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chapter_4.docx4 Criminal Justice Rationality and Irrationality in Public Policy
Crime in America
Crime is a central problem confronting any society. The rational strategy of crime fighting is known as deterrence. The goal of deterrence is to make the costs of committing crimes far greater than any benefits potential criminals might derive from their acts. With advanced knowledge of these costs, rational individuals should be deterred from committing crimes. But before we describe the deterrence model and assess its effectiveness, let us examine the nature and extent of crime in America.
Measuring Crime.
It is not easy to learn exactly how much crime occurs in society. The official crime rates are based on the Federal Bureau of Investigation’s Uniform Crime Reporting Program, but the FBI reports are based on figures supplied by state and local police agencies (see Table 4–1). The FBI has established a uniform classification of the number of serious crimes per 100,000 people that are reported to the police: violent crimes (crimes against persons)—murder and nonnegligent manslaughter, forcible rape, robbery, aggravated assault; and property crimes (crimes committed against property only)—burglary, larceny, arson, and theft, including auto theft. But one should be cautious in interpreting official crime rates. They are really a function of several factors: (1) the willingness of people to report crimes to the police, (2) the adequacy of the reporting system that tabulates crime, and (3) the amount of crime itself.
Trends in Crime Rates.
Crime is no longer at the top of the nation’s policy agenda. Since peaking in the early 1990s, crime rates have actually declined (see Figure 4–1). Law enforcement officials attribute successes in crime fighting to police “crackdowns,” more aggressive “community policing,” and longer prison sentences for repeat offenders, including “three strikes you’re out” laws. (All are discussed later in this chapter.) In support of this claim, they observe that the greatest reductions in crime occurred in the nation’s largest cities, especially those such as New York that adopted tougher law enforcement practices.
TABLE 4–1 Crime Rates in the United States Official crime rates (offenses reported to police) are compiled and published each year by the FBI, enabling us to follow the rise and fall of various types of crimes.
(Dye 54-55)
FIGURE 4–1 Violent Crime Rate
Contrary to popular perceptions, violent crime has declined dramatically over the past fifteen years.
SOURCES: U.S. Department of Justice, Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics, 1999; Federal Bureau of Investigation, Crime in the United States, 2008.
Violence attributed to terrorism is now separately reported by the FBI. (Thus, the murder rate reported for 2001 in the FBI’s Uniform Crime Reporting Program does not include the deaths that resulted from the terrorist attacks on America on September 11, 2001.) In all, there were 3,047 deaths from the 9/11 terrorist attack on New York’s World Trade Center, the Pentagon in Washington, and the airliner crash in Somerset County, Pennsylvania (see Chapter 14).
(Dye 55-56)
Victimization.
FBI official crime rates understate the real amount of crime. Many crimes are not reported to the police and therefore cannot be counted in the official rate. In an effort to learn the real amount of crime in the nation, the U.S. Justice Department regularly surveys a national sample, asking people whether they have been a victim of a crime during the past year.1 These surveys reveal that the victimization rate is much higher than the official crime rate. The number of forcible rapes, as well as burglaries, assaults, and robberies, is twice the number reported to police. And property crimes are three times higher. Only auto theft and murder statistics are reasonably accurate, indicating that most people call the police when their car is stolen or someone is murdered.
The victimization rate for violent crime, although over twice as high as the reported crime rate, has generally risen and fallen over the years in the same fashion as the crime rate. That is, the victimization rate for violent crime peaked in the early 1990s, and then fell dramatically during the remainder of the decade. Why do people fail to report crime to the police? The most common reason given by interviewees is the belief that the police cannot be effective in dealing with the crime. Other reasons include the feeling that the crime is “a private matter” or that the victim does not want to harm the offender. Fear of reprisal is mentioned much less frequently, usually in cases of assault and family crimes.
Juvenile Crime.
The juvenile system is not designed for deterrence. Children are not held fully responsible for their actions, in the belief that they do not possess the ability to understand the nature or consequences of their behavior or its rightness or wrongness. Yet juvenile crime, most of which is committed by 15- to 17-year-olds, accounts for about 20 percent of the nation’s overall crime rate. Offenders under 18 years of age are usually processed in a separate juvenile court.
Juvenile courts rarely impose serious punishment. Available data suggest that about 13 percent of juveniles charged with violent crimes are sent to adult court; 16 percent are sent to juvenile detention centers; and the remaining 71 percent are either dismissed, placed on probation, given suspended sentences, or sent home under supervision of a parent.2 Very few juveniles who are sentenced to detention facilities stay there very long. Even those convicted of murder cannot be kept in detention facilities beyond the age of 21. Moreover, the names of juveniles arrested, charged, or convicted are withheld from publication or broadcast, eliminating whatever social stigma might be associated with their crimes. Their juvenile criminal records are expunged when they become adults, so that they can begin adulthood with “clean” records. Whatever the merits of the juvenile system in the treatment of young children, it is clear that the absence of deterrence contributes to criminal behavior among older youths—15-, 16-, and 17-year-olds. Indeed these years are among the most crime-prone ages.
Only in the last few years have states begun to change their juvenile systems to incorporate the notion of deterrence. All 50 states now try some juvenile offenders age 14 and over in the adult system for serious crimes. In most states decisions to transfer juveniles to the adult court system are made by either judges or prosecutors. However, relatively few juveniles are tried as adults.
“Nonserious” and “Victimless” Crimes.
The FBI’s Uniform Crime Reporting Program does not count so-called nonserious or victimless crimes, including drug violations, prostitution and sex crimes, gambling, driving while intoxicated, and liquor law violations. These crimes vastly outnumber the FBI’s indexed serious crimes. There are five times as many arrests for non-serious as for serious crimes.
Some crimes are labeled “victimless” because participation by all parties to the crime is presumed to be voluntary. For example, prostitution is considered a victimless crime because both the buyer and seller voluntarily engage in it. Most drug crimes—the sale and use of modest amounts of drugs—are voluntary and considered victimless. Nonetheless, there is a close relationship between these nonserious crimes and more serious FBI index crimes. Prostitutes are vulnerable to violence and theft because perpetrators know that they are unlikely to report crime to the police for fear of prosecution themselves. Drug dealers have no way to enforce agreements by going to the courts. They must resort to violence or intimidation to conclude deals, and they too are unlikely to report crimes to the police. It is sometimes argued that if drugs and prostitution were legalized, their association with serious crime would diminish, just as the end of prohibition largely ended crime associated with the sale of alcohol.
White-Collar Crime.
Most white-collar crime does not appear in the FBI’s index of crimes. Nonetheless, white-collar crime is estimated to cost the American public more in lost dollars than all of the “serious” index crimes put together. Fraud (the perversion of the truth in order to cause others to part with their money), as well as forgery, perjury (lying under oath), tax evasion, and conspiring with others to commit these crimes, are all part of white-collar crime. Perhaps the most well-publicized white-collar crimes occurred in Enron Corporation, once the seventh-largest corporation in America. The fraud involved upper management and their accountants hiding billions of dollars in corporate losses in covert “partnerships” in order to make Enron appear profitable and its stock valuable. Top Enron executives invested employee retirement savings in the company’s stock. These same executives then sold their own stock at inflated prices, pocketing millions for themselves. When the fraud was unraveled in 2001, Enron went bankrupt, and the stock became worthless. Investors, employees, retirees, and others were defrauded.
Corruption in Government.
It is widely believed that “politics is corrupt,” but it is difficult to measure the full extent of corruption in government. Part of the problem is in defining terms: what is “corrupt” to one observer may be “just politics” to another. The line between unethical behavior and criminal activity is a fuzzy one. Unethical behavior may include favoritism toward relatives, friends, and constituents, or conflicts of interest, in which public officials decide issues in which they have a personal financial interest. Not all unethical behavior is criminal conduct. But bribery is a criminal offense—soliciting or receiving anything of value in exchange for the performance of a governmental duty. And perjury is lying under oath.
The U.S. Justice Department reports on federal prosecutions of public officials for violations of federal criminal statutes. These reports do not include state prosecutions, so they do not cover all of the criminal indictments brought against public officials each year. Nonetheless, these figures indicate that over 1,100 public officials are indicted by the Justice Department each year.3
(Dye 56-57)
It is not uncommon for special interests to contribute to the campaign chests of elected officeholders from whom they are seeking favorable governmental actions. Indeed, public officials may come to expect contributions from contractors, developers, unions, and others doing business with government. A “pay to play” culture develops in many cities and states. But the key difference between merely rewarding supporters and engaging in bribery is the quid pro quo: if a payment or contribution is made for a specific governmental action, it risks criminal prosecution as bribery. So prudent interests to ensure that their contributions are made well in advance of the governmental actions they seek. Prudent politicians avoid any communications that suggest that a particular official action was made in exchange for a payment or contribution.
Hate Crimes.
Hate crimes are offenses motivated by hatred against a victim or a group based upon race, religion, sexual orientation, ethnicity or national origin, or disability. A hate crime is bias-motivated criminal conduct; it is not the mere expression of bias or hatred.
Since the official reporting of hate crimes began in the 1990s, roughly 8,000 incidents of hate crimes have been reported annually to the FBI. This is a small proportion of the more than 12 million crimes reported each year. A majority of reported hate crimes are motivated by race, with most of these crimes directed at African Americans (see Figure 4–2). Of religious hate crimes, most are anti-Jewish. Of ethnicity-motivated crimes, most are anti-Hispanic. And of sexual orientation hate crimes, most are anti-male homosexual.
FIGURE 4–2 Bias Motivation in Hate Crimes
Bias-motivated crimes are a small proportion of total crimes committed each year, not they are considered to be especially harmful to society.
SOURCE: Data from Statistical Abstract of the United States 2008, p. 198.
Bias-motivated crimes cause greater harm to society than crimes committed with other motivations, for example, greed, passion, etc. The U.S. Supreme Court in upholding a Wisconsin law that increased the penalty for crimes intentionally inflicted upon victims based upon their race, religion, sexual orientation, national origin or disability, observed that “bias-motivated crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest … the State’s desire to redress these perceived wrongs provides an adequate explanation for its penalty enhancement provision over and above mere disagreement with offenders’ beliefs or biases.4 Motivation has always been an element in criminal cases. It does not violate the First Amendment freedom of expression to consider motivation in a criminal case, but there must be a crime committed, independent of the defendant’s beliefs or biases.
Historically the Supreme Court viewed prohibitions on offensive speech as unconstitutional infringements of First Amendment freedoms. “The remedy to be applied is more speech, not enforced silence.” The Supreme Court was called upon to review prohibitions on hate speech in 1992 when the city of Saint Paul, Minnesota, enacted an ordinance prohibiting any communication that “arouses anger, alarm, or resentment among others on the basis of race, color, creed, religion, or gender.” But the Supreme Court, in a unanimous decision, struck down the city’s effort to prohibit expressions only because they “hurt feelings.”5 Speech expressing racial, gender, or religious intolerance is still speech and is protected by the First Amendment.
While upholding enhanced penalties for bias-motivated crimes, the Supreme Court has held that a criminal defendant’s “abstract beliefs, however obnoxious to most people, may not be taken into consideration by a sentencing judge.”6 But the defendants motive for committing a particular criminal act has traditionally been a factor in sentencing, and a defendant’s verbal statements can be used to determine motive.
Crime and Deterrence
The deterrence strategy in criminal justice policy focuses on punishment—its certainty, swiftness, and severity. The effectiveness of deterrence depends on:
• The certainty that a crime will be followed by costly punishment. Justice must be sure.
• The swiftness of the punishment following the crime. Long delays between crime and punishment break the link in the mind of the criminal between the criminal act and its consequences. And a potential wrongdoer must believe that the costs of a crime will occur within a meaningful time frame, not in a distant, unknowable future. Justice must be swift.
• The severity of the punishment. Punishment that is perceived as no more costly than the ordinary hazards of life on the streets, which the potential criminal faces anyhow, will not deter. Punishment must clearly outweigh whatever benefits might be derived from a life of crime in the minds of potential criminals. Punishment must be severe.
These criteria for an effective deterrent policy are ranked in the order of their probable importance. That is, it is most important that punishment for crime be certain. The severity of punishment is probably less important than its swiftness or certainty.
Social Heterogeneity.
Of course, there are many other conflicting theories of crime in America. For example, it is sometimes argued that this nation’s crime rate is a product of its social heterogeneity—the multiethnic, multiracial character of the American population. Low levels of crime in European countries, Japan, and China are often attributed to their homogeneous populations and shared cultures. African Americans in the United States are both victims and perpetrators of crime far more frequently than whites. Whereas African Americans constitute only 12.7 percent of the population, they account for nearly 40 percent of all persons in federal and state prisons (see Table 4–2).
TABLE 4–2 Federal and State Prisoners by Race Blacks and Hispanics comprise a majority of federal and state prisoners; these groups are also far more likely than whites to be victims of crime.
(Dye 58-60)
TABLE 4–3 Murder: Victims and Weapons Black males are almost eight times more likely to be murdered than white males; most murders are committed with guns.
(Dye 60)
African Americans are also much more likely to be victims of crime; the murder victimization rate for African American males is almost ten times greater than for white males (see Table 4–3).
Socialization and Control.
Yet another explanation of crime focuses on the erosion of social institutions—families, schools, churches, communities—that help to control behavior. These are the institutions that transmit values to children and socially censure impermissible behavior among adults. When ties to family, church, and community are loosened or nonexistent, individuals are less constrained by social mores. Older juveniles turn to peer groups, including gangs, for status and recognition. Defiance of authority, including arrest and detention, and other “macho” behaviors become a source of pride among young males. The deterrent effect of the criminal justice system is minimized. In contrast, when family oversight of behavior is close or when young people find status and recognition in school activities, sports or recreation, or church affairs, social mores are reinforced.
Irrational Crime.
It is also argued that crime is irrational—that the criminal does not weigh benefits against potential costs before committing the act. Many acts of violence are committed by persons acting in blind rage—murders and aggravated assaults among family members, for example. Many rapes are acts of violence, inspired by hatred of women, rather than efforts to obtain sexual pleasure. More murders occur in the heat of argument than in the commission of other felonies. These are crimes of passion rather than calculated acts. Thus, it is argued, no rational policies can be devised to deter these irrational acts.
Deterrence versus Liberty.
Finally, we must recognize that the reduction of crime is not the overriding value of American society. Americans cherish individual liberty. Freedom from repression—from unlawful arrests, forced confessions, restrictions on movement, curfews, arbitrary police actions, unlimited searches of homes or seizures of property, punishment without trial, trials without juries, unfair procedures, brutal punishments, and so on—is more important to Americans than freedom from crime. Many authoritarian governments boast of low crime rates and criminal justice systems that ensure certain, swift, and severe punishment, but these governments fail to protect the personal liberties of their citizens. Indeed, given the choice of punishing all of the guilty, even if some innocents are also punished by mistake, or taking care that innocent persons not be punished, even if some guilty people escape, most Americans would choose the second alternative—protecting the innocent.
Does Crime Pay?
While we acknowledge that there are multiple explanations for crime, we shall argue that the frequency of crime in America is affected by rational criminal justice policy: crime is more frequent when deterrence is lax, and crime declines with the movement toward stricter deterrence policy.
Lack of Certainty.
The best available estimates of the certainty of punishment for serious crime suggests that very few crimes actually result in jail sentences for the perpetrators. Yearly 12 million serious crimes are reported to the police annually, but only 1 million persons are arrested for these crimes (see Figure 4–3). Some of those arrested are charged with committing more than one crime, but it is estimated that the police “clear” less than 20 percent of reported crimes by arresting the offender. Some offenders are handled as juveniles; some are permitted to plead guilty to minor offenses; others are released because witnesses fail to appear or evidence is weak or inadmissible in court. Convicted felons are three times more likely to receive probation than a prison sentence. Thus, even if punishment could deter crime, our current criminal justice system does not ensure punishment for crime.
Lack of Swiftness.
The deterrent effect of a criminal justice system is lost when punishment is so long delayed that it has little relationship to the crime. The bail system, together with trial delays, allow criminal defendants to escape the consequences of their acts for long, indefinite periods of time. Most criminal defendants are free on bail shortly after their arrest; only those accused of the most serious crimes, or adjudged to be likely to flee before trial, are held in jail without bond. In preliminary hearings held shortly after arrest, judges release most defendants pending trial; even after a trial and a guilty verdict, many defendants are free on bail pending the outcome of lengthy appeals. The Constitution guarantees persons accused of crimes freedom from “excessive bail” (Eighth Amendment), and judges may not hold defendants in jail simply because they think the defendants might commit additional crimes while out on bail.
FIGURE 4–3 Crime and Punishment
(Dye 60-62)
Many crimes are not reported to police, many crimes do not result in arrests, and relatively few criminals are imprisoned; this lack of certainity of punishment for crime undermines deterrence.
SOURCE: Data from Statistical Abstract of the United States, 2008.
The court system works very slowly, and delays favor the criminal defendant. Defendants request delays in court proceedings to remain free as long as possible. Moreover, they know that witnesses against them will lose interest, move away, grow tired of the hassle, and even forget key facts, if only the case can be postponed long enough.
Justice delayed destroys the deterrent effect, especially in the minds of youthful offenders, who may be “present oriented” rather than “future oriented.” They may consider the benefits of their criminal acts to be immediate, while the costs are so far in the future that they have no real meaning. Or the costs may be estimated to be only the arrest itself and a night in jail before release on bail. For deterrence to work, the perceived costs of crime must be greater than the perceived benefits in the minds of potential wrongdoers.
The Question of Severity.
More people are imprisoned today in America than at any previous time. State and federal prisons currently hold over 1,400,000 prisoners, up from 320,000 in 1980. Not only are there more inmates in the nation’s prisons, but also the percentage of the nation’s population behind bars, the incarceration rate, is the highest in recent history.7
In recent years, prison sentences have lengthened dramatically. Prison-building programs, begun in the states in the 1980s, expanded the nation’s prison capacity and resulted in fewer early releases of prisoners. Many state legislatures enacted mandatory minimum prison terms for repeat offenders (including popular “three strikes you’re out” laws mandating life sentences for third violent felonies). And many states enacted determinant sentencing or sentencing guidelines (legally prescribed specific prison terms for specified offenses) limiting judicial discretion in sentencing.
The result of these changes in judicial policy has been a dramatic increase in the time served for violent offenses. The average time served for such offenses has doubled since 1990, and the average percentage of sentences served has risen from less than 50 percent to more than 80 percent.
Deterrence or Incapacitation?
Even if stricter criminal justice policies are partly or primarily responsible for declining crime rates, it is not clear whether these policies are creating a deterrent effect or simply incapacitating wrongdoers and thereby preventing them from committing crimes outside prison walls.
FIGURE 4–4 As Incarceration Rate Rises, Violent Crime Declines
(Dye 62-63)
The incarceration rate (the number of prisoners in relation to the nation’s population) has risen dramatically, while the violent crime rate has declined dramatically, suggesting that imprisoning criminals reduces crime.
Note: Violent Crime Rate Scale on right axis, ranging from 732 in 1990 to 465 in 2004.
Incarcerations Rate Scale on left axis, ranging from 297 in 1990 to 495 in 2004.
*Includes prisoners in federal and state prisons at year’s end.
SOURCE: Bureau of Justice Statistics, 2006.
But there is a close correlation between rising incarceration rates and declining rates of violent crime (see Figure 4–4). Perhaps the nation is succeeding in getting more violent criminals off the streets (incapacitation). Or perhaps the increased severity of punishment is having a deterrent effect.
Police and Law Enforcement
The principal responsibility for law enforcement in America continues to rest with state and local governments. The major federal law enforcement agencies—the FBI and the Drug Enforcement Administration (DEA) in the Department of Justice, and the Bureau of Alcohol, Tobacco, and Firearms (ATF) in the Treasury Department—are charged with enforcing federal laws. Although the role of the federal government in law enforcement is growing, state and local governments continue to carry the major burdens of police protection, judicial systems, and prison and parole programs. The federal Department of Justice employs about 175,000 people in all law enforcement activities, compared with about 1.7 million state and local government law enforcement and corrections personnel.8 Federal prisons contain about 175,000 inmates, compared with over 1.3 million in state prisons.9
Police Functions.
At least three important functions in society are performed by police: enforcing laws, keeping the peace, and furnishing services. Actually, law enforcement may take up only a small portion of a police officer’s daily activity. The service function is far more common—attending accidents, directing traffic, escorting crowds, assisting stranded motorists, and so on. The function of peacekeeping is also very common—breaking up fights, quieting noisy parties, handling domestic or neighborhood quarrels, and the like. It is in this function that police exercise the greatest discretion in the application of the law. In most of these incidents, it is difficult to determine blame, and the police must use personal discretion in handling each case.
The police are on the front line of society’s efforts to resolve conflict. Indeed, instead of a legal or law enforcement role, the police are more likely to adopt a peace-keeping role. They are generally lenient in their arrest practices, that is, they use their arrest powers less often than the law allows. Rather than arresting people, the police prefer first to reestablish order. Of course, the decision to be more or less lenient in enforcing the law gives the police a great deal of discretion—they exercise decision-making powers on the streets.
Police Discretion.
What factors influence police decision making? Probably the first factor is the attitude of the other people involved in police encounters. If a person adopts an acquiescent role, displays deference and respect for the police, and conforms to police expectations, he or she is much less likely to be arrested than a person who shows disrespect or uses abusive language.10 This is not just an arbitrary response. The police learn through training and experience the importance of establishing their authority on the streets.
Community Policing.
Most police activity is “reactive”: typically two officers in a patrol car responding to a radio dispatcher who is forwarding reports of incidents. Police agencies frequently evaluate themselves in terms of the number and frequency of patrols, the number of calls responded to, and the elapsed time between the call and the arrival of officers on the scene. But there is little evidence that any of these measures affect crime rates or even citizens’ fear of crime or satisfaction with the police.11
An alternative strategy is for police to become more “proactive”: typically by becoming more visible in the community by walking or bicycling the sidewalks of high crime areas; learning to recognize individuals on the streets and winning their confidence and respect; deterring or scaring away drug dealers, prostitutes, and their customers by a police presence. But this “community policing” is often expensive.
Police Crackdowns.
Police crackdowns—beefed-up police actions against juvenile gangs, prostitutes, and drug traffickers; the frisking of likely suspects on the street for guns and drugs; and arrests for (often ignored) public drinking, graffiti, and vandalism—can reduce crime only if supported by the community as well as prosecutors and judges. Crime rates, even murder rates, have been significantly reduced during periods of police crackdowns in major cities.12 But these efforts are often sporadic; enthusiasm ebbs as jails fill up and the workload of prosecutors and courts multiplies.
Broken Windows.
New York City’s experience suggests what can be accomplished by stepped-up police activity. In 1993 the city’s newly elected mayor Rudolph Giuliani began to implement what became known as the “broken windows” strategy in law enforcement. The strategy is based on the notion that one neglected broken window in a building will soon lead to many other broken windows. In crime fighting, this theory translates into more arrests for petty offenses (for example, subway turnstile jumping, graffiti, vandalism, and aggressive panhandling, including unwanted automobile window washing) in order not only to improve the quality of life in the city but also to lead to the capture of suspects wanted for more serious crimes. This strategy was coupled with the use of the latest computer mapping technology to track crime statistics and pinpoint unusual activity in specific neighborhoods. Each police precinct was regularly evaluated on the number and types of crimes occurring in it.
The introduction of these hard-line tactics created more than a little controversy. Civil libertarians, as well as many minority-group leaders, complained that these police tactics fall disproportionately on minorities and the poor. It was alleged that Mayor Giuliani’s hard-nosed attitude toward crime created an atmosphere that led to increased police brutality.
But the “broken windows” strategy appears to have made New York City, once among the highest crime rate cities in the nation, now the safest large city in America. Over a five-year period following the introduction of Mayor Giuliani’s tough policies, the city’s overall crime rate fell by an unprecedented 50 percent, and murders fell by 70 percent.13
Federalizing Crime
Politicians in Washington are continually pressured to make “a federal crime” out of virtually every offense in society. Neither Democrats nor Republicans, liberals nor conservatives, are willing to risk their political futures by telling their constituents that crime fighting is a state and local responsibility. So Washington lawmakers continue to add common offenses to the ever lengthening list of federal crimes.
The Federal Role in Law Enforcement.
Traditionally, the federal government’s responsibilities were limited to the enforcement of a relatively narrow range of federal criminal laws, including laws dealing with counterfeiting and currency violations; tax evasion, including alcohol, tobacco, and firearm taxes; fraud and embezzlement; robbery or theft of federally insured funds, including banks; interstate criminal activity; murder or assault of a federal official; and federal drug laws. While some federal criminal laws overlapped state laws, most criminal activity—murder, rape, robbery, assault, burglary, theft, auto theft, gambling, sex offenses, and so on—fell under state jurisdiction. Indeed, the police power was believed to be one of the “reserved” powers states referred to in the Tenth Amendment.
But over time Congress has made more and more offenses federal crimes. Today federal crimes range from drive-by shootings to obstructing sidewalks in front of abortion clinics. Any violent offense motivated by racial, religious, or ethnic animosity is a “hate crime” subject to federal investigation and prosecution. “Racketeering” and “conspiracy” (organizing and communicating with others about the intent to commit a crime) is a federal crime. The greatest impact of federal involvement in law enforcement is found in drug-related crime. Drug offenders may be tried in either federal or state courts or both. Federal drug laws, including those prohibiting possession, carry heavier penalties than those of most states.
Constitutional Constraints.
Only recently has the U.S. Supreme Court recognized that federalizing crime may impinge upon the reserved powers of states. In 1994 Congress passed a popular Violence Against Women Act that allowed victims of gender-motivated violence, including rape, to sue their attackers for monetary damages in federal court. Congress defended its constitutional authority to involve itself in crimes against women by citing the Commerce Clause, arguing that crimes against women interfered with interstate commerce, the power over which is given to the national government in Article 1 of the Constitution. But in 2000 the Supreme Court said, “If accepted, this reasoning would allow Congress to regulate any crime whose nationwide, aggregate impact has substantial effects on employment, production, transit, or consumption. Moreover, such reasoning will not limit Congress to regulating violence, but may be applied equally as well, to family law and other areas of state regulation since the aggregate effect of marriage, divorce, and childbearing on the national economy is undoubtedly significant. The Constitution requires a distinction between what is truly national and what is truly local, and there’s no better example of the police power, which the Founders undeniably left reposed in the states and denied the central government, than the suppression of violent crime in vindication of its victims.”14 In Justice Scalia’s opinion, allowing Congress to claim that violence against women interfered with interstate commerce would open the door to federalizing all crime: this “would allow general federal criminal laws, because all crime affects interstate commerce.”
Multiple Federal Agencies.
The U.S. Department of Justice, headed by the attorney general, handles all criminal prosecutions for violation of federal laws. The Justice Department succeeds in convicting nearly 75,000 offenders in federal district courts, about one-third of these convictions are for drug offenses. The federal government’s principal investigative agencies are the Federal Bureau of Investigation (FBI) and the Drug Enforcement Administration (DEA), both units of the Department of Justice, and the Bureau of Alcohol, Tobacco, and Firearms (ATF) in the Treasury Department.
Efforts to combine these federal law enforcement agencies have consistently foundered in bureaucratic turf battles. (The Central Intelligence Agency (CIA) is an independent agency, which, prior to the passage of the USA Patriot Act in 2001, was constrained in sharing intelligence information with domestic law enforcement agencies.) The Department of Homeland Security includes the Transportation Security Administration; Immigration and Customs Enforcement (ICE), formerly the Immigration and Naturalization Service (INS); the Border Patrol; the Secret Service; and the U.S. Coast Guard, all of which exercise some law enforcement responsibilities (see Chapter 14). This proliferation of federal law enforcement organizations does little to help fight crime.
Crime and Guns
Gun control legislation is a common policy initiative following highly publicized murders or assassination attempts on prominent figures. The federal Gun Control Act of 1968 was a response to the assassinations of Senator Robert F. Kennedy and Martin Luther King, Jr., in that year, and efforts to legislate additional restrictions occurred after attempts to assassinate Presidents Gerald Ford and Ronald Reagan. The rationale for restricting gun purchases, licensing gun owners, or banning guns altogether is that fewer crimes would be committed with guns if guns were less readily available. Murders, especially crimes of passion among family members or neighbors, would be reduced, if for no other reason than that it is physically more difficult to kill someone with only a knife, a club, or one’s bare hands. Most murders are committed with guns (see Table 4–3).
Federal Gun Laws.
Various federal gun control acts15 include the following:
• A ban on interstate and mail-order sales of handguns
• Prohibition of the sale of any firearms to convicted felons, fugitives, illegal aliens, drug users, or adjudicated mental defectives
• A requirement that all firearms dealers must be licensed by the federal Bureau of Alcohol, Tobacco, and Firearms
• A requirement that manufacturers record by serial number all firearms, and dealers record all sales. (Dealers must require proof of identity and residence of buyers, and buyers must sign a statement certifying their eligibility to purchase.)
• Continued restrictions of private ownership of automatic weapons, military weapons, and other heavy ordinance
Federal regulations also ban the importation of “assault weapons,” which are generally defined as automatic weapons.
The Brady Law.
The federal Brady Law of 1993 requires a five-day waiting period for the purchase of a handgun. The national law is named for James S. Brady, former press secretary to President Ronald Reagan, who was severely wounded in the 1981 attempted assassination of the president. Brady and his wife, Sarah, championed the bill for many years before its adoption. Under the law’s provisions, handgun dealers must send police agencies a form completed by the buyer (which is also required in most states); police agencies have five days to make certain the purchaser is not a convicted felon, fugitive, drug addict, or mentally ill person. Supporters believe the law is a modest step in keeping handguns from dangerous people. Opponents, including the National Rifle Association lobby, believe that the law is an empty political gesture at fighting crime that erodes the Second Amendment right to bear arms.
The rejection rate of Brady gun applications is less than 2 percent.
Gun Ownership.
Gun ownership is widespread in the United States. Estimates vary, but there are probably 200 million firearms in the hands of the nation’s 300 million people. In public opinion surveys half of all American families admit to owning guns. A majority of gun owners say their guns are for hunting and sports; about one-third say the purpose of their gun ownership is self-defense. Interestingly, both those who favor a ban on handguns and those who oppose such a ban cite crime as the reason for their position. Those who want to ban guns say they contribute to crime and violence. Those who oppose a ban feel they need guns for protection against crime and violence.
There are about 30,000 gun-related deaths in the United States each year. A majority of these deaths (58 percent) are suicides; over one-third (38 percent) are homicides; and the remaining (4 percent) are accidental. It is relatively easy to count gun-related deaths, but it is very difficult to estimate the number of deaths, injuries, or crimes that are prevented by citizens using guns. Protective uses of guns against murder, burglary, assault, and robbery have been estimated to be as high as 2 million per year.16 If this estimate is correct, then guns are used more for self-protection than for crime.
State Laws.
State laws, and many local ordinances, also govern gun ownership. Handgun laws are common. Most states require that a record of sale be submitted to state or local government agencies; some states require an application and a waiting period before the purchase of a handgun; a few states require a license or a permit to purchase one; most states require a license to carry a “concealed weapon” (hidden gun). Private gun sales are largely unregulated. Until recently, most states allowed unregulated private sales at “gun shows.” Private sales are not covered by the Brady Act.
Gun Laws and Crime.
There is no systematic evidence that gun control laws reduce violent crime. If we compare violent crime rates in jurisdictions with very restrictive gun laws (for example, New York, Massachusetts, New Jersey, Illinois, and the District of Columbia) to those in jurisdictions with very loose controls, we find no differences in rates of violent crime that cannot be attributed to social conditions. Gun laws, including purchase permits, waiting periods, carrying permits, and even complete prohibitions, seem to have no effect on violent crime, or even crimes committed with guns.17 Indeed, gun laws do not even appear to have any effect on gun ownership. Even the Massachusetts ban on handguns, which calls for a mandatory prison sentence for unlicensed citizens found carrying a firearm, did not reduce gun-related crime.18 The total number of persons imprisoned for gun crimes was essentially unchanged; however, more persons without criminal records were arrested and charged with gun law violations. To date we must conclude that “there is little evidence to show that gun ownership among the population as a whole is, per se, an important cause of criminal violence.”19
Indeed, some criminologists argue that guns in the hands of law-abiding citizens may reduce violent crime.20 It is difficult to obtain evidence of “nonevents,” in this case crimes averted by citizens with weapons, or crimes uncommitted by potential offenders fearing confrontation with armed citizens. Proponents of gun control have ready access to data on the number of murders committed with handguns. But there is also some evidence that as many or more crimes against both persons and property are foiled or deterred by gun ownership.21
The Right to Bear Arms.
The gun control debate also involves constitutional issues. The Second Amendment to the U.S. Constitution states, “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” For many years arguments over gun control centered on whether “the right to bear arms” was an individual right like the First Amendment freedom of speech, or whether the prefatory clause referring to “a well regulated milita” meant that the Second Amendment protected only the collective right of the states to form militias, that is, the right of states to maintain National Guard units.
Proponents of gun control often cited a Supreme Court decision, United States v. Miller (1939).22 In this case, the Court considered the constitutionality of the federal National Firearms Act of 1934, which among other things prohibited the transportation of sawed-off shotguns in interstate commerce. The defendant claimed that Congress could not infringe on his right to keep and bear arms. But the Court responded that a sawed-off shotgun had no “relationship to the preservation or efficiency of a well-regulated militia.” The clear implication of this decision is that the right to bear arms refers only to a state’s right to maintain a militia.
Opponents of gun control argued that the rights set forth in the Bill of Rights ought to be interpreted as individual rights. The history surrounding the adoption of the Second Amendment reveals the concern of citizens with the attempt by a despotic government to confiscate their arms and render them helpless to resist tyranny. James Madison writes in The Federalist, No. 46, that “the advantage of being armed which the Americans posses over the people of almost every other nation … forms a barrier against the enterprise of [tyrannical] ambition.” Early American political rhetoric is filled with praise for an armed citizenry able to protect its freedoms with force if necessary. And the “militia” was defined as every adult free male able to carry a weapon. Even early English common law recognized the right of individuals “to have and use arms for self-protection and defense.”23
The Supreme Court finally resolved the underlying issue in District of Columbia v. Heller (2008) by holding that “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”24 The Court held that the District of Columbia’s complete ban on handguns in the home violated the individual’s right under the Second Amendment “to keep and bear arms.” The Court observed that many bills of rights in state constitutions at the time of the Second Amendment’s ratification contained an individual right to bear arms. And it noted that the earlier case, United States v. Miller, applied only to a type of weapon not commonly used for lawful purposes. The Court also held that the District’s requirement that all guns in the home be either disassembled or guarded with a trigger lock violated the right of self-defense by rendering guns nonfunctional.
(Dye 67-70)
But the Supreme Court went on to observe that “Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Justice Scalia, writing for a 5–4 majority, wrote that various government restrictions on guns may be constitutional, including restrictions on carrying concealed weapons, prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places, such as schools and government buildings. Thus, the Supreme Court left open the issue of exactly which gun controls are constitutional and which are not. It is likely that arguments over the constitutionality of various gun-control measures will occupy the courts for some time to come.
The Drug War
Americans have long harbored ambivalent attitudes toward drug use. Alcohol and tobacco are legal products. The manufacture, sale, or possession of heroin and cocaine are criminal offenses under both state and federal laws. Marijuana has been “decriminalized” in several states, making its use or possession a misdemeanor comparable to a traffic offense; a majority of states, however, retain criminal sanctions against the possession of marijuana, and its manufacture and sale are still prohibited by federal law. However, popular referenda votes in several states, including California, indicate that voters approve of the use of marijuana for medical purposes.
Drug Use.
Overall drug use in the United States today appears to be below levels of two or three decades ago. However, since the mid-1990s, drug use has crept upward. These conclusions are drawn from national surveys on drug use regularly undertaken by the federal government (see Figure 4–5).
Marijuana is the most commonly used drug in the United States. Roughly 8 percent of the population over 12 years old report that they have used marijuana in the past month. There is conflicting evidence as to whether or not marijuana is more or less dangerous to health than alcohol or tobacco. The White House Office of National Drug Control Policy contends that the effects of marijuana include frequent respiratory infections, impaired memory and learning, and increased heart rate. It defines marijuana as an addictive drug because it causes physical dependence, and some people report withdrawal symptoms. In contrast, the National Organization for the Reform of Marijuana Laws (NORML) argues that marijuana is nontoxic; it cannot cause death by overdose; and its “responsible use” is “far less dangerous than alcohol or tobacco.” The real problem, it contends, is that marijuana’s prohibition creates an environment for criminal activity, wastes criminal justice resources, and invites government to invade our private lives.
Cocaine use is much more limited than marijuana use. About 1 percent of the population over 12 years of age report using cocaine in the past month. Cocaine is not regarded as physically addictive, although the psychological urge to continue its use is strong. It is made from coca leaves and imported into the United States. Originally, its high cost and celebrity use made it favored in upper-class circles. However, cocaine spread rapidly in the streets with the introduction of “crack” in the 1980s. Crack cocaine can be smoked and a single “hit” purchased for a few dollars. The health problems associated with cocaine use are fairly serious, as reported by the National Institute on Drug Abuse. Death, although rare, can occur from a single ingestion. The power of the coca leaf has been known for hundreds of years; Coca-Cola originally contained cocaine, though the drug was removed from the popular drink in 1903.
FIGURE 4–5 Drug Use in America*
(Dye 70-71)
Drug use has declined significantly since the 1970s, although there has been a slight rise in recent years.
SOURCE: Substance Abuse and Mental Health Services (SAMHSA), National Survey of Drug Use and Health. www.samhsa.gov
*Current (past-month) use of any illicit drug.
Heroin use is relatively rare. The Harrison Narcotic Act of 1916 made the manufacture, sale, or possession of heroin in the United States a federal crime. Various “designer” drugs, for example, “ecstacy,” occasionally appear in clubs and on the streets. Some are prepared in underground laboratories where hallucinogens, stimulants, and tranquilizers are mixed in various combinations. Drugs that are injected intravenously, rather than inhaled, pose additional health dangers. Intravenous injections with contaminated needles are a major contributor to the spread of the HIV-AIDS virus.
Prescription Drugs.
Prescription drug abuse is now perceived as a major concern in the war on drugs. Past month use of prescription drugs for nonmedical purposes is currently estimated to exceed the use of marijuana. This use appears to be especially prevalent among young people, who often obtain these drugs from their parents’ medicine cabinets. A number of factors may contribute to the increased use of prescription drugs: the belief that they are safer than illicit street drugs; the relative ease with which they can be obtained from family and friends; and a lack of awareness of potentially serious consequences of their nonmedical use, especially when mixed with alcohol.
TABLE 4–4 Drug Use by Age Young Americans are much more likely to use illicit drugs and to binge drink than older Americans.
aCurrent (within the past month) use
bFive or more drinks on the same occasion
SOURCE: National survey of Drug Use and Health, Statistical Abstract of the United States, 2007, p. 126.
Drugs and Youth.
Drug use varies considerably by age group. Younger people are much more likely to use illicit drugs than older people, and young people are more likely to “binge” drink (see Table 4–4).
Drug Trafficking.
It is very difficult to estimate the total size of the drug market. The U.S. Office of Drug Control Policy estimates that Americans spend about $65 billion on illicit drugs each year. This would suggest that the drug business is comparable in size to one of the ten largest U.S. industrial corporations. More important, perhaps, drugs produce huge profit margin. Huge profits in turn allow drug traffickers to corrupt police and government officials as well as private citizens in the United States and other nations.
Drug Policy Options
Antidrug efforts can be categorized as (a) interdiction, including international attacks on the supply of drugs; (b) domestic law enforcement, including federal and state incarceration for the possession and sale of drugs; (c) treatment, including rehabilitation centers, drug courts, and methadone; (d) prevention, including school-based, community, and media-centered antidrug education. The bulk of federal antidrug spending is concentrating on interdiction and law enforcement (see Figure 4–6).
lnterdiction.
Efforts to seal U.S. borders against the importation of drugs have been frustrated by the sheer volume of smuggling. Each year increasingly large drug shipments are intercepted by the U.S. Drug Enforcement Administration, the U.S. Customs Service, the U.S. Coast Guard, and state and local agencies. Yet each year the volume of drugs entering the country seems to increase. Drug “busts” are considered just another cost of business to the traffickers.
Federal drug policy also includes efforts to destroy the sources of drugs. U.S. military as well as drug enforcement officers are sent abroad to assist foreign governments (Colombia, for example) in destroying coca crops and combating drug cartels. But these activities often result in strained relationships with foreign countries. Our neighbors wonder why the U.S. government directs its efforts at the suppliers, when the demand for drugs arises within the United States itself. The continued availability of drugs on the nation’s streets—drugs at lower prices and higher purities—suggests that interdiction has largely failed.
FIGURE 4–6 Federal Antidrug Spending
About two-thirds of federal antidrug spending is directed at interdiction and law enforcement; only about one-third at treatment and prevention.
SOURCE: Office of National Drug Control Policy, 2008.
Education.
Efforts aimed at educating the public about the dangers of drugs have inspired many public and private campaigns over the years, from the Advertising Council’s TV ads “This is your brain on drugs” to local police–sponsored DARE (drug abuse resistance education) programs.
The decline in overall drug use over several decades is often overlooked in political debates over drug policy. Culturally, drug use went from being stylish and liberating to being unfashionable, unwise, and unhealthy. Perhaps educational campaigns contributed to drug use decline, as well as the onset of HIV-AIDS, and the well-publicized drug-related deaths of celebrity athletes and entertainers. Recent fluctuations in reported drug use, however, suggest that educational campaigns may grow stale over time.
Enforcement.
The FBI and state and local law enforcement agencies already devote a major portion of their efforts toward combating drugs. Over 1.5 million persons are arrested for drug violations each year (see Figure 4–7). Federal and state prisons now hold a larger percentage of the nation’s population than ever before. Sentences have been lengthened for drug trafficking.
Federal law calls for a mandatory minimum sentence of five years for the possession or sale of various amounts of heroin, cocaine, or marijuana. Drug offenders account for 59 percent of the federal prison population and 21 percent of state prison populations. It costs about $25,000 per year to house a federal prison inmate.
FIGURE 4–7 Drug Arrests
Drug arrests, relatively low in the 1970s, have more than tripled in recent years. Arrests for drug offenses exceed those for any other crime.
SOURCE: Federal Bureau of Investigation, Uniform Crime Reports, 2006.
The U.S. Drug Enforcement Administration (DEA) in the Department of Justice was created by Congress in 1973. Because it has the authority to enforce federal drug laws both in the United States and abroad, DEA officers may go abroad to collect international intelligence and to cooperate with foreign authorities. The U.S. Customs Service has responsibility for stopping the entry of narcotics at U.S. borders. The U.S. Coast Guard cooperates in drug interception. The FBI monitors drug trafficking that contributes to other federal crimes. Surveillance of low-level buying and selling of drugs is usually left to state and local authorities.
Congress created a “drug czar” position in 1988 (officially the National Drug Control Policy Director) to develop and coordinate antidrug policy in the United States. The national “war on drugs” has included federal funds for prison construction, state and local drug law enforcement activity, and state and local drug treatment programs. Each year, the federal government allocates about $14 billion to the war on drugs.
Treatment.
Special “drug courts” and diversion programs developed in the states often give nonviolent drug users a choice between entering treatment programs or going to jail. While some users benefit from treatment, the overall success of treatment programs is very poor; most heavy drug users have been through treatment programs more than once. An estimated 60 to 80 percent of heavy cocaine users return to heavy use after treatment.25
Legalization?
(Dye 72-74)
The failure of antidrug policies to significantly reduce the drug supply or demand, coupled with the high costs of enforcement and the loss of civil liberties, has caused some observers to propose the legalization of drugs and government control of their production and sale. Prohibition failed earlier in the twentieth century to end alcohol consumption, and crime, official corruption, and the enormous cost of futile efforts to stop individuals from drinking eventually forced the nation to end Prohibition. It is similarly argued that the legalization of drugs would end organized crime’s profit monopoly over the drug trade; raise billions of dollars by legally taxing drugs; end the strain on relations with Latin American nations caused by efforts to eradicate drugs; and save additional billions in enforcement costs, which could be used for education and drug treatment.26 If drugs were legally obtainable under government supervision, it is argued that many of society’s current problems would be alleviated: the crime and violence associated with the drug trade, the corruption of public officials, the spread of diseases associated with drug use, and the many infringements of personal liberty associated with antidrug wars.
But even the suggestion of drug legalization offends Americans who believe that it would greatly expand drug use in the country. Cheap, available drugs may greatly increase the numbers of addicted persons, creating a “society of zombies” that would destroy the social fabric of the nation. Cocaine and heroin are far more habit forming than alcohol, and legalization may encourage the development of newer and even more potent and addictive synthetic drugs. Whatever the health costs of drug abuse today, it is argued that legalization would produce public health problems of enormous magnitude.27 Cocaine is very cheap to produce; the current five- to ten-dollar cost of a “hit” is mostly profit for the dealer; legalization, even with taxation, might produce a fifty-cent “hit.” Whatever the damages to society from drug-related crime and efforts to prohibit drugs, the damages from cheap, available drug use may be far greater.
Crime and the Courts
The development of rational policies in criminal justice is complicated by conflicting values—our commitment to due process of law and our determination to fight crime. Public opinion has long held that the court system is overly concerned with the rights of accused criminals. A majority of Americans believe that the Supreme Court has gone too far in protecting the rights of defendants in criminal cases and that the courts are more concerned with protecting these rights than the rights of victims.28
Yet although society needs the protection of the police, it is equally important to protect society from the police. Arbitrary searches, seizures, and arrests; imprisonment without hearing or trial; forced confessions; beatings and torture; tainted witnesses; excessive punishments; and other human rights violations are all too common throughout the world. The courts function to protect citizens accused of crime as well as to mete out punishment for criminal behavior.
Insufficient Evidence and Dismissal.
About half of all felony arrests result in dismissal of the charges against the defendant. This decision is usually made by the prosecutor (the state’s attorney, district attorney, or county prosecutor, as the office is variously designated in the states; or a prosecuting attorney in the U.S. Department of Justice in a federal criminal case). The prosecutor may determine that the offense is not serious or that the offender is not a danger to society or that the resources of the office would be better spent pursuing other cases. But the most common reason for dismissal of the charges is insufficient evidence.
Unreasonable Searches and Seizures.
Individuals are protected by the Fourth Amendment from “unreasonable searches and seizures” of their private “persons, houses, papers, and effects.” The amendment lays out specific rules for searches and seizures of evidence: “No warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Judges cannot issue a warrant just to let the police see if an individual has committed a crime; there must be “probable cause” for such issuance. The indiscriminate searching of whole neighborhoods or groups of people is unconstitutional and is prevented by the Fourth Amendment’s requirement that the place to be searched must be specifically described in the warrant. This requirement is meant to prevent “fishing expeditions” into an individual’s home and personal effects on the possibility that some evidence of unknown illegal activity might crop up. The only exception is if police officers, in the course of a valid search for a specified item, find other items whose very possession is a crime, for example, illicit drugs.
However, the courts permit the police to undertake many other “reasonable” searches without a warrant: searches in connection with a valid arrest, searches to protect the safety of police officers, searches to obtain evidence in the immediate vicinity and in the suspect’s control, searches to preserve evidence in danger of being immediately destroyed, and searches with the consent of a suspect. Indeed, most police searches today take place without a warrant under one or another of these conditions. The Supreme Court has also allowed automobile searches and searches of open fields without warrants in many cases. The requirement of “probable cause” has been very loosely defined; even a “partially corroborated anonymous informant’s tip” qualifies as probable cause to make a search, seizure, or arrest.29 And if the police, while making a warranted search or otherwise lawfully on the premises, see evidence of a crime “in plain view,” they may seize such evidence without further authorization.30
Self-Incrimination and Right to Counsel.
Freedom from self-incrimination originated in English common law; it was originally designed to prevent persons from being tortured into confessions of guilt. It is also a logical extension of the notion that individuals should not be forced to contribute to their own prosecution, that the burden of proof rests upon the state. The Fifth Amendment protects people from both physical and psychological coercion.31 It protects not only accused persons at their own trial but also witnesses testifying in trials of others, civil suits, congressional hearings, and so on. Thus, “taking the Fifth” has become a standard phrase in our culture: “I refuse to answer that question on the grounds that it might tend to incriminate me.” The protection also means that judges, prosecutors, and juries cannot use the refusal of people to take the stand at their own trial as evidence of guilt. Indeed, a judge or attorney is not even permitted to imply this to a jury, and a judge is obligated to instruct a jury not to infer guilt from a defendant’s refusal to testify.
The Supreme Court under Justice Earl Warren greatly strengthened the Fifth Amendment protection against self-incrimination and the right to counsel in a series of rulings in the 1960s:
Gideon v. Wainwright (1963)—Equal protection under the Fourteenth Amendment requires that free legal counsel be appointed for all indigent defendants in all criminal cases.
Escobedo v. Illinois (1964)—Suspects are entitled to confer with counsel as soon as a police investigation focuses on them or once “the process shifts from investigatory to accusatory.”
(Dye 74-77)
Miranda v. Arizona (1966)—Before questioning suspects, a police officer must inform them of all their constitutional rights, including the right to counsel (appointed at no cost to the suspect, if necessary) and the right to remain silent. Although suspects may knowingly waive these rights, the police cannot question anyone who at any point asks for a lawyer or declines “in any manner” to be questioned. The Supreme Court reaffirmed in 2000 that “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.”32 (See Figure 4–8.)
FIGURE 4–8 The Miranda Warning
The Supreme Court, in its 1966 Miranda decision, ruled that police must inform suspects of their constitutional rights before questioning them.
The Exclusionary Rule.
Illegally obtained evidence and confessions may not be used in criminal trials. If police find evidence of a crime in an illegal search, or if they elicit statements from suspects without informing them of their rights to remain silent or to have counsel, the evidence or statements produced are not admissible in a trial. This exclusionary rule is one of the more controversial procedural rights that the Supreme Court has extended to criminal defendants. The rule is also unique to the United States: in Great Britain evidence obtained illegally may be used against the accused, although the accused may bring charges against the police for damages.
The rule provides enforcement for the Fourth Amendment guarantee against unreasonable searches and seizures, as well as the Fifth Amendment guarantee against compulsory self-incrimination and the guarantee of counsel. Initially applied only in federal cases, in Mapp v. Ohio (1961),33 the Supreme Court extended the exclusionary rule to all criminal cases in the United States. A “good faith exception” is made “when law enforcement officers have acted in objective good faith or their transgressions have been minor.”34
The exclusionary rule is a controversial court policy. Many trial proceedings today are not concerned with the guilt or innocence of the accused but instead focus on possible procedural errors by police or prosecutors. If the defendant’s attorney can show that an error was committed, the defendant goes free, regardless of his or her guilt or innocence.
Plea Bargaining.
Most convictions are obtained by guilty pleas. Indeed, about 90 percent of the criminal cases brought to trial are disposed of by guilty pleas before a judge, not trial by jury. The Constitution guarantees defendants a trial by jury (Sixth Amendment), but guilty pleas outnumber jury trials by ten to one.35
Plea bargaining, in which the prosecution either reduces the seriousness of the charges, drops some but not all charges, or agrees to recommend lighter penalties in exchange for a guilty plea by the defendant, is very common. Some critics of plea bargaining view it as another form of leniency in the criminal justice system that reduces its deterrent effects. Other critics view plea bargaining as a violation of the Constitution’s protection against self-incrimination and guarantee of a fair jury trial. Prosecutors, they say, threaten defendants with serious charges and stiff penalties to force a guilty plea. Still other critics see plea bargaining as an under-the-table process that undermines respect for the criminal justice system.
While the decision to plead guilty or go to trial rests with the defendant, this decision is strongly influenced by the policies of the prosecutor’s office. A defendant may plead guilty and accept the certainty of conviction with whatever reduced charges the prosecutor offers and/or accept the prosecutor’s pledge to recommend a lighter penalty. Or the defendant may go to trial, confronting serious charges with stiffer penalties, with the hope of being found innocent. However, the possibility of an innocent verdict in a jury trial is only one in six. This apparently strong record of conviction occurs because prosecutors have already dismissed charges in cases in which the evidence is weak or illegally obtained. Thus, most defendants confronting strong cases against them decide to “cop a plea.”
It is very fortunate for the nation’s court system that most defendants plead guilty. The court system would quickly break down from overload if any substantial proportion of defendants insisted on jury trials.
RICO versus Liberty
Many authoritarian governments throughout the world boast of low crime rates and criminal justice systems that mete out swift and severe punishments. How far do we wish to go in restricting individual liberty to fight crime?
Congress passed the Racketeer Influenced and Corrupt Practices (RICO) Act in 1970, following a 1968 presidential campaign in which President Richard Nixon and Independent candidate George C. Wallace made “getting tough on crime” a key issue. RICO was designed to combat organized crime and drug trafficking. Among other provisions, it allows the U.S. Department of Justice to seize the money and property of people suspected of crimes. The popular slogan was “Take the profit out of crime!”
Criminal Forfeiture.
Under RICO, federal authorities may seize cash, bank accounts, homes, cars, boats, businesses, and other assets that they believe were used in criminal activity or were obtained with profits from criminal activity. People may be stopped in an airport terminal, bus station, or street on suspicion of drug trafficking, and have their cash and cars seized by law enforcement agents.
Assets forfeited to federal law enforcement agencies—FBI, DEA, Customs Service, Treasury and Justice Departments—are usually retained by these agencies (or the profits of selling these assets at auction) and often shared with state and local law enforcement agencies that cooperated in the investigation. Thus, there is a strong bureaucratic incentive for agencies to go after “the profits of crime” and to concentrate on cases likely to result in forfeiture of these assets—primarily drug cases. There is increasing evidence that this incentive has placed drug enforcement ahead of other law enforcement activities in federal, state, and local agencies.
Cause and Burden of Proof in Seizures.
RICO permits the government to seize property before any adjudication of guilt. Indeed, a subsequent guilty verdict in a criminal trial is not necessary for the government to retain possession of the property seized. Originally, the only requirement was that law enforcement agents have “probable cause” to believe a crime had been committed and that the property seized was used in the crime or purchased with the profits of crime. “Probable cause” was a very loose standard; it included anonymous tips, “suspicious” behavior, and persons fitting descriptions (“profiles”) of classes of criminals. In 2000, Congress raised the standard for seizures from “probable cause” to “a preponderance of evidence.”
People whose property is seized under RICO have the burden of appealing to the Justice Department and proving that they are innocent of any crime and, more important, that officers had no cause to seize their property. The burden of litigation, including hiring an attorney to institute proceedings for the return of the property, falls on the citizen, not on the government. The proceedings are considered a civil suit by an individual against the government, not a criminal case by the government against the individual.36 Thus, the government need not prove “beyond a reasonable doubt” that the person was involved in criminal activity or the property was used in a crime. Rather the person must prove his or her own innocence and the government’s lack of “a preponderance of evidence” to seize the property.
The USA Patriot Act of 2001, a key component of the nation’s “War on Terrorism” (see Chapter 14), applies the same type of forfeiture provisions against suspected terrorists.
Reform.
Efforts in Congress to reform RICO’s forfeiture and seizure provisions met with strong opposition by the U.S. Department of Justice, the National Association of Attorneys General, the National District Attorney Association, and many state and local law enforcement officials. But in 2000, after years of horror stories by innocent parties regarding unjust seizures, Congress passed the Civil Asset Forfeiture Reform Act that made some modest changes. In addition to raising the seizure standard to “a preponderance of evidence,” the act now requires the government to prove in the civil case that the property had a “substantial connection” to a criminal act, and prohibits the government from seizing the property of “innocent owners”—those who had no knowledge of its use in criminal activities. But seizures will continue to occur before and even without criminal convictions. (Dye 77-80)
Prisons and Correctional Policies
At least four separate theories of crime and punishment compete for preeminence in guiding correctional policies. Justice: First, there is the ancient Judeo-Christian idea of holding individuals responsible for their guilty acts and compelling them to pay a debt to society. Retribution is an expression of society’s moral outrage, and it lessens the impulse of victims and their families to seek revenge. Deterrence: Another philosophy argues that punishment should be sure, speedy, commensurate with the crime, and sufficiently conspicuous to deter others from committing crimes. Incapacitation: Still another philosophy in correctional policy is that of protecting the public from lawbreakers or habitual criminals by segregating them behind prison walls. Rehabilitation: Finally, there is the theory that criminals are partly or entirely victims of social circumstances beyond their control and that society owes them comprehensive treatment in the form of rehabilitation.
Rising Prison Populations.
More than 10 million Americans are brought to a jail, police station, juvenile home, or prison each year. The vast majority are released within hours or days. There are, however, about 1.4 million inmates in state and federal prisons in the United States. These prisoners are serving time for serious offenses; almost all had a record of crime before they committed the act that led to their current imprisonment. These are persons serving at least one year of prison time; an additional 700,000 persons are held in local jails, serving less than one year of imprisonment. In all, over 2 million Americans are currently in prisons or jails.
Failure of Rehabilitation.
If correctional systems could be made to work—that is, actually to rehabilitate prisoners as useful, law-abiding citizens—the benefits to the nation would be enormous. Eighty percent of all felonies are committed by repeat offenders—individuals who have had prior contact with the criminal justice system and were not corrected by it. Reformers generally recommend more education and job training, more and better facilities, smaller prisons, halfway houses where offenders can adjust to civilian life before parole, more parole officers, and greater contact between prisoners and their families and friends. But there is no convincing evidence that these reforms reduce what criminologists call “recidivism,” the offenders’ return to crime.37 In short, there is no evidence that people can be rehabilitated, no matter what is done. But prison policies now combine conflicting philosophies in a way that accomplishes none of society’s goals. They do not effectively punish or deter individuals from crime. They do not succeed in rehabilitating the criminal. Even the maintenance of order within prisons and the protection of the lives of guards and inmates are serious problems.
Prison life does little to encourage good behavior, as noted by policy analyst John DiIulio, Jr.: “For the most part, the nation’s adult and juvenile inmates spend their days in idleness punctuated by meals, violence, and weight lifting. Meaningful educational, vocational, and counseling programs are rare. Strong inmates are permitted to pressure weaker prisoners for sex, drugs, and money. Gangs organized along racial and ethnic lines are often the real ‘sovereigns of the cellblock.’”38
TABLE 4–5 Jail, Prison, Probation, and Parole Population Almost 7 million people in the United States are serving on probation or parole, or have been sentenced to jail or prison.
SOURCE: Statistical Abstract of the United States, 2007, p. 209.
Failure of Probation.
In addition to the nation’s prison population of 1.4 million, there are about 4 million people currently on probation for serious crimes (see Table 4–5). But probation has been just as ineffective as prison in reducing crime. Even though people placed on probation are considered less dangerous to society than those imprisoned, studies indicate that nearly two-thirds of probationers will be arrested and over one-half will be convicted for a crime committed while on probation.
Failure of Parole.
Over two-thirds of all prisoner releases come about by means of parole. Modern penology, with its concern for reform and rehabilitation, appears to favor parole over unconditional releases. The function of parole and postrelease supervision is to procure information on the parolees’ postprison conduct and to facilitate the transition between prison and complete freedom. These functions are presumably oriented toward protecting the public and rehabilitating the offender. However, studies of recidivism indicate that up to three-fourths of the persons paroled from prison will be rearrested for serious crimes. There is no difference in this high rate of recidivism between those released under supervised parole and those released unconditionally. Thus, it does not appear that parole succeeds in its objectives.
Capital Punishment
Capital punishment has been the topic of a long and heated national debate. Opponents of the death penalty argue that it is cruel and unusual punishment, in violation of the Eighth Amendment of the Constitution. They also argue that the death penalty is applied unequally. A large proportion of those executed have been poor, uneducated, and non-white. In contrast, a sense of justice among many Americans demands retribution for heinous crimes—a life for a life. A mere jail sentence for a multiple murderer or rapist-murderer seems unjust compared with the damage inflicted on society and the victims. In most cases, a life sentence means less than ten years in prison under the current parole and probation policies of many states. Convicted murderers have been set free, and some have killed again.
Prohibition on Unfair Application.
Prior to 1972, the death penalty was officially sanctioned by about half of the states as well as by federal law. However, no one had actually suffered the death penalty since 1967 because of numerous legal tangles and direct challenges to the constitutionality of capital punishment.
In Furman v. Georgia (1972), the Supreme Court ruled that capital punishment as then imposed violated the Eighth Amendment and Fourteenth Amendment prohibitions against cruel and unusual punishment and due process of law.39 The reasoning in the case is very complex. Only two justices declared that capital punishment itself is cruel and unusual. The other justices in the majority felt that death sentences had been applied unfairly: a few individuals were receiving the death penalty for crimes for which many others were receiving much lighter sentences. These justices left open the possibility that capital punishment would be constitutional if it were specified for certain kinds of crime and applied uniformly.
After this decision, a majority of states rewrote their death penalty laws to try to ensure fairness and uniformity of application. Generally, these laws mandate the death penalty for murders committed during rape, robbery, hijacking, or kidnapping; murders of prison guards; murder with torture; and multiple murders. Two trials would be held—one to determine guilt or innocence and another to determine the penalty. At the second trial, evidence of “aggravating” and “mitigating” factors would be presented; if there were aggravating factors but no mitigating factors, the death penalty would be mandatory.
Death Penalty Reinstated.
In a series of cases in 1976 (Gregg v. Georgia, Profitt v. Florida, Jurek v. Texas)40 the Supreme Court finally held that “the punishment of death does not invariably violate the Constitution.” The Court upheld the death penalty, employing the following rationale: the men who drafted the Bill of Rights accepted death as a common sanction for crime. It is true that the Eighth Amendment prohibition against cruel and unusual punishment must be interpreted in a dynamic fashion, reflecting changing moral values. But the decisions of more than half of the nation’s state legislatures to reenact the death penalty since 1972 and the decision of juries to impose the death penalty on hundreds of people under these new laws are evidence that “a large proportion of American society continues to regard it as an appropriate and necessary criminal sanction.” Moreover, said the Court, the social purposes of retribution and deterrence justify the use of the death penalty. This ultimate sanction is “an expression of society’s moral outrage at particularly offensive conduct.” The Court affirmed that Furman v. Georgia struck down the death penalty only where it was inflicted in “an arbitrary and capricious manner.” The Court upheld the death penalty in states where the trial was a two-part proceeding and where, during the second part, the judge or jury was provided with relevant information and standards. The Court upheld the consideration of “aggravating and mitigating circumstances.” It also upheld automatic review of all death sentences by state supreme courts to ensure that these sentences were not imposed under the influence of passion or prejudice, that aggravating factors were supported by the evidence, and that the sentence was not disproportionate to the crime. However, the Court disapproved of state laws mandating the death penalty in first degree murder cases, holding that such laws were “unduly harsh and unworkably rigid.”41
The Supreme Court has also held that executions of the mentally retarded are “cruel and unusual punishments” prohibited by the Eighth Amendment.42 In 2005 the Court held that the Eighth Amendment prohibited executions of offenders who were under age 18 when they committed their crimes.43 And in 2008 the court held that the death penalty for the rape of a child violated the Eighth Amendment; the implication of the decision is that the death penalty can only be imposed for “crimes that take a victim’s life.” (Dye 80-83)
Racial Bias.
The death penalty has also been challenged as a violation of the Equal Protection Clause of the Fourteenth Amendment because of a racial bias in the application of the punishment. White murderers are just as likely to receive the death penalty as black murderers. However, some statistics show that if the victim is white, there is a greater chance that the killer will be sentenced to death than if the victim is black. Nonetheless the Supreme Court has ruled that statistical disparities in the race of victims by itself does not bar the death penalty in all cases. There must be evidence of racial bias against a particular defendant for the Court to reverse a death sentence.45
Executions.
Today, there are about 3,200 prisoners nationwide on death row, that is, persons convicted and sentenced to death. But only about fifty executions are actually carried out each year. The strategy of death row prisoners and their lawyers, of course, is to delay indefinitely the imposition of the death penalty with endless stays and appeals. So far the strategy has been successful for all but a few luckless murderers. As trial judges and juries continue to impose the death penalty and appellate courts continue to grant stays of execution, the number of prisoners on death row grows. The few who have been executed have averaged ten years of delay between trial and execution.
The writ of habeas corpus is guaranteed in the U.S. Constitution, but how many habeas corpus petitions should a condemned prisoner be allowed to submit? The death penalty, of course, is irreversible, and it must not be imposed if there is any doubt whatsoever about the defendant’s guilt. But how many opportunities and resulting delays should death row inmates have to challenge their convictions and sentences? In recent years the Supreme Court has limited habeas corpus petitions in federal courts by prisoners who have already filed claims and lost and who have failed to follow rules of appeal. If new evidence is uncovered after all court appeals have been exhausted, the Supreme Court has indicated that appeal lies with governors’ powers of pardon.
The potential for wrongful executions has always worried Americans. The development of DNA evidence in recent years has made it possible to review and appeal some death penalty sentences. And indeed, DNA evidence has resulted in the release of a few death row prisoners. Other prisoners have been removed from death row because of trial errors, attorney incompetence, evidence withheld by the prosecution, and other procedural errors.
Deterrent Value.
The death penalty as it is employed today—inflicted on so few after so many years following the crime—has little deterrent effect. Nonetheless, it serves several purposes. It gives prosecutors some leverage in plea bargaining with murder defendants. The defendants may choose to plead guilty in exchange for a life sentence when confronted with the possibility that the prosecutor may win a conviction and the death penalty in a jury trial. More important, perhaps, the death penalty is symbolic of the value society places on the lives of innocent victims. It dramatically signifies that society does not excuse or condone the taking of innocent lives. It symbolizes the potential for society’s retribution against heinous crime.
SUMMARY
Crime is a central problem in our society. We face a conflict between our desire to retain individual freedoms and our desire to ensure the safety of our people.
1. After dramatic increases in crime rates over many years, crime rates have been falling since 1993. Law enforcement officials frequently attribute this decline to the adoption of public policies designed to deter crime and incapacitate criminals.
2. A rational policy toward crime would endeavor to make its costs far outweigh its benefits and in theory deter potential wrongdoers. Effective deterrence requires that punishment be certain, swift, and severe. However, certainty and swiftness are probably of more importance to deterrence than is severity.
3. But punishment for crime in the United States today is neither certain nor swift. The likelihood of going to jail for any particular crime is probably less than one in a hundred. Speedy trial and punishment are rare; criminal defendants usually succeed in obtaining long delays between arrest and trial, when most remain free on bail prior to trial.
4. However, incapacitation (placing more criminals in prison for longer terms) appears to be related to lower crime rates. Prison building in the 1980s, together with mandatory sentencing laws and sentencing guidelines in the states, has resulted in higher incarceration rates (numbers of prisoners per 100,000 population).
5. The police provide many services to society in addition to law enforcement. Indeed, only a small proportion of their time is spent in fighting crime. It is difficult to demonstrate conclusively that increased police protection reduces the actual amount of crime.
6. Guns are used in a large number of violent crimes. Public policy on gun control varies throughout the nation. However, states with strict gun control laws do not have lower rates of violent crime, or even of gun-related crime, than states without such laws. The Supreme Court has declared that gun ownership is an individual right guaranteed by the Second Amendment.
7. Public policies toward alcohol and drug use are ambivalent. Although the health dangers of cigarettes, alcohol, marijuana, cocaine, and heroin are widely known, the manufacture, sale, and use of each of these substances are treated differently in law enforcement.
8. Court congestion, increased litigation, excessive delays, endless appeals, variation in sentencing, and excessive plea bargaining all combine to detract from deterrence. The exclusionary rule, which prohibits the use of illegally obtained evidence in court, has generated controversy since it was first announced by the Supreme Court in Mapp v. Ohio in 1961.
9. About half of all serious charges are dismissed by prosecutors before trial. But most convictions are obtained by guilty pleas without jury trials. Plea bargaining is the most common means of resolving criminal cases. Without plea bargaining, the court system would break down from overload.
10. Prison and parole policies have failed to rehabilitate prisoners. Prisons can reduce crime only by incapacitating criminals for periods of time. Most prisoners are recidivists—persons who previously served a sentence of incarceration before being sentenced again. Parolees—persons released by officials for good behavior—are just as likely to commit new crimes as those released after serving full sentences.
