in this country: public and
assisted housing developments. Many times we find
that, even in those crime-ridden communities, when
the law enforcement officers are the same race as
the residents, there is still distrust that
prevents them from working together to solve
crimes. I'd be interested to hear how we might
address that problem.

R.K.: Again, I think that people on the street,
members of the community, are well aware that,
regardless of the individual officer, there is a
policy that permits and encourages racial
distinctions to be drawn among people. (There are
other reasons people distrust police officers,
regardless of their color, but that leads into
another discussion.) One cannot overemphasize the
extent to which use of racial policies has
"poisoned the water."

Melanie Sloan, Minority Counsel, House Judiciary
Committee, U.S. House of Representatives,
Washington, D.C.: Representative John Conyers has
tried to address this issue with a study. He has
sponsored a bill to require selected police around
the country to keep track of the race of the
people they stop, their ages, and their other
identifying characteristics and explain why they
stopped the person, whether they instituted a
search of the car, whether they found anything in
the search, and whether an arrest was made or a
citation was issued. This Traffic Stops Statistics
Study was developed for the exact reasons you have
discussed today. We wanted to require police
around the country to do this; we've now been
convinced to make it a study. We figure it will be
helpful because currently we have mostly anecdotal
evidence about the problems with traffic stops.
There are statistics on Maryland (such as in Mr.
Wilkins' case) and Florida, but it would be
helpful to have those kinds of statistics from
around the country to convince everyone that there
is a problem. If nothing else, we would be able to
help people with their lawsuits because they need
overwhelming statistical evidence, which is hard
to come by now. We hope that this will help
provide it.

R.K.: Well, I'm all in favor of the legislation
that you are talking about, but I would say this.
You make it seem as though the problem is one of
trying to get evidence that race discrimination in
policing occurs. The fact of the matter is: we
know it does. In many instances you do not need to
do a big statistical study to determine whether in
fact the police are taking race into account. The
police say, "I promise to tell the truth." You
ask, "Did you take race into account in
determining suspicion?" They respond, "Oh, sure I
did." The U.S. Border Patrol says, "Yes, we take
race into account." Profiles have been challenged;
we know that it happens. The question is whether
we think use of race as a marker is justified or
not. That, it seems to me, is the fight. And it is
striking that, at the very moment when there is
tremendous debate in the United States about all
types of racial distinctions, this sort of racial
distinction is not the subject of op-ed newspaper
articles, legislation, or plebiscites. People
might ask why, especially people who think that we
should not make racial distinctions in American
life except in an emergency. Here we have a racial
distinction that is made day in and day out, but 
the political realm has been silent about this.

One more point: we don't need to have legislation
about this. One of the reasons I am happy to have
this forum is that I get to speak face-to-face
with people who are in a position to affect policy
without legislation or court opinions. This is a
matter of policy. Police chiefs can change this!
Presidents of the United States can change this.
You don't have to wait. There are people who make
policy and do not have to wait for any other
agency of government to act.

If people who are in charge of policing policy
believe that using race as a marker of criminal
misconduct is counterproductive, they should go
along with this reform. If they don't, I'd like
them to speak up so that I can confront their
objections. 

Michael Gough, Director, Division of School
Security, Montgomery County Schools, Rockville,
Maryland: I am a member of a community relations
task force appointed by the Montgomery County
[Maryland] police chief to investigate race-based
complaints against officers of the police
department.

When I entered law enforcement 32 years ago, there
was an "us versus them" mentality. Unfortunately,
I hear that it still is present in law enforcement
today, even in some training academies. How much
of this us-versus-them mentality drives racial
discrimination in decisions made by officers? And
what can police chiefs do to turn that around? 

R.K.: I think it exists quite a lot. To get back
to the operational point, it is an important
problem. I want to double back to Mr. Wilkins'
comment, too. Certainly, in an appreciable number
of cases, we are dealing with racial harassment,
pure and simple. I don't want to soft-pedal that
part of this story; it needs to be addressed. 

I think, however, that there is an even larger
part of the story. That is why I emphasize and
take very seriously my hypothesized Officer
Friendly. There are a good number of police
officers who want to provide good, effective
police enforcement to their communities. They want
people on the street to be safe, and I believe
them. In facing such a person, the thing to do is
to acknowledge their good faith. "I understand
what you are trying to do. I really do. I
understand you think that it makes your job easier
to take race into account in making your decision.
You have a thousand and one people passing by; you
can't pay attention to everybody. You obviously
have to figure out ways to focus your attention on
some people as opposed to other people." I would
say, too: "Listen; we are the inheritors of a
problem. We have a pervasive racial problem in the
United States, and we have to do something about
it. It's messing up everything, including
policing. One of the ways in which we have got to
try to fix this is to treat everybody in the same
manner. I understand that there are reasons why
you think it makes sense to use race as a
shortcut, a marker, to focus more attention on
this sort of person as opposed to that sort of
person. I understand the logic of it; it is not
irrational--it is reasonable in certain contexts.
But, over the long haul, it is going to be
counterproductive. So we are going to bend over
backwards, if necessary, to treat all people in
the same way in our law enforcement policy and in
reality."

The police officer is the extension of the state
and the court on the street. Before the bar of
justice, all people should receive equal
treatment. We need to state that over and over and
explain to people, acknowledging their good faith,
that this is a reform whose time has come. That is
one of the things (and I am sure there are a lot
of other things) that need to be done. It is a big
problem; there needs to be a first step. As things
are now, in many places, there has been no first
step. 

Christopher Stone, Director, Vera Institute of
Justice, New York, New York: I want you to talk
about the incongruity cases, which you haven't
mentioned. Police are accountable to the courts,
and you have talked about the role of the courts
in advancing your principle. Police are also
accountable to their own departments, and you have
talked about the independent obligations of police
chiefs to advance your principle. But these days,
police are also accountable to communities.
Indeed, a lot of the people in this room are
engaged in advancing community policing and direct
relationships between the police and their
communities. 

I can imagine how a DEA agent or someone writing a
highway profile would eliminate race from that,
maybe by stopping more people of all races, which
may have the same (or less) effect. At least then
they would comply with your principle. But
officers in some communities believe, rationally,
that when black men come into their neighborhood,
it is a sign of crime. Only a very sophisticated
police officer would say in a community meeting,
"I believe that when black men come into the
community, there is a higher risk of crime than
when others do. But I've decided I'm not going to
take different action against them because that
would unfairly burden them in this community." 

Making community policing work is on the minds of
many people. I think it is true that one reason
the American Bar Association Race Committee and
others endorsed community policing early on was
precisely because they hoped this kind of dialogue
would come from closer connections between the
police and the community. So I'd like you to talk
about the police and these incongruity cases.

R.K.: Let me begin by recounting a story. I was
talking with a black friend in the Boston area who
recently moved into a predominantly white
neighborhood. We were talking about schools and
other things. My friend said one of the first
things he did when he moved into this area was to
go to the local precinct station to show who he
was. He was essentially saying, "I live in this
neighborhood. Here I am. I have funny hours, so
when I come home at 11 at night and you pull me
over (and I know you will), you'll know who I am.
You'll say 'Oh, I made a mistake this time. You
can go.' "

Now, I can imagine a good number of people who,
knowing the situation, would say, "It's a really
nice neighborhood with certain advantages. If all
things were equal, I would like to live there; but
I'm not going to live there because I don't want
to be pulled over at 11 at night three times a
year. I don't want to live in a community where I
pay the same taxes as everybody else, I put out my
trash just like everybody else; I do the same
things as everybody else, but my skin color hangs
over me whenever I jog or whenever I leave with my
youngster to go to school. So, I'm not going to
live in that community. I'm going to go someplace
else." 

That is one of the other banes of our society:
residential separation by race. Race
discrimination in policing is one of many things
that buttress residential racial separation.
People decide, "I'm not going to live in a place
where I don't belong." Isn't it a terrible thing
that Americans would say, "I don't belong in this
neighborhood"?

Getting back to your point, I would advise the
police officer who wants to proceed with the
reform I've described to take a look at that
community meeting. Let's suppose it's a
predominantly white group, and there are a few
people who appear to be of Mexican ancestry and
one or two black people. Under those
circumstances, I would advise the officer to say
to the speaker who challenges him: "Do you know
Mr. So-And-So, your neighbor, the black guy over
there? Do you think he is entitled to the same
treatment you receive? Should he be the same in my
eyes, as an officer of the state?"

I can imagine a person who might say, "Yes, I
believe that person is entitled to the same
treatment. I'm white; if I lived in a
predominantly black neighborhood, I would expect
similar treatment. I would expect to get stopped
three or four times a year." Certainly the courts
might agree. In response to that, I would ask, "Do
you want to be condemned to live in a society
where such racial distinctions are part of our
existence? If you think that's the best we can do,
I understand your point. I just disagree with
you." I would appeal to those who want a different
definition of community, a definition of community
without "them and us" and without invisible fences
all around. I'd like a definition of community in
which we think of ourselves as neighbors,
regardless of race.

Jeffrey Roth, Director of Crime Control Policy
Studies, The Urban Institute, Washington, D.C.: I
think part of the support for your argument comes
from the fact that such traffic stops are frequent
and that they burden members of a segment of
society who are already burdened in lots of other
ways. But what about the situation where the
person is part of a privileged group in society?
I'm thinking about a situation where it is late at
night, near a drug market in a minority community.
There's a guy waiting in a car with the engine
idling. Many people would argue that the fact he's
white increases the chance that he's there to take
part in illegal activity. I'm curious about
whether and how that changes your argument.

R.K.: It doesn't change my general argument; my
bottom line is the same. Only some of the details
of the argument would be different. My basic point
would be that discrimination by race is not a good
thing. 

Regarding the white person who's thinking about
living in a community that happens to be
predominantly black, I think it's a bad thing for
us to have a set of policies that prompt a person
to say, "I better not live in that community,
because if I do, about four times a year the
police are going to stop me and say, 'You stick
out here; what are you doing here?' " That is bad
and, again, buttresses residential racial
segmentation.

In the past few years, I have asked my students to
take part in an exercise when we come to this
section of the course on race relations law. I
say, "Please stand if you have been stopped by
police officers and think that race had something
to do with it?" (It's not foolproof; sometimes
people think things and they happen to be
mistaken. But it provides some degree of
evidence.) Every year for the past 5 years, every
black male student has stood--every one. Over the
past few years, there also have been an
appreciable number of white students who stood. I
ask the white students, "What's your story?" They
typically have two stories. One is that they are
in their second or third year of law school, doing
clinical work. They are in a predominantly black
part of town, let's say Roxbury, Massachusetts,
and visiting with a client. It's 8 p.m. on a dark
winter night, and the police pull them over on
suspicion of buying or selling drugs. That has
been the most common scenario.

There is another scenario, though. This one always
gets a laugh in class, but (as with many jokes)
there is a bitter irony to it. A number of whites
who said they had been pulled over were told by
the police officer, "I pulled you over because I
figured you must be lost, and frankly I'm fearful
for your safety. I want to escort you out."

Clarence Edwards, President, National Organization
of Black Law Enforcement Executives (NOBLE),
Washington, D.C.: Someone once said that there is
no right way to do something that's wrong. If that
statement is true, my question is, "Is it ethical
to discriminate on the basis of race at any time?" 

R.K.: I would say yes. Although our society says,
"People should not kill," we have adopted the
concepts of self-defense and "just" wars and other
circumstances in which killing is justified. I
think the proposition, "We should not draw racial
distinctions," is also true. But that, too, is a
principle that should have a stopping point.
That's why I say, "Don't draw racial distinctions,
except under extraordinary circumstances." Are
there circumstances in which I think it would be
justifiable for officials to draw racial
distinctions? Yes, I do. But we should say that,
if you are going to draw racial distinctions, you
ought to give more than just a "reasonable
justification that is based on a hunch." No! There
ought to be an extraordinary justification that is
limited in time and only used under what people
would conceive of as an absolute emergency. 

We have to be attentive to what we consider an
absolute emergency. Probably the foremost instance
of drawing racial distinctions in American history
was justified on the basis of a supposed emergency
(although it was not one). It was the rounding up
and detention of Japanese-Americans in World War
II. That experience ought to make us think twice,
even in the face of something justified as an
emergency. So I can understand why you would be
anxious about using this emergency "out." I think
there ought to be such an out. But I think that it
ought to be guarded very, very carefully.

------------------------------

Notes

1. United States v. Martinez-Fuerte, 428 U.S. 543
(1976).

2. United States v. Weaver, 966 F.2d 391 (8th Cir.
1992), cert. denied, 506 U.S. 1040 (1992).

3. Id.

4. Id at 394.

5. Wycliff, Don, "Blacks and Blue Power," New York
Times, February 8, 1987.
6. See generally Kennedy, Randall, Race, Crime,
and the Law, New York: Random House, 1997.

------------------------------

The American Experience With Stimulants and
Opiates 

Presentation by 
David F. Musto, M.D.
Professor, Yale School of Medicine

March 3, 1998

Washington, D.C.

The history of drugs in America is a large
subject. To make it more manageable I would like
to look first at shifting attitudes toward--and
consumption of--alcohol. Following the same
pattern of looking at attitudes and consumption,
I'll also discuss opiates and stimulants,
including cocaine and amphetamines. 

Alcohol is a drug that has been used throughout
the entire history of the United States. We have
experienced cycles of high as well as low
consumption. These swings in alcohol consumption
roughly reflect the use of other drugs such as
cocaine and opiates. Although most of these drugs
were not familiar products early in the 19th
century when the first great temperance movement
swept America, they figured in the second
temperance movement, which culminated in national
Prohibition from 1920 through 1933. We may well be
in the first stage of a third temperance movement,
which began about 1980. The changing pattern of
alcohol use reflects not just a fundamental change
in our attitude toward alcohol, but also changes
in our attitudes toward food, exercise, the
protection of our bodies, the purification of our
environment, and the role of government in the
creation of a healthier society. 

Alcohol: Attitudes and Consumption From 1790 to
1995 

The past 200 years have seen three distinct eras
of alcohol consumption. In the early Republic, an
extremely high level of alcohol consumption
(chiefly, distilled spirits) peaked in the 1830s
at more than 7 gallons per adult. A rapid decline
followed and reached a low in the 1850s,
coinciding with the first temperance movement and
widespread State prohibition in the mid-1850s. We
have never again come close to the high levels of
consumption of the early 19th century. Consumption
rose again until about 1910 to 2.8 gallons per
adult, when a second decline began. The level of
alcohol use at the end of Prohibition was the
lowest in American history. Another rise began in
1934 and reached its peak in 1980 at 2.8 gallons
per adult. It took 50 years after Prohibition for
alcohol consumption to rise again to its previous
high levels. We now are, once again, in a time of
declining alcohol consumption.[1] 

These declines in alcohol consumption and parallel
changes in attitude toward alcohol eventually have
been expressed in legal restrictions. The first
change in attitude is a transformation from
viewing alcohol as a valuable tool and an
instrument of health, healing, inspiration, or
cheer, to viewing it as a poison. This radical
shift has occurred more than once in American
history. The concept of a safe upper limit of use
is erased gradually. As this process continues,
the harm done by alcohol increasingly dominates
discussion and finally outweighs its claims as a
medicine or a tonic. Moderation evolves to
abstinence. Two examples illustrate the beginning
and end of this evolution. Dr. Benjamin Rush,
signer of the Declaration of Independence, surgeon
in the Revolutionary War, and professor at the
Nation's first medical school in Pennsylvania, saw
life differently from most of his contemporaries.
He fought for education of African-Americans,
abolition of slavery, education of women, prison
reform, an end to capital punishment--and
abstinence from distilled spirits. His reform
ideas, however, were far better than his medical
theories, which implied that the only effective
remedies were strong laxatives and bleeding. Rush
blamed high-proof alcohol for causing illness,
moral degeneration, poverty, and crime. 

Rush approved of beer and wine in moderation but
believed that distilled spirits started a person
on the downhill path. He likened dependence on
alcohol to a disease, and some say he was the
first to do so. Rush typified the early days of a
temperance movement. He had a vision that few
shared in his own time, but it became one of the
great reform movements in American history a
generation after his death. Interestingly, Rush's
antialcohol position was staked out as the Nation
started on an extraordinary binge that did not
peak until 1830. 

Rush invoked two powerful forces that are
typically American: scientific research and
voluntary organization. By encouraging the public
to cooperate with what he saw as medical insights
into the dangers of distilled spirits, he hoped to
improve society. He espoused another very American
trait--"logical reformism," in which the dangers
of alcohol from distilled spirits were gradually
extended to their logical conclusion, the dangers
of alcohol from all alcoholic beverages. Compare
this with the British experience: In Britain
during the gin epidemic of the 18th century,
reformers attacked distilled spirits. Gin drinkers
were urged to return to the traditional British
ale and beer; they were not urged to give up
alcohol. But the American approach was different.
If distilled spirits were dangerous because they
contained alcohol, then all alcoholic beverages
were dangerous. Although some, like beer, were
considered mild, they nevertheless could lead to
addiction and a desire for stronger drinks. There
was no safe threshold of alcohol use. 

Lyman Beecher, perhaps the most popular preacher
in pre-Civil War America, insisted on this final
formulation of the first temperance movement.
About a decade after Rush's death, Beecher
demanded total abstinence from all alcohol--beer
as well as rum and wine as well as whiskey. His
only concession was to grant that beer "enables
the victim to come down to his grave, by a course
somewhat more dilatory, and with more of the
good-natured stupidity of the idiot and less of
the demoniac fury of the madman." He had no
sympathy for what is now called "responsible
drinking" and what in his day was called "prudent
use." "It is not enough," he wrote, "to erect the
flag ahead, to mark the spot where the drunkard
dies. It must be planted at the entrance of his
course, proclaiming in waving capitals: this is
the way to death!! Over the whole territory of
'prudent use' it must wave and warn."[2] 

By 1855 about a third of the United States and all
of New England were under State prohibition laws,
with a number of other States close to approving
this ultimate control as well.[3] What had
happened since the freely flowing spirits of 1830
when alcohol consumption was three times the
current per adult rate? A deep, tenacious new
conviction had slowly gripped Americans and
reversed their image of alcohol. Abraham Lincoln
expressed it best in a temperance lecture he gave
in Springfield, Illinois, in 1842. Back when
alcohol was seen positively, Lincoln said, the
damage done was thought to arise "from the abuse
of a very good thing," but now, he said, we know
that "the injury arose from the use of a bad
thing."[4] 

Alcohol's altered image is all the more remarkable
because for many Americans alcohol was, and is, an
everyday consumable and a part of religious
ceremonies. These factors contributed to the
failure to sustain Prohibition indefinitely. When
Prohibition lost, it lost so completely that the
opposing side simply swept away the other point of
view. Both sides were fueled by emotions and had
few facts to back up their positions. People did
not want to hear that liver cirrhosis deaths were
cut in half during Prohibition because they could
not believe that anything good came from
Prohibition.[5] That kind of censorship can be
seen with drugs and alcohol. The peaks of
Prohibition in the 1850s and 1920s ended in
frustration for the antialcohol forces. The
backlash to Prohibition added to their regrets;
for decades any realistic discussion of alcohol
and its problems was nearly impossible. 

The prohibition of alcohol was not integrated into
our society because too large a fraction of the
public did not regard alcohol as a poison. In
addition, Prohibition was viewed as an
anti-Catholic, anti-immigrant measure.[6] The only
two States not to ratify the 18th Amendment were
Connecticut and Rhode Island, the two States with
the highest Catholic voting populations. At the
peak of hostility to alcohol, the prohibition
forces did not have more than 60 percent of the
public on their side. In contrast, cocaine and
opiates came under similar control with almost no
opposition: I estimate popular hostility to
cocaine and heroin at 95 percent or higher.
Alcohol prohibition illustrates that in some of
these crusades for health or temperance, reform
may go further than can be sustained. 

The target of reform during the first temperance
movement was not restricted to alcohol; poor
health and poor eating habits were attacked as
well during this and all other reform movements
throughout American history. In that first
temperance movement, Sylvester Graham, who
advocated fresh vegetables, whole-grain flour
(graham flour), water (not alcohol), exercise, and
no fried foods, was representative. (His memory
lives today in the graham cracker.)[7] The second
temperance movement, led by the Anti-Saloon League
and the Woman's Christian Temperance Union, also
saw a revival of health campaigns out of which
came corn flakes and yogurt. Accompanying the
current temperance movement is a new health
campaign: jogging, whole grains, no red meat, and
lots of tofu. 

Opiates: Opium, Morphine, and Heroin

In addition to the rise and fall of alcohol
consumption and its resulting political and social
movements, consider opium and its derivatives.
Customs records of the then-legal product reveal
the pattern of use from 1840 until 1915, when the
Harrison Narcotic Act brought opium and opiates
under control and the amount smuggled had to be
estimated. 

Opioid consumption rose until the 1890s and then
declined. By 1914 when the Harrison Act was
passed, per capita consumption had fallen to that
of 1870. The smoking of opium slowly increased
throughout the period; data on it end with the
Smoking Opium Exclusion Act of 1909. The decline
in the use of opioids coincided with the public's
growing fear of addiction and the rise of State
laws restricting their availability to a
physician's prescription.[8] 

During the 19th century and before these State
controls, the United States was the only major
Western nation to allow unlimited distribution,
sale, and promotion of narcotics. The result was
not surprising: the use of opium and morphine and,
later, cocaine and heroin was extensive. (Heroin
was introduced by the Bayer Company in 1898 as a
powerful cough suppressant. The firm's ads read,
"Aspirin for joint pains. Heroin for coughs.") In
the 1890s consumption of opium and its active
ingredient, morphine, peaked with an estimated
one-quarter of a million addicts. Since the U.S.
population in 1890 was 60 million--about a quarter
of the current population--a million people would
be addicted to opiates now if the same rate
applied. Although both past and current numbers
are estimates, it is reasonable to assume that the
last opiate epidemic at its height was fairly
extensive. 

The late 19th-century opioid epidemic lasted
several decades and continued with many years of
easy availability. Eventually, although more
slowly than concerned Americans wished, it went
away. The broad outline of the earlier wave of
drug use and its eventual decline raises
questions. Was the decline a result of a shutoff
of the drug supply or of Americans' disgust with
and fear of drugs? As with the alcohol epidemics,
our loss of memory for the earlier drug epidemic
contributed to even greater similarities between
the two waves of drug use, then and now. In each
instance, drugs entered American society
surrounded by fantasies that would only gradually
be replaced by the reality of drug use. 

Antidrug laws were in place when the current drug
wave hit the United States in the 1960s. Why were
there no laws against drug availability in the
19th century? To understand why a free market
existed, it is helpful to look at circumstances
unrelated to drugs. First, unlike European
nations, the United States did not have strong
national organizations of pharmacists and
physicians until this century. Organizations with
names suggesting such breadth did exist (for
example, the American Medical Association,
established in 1847), but only a fraction of
practicing health professionals were members.
Furthermore, licensing of professionals was rare
in the mid-19th century; anyone could claim to be
a physician or pharmacist. Without a national
organization or licensing, control over the
practice of the health professions was practically
nonexistent. 

An early obstacle to national control was
separation of Federal from State power in the U.S.
Constitution. Strictly interpreted separation
between Federal and State powers prevailed during
the 19th century. Therefore, police powers over
the regulation of medical practice were reserved
for the States. Few people today question the Drug
Enforcement Administration's right to register
physicians and pharmacists and control what drugs
they can prescribe and dispense. In the 19th
century, this would have been an unthinkable
Federal invasion of States' rights. 
Nineteenth-century America permitted an open
market in narcotics. Some current advocates of
legalizing drugs have not considered that both our
fear of drugs and our first antidrug laws were
consequences of unrestricted drug use. Easy access
to drugs did not create a peaceful integration of
morphine and cocaine into American habits; rather,
widespread use of drugs led to the fear of their
effects on the individual, the family, and
society. History also shows that extensive use of
a drug at one time does not mean that such a high
rate will continue indefinitely; the drug may fade
in esteem and usage, even to the vanishing point.
Reasonable national drug policies must take into
account the long-term perspective. We should
neither hastily surrender in defeat at a time of
extensive use nor declare final victory after a
long and deep decline in drug use. 

The rising use of opium and morphine in the late
19th century prompted some States to enact laws
restricting access to opiates to a physician's
prescription--unless the opiates were contained in
patent medicines. The major difficulty for
proponents of a national antinarcotic law--the
constitutional separation of powers--was resolved
only with great effort. The Pure Food and Drug Act
of 1906 required that makers of patent medicines
state on the label the amount of any narcotic
ingredient they contained, but the law set no
ceiling on how much the product could contain.
Later, the Harrison Act, in contrast, severely
limited the amount of opioids in any remedy sold
without a prescription. Although the Harrison Act
became law in 1914, the Supreme Court did not
interpret it to restrict the reasons for which a
physician could provide addicting drugs to
patients until 1919. 

These laws reflected a nationwide consensus that
had been growing for several decades against
drugs, particularly opiates and cocaine. Although
attitudes toward alcohol were more divided,
national Prohibition was achieved through the
elaborate process of adopting the 18th Amendment
to the Constitution. Opiates and cocaine, however,
were so despised and feared by the early years of
this century that a similar prohibition was
instituted much more simply by a statute and
Supreme Court interpretation. This fear of
narcotics is painfully portrayed in Eugene
O'Neill's Long Day's Journey into Night, set in
August 1912. Arguably the greatest drama by an
American, the play centers on the impact of
morphine addiction on a family. 

Although the Nation's drug use rises and falls,
human physiology remains the same. For many, the
initial encounter with drugs is attractive; the
negative attitude toward drugs is learned from
experience. 

Another trend often accompanying the Nation's
rejection of drug use is less constructive--the
increasing fear of and anger at the drug user.
Anger and fear more and more characterize American
attitudes after several decades of watching drugs
ravage families, the social order, and personal
health. 

The American Medical Association had originally
supported the Harrison Act: Health workers were as
upset about the drug problem as the public. One
target of the national laws in the early 20th
century was the mercenary physician or pharmacist
who irresponsibly prescribed or dispensed
narcotics. At times this campaign against health
professionals, supported so strongly by the public
and government officials, went too far, creating
an atmosphere that made health professionals
extremely wary of prescribing or dispensing
narcotics for pain control, although only a
minority had been irresponsible. The effect of
their extra caution, however, sometimes led to
inadequate pain management, and many patients had
to endure unnecessary discomfort. Among health
professionals and patients, the fear of addiction
reached extreme levels in the decline phase of the
earlier opiate and cocaine epidemic. This concern
and hesitation over pain medication can still be
seen among physicians and patients today.[9] 

Although U.S. drug policy is powerfully affected
by domestic issues, several foreign influences
also bear on narcotic-control measures: the great
amount of drugs coming from abroad, the study by
Americans of other nations' experiences with drug
control, and the prevailing national mood
regarding the presence or absence of threats from
abroad. Prior to World War I, the United States
had faith in international treaties and promoted
many having to do with arbitration of disputes and
other matters. The Hague Opium Treaty of 1912 was
only one of America's efforts to gain
international cooperation. All this optimism
changed after the war, when the United States
distrusted attempts at international cooperation,
marked most notably by U.S. refusal to join the
League of Nations. Officials no longer spoke of
the inordinate American demand for drugs but
instead of the evil intentions of countries that
supplied them. These very different attitudes
regarding drugs and foreign nations in the decades
before and after World War I had an enormous
impact on drug policies.[10] 

As the epidemic declined, both government and the
larger society espoused strategies familiar to any
parent worried about a child's decision to risk a
dangerous action. Parents do not wish their
children to take a chance on their lives even
once. They cannot approve "experimenting" with
drunken driving or any other dangerous activity
available to young people. One method of
restraining people from taking unwise actions had
been put in place by government: the threat of
severe punishment. Two other strategies also were
developed. 

One strategy was well-intentioned exaggeration.
For example, Captain Richmond Pearson Hobson, an
American Naval hero and an active leader against
alcohol, opiates, cocaine, and marijuana, declared
in the mid-1920s that one ingestion of heroin on,
for example, an ice cream cone, could addict a
child. He warned that heroin might have been
incorporated into face powder and that heroin not
only addicted users but positively drove them to
commit crimes whether they needed money or
not.[11] In the 1930s marijuana likewise was
luridly described with the hope, narcotics
commissioner Harry Anslinger explained, that no
child would be tempted to try it once.[12] 

The other strategy was silence. Under strong
pressure from major religious groups, the motion
picture industry adopted a policy of never showing
narcotic drug use. Enforcement of this policy was
approved in 1934 by the Motion Picture Association
of America, which comprised the major studios. In
addition, the National Board of Film Review could
not give its seal of approval to a motion picture
that showed narcotic trafficking. Without this
approval, a picture would have its viewing
opportunities severely restricted and be
unprofitable. Until a slight loosening in 1946 to
permit showing antidrug activities, this
prohibition remained effective until the 1950s. 

The radio networks were equally cooperative. On
the other hand, the print media published
sensational stories about drug arrests. Public
fear was large, but the number of people impaired
by cocaine, heroin, or marijuana in the 1930s and
1940s was small when compared with today's problem
or that evident around 1910. 

Paradoxically, success in reducing drug use may
have been an obstacle in the long run to
maintaining an accurate and effective antidrug
campaign. During the 1920s requirements to teach
about narcotics in schools spread throughout the
States. By 1933, for example, Massachusetts had
developed a syllabus for teaching about alcohol,
stimulants, and narcotics for grades 1 through
12.[13] Importantly, information about drugs was
presented as an integral part of health education,
not just as a program against narcotics. As the
problem declined, however, silence itself was
assumed to be a good policy. By the 1960s, fewer
than half the States retained a requirement that
the effects of narcotics be taught; by then the
information was conveyed by teachers who had
little practical knowledge and who allotted little
time for the subject. With only a small drug
problem confronting American schools in the 1940s
and 1950s, resources went elsewhere. 

The long-range result in the 1960s was a
generation with no protective knowledge about the
seductive claims and physiological effects of
dangerous drugs or with exaggerated expectations
for immediate and dire consequences of drug use.
When the generation of the 1960s began to
experiment with drugs, the contrast between the
truth of their own experience and what they heard
from authorities caused them to utterly discount
the warnings. 

Scientific research on the effects and mechanisms
of drug use is easy to overlook in the great
contest between users and those combating them.
Research into the biological mechanisms of
addiction appears to rise and fall depending on
the public's anxiety level over drugs and whether
the medical/therapeutic approach is in vogue. In
the first epidemic, medical treatment approaches
eventually gave way to an almost exclusive
reliance on law enforcement, and sustained
scientific research fell steeply. Once a strict
antidrug policy had been established, both the
public's and policymakers' curiosity about the
details of a drug's biological effects faded.
Federal scientists also feared their research
findings might conflict with official policies, so
they avoided some areas of investigation. 

Stimulants: Cocaine and Amphetamines 

For more than a century, Americans have
alternately praised stimulants and condemned them
as the most fearful of all dangerous drugs.
Stimulants are popular initially because they
offer a shortcut to goals that are admired as
typically American: the ability to work without
tiring, the alertness to solve problems, and
cheerfulness regardless of the situation. A person
can stay up later to follow the international
markets or drive farther to cover more miles in
one stretch without sleepiness. Faster, more, and
longer are promised by stimulants. Energy and
efficiency are available simply by taking a
substance, a substance that can be cheap as well
as energizing. 

Alexis de Tocqueville noted this American trait in
the 1830s, decades before cocaine was developed as
the first powerful stimulant. "It is odd to
watch," he wrote, "with what feverish ardor the
Americans pursue prosperity and how they are ever
tormented by the shadowy suspicion that they may
not have chosen the shortest route to get it."[14]
For some Americans the shortest route has meant
using stimulants, and this helps explain why at
the beginning of a stimulant epidemic the drugs
are favored by so many of those who are goal
oriented--those who are trying to do their job
better or working toward some achievement. When a
new product promises to give them an edge, they
are tempted to improve their chances with the help
of chemical engineering. 

The current concern over methamphetamine and
cocaine might lead some to conclude that this
epidemic is America's first wave of stimulant
abuse. It is the second. Although during the first
epidemic cocaine was widely used and legal at the
beginning, the epidemic did come to an end. Its
closure was so complete that when Americans
witnessed the rise of cocaine in the 1970s, they
thought it was a new phenomenon, and as it
flourished they despaired of it ever ending. 

The isolation of cocaine from coca leaves took
place in the 1860s. But it was not until the 1880s
that substantial quantities of cocaine were
produced. This allowed the first widespread use of
powerful stimulants with the introduction of pure
cocaine to the American market.[15] 

Coca leaf extracts that contained varying amounts
of cocaine and were taken by mouth prepared the
way for pure cocaine. The most famous of these was
Vin Mariani, a combination of French red wine and
coca leaf extract. Angelo Mariani's wine was
popular as a tonic and stimulant in Europe and
America. Mariani offered a discount to the clergy-
-Pope Leo XIII gave Mariani a gold medal--and he
offered a further discount to orphanages. Famous
people on both sides of the Atlantic allowed their
names and faces to be used for Mariani's
publicity--quite famous people, including Jules
Verne, Charles Gounod, Frdric Bartholdi (the
sculptor of the Statue of Liberty), cardinals,
cabinet officers, explorers, and even Thomas
Edison. Coca wine was touted as an antidote for
melancholy and also as an invigorating stimulant
for the healthy.[16] 

In what is now the New England Journal of
Medicine, Dr. Archie Stockwell wrote in 1877: 

Coca causes increased arterial action, stimulates
the alimentary secretions and peristaltic action,
diminishes weariness, strengthens the pulse, calms
nervous excitement, retards waste, facilitates
repair, alleviates spasms, and increases mental
activity; in fact, it is an economizer of vital
energy and an effective aid to nutrition. It
invariably contributes to mental cheerfulness, and
withal not infrequently causes unequivocal
aphrodisia.[17] 

An American competitor to Vin Mariani, Metcalf's
Coca Wine, advertised in the 1880s that it was a
valuable tonic for "public speakers, singers, and
actors." Furthermore, "Athletes . . . and baseball
players have found by practical experience that a
steady course of coca taken both before and after
any trial of strength or endurance will impart
energy to every movement."[18] This use of coca as
a tonic was so popular that J.S. Pemberton of
Atlanta, Georgia, concocted what he called a
French Coca Wine in 1885. In 1886 he brought forth
another coca drink, took out the controversial
drug alcohol, and called it Coca-Cola. In its
early years (before the cocaine was eliminated),
Coca-Cola was described as "the ideal brain
tonic."[19] Thus "the pause that refreshes" has an
interesting ancestry that testifies to the
public's high regard for coca drinks. 

If Coca-Cola and Vin Mariani had been the full
extent of the public's exposure to coca, we might
never have had the intense furor over cocaine that
erupted in the decades after 1890 or recurred
during our present drug epidemic. Credit--or
blame--must be given to organic chemistry, which
first produced cocaine, and also to the
pharmaceutical industry, which was able to
manufacture and distribute the drug in large
amounts. As in the 1970s, cocaine a century
earlier was initially expensive and restricted to
the wealthy; later, it became much cheaper and
more widely used.[20] 

Also paralleling the current wave of cocaine use
were the initial descriptions of the substance as
harmless and nonaddicting. Sigmund Freud first
wrote about and promoted cocaine with
enthusiasm.[21] Even the wise Sherlock Holmes used
cocaine in the first years after its introduction,
although later he abandoned the practice.[22]
Within a year of its American introduction, Parke,
Davis & Company offered cocaine in 15 different
forms. Describing its remarkable new technology in
1885, the firm claimed cocaine to be a drug which,
through its stimulant properties, can supply the
place of food, make the coward brave, the silent
eloquent, free the victims of the alcohol and
opium habits from their bondage, and, as an
anesthetic, render the sufferer insensitive to
pain. . . .[23] 

Several years later the U.S. Hay Fever Association
announced that it had chosen cocaine to be its
official remedy.[24] Although by then some
physicians had issued serious warnings about
cocaine's dangers, the power of its attraction
submerged criticism as its use spread to
everything from soda pop to headache remedies.
After all, how bad can something be if it makes
you feel good? 

In the early stages of a stimulant epidemic, even
experts can be misled. Dr. William A. Hammond, one
of the Nation's leading neurologists and a
professor at medical schools, wrote extensively
about the brain in the 1880s. His expert opinion
on cocaine was very positive: He liked it, he
recommended it, and he took it. He even made his
own wine-cocaine mixture, which he boasted was
stronger and more reliable than Vin Mariani. He
rejected fearful stories about cocaine that had
appeared in newspapers and medical journals. Dr.
Hammond "did not believe there was a single
instance of a well-pronounced cocaine habit, the
patient being able to stop it at any time, if he
chose to do so." Even when presented with detailed
accounts of cocaine's disastrous effects, he did
not waiver in his belief that cocaine addiction
was no more than the equivalent of a coffee or tea
habit. Dr. Hammond illustrates that experts can
become uncritical in their enthusiasm for a drug,
especially if they like the effects of the drug on
themselves.[25] 

This benign view of cocaine could not last. Within
15 years the positive image of cocaine evolved
into a very negative image, as threatening as the
earlier was hopeful. Another parallel with the
current cocaine problem can be seen when comparing
cocaine's portrayal in 1970 as a safe and benign
stimulant with its aura of extreme danger in the
mid-1980s. 

There are, however, differences between the first
and second stimulant epidemics. Cocaine entered
the marketplace in 1884 as a fully available
substance with no restrictions. The laws and
regulations did not come about until the public
demanded them. Only as a drug came to be seen as a
menace were restrictions enacted--initially at the
State or local level. As a result, we have
experienced whatever advantages a free economy in
drugs might offer during much of the past century.
Eventually, the fear of drugs grew so great that
the traditional separation of Federal from State
powers was breached to allow, for the first time,
Federal control of prescribing practices over
cocaine and opiates. 

As a first step toward controlling cocaine, its
distribution was put into the hands of the health
professions. For example, in 1902 the State of
Georgia made it illegal to provide cocaine in any
amount or in any form without a doctor's
prescription. In 1906 Al Smith introduced a bill
in the New York State Assembly to limit cocaine
availability to a doctor's prescription. As with
opioids, when local control fell short, Congress
enacted the 1914 Harrison antinarcotic law.[26]
The measure imposed rules and regulations on the
health professions that made the use of an opiate
or cocaine a serious matter requiring a tax stamp
and careful recordkeeping. 

There was a reason behind the laws' increasing
restraints. Cocaine started out as an all-American
drug, useful to everyone who wanted to gain a step
in the race of life--from athletes to clergy to
orphans. By 1900, however, it had been transformed
into the very image of evil and failure.
Propelling this transformation was the appearance
and behavior of those who had become hooked. In
contrast to the opiate user--dulled and nodding--
the heavy cocaine user was often paranoid,
violent, and irresponsible. Fear of cocaine
intensified. In 1910, President Taft sent to
Congress a message in which cocaine was described
as "more appalling in its effects than any other
habit-forming drug used in the United States" and
as "the most threatening of the drug habits that
have ever appeared in this country."[27] 

The important difference between addiction to a
stimulant and addiction to an opiate such as
morphine can be seen in the heroic life of the
father of American surgery, Dr. William Stewart
Halsted. Dr. Halsted was among those investigators
who worked with the early batches of cocaine in
the 1880s. Not knowing about the mental
derangement that cocaine could cause, Halsted, who
had repeatedly injected himself to learn about
cocaine's ability to block pain, became addicted.
His mind was confused, and he felt a constant
craving for more and more. When he was sought to
be the first surgeon-in-chief at the new Johns
Hopkins Hospital, his friends helped him get off
cocaine through close observation, sea voyages,
and even admission to a mental hospital. Finally,
apparently cured, he became the head of surgery at
Hopkins.[28] 

Only when his own doctor's secret diary was opened
in the 1960s was it discovered that after he
stopped using cocaine, Halsted took morphine and
was addicted to it for the rest of his life.
Halsted had a difficult time with morphine but
still was able to achieve a great deal, something
he could never have done if he had remained on a
stimulant.[29] It is important to keep in mind
this distinction between stimulants and opioids.
Maintenance is possible, although difficult, with
morphine, but giving more stimulant to a person
with a stimulant problem only makes him more
anxious and hyperactive. This is why stimulants
are more feared than opiates and why stimulant
users seek another substance, like heroin or
methadone, to lessen their nervousness. 

The mental distortion caused by stimulants
probably accounts for another difference from
opioids. Opioid epidemics tend to decline less and
be longer compared with stimulant epidemics, which
tend to fall further and be relatively brief. The
last cocaine epidemic almost disappeared, but the
number of opiate users never declined to such an
extent. The first cocaine epidemic lasted about 40
years--from 1890 to 1930. The current cocaine
epidemic began in the 1970s; therefore, if history
is a guide, more than an additional decade of
changing attitudes may help to reduce cocaine's
use. A broad public consensus existed against
drugs in the decline phase of the previous
epidemic--broader, I believe, than is evident
today. The rise and fall of a drug epidemic is not
an independent phenomenon like the return of a
comet. Citizens' attitudes toward drug use are
crucial in determining consumption or rejection.
An uninformed public eagerly searching for
shortcuts sets the stage for a rise in drug use; a
public that has seen the unfortunate consequences
of drug use is more protected against the
extravagant claims for a new drug. 

In America the cocaine problem tends to be
enmeshed with other social fears of the time.
Around 1900 the fear of cocaine became linked with
blacks living chiefly in the South. Blacks were
accused of heavy cocaine use that led to violence.
Because this era marked the peak of lynchings and
the disenfranchisement of blacks, it is easy to
see how these accusations could serve other
purposes. At one point the U.S. Opium Commissioner
was encouraging newspapers in the South to repeat
these accusations as a way of obtaining Southern
support for a national anticocaine law.[30] The
attachment of drugs to other social fears arises
from the enormous symbolic power that drugs
possess in this society. Too often drugs are cited
as the whole explanation for social problems,
obscuring other and deeper causes. They can be
cited as a reason for not helping inner cities
because so many people falsely believe that the
inner cities are populated predominantly by drug
users. The history of drugs in America illustrates
these repeated misperceptions. The question
remains: Does knowing the history help curb these
flights of fear and accusation? 

As cocaine use declined in the 1930s, a new
stimulant, amphetamine, appeared. Although it had
been synthesized long before, only in 1932 was it
introduced to the United States as Benzedrine. By
the end of the 1930s, Benzedrine was promoted as a
treatment for hay fever, melancholy, and lack of
energy. Amphetamines got off to a slow start in
the 1930s, but their use became common around
World War II, when they were prescribed for
fighter pilots and others who had to stay awake
and alert. (Again, note the use of stimulants in
the role of technology for the mind.) After the
war, however, amphetamine use by long-haul drivers
was implicated in trucking accidents. Amphetamines
also played a role in an infamous kidnaping and
murder case in the Midwest in 1953. The explosion
in use, however, occurred in the 1960s, when
amphetamine and methamphetamine ("speed") became
popular among some youths, most notoriously in the
Haight-Ashbury district of San Francisco.
Methamphetamine use has remained popular on the
West Coast and recently spread to the Midwest.[31] 

The history of stimulants in America reveals that
the past wave of use faded under broad popular
condemnation, and it is hoped that the current one
will do so also. The saddest impact of a stimulant
epidemic is the damage done to users who sought
chemical help with life's problems and soon found
themselves in a morass of anxiety,
hyperstimulation, and paranoia. However, a
substantial learning process must take place
before we reject a drug that promises joy and
accomplishment. 

By the time drug use had ceased being a major
problem in 1940, society's anger and fear had
become so overwhelming that the story of the past
use of drugs was simply repressed. Policies were
developed that increased punishment rather than
treatment, preferred silence to education, and
described drugs in extreme terms that bore little
relation to reality. This strategy was not a
problem when drugs were declining in use and their
effects were fresh in memory, but the long-term
impact was to leave the Nation ignorant of drugs.
By the time the 1960s arrived, the negative
conditions that had been established in the 19th
century were re-created. A struggle with drugs
lasting more than 50 years and the practical
wisdom painfully gained over those years had been
erased from public memory. 

The extensive history of drugs in America is not
fodder for a simple party platform for one side or
another; it is embedded in the broad and complex
life of the Nation, domestically and
internationally. It is a frustrating history
because it does not confirm the belief that there
is a simple answer to this social problem. These
observations can be drawn from the past: First,
the timeline of a wave of drug use is quite long,
well more than half an average lifespan. Second,
at the beginning phase of a drug epidemic, we are
filled with hopeful fantasies about drugs; in the
decline phase, we are caught up in anger,
scapegoating, and excessive punishment. Finally,
it is likely that neither the hopeful nor the
angry partisans will be persuaded by contrary
information from a historian.

Question-and-Answer Session

James Boden, Policy Analyst, Office of Management
and Budget, Executive Office of the President,
Washington, D.C.: It seems that one of your
contentions is that as drug use declines, the
problem goes away. In today's case, where we have
such an institutionalized process and
infrastructure for dealing with this problem, is
it likely that you would see the same level of
decrease in the response? 

D.M.: Institutional momentum is very real and can
persist even when the initial justification for it
has declined. It is also a relatively new feature
of Federal antinarcotic endeavors. In the 1920s
the U.S. Public Health Service (PHS) had one
principal drug expert, Dr. Lawrence Kolb, Sr., who
employed one secretary and one half-time clerical
assistant. In the 1930s, PHS opened two
combination prison/treatment centers--one in
Lexington, Kentucky, and the other in Fort Worth,
Texas. The Bureau of Narcotics' annual budget from
1930 to 1960 ranged between $2 and $4 million per
year. 

Since about 1970, the Federal drug abuse control
apparatus has become huge, and its tendency toward
self-perpetuation is a legitimate concern. In
order to counteract this tendency, it is very
important to have an independent control
mechanism. The Drug Use Forecasting (DUF) program,
now called the Arrestee Drug Abuse Monitoring
(ADAM) program, contributes significantly to that
control function. Under this system, booked
arrestees participate in interviews and
voluntarily provide urine samples for testing. In
this way, ADAM provides a valuable independent
measure that can serve as a counterweight to the
vested interests that exist on all sides of the
drug issue. 

George Kanuck, Public Health Analyst, Center for
Substance Abuse Treatment, U.S. Department of
Health and Human Services, Washington, D.C.:
Despite all the studies, controversy continues
over the use of methadone for opiate addiction.
There is currently a movement to simplify
regulations governing the use of methadone and
place more decisionmaking power in the hands of
the physician. There continue to be significant
concerns about that in the criminal justice
community. Are we approaching a new phase that
will permit methadone or other types of
pharmacotherapies to be used in the future if they
continue to be useful? 

D.M.: I think that is a very good question that
addresses two somewhat contradictory forces. One
is a growing desire for drug-free treatment. Some
States have made it illegal for a patient to use
methadone for more than a year or so. Those sorts
of restrictions put methadone maintenance in
jeopardy. I think methadone can be very useful in
some cases, but certainly not for people who are
not addicted to opiates--for example, cocaine
users who believe that methadone will relieve the
discomfort of "coming down" from a cocaine high.
It is a complicated issue; while there is good use
for methadone, I think many people would prefer
therapy that did not involve substituting one
addictive substance for another. 

I have seen a lot of antagonism toward methadone.
As you know, the idea of maintaining dependence on
an addictive substance runs contrary to our
historical antidrug position as established in
1919 by the Supreme Court. In this country,
abstinence has always been the goal of treatment,
and it was discovered that many people who were
maintained on heroin or morphine did not achieve
that goal. This appears to be just as true of
methadone maintenance--which casts doubt on the
future of methadone programs, especially at the
State level. This is unfortunate because methadone
is an effective long-term treatment for some
people. 

On the other hand, the impact of AIDS has
legitimized a number of measures that appear to be
the contrary of drug-free therapy--for example,
the distribution of syringes and needles to
intravenous drug users. In this spirit of
employing any measure that keeps drug users away
from dirty needles, there have been efforts to
make oral methadone more accessible, and I don't
know how this is going to turn out. To me, the
success or failure of this sort of approach will
be an indication of the strength of this point of
view, as opposed to drug-free methods. 

Ted Gest, Senior Editor, U.S. News & World Report,
Washington, D.C.: Given that it is difficult to
single out the effectiveness of one particular
antidrug measure, can you give us your view of the
effectiveness of the Drug Abuse Resistance
Education (D.A.R.E.[registered trademark]) program
or similar in-school programs in recent years? 
Also, how do you rate the effectiveness of the 
broadcast advertisements urging young people not 
to use drugs--either the "Just Say No" campaign of the
1980s or the current one? 

D.M.: The D.A.R.E. program and other school-based
programs are time-bound classroom experiences that
are only one of many influences on a young
person's life--and rather brief ones at that.
Although the D.A.R.E. program has the great
advantage of bringing police officers into direct
contact with young people in a positive way, its
long-term effects have been difficult to
establish. Richard Clayton of the University of
Kentucky (someone I greatly respect) has studied
the D.A.R.E. program and has not been able to
find much significant change in youthful behavior
several years after program completion. The
D.A.R.E. people reply that they have changed
their syllabus, and the new program has not been
measured. The fact remains that D.A.R.E. is in 70
percent of the school districts in the United
States, and when you see it in action, it is hard
to believe that it does not help at all. 

Project STAR (Students Taught Awareness and
Resistance), a nationwide program begun in Kansas
City and aimed at seventh and eighth graders, also
has been studied, and there is some evidence that
it works better than the D.A.R.E. program. 

With regard to your second question, I think
advertising has become very sophisticated. The
first modern attempts at antidrug advertising
began around 1971, when the Nixon administration
undertook major drug abuse control initiatives
under the direction of Dr. Jerome Jaffe and Egil
Krogh, a special assistant to the President.
Initial media efforts were so unsuccessful that in
1973, a 6-month moratorium on dissemination of new
materials was declared during which Federal drug
information materials were reevaluated. More
recent efforts, such as those of the Partnership
for a Drug-Free America, are very well thought out
and are largely directed at supporting younger
children who live in difficult situations. I am
very impressed with some of the things they have
done. Of course, the one that everyone remembers
is the egg in the frying pan. I guess any campaign
that people remember 10 years later must be
successful. 

Peter Eide, Manager of Labor Law Policy, U.S.
Chamber of Commerce, Washington, D.C.: You have
the historical perspective and the medical
perspective, and you know what's going on today.
In 25 words or less, what's the "fix" to the drug
problem? 

D.M.: The drug problem has deep roots in our
society, and its tenacity is very upsetting to us.
Americans have great difficulty tolerating
ambiguity; things have to be either this way, or
they have to be that way. There's tremendous
pressure for us to direct all our energies toward
one pole or the other. The two extremes in the
current debate about possible solutions to the
drug problem are legalization and wholesale
incarceration of drug offenders. Legalization is
politically unworkable because a great majority of
Americans are frightened by the prospect of making
psychoactive substances easily and widely
available. On the other hand, there is no way we
can put many more people in jail than are already
there. 

We have to understand that waves of drug use
subside gradually. There is no quick fix. At
present we are witnessing a gradual decline
(except among 12- to 17-year-olds) that is mostly
driven by changes in people's minds and hearts.
Many of the things we are doing now are the best
we can do. 

Certainly there are some changes that can be made
for the better, particularly in the way antidrug
laws are administered. The disparity between
sentences for offenses involving crack cocaine
versus those involving powder cocaine--estimated
at 100 to 1--are a case in point. It has been
difficult to modify that ratio because of the
symbolic power of the issue and the concern among
some members of Congress that a vote for
modification would be interpreted as capitulation
in the "war on drugs." The political symbolism of
the issue makes any change slow and difficult. The
only realistic approach is to recognize that any
solutions will be the result of patient and
incremental efforts over 10 or 20 years. 

Mary Bernstein, Director, Office of Drug and
Alcohol Policy and Compliance, U.S. Department of
Transportation, Washington, D.C.: Given what you
have said, particularly about waiting out the
problem, what do you see as a good use of Federal
resources during this time? 

D.M.: Scientific research on addiction is one very
important focus of Federal funding--and such
research is being supported. It is amazing how
much has been learned in the past 10 years. For
example, we know that addiction changes something
in the brain, but we don't know what the mechanism
is. Since it appears that we are now in a decline
phase of drug use when people are more likely to
make up their minds about the issue and become
less curious, there is some danger that funding
for research will come under hostile scrutiny just
as we close in on the answers to some very
significant questions. If there is to be any hope
of research contributing to a long-term resolution
of the problem of drug abuse, funding support must
also be for the long term. 

Law enforcement has an important role to play,
too. The late law professor Alex Bickel thought
that many professionals had become so
sophisticated that they "knew" that laws didn't
make a difference. But I think laws do make a
difference to the extent that they codify and make
understandable the ethical underpinnings of
society. To some extent the law tells us what we
want our society to be and provides us with an
organizing principle for our civic life. It is
essential that laws be shaped by rationality and
reason.

------------------------------

Notes

1. Lender, Mark Edward, and James Kirby Martin,
Drinking in America: A History, New York: The Free
Press, 1987: 205-206. 

2. Beecher, Lyman, Six Sermons on the Nature,
Occasions, Sins, Evils and Remedy of Intemperance,
Boston: T.R. Marvin, 1828. 

3. Lender and Martin, Drinking in America, 84. 

4. Lincoln, Abraham, Speeches and Writings 1832-
1858; Speeches, Letters, and Miscellaneous
Writings: The Lincoln-Douglas Debates, ed. Don E.
Fehrenbacher, New York: Library of America, 1989:
84. 

5. Gusfield, Joseph R., Symbolic Crusade: Status,
Politics and the American Temperance Movement,
Urbana: University of Illinois Press, 1986: 176-
177. Gusfield writes, "Temperance issues have
served as symbols around which groups of divergent
morals and values have opposed each other. On the
side of Temperance there has been the rural,
orthodox Protestant, agricultural, native
American. On the side of drinking there has been
the immigrant, the Catholic, the industrial worker
and the secularized middle class. In more recent
years the clash has pitted the modernist and the
urbanized cosmopolitans against the
traditionalists and the localities, the new middle
class against the old. 

"When Temperance forces were culturally dominant,
the confrontation was that of the social superior.
He sought to convert the weaker members of the
society through persuasion backed by his dominance
of the major institutions. Where the dominance of
the society is in doubt, then the need for
positive governmental and institutional action is
greater. The need for symbolic vindication and
deference is channeled into political action. What
is at stake is not so much the action of men,
whether or not they drink, but their ideals, the
moralities to which they owe public allegiance." 

6. Lender and Martin, Drinking in America, 138. 

7. Rorabaugh, W. J., The Alcoholic Republic: An
American Tradition, Oxford: Oxford University
Press, 1979: 120-121. 

8. Musto, David. F., "Opium, Cocaine and Marijuana
in American History," Scientific American 265
(July 1991): 42. See the graph depicting the
volume of American opiate imports from 1855 to
1915. 

9. Musto, David, F., The American Disease: Origins
of Narcotic Control, New York: Oxford University
Press, 1987, Chapters 1-8. Opiates in 19th-century
America and the origins of the Harrison Act are
discussed at great length. 

10. Musto, David F., "American Reaction to the
International Narcotic Traffic," Pharmacy in
History 16 (1974): 115-122. 

11. Musto, The American Disease, 350-351 and fn.
33. 

12. Personal communication to the author, 1972. 

13. Massachusetts Board of Education, "The Effects
of Alcohol, Stimulants, and Narcotics Upon the
Human Body," Bulletin of the [Massachusetts] Board
of Education 11 (269) (1933). 

14. de Tocqueville, Alexis, Democracy in America,
trans. George Lawrence, ed. Max Lerner and J.P.
Meyer, New York: Harper & Row, 1966, vol. II: 536. 

15. Musto, David F., "Cocaine's History,
Especially the American Experience," in Cocaine:
Scientific and Social Dimensions, ed. Gregory R.
Bock and Julie Whelan (Ciba Foundation Symposium
166), Chichester, United Kingdom: John Wiley and
Sons, 1992: 7-19. 

16. Helfand, W.H., "Mariani et le vin de coca,"
Psychotropes 4 (3) (1988): 13-18. 

17. Stockwell, G. Archie, "Erythroxylon Coca,"
Boston Medical and Surgical Journal 96 (1877):
402.
18. New York Medical Times 17 (April 1889): xxi. 

19. Munsey, Cecil, The Illustrated Guide to the
Collectibles of Coca-Cola, New York: Hawthorn
Books, 1972: 315-316. 

20. Musto, David F., "Illicit Price of Cocaine in
Two Eras: 1908-1914 and 1982-1989," Connecticut
Medicine 54 (June 1990): 321-326. 

21. Byck, Robert, ed., The Cocaine Papers by
Sigmund Freud, New York: Stonehill, 1974. 

22. Musto, David F., "A Study in Cocaine: Sherlock
Holmes and Sigmund Freud," Journal of the American
Medical Association 206 (1968): 125-130.

23. Parke, Davis & Company, "Coca Erythroxylon and
Its Derivatives, 1885," in The Cocaine Papers by
Sigmund Freud, ed. Robert Byck, New York:
Stonehill, 1974, 127-150. 

24. Hammond, W.A., "Coca: Its Preparations and
Their Therapeutical Qualities," Transactions of
the Medical Society of Virginia (1887): 212-213. 

25. Hammond, W.A., "Coca: Its Preparations and
Their Therapeutical Qualities, With Some Remarks
on the So-Called Cocaine Habit," Virginia Medical
Monthly (1887): 598-610. 

26. "An Act to Prescribe the Manner of Selling or
Otherwise Dispensing Cocaine, to Provide a Penalty
for a Violation of the Provisions of this Act, and
for Other Purposes, Dec. 5, 1902," Acts and
Resolutions of the General Assembly of the State
of Georgia, 1902, Atlanta: State of Georgia, 1903:
100, Part 1, Title 5; Musto, "Illicit Price of
Cocaine in Two Eras": 321. 

27. Musto, The American Disease, 242 and fn. 40. 

28. Olch, Peter D., "William S. Halsted and Local
Anesthesia: Contributions and Complications,"
Anesthesiology 42 (April 1975): 480-481. 

29. Penfield, Wilder, "W.S. Halsted of Johns
Hopkins," Journal of the American Medical
Association 201 (12) (Dec. 22, 1969): 2214-2218. 

30. Musto, The American Disease, 282-283 and note
15. 

31. Jackson, Charles O., "Before the Drug Culture:
Barbiturate/Amphetamine Abuse in American
Society," Clio Medica 11 (1) (1976): 47-58.

------------------------------

A Decade of Experimenting With Intermediate
Sanctions: What Have We Learned? 

Presentation by
Joan Petersilia, Ph.D.
Professor of Criminology, Law, and Society
University of California at Irvine 

April 1, 1998
Washington, D.C.

My purpose in presenting this paper is to review
what has been learned during the past 10 to 15
years about the restrictions and costs of
intermediate sanctions, those midrange punishments
that lie somewhere between prison and routine
probation. Various intermediate sanctions programs
(ISPs) that incorporate intensive supervision,
home confinement, community service, boot camps,
and day fines have been developed in recent years. 

For those of us whose research has focused
primarily on community corrections, the end of the
1990s marks an important landmark. We have
witnessed the natural progression of ISPs,
beginning in the mid-1980s with the media's
enthusiastic portrayal of them as the panacea of
corrections; through program design and
implementation; to evaluation and testing; and
finally to institutionalization, redesign, or
abandonment. It is critical for scholars,
policymakers, and practitioners to look back and
reflect upon what has been learned during these
years. 

When looking at ISPs, there are three important
questions to consider: First, what did the ISP
experiment consist of--who did what, with whom,
and for what purpose? Second, how did ISPs affect
program costs, recidivism, and prison crowding?
And, perhaps most important, how is the knowledge
gained from this experience influencing current
practice? 

Several conclusions can be drawn from the
evaluations of ISPs: 

o In terms of sheer numbers and investments, the
overall ISP experiment was more symbolic in its
achievements than substantive. 

o Specific components must be in place for these
programs to work. 

o Research findings currently influence the design
of corrections programs and, more important,
contribute to an emerging community justice model
that promises to create a major paradigm shift in
community corrections.

The ISP Experiment Begins 

In the mid-1980s, a broad-based consensus emerged
on the desirability of developing midrange
punishments for offenders for whom incarceration
was unnecessarily severe and ordinary probation
was inappropriately light. Three converging
conditions and events drove the development of
this consensus. 

1. Crowded Southern prisons and a poor economy.
First, prison crowding in the Southern United
States, coupled with a poor regional economy,
created early pressures for tough community-based
options. Federal courts found several overcrowded
prisons in the South to be in violation of the
Eighth Amendment prohibition against cruel and
unusual punishment and mandated that these States
either build new facilities or find some other way
to punish offenders. Because these States did not
have the funds to build new prisons (as other
States experiencing prison population growth
initially did), judicial pressure created an
incentive for them to develop tough but
inexpensive sentences, specifically those that did
not require a prison cell. Because the voters were
not about to endorse "soft" social programs, the
new programs were presented to the public as
punitive rather than rehabilitative. In fact, some
of the older, first-generation intensive
supervision programs (which provided intensive
rehabilitation services) changed their names to
"intensive surveillance" programs, while programs
originally called "alternatives to incarceration"
were renamed "intermediate punishments." 

The State of Georgia developed the first
well-publicized intensive supervision program, the
hallmark of which was the assignment of 25
offenders to a supervision team of two probation
officers. The team comprised a surveillance
officer, whose main responsibility was to monitor
the offender closely, and a probation officer, who
provided counseling and had legal authority over
the case. While on intermediate sanction, each
probationer was seen five times a week, performed
community service, paid a supervision fee, and had
to be employed or in an educational program. 

Georgia's self-evaluation showed that ISP
participants had extremely low recidivism rates
(less than 5 percent) and most offenders
maintained employment and paid restitution to
victims. In addition, the monthly supervision fee
made the program self-supporting. In 1985, Georgia
Corrections Commissioner David Evans claimed the
ISP had saved the State the cost of building two
new prisons. 

A great deal of national publicity followed. The
Washington Post and the New York Times ran major
stories touting the program's success and called
Georgia's program "the future of American
corrections." Proponents suggested that
intermediate punishments could relieve prison
crowding, enhance public safety, and rehabilitate
offenders--all at a cost saving. Probation staffs
were also enthusiastic, saying intermediate
sanctions programs gave them an opportunity to "do
probation work the way it ought to be done." 

Illinois, Massachusetts, New Jersey, and Florida,
among other States, quickly followed suit, and the
intermediate sanctions movement was born. It is
important to be clear about the initial
motivation: modern ISPs were developed in direct
response to prison crowding, and without that
pressure, we would not be here today reviewing
their performance. 

2. First indepth study of U.S. felony probation.
Research evidence produced at that time showed
that the existing felony probation system was a
failure in large urban areas. This evidence helped
convince California and other large States that
had not yet faced severe prison crowding that
there were public safety risks in placing felons
on routine probation. In 1983, the National
Institute of Justice (NIJ) awarded a grant to the
RAND Corporation to conduct the first indepth
study of felony probation in the United States.
The final report, Granting Felons Probation:
Public Risks and Alternatives, documented the fact
that serious felons were being granted probation.
Furthermore, because of limited (and often
declining) community corrections resources, these
offenders were ineffectively supervised, and the
public safety consequences were severe. Two-thirds
of the nearly 2,000 felony probationers who were
tracked during this study were rearrested within 3
years, and more than half were reconvicted of
serious offenses.[1] 

The study also generated a great deal of public
attention because it clearly showed that
overburdened probation staff were often unable to
closely supervise felons or hold them accountable
for their crimes. The researchers, however, did
not call for the abandonment of probation for
felons or their incarceration in the future but
rather something in-between: 

The justice system needs an alternative,
intermediate form of punishment for those
offenders who are too antisocial for the relative
freedom that probation now offers but not so
seriously criminal as to require imprisonment. A
sanction is needed that would impose intensive
surveillance, coupled with substantial community
service and restitution.

The study concluded that midrange punishments--
such as those instituted in Georgia--were needed
not only to relieve prison crowding but to relieve
probation crowding as well. The dissemination of
the NIJ-RAND study became the second event to
increase the acceptance of ISPs. 

3. Morris and Tonry's book on the polarization of
sentencing. The third event that was critical in
creating the impetus for the ISP movement was the
publication of an influential book in 1990 by
Norval Morris and Michael Tonry entitled Between
Prison and Probation: Intermediate Punishments in
a Rational Sentencing System.[2] Written by two of
the Nation's leading criminologists, this study
acknowledged that U.S. judges faced a polarized
choice between prison and probation, with a near
vacuum of punishment options between these
extremes. The study provided the needed conceptual
framework for a more graduated sanctioning system
that relied upon a range of sentences, including
fines, community service, house arrest, intensive
probation, and electronic monitoring. Morris and
Tonry argued that rigorously enforced intermediate
punishments better serve victims and the justice
system. A continuum that matches offenders to
sanctions based on the seriousness of their crime
is essential--regardless of any prison-crowding
concerns--in creating a rational sentencing
system, they wrote. 

The ISP Concept Gains Strong Support 

What existed, then, were program models that
appeared to work, research to show that without
these programs the public was at serious risk, and
a compelling theoretical justification for moving
forward. A groundswell of support emerged for
intermediate sanctions and, as one article noted
about this period, "State legislators were
virtually falling over each other" in an effort to
sponsor legislation to implement these
programs.[3] 

The U.S. Department of Justice (DOJ) and several
private organizations, particularly the Edna
McConnell Clark Foundation, was a catalyst in
focusing this energy. In 1990, NIJ sponsored a
national conference that brought together more
than 300 Federal, State, and local criminal
justice administrators to explore the state of
intermediate sanctions and their potential. In his
keynote address, Attorney General Dick Thornburgh
emphasized the strong bipartisan support for
developing intermediate sanctions. The Bureau of
Justice Assistance (the "action" arm of DOJ)
solicited agencies across the country to
participate in a demonstration to test the costs
and benefits of various types of ISPs. In
addition, NIJ and the National Institute of
Corrections (NIC) provided technical assistance,
training, and research for a number of projects. 

The 10 years between 1985 and 1995 could best be
described as the period of ISP implementation and
evaluation. Hundreds of programs were started,
often with a great deal of ceremony. During this
period, virtually every large probation or parole
agency developed programs of intensive
surveillance, electronic monitoring, house arrest,
drug testing and, to a lesser extent, boot camps
and day reporting centers.

A Closer Look Reveals Low ISP Participation and
Shallow Funding

Most important, very few offenders, relatively
speaking, participated in intermediate sanctions
programs, and few dollars were spent on new ISP
initiatives. Today, virtually every State and the
Federal Government report having intensive
supervision programs, but fewer than 6 percent of
the 2.7 million adult probationers and parolees in
the United States are estimated to be
participating in them. (This number is, however,
higher than anytime in the past.[4]) All 50 States
report using electronic monitoring and, despite
what has often been characterized as explosive
growth, the number of probationers and parolees
monitored electronically is now at its highest
level ever--about 1 percent.[5] Although 35 States
report operating boot camps, the combined daily
census has never exceeded 10,000 participants.[6]
Finally, although nearly 125 day reporting centers
operate in the United States, their combined daily
population is less than 15,000.[7] 

It appears that, at most, 10 percent of adult
probationers and parolees participate in
intermediate sanctions programs--a figure that is
probably higher than at any time in the past. It
is safe to say that the ISP experiment has not
touched the bulk of those for whom it might be
appropriate, such as felons with increasingly
serious prior records and a history of substance
abuse who are granted probation. 

Moreover, when offenders were assigned to ISPs,
the intensity of services and surveillance fell
short of what the initial program models
prescribed--most likely because sufficient dollars
were not invested. As best as can be calculated,
less than $10 million was invested by the Federal
Government in ISP research and demonstration
projects between 1985 and 1995. This can be
compared to the $10 million the Federal Government
invests in evaluations of community oriented
policing each year. 

In no way is this intended to offend those
responsible for making these funding decisions.
The boom in intermediate sanctions programs took
place in 1994--the same time that the DOJ and NIJ
budgets for research and demonstration programs
were declining to a 20-year low. Competition for
those scarce dollars was fierce, and corrections
research--particularly community corrections
research--never has attracted major financial
support. Fortunately, Congress has increased
funding to the Bureau of Justice Assistance (BJA),
the Bureau of Justice Statistics (BJS), and NIJ,
and corrections research has again found support. 

Local ISP Experiments Were Flawed

It is beyond the scope of this presentation to
fully describe the nature of intermediate
sanctions programs or their evaluations. For those
interested in such details, the recently published
University of Maryland report entitled Preventing
Crime: What Works, What Doesn't, What's Promising
is recommended.[8] However, I will briefly
summarize the specifics of the more popular
programs. 

As mentioned earlier, intensive supervision
programs were the first--and still remain--the
cornerstone of the intermediate sanctions
movement. ISPs initially were developed as a way
to divert low-risk prisoners to the community or
to place more restrictions on higher risk
probationers whose probation officers have smaller
caseloads. Concurrent with the emergence of ISPs
was the development of technology that permits
greater surveillance of offenders. As the Cold War
wound down, the defense industry, along with the
developing computer and electronics industries,
saw the community corrections industry as a
natural growth market. Electronic monitoring,
voice verification systems, inexpensive onsite
drug testing, and breath analysis conducted via
the telephone provided community corrections
officials with the option of becoming more
surveillance-oriented and using the offender's
home as a place of incarceration. 

Jurisdictions could choose from a number of
options, including surveillance and services. For
many jurisdictions, the goal was to develop a
"tough looking" program. Jurisdictions adopted the
ISP components they wanted and could afford and
applied such programs so haphazardly that
eventually the term "ISP" lost most of its
meaning. Today, the term simply means "more than
the sentence offenders in a jurisdiction would
have received in the absence of intermediate
sanctions." 

As noted earlier, most of the programs implemented
were much less intensive than the original Georgia
model, which called for caseloads of 25
probationers to 2 probation officers, and 2 to 5
face-to-face contacts per week. I know of no large
urban probation department that is able to sustain
this level of caseload size and this level of
contact for its felony probationers. Even programs
that began with multiweek visits tend to regress
to only one or two visits per month per client.
For participating offenders, the service and
surveillance they received fell below desired
levels. 

Moreover, failure to comply with ISP conditions
did not mean that an offender would be found in
violation of probation.[9] Patrick Langan of BJS
studied a nationally representative sample of
adult probationers and discovered that nearly half
were discharged from probation without fully
complying with their court-ordered sanctions. More
than a third of offenders were successfully
discharged from probation without completing
court-ordered drug treatment, drug testing, house
arrest, or day reporting programs. Forty percent
of discharged probationers had not paid their
victim restitution or supervision fees. He
concluded that "intermediate sanctions are not
rigorously enforced." 

Still, something different did happen in those
communities that implemented ISPs and conducted
sound evaluations. 
Program Costs, Recidivism, and Prison Crowding

Relative to the investment made, a tremendous
amount was learned from these programs. Despite
differences in the programs, the agencies that
implemented them, and the characteristics of
offenders who participated in them, three major
findings are very consistent. 

First, ISP participants, by and large, were not
prison-bound but rather were high-risk
probationers. In State after State, well-meaning
program developers wrote guidelines for prison
"diversions." Well-meaning judges and prosecutors
ignored them and filled the programs with
high-risk probationers. From the perspective of
those who created these programs to save money and
prison space, judges "misused" intermediate
sanctions. From the perspective of judges, they
had endorsed the concept of a continuum of
sanctions and preferred to use these options to
increase supervision and accountability for felony
probationers. The ISP experiment was definitely
"net widening," but given the laxity of current
supervision of serious felons on probation, it is
more accurate to characterize it as "net
repairing." 

Second, ISP offenders were watched more closely,
but ISP supervision did not decrease subsequent
arrests or overall justice system costs. Technical
violations, however, increased. Offenders within
programs incorporating intermediate sanctions,
electronic monitoring, boot camps, day fines, and
drug testing were watched more closely--as
evidenced by a greater number of contacts--but the
programs did not reduce new arrests. 

For example, the ISP national demonstration
evaluated by Susan Turner and me, which involved
14 counties in 9 States, found no difference in
arrests after 1 year (38 percent for ISP
participants and 36 percent for routine
probationers), more ISP than control offenders
with technical violations (70 percent and 40
percent, respectively) and, as a result, more ISP
than control offenders returning to prison or jail
by the end of 1 year (27 percent and 19 percent,
respectively).[10] 

Because it is doubtful that ISP offenders
committed more violations, close surveillance
probably uncovered more technical violations.
Whenever this happened, many ISP managers took
punitive action--often revocation to prison--to
maintain the program's credibility in the eyes of
the judiciary and the community. Programs that
were started primarily to save money and avoid the
costs of prison often cost their counties more
over the long term. 

These results call into question two basic
premises of intermediate sanctions, i.e., that
increased surveillance acts as a constraint on the
offender and that the likelihood of detection acts
as a deterrent to crime. The University of
Maryland project, which summarized evaluations
across the full range of intermediate sanctions,
concluded: "Except in a few instances, there is no
evidence that these programs are effective in
reducing crime as measured by official record
data."[11] 

Third, an important and tantalizing finding--
consistent across all the evaluations regardless
of program design--points to the importance of
combining surveillance and drug treatment program
participation. In the RAND ISP demonstration,
offenders who participated in treatment, community
service, and employment programs--prosocial
activities--had recidivism rates 10 to 20 percent
below that of those who did not participate in
such additional activities. 

Researchers have found similar results in
Massachusetts, Oregon, and Ohio, and a recent
metaanalysis of 175 evaluations of intermediate
sanctions programs concluded that the combination
of surveillance and treatment is associated with
reduced recidivism.[12] Paul Gendreau and Tracy
Little conclude in that study, "In essence, the
supervision of high-risk probationers and parolees
must be structured, [be] intensive, maintain firm
accountability for program participation, and
connect the offender with prosocial networks and
activities." 

The empirical evidence regarding intermediate
sanctions is decisive: Without a rehabilitation
component, reductions in recidivism are elusive.
In sum, the ISP evaluations show that programs
were seldom used for prison diversion but rather
to increase accountability and supervision of
serious offenders on probation. In addition,
programs did not reduce new crimes, but instead
increased the discovery of technical violations
and ultimately increased incarceration rates and
system costs. However, programs that provided
treatment and additional services obtained some
reductions in recidivism, particularly for
high-risk offenders, and drug offenders more
specifically. 

Influencing Current Practice

How do ISP evaluations influence current practice?
This is the most important of the three original
questions because the ultimate goal of producing
knowledge is to effect positive action. Still to
be addressed are the same issues that motivated
the intermediate sanctions movement--prison
overcrowding, probation overload, insufficient
resources, and public demand for accountability
and punishment. How can this evidence be used to
answer the central question, "If not prison,
what?" 

Researchers and policymakers cannot plead
ignorance or abstain from the debate--because they
know what is useful. Although they do not have all
the answers, they have an obligation to engage in
the debate and interject the known evidence
because policy is made on these matters every day.
It appears that this is happening in quiet but
significant ways that may well result in a major
paradigm shift for community corrections in the
United States. 

Program Redesign

First, the body of ISP evidence is being used to
redesign programs that integrate surveillance with
treatment opportunities. This is particularly true
with juvenile justice programs but also with
programs for adults, particularly drug offenders.
The Office of Juvenile Justice and Delinquency
Prevention (OJJDP) Comprehensive Strategy for
Youth endorses graduated sanctions and
incorporates two principal components:
increasingly strict supervision and a continuum of
treatment alternatives.[13] Many States have
adopted the Comprehensive Strategy. The California
Legislature, for example, recently allocated $50
million to fund probation programs for delinquent
youth and, drawing upon the evidence reviewed
earlier, required that both surveillance and
treatment be part of any funded program. 

Other programs also have moved away from a
singular focus on surveillance. Several boot
camps, for example, are enhancing the therapeutic
parts of their programs and shifting away from
total reliance on physical, militaristic
programming. UCLA's Mark Kleiman has proposed
major funding for a national initiative labeled
"coerced abstinence," which at its core will
provide drug testing (a main ingredient in
surveillance programs), plus treatment in and out
of prison, followed by intensive aftercare upon
release. A key component of his program is swift
and certain response to drug-use violations. 

One of the major recommendations of the recently
published report by the Governor's Task Force on
Sentencing and Corrections in Wisconsin, which
draws heavily upon ISP experiences, calls for the
elimination of probation for felons.[14] The task
force recommends that felony probation be replaced
with an arrangement named "community confinement
and control" (CCC), which mandates electronic
monitoring, urine testing, work or community
service, and 18 to 20 contacts a month with a
probation officer who has a caseload of no more
than 17 offenders. CCC officers carry out
"community-oriented probation" (similar to
community-oriented policing), in which they
provide active as opposed to passive supervision.
They are required to engage the offender's family,
employer, and neighborhood to create a support and
supervision network. The Wisconsin Legislature has
allocated the necessary resources to pilot-test
the task force recommendation in two
jurisdictions. 

These are just a few of the ways in which ISP
research results directly influence the design of
future programs. It is safe to say that most
corrections professionals are keenly aware of
these findings. In terms of contributing to a
cumulative body of knowledge about correctional
programming, the IPS experiment can be considered
a success. 

Neighborhood Probation

The legacy of the intermediate sanctions
experiment is likely to be far more important than
simply the redesign of individual programs.
Intermediate sanctions programs have set the stage
for an emerging model of community probation (also
called community justice and neighborhood
probation) in which probation officers partner
with the police and community members to reduce
public safety threats posed by offenders in their
midst. Under this model, probation officers take
an active role in community building and not just
offender restraint. The probation and parole
officers who are involved in ISP supervision
programs are emerging as key players. 

Interestingly, as community corrections officers
move toward a tougher form of probation, which
some liken to police work, police officers are
embracing community-based policing, which some
liken to probation or social work. Probation and
police officers are getting out from behind their
desks and out of their cars and into the
community. "In your face" probation includes
visiting the offender's home and work site and
working with community agencies to develop and
supervise community service obligations--a much
more active type of probation. 

Police, too, are getting out into communities,
holding neighborhood meetings, and taking the
pulse of neighborhoods they serve through
comparatively well-funded community policing
programs. One of the key goals of community
policing is getting to know the people on the
beat--offenders as well as law-abiding citizens.
Police have heard repeatedly about residents' fear
of offenders and the lack of justice and
accountability for people who were arrested and
placed on probation or released on parole. Victims
felt crime was trivialized by a justice system
that simply slapped the wrist of criminals and
sent them home or imposed conditions that were not
monitored. Repeat victimization was common, and
the community wanted criminals who had committed
serious offenses taken off its streets. Once that
was done, community residents wanted programs to
help the next generation become responsible
citizens. 

The police came to realize that to significantly
reduce crime they had to get out in front of the
problem and not merely react to reports of crime.
They needed to be proactive rather than simply
reactive. To be proactive, the police needed a
variety of sources of information. Much of that
information and--as it turns out--legal authority
exist in the minds of the officers who operate
intensive supervision programs in probation
departments. Historically, there has been
animosity between police and probation officers.
The police believe that they catch criminals and
that probation lets them out. This new community
justice model, however, creates a three-way
collaboration among the police, probation, and
members of the community. 
Operation Night Light. Part of a formal
police-probation partnership in Boston, Operation
Night Light illustrates such a collaboration.
President Clinton praised this program in his 1998
State of the Union Message and called for its
expansion nationwide. Such a mention of probation
in a national address, surely a rare occurrence,
is important because probation supervises
two-thirds of all correctional clients in the
United States. Few people, however, understand
this wide-ranging role of probation. The
originators of the Boston project describe it in
Community Corrections: Probation, Parole, and
Intermediate Sanctions.[15] 

Community meetings organized by community policing
officers in Boston revealed that, as a result of
ISP experiments and other local corrections
programs, probation officers knew a lot about
high-risk offenders and locations in their
neighborhoods, as well as community resources and
programs. Moreover, these neighborhood discussions
revealed that many of these lawbreakers were
already on probation or parole, but probation
officers simply did not have the resources to
monitor them, serve warrants, locate absconders,
or secure treatment and other programs that these
offenders needed. Because these offenders were on
probation, their movements in the community could
be limited by court order as a condition of
probation. In fact, many of them were under
court-ordered conditions--for example, nighttime
curfews and weapons restrictions--that, if
enforced, could be extremely useful in reducing
the community's fear. 

Admittedly, police and probation partnerships in
the past usually began as a way to increase
surveillance of high-risk offenders in the
community. There was such a partnership in Long
Beach, California, as early as 1987. The new
community justice partnerships look and feel
different from earlier efforts. For example, the
Boston project has expanded to include clergy,
youth workers, school personnel, and parents. In
addition, interesting trends have developed.
Judges are expressing greater confidence that
probation terms such as curfews and geographical
restrictions might be enforced. Police now have
information on conditions of probation and feel
they can count on the probation system to hold
offenders accountable when they violate those
terms. Finally, because warrants are being served,
police are reporting violations to probation
officers. 

By combining police and probation resources,
probation supervision has become a 24-hour-a-day,
highly accountable reality. What was impossible
for probation to do alone (even in the most
intensive ISPs) has become possible under the
partnership between the police and the community. 

This effort has required a lot of cooperation and
coordination. Initially, probation officers were
reluctant to partner with the police, and the
police did not want to connect with "social
workers." Over time, however, each group began to
realize that everyone has something to gain from
the other. Police are learning from community
corrections officers and others about community
resources such as employment and school truancy
prevention programs. Boston police officers attend
joint training seminars, participate in strategic
planning sessions with other organizations, and
jointly participate in research projects. The
police, probation, clergy, and lay people now
attend monthly community meetings. Most recently,
gang members and community mental health workers
began to attend these meetings as well. The Boston
program is expanding to incorporate new
initiatives that employ the team approach. For
example, police now help probation officers
monitor high-risk, volatile domestic cases to
reduce violence and school programs to reduce
truancy. Probation absconders receive priority
arrest status by police. The program has spread
from Boston to a dozen other probation
jurisdictions throughout Massachusetts. 

Similar partnerships, now spreading across the
Nation, could not have been so easily forged
without the ISP experiments of the past decade and
the gradual acceptance by probation and parole
staff of surveillance activities. Police and
probation officers were moving in the same
direction but did not realize it. Probation
officers were getting out of their offices and
monitoring offenders where they lived. Police
officers were getting out of their cars and
walking their beats, which allowed them to work
with community members to identify problems and
problem people. They stumbled onto each other; the
collaborative prospects are exciting. 

These programs are more than just surveillance,
although admittedly surveillance plays a major
role in some of them. Study after study has shown
that probation and police officers, once they
become familiar with individual communities and
the people who live there, tend to develop less
hardened attitudes. The following anecdote
illustrates this concept. 

Washington's SMART partnership. The Washington
State Supervision Management and Recidivist
Tracking (SMART) Partnership for police and
community corrections shares some of the
characteristics of the Boston program.[16] One
former director of corrections visited the
community corrections field offices throughout the
State annually to discuss priorities for the
coming year. Each year, one particular field chief
asked the director when probation officers would
receive permission to carry weapons. This field
chief complained at length about the personal
risks he faced when making home visits to
dangerous places and how drug use made offenders'
behavior increasingly unpredictable and violent.
However, the last time the former director saw
this man, who had become an active participant in
the SMART program, he said he did not need guns
but needed more government funds to subsidize jobs
for probationers. Clearly, a greater degree of
community engagement occurs in these programs. 
No Agency Is an Island

The ultimate legacy of a decade of experimenting
with intermediate sanctions is the strong message
that no one program--surveillance or
rehabilitation alone--and no one agency--police,
probation, mental health, or schools alone--nor
any of these agencies without the community can
reduce crime or fear of crime on its own. Crime is
a complex, multifaceted problem that will not be
overcome by simplistic, singularly focused
solutions--whether they be boot camps, electronic
monitoring, or intensive probation. Workable,
long-term solutions must come from the community
and be embraced and actively supported by the
community. 

This message of community support and involvement
is a lesson we learn repeatedly. If the ISP
evidence lends any scientific support or
credibility to that message or to practitioners
and researchers who are involved in this
experiment, the money invested in intermediate
sanctions will have been exceedingly well spent.

Question-and-Answer Session

Lou Cordia, President, Cordia Companies,
Alexandria, Virginia: What was the reduction in
the recidivism rate when surveillance and
treatment were combined?

JP: The overall reductions were 10 to 20 percent.
Reductions of as much as 30 percent were achieved
when programs targeted particular risks and needs.
The overall average was 10 to 20 percent for
offenders who received both treatment and
surveillance (meaning more contacts).

Lou Cordia, President, Cordia Companies,
Alexandria, Virginia: Could you address the
metaanalysis of the 175 evaluations you mentioned
in your presentation?

JP: Metaanalysis is a technique that combines
results from all the evaluations of intensive
supervision (many of which had small sample sizes)
and looks at the overall impact. The metaanalysis
of the 175 evaluations found that intensive
surveillance produced a reduction of 20 to 25
percent, and if the program was more targeted, a
reduction of up to 30 percent.

Eric Sterling, President, Criminal Justice Policy
Foundation, Washington, D.C.: Which offenses are
amenable to this kind of intervention? That is,
for which offenses might this intervention not be
the most appropriate response?

JP: That is an excellent question. The programs
combined with a treatment component worked fairly
well for people who were drug- and
alcohol-involved, but not for those who were
seriously drug- and alcohol-dependent and violent.
There is evidence that these programs worked very
well for "emerging drug offenders" and for the
huge drunk-driver population.

There is a problem with this approach. House
arrest and electronic monitoring is a wonderful
sanction for drunk drivers. They are kept in their
homes and out of their cars. Mothers Against Drunk
Driving (MADD) and other groups claim that house
arrest is not punitive enough, and they have
generated a great deal of controversy over the
issue. Research has shown that in the minds of
offenders, intermediate sanctions can be much more
punitive than a stint in jail or prison. In a
number of surveys offenders were asked whether
they would prefer to serve a 6-month stay in jail
or prison or 2 years in an intensive supervision
program. Even when the length of house arrest was
reduced and the program (a full-time job, drug
testing once a week, random home visits, and
regular contact with a probation officer) was
described to offenders, more than 50 percent chose
the prison or jail term. 

Legislation that mandates lengthy prison and jail
terms is being passed because we are trying to
"get tough on crime." We could get much tougher on
crime by getting much tougher in the community--at
much lower cost and with better benefits. It is
very important that we get this message out. 

Samuel Dash, Professor, Georgetown University Law
Center, Washington, D.C.: In your historical
account of the origins of this kind of community
punishment, did you come across the fact that, in
the 1980s, as soon as he became Chief Justice of
the Supreme Court, William Rehnquist made his
first State of Justice report to the American Bar
Association, which focused on the failure of the
prison corrections system and the need for
community corrections? By the end of the 1980s or
so, he announced that community corrections was a
failure and that we needed to emphasize
retribution and prison. When the Chief Justice
made the first statement, it encouraged
communities and legislatures to move forward. When
he made the second statement, there appeared to be
a major cutback on the kinds of programs you are
talking about. You explained why, in your opinion,
ISPs were major failures: the resources were not
there, intensive supervision was not there, the
combination of programs was not there. It seems
that what the Chief Justice said in the beginning
was true and what followed was not what he thought
would happen. 

J.P.: You are absolutely right. I recently
conducted a historical review on probation. There
has never been any national report--starting with
those from the President's Crime Commission in
1967--that did not endorse the expansion of
community-based options. It has been endorsed by
every Presidential and national panel. That is why
I said at first that community corrections has
always carried a lot of symbolic weight but not
much substance. We have not followed through. Part
of the reason I chose this topic is to get the
word out that we did not carry out the original
promise of ISPs. People are ready to "throw the
baby out with the bath water." We invested very
little. Most probation departments that started
these new programs never received any new funding.
Selected national demonstration sites were funded,
but every probation department in the Nation felt
it had to implement these kinds of programs. Most
of them received no new resources to do it. You
get what you pay for.

Marie Ragghianti, Chief of Staff, U.S. Parole
Commission, Chevy Chase, Maryland: Do you define
drug testing as treatment? If not, would you
distinguish between drug testing and treatment?
Many quarters of the criminal justice community
consider drug testing to be treatment.

J.P.: Drug testing is surveillance, not treatment.
If you do not combine testing with a referral to
some program that addresses the underlying
problem, it cannot be considered treatment.
Testing is simply a way to uncover drug use.
Successful programs combine drug testing with a
referral to effective treatment. 

We did a lot of drug testing in the ISP experiment
(in fact, that was the single most frequent
activity), but we delivered almost no drug
treatment. I wish we had the opportunity to do a
second-stage testing of the ISP concept.

Jack Riley, Director, Arrestee Drug Abuse
Monitoring (ADAM) Program, National 
Institute of Justice, U.S. Department of Justice,
Washington, D.C.: Following up on Eric Sterling's
question, where would you put the marginal
research dollars at this point? There are two
directions that we might focus on: matching
treatment and ISP needs to individual client
characteristics or looking more broadly at program
expansion. Maybe there are other paths, but I am
curious how you would direct research.

J.P.: That is also a good question. I answer it
knowing where the dollars are now going--juvenile
justice programming. If someone asks, "Where would
you invest the next dollar?", I would say in the
adult offender who is just becoming a "career
criminal." We do almost nothing for that
first-time serious misdemeanant who is going down
that predictable path. The system has lost its
deterrent value. We often talk about
rehabilitation and surveillance but forget about
deterrence. 

One of the reasons the intermediate sanctions
movement is so attractive conceptually is that it
envisions a "ladder" of dispositions for which the
sanction delivered is a little tougher and a
little more restrictive each time the offender
comes back to the system. The goal is not just to
be punitive but to ensure public safety. I would
invest not in youth (a lot is already going to
them) but in offenders who have been convicted of
their third or fourth serious misdemeanor or first
felony. Right now, they get routine probation. We
just encourage the crime cycle.

Wayne Miller, Chief, Strategic Planning Office,
Bureau of Alcohol, Tobacco and Firearms (ATF),
U.S. Department of the Treasury, Washington, D.C.:
Would you address the Federal role of the ATF, the
Drug Enforcement Administration (DEA), and the
Federal Bureau of Investigation (FBI) in the
Boston community partnership?

J.P.: It was a very close partnership. It started
out as an experiment for gang members. Initially,
the Federal role was large, but the project has
since developed into primarily a
community/county-level program. Probation and
parole never have had the resources to invest
seriously in programs they could have done well
all along. Similarly, IBM did not invent the
personal computer, but the company had the money
to take its development to the next step when the
early entrants could not. This seems to be what
police and law enforcement do. Community
corrections is an idea that probation and parole
came up with years ago, but they never had the
dollars and could not get the attention of the
police to do it. Now, community policing comes in
with well-funded programs, they partner with
probation, and the programs seem to work. The
SMART program in Seattle is doing wonderful
things. These coordinated partnerships among
Federal, State, police, and probation agencies
will make the difference.

Elizabeth Latham, Coordinator, Volunteer Maryland,
Governor's Office of Crime Control and Prevention,
Baltimore, Maryland: I am a volunteer coordinator
working with the Maryland HotSpot Communities
initiative. We have community probation and
policing as well. I am working to bring community
members on board with police officers and parole,
probation, and juvenile justice agents. Have you
seen examples in your research of programs
bringing community members formally on board?

J.P.: That is really going to be the challenge. I
too am working with a program in Ventura County,
California, to bring community members into a more
active role in the justice system. To be honest,
we are having a difficult time. If we get
community members at large, we are more
successful. If we try to get victims to come to
the table and meet their particular offender, we
have more difficulties, and it is a challenge. As
policymakers, we often think of these good ideas.
Restorative justice projects will be the test for
bringing community members and victims to the
table. We certainly have probation and law
enforcement involvement, but we have not figured
out how to effectively involve the community.

Victor Stone, Special Counsel, Office of
Enforcement Operations, Criminal Division, U.S.
Department of Justice, Washington, D.C.: Has your
research or the research you have looked at led
you to any conclusions about a possible structural
problem? Judges talk about these same issues, and
yet they do not want probation officers to become
investigators or trial witnesses. They do not want
probation officers to admit failure by revoking
individuals. In addition, judges do not want to
lose their independence to a strict ladder of
graduated sanctions. They want the freedom to
sentence as they wish, and they don't want us to
tell them where to put their dollars. It seems
there is a structural problem.

This initiative and even the COPS
(community-oriented policing) initiative says,
"Okay, we'll take it from the other end. We'll
take the investigator and make him into more of a
community agent or rehabilitative agent or job
search agent." From the executive point of view,
we can tell him what to do. Therefore, we can
foster cooperation without having the friction of
prerogatives between the judicial and executive
branches. Have you drawn some conclusions about
these issues?

J.P.: My experience suggests that judges are the
key to successful intermediate sanctions programs.
In the communities that I have worked with, judges
can either make or break a program. They not only
do the initial sanctioning; they also do the
revocation of parole or probation. If the guy
tests positive and the judge refuses to allocate
that jail bed to the violator, the program loses
credibility very quickly. Word gets out to
offenders immediately that the intermediate
sanctions program has no teeth. 

In retrospect, we should have spent more time
working with judges through the whole intermediate
sanctions experiment. I have had judges tell me,
"Okay, I'm ready to sentence to intermediate
sanctions." However, we now have a new problem--
mandatory sentencing. We have the programs out
there and the judges are willing to use
intermediate sanctions, but judges tell me, "I
can't hand down intermediate sanctions because of
all the mandatory sentencing provisions that now
tie my hands." The problem is not only with the
structure of the judiciary but also with the kinds
of laws that are on the books. Even if judges
wanted to use graduated sanctions, often they
cannot. 

Tiberiu Dianu, Graduate Student, The American
University College of Law, Washington, D.C.: Which
of the various intermediate sanctions programs
seems to work best?

J.P.: From the research evidence, the particular
type of program almost does not matter. ISPs work
best when there is a heavy dose of surveillance
(and you can get that by imposing house arrest
with electronic monitoring or regular home visits)
with at least two contacts per week. I have yet to
see in the evaluation literature any program that
reduces recidivism that does not have at least two
face-to-face contacts and one drug test per week.
I would suggest electronic monitoring for weekend
and nighttime curfews at a minimum. It does not
matter whether you call it house arrest,
electronic monitoring, or intensive supervision;
these are the components that make a program
successful. 

Mix surveillance with "treatment." I do not mean
only the usual psychological or substance abuse
counseling but the treatment of community service,
employment, and work training. Provide a heavy
dose of surveillance and community service or
employment and work training, and at a minimum,
you should enjoy a reduction in recidivism of
about 20 percent.

Peter Eide, Manager of Labor Law Policy, U.S.
Chamber of Commerce, Washington, D.C.:
Unemployment levels are the lowest they have been
in decades. That raises the issue of employment
opportunities for people on probation, especially
with regard to the private sector. How do we get
more information on how that is arranged and how
those programs are working?

J.P.: It is a huge missing link in criminology. It
is still extremely difficult for probationers and
parolees to get a job. I don't have a lot of
information; I've only heard anecdotes. I know of
no large-scale study looking at employment
opportunities or incentives for parolees or
probationers. We need to create incentives for
employers and provide them some guarantees for the
risks they take. My sense is probationers and
parolees face the same employment problems they
have always faced.

Peter Eide, Manager of Labor Law Policy, U.S.
Chamber of Commerce, Washington, D.C.: Now is the
time to move. Employers are desperate for
employees, whether they are probationers or not.
Now is the time to look into this issue and get
something going.

J.P.: I agree.

------------------------------

Notes

1. Petersilia, J., S. Turner, J. Kahan, and J.
Peterson, Granting Felons Probation: Public Risks
and Alternatives, Washington, D.C.: U.S.
Department of Justice, National Institute of
Justice, grant number 83-IJ-CK-0002, 1985, NCJ
096669, 21.

2. Morris, N., and M. Tonry, Between Prison and
Probation: Intermediate Punishments in a Rational
Sentencing System, New York: Oxford University
Press, 1990.

3. Clear, T., and P. Hardyman, "The New Intensive
Supervision Movement," Crime and Delinquency 36
(1990): 42-61.

4. Camp, C., and G. Camp, The Corrections
Yearbook, South Salem, New York: Criminal Justice
Institute, Inc., 1997: 145.

5. Ibid., 143.

6. Ibid., 96

7. Parent, D., J. Byrne, V. Tsarfaty, L. Valade,
and J. Esselman, Day Reporting Centers,
Washington, D.C.: U.S. Department of Justice,
National Institute of Justice, grant number OJP-
94-C-007, September 1995, NCJ 155060.

8. Sherman, L.W., D. Gottfredson, D. MacKenzie, J.
Eck, P. Reuter, and S. Bushway, Preventing Crime:
What Works, What Doesn't, What's Promising, U.S.
Department of Justice, National Institute of
Justice, grant number 96-MU-MU-0019, 1997, NCJ
165366. See, in particular, Chapter 9, "Criminal
Justice and Crime Prevention" by Doris L.
MacKenzie.

9. Langan, P., "Between Prison and Probation:
Intermediate Sanctions," Science 264 (1994): 791-
794.

10. Petersilia, J., and S. Turner, "Intensive
Probation and Parole," in Crime and Justice: An
Annual Review of Research, ed. M. Tonry, Chicago:
University of Chicago Press, 1993: 306.

11. Sherman et al., Preventing Crime: What Works,
What Doesn't, What's Promising, 21.

12. Gendreau, P., and T. Little, A Meta-analysis
of the Effectiveness of Sanctions on Offender
Recidivism, St. John, New Brunswick, Canada:
University of New Brunswick, Department of
Psychology, 1993, unpublished manuscript.

13. Howell, J.C., Guide for Implementing the
Comprehensive Strategy for Serious, Violent, and
Chronic Juvenile Offenders, Washington, D.C.: U.S.
Department of Justice, Office of Juvenile Justice
and Delinquency Prevention, 1995, NCJ 153681.

14. Wisconsin Governor's Task Force on Sentencing
and Corrections, Wisconsin Governor's Task Force
on Sentencing and Corrections Final Report, 1996,
Madison, Wisconsin: University of Wisconsin Law
School.

15. Corbett, R., B. Fitzgerald, and J. Jordan,
"Boston's Operation Night Light: An Emerging Model
for Police-Probation Partnerships," in Community
Corrections: Probation, Parole, and Intermediate
Sanctions, ed. J. Petersilia, New York: Oxford
University Press, 1998: 180-186.

16. Morgan, T., and S. Marrs, "Redmond,
Washington's SMART Partnership for Police and
Community Corrections," in Community Corrections:
Probation, Parole, and Intermediate Sanctions, ed.
J. Petersilia, New York: Oxford University Press,
1998: 170-180.

------------------------------

The Epidemic of Youth Gun Violence

Presentation by 
Philip Cook, Ph.D.
Professor, Duke University

May 5, 1998
Washington, D.C.

An epidemic of youth gun violence has swept the
United States in recent years. The increase in
youth homicide, which began in the mid-1980s and
peaked in 1993, was unusual, large, abrupt, and
unprecedented. Although it is now 5 years past the
peak, great uncertainty remains about its causes
and what can be done to head off the next
epidemic.

During the early 1980s, violent crime rates in the
United States were generally headed down from a
previous recordbreaking peak in 1980. But in 1985,
this positive trend reversed--not for everyone,
but for demographic groups with the highest
prevalence of perpetrators and victims of violent
crime. While homicide rates for older adults
continued to decline, adolescents and young adults
in minority communities increasingly resorted to
gunplay and suffered its deadly consequences.

My objective is to describe this epidemic of youth
gun violence and consider two prominent
explanations of the problem that have influenced
policy over the past 7 or 8 years. One school of
thought explains the epidemic in terms of the
character of the youths involved. Other
researchers see the problem in terms of the
context in which the youths operate. In my
opinion, the evidence favors context over
character.

A focused response to this epidemic was slow in
coming, but in recent years a number of law
enforcement innovations designed to separate kids
from guns have been implemented around the
country. Although the research results are not yet
in, many of these efforts may have helped turn the
corner in reducing homicide rates.

Measures of the Epidemic 

When John Laub and I began our investigation,[1]
we focused on homicides because the data are more
plentiful and reliable than the data for assault,
rape, or robbery. In addition, homicide is the
most important and grave of the violent crimes,
and arguably a good indicator of overall trends in
violence.

Youth homicide victimization rates increased more
than other measured violent crime rates during the
epidemic. During the years of increase in the
epidemic cycle (1985 to 1993), the homicide
victimization rate for 15- to 24-year-olds
doubled. For 25- to 34-year-olds, the rate
increased by just 18 percent, and for those older
than 34, the rate actually fell.[2]

The epidemic of youth homicide was almost entirely
confined to minorities--Hispanics to some extent
but more so for blacks. Within the minority
groups, males were affected much more than
females. The homicide rate for victims and
perpetrators among non-Hispanic white youths, both
male and female, remained virtually unchanged from
1985 to 1993. By 1993, young black men were 20
times more likely to be involved in a homicide
than young white men of the same age.[3]
What was the experience of the group that was most
caught up in this epidemic? The homicide
victimization rate for black male victims ages 13
to 17 more than tripled, and the rate at which
black males in this age group committed homicides
more than quadrupled.[4] The proportional
increases for black males ages 18 to 24 were
almost as large--and started from a higher
baseline. The national homicide rates in 1993 for
both victims and perpetrators from these groups
had no precedent in the 20th century.

Homicide victimization rates in some cities were
as high as or higher than the death rates among
combat troops during the Vietnam War. Black youths
in Washington, D.C., who turned 18 in 1989 had a
1-in-24 chance of being killed by 1995. This was
the highest rate in the Nation but not that far
out of line with the rates in other cities.[5]

Youths are even more likely to kill than be
killed. My calculations suggest that if the
national rates of 1993 had been sustained, the
chance of a black male killing someone before age
25 would have been 2.5 percent, compared with a
1.5-percent chance of being killed.[6]

The epidemic reached a peak in 1993 for reasons
that are as obscure as those that explain its
onset. There has been a rapid decline in the
homicide rate for victims and perpetrators since
then, especially among blacks. 

Character vs. Context: Seeking an Explanation

It is only natural to seek an explanation for such
an unprecedented and compelling pattern. There are
several reasons to study this problem. First,
there is a scientific motivation: we suspect that
the increase in violence cannot be explained by
textbook criminological theory. What mechanism
could have caused such a large and abrupt change?
How can we explain why, over a 6-year period, the
homicide victimization rate for young black men in
Washington, D.C., increased by a factor of 10? A
number of criminologists are exploring positive
feedback processes in an effort to explain such a
rapid change. For example, violence may be
"contagious" under some circumstances, such as an
adolescent's decision to carry a gun or adopt a
confrontational style, causing others to do the
same.[7] Alternatively, the positive reinforcement
may come from "resource swamping," where an
initial increase in violence dilutes the capacity
of the neighborhood and the police.

In any event, more important than extending the
textbooks is preventing this epidemic from
recurring. What have we learned from this crisis
that is useful to policymakers? Are any of the
policy innovations implemented in the past few
years helping? 

The "superpredator" interpretation of this
epidemic, which attributes the increase in
violence to character changes in youths, has
received considerable attention. Others believe
instead that the proximate cause of the epidemic
must be found in the changing context, or
environment, in which youths interacted with one
another.

The Superpredator Theory 

The inner-city, minority children who became
adolescents during the 1980s grew up in
neighborhoods where the high levels of violence
reached in the late 1960s had become the norm.
These children were also severely affected by
broader demographic and economic trends, including
the increase in illegitimacy and single-parent
households, lack of adult supervision, the
increasing geographic concentration of poverty,
and the falling wage rates and reduced economic
opportunities for those who lacked a college
degree.[8] Coincidentally, these children grew up
at a time when the popular media provided a
perverse education that encouraged violent
solutions to everyday problems. It should not be
surprising that children growing up in such
circumstances were more violence prone than in
earlier days.

William Bennett, John DiIulio, and John Walters
argued this point most vividly, referring to the
new generation of juvenile criminals as
"superpredators." They stated that "today's bad
boys are far worse than yesteryear's, and
tomorrow's will be even worse than today's."[9]
The result is that "America is now home to thicker
ranks of juvenile 'superpredators'--radically
impulsive, brutally remorseless youngsters,
including ever more preteenage boys who murder,
assault, rob, burglarize, deal deadly drugs, join
gun-toting gangs, and create serious communal
disorders." The underlying cause of the
superpredator phenomenon, they asserted, is "moral
poverty--children growing up without love, care,
and guidance from responsible adults." 

From this perspective, the youth homicide epidemic
is the result of a change in character. This
explanation is appealing because we suspect they
are right about the lack of a healthy adult
presence in these children's lives. It seems to
fit some of the facts, and it fits our intuition:
If we measure character by behavior, the increase
in homicides "proves" the increasing prevalence of
killers, and (to close the loop in this circular
reasoning) the increasing prevalence of killers
then "explains" the increase in homicides. 

The "moral poverty" explanation, however, does not
fit some key facts about the epidemic. The
increase in violence was sudden and large, whereas
trends in family life and media content tend to be
gradual. Furthermore, increasing "moral poverty"
is not evident in youth property crime rates,
which have held steady or even declined since
1974.[10] During this period, the youth arrest
rate for property crime barely changed, and,
according to the National Crime Victimization
Survey, the property crime rate declined
substantially during the epidemic period. Even
with respect to homicide, domestic homicide
involving youths did not increase despite the
explosion in other forms of youth homicide.[11]

Change in Context

Bennett, DiIulio, and Walters' explanation
attributes the youth homicide epidemic to what
demographers call a "cohort effect," as opposed to
a "period effect." The homicide data, however,
suggest that it is the period, or context, rather
than the ever-more-vicious cohorts, that is to
blame. Consider the cohort of nonwhite males ages
15 to 19 in 1990, which, given its very high
homicide rate in that year, does indeed appear
exceptionally vicious. In 1985, this same cohort
(then ages 10 to 14) experienced a homicide
victimization rate that was the lowest for any
cohort in that age group since the 1960s. In 1990
an older cohort, ages 20 to 24, followed the same
pattern, with relatively low rates in its younger
years. These cohorts do not exhibit a sustained
high level of lethal violence, but rather their
homicide rates moved up together from ordinary
levels for their respective ages in 1985 to
extraordinarily high levels in 1990.[12] 

It is almost as if these rather normal cohorts
were suddenly drafted into a war. Before
attempting to define the nature of this war, let
me point out that the moral-poverty explanation
has been widely accepted and increasingly
reflected in our laws. Many States have changed
the rules governing processing and sentencing of
serious juvenile offenders partly in the belief
that these youths deserve harsh retribution for
their actions and that they cannot be reached
through rehabilitation. Between 1992 and 1995, 47
States and the District of Columbia toughened
their juvenile justice systems through changes in
the jurisdiction of the adult court, sentencing
procedures for juveniles, confidentiality rules,
or a combination of all three.[13] The Violent and
Repeat Juvenile Offender Act of 1997 (U.S. Senate
bill 10), sponsored by Senator Orrin Hatch,
embodies this new perspective and encourages the
States to still further exempt serious, violent
juvenile offenders from the features of the
traditional juvenile court. This is how the
superpredator notion is woven into policy and
action. But it fails as an explanation for the
epidemic in youth violence. 

Kids and Guns 

Data on the increase in youth homicides provide
one important clue to the nature of the epidemic--
the entire increase was in gun homicide. (The
homicide rate not involving guns remained
essentially constant during this period.) Among
male killers ages 13 to 24, gun use increased from
55 percent to 72 percent when the years 1982 to
1985 are compared with the years 1990 to 1992.
There was a comparable increase in gun use in
every circumstance, from everyday arguments and
fights to gang slayings.[14]

Similarly, during this time, young people used
guns to commit robberies and suicide and were
arrested for gun violations in sharply higher
numbers. The increase in gun prevalence among
minority youth is also evident in suicide
statistics. For young black men ages 15 to 24 the
percentage of suicides committed with guns
increased sharply--from 53 percent in the years
1982 to 1985 to 78 percent in the years 1992 to
1993. For other young males, the increase was just
7 percent during this period.[15] Furthermore, for
older males ages 25 to 34 the percentage of
suicides committed with guns changed very little
among blacks or other groups, remaining at a lower
level than that for younger cohorts.[16]

The increase in gun involvement was a proximate
cause of the epidemic. When guns replace fists and
knives to settle disputes or commit robbery, the
chance of a fatality increases many times. Overall
levels of violence do not appear to have increased
nearly as much as homicides during this period.
Assaults became more deadly, as would be expected
from the increase in gun use.[17] 
Supply or Demand?

Guns are clearly part of the explanation. But that
answer suggests a number of more specific
questions. What could explain the increase in gun
use by minority youths? Was the increase in gun
use the result of greater availability? Why was
there not a similar increase in gun use by white
youths or by older people or an increase in the
perceived value of possessing a gun? Why was the
increase limited to minority youth?

Alfred Blumstein[18] and others have suggested
that the demand for guns among young minority
males increased sharply during the mid-1980s when
crack was introduced in one large city after
another. Unlike heroin and powder cocaine, crack
markets provided employment, albeit risky
employment, for many adolescents, who thereby had
both the cash and the motive to arm themselves.
The guns usually were acquired through illegal
sources, including outlaw dealers, gun runners,
friends, drug customers, and theft. Many
transactions may have been facilitated by lax
Federal regulation of gun dealing during this
period. Federal licenses were handed out to almost
anyone with $30 who applied for one, and the
licensee-inspection capacity of the Bureau of
Alcohol, Tobacco and Firearms (ATF) was curtailed
by Congress. 

Homicide rates for victims and perpetrators
continued to increase rapidly long after crack
markets were well established. As guns became more
widespread they became easier to obtain from
friends or fellow gang members. The initial influx
of guns led to an increased supply on the
secondary market, and supply may have created
demand. For some individuals, carrying and using a
gun became a matter of status and survival. Thomas
Ross, a resident of Benning Terrace, a public
housing complex in Washington, D.C., recently told
a Washington Post reporter, "It's like the wild,
wild West but the sheriff stays in his office. A
dude comes bustin' for you, he's going to have a
gun, so you better be carrying [one], too."[19] It
is interesting to speculate why 1950s' urban youth
gangs--such as those from the "West Side Story"
era--used guns so infrequently in their fights,
thereby suffering so few fatalities. By what
process were the "fair fight" rules of engagement
enforced and sustained in that era?

What broke the vicious cycle of gun violence? Some
have suggested that it turned around for reasons
that have to do with the internal dynamic of the
epidemic. Younger cohorts, witnessing the damage
guns inflict, may have turned away from them.
Researchers offer an analogous explanation for why
heroin and then crack lost favor among users.
However, innovative efforts in law enforcement,
both in the regulation of gun markets and in
policing against gun carrying and misuse, may
deserve much of the credit.

Law Enforcement Response

As the youth gun violence problem became more
intense, legislatures and law enforcement agencies
began to respond with efforts targeted
specifically at gun markets and gun crimes. The
responses can be classified as supply- or
demand-oriented. Supply measures focus on reducing
gun availability; demand measures increase the
legal threat to those who carry them illegally or
use them in crime.

The Federal Government has taken the lead to
control supply. The Brady Law, implemented in
1994, discourages individuals with a criminal
record from buying handguns from licensed dealers
by requiring a 5-day waiting period. This law also
raised the dealer license fee from $30 to $200,
which, together with a more careful ATF review of
applications begun in 1993, has reduced the number
of legal dealers from 284,000 to 100,000. The
dealers who remain can be more closely monitored
by ATF and probably include fewer flagrant
violators. ATF has greatly expanded its
gun-tracing operations and uses data from them to
support its dealer investigations. The agency also
provides trace information and guidance to local
law enforcement agencies on how to police local
black-market dealers. These and other measures
have no doubt reduced sales by licensed dealers to
gun runners, youths, and customers with a serious
criminal record.

At the local level, several cities have launched
demand-side crackdowns on gun carrying and misuse.
The Boston Gun Project is the best known of these
and one of the most elaborate.[20] This program to
deter gangs from using guns was almost completely
successful in ending juvenile homicides, which had
been running at about 15 deaths a year. A number
of cities have used aggressive patrol tactics
against gun carrying. Kansas City evaluated this
approach and documented a reduction in gun
crimes.[21]

Conclusions 

The lessons learned from a review of the history
of this epidemic of youth gun violence include the
following: 

o "Root cause" explanations in general, and the
"superpredator" explanation in particular, fail to
account for the epidemic. Context rather than
character must be the basis for explaining this
tragic history.

o Guns played a major role in the epidemic of
youth violence. Finding ways to separate violent
kids from their guns has been and will continue to
be part of the solution. Guns greatly increase the
stakes of youth combat and do not reflect on the
character of young people so much as on the
opportunity and context in which they deal with
others. Prevention, in the form of making guns
scarce and gun use legally risky, is possible and
potentially effective.

o A multipronged effort to reduce criminal use of
guns is warranted. Using all available options to
reduce the attraction to urban youths of carrying
or using a gun is suggested. Regulatory efforts,
which are relatively inexpensive, can be coupled
with the relatively costly "retail" approach of
patrolling against gun carrying, as well as the
intermediate approach of investigating local
markets and tracking down illicit street sources.

The epidemic of youth violence has engendered a
variety of law enforcement responses, and it
appears that something is working. Evaluating
these efforts is essential preparation for the
next time they are needed.

Question-and-Answer Session

James Boden, Policy Analyst, Office of Management
and Budget, Executive Office of the President,
Washington, D.C.: Since 1993, the economy has
changed somewhat. Is there any difference since
then in employment patterns for people in those
cities or areas where most of the gun violence has
taken place?

P.C.: The economy has been booming. The timing is
about right to account for the end of the
epidemic--the economy turned the corner in about
late 1991 or 1992. There have been sharp
reductions in the welfare rolls in recent years.
About half of that reduction, interestingly
enough, is not people moving to jobs but simply
people who take advantage of the fact that there
is more money in the community in some general
sense. They are better off as a result. It is
inescapable, given the coincidence of the timing
and improved opportunities (more to live for,
perhaps), that there is a connection.

On the other hand (as economists are wont to say),
look at previous business cycles before accepting
a macroeconomic explanation for the end of the
violence epidemic. I reviewed the past nine
business cycles and in each case examined the
crime rates from the lowest point to the highest
point and from the highest point to the lowest
point again. Homicide rates tended not to decrease
as the economy improved. In fact, historically,
homicide seems to be immune to the condition of
the economy. 

Jeffrey Butts, Senior Research Associate, Urban
Institute, Washington, D.C.: If it is not simple
access to weapons, what other factors do you
believe have increased the presence and
desirability of weapons?

P.C.: I have to agree with those who think the
increased prevalence of weapons began with the
demand-side shift. The adolescents and young
adults, including those who worked in the drug
trade, simply needed and had the wherewithal to
obtain guns. This, in turn, may have created an
interest on the part of other kids who were not
involved in the drug trade in carrying guns and
increased the general prevalence of weapons. Guns
are redistributed in the illicit market, which has
traditionally been entirely unpoliced. 

I conducted a study in the Triangle area in North
Carolina. We talked with a captain in the Raleigh
Police Department and asked him what he knew about
the illicit gun markets. "Nothing," he said. "Do
you question people whom you arrest about their
guns, as you would somebody who was carrying
drugs?" I asked him. "No, that isn't part of our
routine here," he answered. There was no
intelligence-gathering operation going on there.
At the end of the conversation, though, he said,
"This sounds like a great idea, something we
should do." Since then, the ATF and the Bureau of
Justice Assistance have begun providing technical
support to local police departments to encourage
them to gather the information needed to interdict
those markets. In the 1980s that didn't happen. 

John Calhoun, Executive Director, National Crime
Prevention Council, Washington, D.C.: If I got
your next-to-the-last comment right, you said we
must "separate violent kids from guns." Could you
explore that a little bit? I was curious why you
said "violent kids from guns"--as opposed to "kids
from guns," because the term "violent kids"
doesn't quite explain Paducah, Kentucky, or
Jonesboro, Arkansas, or Edinboro, Pennsylvania.
Nor am I sure how to define "a violent kid."

P.C.: Part of the problem is defining the word
"kid." The epidemic included people from 12 to 24
years old, and sometimes I am too casual in
referring to all young people as "kids."
Separating nonviolent users (those who don't have
a record) from their guns is impossible,
especially for the older end of that spectrum. It
may not even be desirable. Despite what happened
in Jonesboro, we may have gotten the gun laws
about right. Currently, it is illegal to transfer
a handgun to a 15-year-old, and adolescents can
use a gun only when they are under adult
supervision. If those boys in Jonesboro had been
under adult supervision, presumably the incident
would not have occurred. They allegedly stole a
number of weapons from a grandparent and a father
and then turned them on their classmates. 

We need a different approach. We also must find a
practical way to keep the kids from unauthorized
use of guns. One alternative is to strengthen the
regulations on gun storage. Another intriguing
possibility, for the long term, is a technological
fix in this area--personalizing guns. Colt is
developing a handgun that will fire only when the
user is wearing a special ring. Weapons of this
sort, that only respond when the user has the
right "fingerprint," will eliminate the usefulness
of stolen guns. Such weapons would help prevent
incidents like Jonesboro and, over the longer
term, the flow of 500,000 guns per year into the
black market from burglary and theft from
vehicles.[22] The goal is to control adolescent
access to weapons without depriving them of the
chance to occasionally go out with dad and shoot
tin cans. 

Earl Cook, Assistant Chief, Alexandria Police
Department, Alexandria, Virginia: Have the
community policing efforts of the past 15 years
(the Federal and local law enforcement and
government partnerships that have repackaged and
updated how we approach police work) changed the
circumstances in which urban youth live? Have
modern-day community policing methods helped to
increase or decrease youth violence?

P.C.: There is no question that the success of
community policing depends upon the community.
Community policing is manifested differently from
city to city. Not all of these efforts have been
effective, but the concept is a move in the right
direction--that is, to improve the relationships
and communication between law enforcement officers
and the communities they serve. The community is
the primary source of information for law
enforcement. A good working relationship with the
community is obviously essential.

Ted Gest, Senior Editor, U.S. News & World Report,
Washington, D.C.: Could you comment on two
unrelated deterrence theories that have been
advanced for the decline in youth violence? First,
does the threat of increased incarceration under
laws like "three strikes and you're out" work?
Second, many States have made it easier for
law-abiding people to obtain concealed weapons
permits for self-defense. What role do either or
both of those developments play in the recent
decline in youth violence?

P.C.: In terms of the three-strikes legislation,
you are talking about a group, particularly with
adolescents, who are not directly affected because
they have not accumulated the first "two strikes"
at this stage of their lives. These laws probably
would be more effective for an older group of
offenders than the ones we are looking at. The
groups that experienced the largest increase in
homicides, proportionately speaking, are not
particularly affected by the big increase in
incarceration rates in this period. 

To summarize the evidence on concealed-carry
permits, a number of States in the last decade or
so introduced "shall issue" laws that required
local officials to issue these permits to everyone
who applied for them--unless they were explicitly
prohibited because of a criminal record or they
were underage. Some of these States left it at
that; other States required applicants to take a
training course and pay a substantial fee, for
example, $80. These legal changes made
concealed-carry permits more readily available to
people than they had been previously. In many
States, these permits were issued at the
discretion of the local sheriff.

John Lott, a University of Chicago economist,
evaluated the effect that the changes in these
laws had on different types of crime in States
that passed them.[23] He concluded that the laws
were remarkably effective in reducing different
types of crime, including homicide, and if every
State would adopt such legislation, thousands of
lives would be saved every year. He claims this
would provide a low-cost intervention that has the
capacity to dramatically change the homicide
picture in this country. He doesn't end there, of
course. If you follow his career, you'll find a
recent op-ed piece by him in the Wall Street
Journal about how we should arm teachers as a
solution to Jonesboro-type problems and so
forth.[24]

These proposals strike many to be perverse and
dangerous. The empirical evidence in this area is
no better than mixed. Lott has his results; there
have been similar studies--some using exactly the
same data--that have reached contradictory
conclusions. The work I like best was done by Jens
Ludwig. He used what amounts to a natural control
group.[25] No State allows anyone under 18 to
obtain a concealed-weapon permit. Ludwig found
that adolescents under 18 (who presumably receive
no protection from these laws) have experienced
the same sorts of declining homicide rates as
adults over 21 during the same time period. 

Lott's findings do not add up empirically. What is
the common-sense analysis of this situation?
Basically, you start with a situation in which 5
to 10 percent of the adult population already
carries guns without benefit of State law or a
permit. You create a permit system, and who shows
up? The answer, at least in North Carolina where
we have done some analysis, is less than 1 percent
of the adult public, and those are primarily
middle-age whites. Some of them were presumably
already carrying guns, but now the change in law
makes it legal. So in my estimation the plausible
effect of such laws, especially on the homicide
victimization rate for minority youths, is likely
to be negligible.

Gerald Neill, Sergeant, Metropolitan Police
Department, District Heights, Maryland: How do you
think gangs and youth offenders will be affected?
They have their own culture, their own sources of
income. How do you think gang members leaving the
prison system and returning to the street affect
youth violence? 

P.C.: Because of the numbers of people locked up
in prison these days, the ethnographers say, the
street culture has become increasingly influenced
by prison life. Some gang members continue their
operations in prison. It sounds like a perverse
arrangement at best. We must take these concerns
into account when we evaluate the use of
imprisonment. There may be costs in terms of the
culture of a particular community that extend
beyond the enormous financial costs and costs of
deprivation of liberty incurred by incarceration.
There may also be a cost of redefining deviance.
When a high percentage of a particular group, such
as young black men, end up in the justice system,
then going to prison is no longer stigmatized. If
30 or 40 percent of the members of a community
have that kind of experience, it is difficult to
preserve the stigma that deters people from crime. 

William Christenson, Consultant, Silver Spring,
Maryland: Young black men, but not all young black
men, are involved in more homicides than are other
groups. I recently spent some time in Harlem, the
Bronx, and Boston visiting barber shops and other
local businesses. It was not exactly a scientific
sample, but in New York, clearly, I got a sense
that guys were working and doing their thing but
were targeted by the police because they were
young black men. In Boston, however, young black
men would say, "No, they don't bother me. The
police are doing a good job making sure those guys
aren't doing what they shouldn't be doing." Do you
have information on young black men who are not
involved in the homicides? Isn't the problem even
more concentrated within the group of young black
men?

P.C.: Yes, that is an interesting question. To
some extent, I'm a hostage of the available data,
and the data that are most readily available are
simply demographic and don't take the next step
and ask, "Who are they really?" There have been
special studies done, particularly in Boston, on
just that question. David Kennedy, Anne Piehl, and
Anthony Braga spent time talking to law
enforcement agencies.[26] Police officers told the
researchers they almost always knew the kids who
were getting killed, because they are almost
always the ones with whom the police had contact.
But Kennedy wasn't inclined to believe it without
more evidence. He systematically studied the prior
records of those being killed. He found that 70
percent or more of them did have a record--and
many a very substantial record. He concluded
exactly what I think you are saying--that this
"canyon" through which the flood was rushing was
even narrower than suggested by the demographic
data. To a large extent, the epidemic was
restricted to kids who were involved in that
criminal life.

------------------------------

Notes

1. See Cook, Philip J., and John Laub, "The
Unprecedented Epidemic in Youth Violence," in
Crime and Justice, ed. Mark H. Moore and Michael
Tonry, Chicago: University of Chicago Press, 1998:
101-138.

2. Author's calculations from Vital Statistics
Mortality Dataset, National Center for Health
Statistics, Centers for Disease Control and
Prevention, Hyattsville, MD.

3. Ibid.

4. Cook and Laub, "The Unprecedented Epidemic in
Youth Violence," 120-121.

5. Powell, Michael, "Showing Dubious Progress in a
Deadly District: Drugs, Poverty, History, Politics
Keep City's Homicide Rate High Despite Decline,"
Washington Post, April 19, 1988, A1.

6. Cook and Laub, "The Unprecedented Epidemic in
Youth Violence," 121-122.

7. Gladwell, Malcolm, "The Tipping Point," The New
Yorker (June 3, 1996): 32-38; Hemenway, David,
Deborah Prothrow-Stith, Jack M. Bergstein,
Roseanna Ander, and Bruce P. Kennedy, "Gun
Carrying Among Adolescents," Law and Contemporary
Problems 59 (1) (Winter 1996): 39-54; Loftin,
Colin, "Assaultive Violence as a Contagious Social
Process," Bulletin of the New York Academy of
Medicine 62 (1986): 550-555.

8. Panel on High Risk Youth, Losing Generations:
Adolescents in High-Risk Settings, Washington,
D.C.: National Academy Press, 1993.

9. Bennett, William J., John J. DiIulio, and John
P. Walters, Body Count: Moral Poverty and How to
Win America's War Against Crime and Drugs, New
York: Simon and Schuster, 1996.

10. Cook and Laub, "The Unprecedented Epidemic in
Youth Violence," 127.

11. Ibid., 126-127.

12. Ibid.

13. Snyder, Howard N., Melissa Sickmund, and
Eileen Poe-Yamagata, Juvenile Offenders and
Victims: 1996 Update on Violence, Washington,
D.C.: U.S. Department of Justice, Office of
Juvenile Justice and Delinquency Prevention, 1996,
NCJ 159107.

14. Cook and Laub, "The Unprecedented Epidemic in
Youth Violence," 128-129.

15. Author's calculations from Vital Statistics
Mortality Dataset, National Center for Health
Statistics, Centers for Disease Control and
Prevention, Hyattsville, MD.

16. Ibid.

17. Cook and Laub, "The Unprecedented Epidemic in
Youth Violence," 131-132.

18. Blumstein, Alfred, "Youth Violence, Guns, and
the Illicit-Drug Industry," Journal of Criminal
Law and Criminology 86 (1) (1995): 10-36.

19. Milloy, Courtland, "Truce Leads Gang Members
to New Lives," Washington Post, November 9, 1997,
B1.

20. Kennedy, David M., Anne M. Piehl, and Anthony
A. Braga, "Youth Violence in Boston: Gun Markets,
Serious Youth Offenders, and a Use-Reduction
Strategy," Law and Contemporary Problems 59 (1)
(Winter 1996): 147-196.

21. Sherman, Lawrence W., James W. Shaw, and
Dennis P. Rogan, The Kansas City Gun Experiment,
Research in Brief, Washington, D.C.: U.S.
Department of Justice, National Institute of
Justice, January 1995, NCJ 150855.

22. Cook, Philip J., Stephanie Molliconi, and
Thomas Cole, "Regulating Gun Markets," Journal of
Criminal Law and Criminology 86 (1) (1995): 59-92.

23. Lott, John, Jr., More Guns, Less Crime:
Understanding Crime and Gun Control Laws, Chicago:
University of Chicago Press, 1998.

24. Lott, John, Jr., "The Real Lessons of the
School Shootings," Wall Street Journal, March 27,
1998.

25. Jens Ludwig, "Concealed-Gun-Carrying Laws and
Violent Crime: Evidence from State Panel Data,"
International Review of Law and Economics, in
press.

26. Kennedy, Piehl, and Braga, "Youth Violence in
Boston: Gun Markets, Serious Youth Offenders, and
a Use-Reduction Strategy," 147-196.

------------------------------

Perspectives on Crime and Justice 

Videotape Lectures 

Videotapes of the lectures presented in this
publication are available through the National
Criminal Justice Reference Service (NCJRS).
Videotapes are ideal for stimulating productive
debate on criminal justice research and public
policy issues and are 60 to 80 minutes in length. 

Crime Control, the Police, and Culture Wars:
Broken Windows and Cultural Pluralism George L.
Kelling, Ph.D.
NCJ 168103

Race, the Police, and "Reasonable Suspicion"
Randall Kennedy
NCJ 168967

The American Experience With Stimulants and
Opiates
David F. Musto, M.D.
NCJ 169283

A Decade of Experimenting With Intermediate
Sanctions: What Have We Learned?
Joan Petersilia, Ph.D.
NCJ 170030

The Epidemic of Youth Gun Violence
Philip Cook, Ph.D.
NCJ 170597

Videotapes of the first year's lecture series
(1996-1997) are also available.

The cost for each videotape is $29.50 in the
United States and $33 in Canada and other
countries. Contact NCJRS to order:

National Criminal Justice Reference Service
Box 6000

Rockville, MD 20849-6000
800-851-3420

e-mail: askncjrs@ncjrs.org

Visit the NCJRS Justice Information Center World
Wide Web site to view or obtain an electronic
version of this publication.

To access the World Wide Web site, go to
http://www.ncjrs.org.