What You Don’t Know About Criminal Justice

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“It is better not to know so many things,” Artemus Ward remarked, “than to know so many things that ain’t so.” Especially about crime and crime control.

Everyone “knows” that crime flourishes because the courts are too soft. “It’s time for honest talk, for plain talk,” President Ronald Reagan told the eighty-eighth annual meeting of the International Association of Police Chiefs last October. “There has been a breakdown in the criminal justice system in America. It just plain isn’t working. All too often repeat offenders, habitual lawbreakers, career criminals, call them what you will, are robbing, raping, and beating with impunity and … quite literally getting away with murder. ”

The reason, as everyone also knows, is that police, prosecutors, and judges are hamstrung by the Supreme Court’s exaggerated concern for the rights of the accused. Because of the so-called exclusionary rule laid down by the Warren Court, police and prosecutors are forced to release, and judges to acquit, large numbers of patently guilty offenders.

“Every student of our law enforcement mechanism knows full well … that its procedures unduly favor the criminal. … In our desire to be merciful the pendulum has swung in favor of the prisoner and far away from protection of society.” The President who made this claim was not Ronald Reagan but Herbert Hoover—in 1929, when police departments routinely held suspects incommunicado for long periods and extracted confessions through use of the “third degree.” Twenty years earlier President William Howard Taft had complained of “the failure of the law to bring criminals to justice.” Furthermore, he said, “The trial of a criminal seems like a game of chance, with all the chances in favor of the criminal.”

The fact that the same complaints have been voiced for three-quarters of a century or more does not necessarily prove them wrong; it does suggest that we might view the complaints with considerable skepticism. If criminal court procedures have always appeared to favor the criminal, if the pendulum has always seemed to be swinging away from protection of society and toward undue concern for the accused, if criminals have always appeared to be getting away with murder, perhaps the problem lies elsewhere. Perhaps we know too many things that ain’t so.

In fact, when one examines what actually happens in criminal court, what is remarkable is not how badly, but how well, most courts actually work. Those who charge the courts with being “soft on crime” are wrong—wrong in the facts they cite, wrong in the ways they interpret those facts, and wrong in the policy conclusions they draw, as well as in the remedies they propose.

• It is not true that the police or the courts have been handcuffed by the rulings of the Warren Court. Detailed studies make it clear that except for minor drug offenders, only a handful of criminals go free because “tainted” evidence is excluded from court.

• It is not true that the courts are more lenient than they used to be; the available data indicate that a larger proportion of arrested felons are incarcerated now than in the 1920’s, when the accused had far fewer protections.

• It is not true that plea bargaining distorts the judicial process. Contrary to popular impression, plea bargaining is not a recent invention; it has been the dominant means of settling criminal cases for the last century. Nor is plea bargaining the product of heavy caseloads and inadequate resources; plea bargaining occurs as frequently in rural areas as in big cities, for it is the principal means by which prosecutors and judges make the punishment fit the crime. (In the great majority of criminal cases, the facts themselves are not in dispute; what is at issue is the interpretation of the fact—how serious was the crime?—and the decision as to what punishment is appropriate.)

• Most important, it is not true that significant numbers of guilty offenders escape punishment in criminal court. In New York City, for example, which has a reputation for leniency in some quarters, the Vera Institute of Justice found that 88 per cent of those arrested for robbing a stranger were convicted, most of them on a felony charge, with three out of four receiving a jail or prison sentence. (Most who escaped incarceration were first offenders.)

There are times, of course, when seemingly guilty suspects do go free—not because prosecutors’ hands are tied or because judges are soft, but because guilt cannot be proven. When charges are dropped or defendants are acquitted, it usually is for a good and compelling reason—because the victim refuses to press charges, because a key witness declines to cooperate, or because the prosecutor doubts the defendant’s guilt or lacks the evidence needed to sustain a conviction.

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.”