Less than the Least

The two sides in America’s long-running culture war disagree about much, but agree about something very important: both sides believe law shapes cultures, not the other way around. Sometimes, it seems to work that way. The civil rights legislation of the 1960s reinforced and accelerated a dramatic change in white culture. Race discrimination, once routine, came to be seen as the awful thing it is.

But surprisingly often, it works the other way around.

I have two related reactions to the Eliot Spitzer story. First, it seems to me that we have to expect this sort of thing when we ban conduct like prostitution but tolerate upscale call-girl networks like the one Spitzer apparently used. This is a classic instance of American-style law enforcement of morals crimes: rich offenders live by more lenient rules than poor ones. That kind of cultural “reform” program promotes little save for cynicism among the poor and hypocrisy among the rich. The opposite kind of class discrimination—target offenders like Spitzer, and leave street hookers and their customers alone—might work better, but human character being what it is, that kind of trickle-down law enforcement is politically inconceivable.

Which leads to the second reaction: Better to legalize the relevant behavior than to have legal bans that are enforced in heavily class-biased ways. The occasional upper-class scandal like the Spitzer case serves only to fool the public: we think there is actually one law for the rich and for the poor. It isn’t so. Unless and until we are prepared to punish poor street hookers and rich “escorts” equally, we should abandon the fiction of prostitution bans. The sexual culture won’t be reformed by unenforced—or discriminatorily enforced—laws.

David’s post about Spitzer and his excesses prompts a thought: I wonder whether those excesses might be hard-wired into the enterprise of prosecuting corporate crime.

Think about it this way. Thieves who never quite manage to steal anything aren’t likely to get prosecuted; by contrast, burglars who break into lots of houses are much more likely to face punishment than burglars who break into one or two. More criminal success leads to higher odds of punishment.

Now think about corporate crooks.

I confess I don’t understand the current debate in Congress about legal liability for telecom companies that cooperated with the government in the wake of September 11. The issue isn’t whether the kinds of assistance those companies provided ought to be legal—Congress is free to decide that issue prospectively. The only real question is whether, having been promised that they would not face legal liability for their actions, the promise should now be revoked, retroactively.

That just isn’t a hard question.

Like many who heard it, I was powerfully impressed by Barack Obama’s speech in Philadelphia this week. But I found the speech unsatisfying, because it all but ignores the issue that is central to racial division in twenty-first-century America: crime and criminal punishment.

In his clearest reference to that subject, Obama was guilty of either fuzzy thinking or misplaced political correctness. He used his grandmother’s “fear of black men who passed by her on the street” as an example of racism. It isn’t.

Thanks for the thoughtful comments on yesterday’s post. A few responses:

1. Several posts suggested that high crime in urban black neighborhoods might be due to the “don’t snitch” movement and to rising levels of jury nullification. I think this gets causation backward. Jury nullification became a serious problem in a lot of poor city neighborhoods in the 1990s, and it was clearly a response to mass imprisonment in those neighborhoods – especially, mass imprisonment for drug crime. The contemporary “don’t snitch” movement is, in part, a response to the same thing, and in part, a reaction to the fact that the police can’t protect witnesses – because there aren’t enough police officers.

For an article I was writing a decade ago, I read a lot about Prohibition: both the then-current literature on the subject—the best book, as of then, was David Kyvig’s “Repealing National Prohibition” —and the impressions of people on the ground in the 1920s and early 1930s.

No one knows the precise amount of alcohol consumption in the 1920s, but the trend lines are pretty clear from those bodies of literature. For the first few years after Prohibition was adopted, consumption fell dramatically. Then, beginning around 1923, it started to rise, and rose steadily after that, with the rise continuing after Repeal in 1933.

While Bill’s most recent post focuses on the effects of the pro-choice movement’s overplaying of its hand in the Roe v. Wade era, the attempt to ban abortion altogether in South Dakota several years ago was a sobering experience for those of us in the pro-life camp. The push for an absolute ban seemed to me at the time, and seems now, an unfortunate overplaying of the pro-life hand. From both a strategic and a cultural standpoint, more incremental steps to restrict abortion are a much more promising step. Consider the contrast between the South Dakota ban, which was quickly repudiated, and the Congressional ban on partial birth abortion, which was upheld by the Supreme Court last year in Gonzales v. Carhart. The partial birth abortion ban reflected a national consensus; the absolute ban on abortion didn’t (and as we quickly learned, didn’t reflect a consensus in South Dakota either).

Pretty much everyone—Republican or Democrat, right or left—familiar with America’s criminal justice system agrees that our prison population is far too large. The data are familiar: Adjusted for population, imprisonment has quintupled in the last thirty-five years. As of 2001 (America’s prison population has grown since then), the average incarceration rate in EU countries was 87 per 100,000 population. In the U.S., the comparable figure was nearly 700. (Link here) The black incarceration rate is several times higher than that.

Those numbers represent a social catastrophe. Who made it so? Who is responsible for the now-famous “punitive turn” in American criminal justice?

I learned through the grapevine yesterday that Bill is one of a small handful of law fellows (the others are Justice Stevens and six law professors) who have just been elected to the American Academy of Arts & Sciences. This is an incredibly high honor, and couldn't have been more deserved. Congratulations, Bill.

Thanks for the kind post, David.

Many of the comments to my last post took issue with the claim that America’s enormous prison is a serious social problem, and that “pretty much everyone familiar with the justice system” agrees with that sentiment. I shouldn’t have used those words; obviously, there are reasonable and decent people who disagree with that claim.

Here’s what I should have said in that opening paragraph.