Joel Jacobsen

In an 1875 speech that is still quoted around the Web (here, and here), Michigan's Civil War Lieutenant Governor (well, someone had to keep the seat warm) Charles S. May praised the institution of the jury.  He contrasted (quite rightly I believe) "the aggregate wisdom of twelve men" to the findings of a judge, which "is but the wisdom of one man[.]  Do the scriptures say untruly, then, and is there no safety in a multitude of counsel?"

He then turned his eye from civil to criminal cases:

But it is in another and greater field that the trial by jury becomes a matter of supreme concern to the citizen, and rises to the dignity of one of the chief props and bulwarks of civil liberty.  Here its use cannot well be questioned.  Here, certainly, it needs no defense.  The leaning of the law, in criminal causes, should be to the side of protection and humanity.  And so it is declared to be.  The State is great and powerful, and overshadows the individual; and though it be necessary for its good that crime be prevented and punished, yet the State is not greatly harmed by the escape of a guilty man.  But the conviction and punishment by death or lingering imprisonment of an innocent man is a thing unspeakably shocking.  No care can be too great to prevent such a tragedy.  "Better," then, says the humane maxim, "that ninety-nine guilty men should escape rather than one innocent man should suffer."  And all our human hearts and sympathies respond amen to this.

This is, I think, a very modern attitude, widely adopted by judges from the Parthenon on down: the essential difference between civil and criminal litigation lies in its effect on the litigant.  A criminal prosecution involves, in this corner, the champeen, Leviathan.  And in the opposite corner, the challenger, Underdog.   And no one else is involved.

Myself, I think everyone else is involved.  Enforcement of the criminal law isn't necessary for the "good of the State", as May said, but for the good of people who are victimized by its violation.  Seven years ago, Justice Stevens, of all judges, quoted Holmes' pithy summary of the core rationale:

In his 1881 lecture on the criminal law, Oliver Wendell Holmes, Jr., observed: "The law threatens certain pains if you do certain things, intending thereby to give you a new motive for not doing them. If you persist in doing them, it has to inflict the pains in order that its threats may continue to be believed."

Lt. Gov. May is right that if a guilty person escapes punishment, it doesn't hurt the State.  It hurts the State's citizens instead.  We'll leave to one side the alienation experienced by so many victims of violent crime.  Quite apart from that, the escape of the guilty makes it that much harder for dangerous people to believe the State's warnings against antisocial behavior.  Each escape chips away at the psychopath's sole reason for not inflicting pain on others.

The effect of that on people who never step inside a courtroom can be profound in ways that might seem surprising.  For example, last month a team of researchers published an article examining "the relationship between child abuse and adult obesity, relative to other risk factors such as demographics, food insecurity, inadequate fruit and vegetable consumption, and physical inactivity, in a representative sample of California women."

What they found was that "[e]xposure to child abuse is associated with adult obesity among California women, even accounting for other relevant variables."  The authors describe this as a public health issue, and so it is, but that's not all it is.  "Exposure to child abuse" is a scientifically-precise euphemism for child abusers who aren't successfully prosecuted.

When child abusers aren't stopped by the state, one result is adult obesity in the victims.  The June study wasn't unique:  other studies, looking at different data, have come to similar conclusions.  Still others tie childhood abuse not only to adult obesity but to many other behaviors that are, in themselves if not in their causes, considered serious public health issues.

Dorothy Rowe, an Australian psychologist quite well-known in Britain, recently published a piece in New Scientist pointing out the similarities between the symptoms of hyperactivity and those of fear:

You are at home awaiting the arrival of the person on whom you feel your life depends. The person is very late. You try to watch TV but can't concentrate. You move from chair to window, from window to door. You make phone calls, check diaries, traffic news. A friend phones to chat, and you rudely tell them to hang up. The line must be kept clear.

You are exhibiting hyperactivity, impulsiveness, distractability and emotional lability (instability and changeability). A psychiatrist with no context for your behaviour might say you have been stricken with attention deficit hyperactivity disorder, because the symptoms of ADHD look the same as the symptoms of fear.

Rowe adds (in words not available on the Web): "There is another reason why doctors fail to see that these are the symptoms of great fear.  Like adults, children fear many things, but one thing all children fear is adults."  Children who live in fear - especially those who live in fear of the adults whose role in the child's life is to protect him or her - can hardly be expected to concentrate, to sit still, to be normal, happy children.

For the past few years, American media has been full of stories about the rising rates of obesity - here's a particularly vivid chart - and the fantastic leap in the number of children diagnosed with ADHD and treated with methamphetamine-like drugs such as Ritalin.  What doesn't get mentioned is that these rates are connected, and both began skyrocketing (why does that sound more vivid than plain "rocketing"?) a generation after American courts switched our society from an unconditional to a conditional criminal law.  (See post 5.)   

"[T]he State is not greatly harmed by the escape of a guilty man."  But the state's children are.