Joel Jacobsen

 When judges decides important public policy issues, they do so on the basis  of a sharply-limited factual record, thanks to the rules of evidence, various exclusionary rules, and rules concerning standing (the right to participate in courtroom proceedings).  (See post 26.)  Judges, primarily involved in deciding cases, make their policy decisions on the basis of anecdotal evidence, the anecdote in question being the case before them. 

There can't be many other formal decision-making processes that devote so many resources to ensuring the decision is ill-informed. 

For the participants in an individual case, releasing one violent person back into society, despite clear proof that he's dangerous to other people, can seem a small thing, as Charles May said it was in 1875.  (See post 50.)  But, over time, many such decisions can alter society.  And alterations in society always have ripple effects.  Most consequences are unintended.

Consider Mayer Hillman's paper "The Impact of Transport Policy on Children's Development."  (Or, if you'd prefer, read this excellent introduction to Hillman's work from the Guardian.)  Hillman points out the ways in which traffic policy, and the government's response to violent crime, have impoverished childhood. 

Children are driven to school because parents fear it's too dangerous to permit them to bicycle or walk.  Children are not allowed to wander around their neighborhoods after school.  Bicycling is considered a risky activity, not to be undertaken without protective gear.  Athletic leagues organized by adults have taken the place of pick-up games.  And we lawyers know why the monkey bars and tall slides have been removed from every playground in America.  There's hardly a playground left standing that can keep the interest of a child older than 5. 

As Hillman says, "In our wish to do the best for our children we have unwittingly cast them in the role of second-class citizens through an oversight of the role of their personal autonomy in the outdoor world. ...  Sadly, the age at which most children are allowed to get around on their own has been steadily raised."

The media is saturated with stories about childhood obesity, the socially-alienating effects of video games, and so on.  But you could read a thousand such articles without finding any but the most fleeting reference to a transportation policy whose chief and frequently only goal is to move as many cars as possible as quickly as possible, turning city streets into freeways that are dangerous even for fit adults to cross.   Still less will you see any connection made to judicial policies that prevent juries from learning the truth about the violent acts of dangerous people. 

Hillman points out that accidents are a poor indicator of dangerousness.  The more dangerous the streets are, the fewer kids ride their bicycles.  The fewer kids ride their bicycles, the fewer are injured riding them.  So a reduction in bicycle accidents involving children can actually mean the streets are less safe for children riding bikes.

In exactly the same way, a reduction in car thefts can reflect the ever-greater steps owners take to protect their cars: alarms, steering-wheel "clubs," electronic locks, pistols in the glove compartment,  security guards patrolling the parking lot, etc.  In other words, a reduction in car thefts can mean the danger has increased to the point that drastic measures have become commonplace. 

Security blogger Bruce Schneier, in his book Beyond Fear: Thinking Sensibly About Security in an Uncertain World, says "Security is a tax on the honest."  The tax burden is enormous in the United States.  The judicial policy of the past 50 years has been to privatize law enforcement.  The well-off (a group that includes every judge in the country) pay the tax with money spent on security.  Those without money pay with their victimizations.  And our butterball children pay the cost in bunker childhoods.