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.

One of last week’s less prominent news stories of the past week was Mike Vick’s decision to file for bankruptcy. As everyone reading this post presumably knows, Vick was the Atlanta Falcons’ star quarterback; he was convicted of running a dogfighting enterprise in violation of federal law. His punishment is not only the 23-month prison sentence he is now serving, but tens of millions of dollars in lost salary and endorsements.

Vick’s case raises two problems that our legal system has never solved. The first is how to punish the wealthy and powerful when they commit serious crimes. Equality would seem to suggest that defendants like Vick should serve the same time as defendants who have none of the money and fame he enjoyed. But is that equal justice? Vick has lost much, much more than the typical criminal defendant who has much less to lose. How is equality to be measured in such cases? I don’t know the answer, but I don’t like the answer our justice system gives in cases of this sort. If Vick had not been the celebrity athlete he was, he would never have been prosecuted. Maybe rich celebrities deserve to be held to a higher standard than the rest of us—but if so, I’m not sure why.

Obama and his underlings have emphasized, rightly, that federal spending designed to pump up the economy should do more than that: spending should rebuild needed infrastructure, invest in cleaner energy, and the like, so that money spent now would yield economic returns years later.

There is one kind of spending that would do just that: federal aid for local police. The number of urban police officers per unit population held steady through the 1970s and 1980s, while urban violence steadily rose. In the 1990s, that number rose 17%, and violent crime fell sharply. In this decade, nearly half of the gains of the 1990s have been wiped out during this decade--and that was true before the collapse of the credit markets this past fall and the broader recession that is now taking hold. Urban violence is rising again. If the federal government doesn't subsidize police spending, we will see more cuts in local police budgets, and probably more crime.

Police spending has another large benefit: over time, it reduces prison spending. Take a look at this graph--the blue curve is annual change in the number of urban police officers per unit population with a one-year delay; the green curve measures annual change in the number of prison inmates per unit population. The inverse relationship between the two curves is hard to miss:

Less crime, fewer prisoners, and more cops is a rare policy trifecta. This is an opportunity not to be missed.

I have an article in this week’s TWS. The link is here. The subject is the need for a policing “surge.”

A couple of weeks ago, a friend showed me this article on jurors doing their own research during the breaks from a trial.  Given how quickly most of us go to the Internet to research our latest health concerns, it's not much surprise jurors are doing the same.  In both contexts, the results may be frightening.  Although it shouldn't be condoned-- think of all those wildly mistaken health diagnoses, not to mention jurors' promise to rely only on information presented at the trial--jurors' moonlighting could have a small silver lining.  Perhaps the risk that some jurors may look elsewhere for clarification of confusing aspects of a trial will encourage lawyers and judges to be as clear and as complete as possible within the four walls of the courtroom.

I have several reactions to the torture memos and the frenzy that has erupted since their publication. On the one hand, some of the behavior at issue—like pushing a prisoner against a wall designed to yield to pressure—seem far too mild to deserve the label “torture.” Using that word to describe such tactics cheapens the concept. On the other hand, two of the tactics described in Jay Bybee’s memo—waterboarding and extended sleep deprivation—seem to me qualitatively different. Those tactics strike me as transparently evil, the sort of thing civilized societies should not tolerate in others and should never do themselves. When governments practice such evil, they should be called to account. That is the great benefit of the rule of law: rulers are held to the same standards as those they rule. On yet another hand (I’m hearing the music for “Fiddler on the Roof” as I type this), there is something grossly unfair about punishing people who were striving to do right in extraordinarily difficult circumstances. Mercy is a virtue not much seen in America’s legal system these days. This setting seems to me a good place to begin practicing that virtue. 

That Sam Harris, one of the leading “new atheists,” criticized the president’s nomination of Francis Collins, a professed Christian, to serve as director of the National Institutes of Health in this New York Times op-ed yesterday was hardly news. But I found the column interesting in several respects. 

Harvard will be hosting a conference honoring Bill next weekend.  The conference will consist of four panels of speakers on Friday and Saturday, the first three on criminal law and procedure and the last on Bill's life and work generally.  The line-up is extraordinary (here's the Harvard announcement and here's a fuller description from Orin Kerr, one of many terrific speakers who will be there), and it promises to be a memorable event.  It's open to anyone who would like to attend.

For those of you who can't make it to Cambridge this weekend for the conference but would like to tune in to some or all of it, I'm told that there will be a streaming video here.

As hard as it was for Bill to endure the fuss, the celebration at Harvard Law School was, by my lights at least, unforgettable. The papers from the first three panels featured most of the nation’s leading criminal law and criminal procedure scholars, and hopefully will be published as a book. A recurring theme, made by very different scholars in very different ways, was the extent to which Bill’s work has transformed criminal law and criminal procedure scholarship.

The earlier link to the conference should now have the video.  It's right here.

And here is an article from the Weekly Standard on the conference.

The first (I think) review of The Collapse of American Criminal Justice has just appeared, just as the book is about to hit the shelves.  Here's the review, which Lincoln Caplan wrote for Democracy.  I think the review is superb, and there's lots more to come.   This is the first of what I expect will be a number of posts on Bill's magnum opus.

There are a number of new reviews of Bill's book, in addition to Justice Stevens' review in the New York Review of Books and Lincoln Caplan's review in Democracy mentioned in earlier posts.  I'll start adding them to this post. 

As Bill's colleague Carol Steiker noted at the wonderful Harvard Law School celebration for the book last week, Bill put an enormous amount of energy into the book in his last couple of years (so much so that she often urged him to take it easier).   It shows, and is reflected in the reviews' repeated use of terms like "magisterial."  ("Magisterial" comes up so often, and is so obviously accurate, that I'm trying to come up with some other word.)

The Wall Street Journal review is here. 

The review in Chroncle Review is here.

Richard Posner's review in the current New Republic is here.  More on this and the other reviews soon.

I've been meaning for weeks to link to a very thoughtful review by Orin Kerr of Bill's book on the Volokh Conspiracy blog: here.  Orin gives an excellent summary of the book and its importance, then concludes by asking, among other things, whether Bill's account of criminal justice in earlier eras is too "rosy."  It's well-worth reading.

Here is a lovely article in the Boston Globe about Bill's rush to finish The Collapse of American Criminal Justice in the final months of his life.

Adam Gopnik discusses Bill's book in some detail in the a New Yorker piece (here) from late last month (which I'd missed but a friend just forwarded).

I will post additional articles and reviews, including an essay of Bill's called "Law and Grace" that will be published in April, in this space as they appear.