Policy Forum: Civil Liberties and Criminal Justice

January/​February 1996 • Policy Report

The Cato Institute held a Book Forum in the F. A. HayekAuditorium on November 3, 1995, to discuss crime and the market‐​liberalresponse. The speakers were Robert James Bidinotto, a staff writerfor Reader’s Digest and editor of Criminal Justice? TheLegal System vs. Individual Responsibility, and Timothy Lynch, assistant director of the Cato Institute’s Center for Constitutional Studies.

Bob Bidinotto: Let me start out with a couple of stories that illustrate twothings that I think are significantly wrong with our criminal justicesystem. In my investigations of the criminal justice system, which havetaken me literally coast to coast, I find these kinds of stories all toocommon.

One of them took place recently in my home town. A little girl, eightyears old, was stabbed to death and then drowned in a bathtub by hermother’s live‐​in boyfriend. It turned out that in 1990 the boyfriend hadcommitted a knife‐​point rape in the next county. But before he went totrial, he was allowed to plea bargain. He pled his crime down to simpleassault and burglary. The consequence that he suffered was a 12‐​monthsuspended sentence.

Unfortunately, that is not unusual. In 1991, 590,000 convicted violentfelons were out on parole and probation in this country. Only 370,000convicted violent felons were locked up. That indicates an aspect of thecriminal justice system that I call expediency, the opportunistic processingof people through the system without regard to proportionality.

The second story is about a young woman named Barbara Peterson, a plantgeneticist in Michigan, who worked nights, so she had to sleep during theday. She was awakened one day by some kids carrying on next door. Shestepped out on her porch and said to the kids, “Excuse me, I’m trying tosleep here. Could you please quiet down?” That apparently was enough toprovoke them to come onto her porch, grab her by the hair, drag her off theporch, and spend the next 15 minutes beating and kicking her. Consequencesfor Barbara: she is no longer a plant geneticist, she has massive medicalbills and massive psychological counseling bills, and she’s on publicassistance. Consequences for the two little cherubs who yanked her off theporch and beat her up: they were forced by the court to write her a letterof apology. That shows another aspect of the system, disproportion.

When I was looking for clues to why we find disproportionality andexpediency throughout the system, I came to the conclusion that the systemwas designed that way. Looking into the history of the ideas of the peoplewho sculpted the criminal justice system, and the people who staff it, Iconcluded that the ideas, the theoretical foundations of our modern criminaljustice system, could not lead to anything other than disproportion andexpediency.

One of the key ideas that seemed to underlie a lot of the others was avery innocent error in response to a very natural question: what causescrime? The premise of the question is that something drives people to commitcrimes, that under normal circumstances people do not commit crimes.

Over the decades and even centuries, we’ve had numerous explanations forcriminality, including biological explanations, bad‐​seed theories, andgenetic theories. In the psychological and medical profession, when themedical side is dominant, you find medical explanations, and when thepsychological side is dominant, you find psychological explanations.

Then there are sociological explanations for crime: environment, peerpressure, toilet training, ethnic background, neighborhood, whatever. Allof those have been correlated in one way or another with increasedcriminality.

And, of course, there are the psychological excuses. The major source ofthose, in our time, was probably Sigmund Freud, who had an enormous impacton our thinking about crime and criminals. The whole idea is that repressedinner drives are manifesting themselves, forcing people to do things thatunder normal circumstances they wouldn’t do.

All of those theories, however, agree on something fundamental: there arecauses of crime; there are circumstances that drive people to criminality,and therefore the criminal is as much a victim of circumstance as are hisvictims.

The causation premise leads to a conclusion: if the individual can’t helpit, if he is driven to crime by factors beyond his control, then punishmentis wrong. Indeed, the eminent psychologist Karl Menninger some years agowrote a book entitled The Crime of Punishment. Clearly, punishment itselfis an injustice, if the criminal can’t help it or if he has diminishedresponsibility.

Other implications: Our response to crime should be collective, notindividual. We should forget about the individual crime victim and look forsocial remedies for crime. We should try to prevent crime generally. Weshould try to rehabilitate criminals.

The past crime victim is forgotten in all of this, of necessity. Victimsare a very discomfiting element of our system because they remind us of theharm that was done. And when we focus on the victims of crime, we face achoice: we can respond to crime in proportion to the damage done to thevictim or we can throw proportionality out the window. We can make thebrutal kids write a letter of apology in hopes of rehabilitating them in thefuture and forget about Barbara.

Our approach to crime, generally speaking, has been forward looking,rather than backward looking. The past crime victim must be forgotten in autilitarian scheme because such a scheme does not allow for individualconsiderations of justice and proportionality. Not only has our responsebecome collective, the utilitarian premise excludes moral considerations inpunishment.

I think the problem with the utilitarian viewpoint can be summed up intwo words: Susan Smith. Is our response to Susan Smith’s act to try to detersimilar acts in the future? Does anybody really think that there aremillions of Susan Smiths out there just waiting to drown their babies andthat if we don’t have a strong deterrent, they are all going to do so? Howabout prevention? Do we think that we should lock up Susan Smith forever sothat she doesn’t drown more babies? Is that a rational response? How aboutrehabilitation? Is the response to someone who drowns her babies to try totransform her into somebody who won’t drown her future babies?

Those utilitarian considerations kind of miss the point, which is, whospeaks for the babies? Where do they fit in? How about restitution, asuggestion commonly made by free marketers? To whom is Susan Smith going topay restitution? And how much? Proportionality is the one thing that suffersin all of the utilitarian considerations, because they are focused on SusanSmith’s future, on society’s future. The victims? Disappeared. Gone.

We have spent trillions of dollars on the so‐​called root causes of crimein recent years. We’ve warped our entire legal system away fromproportionate punishment. We’ve changed our penal institutions into“correctional institutions” that have, judging by today’s recidivism rates,been correcting very few people. We’ve expanded the rights, so‐​called, ofcriminals against various forms of punishment or legal proceedings. We’veexpanded plea bargaining and alternatives to incarceration — good time, earlyparole, selective incapacitation — that have nothing to do with aproportionate response to the damage that was done.

We’ve done all of those things, and where are we? Since 1960 crime ratesper capita have tripled. Per capita violent crime rates are four and one‐​half times greater. Your chances of being a victim of violent crime are fourand a half times greater today than they were in 1960 — after the expenditureof all of the trillions of dollars, after all of the remedial measures,after correctional institutions and training programs and alternatives toincarceration. Recidivism rates are still right up there. Why?

Let me suggest that the premise of the question “what causes crime?” iswrong. In 1776 in The Wealth of Nations, Adam Smith asked a question thatwas very different from the ones that had been asked before. Two hundredyears ago people were asking what caused poverty, why people were poor, andSmith stood the question on its head. He said that poverty is the naturalcondition of mankind. The question is, what causes the accumulation ofwealth?

Let me dare to follow in Smith’s footsteps and suggest that the questionthat we should ask is, What causes people not to commit crime? Why has noone stood up in the audience and shot me? Why has no one thrown a book atme? What causes us not to commit crime? I would suggest two answers. One isa general category of reasons called “internal constraints on behavior” thatmost of us, at one time, would have called morality, or values, and theiremotional epiphenomena, guilt and shame — the kinds of emotions that make usfeel unworthy. We’re not supposed to commit crimes because we have certainstandards, and if we violate those standards, we feel guilty. Guilt inhibitsus, sometimes even before the fact and frequently even when no one’s lookingand we can’t possibly be caught.

We’re raising a generation of kids, indeed, generations of kids, withoutinternal constraints on their behavior. Let me give you some statistics:from 1985 to 1993 the murder rate by people 25 years old and older went down25 percent; the murder rate by people 18 to 25 went up 60 percent; themurder rate by 14 to 17 year olds went up 165 percent. We live in an age inwhich far more people recognize the name Howard Stern than the name IsaacStern. If I say the word Madonna, everybody thinks of the singer, not thenativity scene. We live in a very, very different world from the one inwhich we grew up, where moral codes were stronger and internal constraintson behavior were firmer. And as a result, we’re cranking out youngsociopaths by the thousands. Demographically we can expect a whole lot moreby the year 2000.

The other reason we don’t commit crimes is external constraints, what weused to call fear of negative consequences. We don’t drive a car 100 milesper hour toward a brick wall because we know what the consequences will be.

My book Criminal Justice? deals with the external constraints. We’reraising kids who are propelling themselves like high‐​powered sports vehicleswithout steering wheels, without brakes, with nothing but accelerators. Andthe guardrails of society are the external constraints.

The thesis of my book is that the same ideas that have underminedinternal constraints on behavior have also been undermining externalconstraints. We have seen numerous holes punched into the criminal justicesystem, so that proportionate consequences are no longer deflected back ontothe perpetrator. Justice is the moral principle of accountability, that anindividual is a causal agent of his actions, and therefore he deserves theconsequences, good or bad. In the free‐​market system, that means that if heproduces, he profits. If he commits crimes, however, the bad consequencesare deflected back on him. Why? Because the criminal, by definition, issomeone who wants to live at the expense of somebody else. And the criminaljustice system has traditionally said, “No you won’t. We’re not going to letyou. We’re going to deflect the harm you are doing back onto you. We’regoing to be the brick wall that you don’t want to hit.”

My explanation for crime is not the presence of factors that drive peopleto crime. My explanation for the tripling of our crime rates is the absenceof constraints, both internal and external, that we have seen in recentgenerations — an absence that I think has been propelled, promulgated, andwrit into law by an “excuse‐​making industry” spawned by social scientists,philosophers, psychologists, sociologists, and journalists.

I would urge classical liberals to be cognizant of the fact thatviolations of rights are violations of rights whether they are perpetratedby governments or by individuals. We should be as concerned with the rightof people to be as free from interpersonal harm as from harm perpetrated bythe institutions of the law, which are supposed to be protecting us.

I wrote my book in that spirit. I wrote it for the crime victims that Ihave met from coast to coast, whose individual plights and individualconcerns are getting no attention whatsoever today. I wrote it to returnthem to center stage in our considerations of what a criminal justice systemshould be doing.

Timothy Lynch: I recommend Criminal Justice? as a clear and compellingstatement of the need to hold the individual criminal responsible for hisactions. Since Bob has effectively summarized what I found most insightfulin his book, I will focus on some of its shortcomings.

First, the book proposes a number of changes in the criminal justicesystem without making it clear exactly who should be making those changes — Congress or the 50 state legislatures. Over the past 50 years we’ve seen thefederal government assume a larger and larger role in the criminal justicesystem. The budget for the Department of Justice, for example, hasquadrupled since 1980. Justice has added over 800 agents to the FederalBureau of Investigation, 700 Drug Enforcement Administration agents, andover 1,200 federal prosecutors in just the last seven years. The number offederal crimes has exploded from 3 in our Constitution of 1787 to more than3,000 today.

The trend toward federalization flies in the face of constitutionalprinciples. Our Constitution created a federal government of limited andenumerated powers, and it’s clear that crime fighting was one of the powersthat was reserved to the states under the Tenth Amendment.

Second, anyone unfamiliar with the issues associated with theconstitutional rights of the accused would come away from the book with theimpression that the Supreme Court has been overly protective of the Bill ofRights, but that impression would be a gross distortion of the truth. Thetruth is that the Court has created a few phony constitutional rights, butit has also allowed law enforcement officials to trample on genuineconstitutional rights. I’ll give you a few quick examples. The SixthAmendment says, in part, “In all criminal prosecutions, the accused shallenjoy the right to a speedy and public trial, by an impartial jury, of theState and district wherein the crime shall have been committed.” But theSupreme Court has held that there is a petty‐​offense loophole in thatguarantee. If the state accuses you of a crime that carries a penalty of sixmonths imprisonment or less, then the state does not have to put on a jurytrial.

Because the Supreme Court has upheld dual prosecutions in state andfederal court, our protection against double jeopardy is weakened every timeCongress federalizes a state crime. You may recall that this issue got someattention after the Rodney King incident. The police officers involved wereinitially acquitted in state court, but charges were later brought underfederal law and the officers were convicted the second time around.

Due process is also thrown out the window to make life easier forprosecutors. In 1991 the Justice Department demanded a single megatrial of22 members of the Chicago street gang El Rukn. One jury for 22 defendantsis a farce. Unfortunately, megatrials are becoming more frequent. Thatdisturbing trend is an indication of how far our system is straying from theidea of individual justice.

Third, the book gives the impression that law enforcement personnel arevirtuous public servants striving to capture and punish vicious criminals,but that their efforts are being undermined by clever criminal defenselawyers and goofy liberal judges. The uncomfortable reality is that lawenforcement officers and prosecutors are not always the virtuous publicservants that they would like us to think they are. We already know aboutthe police officers who beat Rodney King; the disastrous standoff at Waco;the good ol’ boy weekend sponsored by the Bureau of Alcohol, Tobacco andFirearms; the FBI snipers at Ruby Ridge; and Mark Fuhrman, whose name seemsto be a household word now. Every time some wrongdoing is uncovered, we’retold that it’s merely an aberration. I’m afraid that’s not the case. Policecorruption, for example, is a very serious problem, especially in our bigcity police departments. And I’m not referring just to police officers onthe take. I’m talking about widespread deceit and perjury. Last year theMollen Commission Report on corruption in New York City found that the mostcommon form of police corruption was the falsification of reports andcourtroom perjury. Perjury was so common that it gave rise to a new term,“testilying.”

Finally, everyone acknowledges that our prisons are overflowing withinmates, but the contributors to Criminal Justice? tell us that we have asimple choice between more prisons and more crime. Let’s put the prisonconstruction recommendation into context. In 1970 we had fewer than 100state and federal prisoners per 100,000 population; in 1980 we had 139; in1985, 201; in 1990, 292; and in 1995, 565. Our prison capacity has beenexpanding. Between 1984 and 1990 the capacity of the state prison systemsgrew by 50 percent. Between 1984 and 1994 the capacity of the federalprisons grew by 175 percent.The advocates of prison construction are rarely specific about how muchprison space we need, but I think we can get an idea of what’s going to benecessary if the war on drugs continues.

Right now there are 5.1 million people under correctional supervision. Ifwe were about to capture the last few hundred drug dealers and users, therecommendation to build more prisons might make some sense. But everybodyknows that the government is not about to capture the last few hundred drugdealers and users. When you consider the fact that there are about 20million drug users in the United States, you can see the utter futility oftrying to increase prison space. We have 1.5 million people in local, state,and federal prisons right now, and that’s a record. Despite huge increasesin prison capacity, we’re still 25 percent over capacity. Even doubling thenumber of people in prison over the next three to five years wouldn’t makemuch more than a dent in the drug trade, as our experience over the last 14years has shown.

To his credit, Bob acknowledges in the final pages of the book that thedrug laws are largely responsible for the overcrowding problem. He calls foran end to prohibition, but in the same breath he calls for additional prisonconstruction. I think it would be a serious mistake to expand America’sprison capacity during this crisis period of drug prohibition. Limitedprison capacity is the most important restraint we have on the politiciansand drug czars who would escalate the war on drugs to ever higher levels.

Despite its flaws, I think Criminal Justice? is a very good book.