What You Don’t Know About Criminal Justice

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In short, criminal courts generally do an effective job of separating the guilty from the innocent; most of those who should be convicted are convicted, and most of those who should be punished are punished. Thus there is no reason to believe that the reforms now being proposed—repealing the exclusionary rule, mandating prison terms for dangerous criminals, forbidding plea bargaining, or reducing or eliminating judges’ and parole boards’ discretion—would bring about any noticeable reduction in criminal violence. They might make matters worse; the history of efforts to reform the criminal justice system is a record of unintended consequences being larger than, and often in the opposite direction of, the intended ones—or as Eric Sevareid observed, “The chief cause of problems is solutions.”

This is not to suggest that we live in the best of all possible worlds; to the contrary, criminal violence is intolerably high. It is simply to argue that the solution lies outside the criminal justice system itself. What seem to be failures of law enforcement, Dean Roscoe Pound of Harvard Law School pointed out more than fifty years ago, are actually manifestations of our tendency to ask more of the criminal justice system than it is capable of delivering. In any society, ours included, the ultimate source of order is not coercion—not the presence of the police or the threat of punishment by the courts—but custom and habit: the habit of voluntary and automatic (and often unconscious) compliance that keeps most people law-abiding most of the time, even in situations in which detection or punishment are unlikely. The police are essential; so are the courts and the prisons; but they cannot carry the entire burden of social control. As the criminologist E. H. Sutherland wrote, with only partial exaggeration, “When the mores are adequate, laws are unnecessary; when the mores are inadequate, the laws are ineffective.”

Everywhere, today, the mores are inadequate; criminal violence has become a universal, not just an American, phenomenon. Formerly crime-free nations such as England, Sweden, West Germany, the Netherlands, and France, as well as more turbulent countries such as Italy, are plagued with an epidemic of murder, kidnaping, robbery, and other forms of crime and violence—some of it politically inspired, all of it criminal in intent and consequence.

Wherever one turns—in fact, in virtually every free nation except Japan—people are worried about “crime in the streets.” As Sir Leon Radzinowicz, former director of Cambridge University’s Institute of Criminology, has written, “No national characteristic, no political regime, no system of law, police, justice, punishment, treatment, or even terror has rendered a country exempt from crime.”