JUDGING CRIMES

All too often we talk about the Supreme Court as if the words it uses described the things it does.  I say it's time to give credit where credit is due.  The earlier collection of the Supremes' greatest hits emphasized the recent past and ages gone by (see post 196)  but it scanted on what might be called the Court's middle period.  Like the Rolling Stones, the Supreme Court went through a long stretch of mediocrity in the 1970s, but there were some bright spots amid all the Goats Head Soups: 

The religious right.  Where would Falwell, Robertson and Dobson be without 1973's Roe v. Wade?  More to the point, where would our nation be today without them?  The religious right took credit for President Bush's reelection, and I think they were fully justified in doing so.  But the Supreme Court deserves full credit for the religious right's clout.  

The revival of the death penalty.  Here's the number of executions in the United States during the years leading up to 1972:

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

Notice a pattern developing?  Then in 1972, the Supreme Court ruled that the death penalty was unconstitutional, regardless of the pesky little detail that it is twice specifically authorized by the very same Constitution.  Four years later, when members of the Court clarified that they only meant it was unconstitutional as then administered, they couldn't avoid revealing by negative inference what sort of statute would meet their approval, igniting a political movement to enact just such statutes and put them to vigorous use.

The natural trend toward the death penalty's eradication, which was world-wide in the 1970s (France, for instance, abolished use of the guillotine only in 1981, under the rotund collaborationist Mitterand), was abruptly reversed in the U.S., as this graph shows so ... graphically.  Only recently, after 35 years, has the death penalty's slide into history been recommenced, as the Court's massively counter-productive intervention fades into political memory.

Longer sentences for druggies.  Judges reluctant to lock some pathetic crackhead away for a decade (take a look at table 5.3 for average federal drug sentences) will always be tempted to find an excuse for suppressing the evidence of the crackhead's offense.  And the more creativity judges demonstrate in devising ways to avoid enforcing the law as written, the more pressure on legislators to respond in the only ways open to them: by broadening definitions of offenses and, especially, by lengthening sentences.   The Court started this dynamic  spinning back in 1961 and it's only gained momentum since then.

Hundreds of thousands of dead, injured and severely traumatized people.  In 2005, America's violent crime rate was three times what it was in 1961, despite the extraordinary security precautions we now routinely take.  (See post 253.)  (My own state of New Mexico has seen its violent crime rate more than quintuple during that same period, an achievement even Louisiana, our usual rival in dubious social statistics, can't match.) 

In 1961, 8,740  people were murdered in America.   The declining lethality rate for gunshot and knife wounds (explained in post 34) means that roughly two-thirds of those victims, or about 5,768 of the total, would survive their injuries today.  Compare the difference (2,972) to our 2005 murder total of 16,692.

I don't think the judicial system is solely responsible for the increase in violence since 1961.  Far from it.  These things are always over-determined, as Freudians used to like to say (are there any Freudians left? if so I'm sure they're still saying it).  But I also think it would be silly to pretend that our judicial system isn't one of those determinants.  After all, if the criminal justice system has no effect on crime, what's its excuse for existing?

UPDATE: One doesn't wish to speak ill of those who have only hours to live, as the Rev. Falwell did when I wrote the above.  But while I didn't mean my words as a compliment, exactly, I'm pretty sure he would have agreed with the sentiment, for all that he would have drawn on a different set of oratorical conventions to articulate it.