V o l u m e II

November

1998

U.S. Department of Justice

Office of Justice Programs

National Institute of Justice

DEPARTMENT OF JUSTICE

OFF ICE OF JUSTICE PROGRAMS

BJA NI J OJJDP BJS OVC

National Institute of Justice

Perspectives on

Crime and Justice:

1997–1998 Lecture Series

▼

Research Forum
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

Noël Brennan

Deputy Assistant Attorney General

Jeremy Travis

Director, National Institute of Justice

To find out more information about the National Institute of Justice, please contact:

National Criminal Justice Reference Service

Box 6000

Rockville, MD 20849–6000

800–851–3420

e-mail: askncjrs@ncjrs.org

To obtain an electronic version of this document, access the NIJ Web site

(http://www.ojp.usdoj.gov/nij).

If you have any questions, call or e-mail NCJRS.

National Institute of Justice

World Wide Web Site

http://www.ojp.usdoj.gov/nij

Office of Justice Programs

World Wide Web Site

http://www.ojp.usdoj.gov
i

Preface

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
ii

Preface

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.
iii

Preface

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
iv

Preface

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
v

Preface

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
vii

Preface

Preface .................................................................................. iii

Lecture 1: Crime Control, the Police, and Culture Wars:

Broken Windows and Cultural Pluralism

George L. Kelling, Ph.D. ................................... 1

Lecture 2: Race, the Police, and “Reasonable Suspicion”

Randall Kennedy ............................................. 29

Lecture 3: The American Experience With

Stimulants and Opiates

David F. Musto, M.D. ...................................... 51

Lecture 4: A Decade of Experimenting With Intermediate

Sanctions: What Have We Learned?

Joan Petersilia, Ph.D. ....................................... 79

Lecture 5: The Epidemic of Youth Gun Violence

Philip Cook, Ph.D. ........................................ 107

Contents
1

Joan Petersilia

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.
2

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

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 ordermaintenance 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
3

George L. Kelling

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
4

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

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
5

George L. Kelling

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.
6

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

“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
7

George L. Kelling

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 “heavyhanded, 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 nuisanceabatement 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.
8

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

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
9

George L. Kelling

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 rootcauses 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
10

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

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
11

George L. Kelling

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
12

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

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
13

George L. Kelling

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
14

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

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 regard

less 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.
15

George L. Kelling

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

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-yourface 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.
17

George L. Kelling

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.
18

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

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 redis-
19

George L. Kelling

covering 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
20

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

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
21

George L. Kelling

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
22

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

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.
23

George L. Kelling

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
24

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

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!
25

George L. Kelling

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

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.
27

George L. Kelling

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.
28

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

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.
29

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.

Race, the Police, and “Reasonable

Suspicion”

Presentation by

Randall Kennedy

Professor, Harvard Law School

February 3, 1998

Washington, D.C.
30

Race, the Police, and “Reasonable 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,
31

Randall Kennedy

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.
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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 AfricanAmerican 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.
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Randall Kennedy

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
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Race, the Police, and “Reasonable Suspicion”

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
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Randall Kennedy

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
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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
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Randall Kennedy

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 AfricanAmericans 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.
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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
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Randall Kennedy

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
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Race, the Police, and “Reasonable Suspicion”

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
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Randall Kennedy

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.
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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 crimeridden 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.
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Randall Kennedy

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.
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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
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Randall Kennedy

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
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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
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Randall Kennedy

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
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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
49

Randall Kennedy

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.
50

Race, the Police, and “Reasonable Suspicion”

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.
51

David F. Musto

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.

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.
52

The American Experience With Stimulants and Opiates

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.
53

David F. Musto

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
54

The American Experience With Stimulants and Opiates

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,
55

David F. Musto

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.
56

The American Experience With Stimulants and Opiates

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.
57

David F. Musto

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
58

The American Experience With Stimulants and Opiates

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.
59

David F. Musto

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 Ameri-
60

The American Experience With Stimulants and Opiates

can 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 unprof-
61

David F. Musto

itable. 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
62

The American Experience With Stimulants and Opiates

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.
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David F. Musto

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, Frédéric 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
64

The American Experience With Stimulants and Opiates

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,
65

David F. Musto

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 wellpronounced 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
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The American Experience With Stimulants and Opiates

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
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David F. Musto

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
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The American Experience With Stimulants and Opiates

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
69

David F. Musto

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.
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The American Experience With Stimulants and Opiates

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.
71

David F. Musto

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.
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The American Experience With Stimulants and Opiates

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 longterm 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 drugfree 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.®) 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 timebound 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
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David F. Musto

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?
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The American Experience With Stimulants and Opiates

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?
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David F. Musto

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.
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The American Experience With Stimulants and Opiates

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).
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David F. Musto

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.
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The American Experience With Stimulants and Opiates

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.
79

Joan Petersilia

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

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:

■ In terms of sheer numbers and investments, the overall ISP experiment

was more symbolic in its achievements than substantive.

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

■ 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
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Joan Petersilia

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

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.
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Joan Petersilia

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
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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
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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
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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 pro-
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grams 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
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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
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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.
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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.
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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.
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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 wellfunded community policing programs. One of the key goals of community

policing is getting to know the people on the beat—offenders as well as lawabiding 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.
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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
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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
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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
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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, longterm 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?
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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 alcoholinvolved, 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
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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
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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
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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
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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
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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.
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Joan Petersilia

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
104

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

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,
105

Joan Petersilia

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.
107

Philip Cook

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.
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The Epidemic of Youth Gun Violence

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.
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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.
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The Epidemic of Youth Gun Violence

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
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Philip Cook

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
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The Epidemic of Youth Gun Violence

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
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Philip Cook

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 Blumstein18 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
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The Epidemic of Youth Gun Violence

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.
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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
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The Epidemic of Youth Gun Violence

Conclusions

The lessons learned from a review of the history of this epidemic of youth gun

violence include the following:

■ “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.

■ 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.

■ 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.
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Philip Cook

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,
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The Epidemic of Youth Gun Violence

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,
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Philip Cook

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.
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The Epidemic of Youth Gun Violence

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
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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 Jonesborotype 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
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The Epidemic of Youth Gun Violence

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
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Philip Cook

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.
124

The Epidemic of Youth Gun Violence

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.
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Philip Cook

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

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

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Randall Kennedy

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David F. Musto, M.D.

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A Decade of Experimenting With Intermediate Sanctions:

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The Epidemic of Youth Gun Violence

Philip Cook, Ph.D.

NCJ 170597

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