Journal of Criminal Justice and Popular Culture Copyright © 1994 Journal of Criminal Justice and Popular Culture
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ISSN 1070-8286


Journal of Criminal Justice and Popular Culture, 2(5) (1994) 99-112

"Defining Deviancy Down": How Senator Moynihan's Misleading Phrase About Criminal Justice Is Rapidly Being Incorporated Into Popular Culture *

Andrew Karmen **
John Jay College of Criminal Justice
The City University of New York

ABSTRACT

"Defining deviancy down," the catchy alliteration coined by Senator Daniel Patrick Moynihan (D., N.Y.) is the 1990s equivalent of "permissiveness" in political rhetoric about crime and criminal justice. The term implies that the problem is public tolerance of intolerable behavior and that the solution is resurrecting traditional standards by stepping up repression of underclass conduct. But this critique sidesteps the possibility that some activities formerly considered deviant which are now widely accepted were unjustly stigmatized in the past. Also totally ignored is the opposite tendency of "defining deviancy up," in the sense that deviant behavior that went unpunished in the past is now subject to penalties. Police brutality, hate crimes, date rapes, wife-beating, child abuse, indiscriminate corporal punishment, and other depredations by persons of greater power and privilege against people of lesser status are no longer considered acceptable. A recognition that the balance of power has shifted in a more egalitarian direction corrects Moynihan's one-sided and negative depiction that standards of conduct in American society have drifted downward in the last generation.

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* This article is a revision of a paper delivered at the meeting of the Northeast Association Of Criminal Justice Sciences in Newport, Rhode Island, June 1994.

** Dr. Andrew Karmen is an associate professor in the sociology department of John Jay College of Criminal Justice. He received his Ph.D. in sociology from Columbia University in 1977. He is the author of Crime Victims: An Introduction To Victimology, 2nd Edition (Wadsworth, 1990) and has written articles about victims, auto theft, vigilantism, drug abuse, police use of deadly force, and the 1950 Rosenberg atom spy case. [End page 99]

"Defining deviancy down," the clever alliteration coined by Senator Daniel Patrick Moynihan (D., N.Y.), is rapidly becoming part of the political rhetoric heard in discussions that are currently raging about the crime problem. Moynihan's phrase is catching on quickly, and will surely appear in textbooks for courses in Introduction To Criminal Justice, Deviance, and Criminology. Soon, students and faculty will be employing the term in freewheeling debates in college classrooms. Clearly, the Senator has struck a responsive chord in some circles. Leading commentators are giving him credit for coming up with an expression that captures the essence of one of the most disturbing trends in the United States today, the decline in the "quality of life," due in large part to the cancerous spread of the crime problem.

The rapid incorporation of this phrase into popular culture is an unfortunate development. The cynical, pessimistic, and anxiety-ridden spirit of the 1990s accounts for its glib acceptance. "Defining deviancy down" is a seductive expression that masquerades as a self-evident, uncontestable truism, but it is actually a loaded phrase with severe limitations. Although it contains a kernel of truth, the insights come packaged with a highly politicized coating. The expression is not intended to be an objective, impartial, unbiased social scientific description of a process or trend bringing about social change. It is a partisan campaign slogan which is meant to serve as a weapon to beat down the opposition in debates over social policy. The way the phrase is applied by the Senator and his allies is highly selective; if all the examples that fit the phrase's formulation were enumerated, its political impact as a "vote getter" would be blunted, if not entirely lost. Furthermore, if more people became aware of its opposite, "defining deviancy up," then "defining deviancy down" would be exposed as a misleading, one- sided, unidirectional mischaracterization of the contemporary social and political scene.

A. Senator Moynihan's Argument

Moynihan's (1993) argument, put forward in his article, "Defining Deviancy Down," was summarized in its subtitle, "How We've Become Accustomed To Alarming Levels Of Crime And Destructive Behavior." Moynihan puts forward the thesis that, "...over the past generation, the amount of deviant behavior in American [End page 100] society has increased beyond the levels the community can 'afford to recognize' and that, accordingly, we have been redefining deviancy so as to exempt much conduct previously stigmatized, and also quietly raising the 'normal' level in categories where behavior is now abnormal by any earlier standard. This redefining has evoked fierce resistance from defenders of 'old' standards, and accounts for much of the present 'cultural war' such as proclaimed by many at the 1992 Republican National Convention."

Moynihan (1993) offers a simple typology with three "categories of redefinition." The first is "altruistic" redefinition by "good people who try to do good," however unavailing in the end. He illustrates this tendency by recounting the deinstitutionalization of mental patients, who now roam the streets and don't get the care they need. The second type, "opportunistic" redefinition, Moynihan identifies as allowing deviancy to grow in order to justify a transfer of resources, including prestige, to those who control the deviant population. Interest groups develop strategies to redefine the behavior in question as "not all that deviant, really." To illustrate this type of "defining deviancy down," Moynihan raises the issue with which he has long been identified, the increase in the percentage of children born in the United States to families headed by an unmarried mother. The third, and most relevant to criminologists and criminal justice practitioners, is the "normalizing" redefinition which Moynihan likens to psychological denial. He draws on the work of sociologist Kai Erikson (who applied Emile Durkheim's insights about deviancy) to derive the proposition that "the number of deviant offenders a community can afford to recognize is likely to remain stable over time."

Moynihan quotes from his own article in the magazine "America" (1965), in which he predicted that a community that allows a large number of young men to grow up in "broken families" dominated by women is asking for chaos. "Crime, violence, unrest, unrestrained lashing out at the whole social structure" has come to pass, just as he warned, and yet the public's response is curiously passive. Although the crime problem from time to time is at or near the top of opinion polls as a matter of public concern, Moynihan cites a judge's observation that "the slaughter of the innocents marches unabated." Since there is no expectation that things will change, in effect, the crime level has been normalized. To clinch this point, Moynihan cites news media coverage to show [End page 101] how incidents of mass murder today routinely exceed the death toll of the notorious St. Valentine's Day massacre of four gangsters in 1929, and how the shooting of a teacher is normalized when it is called the "first" of the current semester, implying that more will follow. The senator concludes his article with these political characterizations: Liberals have traditionally been alert for upward redefining that does injustice to individuals. Conservatives have been correspondingly sensitive to downward redefining that weakens societal standards. Given the manifest decline of the American civic order, too many people are getting used to a lot of behavior that is not good for a society; more people should become alarmed at the "trivialization of the high crime rate."

B. Mainstreaming Moynihan's Terminology

After his ideas appeared in the Winter, 1993 issue of the American Scholar, the entire article was reprinted in the Winter 1993 issue of the American Educator, a magazine sent out [free] to teachers and professors affiliated with the American Federation of Teachers. Soon thereafter, his phrase started to show up in the criminal justice vocabulary of popular culture. The following examples show how quickly the expression was picked up and mainstreamed into popular culture, and how rapidly it entered the political fray (at least in the New York City area):

1) The editors of the New York Times (1994) used the phrase to condemn the Mayor's interference in the running of the city's public radio station.
2) The Times columnist A.M. Rosenthal (1994) illustrated the term by pointing to cops who don't arrest brazen street level drug sellers and judges who preside over plea bargains in murder cases.
3) The editors of the New York Post (1994) employed the term while praising the police department's arresting of homeless men who clean car windshields.
4) New York's Mayor Giuliani (1994) used the term to explain why he ordered the police to go after these "squeegee pests" who allegedly urinate in public and spit at those who don't pay them. [End page 102]
5) New York's former Mayor Koch (1994) cited the acceptance of Louis Farrakhan's Nation of Islam as an example of "defining deviancy down."
6) New York's Police Commissioner Bratton (1994) used the term to justify his department's new get-tough policies.

C. The Policy Implications Of The Senator's Argument

Senator Moynihan offers no plan of action other than replacing indifference and resignation with outrage. As he notes in his concluding paragraphs, his fellow members of Congress are engaged in a kind of competition to think up new offenses that merit execution, and thanks to their financial support, prison cells are multiplying at a prodigious rate. Since he offers no directions, no alternatives, no way out, his dereliction of duty undermines the thrust of his entire analysis. Unless he has fresh ideas, his strident injunction of "No Surrender!" (the title of his similar article in the Summer, 1993 issue of the Manhattan Institute's City Journal) will incite the same old predictable results: emotional, counter- productive, excessively punitive over-reactions. Without a transcending vision of what is to be done, any calls to arms by Moynihan or others will simply stir up more of an outcry to lock up greater numbers of people for longer periods of time. This "cure" is rather unimaginative at a time when courts are clogged, jails are overcrowded, and prison construction is replacing new public housing. Furthermore, this "tough" talk and "hardline" approach undermines interest and support for experiments that are underway in community service, restitution, victim-offender reconciliation, house arrest, and other forms of intermediate sanctions and alternatives to incarceration. Demands for a "crackdown" end up as nothing more than thinly disguised class conflicts, in which the middle class rallies "to take back the city" from the underclass.

Evidently, Moynihan's "defining deviancy down" is the updated 1990s equivalent of "permissiveness," the buzzword of the 1970s and 1980s that seems to have dropped out of political parlance in recent years. As an epithet, "permissiveness" neatly summed up what many people found objectionable about the way the criminal justice system allegedly operated. It bestowed "unwarranted leniency" upon "undeserving" offenders, granting them second chances (suspended sentences, [End page 103] probation), short stays in "country-club" detention facilities, and early release (parole), among other "bleeding heart" and "muddleheaded" indulgences of "hardened criminals." "Defining deviancy down" captures this same disgust many people feel after several generations of supposed "permissiveness" have taken their toll: apparently there are "no standards anymore" and "anything goes." Actually, what Senator Moynihan is campaigning against used to be denounced by the phrases "coddling criminals," "being soft on crime," or "moral decay," and his exhortation of "No surrender" formerly was called "restoring law n'order."

D. Moynihan's Selective Application Of The Phrase

Moynihan's emphasis on the tendency toward downward redefinitions obviously has some basis in truth (Although Moynihan talks of a generation, in his discussions of mental patients and single mothers, he refers to conditions that prevailed in the mid 1960s). He is correct to point out that since the turbulent 1960s, some of the conduct that used to be widely stigmatized has gained greater acceptance in certain circles today, and particular individuals who would have gotten into trouble in bygone days are now largely left to pursue their own vices. Moynihan provides a good example: emotionally disturbed people who before the 1960s would have been warehoused in mental hospitals now are allowed to wander through the streets of big cities. But his analysis of why this occurred is superficial. He totally overlooks the economic underpinnings of decarceration, an experiment that gained support at a time when state spending for social services was sharply cut back (see Scull, 1984). Furthermore, he ignores the legitimate demands of the movement for mental patients' rights, their political agitation, and their court victories. Moynihan's other major example, unmarried mothers raising potentially delinquent youths, is more complicated and more controversial. But again, he fails to address seriously the consequences of the de-industrialization of the American economy, especially the shrinking number of steady, secure, well-paid blue collar jobs with adequate fringe benefits that previously shored up the working class male's role as husband, father, and breadwinner in traditional marriages.

Granted, Moynihan's phrase calls attention to a trend worth examining: the redefinition of what is tolerable and intolerable, which has been underway during the last 30 years, a period of rapid social [End page 104] change. But why limit the discussion to the rather short list he provides to dramatize his concerns? Even more interesting than the examples he cites are the examples he omits. Perhaps he leaves them out because mentioning some of these other illustrations of "defining deviancy down" would undercut the consensus he is trying to build to fuel the political mobilization that he desires. For instance, he does not mention the substantial rethinking regarding homosexuality. Gays and lesbians used to be much more stigmatized than they currently are, but Moynihan didn't dare call for a new intolerance towards same-sex relationships. In fact, except for condemning out-of- wedlock pregnancies, he side-stepped the entire issue of the "new morality" since the "sexual revolution" of the 1960s. It would be politically unwise to denounce lovers "living together in sin," young people engaging in pre-marital intercourse, authority figures endorsing safe sex, married persons committing adultery, and women getting abortions.

Moynihan also ignored certain trends over the last generation involving alcohol and gambling, in which pointing out how deviancy was defined downward would be politically unwise. Condemning the de-criminalization of public drunkenness across the country would remind people that the old practice of jailing skid row alcoholics -- "throwing" them into "the tank" to "sleep it off" -- was medically unsound, class biased, and downright inhumane. Denouncing the role of revenue- starved governments in "defining deviancy down" by legalizing the "forbidden pleasures" formerly monopolized by organized crime syndicates -- casino gambling, off-track betting, and lotteries -- would not go over well during the current "taxpayers' revolt." And yet, the partnership between state government and the gaming industry in commercially exploiting non-stop risk-taking/reward-seeking normalizes a type of addiction, pathological gambling, that is still widely defined as deviant behavior.

Moynihan's phrase implies that downward definition occurs across-the-board. That impression is inaccurate. Examples of the public's "holding the line" contradict the belief that these days people are allowed to get away with things they were punished for a generation ago. The most striking illustration is the declining support for the legalization of marihuana among high school and college students, not to mention their elders, according to public opinion surveys since the late 1960s (see Maguire, Pastore, and Flanagan, 1993: 226-227). In fact, as the rhetoric about the "war on [End page 105] drugs" continues unabated, the government has never been tougher on marihuana offenders (Schlosser, 1994), and state and federal penalties for selling and possessing other controlled substances are reaching unprecedented levels of severity.

So far, the criticism of Moynihan's phrase has centered upon the partisan way he applied it. He selected "politically safe" examples (in terms of their vote-getting appeal) and omitted controversial and divisive examples. Now, an even greater flaw in his thesis looms: the implication of unidirectionality. Not only did Moynihan turn a blind eye towards examples that did not fit his theory, he entirely overlooked the opposite tendency: "defining deviancy up."

E. Moynihan's Disregard Of The Opposite Tendency: "Defining Deviancy Up"

The most glaring shortcoming of Moynihan's discussion of recent trends is that he did not acknowledge that a countervailing tendency has been operating within American society simultaneously. Over the last 30 years, some groups and movements have been pushing hard to "define deviancy up." If defining deviancy "down" means ignoring, normalizing, tolerating, or even accepting behaviors that used to be stigmatized and punished, then defining deviancy "up" means discouraging, deterring, forbidding, and outlawing behaviors that used to be overlooked or tolerated.

There are many examples of behaviors that went unpunished in the past but are now subject to formal social controls, including civil lawsuits and criminal proceedings. To the groups and movements that fought for these changes, the new policies represent improvements and victories (at least on paper, and in theory; in reality, however, enforcement remains a problem).

Since the 1960s, the common theme running through campaigns to "define deviancy up" has been to hold people of higher, privileged status more accountable for their irresponsible, dangerous, and anti-social behavior vis-a-vis people of lesser or subordinate status. One way to describe the process of "defining deviancy up" is to note that certain groups of victims have been "rediscovered." "Rediscovery" refers to a process through which victims of harmful acts are able to improve their standing. The prefix "re" in re- [End page 106] discovery emphasizes that the victimization was known about for a long time, and was even outlawed ages ago. But the situation was allowed to fester until these victims were "rediscovered" by political movements and the news media, and organized into a movement by activists and self-help support groups (see Karmen, 1990).

For example, take the plight of children who are physically abused by their parents. During the 1960s, what had been called "cruelty towards children" was rediscovered, and these battered youngsters began to receive the attention and assistance that they deserve. Mandatory reporting requirements were imposed, child protection agencies were given resources and authority to investigate and bring charges, and court procedures were reformed to take into account the special needs of young witnesses. As a result, abusive parents began to be held accountable for their excessively punitive measures that were formerly considered appropriate, even necessary ("spare the rod and spoil the child"). Now, parents can no longer discipline children as they see fit. Contemporary standards of conduct backed up by law draw a line between appropriate methods of discipline and unacceptably harsh punishments.

A similar case can be made for the rediscovery of indiscriminate and excessive corporal punishment meted out by teachers against students. Although the U.S. Supreme Court ruled that corporal punishment did not violate the Constitution, the children's rights movement and the student movement used lawsuits and prosecutions to establish boundaries that teachers and deans cannot cross when dishing out paddlings and other physical punishments. In both these examples, subordinate groups (children and students) have gained rights and now are protected against excessive punishments dished out by members of relatively more powerful groups (parents and teachers) who used to impose their will with impunity but no longer can do so. Deviancy has been defined up, since what was tolerable as recently as the mid-1960s is no longer acceptable.

Once this pattern of defining deviancy up and rediscovering victims is recognized, many examples come to mind.

--With the coining of the term "elder abuse," senior citizens dependent upon their grown children no longer have to live in silence and fear if they are neglected, abused, or [End page 107]
financially exploited.
--With greater awareness of the plight of battered women, wives no longer have to endure beatings by their domineering husbands. Now they have recourse to the legal system, orders of protection, shelters, pro-arrest policies, and other criminal justice reforms.
--With the popularization of the term "date rape," women no longer have to acquiesce to the sexual impositions of men, especially on college campuses. The victims of these sexual assaults can seek support at women's centers and rape crisis centers, can bring their attackers before campus disciplinary committees, and can use the machinery of criminal justice to pursue arrests and prosecutions.
--With greater appreciation of the threat posed by drunk drivers, DUI and DWI offenses are taken much more seriously these days, and those injured in crashes can exercise the rights of crime victims, which exceed the rights of accident victims.
--With heightened consciousness about sexual harassment, subordinates no longer have to put up with the innuendos, lewd suggestions, or explicit ultimatums made by people higher up in the organization. The perpetrators of harassment can be sued in civil court.
--With the recognition of hate-motivated bias crimes, members of minority groups no longer have to endure acts of intimidation and terrorism by bigots from more powerful groups.
--With the expansion by the Supreme Court of the category of "defendants' rights," the most dramatic of all the shifts in the balance of power has occurred. Landmark decisions have improved the relative standing of accused persons and of convicts vis-a-vis agents of the state. The police are not allowed to beat suspects whom they take into custody and cannot give them the "third degree" during interrogations, as they did routinely in the past; today police brutality is taken more seriously by civilian complaint review boards and by judges and juries in criminal and civil courts. Similarly, guards cannot beat prisoners [End page 108]
as they used to do, without administrative and legal repercussions. The attempts to hold officers of the law more accountable for any excessive use of their legitimate authority to employ force represents one of the clearest examples of how deviancy has been defined upward.
In every one of these examples, abusive behavior by persons in more powerful and privileged positions that was considered tolerable or acceptable just 20 or 30 years ago is currently forbidden by law and punishable in criminal or civil court.

F. The Interplay Between Tendencies To Define Deviance Upward And Downward In The Future

Moynihan chose to direct all his attention toward the downward drift of accepting as "normal" behavior that used to be considered abnormal. He railed against what he saw as apathy, indifference or resignation on the part of the media and public. He offered no new solutions and conceded the likelihood of punitive impulses in response to his battle-cry, "No surrender." In emphasizing just one side of the equation, Moynihan drew an overly pessimistic picture of the decline of standards and the decay of the moral order. He overlooked the opposing tendency in American society: to hold more people accountable for their behavior -- different groups of people, of higher standing and greater power in most cases. He failed to see how the balance of power is shifting in a more egalitarian direction. Harmful behavior by people in positions of responsibility and trust is not tolerated like it used to be. Many groups of victims, whose plight was overlooked and whose needs were neglected, have been rediscovered. Many people support "defining deviancy up" when it comes to police brutality, guard brutality, sexual harassment at work, date rape, wife beating, corporal punishment in schools, and child abuse.

As Senator Moynihan noted at the very outset of his article, Emile Durkheim (1966) observed more than a century ago that "crime is normal" in the sense that no society can be free of illegal activities, that lawbreakers serve a function by calling attention to the line between deviancy and normality and by providing an internal enemy for law-abiding folks to rally in solidarity against, and that if "serious" crime didn't exist it would have to be created. Kai Erikson (1966) advanced this line of thinking, and [End page 109] argued that deviance is not a property inherent in certain forms of conduct but is a judgment imposed by an audience. The rate of deviation in a community was, at least in part, determined by the size and complexity of its social control apparatus, roughly indicated by the number of its prison cells, hospital beds, policemen, psychiatrists, courts, and clinics. The conflict school of thought and labeling theorists go even further, and develop the relativist argument that deviance is merely a designation that elicits condemnation when successfully imposed upon individuals and their activities by more powerful persons, groups, and organizations. Defining deviancy upward or downward reflects boundary maintenance, a periodic process of drawing the line between tolerable and intolerable behavior. Stigma contests indicate that redefinitions are being attempted, and break out whenever deviant groups fight for respectability and acceptance, or when the activities of formerly respectable groups are re- evaluated. Moral entrepreneurs contribute to the redefinition process by crusading against perceived evils, sounding an alarm, mobilizing their followers, and translating their political power into legislation. The law is wielded as a weapon in the highly politicized, high stakes game of trying to impose standards of conduct. The machinery of criminal justice serves as a formal mechanism for those in power to try to control the behavior of others, if informal methods fail to deter condemned acts.

The future remains a battlefield between what is and what could be and should be, between haves and have-nots, between those in charge and those seeking to regain control over their own lives. The result is a power struggle that takes the form of a cultural war over America's "changing mores." Social conflicts over wealth, power, prestige, and privilege are the driving forces that bring about the redefinitions of what is deviant behavior and the rediscoveries of victimized groups. In years to come, many people will lament loudly that deviancy has been defined downward, and that "There are no standards anymore; 'they' are getting away with conduct that never would have been allowed in the good old days." But other people will complain quietly to each other that deviancy has been defined upward, and that "Standards are much too high these days; people like us can't do that any more without getting into trouble." [End page 110]

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