JUDGING CRIMES

The idea that there is no reality outside the courtroom, or that if it exists it doesn't count, is central to the American judicial project.  Of course no one expresses the idea that baldly, but it's the underpinning of much conventional wisdom.  To take just the most obvious example, lawyers and judges tend to believe Roe v. Wade was a case about abortion rights, when in fact it was the founding document of the religious right, today the most influential political bloc in America. 

Another example of the phenomenon is illustrated by these figures from the Bureau of Justice Statistics, giving the number of executions in America during selected years:

1960   56   
1961  42  
1962  47  
1963  21  
1964  15  
1965    7  
1966    1  
1967    2  
1968    0  
1969    0  
1970    0  
1971    0  
1972    0  

It's hard to see these figures without suspecting that some sort of social consensus against the death penalty was coalescing in the late 1960s.  One website refers to an "unofficial moratorium."   The turning point came in 1972, when the Supreme Court - a trailing indicator of social changes, as always - declared the death penalty unconstitutional.   This gave supporters of the death penalty something concrete to oppose - something with which to stir up indignation, the most powerful emotion in politics, and the most easily manipulated.  

After  the Court backed down in 1976, the capital punishment trend line started going the other way, as shown graphically here.  By 1995 we were right back at the 1960 number, and in 1999 we executed no fewer than 98 prisoners, the highest number since 1951.  Only since the turn of the century has the 1960s trend reasserted itself.

Inside the courtroom, the Court's 1972 Furman decision put an end to executions.  Outside the courtroom, it was a gift to politicians cynically (or, for that matter, sincerely) using "law and order" as a wedge issue to persuade members of the white working class, the once-famous Reagan Democrats, to base their votes on social values rather than economic self-interest.  Roe v. Wade and Furman  didn't create the Republican Party's nation-changing Southern strategy, but they turbo-charged it.  To think of them solely in terms of the courtroom issues is to miss their greatest significance.

Inside the courtroom, it was a bravely liberal thing in the 1970s to champion the civil liberties of the severely mentally ill.  Outside the courtroom, the results resemble nothing quite so much as the British response to the Irish famine, especially after the autumn of 1847: a failure to utilize readily-available resources justified on the basis of abstract political theory, coupled with heavy reliance on sadly-inadequate charity. 

These are examples of legal solipsism on the grand scale.  But micro-examples are everywhere.  The court system is concerned only with whether the wife-beater's conviction was obtained with the use of hearsay in violation of his sixth amendment rights, not with what happens to his wife, or to the child who witnesses his mother's victimization.  Those things occur outside the courtroom, and that means they aren't real, or at least aren't real enough to influence the formulation of our government's response to violence. 

(For follow-up, see post 91.)