Crime, Judgment, and America, on PBS

In the early 1990s, I worked as a law student intern in the San Francisco Public Defender’s Office. This meant visiting pretrial detainees in the Hall of Justice at 850 Bryant Street, a forbidding, seven-story concrete block that was an apt physical manifestation of what prison-reform advocates like to call “the carceral state.” One of our clients was a Salvadoran teenage gang member who had slashed his stepfather’s throat with a box cutter. He was, in a limited sense, quite likable. Among the many ironies of criminal defense work is that the most serious offenders are often the most relatable.

Given the violence that dominated our Salvadoran client’s life, it seems very likely that he is dead now, though he would be only about 52 years old. If he is dead, I wonder—what killed him? The immediate cause, I imagine, was probably that he was shot, stabbed, bludgeoned, run over with a car. The broader forces that led to his death are uncompassable. A forensic investigation would take you back to El Salvador, down the Mission Street Corridor, into the state prisons at Vacaville and San Quentin. And the answer, as they say, lies at the bottom of a bottomless well. For me, he will always be the cagey, funny 19-year old who told me, “Jail is easy to understand, man. Whatever goes on in your world, just turn it upside down.”

Crime and Punishment in America, a four-part, eight-hour documentary that premieres on PBS on November 16, is directed by Lynn Novick and produced by Ken Burns. The two were most recently co-directors, under the Florentine Films banner, of the admirable The Vietnam War (2017) and Hemingway (2021). Crime and Punishment in America, credited to Skiff Mountain Films, surveys the history of criminal justice from the precolonial period to the present. “How,” the film’s press release asks, “has justice been meted out in a country founded on ideas of liberty, equality and the rule of law, yet haunted by histories of slavery, segregation, and surveillance?” Crime and Punishment in America takes on a worthy if intractable subject. It has all the virtues of scope and technique one expects of Florentine Films. It also suffers from an excess of moral confidence where ambivalence and modesty should govern.

Since before Eastern State Prison opened in Philadelphia in 1829 as the first purpose-built modern penitentiary, the United States has been caught in a trap. As Crime and Punishment reminds us, violence has been a feature of American life from the beginning. Slavery was inherently violent. The settling of the West was violent. Policing has often been badly organized and corrupt. Over the course of our history, we have at times responded to crime with harsh regimes of punishment: public floggings and executions; solitary confinement or degrading conditions of confinement; draconian sentences. Each choice seemed logical in the moment, and each created unforeseen consequences.

Despite periodic efforts at reform, we remain stuck in a labyrinth of our own construction. To say that we have a harsh criminal justice system may be true but also lends it a coherence that it does not really possess. American criminal justice embeds our best and worst impulses and enacts them in both legitimate and sometimes excessive exercises of state power. The prison abolition movement is neither practical nor feasible, but the fact that the United States confines one-fifth of the world’s prisoners is nothing in which to take pride. And rationalist, technocratic solutions will never be completely satisfying when it comes to matters of human liberty.

The criminal justice system has two operative modes. The first is identification, adjudication, and incarceration of people who commit serious crime. This is a permanent government function and is generally regarded as legitimate, at least in principle. The second is a policy apparatus responsive to political actors, to demographic trends, to news headlines and moral panics. Novick’s film focuses to a considerable extent on this second story, especially crime as it intersects with political power.

A degree of cynicism about some of the actors in this system may be warranted. Some police departments are better than others. Locking people up is usually a good way to get elected. In some times and in some places, American prisons have indeed become tools of oppression. And yet one often feels that core questions—When does the state have the right to deprive citizens of their liberty? What are the proper goals of incarceration?—remain tantalizingly out of reach in Crime and Punishment in America, despite the film’s ambitions.

Novick embraces a familiar and in some ways hopeful version of American history, in which a nation beset by racist attitudes slowly reaches upward toward the better angels of its nature. In this framing, the current atavism to be overcome is “mass incarceration,” understood to be directed principally toward the black and poor. To say that race has played a substantial role in American history, however, is different from claiming that race remains the dominant causal factor in shaping our prison system.

Indeed, when it comes to race, incarceration is a double-edged sword. Imprisonment takes someone’s son or father out of his community. This has real costs that we have sometimes been too slow to recognize. When we take a violent felon out of a neighborhood, though, we are also making it safer and more livable for those who remain, including their families. This is especially the case for black Americans, who are more than eight times as likely as whites to become victims of homicide. Race is the bête noir of American politics, and it lurks in the background of every criminal justice debate. Racial guilt and racial fear alike distort our judgments.

If Crime and Punishment in America has a putative star, it is Reginald Dwayne Betts, who served time for a carjacking he committed as a teenager and later graduated from Yale Law School and published several volumes of poetry. Betts can hold the camera, and his personal story is compelling. What broader lessons we might take from that story are, however, not clear. Prison did not offer him much in the way of rehabilitation, but neither was he brutalized. And he is an outlier in both his outcome and in his unusual aptitudes. Betts argues, in a typical clip, “You have these moments where you fall asleep in the dream of your enemy. . . . I don’t think anyone grows up in the world and thinks, ‘What is the most effective way for me to hurt somebody?’” The first half of that statement is close to nonsense; the second half takes a view of human nature not supported by experience.

One of the things Florentine Films has always done exceptionally well is to find the slightly obscure witness who brings a subject into focus. Crime and Punishment in America is at its best when it focuses on front-line testimony. Stephen B. Walker, a retired California corrections officer, brings a human dimension to a profession that is easily vilified. Rahsaan Thomas was raised in Brownsville, Brooklyn during the 1980s, served 23 years for murder before being granted clemency in 2023, and is now a journalist and filmmaker. Thomas embodies all of the system’s contradictions. He is intelligent, charismatic, calm and measured in demeanor—but he killed someone.

At times, the film wanders. A section on Native American tribal sovereignty belongs to another narrative entirely, and the story of Ossian Sweet, a black man tried for murder in 1925 after shots were fired from his Detroit home into a surrounding mob of whites, goes on too long. Even so, there is something almost magical about giving a complex subject exhaustive treatment, as Florentine has often sought to do. The clash of perspectives does its work. Your unconscious defenses weaken; you start to revisit your priors.

Prisoners come from families and neighborhoods to which they will return when they are released. Brutalizing them in the name of order is bad policy and compromises us morally. Here, at least, there is good news: American prisoners live in cleaner and generally safer environments than they did at the time of the 1971 Attica riot, which the film recounts at some length. Conditions vary dramatically across jurisdictions; the Justice Department sued the state of Alabama in 2020, alleging that widespread violence was tolerated within its prisons. But the prisoner who simply wants to serve his sentence in peace and start over has a better chance today of doing so.

The voices of crime victims and their families are not given much weight. Their stories are, in a sense, generic: their loved one was murdered; their own suffering continues. In a narrative form, this makes them inconvenient. Yet by turning them into abstractions—by arguing, in effect, that crime is something that happens to society rather than to specific individuals—Crime and Punishment in America creates a pervasive imbalance: most of the human interest is on the prisoners’ side. I wish that the voices of police officers were more prominent. Former NYPD Commissioner William Bratton provides a useful perspective on the professionalization of modern policing, but I would have liked to hear from someone wearing a badge.

One does not envy sentencing judges, especially in cases of violent crime. A judge imposing a very long sentence may never know if he’s right, because the defendant remains confined. A judge who, with a hopeful presentencing report in hand, takes a chance on a defendant he believes capable of rehabilitation will only find out he was wrong when that person commits a subsequent headline-grabbing offense. Novick gives us a thoughtful former federal judge, Kevin Sharp, who resigned in protest of mandatory-minimum sentencing laws adopted in the 1980s. I would have liked to hear as well from a judge who bet wrong on a seemingly clear-eyed defendant.

Crime and Punishment in America asks us to consider whether retribution is a morally respectable motive and answers its own question in the negative. It is true that forgiveness is the better path for us spiritually and that all the Abrahamic religions ask their members to forgive. That does not mean that the sense of violation that crime victims experience should go unrecognized. We ask the victim to take those feelings and give them to the state; the punishment that the state inflicts provides recognition if not redress. It is only then that the victim is free to grant forgiveness. A victim unacknowledged is likely to dwell in his injury forever. A just society must be merciful, but mercy cannot relieve us of the terrible burden of judgment.