Law Life: America's frontier justice

By Kevin Weatherly
BridgeTower Media Newswires

The hanging judge looms large over American criminal law.

That’s not precisely how Michael Tonry, the University of Minnesota law professor recently awarded a Guggenheim Foundation fellowship, describes the thesis of his forthcoming book. But it’s not so far off that mark.

He balks a bit at the idea, mostly because most judges actually try to do right by the law. But Tonry, who was awarded an undisclosed sum to work on a book about the pervading influence of the American frontier on the U.S. criminal justice system, says judges in the United States are trapped in a system built by powerful historical forces.

Where the “hanging judge” motif connects, Tonry said, is in the way that American courts, police and prosecutors tend to act in ways that make the U.S. criminal justice system, for Tonry’s money, the harshest in the developed world.

The causes of that are both historic and cultural, he says. But there is one force that overwhelms them all, he said.

“I think the frontier is what pulls them all together,” he said in a recent interview.

Tonry said he hopes the book he is writing will offer a new and original account of the forces that have made the contemporary American justice
system “systematically unjust, unprecedentedly severe and largely indifferent to defendants’ and offenders’ human dignity.”

“Neither sympathy nor empathy are powerful motivators in contemporary police departments, prosecutors’ offices, courts or corrections systems,” Tonry wrote in his September 2020 Guggenheim fellowship prospectus.

The book he is working on aims to figure out and explain why.

Cross currents

The United States is perhaps the only nation, Tonry says, where a police officer would feel compelled to point a Taser at a young man pulled over in traffic for the administrative infraction of driving with expired tabs.

It is a near certainty, in his view, that America is the lone country where that young man would die because the Taser turned out to be a handgun.

The 75-year-old professor, whose vast body of work touches on law, philosophy, history and public policy, thinks he has hit on unique formula cross currents that have collided to create the modern American criminal justice landscape. There are four of them. They include:

The American frontier

Tonry points to the work of historian Frederick Jackson Turner as a touchstone. Turner’s 1893 paper, “The Significance of the Frontier in American History,” stressed that the roots of contemporary American democracy formed on the frontier.

Turner’s thesis stressed the importance of egalitarianism and individualism, pioneers’ disinterest in high-brow culture and their reliance on violence to settle disputes. Turner also emphasized settlers’ entrepreneurialism, energy and determination. His “frontier thesis” rapidly became a dominant theory
in academic circles and became a leading shaper of popular opinion about America and its roots.

But what Turner ignored, Tonry says, was the fatalism that accompanied the frontier mystique.

Turner downplayed the misery present all along the shifting lines of the American frontier. Little pity was spared, by Tonry’s reckoning, to those who froze to death trying to homestead on the plains, to the hanged man who might have stolen a horse, or to the pilgrim who starved or died of disease along the wagon trail.

The most distinctive part of the Turner frontier thesis, to Tonry, is not its celebration of success, Tonry said.

“It’s the acceptance of failure,” he said.  “It’s the idea that, well, there is going to be a lot of human suffering and failure and death. But that’s just how it is—it’s the price we pay for the glory of individualism, economic self-sufficiency, progress and capitalism.”

That feeling—that the loser gets what he deserves—pervades the American criminal justice system, Tonry said.

Race relations

This topic could make for a book of its own. In fact, in Tonry’s career, it has. His 1996 book, “Malign Neglect: Race, Crime and Punishment in America,” continues to shift copies 26 years after it was published.

The historical intersection of race and criminal justice has been well examined over the years, Tonry said. Where he thinks his project veers into new territory is in his plan to explore the connection between the frontier thesis and its role in shaping attitudes toward race. That would take in topics like
the displacement of Indian tribes, and the abuse of Blacks and Chinese on the frontier.

The seeds of those racial dynamics live on, the professor thinks, in lingering attitudes, born on the frontier, that continue exacerbating troubled race relations and to politicize prosecutions and sentencing.

Elections of judges, prosecutors

This is a phenomenon that Tonry says was born on the American frontier and later spread throughout the nation. Most countries, the professor says, do not elect their judges and prosecutors; they are instead chosen by central political authorities.

But that didn’t wash as the nation spread westward during the 19th Century, Tonry said. Small-town locals, suspicious of authority, grew resentful about governors and legislators making those appointments.

“There was a mass movement from 1820 to the 1870s,” Tonry said. “And three-quarters of the American states switched from central selection of prosecutors and judges to local elections. And we still have it with us.”

What it has led to, according to Tonry, is the politicization of those offices.

“Our judges and prosecutors respond to the ways that the political winds are blowing,” he said. “And they use their jobs as prosecutors and judges to position themselves for promotion to other kinds of jobs.”

In Minnesota, judges are a little more shielded from that effect than in some states, Tonry said.

Still, he remembers a conversation he once had with an unnamed Minnesota judge who described a difficult criminal case he was dealing with involving a young suspect. In normal circumstances, the judge told Tonry, he would have dismissed the case. As it was, the judge sentenced the suspect to two years in prison.

Why? Tonry said it’s because the judge was 18 months away from facing reelection.

“This was a decent person and he was just describing it as, you know, this is just the world,” he said. “That’s just the way it is. Even our judges aren’t insulated.”

Evangelical Protestantism

The fourth peg of Tonry’s thesis involves what he calls a “punitive moralism” that he traces back to the Puritans of the Massachusetts Bay Colony.

Its most purely refined form, Tonry said, is modern conservative Evangelical Protestantism. Like race relations and the decision to elect prosecutors and judges, he said, the contours of conservative evangelism were powerfully influenced by the frontier experience.

“Frontier values and their fatalistic acceptance of injustice and personal tragedy tie the other three strands together,” Tonry wrote in his Guggenheim prospectus.

Second winner

Tonry is only the second University of Minnesota Law School professor ever to win a Guggenheim fellowship. Professor Heidi Kitrosser received one in 2017.

Tonry is on sabbatical and does not plan to teach at all this year. He expects the work to be complete sometime in 2022.