Policy Forum: Civil Liberties and Criminal Justice

The Cato Institute held a Book Forum in the F. A. Hayek Auditorium on November 3, 1995, to discuss crime and the market-liberal response. The speakers were Robert James Bidinotto, a staff writer for Reader's Digest and editor of Criminal Justice? The Legal 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 two things that I think are significantly wrong with our criminal justice system. In my investigations of the criminal justice system, which have taken me literally coast to coast, I find these kinds of stories all too common.

One of them took place recently in my home town. A little girl, eight years old, was stabbed to death and then drowned in a bathtub by her mother's live-in boyfriend. It turned out that in 1990 the boyfriend had committed a knife-point rape in the next county. But before he went to trial, he was allowed to plea bargain. He pled his crime down to simple assault and burglary. The consequence that he suffered was a 12-month suspended sentence.

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

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

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

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

Over the decades and even centuries, we've had numerous explanations for criminality, including biological explanations, bad-seed theories, and genetic theories. In the psychological and medical profession, when the medical side is dominant, you find medical explanations, and when the psychological side is dominant, you find psychological explanations.

Then there are sociological explanations for crime: environment, peer pressure, toilet training, ethnic background, neighborhood, whatever. All of those have been correlated in one way or another with increased criminality.

And, of course, there are the psychological excuses. The major source of those, in our time, was probably Sigmund Freud, who had an enormous impact on our thinking about crime and criminals. The whole idea is that repressed inner drives are manifesting themselves, forcing people to do things that under normal circumstances they wouldn't do.

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

The causation premise leads to a conclusion: if the individual can't help it, if he is driven to crime by factors beyond his control, then punishment is wrong. Indeed, the eminent psychologist Karl Menninger some years ago wrote a book entitled The Crime of Punishment. Clearly, punishment itself is an injustice, if the criminal can't help it or if he has diminished responsibility.

Other implications: Our response to crime should be collective, not individual. We should forget about the individual crime victim and look for social remedies for crime. We should try to prevent crime generally. We should try to rehabilitate criminals.

The past crime victim is forgotten in all of this, of necessity. Victims are a very discomfiting element of our system because they remind us of the harm that was done. And when we focus on the victims of crime, we face a choice: we can respond to crime in proportion to the damage done to the victim or we can throw proportionality out the window. We can make the brutal kids write a letter of apology in hopes of rehabilitating them in the future 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 a utilitarian scheme because such a scheme does not allow for individual considerations of justice and proportionality. Not only has our response become collective, the utilitarian premise excludes moral considerations in punishment.

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

Those utilitarian considerations kind of miss the point, which is, who speaks for the babies? Where do they fit in? How about restitution, a suggestion commonly made by free marketers? To whom is Susan Smith going to pay restitution? And how much? Proportionality is the one thing that suffers in all of the utilitarian considerations, because they are focused on Susan Smith's future, on society's future. The victims? Disappeared. Gone.

We have spent trillions of dollars on the so-called root causes of crime in recent years. We've warped our entire legal system away from proportionate 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, of criminals against various forms of punishment or legal proceedings. We've expanded plea bargaining and alternatives to incarceration — good time, early parole, selective incapacitation — that have nothing to do with a proportionate response to the damage that was done.

We've done all of those things, and where are we? Since 1960 crime rates per 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 four and a half times greater today than they were in 1960 — after the expenditure of all of the trillions of dollars, after all of the remedial measures, after correctional institutions and training programs and alternatives to incarceration. Recidivism rates are still right up there. Why?

Let me suggest that the premise of the question "what causes crime?" is wrong. In 1776 in The Wealth of Nations, Adam Smith asked a question that was very different from the ones that had been asked before. Two hundred years ago people were asking what caused poverty, why people were poor, and Smith stood the question on its head. He said that poverty is the natural condition of mankind. The question is, what causes the accumulation of wealth?

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

We're raising a generation of kids, indeed, generations of kids, without internal 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 down 25 percent; the murder rate by people 18 to 25 went up 60 percent; the murder rate by 14 to 17 year olds went up 165 percent. We live in an age in which far more people recognize the name Howard Stern than the name Isaac Stern. If I say the word Madonna, everybody thinks of the singer, not the nativity scene. We live in a very, very different world from the one in which we grew up, where moral codes were stronger and internal constraints on behavior were firmer. And as a result, we're cranking out young sociopaths by the thousands. Demographically we can expect a whole lot more by the year 2000.

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

My book Criminal Justice? deals with the external constraints. We're raising kids who are propelling themselves like high-powered sports vehicles without steering wheels, without brakes, with nothing but accelerators. And the guardrails of society are the external constraints.

The thesis of my book is that the same ideas that have undermined internal constraints on behavior have also been undermining external constraints. We have seen numerous holes punched into the criminal justice system, so that proportionate consequences are no longer deflected back onto the perpetrator. Justice is the moral principle of accountability, that an individual is a causal agent of his actions, and therefore he deserves the consequences, good or bad. In the free-market system, that means that if he produces, he profits. If he commits crimes, however, the bad consequences are deflected back on him. Why? Because the criminal, by definition, is someone who wants to live at the expense of somebody else. And the criminal justice system has traditionally said, "No you won't. We're not going to let you. We're going to deflect the harm you are doing back onto you. We're going to be the brick wall that you don't want to hit."

My explanation for crime is not the presence of factors that drive people to crime. My explanation for the tripling of our crime rates is the absence of constraints, both internal and external, that we have seen in recent generations — an absence that I think has been propelled, promulgated, and writ 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 that violations of rights are violations of rights whether they are perpetrated by governments or by individuals. We should be as concerned with the right of people to be as free from interpersonal harm as from harm perpetrated by the 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 I have met from coast to coast, whose individual plights and individual concerns are getting no attention whatsoever today. I wrote it to return them to center stage in our considerations of what a criminal justice system should be doing.

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

First, the book proposes a number of changes in the criminal justice system 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 the federal government assume a larger and larger role in the criminal justice system. The budget for the Department of Justice, for example, has quadrupled since 1980. Justice has added over 800 agents to the Federal Bureau of Investigation, 700 Drug Enforcement Administration agents, and over 1,200 federal prosecutors in just the last seven years. The number of federal crimes has exploded from 3 in our Constitution of 1787 to more than 3,000 today.

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

Second, anyone unfamiliar with the issues associated with the constitutional rights of the accused would come away from the book with the impression that the Supreme Court has been overly protective of the Bill of Rights, but that impression would be a gross distortion of the truth. The truth is that the Court has created a few phony constitutional rights, but it has also allowed law enforcement officials to trample on genuine constitutional rights. I'll give you a few quick examples. The Sixth Amendment says, in part, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury, of the State and district wherein the crime shall have been committed." But the Supreme Court has held that there is a petty-offense loophole in that guarantee. If the state accuses you of a crime that carries a penalty of six months imprisonment or less, then the state does not have to put on a jury trial.

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

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

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

Finally, everyone acknowledges that our prisons are overflowing with inmates, but the contributors to Criminal Justice? tell us that we have a simple choice between more prisons and more crime. Let's put the prison construction recommendation into context. In 1970 we had fewer than 100 state and federal prisoners per 100,000 population; in 1980 we had 139; in 1985, 201; in 1990, 292; and in 1995, 565. Our prison capacity has been expanding. Between 1984 and 1990 the capacity of the state prison systems grew by 50 percent. Between 1984 and 1994 the capacity of the federal prisons grew by 175 percent. The advocates of prison construction are rarely specific about how much prison space we need, but I think we can get an idea of what's going to be necessary if the war on drugs continues.

Right now there are 5.1 million people under correctional supervision. If we were about to capture the last few hundred drug dealers and users, the recommendation to build more prisons might make some sense. But everybody knows that the government is not about to capture the last few hundred drug dealers and users. When you consider the fact that there are about 20 million drug users in the United States, you can see the utter futility of trying 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 increases in prison capacity, we're still 25 percent over capacity. Even doubling the number of people in prison over the next three to five years wouldn't make much more than a dent in the drug trade, as our experience over the last 14 years has shown.

To his credit, Bob acknowledges in the final pages of the book that the drug laws are largely responsible for the overcrowding problem. He calls for an end to prohibition, but in the same breath he calls for additional prison construction. I think it would be a serious mistake to expand America's prison capacity during this crisis period of drug prohibition. Limited prison capacity is the most important restraint we have on the politicians and 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.