Political Authority

Consider the effects of political authority on political action. Political authority refers to the institutionalized and official power arrangements that constrain or enable certain courses of action. Political scientists and political sociologists have generally mapped political authority as the degree to which political systems distribute or share power across and between branches and levels of government and between the state and civil society (Reference Amenta and YoungAmenta & Young 1999; Reference KitscheltKitschelt 1986). In a highly centralized political system, the executive branch, such as the president or governor, is likely to control decisionmaking power over legislation, budgets, and appointments. In a decentralized system, decisionmaking power is shared and fragmented across the levels and branches of government, and it may even include forms of “direct democracy” in which nonelected ordinary people make legally binding decisions through the use of the ballot box, voting on initiatives, referendums, or recall measures, for example. A high degree of centralization tends to dampen various forms of political participation because state insiders and state elites dominate the business of governing, whereas a low degree of centralization tends to promote various forms of citizen participation, including grassroots mobilization and social protest (Reference Schofer and Fourcade-GourinchasSchofer & Fourcade-Gourinchas 2001). In his comparative research on imprisonment patterns in the United States and Germany, Reference SavelsbergSavelsberg (1994) explains the effects of political authority on penal outcomes: Germany's highly insulated and centralized political authority enables state elites to resist public demands for tough crime control measures and keep imprisonment rates low, while in the United States, state officials are more vulnerable to public demands because the policymaking process is not only decentralized but more politicized, factors that can drive up imprisonment rates (also see Reference WhitmanWhitman 2003).

In addition, these kinds of institutionalized channels of action cannot be ignored or easily overcome by grassroots movements, no matter how virtuous or determined they may be (Reference SkocpolSkocpol 1992). Reference RockRock (1988) has demonstrated this point well in his analysis of the structural differences in the policymaking process in Canada and the United Kingdom, factors that shaped the voluntary organization of victim support in Britain vis-à-vis a reluctant but managerial Home Office and the bureaucratic justice initiative in Canada. To be successful—that is to say, to gain new advantages or a rule change (Reference GamsonGamson 1990)—strategic protest groups are likely to orient their actions and demands in ways that are relatively compatible with a state's predominant political institutions, even as they seek to change those institutions and public policies (Reference AmentaAmenta et al. 1994). In the United States, for example, we tend to see grassroots protest oriented around legal and political “rights” rather than around the demands for economic redistribution and social equality. This kind of strategy tends to fit better with the liberal political tradition of the United States but may be out of synch with a more social democratic system, such as those of the Nordic countries, where the concept of “individual rights” itself is underdeveloped.

Civic Engagement

Next, I incorporate the role of civic engagement, a factor that has not been fully theorized in current accounts but may be necessary to explain the effects of the democratic process on crime victim policies and penal outcomes. Civic engagement refers to how ordinary people get involved in the public sphere, especially through local, state, and national politics, elections, and policymaking, to realize the “mutual benefits” of collective life (Reference PutnamPutnam 1993). In Making Democracy Work, Reference PutnamPutnam (1993) uses the concept of “social capital” to capture how well people connect and cooperate with one another through civic engagement in order to bring about common goods. In societies with a high degree of social capital, Putnam explains, people tend to be active in politics and community life, creating both dense and loose networks of social ties that can then increase cooperation, social cohesion, and mutual trust. In his comparative study on Italian regional governments, Putnam found that locales with a higher degree of social capital tended toward higher economic prosperity, more generous and efficient social policies, and less-coercive social control (1993).

We can then hypothesize that in political contexts with a higher degree of civic engagement and social capital, we might expect to see more restorative crime victim policies and less punitive penal policies, policies that are dependent upon a sense of mutual trust and social reciprocity. A restorative approach recognizes the harm done to victims and holds criminals responsible for the pain and suffering of victims and the emotional and economic costs to communities, but it does so without resorting to the coercive use of state power (Reference Braithwaite and PettitBraithwaite & Pettit 1990). In political contexts in which people share a sense of civic duty, responsibility for self-governance, and social connectedness, they may be less willing to inflict upon one another the violence of penal sanctioning.Footnote ⁵ By contrast, in contexts with a low degree of civic engagement and high degree of social polarization, we may be likely to see a more retributive approach to criminal victimization. Here polity members' antipathy toward one another, especially toward marginalized social groups such as criminal offenders, can be easily expressed through penal sanctioning without much concern for the social reintegration of offenders.

Conflict Resolution

Taken together, I suggest that these institutional features create an underlying texture of political life in a particular place. That is to say, they form the organizing principles, classification schemes, the taken-for-granted assumptions, the routines and habits of political interaction, or, in Reference BourdieuBourdieu's (1984) terms, a habitus of political action. As such, they significantly shape the way that people make sense of political conflict and the way that they try to resolve it. This means that we are likely to see variation rather than uniformity in the ways that people understand the very nature of political disputes and in the ways that they try to solve, avoid, escalate, or defuse them (Reference BarberBarber 1984), the consequences of which lead to variation in the policymaking process and policy outcomes.

Specifically, we see a continuum of the various styles or modes of conflict resolution. On one end of the spectrum, conflict can be resolved through coercion and violence, a mode more likely to occur in hierarchical and unequal societies (Reference PutnamPutnam 1993). In democratic societies, we are likely to see modes ranging from contention to reconciliation. In a contentious mode, disputes and disagreements tends to be repetitive, polarizing, and only temporarily resolved as individuals and various formal and informal organizations (e.g., political parties, interest groups, grassroots movements) continuously struggle over limited material and symbolic resources and competing visions of a “good society.” For example, the use of litigation as a political strategy by the U.S. civil rights movement and abortion rights activists has not really resolved fundamental questions about racial or gender equality. Instead, it has created ongoing and bitter political struggles, generating resentment and righteousness among winners and losers over piecemeal and symbolic decisions—decisions, moreover, that are not grounded in a democratic process.

By contrast, in a conciliatory mode, conflict over resources tends to be negotiated in such a way to satisfy or appease most, if not all, the relevant actors. For example, in social democratic countries such as Sweden, conflict resolution tends to be based on compromise, negotiation, and a sense of the collective good rather than private self-interest (Reference Heclo and MadsenHeclo & Madsen 1987; Reference AntonAnton 1969). This mode of reconciliation has helped create the country's inclusive and generous social welfare policies. At the same time, however, in this context, conflict can also be ignored, avoided, or suppressed in order to promote an apparent rather than real consensus. In Sweden, the social pressure to agree with one another (Reference Rosenberg, Trägårdh and WitoszekRosenberg 2002) can leave controversial policy issues such as immigration and integration or race and crime off the political agenda. Policy issues concerning ethnic and racial classification are extremely sensitive topics in Sweden, especially given the success of the eugenics movement and forced sterilization (Reference Broberg, Tydén, Broberg and Roll-HansenBroberg & Tydén 1996) and the country's own neutrality during the second World War (Reference Colla, Trägårdh and WitoszekColla 2002). The Ministry of Justice, for example, does not collect or publish data on the race of criminal offenders in part to protect minority offenders from social bias and racial prejudice (Reference Martens and TonryMartens 1997).Footnote ⁶ Rather than document the extent of minority crime or discuss the possible causes of such social pathologies, government officials have basically buried the issue in order to preserve the notion of a fair and just criminal justice system and, by extension, a tolerant and open society, despite a more complex reality.

The mode of conflict resolution represents the predominant character of the interaction between disputants, features that can be enhanced or diminished through the various institutionalized mechanisms designed to assist political actors negotiate, mediate, and possibly resolve disagreements over clashing needs, interests, and available resources. These can include ombudsmen, expert commissions, town hall or community meetings, parliamentary and other legislative committees, executive task forces, citizen outreach programs, a range of court systems and litigation strategies, and mediation centers. Most political systems allow for multiple forms of conflict resolution. The research task is to document and explain which forms predominate and how these mechanisms alleviate or aggravate inevitable political disagreements in empirically grounded cases.

Variation in Political Institutions by Political Context

Turning to the case studies, we can then map variation in the key political institutions to get a sense of the overall character of the democratic process in each state. Table 3 summarizes the key institutions and their relative values in California and Washington State. Note that this classification scheme may be applied to other American states and to other democracies in Europe as the categories are theoretically driven and empirically informed, representing more general processes. Further research is needed to determine the precise values of each category in other political contexts.

Table 3. Key Political Institutions by Case Study

^a. The Index of Governors' Institutional Powers is a useful indicator of the degree of centralization as it measures the degree to which governors control budgets, legislation, appointments, political parties, the strength of veto power, and the length of tenure, including the presence or absence of term limits. The stronger the governor's powers, the more centralized the political authority, and vice versa. Both decentralized California and Washington (3.2) score below the national average (3.5) in terms of governor's powers and well below more centralized states such as New York or Illinois (4.1) (Reference Beyle, Gray and HansonBeyle 2004:212–3). I also include the presence or absence of direct democracy measures as another indicator of decentralization: both California and Washington allow for citizen initiatives.

^b. The level and intensity of civic engagement is indicated by voter participation in state and national elections and by Reference PutnamPutnam's (2000) composite index of “social capital,” which includes how often people attend local town meetings and participate in local and state politics, and how much people trust one another. California ranks forty-fifth in the nation in voter turnout with an average of 38.6 percent, whereas Washington ranks thirteenth with an average of 50.4 percent (Reference Gray and HansonGray & Hanson 2004: 93). In terms of social capital, California ranks twenty-eighth, scoring -0.18, whereas Washington ranks tenth, scoring 0.65 (Reference PutnamPutnam 2000).

^c. I classify California as a mode of contention because grassroots groups used the initiative process to legislate crime victim rights, a process that not only bypasses political accountability and public input, but tends to polarize policy debates. I classify Washington as a mode of reconciliation because grassroots groups joined the government's task force, a hybrid commission of citizens and state officials, and participated in public hearings and community meetings across the state, processes that opened the debate to multiple parties and moved the discussion toward compromise. The initiative was available in Washington, but the movement chose not to use it.

California: Polarized Populism

With its low degree of centralized political authority, California is an open polity, meaning that ordinary people and grassroots movements can influence the policymaking process through multiple access points. However, what is somewhat paradoxical is the state's relatively low rate of civic engagement: few people actually turn out to vote or participate in local affairs. California politics, elections and volunteerism, is dominated by the affluent white, a relatively small pool of the population (Reference Ramakrishnan and BaldassareRamakrishnan & Baldassare 2004:48). Without a lively public sphere, Californians miss key opportunities to build social ties and develop norms of reciprocity across social groups, factors central to maintaining a mutual sense of trust and social cohesion in diverse societies. As such, these conditions can increase social polarization. Social polarization is then exacerbated by and expressed through California's acrimonious mode of dispute resolution, including but not limited to the initiative process.Footnote ⁷ As a form of “winner-takes-all” politics, the initiative process poses complex policy questions in simplistic “yes” or “no” formulations, thereby eliminating middle-ground or compromising policy positions. It also undermines standard democratic procedures, as there are no requirements to consider input from other citizens, civic groups, or any other interested party before drafting legislation, and no one can be voted out of office or held accountable if the measure fails to deliver its stated goals (Reference Cain, Miller and SabatoCain & Miller 2001). Initially created to undercut corrupt politicians and express distrust of state elites, the initiative process has been used to legislate intolerance toward minority racial and ethnic groups since its inception (Reference AllswangAllswang 2000). Taken together, I suggest that these institutional configurations can lead to more coercive social controls as a disconnected and divided polity readily calls upon the state's power to punish to solve complex policy problems, especially those involving socially marginalized groups such as criminal offenders and racial minorities. These factors are particularly salient when public policy is legislated through an initiative, as occurred in the Victims' Bill of Rights in 1982, the Crime Victim Justice Reform Act in 1990 (Proposition 115), and Three Strikes and You're Out in 1993 (Proposition 184). In this context, the crime victim movement became part of a retributive movement seeking to restrict offenders' liberties in the name of victim rights.

Washington: Deliberative Democracy

Although political authority in Washington State is decentralized and allows for the initiative process as in California, the character of civic engagement and mode of conflict resolution can under certain conditions create a more deliberative kind of democratic process.Footnote ⁸ Washington's open political system is rooted in a more progressive-style populism based on the farmers' cooperative movement for self-governance, which depended upon collaboration among various social groups and between the state and civil society (Reference ClemensClemens 1997). Civic engagement has been relatively robust in Washington, generating a relatively high degree of social capital and social trust. Norms of reciprocity, crucial to maintaining social ties across diverse social groups, are further expressed through Washington's more conciliatory dispute resolution and the use of community meetings and hybrid state-citizen commissions, mechanisms deployed since the mid-1960s to pose and solve policy problems including but not limited to crime and victimization (e.g., Washington State Citizens Council on Crime 1966; Washington State Commission on the Causes and Prevention of Civil Unrest 1968; Washington State Sentencing Guidelines Commission 1981-1983). Small-scale community meetings can promote an open discussion among state officials, ordinary citizens, civic leaders, grassroots movements, and special interest groups. In these settings, participants are encouraged to listen to a range of different viewpoints and work through dialogue and negotiation to reach a compromise if not consensus (compare Reference HabermasHabermas 1981). Hybrid state-citizen commissions, made up of citizen representatives, civic leaders, and state officials, can open up a space for dialogue between civil society organizations and state actors, a space not available through conventional electoral politics, and can potentially generate trust among the participants (Reference Trägårdh and TrägårdhTrägårdh 2007). Both mechanisms provide for a more inclusive mode of decisionmaking where various social groups and political actors can get the sense that their opinions matter to state elites and their interests may be incorporated into legislative proposals. Both mechanisms promote the idea of self-governance, practices central to legitimate democratic rule. Of course, these mechanisms can be used by state elites to co-opt public opinion, defuse troublesome grassroots movements, and bury contentious issues, and do so in the name of consensus politics. How these mechanisms are used to thwart or uphold public participation is best determined empirically.

Taken together, I suggest that the cluster of institutions and practices that make up Washington's democratic process make polity members reluctant but not unwilling to employ repressive forms of state power against one another. Penal sanctioning, especially the widespread use of imprisonment, the infringement of liberty, can intensify social divisions, break social trust, and undermine notions of self-rule as it simultaneously expresses and expands the state's power over civil society—all features that would seem to weaken if not contradict the basic principles of a deliberative political process rooted in intensive civic engagement and reconciliation. In this context, grassroots crime victim groups initially pursued a more retributive approach to victimization, but through the political process they toned down some of their more punitive demands and negotiated legislation that included restorative elements.

In the next section on the case studies, I illustrate how these abstract concepts and classification schemes were made meaningful by crime victim movements and government officials and how these political institutions exerted causal influence over the substance and trajectory of penal outcomes.

California: Populism and Dogmatic Moral Protest

In 1982, California voters approved Proposition 8, the Victims' Bill of Rights, 56 to 44 percent. Proposition 8 changed the California State Constitution and penal code—it created crime victim rights, mandated restitution, increased penal sanctions for certain repeat offenders, limited plea bargaining and bail in certain cases, loosened the rules of evidence, and enabled victims and crime victim families to participate in sentencing and parole hearings. Recognizing crime victim rights, the California Constitution now reads:

Proposition 8 changed the state constitution and penal code in ways that altered the moral calculus of criminal justice. Crime victim rights are now officially sanctioned by law and officially incorporated into criminal case processing.

To explain this outcome, I suggest that crime victims' moral protest gave Proposition 8 its emotional tenor, resonating with voters. Yet despite the power of anger, indignation, and raw emotion, crime victims and their representatives had to mobilize this righteousness in ways that were compatible with California's political institutions and to do so in ways that might lead to a policy change. To accomplish this task, crime victim groups took advantage of the state's open political system through its direct democracy measures, i.e., the initiative, and capitalized on the pervasive sense of conflict and distrust among social groups in civil society.

In 1981, Paul Gann, the initiative's chief sponsor, and his Citizens Committee to Stop Crime quickly gathered the half million signatures needed to qualify the Victims' Bill of Rights for the June 1982 ballot (Editorial, Los Angeles Herald Examiner, 17 Nov. 1981. Proposition 8: News Advisories. Paul Gann Archive. Box 1395, Folder 1. California History Section, California State Library, Sacramento, California). Grassroots activists volunteered to collect signatures and campaign for the initiative. As one volunteer explained, “[I'm] willing to spend Saturdays standing outside of Albertson's, Safeway, and schools (on weekdays) passing out petitions” (Reference DavisDavis 1981: n.p.). Another wrote to Gann, “Since our legislature does not do what the electorate wants, we will again have to legislate” (Reference MielkeMielke 1981: n.p.).

This particular crime victims' campaign chose not to rely on state elites or the state legislature to respond to their demands despite Gann's close ties to conservative politicians. Although prominent conservative lawmakers were involved in the victim rights campaign, Proposition 8 was nevertheless a ballot measure that depended upon the public's participation rather than on the exclusive actions of the state legislature.Footnote ⁹ Skeptics might argue that the public and grassroots activists were merely used, co-opted, and duped by elites. While this argument may have some validity in specific instances, it presumes that ordinary people were either virtuous or disinterested until they were manipulated by elites. Instead, I suggest we take a serious look at just how hostile crime victim groups and their representatives were toward criminal offenders as this antipathy found expression in and was simultaneously deepened by California's populist political roots.

As discussed above, California's democratic process is made up of decentralized political authority, low rates of civic engagement and social capital, and a contentious mode of conflict resolution based more on dissension than on reconciliation or compromise. Together these institutional features create a kind of political environment conducive to social polarization, distrust, limited mutual obligation, and acrimonious and fragmented decisionmaking, features that tend to be associated with factional and winner-takes-all politics and more-coercive and less-generous public policies.

In the 1970s and early 1980s, the discourse, actions, and public policies of Governor Edmund G. “Jerry” Brown's administration dramatically illustrate the salient features of California's political environment, an environment that facilitated the crime victim movement for victim rights. In his eight-minute inauguration address, the ritualistic display of political power, Governor Brown described his contemporary era as an “era of limits” and asked Californians to lower their expectations concerning the provisions of public goods and social services. The state would provide less. The next year, he explained that difficult governing conditions, namely slow economic growth, high unemployment, and “increasing social instability,” forced the state to reorganize itself: “[i]t is now a question of reordering priorities and choosing one program over another”(Reference BrownBrown 1976:1). Anti-crime measures were one of three government priorities, along with technological innovation and environmentalism.

At the same time, the Brown administration curtailed its responsibility to address the underlying causes of crime, perceived as the multiple, overlapping, and diffuse economic and social factors such as unemployment, parenting, education, and culture. The state turned program priorities away from crime prevention even as crime rates continued to increase into the late 1970s and despite the administration's routine portrayal of crime as an “epidemic” and a “crime-wave,” creating a “climate of apprehension.” In 1980, the Los Angeles police chief concurred: “The people of this city are frightened—they have reason to be” (Daryl F. Gates, quoted in “Burglary Victim Dies from Beating,”Los Angeles Herald Examiner, 30 Dec. 1980. News Clippings. Paul Gann Archive. Box 1395, Folder 2. California History Section, California State Library, Sacramento, California). The administration pursued crime control by prioritizing punishment, which included a $94 million proposal to expand the state prison system. By the end of 1981, the California state legislature passed and the governor signed more than one hundred anti-crime measures designed to stiffen penalties and quicken punishment.

While the Brown administration and the California state legislature passed numerous anti-crime measures and stiffened criminal penalties, citizens, elected representatives, and newspapers criticized the state for failing to “do something” about crime—a move that both illustrated and reinforced distrust and disconnectedness among polity members. By 1981, the California Field Poll found that 40 percent of Californians thought Governor Brown was doing a “poor” or “very poor” job, and 51 percent thought he “does not work well with the legislature” (California Field Poll 1981: #1128). In this polarized and fragmented political context, citizens and social groups in civil society did not see or acknowledge, or trust, for that matter, how the state responded to crime.

For example, the San Francisco Chronicle described how the administration's and legislature's “startling bad decisions, prevailing legislative indifference, and inability to act” had led to a “great deal of justified citizen frustration” in response to crime (Editorial, San Francisco Chronicle, 23 May 1982. News Clippings. Paul Gann Archive. Box 1395, Folder 9. California History Section, California State Library, Sacramento, California). Joining the fray, Carol Hallett, the California Assembly Republican leader, explained, “[t]he Legislature has failed the people of this state in its refusal to enact the stringent anti-crime measures we so desperately need” (Reference HallettHallett 1981: n.p.). Robert Agnew, a Gann supporter, summed up a common sentiment at the time: “The very foundation of our society is threatened by the universal indifference of an effete body politic toward a crime-beleaguered public … swift and violent punishment is the only possible crime deterrent” (Reference AgnewAgnew 1982: n.p.). Another Gann supporter described her own sense of feeling belittled and neglected by state government after she wrote a letter to the governor complaining about crime: “I feel if I had been somebody important I would probably have an answer by now” (Reference WalkerWalker 1981: n.p.).

The decentralized structure of California's political system may have contributed to the perception of government inaction on crime, a condition which I argue can undermine trust between the state and civil society. In this situation, citizens may have been more likely to turn to the initiative, a dramatic embodiment of distrust of state elites, to try to solve their own problems, especially given the deteriorating social conditions of the 1970s. Between 1970 and 1980, for example, Californians voted on 84 qualifying initiatives, a figure double the number voted on between 1940 and 1969 (California Secretary of State 2002). As noted above, the use of citizen initiatives can be a problematic way to resolve conflict as it tends to increase rather than alleviate conflict, and it counterintuitively undermines aspects of the democratic process: it limits the public's input and, as I suggest, it can dampen public participation. In April 1982, two months prior to the vote on Proposition 8, most of the public had not even heard of the initiative. According to a public opinion survey conducted by the California Field Poll, 84 percent had “not seen or heard” of Proposition 8 (California Field Poll 1982a: #1163). Likewise, most of the public, 76 percent, had not seen or heard of Proposition 1, a prison construction bond referendum on the same June 1982 ballot (California Field Poll 1982b: #1164). These low figures suggest a public disengaged from the policymaking process, a situation, according to the California Field Poll, that gives supporters a clear advantage over opponents, polarizes the population, and results in legislation that is unresponsive to the interests of the general public (California Field Poll 1982b: #1164; California Field Poll 1978: #1009). Public disengagement can lead to a relatively small and unrepresentative pool of the population making legally binding decisions for the rest of the public, a situation that fails to reflect a vibrant civil society carrying out its civic duty.

Moreover, a recent survey conducted by the Public Policy Institute of California (PPIC) found that Californians who voted in a special election on initiatives expressed dissatisfaction with the process itself: 38 percent said that the special election made them “feel worse about California politics,” compared to 21 percent who said they felt better; 55 percent said the wording was “complicated and confusing”; 77 percent favored mandatory televised debates between proponents and opponents; and although 50 percent expressed confidence in their fellow voters, 49 percent expressed no confidence in other voters (Reference BaldassareBaldassare 2005:vi–6).

In addition, the initiative process can under certain conditions lead to rather blunt policy instruments rather than coherent or long-term policies and programs. For example, voters may face competing initiatives on the same ballot, measures that are incompatible with one another, making confused and convoluted policy (e.g., multiple fiscal bond measures on the March 2004 California ballot). In California, voters can only vote yes or no on initiatives, a formulation that cuts short discussion on complex issues and, I suggest, undermines compromise. Initiatives ask either/or policy questions: Are you in favor of victim rights? Yes or no? Consider some of the published arguments (and their emphases in capital letters) in favor of and opposed to Proposition 8.

Arguments in favor of Proposition 8:

Arguments against Proposition 8:

Yet voters' policy preferences may lie somewhere in the middle. As indicated by the PPIC survey, 83 percent favored changing the current procedures to give the sponsor and legislature a chance to “forge a compromise” rather than put winner-takes-all proposals on the ballot (Reference BaldassareBaldassare 2005:vii). The dichotomy of yes or no voting can exaggerate and reify opposition and disagreement: if you oppose victims' rights, for example, then you must favor criminals and “senseless violence.” If you favor victims' rights, then you must support stiff penalties and life imprisonment.

During the Proposition 8 campaign, crime victim groups engaged in a type of moral protest that fit into the dichotomy of the initiative process and took advantage of the polity's social polarization. Gann and his Citizens Committee to Stop Crime counterposed the worthiness of one group against another, necessitating and justifying the punishment of the unworthy. We might think of this as a dogmatic, zero-sum moral protest. It is a type of protest based on the righteousness of one set of moral principles to the exclusion of others, often backed up by a zealousness about the truth of the moral principles at stake.

Gann routinely posed the worthiness of crime victims and of the victimized public against the unworthiness of offenders: “[i]t makes me shudder when I think about the fact that the criminal is entitled to more protection than the victim” (Reference GannGann 1981b: n.p.). Gann warned:

Like Gann, activists posed the worthy, “hurt,” and “innocent victims” against the unworthy, “drug-crazed,”“killers and gangsters,”“escapee sex offenders,”“convicted killers and rapists and robbers” who “are freed to kill again.” One such activist conveyed a common sentiment in a letter to Gann: “It seems like the victim is forgotten and not much is ever said about them at all” (Reference MaysMays 1981: n.p.). Another counterposed the liberty of criminal offenders with the forced imprisonment of citizens: “[s]o long as criminals are turned loose by judges, parole boards and by technicalities, the criminal citizen is now in prison” (Reference BrockmanBrockman 1981: n.p.). According to this logic, when criminal offenders are free, citizens become imprisoned. Another wrote about his frustration with prisoners' rights advocates: “Prisoners rights groups use their liberties as a license to abuse the rights of other people” (Reference WakefieldWakefield 1981: n.p.). Similarly, one activist wrote, “Brown and his bleeding hearts would probably cry out in horror against such cruel treatment of these lawbreakers … First consider the lawabiding [sic] taxpayer” (Reference WiseWise 1981: n.p.). Another wrote, “Take care of the good people and there will be a great reduction in the bad” (Reference CollinsCollins 1981: n.p.).

As these statements help illustrate, this type of moral protest is based on dichotomous logic, posing one set of values—in this case, the public's sense of safety—against another set of values—in this case, any sense of the humanity or rights of criminal offenders. I argue that the logic of this type of protest made it increasingly difficult for Proposition 8 supporters to reconcile the rights of criminal offenders with the rights of crime victims—the two were logically incompatible and emotionally unfeasible. To Proposition 8 advocates, since criminal defendants brought harm to the worthy, this further insult made offenders unworthy of the rights of full citizenship. As such, supporters could justify the retraction of due process protections. In the words of one activist, “If you really want to get tough on crime—cut off this free lawyer bit” (Reference CollinsCollins 1981: n.p.). Proposition 8 sped up case processing and, as a result, loosened rules of evidence and standards of proof, which eroded defendants' full legal protections against state power (McCoy 1993:181).

In order to garner additional support for Proposition 8, supporters counterposed “decent law-abiding citizens” against “killers and gangsters,” posed hardworking “taxpayers” against freeloading “public wards,” and posed “the good” against “the bad” (Paul Gann Archive 1981, Box 1393, Folder 6. California History Section, California State Library, Sacramento). Supporters interchanged the categories of worthiness so that one could stand in for the other and vice versa. In this moral calculus, taxpayers became victims, welfare recipients became criminals, and criminals brought harm to taxpayers. In the words of one activist,

This letter links civil penalties for convicted felons with welfare recipients. In the words of another, “Taxpayers don't mind at all to take care of the disabled, but there are the able, who wouldn't have a job at any price. This is the group that [is] committing about or more each 10 major crimes [sic]” (Reference CollinsCollins 1981: n.p.).

Challengers' associations of worthiness and unworthiness tapped into a subtext of race and crime where concerns about “crime” were legitimate ways to express perhaps a deeper anxiety about race and animosity toward poor and socially marginalized groups, particularly African Americans. As noted earlier, the initiative process has been an effective way for special interest groups to legislate their own parochial needs, including racial and ethnic prejudices, as illustrated in the recent past by the approval of Proposition 187, which barred “illegal aliens” from public services in 1994, and Proposition 209, which banned affirmative action or “preferential treatment by state and other public entities” in 1996 (California Secretary of State 2002). In their analysis of California's three strikes initiative, Reference Tyler and BoeckmannTyler and Boeckmann (1997) found that voters' support for the punitive measure tended to be associated with anxiety about declining moral cohesion and increasing diversity. Moreover, the themes of crime, insecurity, and law and order also have been effective political resources in the backlash against civil rights. As Reference BeckettBeckett (1997) explains, conservative politicians since Barry Goldwater and Richard Nixon have used the public's concern about crime as a way to express resentment over growing racial equality and an expanding welfare state. During the Proposition 8 campaign, supporters referred to criminals as freeloaders, “non-productive elements” who drained limited resources and were “getting something for nothing” while “decent law-abiding” citizens wasted their tax dollars to support them (Paul Gann Archive 1981, Box 1393, Folder 6. California History Section, California State Library, Sacramento).

I also suggest that this dichotomous logic, the counterposing of the worthy against the unworthy, is indicative of a political system with low social trust and low social connectedness.

The letters to Gann in support of crime victim rights are striking as they contain little sense of mutual obligation or norms of reciprocity, features that may be necessary to sustain policies rooted in the broad public interest. Instead, the letters express much animosity, bitterness, insularity, and a sense of embattlement from an imposing but ineffective government and from a dependent but threatening criminal class. To repeat Gann's own words: “Streets and schoolyards have turned into jungles with human animals attacking the innocent” (Reference GannGann 1981c: n.p.). These are hardly the words and sentiments of a civic leader willing to compromise or bring about more-inclusive and less-coercive public policies. In this case, low social capital coupled with a mode of conflict resolution that aggravates disagreements and intensifies social polarization facilitated the vindictiveness of the crime victim rights campaign. Proposition 8, the Victims' Bill of Rights, granted crime victims new rights, restitution and participation in parole and sentencing hearings, but these rights were interlinked with the retraction of the rights and liberties of criminal offenders as the new legislation limited plea bargaining, restricted bail, loosened rules of evidence in favor of prosecutors, and stiffened penalties for repeat offenders.

Washington State: Deliberation and Pluralist Moral Protest

In 1989, the sexual mutilation of a young boy from Tacoma sparked a statewide campaign against sex crimes. In the days and weeks following the crime, graphic details of the assault dominated news coverage as did details of the assailant's prior convictions. People from all over the state raised nearly $600,000 and sent hundreds of teddy bears to the victim, recovering in a local hospital (Seattle Post-Intelligencer, 29 Jan. 1990, p. B1). Governor Booth Gardner as well as seasoned state senators responded just as quickly, calling for public hearings to debate new sex offender legislation. Four days later, crime victim groups marched on the state capitol demanding life imprisonment for repeat sex offenders. By the end of the year, the legislature passed and the governor signed the Community Protection Act (CPA).

The CPA increased penal sanctions for most sex crimes, provided treatment for many sex offenders; introduced sex offender registration; created a new government bureau, the Office of Crime Victims Advocacy; and created the highly controversial civil commitment provision for “sexual predators.”Footnote ¹⁰ Given this set of outcomes, we should consider the CPA a major success for crime victims. Without their moral protest, it is unlikely that Washington would have passed such restrictive legislation on its own. Since the late 1960s, Washington State has been fairly committed to what Reference MorrisMorris (1974) conceptualized as the “principle of parsimony” by relying on the least-repressive sanctions possible (also see Reference BarkerBarker 2006). For more than 30 years, Washington has maintained a relatively low imprisonment rate as it has relied heavily on noncustodial sanctions (Bureau of Justice Statistics 2004; Washington State Department of Corrections n.d). Washington ranks fortieth in state imprisonment rates.

This set of outcomes seems to suggest what many scholars fear: a situation when crime victims' demands for vengeance are realized and justified by increased penal sanctions. Yet I suggest that this link between crime victims, vengeance, and punitive sanctions only exists under certain historical and political conditions. It definitely existed in the California case described above, but it only partially existed in the state of Washington during the late 1980s. The link between crime victims and vengeance was weakened by a deliberative political process and by crime victims' own moral protest described below.

The CPA had repressive elements, to be sure. With its civil commitment provision, some sex offenders could be confined for life against their will and after having already served a prison term. As such, Washington paralleled developments in the California case as crime victims groups supported this highly coercive sanction. In this sense, I agree with Reference ScheingoldScheingold et alia (1994) that victim participation contradicted some of the basic principles of restorative justice or republican criminology. That is to say, crime victims demanded increased penal sanctions along with other potentially repressive measures such as sex offender registration, impinging on the rights of criminal offenders.

However, what makes Washington distinct is how the civil commitment provision played out in reality and how Washington's deliberative process diluted a strictly punitive approach to sex crimes. Washington adopted a compromise position outlined below, a middle ground unavailable in the California case, which emphasized polarization and winner-takes-all politics rather than compromise and broad public interest.

I suggest that the controversial civil commitment provision can be better understood as a pragmatic response to a mixed set of demands and a desire to avoid increasing penal sanctions across all crime categories. The task force responsible for the CPA did not want to introduce life imprisonment for “sexual predators.” To do so would have undermined the principles of proportionality that inform the state's sentencing guidelines, a reform enacted just five years prior to the sex offender debate (Reference MalengMaleng 1989). It would have also undermined the rights and liberties of all other criminal offenders since it would have required increasing penal sanctions across all crime categories. The civil commitment provision was drawn quite narrowly. Today, less than 1 percent of convicted sex offenders have been subject to civil commitment (Washington State Department of Social and Health Services 2006; Washington State Institute for Public Policy 2005a, 2005b). Between 2000 and 2004, for example, Washington processed more than 5,000 sex offender cases, yet only 226 were subject to commitment (Washington State Institute for Public Policy 2005a, 2005b). Civil commitment is not a mandatory penalty, and most convicted repeat sex offenders are sentenced to and released from prison. Washington also introduced the Special Sex Offender Sentencing Alternative (SSOSA), a noncustodial and treatment-oriented sanction (Revised Code of Washington 1994: 9.94A.120). Currently, there are more than four times as many sex offenders in the SSOSA program than are subject to civil commitment (Washington State Department of Social and Health Services 2006). These provisions mitigate the most coercive aspects of the civil commitment, a sanction that has not been widely used in practice.

By focusing our attention exclusively on the controversial aspects of the civil commitment provisions, we may miss some of the restorative and democratizing aspects of the CPA. The CPA changed the exercise of state power to incorporate crime victims into governance. That is to say, it institutionalized crime victim advocacy at the level of state government. Crime victims gained institutionalized access to government resources and government decisionmaking power. Working with crime victims and local communities, the Office of Crime Victims Advocacy continues to develop victim-oriented legislation and community programs that are oriented toward crime reduction and victim services rather than toward the punishment of criminal offenders (Washington State Office of Crime Victims Advocacy 2006). Note that in her analysis of crime control policies in Washington State, Reference MillerMiller (2001) found a similar dynamic: she found that community participation in the federal government's “Weed and Seed” program actually transformed the substance and trajectory of the program away from its punitive and risk management goals toward quality of life, education, and job-based programs.

By expanding victim services and victim participation in governance, the CPA was not an outcome based exclusively on the state's power to punish. Note that Washington rejected mandatory life imprisonment for repeat felonies and rejected some of the most coercive forms of state power: execution and castration. During the state senate Law and Justice Committee public hearings on the proposed legislation, some witnesses called for the death penalty for repeat offenders, and several state senators asked why the task force had not included provisions for the castration of sex offenders (Washington State Senate Law & Justice Committee Public Hearings [WPH], January 9–12, 1990). None of these provisions made it into the CPA. The CPA was an attempt to reconcile the rights of crime victims with the rights and liberties of criminal offenders. As with any moral calculus, the outcome was necessarily messy and complex.

So how can we explain this complicated set of outcomes? As noted above, I argue that crime victims' moral protest, angry and vengeful at times, softened some of its most vitriolic aspects through Washington's political process. In their assessment of blameworthiness and justice, crime victims recognized the pain and suffering of other victims, but they did so in a way that did not necessitate the absolute condemnation of criminal offenders. Unlike in California, crime victim advocates acknowledged the importance of the rights and liberties of criminal offenders. Some went as far as to invoke Cover's description of the criminal justice system as an “organized practice of social violence” to warn against lingering impulses toward vengeance (Robert Cover, quoted in Reference BoernerBoerner 1992:576). Cover called attention to the brutality and violence inherent in the use of state power against its citizens. Boerner, a law professor who participated in the debate, recalled the influence of Cover's warnings against “the intentional infliction of harm to fellow human beings” on the substance and trajectory of the CPA (1992:576).

I suggest that the crime victims' debate over sex crimes expressed a kind of moral pluralism—one that recognized and tried to reconcile competing moral principles. But more important, I argue that crime victims' moral protest had to fit with the state's deliberative way of doing politics and pragmatic way of solving policy problems in order to gain some kind of benefit or success in this political context.

Washington's deliberative political process depends on intensive civic engagement and public debate. As noted above, it is indicated by decentralized political authority, relatively high rates of civic engagement and social trust, and a more conciliatory mode of conflict resolution. Through community meetings and hybrid state-citizen commissions, ordinary people, interest groups, and state officials can debate different policy responses in open forums that emphasize negotiation rather than winner-takes-all politics. These institutionalized mechanisms can under certain conditions facilitate compromise, if not reconciliation, between opposing views and pacify the needs and interests of a broad range of social groups. In the words of Governor Gardner, “balance is the key word” in a “civic and political culture that values every citizen” (Reference GardnerGardner 1991: n.p.). I argue that these features encourage a particular way of doing politics, a way that tries to and sometimes succeeds in promoting empathy rather than antipathy across diverse social groups. By doing so, a deliberative process can defuse social conflict and instead reinforce social connectedness and norms of reciprocity, features that tend to be associated with more inclusive and less coercive public policies.

In Washington, widespread public participation significantly shaped the tone of the debate and substance of the proposed sex offender legislation. Within two days of the trigger event, Governor Gardner and key state senators called for statewide public hearings. Both the executive and legislative branches refrained from the opportunity to seize control over sex offender legislation and refused to draft hasty legislation fueled by the initial shock and anger of the sensational crime. Instead, the state took steps to ensure a long-term process that incorporated a wide range of citizens, crime victims, victims' advocates, state officials, and various professionals. As the Senate majority leader explained, “[y]ou don't rush out there and do anything without careful consideration” (quoted in Reference BoernerBoerner 1992:539). State elites opened up decisionmaking to citizen participation through public hearings and with the creation of the governor's Task Force on Community Protection.

Despite crime victims' angry protest on the state capitol, grassroots activists decided to work with state officials to develop public policy rather than continue to oppose the state's criminal justice policies. Governor Gardner created the Task Force on Community Protection to lead the state's response to sex offenders. The task force was made up of a mix of citizen representatives; political representatives; criminal justice personnel including the secretary of the Department of Corrections, the president of the Washington Association of Sheriffs and Police Chiefs, a legal aid lawyer, judge, and law professor; social workers; crime victim advocates, including the chair of the Rights of Crime Victims organization; and three prominent crime victim activists: Helen Harlow, leader of the Tennis Shoe Brigade and mother of the victim; Ida Ballasiotes, leader of Friends of Diane, whose daughter was killed by a convicted sex offender; and Trish Tobias, leader of Family and Friends of Missing Persons and Violent Crime Victims.

Norm Maleng, King County prosecutor and long-time public figure in Washington State politics and chair of the task force, described the impact of the crime victim advocates on the task force:

By participating on the task force, crime victim advocates gained significant access to state government, gained decisionmaking power, and increased their influence over the substance of anticrime public policy.

General citizen participation at the statewide public hearings also played an important role in shaping the substance and trajectory of the CPA. In his task force report, Maleng described the impact of the public testimony:

These kinds of public hearings, especially town hall forums, I argue, can bring about a form of deliberative, communicative action (compare Reference HabermasHabermas 1981) and promote consensus politics. Deliberative action is a specific kind of political practice that allows for an open exchange of ideas among citizens and between citizens and the state; deliberation can give “voice” to individuals rather than organized special interests, encourage the expression of different points of view, and push these differences toward compromise. In his analysis of deliberative forums in Britain, criminologist Reference GreenDavid Green found that participants were likely to express more “liberalizing” views of crime and punishment and decrease their demands for custodial sanctions and retribution after discussing the issues with other people (2006:134). He suggests that given the opportunity and resources, ordinary people can indeed make informed decisions about crime control policy and do so in ways that are not inherently punitive. Similarly, Reference JohnstoneJohnstone (2000) argues that through participation citizens can learn more about the negative effects of penal sanctioning and quite possibly develop a broader sense of the public interest. Deliberation can give participants, particularly ordinary people, a sense that their ideas, interests, and needs are taken seriously by state elites and politicians. Open deliberation can also promote a more positive view of government since citizens can speak directly to state officials. In this kind of forum, the state is held accountable directly to individuals and social groups in civil society rather than exclusively to special interests that dominate politics (Reference KnackKnack 2002). Of course, there is also the possibility that this dialogue and accountability are more apparent than real. Town meetings can be stage-managed and controlled. Individuals who speak up have their own “special interests,” and the dialogue may not actually lead to any concrete results. Public testimony can also be co-opted by state elite and used in ways counter to the intent of the citizen speakers.

That said, the deliberative process may have had a cooling effect on crime victims' righteousness as it exposed them to other people's experience and concerns in public forums. As a conciliatory mechanism, a deliberative process reflects but can also bring out a sense of mutual obligation and social trust among participants, encouraging empathy and norms of reciprocity. Not only did the prominent, vocal, and outraged crime victim representatives Ballasiotes and Harlow join the task force and cooperate with officials they initially blamed for the brutal crime, but they also participated in the public hearings. By doing so, they were exposed to a broader set of interests and demands of the Washington public. For example, crime victims and their families testified at the same hearings as family members of convicted offenders, experts in crime victim services, and criminal justice officials. Kathy Taylor, one such family member of a convicted felon, expressed her own “distress” and worry about the negative effects of long-term incarceration; she personalized and humanized the idea of the convict by discussing how her husband yearned for a second chance and desperately wanted to be a “productive” member of society (WPH 1990). Several victim services advocates such as Karen Bachelder, Joanne Dufelle, and Kurt Clevin of the Washington Association of Defense Attorneys testified about the “vicious cycle” of abuse and revictimization; they asked for more funding for treatment to prevent those who had been abused from becoming criminal offenders and the need for “primary prevention” to limit the amount of abuse in the first place (WPH 1990). A mother of a young offender who had been molested at a young age similarly testified; she explained, “[t]hey're victims and they are not being helped and end up being offenders” (WPH 1990).

The deliberative process not only allowed for a broad range of voices to be heard in public forums, but it also did so in ways that provided some official recognition of those diverse views. It also allowed crime victims to express their own frustration, anger, and indignation in ways that were taken seriously and integrated by the task force. It allowed for the inclusion of a wide range of concerns and emotions, including disgust and compassion.

In some instances, crime victims tempered some of their more punitive positions, cooled some of their passions, and edged toward compromise. For example, although Ballasiotes supported the most-punitive aspects of the CPA, she also expressed her own doubts about the community notification provision of the campaign as it infringed upon the liberties of ex-offenders. Reflecting later upon the provision, she explained:

She also explained to the state senators debating the bill that the task force's proposal was a “consensus piece of work” that not only reflected multiple interests but also left out some of the demands for more-punitive policies (“stronger things”) in terms of sentencing (WPH 1990).

Also consider how Harlow, invested with authority to speak for victims, expressed her indignation and demands for retribution:

But Harlow also took care to find common ground. She framed her son's victimization as a shared experience rather than as a highly individualized one. After the sexual mutilation of her young son, she declared, “[m]y son is every child” (quoted in Reference BoernerBoerner 1992:536). Rather than frame victimization as an isolating experience or an attack on the integrity of personhood—an attack that takes the violated and injured self outside common experience (Reference ScarryScarry 1987), Harlow reported her son's speedy recovery and desire to return to the routine of everyday life. Similarly, in one of her many public statements, Ballasiotes linked her own experience and the individual experiences of other crime victims with the broader public interest. Indicating other crime victims, she declared, “We are the public” (WPH 1990). Crime victims eventually began to speak for other crime victims and the public in ways that went beyond their own immediate experience.

Although Harlow channeled her anger and frustration toward criminal offenders as in the California Proposition 8 campaign, she also insisted that the state “find a solution” to sex crimes. Harlow wanted to “help everyone focus the different factions and ideas that will help the system” (quoted in Reference BoernerBoerner 1992:536; emphasis added). In these telling moments, Harlow simultaneously implicated the state by pointing out its failure to prevent her son's attack and offered a systematic rather than individualized explanation of criminality. Later during the state senate hearings, one senator concurred with this view of systemwide failure: “[t]he system has been failing the people” (WPH 1990). Describing the CPA, Harlow later explained, “[t]he intent was not to fire people up and get a vigilante mind-set … It was to inform people, for safety purposes, so they could take precautions” (quoted in Seattle Post-Intelligencer, 30 Oct. 1990, p. A1).

Similarly, other crime victims, victims' advocates, and Governor Gardner put forward a broader view on the causes of sex crimes linking them to social conditions. Two of Harlow's neighbors who found the boy became involved in the Pierce County Sexual Assault Center running workshops to explain how the “roots of violence” are embedded in broader social conditions (Seattle Post-Intelligencer, 29 Jan. 1990, p. B1). Governor Gardner referred to sex crimes as part of the “disease of violence” in contemporary society (Reference GardnerGardner 1990). In his 1990 State of the State address, Governor Gardner linked the need to protect crime victims with the need to respond to underlying causes of violence and poor social conditions:

From these illustrations, we can see that the way crime victims and their advocates constructed the problem of sex crimes as a result of poor social conditions and cycles of violence influenced to a certain degree the way in which the state responded.

Moreover, according to task force chair Maleng's final report to the governor, crime victims and ordinary citizens' testimony shifted the task force's agenda away from its exclusive focus on sensational crimes toward a broader concern with sexual abuse, sexual assault, and family violence (Reference MalengMaleng 1989). After the hearings, the task force also changed its agenda from the confinement of repeat violent sex offenders to include the public's concern for crime prevention and treatment approaches to sex crimes, especially for young offenders who may have been caught in “cycles of violence” (Reference MalengMaleng 1989). The task force eventually proposed increased penalties for sex offenses, yet it also proposed a major expansion in the state's and local counties' victim services and the creation of a centralized crime victims bureau to give victims a “permanent voice in state government” (Reference MalengMaleng 1989:II–24).

In Washington State, crime victims' moral protest helped bring about sex offender legislation, which probably would not have passed without their efforts. However, as illustrated above, Washington State's political context, particularly its deliberative political process, had a major influence on the substance and trajectory of sex offender legislation. By encouraging citizen participation at all levels of the policymaking process, the state opened itself up to a broader set of demands than it had originally set out to address. Crime victims' participation shifted the state's original focus on the confinement of repeat violent sex offenders toward an expansive view of sexual assault and sex abuse. Intensive civic engagement forced the state to develop much broader public policies concerning crime victims at a much greater expense than it had originally considered, especially with the creation of the Office of Crime Victims Advocacy. The deliberative process allowed for crime victims and their representatives to express their outrage, resentment, and remorse, and it did not entirely eliminate victims' demands for coercive control of offenders. However, the more conciliatory mode of conflict resolution helped weaken some of the crime victims' impulses toward vengeance and punitive penal sanctions by recognizing the rights and liberties of criminal offenders. I also suggest that the state's relatively high level of social capital and social trust enabled polity members to express some sympathy for criminal offenders as they considered systemic (e.g., “cycles of violence,”“symptoms of poverty”) rather than individualized causes of crime. They may have felt some level of social connectedness even to those most socially marginalized, criminal offenders. Washington State's political process undermined the full force and legal expression of crime victims' vengeance. The CPA was a complex piece of legislation that represented a compromise between pain and liberty at the center of modern criminal justice.