Knowledge and decisions, p.41
Knowledge And Decisions, page 41
The racial and ethnic mixture of the American population poses still more dilemmas for any attempt to establish institutionalized "special" treatment for race or ethnicity as defined in categorical terms. About half the total American population cannot identify their ethnicity, presumably because of its mixture.1S7 About 70 percent of black Americans have some Caucasian an- cestor(s),"' and a leading social historian estimates the number of whites with some black ancestors in the tens of millions.18' Trying to undo history in this population is like trying to unscramble an egg. Doing justice to individuals in our own time may be more than enough challenge.
CRIME Criminal law is basically a process for transmitting and evaluating knowledge about the guilt or innocence of individuals suspected of crime. It is also a process for transmitting to actual and potential criminals effective knowledge of the costs of their crimes to others, and the willingness of those others to shift those costs back, in the form of punishments, to the criminals who created them.19' There are costs to the transmission of knowledge of individual guilt or innocence to the legal system, costs to individual defendants caught up in that system, costs to convicted criminals, and of course costs to the victims of crimes and to the general public whose anxieties and precautions against crime are very real costs, whether expressed in money or not. Ideally, the sum of these costs is to be minimized-though not necessarily any one cost in isolation.
In an ideal legal system, the costs of determining guilt or innocence would be held close to the minimum costs of gathering information and determining its veracity to some acceptable level of probability-"beyond a reasonable doubt" in the case of guilt, and to whatever level of probability would socially justify dismissing charges or discontinuing the investigation if the defendant or suspect appeared to be innocent. Since these costs are positiveindeed, substantial-even an ideally functioning legal system would not wholly eliminate crime, but there would be some optimal quantity of crime"' based on costs of knowledge, costs of precautionary measures, and the inconveniences imposed on innocent parties as a result of rules, arrangements, investigations, and suspicions incident to crime-prevention or crimedetection. While the concept of an "optimal" quantity of crime may be uncomfortable, it is also clear that no one is prepared to devote half the Gross National Product to stamping out every residual trace of gambling. Nor are we even prepared to reduce the murder rate at all cost-when that would mean such stringent administration of homicide laws and such low levels of proof required for conviction as to cause some physicians to avoid accepting some or all patients who might die while under their care. There would be no social gain from allowing thousands to perish needlessly for lack of timely medical care, in order to reduce murders by one hundred. Obviously, no one would advocate going to such extremes regarding gambling, murder, or any other crimes, but the point here is to indicate the reasons why-reasons that apply, to some degree, across a much wider range of situations.
In crime control, as in other social processes, decisions and evaluations must be incremental rather than categorical. It is pointless to argue that this or that action will or will not stop this or that crime.192 Nothing short of capital punishment will stop even the individual criminals already caught and convicted, much less others, and no one is prepared to use capital punishment for all crimes. The balancing of social costs implied by incremental decision making on crime control includes costs to all parties, including criminals. Virtually no one is prepared to impose unlimited costspenalties-for petty crimes or disproportionate penalties even for serious ones. Costs (penalties) are imposed on criminals to reduce the costs they impose on others. If a wrist slap would deter murder, then that would be the socially optimal pun ishment, in the sense of minimizing the total social costs associated with crime. The argument for some harsher punishment is that a wrist slap will not reduce murders as much, if at all. That is, minimizing the costs to criminals is not minimizing social costs but only externalizing more costs to victims.
Changes in the criminal law change the effectiveness with which knowledge can be transmitted to those deciding innocence or guilt, to criminals contemplating crime, and to the voting public assessing their experience and assessing the protection offered-or not offered-by the criminal justice system.
There are many sources of knowledge, and the behavior of legal authorities puts a higher or lower cost on its transmission or effectiveness. The simple knowledge that a crime has been committed can vary in its availability to the criminal justice system according to the costs imposed on victims, witnesses, or informants. The costs of reporting rape can obviously be increased or decreased substantially by the way police respond to rape victims, by the way opposing attorneys are permitted to cross-examine the victim in court, and by the likelihood that a convicted rapist will be either turned loose soon (perhaps to retaliate against the plaintiff or witnesses) or given a retrial on a technicality. In the landmark Mallory rape case,193 for example, the retrial ordered on appeal was the same as an acquittal, because the victim could not bear to go through the emotional trauma again. The abstract knowledge of guilt-from the defendant's confession as well as the victim's accusationwas not socially effective knowledge. Rape is a dramatic and readily understood example of a crime whose very existence can be socially and effectively known only according to the costs imposed by the legal institutions' behavior. But the same principle applies more generally, and includes laws and practices regarding publication of the identity of informants or the addresses of plaintiffs and witnesses.
The interpretation and administration of rules of evidence also controls or restricts the flow of knowledge necessary to determine innocence or guilt. American law is unique in the extent to which it excludes evidence.19` Evidence can be excluded either because it is considered qualitatively less certain than other evidence, or because of the procedures by which it was obtained. Information that is incrementally less certain is often treated as categorically nonexistent under "hearsay" exclusionary rules in AngloSaxon law, though the same quality of evidence could be heard in courts in other Western countries or in Japan.195 "Hearsay" does not mean simply gossip, but includes many official documents whose authenticity and veracity are un- challenged.19fi In addition to directly reducing the flow of knowledge into the criminal justice system, Anglo-Saxon "hearsay" rules have been held "re sponsible for most of the procedural quibbling that takes up so much time in American and British courts.""' By adding to court congestion and trial delay, it indirectly reduces the flow of knowledge in other cases as well.
One of the most important ways in which knowledge is screened out of the criminal justice system is either by excluding it from trial or reversing the conviction in the appellate courts because it was not excluded. Evidence acquired without following minutely prescribed procedures can also be excluded, without regard to how accurate, verifiable, or relevant it may be. The great fear behind this initially was that police would beat confessions out of innocent people, reducing the reliablity of the confession as well as being a crime in itself. But even after coerced confessions were ruled inadmissible, the Supreme Court went further to exclude independent evidence of guilt, if that evidence was found as a result of information obtained from a coerced confession. The meaning of "coercion" was also expanded from physical beatings to psychological pressures to "unnecessary" detention to police failure to describe all the suspect's legal options.19' There may be enough independent evidence to convict a murderer, if his confession leads police to the scene of the crime, where they find the corpse, and the murder weapon bearing the defendant's fingerprints all over it-but all of this evidence must be discarded by the criminal justice system if the original confession was procedurally incorrect.199 Even the British do not go nearly that far.
In short, the social costs of effective knowledge of guilt or innocence is multiplied by the restrictions placed on gathering the knowledge in the first place, and by the many ways of having the effectiveness of the knowledge cancelled by appellate courts. It is the same net result if costs of knowledge are directly tripled or if only one-third the knowledge gathered survives the screening processes involved in restrictive rules of evidence, procedural technicalities, and the exhaustion of witnesses through delays and retrials.
In criminal law, as in other social processes, there are inherent constraints of circumstances and human beings, and these constraints entail trade-offs. The repugnance and pain which a conscientious person feels at the thought of imprisoning or executing an innocent man, or letting a guilty sadistic murderer go scot-free back into society on a technicality, in no way removes the constraints or relieves the essentiality of trade-offs. The ideal of "a government of laws and not of men" implies an established process rather than ad hoc judgments of what is right in each case. Inherent in this are deviations between the particular consequences of a systemic process and the individual results most in accord with the principles that the process was meant to embody. The more effective the legal processes, the smaller are these deviations, but in any process conceived and carried out by human beings there will be deviations-and in some cases, extreme deviations. Legal systems try to reduce these extreme deviations by allowing appellate courts to review cases. But to some extent this recreates the original dilemmas of trial court systems at the appellate court level.
If appellate courts are to be part of a coherent legal system, rather than arbiters armed with power to decide each case anew in whatever way they choose, then what is decided in one case must be part of a legal pattern applicable to other cases with similar objective factors involved. What is decided in extreme cases becomes a precedent for other cases. In this kind of social package deal, often "hard cases make bad law" for the future. For example, blatant racial bias in trials and sentencing in some cases in some states may cause the whole federal legal system to involve itself in the minute details of state courts in all states.200 As a result, a white, AngloSaxon criminal caught in the act in California may go free because of legal procedures created when an innocent black was railroaded to jail by an allwhite jury in Mississippi. Appellate courts can adjust the application of their decisions to some extent, but there are limits to how far this can go and still retain the rule of law and the role of appellate courts as rulemaking organizations, rather than roving commissions with sovereign powers to decide each case as they please. This is neither a criticism nor a defense of appellate courts, but simply an indication of the momentous legal trade-offs involved.
The Constitution of the United States limits how far these trade-offs can go in one direction-that is, how high the cost can go for a criminal defendant, or even for a convicted criminal. There are no comparable limits on the costs which the legal system can impose on a crime victim seeking to prosecute the criminal. In the case of rape victims these costs are obvious not only for the victim, but also for the larger society, which has its own interests in keeping rapists off the street. But there are no victim's counterpart of the defendant's constitutional protections against double jeopardy, self-incrimination, or cruel and unusual punishment. In particular, the right to a speedy trial applies only to the defendant, not to the victim or to witnesses who can become exhausted, disgusted, fearful, or forgetful in crucial details as repeated trial delays stretch out for months or even years. Indeed, victims or witnesses may die or move out of state as legal processes drag on, quite aside from the financial losses imposed in taking off from work repeatedly to go to court for a trial that is again and again postponed at the defendant's request. Criminal lawyers are well aware of the advantages of sheer delay in wearing down plaintiffs and witnesses, or even a district attorney with a limited budget and limited time. In short, "due process" has a social cost, and that cost can-in particular cases-rise to levels which in effect negate the law in question. This may or may not be inherent in any form of constitutional law. What is important here is to be aware of such cost relationships-the central reality of trade-offs-as we turn from this brief static sketch of criminal law and appellate courts to a consideration of the trends in criminal law recent decades. These include trends in crime rates, in arrest procedures, in trials, and appeals.
CRIME RATES Crime rates per 100,000 persons more than doubled during the decade of the 1960s-whether measured by total crime, violent crime, or property crime.201 How much of this represents an actual rise in crime, and how much an increased reporting of crime, remains a matter of controversy. However, there is general agreement among people who agree on little else, that murder has generally been accurately reported, since it is hard to ignore a corpse or someone's sudden disappearance.202 Trends in this widely reported crime are also rising dramatically. Murder rates in large cities doubled in less than a decade between 1963 and 1971. The probability that someone living his whole life in a large city today will be murdered is greater than the probability of an American soldier in World War 11 being killed in combat.203
Crime is no more random than any other social activities. Murder rates in the big cities are more than four times as high as in the suburbs.20' More than half of all serious crime in the United States is committed by youths from ten to seventeen years old.205 Moreover, juvenile crime rates are increasing faster than adult crime rates.20' The number of murders committed by sixteenyear-olds tripled in four years in New York City.20'
These patterns have some bearing on popular explanations for crime. For example, crime has been blamed on "poverty, racism and discrimination"208 and on "the inhumanity of our prisons."209 As already noted, poverty and racial discrimination (whether measured in incomes, education, or segregation laws) were greater in the past, and their continuing effects are more apparent among older blacks than the younger. Crime, however, is greatest among youthful blacks210 and hostility to police is greatest among upper income blacks.2 ' As for harsh punishment as a source of repeated crimes, (1) those persons arrested and released or acquitted are rearrested more often than those that are imprisoned"' and (2) the escalation of crime rates during the 1960s occurred while smaller and smaller proportions of people were going to prison-indeed while the conviction rate was falling213 and the prison population was going down as the crime rate soared.l14 Insofar as poverty, discrimination, and imprisonment are variables believed to be correlated with crime rates, the evidence refutes the hypothesis. Insofar as these constitute an axiom, it is of course immune to evidence.
The level and trend of American crime rates may be put in perspective by comparison with those of other nations. Murder rates in the United States have been several times those in such comparable societies as those of Western Europe and Japan.215 Robbery rates are also higher.216 Crime rates in general are only moderately higher in the United States than in Europe, 217 but it is in the violent crimes that the difference between the U.S. and other countries is greatest. For example, New York, London, and Tokyo have comparable numbers of inhabitants (Tokyo the most), but there are eight times as many murders in New York as in Tokyo,218 and fifteen times as many murders as in London.219 Intertemporal comparisons show a rise in crime rates around the world"'-with the notable exception of Japan. What is different about Japan may provide some factual basis for testing competing theories of crime control.
The rising murder rate in the United States is largely a phenomenon dating from the mid-1960s, and continuing to escalate in the 1970s221-a rise generally coinciding with the sharp dropoff in executions.222 This rise in murder rates reversed a long-term decline in the murder rate in the United States. The absolute number of murders in American urban centers of 25,000 or more remained relatively constant from 1937 through 1957,223 even though the population in such centers was growing rapidly over that span.224 Urbanization, as such, apparently had not entailed rising murder rates. Demographic and socioeconomic changes in the population have been too gradual to account for the sudden reversal of a downward trend and its replacement by an escalating upward trend. The only apparent variable that has changed dramatically in the 1960s and 1970s has been the procedures and practices of the criminal law.
CRIMINAL LAW PROCEDURE One of the basic questions about criminal law procedure is simply how much of it there is, in purely quantitative terms. In England, the longest criminal trial on record lasted forty-eight days.225 In the United States, there have been criminal trials in which the selection of a jury alone has taken months.226 In England the selection of a jury "usually takes no more than a few minutes.227 A criminal trial length that would be "routine" in California"' would be record-breaking in England. The British example is particularly appropriate, not only because of general similarities between the two countries but more particularly because American law grew out of British law, the two countries have similar notions of fairness, and England is not regarded as either a police state or a place where innocent defendants are railroaded to jail.
Delays in American courts did not just happen. A procedural revolution in criminal law was created by the Supreme Court in the 1960s-the decade when crime rates more than doubled. Much attention has been focused on the specifics of these procedural changes-warnings to suspects, restrictions on evidence, etc.-but it is also worth noting the sheer multiplicity of new grounds for delay at every stage of criminal procedure, from jury selection all the way to appeals to the Supreme Court.
