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October 11, 2021

"Fatalism and Indifference — The Influence of the Frontier on American Criminal Justice"

The title of this post is the title of this new article authored by Michael Tonry now available via SSRN. Here is its abstract:

American criminal laws and criminal justice systems are harsher, more punitive, more afflicted by racial disparities and injustices, more indifferent to suffering, and less respectful of human dignity than those of other Western countries.  The explanations usually offered — rising crime rates in the 1970s and 1980s, public anger and anxiety, crime control politics, neoliberal economic and social policies — are fundamentally incomplete.  The deeper explanations are four features of American history and culture that shaped values, attitudes, and beliefs and produced a political culture in which suffering is fatalistically accepted and policy makers are largely indifferent to individual injustices.

The four elements are the history of American race relations, the evolution of Protestant fundamentalism, local election of judges and prosecutors, and the continuing influence of political and social values that emerged during three centuries of western expansion.  The last, encapsulated in Frederick Jackson Turner’s “frontier thesis,” is interwoven with the other three.  Together, they explain long-term characteristics of American criminal justice and the extraordinary severity of penal policies and practices since the 1970s.

October 11, 2021 at 10:18 AM | Permalink


The harshness of our system is clearly not just a result of "rising crime rates in the 1970s and 1980s" (and that should really be pushed back to the 1960s).

Something like local election sounds like it would highlight other causes. OTOH, local elections provide some opening for reforms as people like Rachel Barkow and Emily Bazelon note.

Race and religion/morality would seem to me to be important factors. Simple prudential considerations often would justify less harsh penalties. But, there is a push about what is "deserved." A different religious/moral vision there (including support of redemption) could provide a different vision.

I have read and found Tonry useful in the past. So, this looks like a worthwhile article.

Posted by: Joe | Oct 11, 2021 10:42:58 AM

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