JUDGING CRIMES

In an interview, B.F. Skinner, the great apostle of American behaviorism, once summed up the basic concept of the criminal law.  Statutes, he said, are "statements of contingencies backed up by the political systems of the country."  He meant that laws control people's behavior by providing aversive stimuli:

An aversive stimulus is the opposite of a reinforcing stimulus, something we might find unpleasant or painful.

A behavior followed by an aversive stimulus results in a decreased probability of the behavior occurring in the future.

This both defines an aversive stimulus and describes the form of conditioning known as punishment.  If you shock a rat for doing x, it’ll do a lot less of x.  If you spank Johnny for throwing his toys he will throw his toys less and less (maybe).

(That's from a very useful online summary provided by Professor C. George Bouree.)

An ideal system of criminal justice -  I think this is intuitively obvious, but it's also in line with behaviorist theory - would combine a 100% chance of discovery/punishment with a graduated system of punishments:  conditional discharge (i.e., warning); probation; weekend jail sentence; jail; prison.  In such a world, the certainty that committing a crime would produce  an unpleasant or painful stimulus would ensure that only the incorrigible - the psychopaths - would ever need to be sent to prison.

Described like that, my ideal system of criminal justice sounds like a cage with levers in a psych dept laboratory, but I think normal human society ran pretty much along those lines for long stretches of our history.  In his early masterpiece The Pursuit of the Millennium, the late Norman Cohn wrote:

To an extent which can hardly be exaggerated, peasant life [in the Middle Ages] was shaped and sustained by customs and communal routine. ...  Social relationships within the village were regulated by norms which, though they varied from village to village, had always the sanction of tradition and were always regarded as inviolable. 

Familial relationships, of course, added another enmeshing network.  In such a society, it must have been very difficult to commit a violent crime secretly.   The near-certainty of discovery must have been a  powerful disincentive. 

A possible illustration of this point, from a different historical era, is provided by Jill Mocho's terrific Murder & Justice in Frontier New Mexico 1821-1846 . (1821-1846 was the interval between Mexico's independence and the American invasion.)  Mocho's researches uncovered just 11 homicide cases for that entire 25-year span.  Doubtless many other homicides escaped  the archives because the alcalde never found anyone to prosecute - but, if anything, that only proves the point.  Social isolation made villagers vulnerable to mobile strangers, but their social self-sufficiency protected them from themselves.

Also, such tightly-knit communities, with extended kinship structures, were not good laboratories for raising psychopaths.  Too much stability.  Too many other people involved in the child's life.  Too many positive role models.

But watch what happens in behaviorist theory if the risk of discovery/punishment slips much below 100%.  The association between committing a crime and the aversive stimulus is weakened, or even ceases to exist, so that being caught and punished seems less like an effect produced by the commission of the crime and more like a random stroke of bad luck.  A different kind of association is created:

B. F. Skinner’s entire system is based on operant conditioning.  The organism is in the process of “operating” on the environment, which in ordinary terms means it is bouncing around its world, doing what it does.  During this “operating,” the organism encounters a special kind of stimulus, called a reinforcing stimulus, or simply a reinforcer.  This special stimulus has the effect of increasing the operant -- that is, the behavior occurring just before the reinforcer.  This is operant conditioning:  “the behavior is followed by a consequence, and the nature of the consequence modifies the organisms tendency to repeat the behavior in the future.”

When the risk of being caught/punished is reduced, committing crime becomes associated with pleasure: the pleasure of power and dominance over others, the pleasure of sadism, or the various pleasures available to a person who has suddenly come into money. 

It's not hard to see that the two most significant trends in American criminal law for the past half-century have been directed toward (a) decreasing the probability of a guilty criminal being punished (that's the purpose of the numerous  non-textual exclusionary rules invented since the 1960s); and (b) increasing the severity of punishment.  We've been moving aggressively toward a society that is the photo negative (will that useful metaphor survive the disappearance of film?) of the ideal.

What's really interesting is that no one - well, no one who doesn't own stock in private prison companies - believes these are healthy trends.  Given that the criminal law itself is the preeminent example of behaviorist principles in action, how did we arrive at a system that contradicts basic behaviorist principles?  Ironically enough, it's because five justices of the Supreme Court thought it would be a spiffy idea to apply the principles of behaviorism to the criminal justice system.

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.

British Prime Minister Gordon Brown, speaking to the nation after the terrorist attack on the Glasgow airport, said: "The first duty of the government is the security and safety of all the British people."

American judges disagree.  A system of law that recognized the safety of the people as it highest priority would never conceal evidence of criminal violence from its jurors.  Rather, even as it recognized that preventing violence is better than responding to it, it would act on the principle that responding to violence is better than passively accepting it.

American judges have rejected that concept of government.  Instead, they hold - as a matter of the loftiest principle - that the security and safety of the people must never be permitted to become more than a secondary concern of the government.

The first duty of the government is to protect the constitutional rights of the accused.  That's why, for example, Illinois judges allowed James Ealy to go free after killing four people.  (See post 224.) 

The judges who set him free after he wiped out a whole family told him, in so many words, that there is no act so horrible as to be entirely unacceptable in American society.  Raping a small boy, strangling him and his mother, grandmother and aunt -  American judges are prepared to accept all that.   Protecting the boy and his female relatives from harm, or according them justice after their deaths - those weren't trivial concerns, but they were secondary.  The government's higher duty was to protect James Ealy from ... the government.

The first version of this post sounded angry and bitter, but the idea it was trying to get across is neither.  On the contrary, it's something that lawyers who practice criminal law simply take for granted.  And yet it's that odd thing, an unfamiliar truism.  The whole point of the judge-made exclusionary rules invented since 1961 is that some things are more important than enforcing laws intended to ensure the security and safety of the people.

Criminal law, in America, is always conditional: Thou shalt not kill, unless a judge believes the police wrongfully obtained evidence against you, in which case thou canst go ahead. 

This is what Rockwell Gardens used to look like - one of those Stalinist Chicago housing projects consisting of multiple high-rises isolated on a kind of dystopian campus, this one three miles west of the Loop.  Apparently, the six buildings have all been demolished in the last couple of years - and the news of their imminent razing was enough to revitalize the entire neighborhood, as the Chicago Reader reported in 2005.

Back in the bad old days, Christine Parker was a pregnant 33-year-old grandmother living in the project with her two daughters, aged 15 and 13, and the 15-year-old's son, Jontae, who was three.  (The mind resists doing the math, doesn't it?)  They were all strangled to death, and Jontae was raped.

The bodies were discovered August 16, 1982, at 12:55 p.m.  Shortly afterward, the police began a canvass of nearby units, knocking on doors and asking if people had heard anything or could provide any useful information.  They went to the apartment James Ealy shared with his mother.  The cops spoke to the mother, but Ealy wasn't home.

That afternoon, police returned to the apartment.  This time Ealy was home and said that he had known the victims, but that was all.  The next day autopsies were performed, and around 5:00 p.m. detectives learned that the victims had been strangled with distinctive cloth ligatures.  Detectives returned to Rockwell Gardens and talked to five people who, they had discovered, were in the habit of spending a lot of time in Ms. Parker's apartment.  One of them was Ealy.

Sometime after 9:00 p.m., Ealy agreed to come to the police station.  They arrived around 9:40 and he was left alone in an interview room for about 20 minutes, then questioned for about half an hour.  He wasn't given Miranda warnings; he wasn't a suspect yet.  When the detective took a break to consult with his colleagues, he noticed Mrs. Ealy waiting for her son.  He let her in to be with him.

Around 11:00 p.m., the detective learned for the first time that Ealy had recently been arrested for an unrelated rape committed in the same Rockwell Gardens building.  This, of course, nudged him up the ladder of suspicion.  The detective returned to the interview room, Mirandized Ealy, and spoke with him for another 30 minutes.  Discrepancies were beginning to appear in his story.  Sometime in there Mrs. Ealy returned home.

Ealy signed a consent-to-search form.  Detectives took it back to the the housing project, showed it to Mrs. Ealy, and for good measure asked if she would consent to let them into the apartment, too.  She also signed a form allowing the police to search without a warrant.  At around 1:45 a.m., they found distinctive cloth items, prepared for garroting with knots on both ends, made from cloth matching the ligatures used on the Parker family.

At this point, I think everyone would agree, there was probable cause to arrest Ealy.

The cops took the incriminating items back to the station and confronted Ealy with them.  It was now the middle of the night.

Thereafter, defendant told the officers that on August 15, at about 11:30 p.m., he was near the Parkers' apartment and saw a large black man running from the apartment carrying a large bundle which he dropped. After picking up the bundle, defendant went into the Parkers' apartment and found the victims' bodies. He said he then left the apartment, taking the bundle with him to his mother's apartment, placed the bundle under his mother's bed and went to sleep.

This, I think everyone would agree, was virtually a confession.  He put himself in the apartment, in the possession of the materials used to kill the family, admitted he didn't alert authorities - and all in a package that a child (and especially not a child raised in Rockwell Gardens) wouldn't believe.

Ealy signed a second consent-to-search form, and detectives went back to Rockwell Gardens to pick up other items from his bedroom.  They discovered that Mrs. Ealy - who had evidently reached the same conclusions - had hidden some things, but when asked to retrieve them she did.  Detectives then returned with the new bundle of items, gave Ealy his Miranda warnings again, and he told them that

on August 15 he had been drinking with friends. He later went to the Parkers' apartment at approximately 11:30 p.m. and several members of the Parker family "made fun of his red eyes." Defendant then described to the detectives how he strangled the four victims.

The Illinois Appellate Court reviewed his four murder convictions, but its decision is opaque.  It reads rather like the mutterings of an eccentric relative talking to himself in the next room, when you overhear sentences and phrases that make sense in isolation but don't really add up to anything.  

My guess is that the judges were trying to say that (1) at some point Ealy was arrested, and (2) at some point police acquired probable cause to arrest him, but (3) those events occurred in that sequence, when they should have occurred in the opposite order.  However, the opinion is very vague as to when the key events occurred.

(You can read a close paraphrase of the opinion here.  The paraphrase faithfully mirrors the original's lack of precision, echoes its idiosyncratic use of the word "continuously" to mean "intermittently", and even repeats its use of "18 hours" to mean "three and a half hours" - Illinois slang, I presume.) 

(It was about three and a half hours from his first stationhouse interview to the discovery of the ligatures under his bed.  However, it was almost 18 hours from the time he left his apartment with police until he finished repeating the confession for a stenographer and signing his name to the transcript.  The latter time obviously has nothing to do with pinpointing the time of his arrest or the time at which his arrest became lawful.  The Appellate Court's use of the phrase "18 hours" was a type of dishonesty.)

The Appellate Court set Ealy free.  Flash forward to 2006, when Ealy is accused of murdering - by strangulation, who would have guessed it? - another person - and, surprise, another female.  During the intervening years, he served time for two rapes (including, it would seem, the one he committed before killing the Parkers), according to Chicago's suburban Daily Herald.  And does anyone believe he was caught every time he committed a crime?

In the last post, I talked about what happens when the police fail to arrest a suspect.  That failure can lead directly to further suffering - so directly that courts are prepared to let cops be sued for the failure.    (See post 223.)  If the logic of those tort cases were applied to the James Ealy case, we would have to conclude that the three judges of the Illinois Appellate Court caused the rape of at least one person, and that there's probable cause to think they caused the death of another, and the orphaning of three children.

In The Federalist 48-51, Madison brilliantly filled in the gaps in Montesquieu's doctrine of the distribution of powers.  Those numbers of The Federalist are a Rosetta Stone for anyone wishing to interpret the political significance of any judge's ruling in any case, civil or criminal.  

The United States Constitution has only one subject: power.  It distributes power between the states and the central government, and then divides the central government's share of power between its three branches, and then it limits the government's use of power against its citizens. 

Necessarily, then, every constitutional ruling by a court is a ruling on the distribution of powers.  It's an application of -- or an adjustment to -- Madison's ideas. 

The Declaration of Independence held it to be a self-evident truth that the only legitimate basis for government is the consent of the governed.  The underlying democratic theory of the Constitution is -- can only be -- that the people of the United States agreed to put certain subjects beyond the reach of alteration by democracy.   That is, they democratically chose to limit their democracy.

This means that the very concept of a new constitutional doctrine is a paradox.  If it's new,  then by definition the governed did not consent to it when they accepted the Constitution and its amendments as a limitation on their power to govern themselves.     

America's criminal justice system once said: "If we catch you doing something terrible to another human being, we will  punish you."  Now it says: "If we catch you doing something terrible to another human being, we may -- or may not -- punish you."  The contingency was introduced by judges who discovered that the Constitution gave them previously-unrecognized power to conceal information from juries (to "suppress evidence"), and to refuse to enforce democractically-enacted laws (to "find them unconstitutional").   

The switch from an unconditional to a conditional criminal law was announced by judges as a series of new constitutional doctrines, a process that began in earnest in the 1950s and continues to this day.  Because our criminal justice system was transformed by constitutional rulings, it cannot be changed back by democratic means.   American citizens no longer have the political power to decide for themselves how to use the powers of government to protect themselves from physical harm. 

The "constitutionalization" of criminal procedure was not simply a revolution in the practice of criminal law, but a fundamental reordering of society.  It was -- and is -- a process of de-democratization.