JUDGING CRIMES

The year's end always brings stories about crime stats.  The New York Daily News has a story headlined "New York started with 8 murders in 1887."  If you're tempted to believe that number reflects the real homicide rate that year, they were building a bridge for your purchase. 

It might seem relatively easy to count up homicides in a densely-populated urban center, but the late Eric H. Monkkonen and Roger Lane have both documented the almost comical difficulty in ascertaining 19th century New York's (or, rather, New-York's) homicide rate.  The coroners records don't match those of the police, and neither tallies with the newspapers.

One difficulty common to the era is memorably depicted in Willa Cather's masterprece My Ántonia, with the coroner debating  whether a dead man was murdered with an ax or shot himself.  That seems incredible today, but the people determining cause of death in the 19th century weren't forensic pathologists working in laboratories, or even in laboratory conditions. 

Sometimes the coroner's jury literally held the inquest over the body in question, as in this 1859 case of a well-dressed young woman's body found floating in the water off Brooklyn: "Mr. Bennett, the Coroner, living at Bay Ridge, was notified, and soon arrived at the place.  A Coroner's Jury was impanneled on the beach, with Dr. Francis Mahan as the foreman."  The doctor-foreman, we are informed, "made but a casual examination, sufficient, however, to satisfy him that the deceased had been a mother."  The coroner identified the corpse by leaving it in a room and inviting the neighbors in. 

Lane or Monkkonen (I forget which) documents the way New York authorities classified almost all bodies pulled out of the water as accidental deaths.  There was no such thing as forensic evidence in those days.  Sherlock Holmes was cutting edge - it's a testament to Conan Doyle's skill as a writer that we don't even notice the gee-whiz technology that was a major part of the stories' original appeal.  (Though I prefer the Major Gerard stories, myself.)

Because 19th century prosecutions depended almost entirely on testimony or confessions, if you didn't have either of them it was little more than guesswork to return a verdict of death by homicide.  That's what the figure of 8 murders in 1887 means - 8 unattended deaths were, in the modern parlance, cleared.

Steven D. Levitt's Freakonomics blog at the New York Times has, with no indication of irony, recently been harping on the tendency of "the media" to misrepresent crime statistics.  When the Times congratulates itself for not being part of the media, you know something is up. 

While obviously it is unalloyed good news that New York's homicide statistics continue to drop, nonetheless you'd think someone who bills himself - or, more likely, passively went along with his publisher's marketing department billing him - as a "rogue economist" would want to give a little thought to what the statistics are measuring.

As I've pointed out many times, the lethality rate of knife and bullet wounds has dropped by two-thirds just since 1960.  (See post 34 and post 118.)  I ran across a particularly vivid illustration of this phenomenon the other day:

As Geddes approached the white car, expecting then to fight defendant, the driver side door opened. Geddes then heard a gunshot. Geddes saw defendant get out of the car, and he realized he was being fired at. The initial shot missed Geddes, but as he turned to flee, a second shot hit him in the buttocks and he fell to the ground. Geddes was hit twice more, and then he turned over on the ground and saw defendant approaching with the gun. As Geddes testified, "[defendant] was walking up on me, stood over top of me, [and] started shooting me."

 As Geddes further recounted, defendant, standing over Geddes, then continued to fire at him, hitting him several times, in the stomach, legs, arm and hand. Meanwhile, Geddes tried to roll away and cover his face from the gunfire.

The treating physician confirmed the obvious, that "without emergency treatment, Geddes would have died from his wounds."   The doctor counted eight bullet wounds.  It wasn't that long ago that eight close-range bullet wounds were not survivable.

The point is that the homicide rate is not the same as the rate of potentially-lethal violence, and the second is in many respects (though obviously not to the funeral attendees) the more important figure.  The great medical journalist Atul Gawande described this phenomenon from another perspective two years ago in the New England Journal of Medicine:

Combat deaths are seen as a measure of the magnitude and dangerousness of war, just as murder rates are seen as a measure of the magnitude and dangerousness of violence in our communities. Both, however, are weak proxies. Little recognized is how fundamentally important the medical system is — and not just the enemy's weaponry — in determining whether or not someone dies. U.S. homicide rates, for example, have dropped in recent years to levels unseen since the mid-1960s. Yet aggravated assaults, particularly with firearms, have more than tripled during that period. The difference appears to be our trauma care system: mortality from gun assaults has fallen from 16 percent in 1964 to 5 percent today.

We have seen a similar evolution in war. Though firepower has increased, lethality has decreased. In World War II, 30 percent of the Americans injured in combat died. In Vietnam, the proportion dropped to 24 percent. In the war in Iraq and Afghanistan, about 10 percent of those injured have died.

It's foolish to think, as Leavitt seems to, that better results from emergency medical care necessarily means that America is becoming significantly less dangerous for the vulnerable.

Vulnerability is the other obvious variable Levitt seems oblivious to.  Not all Americans are equally vulnerable to criminal violence.  For instance, this Bureau of Justice Statistics report says that in 1993, the national violent crime rate per 1,000 persons was 50.  By 2005,  the number had dropped by 58% to 21.  Exceptionally good news....

... until you look at the violent crime rate for those living in households with incomes under $7,500 - the destitute.  Their violent victimization rate in 2002-03 was 47.4 - almost the same as the national bad-old-days figure.  Still, by 2004-05 the victimization rate for the poorest had dropped dramatically to 38.1, just 55% above the national average.   

So does that mean it's just taking a little longer for increased safety to trickle down? Unfortunately, the victimization rate for those earning $7,500-$14,999 - not exactly Easy Street - increased by 5.6 over the same period.

The drop in crime rates heralded by Leavitt is, to an uncomfortably large extent, a drop in the rate at which middle class and wealthy people are victimized.  Which is a good thing, of course.  But ....

A lot of the year-to-year change is just random variation, like talking about the average temperature for this time of year.  Only long-term trends mean very much, but a comparison of long-term victimization rates needs to take into consideration changes in people's behavior over the same period of time.   Do people live the same way today as they did in 1960?  1970?

Just think for a moment about car alarms.  Or cell phones (very handy for calling 911 - another reason for the falling lethality rate).  Or gated communities.  Or security guards escorting you to your car in the locked parking garage.  Or indoor malls.  Or hitchhiking.  Or women other than prostitutes walking around alone at night.  Or metal detectors in airports, courthouses, even high schools.  Or elementary school lockdowns.   Or ...

We live much differently today than our parents and grandparents did.  Many of the changes are welcome signs of progress.  But not all.   One of the most significant reasons for the falling crime rate in America is that those of us who can afford it spend so much time, money and energy protecting ourselves.  That's one reason the crime rate has dropped much faster for the well-to-do: they can pay for the protection the state no longer provides. 

The responsibility for fighting crime has, to an underappreciated extent, been shifted from the community to the individual.  Now, why doesn't Freakonomics figure out some way to quantify that?

We live in the Romantic Age of judging.  I'm not referring to the mash notes judges sometimes send each other, e.g., "the sagacity of the numerous Ninth Circuit judges who have written before us."  That's from Ninth Circuit Judge Ferdinand F. Fernandez, and the only whiff of the sage he gives off comes from dinner.  (See post 143.)   That level of infatuation, or self-infatuation, qualifies as romantic in some sense, or even several senses, but only one of them is the sense I have in mind.

I'm talking about the lit-crit kind of Romanticism.   The New Yorker recently reviewed Ann Wroe's paean to Percy Bysshe Shelley.  Ms. Wroe was apparently concerned that Shelley, one of the original better-to-burn-out-than-to-fade-away types, hadn't written a sufficient number of such paeans to himself.   In his review, Adam Kirsch described Shelley's politics, which were ahead of his time in rather distressing ways, such as his  enthusiasm for liquidating the intolerant in order to usher in an era of universal tolerance.

Another hallmark of Shelley's politics, according to Kirsch, was his "indifference to reality."  And that's what first reminded me of the characteristic American style of judging.  The idea that courts should occupy themselves with courtroom representations of reality, and hold reality itself at bay, is at the very heart of the judicial project. 

Jurors in every American jurisdiction are told, in no uncertain terms, to base their verdicts strictly on what they hear in court.   What they hear is filtered by the rules of evidence - in their codified form, a 1970s phenomenon - which after defining "relevant evidence" are mostly devoted to cataloguing types of relevant evidence that must be concealed from the jury.  

The phrase "constitutional criminal procedure"  refers to a body of case law developed since the 1960s that consists of almost nothing but the systematic widening of the gap between the reality outside the courtroom and its representation inside.   And a juror who possesses relevant information before the trial begins will be "struck" from the panel, the violent term indicating something of the horror with which such independent knowledge is viewed. 

There are elaborate reasons for all of this, and some of the reasons make sense.  My point isn't to argue with them, but to point out their common denominator: the Shelleyan indifference to reality.

Kirsch's review includes another passage striking, so to speak, even closer to the Romantic heart of judging:

But his political beliefs demonstrated the same contempt of consequence, the same elevation of pure motive over practical effects, the same lack of self-awareness.  These qualities helped to make Shelley a genuinely illiberal thinker, whose politics verged at times on the totalitarian.

Who else do we know that trumpets pure motives while demonstrating a contempt of consequence?  Our violent crime rate today is three times what it was in 1960, before the decisive judicial intervention in law enforcement.  Have you ever heard a judge acknowledge the possibility that the two phenomena might be related?  

Our prison population has grown incredibly since 1980.  Have you ever heard a judge acknowledge the possibility that the difficulty of convicting guilty people might have some connection to the length of sentences eventually imposed?  Increasing sentences is almost the only lever the legislative branch has for controlling the judiciary's disposition of criminal cases, which makes increasing sentences for drug crimes a rational - if, as I believe, socially-destructive - response to judicial decisions suppressing physical evidence virtually at random in the name of an ever-morphing fourth amendment.  (See post 126 and post 53.)

Judges' rhetoric distances them from the consequences of their acts.  Justice Scalia, for instance, acknowledged that one of his decisions would "have the effect of allowing the guilty to go free" - implying that the only consequence would be a reduction in the judicial system's efficiency and not, for instance, the repeated infliction of physical pain on vulnerable people.  (See post 274.) 

The Court could only forestall that unfortunate outcome, Scalia wrote, if it were impermissibly to "vitiate constitutional guarantees" - although the constitutional guarantee in question was invented just two years earlier in another opinion written by the very same Justice Shelley.  So he recognizes in himself the power to invent new constitutional guarantees, but when faced with their unfortunate consequences says he's powerless to alter them.

Again, perhaps this two-facedness - which is deeply ingrained in American judges at all levels, and accepted without demur by virtually all American legal academics - can be justified doctrinally.  But it's far easier to explain on psychological grounds: power is gratifying, responsibility isn't.

(I actually would reverse Kirsch's terms in one particular, though: I think it's more accurate to say judges express contempt for reality and indifference to consequences rather than vice versa.)

The ABA Committee's daft proposal to institute a regime of secret trials in America - even if only some prosecutions would be made secret, and then only after the fact (see post 300) - shows how far we've evolved from medieval concepts of justice:

"The common view of the medieval justice system as cruel and based around torture and execution is often unfair and inaccurate," said University of Cambridge historian Helen Mary Carrel. Most criminals received gentle sentences merely meant to shame them, Carrel said, with the punishments often carried out in the open so townspeople could bring them charity.

That's from LiveScience.  The whole point of the ABA Committee's suggestion was to reduce the shame factor.

Over at German Joys (German Joys?) law professor (I mean, Herr Doktor Professor) Andrew Hammel reproduces a chart from a subscription-only scholarly journal giving German murder rates from the 1300s to the present. 

The medieval era, in addition to being smelly, was extremely violent and dangerous; in most places, the murder rate was between 20 and 100 per 100,000. Now, in all European societies, it's declined to around 1. Hooray for modernity!

I came across this table while looking for a similar table for England that I saw recently in a review of Gregory Clark's controversial A Farwell to Alms, a kind of Freakonomics-goes-to-history-class.  I couldn't locate the chart on the Web (and I can't remember where I saw it originally) but it gave comparable figures, which is what started me on this post.

From a 1994 International Herald Tribune account of an academic conference, we read:

Eric H. Monkkonen, a professor of American urban history at the University of California at Los Angeles, said: "What we are finding is that violence is not an immutable human problem. There really has been a civilizing process" in which, scholars say, an increase in state power and courtly manners beginning in the 16th and 17th centuries helped curb impulsive, violent behavior.

New data presented at the conference by a Dutch scholar, Pieter Spierenburg, showed that the homicide rate in Amsterdam, for example, dropped from 47 per 100,000 people in the mid-15th century to 1 to 1.5 per 100,000 in the early 19th century.

The late Eric Monkkonen was a true giant, a tireless researcher and skillful writer, full of insights.  (And for those who doubt the data are there  - wouldn't it be more surprising if our ancestors didn't keep records of things like murders and executions?)

Of course, definitions of "murder" vary tremendously from age to age, and country to country (even state to state, in the U.S.), and some places have efficient and honest law enforcement and tidy record-keeping bureaucracies.  Others don't.  And some murders just go undetected, depending on such things as the ease of concealing a body.  (Deserts, such as New Mexico's, are quite useful.  I imagine jungles, like Colombia's, are even better.)  

So comparing statistics, even for such a relatively unambiguous offense as murder, is at best inexact.  Still, looking at  current international rates provides a certain perspective. 

According to this collection of statistics, the latest available figures have Colombia as the most homicidal nation in the world, though you have to assume the "War on Drugs" death toll is included in those numbers (in contrast to the German figures reproduced at German Joys, which filtered out such statistical blips as the Thirty Years War).   However the number was derived, Colombia's homicide rate was calculated at just under 62 per 100,000. 

Then there's South Africa at around 50, Jamaica and Venezuela at 32, Russia at 20.  It drops pretty precipitously after that, with the US sliding into 24th place at about 4.3 per 100,000.  (The Bureau of Justice Statistics pegs it at a little more than one funeral per 100,000 higher than that.)

Now here's a Los Angeles Times story from last Sunday:

Homicide is not fair, hitting hardest among Latinos and especially among blacks. Latinos are killed at more than three times the rate of whites, while blacks succumb to homicide at three times the rate of Latinos, the Times analysis shows.

Adult males are the eye of the storm. The national homicide rate is about six deaths per 100,000 people each year. But for Latino men in their 20s in Los Angeles County, the rate is 52 deaths, and for black men, 176 deaths.

That's right.  176.  And that's a great deal more than 76% worse than medieval Germany, because in medieval Germany they didn't have medicine, much less modern medicine.  If you were stabbed, it was time to work out whether to address angels with "Sie" or "du."  Today, in the City of Angels itself, our Second City, we tolerate a rate of violent death that would have shamed Henry the Lion.

Imagine if, say, federal judges were murdered at that rate.  According to the Administrative Office of the U.S. Courts, there are "about 2,000 judicial officers, including active and senior appellate and district court judges, bankruptcy judges, and magistrate judges" currently reveling in the lavish perks.   If federal judicial officers were murdered at the same rate as young Black men in LA County, we'd have 3.5 additional vacancies on the federal bench every year.

That, needless to say, would be a crisis.

A month ago Slate surprised me by coming out in favor of the 19th century.  This from a magazine that tells you how its reporters voted in the presidential election, and I don't think anyone would confuse them for the staff of the American Spectator.  And yet it publishes a piece advocating a return to the Victorian legal doctrine that a rape conviction cannot be based on the woman's word alone.  (See post 280.)  

The article argued that prosecutors, that tribe of troglodytes, prosecute way too many rape cases: "Mike Nifong did what prosecutors almost always do when a complainant comes to them alleging a sexual assault: He took his complainant at her word and went full speed ahead with a prosecution." 

Curious to know whether there's any truth to that? 

Last year the Alaska Justice Forum published a study of sexual assault case processing in Anchorage.  Since Alaska is by far the national leader in rapes, leaving my New Mexico to run a distance second, the study perhaps included rather more cases than you might imagine.  (Alaska's lead is so pronounced as to suggest they're including offenses that other states discreetly disregard.) 

The Alaska report looked at the 1,235 sexual assaults reported to the Anchorage Police Department during the first four years of the century.  "Data were collected on 1,052 (98%) of these reports. Of these 1,052, 188 (17.9%) were referred for prosecution and had reached final disposition prior to data collection."   That sounds like it's describing two categories - those referred and those finalized - but elsewhere the report makes clear that the 17.9% includes 100% of the referred cases.  The other 82.1% of reported sexual assaults weren't even referred the district attorney.

Of the small minority of cases that made the move from detective's desk to DA's cave, only 127, or just over two-thirds, were accepted for prosecution.   And the great majority of those (87.4%) resulted in conviction.

So in the state with the highest rate of forcible rape in the country, prosecutors "went full speed ahead" on 12.1% of reported sexual assaults.   But then, that's just Alaska.  What's it like elsewhere?

Ten years ago, psychologists Patricia A. Frazier and Beth Haney published an article entitled: "Sexual assault cases in the legal system: Police, prosecutor, and victim perspectives."  Their article begins by examining prior research, much of it dating from the 1970s, which showed that about 60% of sexual assaults were reported to authorities, of which about 40% led to an arrest, of which about 50% were charged with felonies, of which about 67% resulted in convictions. 

So if you have, say, 188,960 sexual assaults in a year, about 113,376 are reported to police.  A suspect is arrested about 45,350 times.  And about 22,675 people are actually charged with a crime.  So 11.9% of the total number of cases result in prosecution. 

Frazier and Haney themselves conducted an in-depth study of sexual assault cases in an unnamed Midwestern metropolis.  (The fact that both researchers were, at the time of the study, affiliated with the University of Minnesota doesn't necessarily give us as clue as to the name of the city.)  During the period of their study, 569 sexual assaults were reported.  In 279 of those cases, a suspect was identified.  In 187, the suspect was questioned.   127 cases were referred to the prosecutor.

Two of the referrals were in juvenile cases, so those were dropped out of the study.  Of the remaining 125 cases, 95 were accepted for prosecution.  Several cases involved the same defendant, so that worked out to 91 separate prosecutions.  Ninety of those were for criminal sexual conduct and the other was for robbery and assault.

So in this unnamed Midwestern burg, perpetrators of sexual assault avoided prosecution in a mere 83.4% of cases reported to police.  Prosecutors went "full speed ahead" in a full 16.6% of the reported cases.   (I'll pause for a second to allow you to gasp.)   Those 91 cases produced 69 convictions; seven cases were unresolved at the time of study, or had been transferred to another jurisdiction; and 15 cases were dismissed, all but one of those by the prosecutors themselves, apparently.  (The authors go a bit overboard in avoiding legal jargon.)  There was apparently one directed verdict, but no jury acquittals.

Pretty scary, huh?  You can practically hear the jackboots on the icy pavement.  No wonder Slate is calling for a return to the good old days.  Next up: Jacob Weisberg launches a campaign to repeal the 19th amendment.

Incidentally, the idea that 60% of sexual assaults are reported to police?  Old news.  Try 38.3%  (table 91).   

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.

This time of year always sees retrospective articles about the year in crime.  My local evening paper, the Albuquerque Tribune, today published a package of articles about murder in Albuquerque and its suburbs.  The articles show, among other things, that we had one homicide in June, the least of any month, and 10 in July, the most of any month.

There's no reason for the dramatic difference between the two hottest months of the year.  It just happened - a reminder that short-term changes in crime rates mean very little, for all that mayors and police chiefs like to take credit for every downturn.

Another reminder of random variation is that the ages of the first 6 homicide victims of the year were 18, 17, 18, 18, 18 and 19.  Those are dangerous ages in general, but I don't think there's a reason, other than chance, why the dice should have come up snake eyes that many times in a row.

In Albuquerque in 2006, you were at the greatest statistical risk of being murdered if you were 21 years old (five victims).  The next most risky age was 18 (four victims).  Being less than six months old was inadvisable (three victims), though no more dangerous than being 19 or 27.   Criminal violence is something we visit on our young.

Albuquerque is located in Bernalillo County.  While the Census Bureau reports that Bernalillo County's population is 43.6% Hispanic,  by my count 32 of the 53 homicide victims, or fully 60% of the total, had identifiably Hispanic surnames (though for various obvious reasons surnames are only a rough guide to ethnic identity).  Criminal violence is something our society inflicts on members of minority groups.

The Tribune published a map showing the locations of the homicides.  It won't mean much, by itself, to those who aren't familiar with the city, but you'll notice that the homicides were concentrated in specific neighborhoods, particularly in the southwest and southeast parts of the city.  By contrast, the northeast corner saw no homicides at all, and the northwest only four.

If you follow this link, and scroll to page 21, you'll see a map showing Albuquerque's poorest neighborhoods ("percent of persons below 100% of the federal poverty level").   The correlation is visually striking.  The areas with the lowest number of homicides - the northeast and northwest corners - also have the lowest levels of poverty.

The traditional liberal way of assimilating that information is to conclude that poverty somehow causes violence, even though we all know that's not even close to true: many people are very poor (about 90,000 in Bernalillo County), but very few of them are homicidal, or we'd have a lot more than 53 gurneys trundling into our Office of Medical Investigator.

The real significance of the geographic correlation of poverty and criminal violence is simply this: being poor increases your risk of being victimized.  Increases it by a lot.

A recent AP year-end story about rising homicide rates includes this paragraph:

Among the reasons given: gangs, drugs, the easy availability of illegal guns, a disturbing tendency among young people to pull guns when they do not get the respect they demand, and, in Houston at least, an influx of Hurricane Katrina evacuees.

What's striking about this list is the absence of any mention of the government.  (Even the reference to the easy availability of guns refers only to illegal guns, not to laws that encourage packing heat.)  We spend billions on law enforcement, the corrections system/industry, and the judiciary - and the cost is rising much faster than inflation, as measured by the Consumer Price Index.  Yet the AP's list implies that all those billions buy us no power to influence homicide rates.

So what we have here is a significant social problem that causes enormous suffering among the poorest Americans, members of minority groups, and the young.  Our government throws billions of dollars at the problem, and yet we seem to accept that it's all beyond our government's control - even though we all know that other developed countries with different governments have vastly lower homicide rates.

This is cognitive dissonance on a national level.  Which is to say: The disconnect between the facts we know and the belief system we cling to is difficult to explain except in terms of psychopathology.

ABC News' website ran a story on Thursday headlined, "Startling New Stats Show Cross-Country Crime Spike."  Now, that's a good headline.  The alliteration is satisfying, and beginning with "startling" and ending with "spike" produces a pleasing symmetry, not just of sibilants but of bookended promises of drama.  And "cross-country crime," with its echo of that evergreen the cross-country crime spree, adds a subtle overtone of menace.

Anyway, here's one of the startling spike stats: "Murder was up in 26 of 53 cities".  Now, I agree that rising murder rates anywhere are worrisome.  But ABC's stat tells us that murder rates stayed the same or dropped in 27 cities.  If I were to tell you that 26 cities saw an increase in the number of Italian restaurants, while in 27 cities the number of Italian restaurants stayed the same or dropped, what would you conclude about the nationwide trend in Italian restaurants?

Crime statistics are always subject to intentional massaging, as the New York Times reported recently in a story headlined: "A Very Violent School, or Just Very Honest?", reporting that Rome Free Academy in upstate New York was listed as one of the 10 most dangerous schools in Gotham's state, which is just laughable.   Apparently, only one principal in the state failed to get the memo about reporting violent incidents.

A teacher at a notoriously violent high school in Albuquerque once told me the administration had established a firm policy that teachers were not to  break up fights.  I used to assume that policy was intended to avoid injury to the teachers, but I now suspect it also serves the purpose of permitting the administration to pretend it was unaware of the incident when compiling statistics.

But given a couple grains of salt, changes in crime statistics tell us a lot.  The problem is that it's not always easy to be sure what, exactly.  Arguments about whether this or that initiative "works" or not look at single variables, and of course there's no single variable that explains more than part of the story.

The nationwide drop in murder rates during the 1990s and continuing for the first few years of the new century was certainly welcome, but it was just a drop from a hideous high.  Washington had 81 homicides in 1960 and 482 in 1991, even as the city's population dropped by about 165,000 - and despite concurrent advances in emergency response services and medical care that vastly reduced the "lethality rate" - the percentage of shooting and stab victims who die from their wounds.  2000's number of homicides (241) was just half the 1991 figure - but it was also three times the 1960 figure.

One obvious reason why the murder rate dropped in the years following the peak - no more than part of the story, but a part I haven't seen emphasized anywhere - is that by the late 1990s, so many dangerous people were dead.  At any given time, in any given population, there is only a small number of people - or, rather, teenaged boys and young men - who are prepared to kill, or to participate in the kill-or-be-killed gang culture.  A city can't lose several thousands of them in just a few years without some effect.

If there's any validity to that partial explanation, you'd expect the murder rate to start creeping up again as a new generation of dangerous people grows into - well, not into maturity, exactly.  Interestingly, the District itself doesn't show an uptick, according to these statistics, but Maryland's Prince George County, just across the border, certainly has.  Last year its number of recorded homicides topped the all-time record set in 1991.

E.J. Dionne's recent Washington Post column provides some statistics on poverty:

The "good" news is that the poverty rate, the proportion of Americans who are poor, didn't change much between 2004 and 2005, falling in a statistically insignificant way from 12.7 percent to 12.6 percent. The bad news is that the poverty rate, having risen steadily in recent years, is still higher than it was in 2001, when it stood at 11.7 percent.

Worse is that the proportion of the poor who are very poor has risen. People are considered in deep poverty if they have half or less of the yearly income of those at the poverty line. In 2005 half the poverty line for a family of three was $7,788; for a family of four it was $9,985. (Try living on that.) According to the new report, 43.1 percent of poor people lived in that sort of deep poverty -- a record since 1975, when the government started assembling such statistics.

People living in households earning $7,788 are also victims of violent criminals at twice the clip of  those living in households earning $75,000, according to the Bureau of Justice Statistics.  (See post 148.) 

It's easy to see Dionne's figures as reflecting social policy.  But, for lawyers, it feels less natural to think of the BJS's figures in the same light.  We lawyers are trained to think in categories, and the category of "criminal law" exists apart from "poverty", "social issues," "Health and Human Resources" and "the income gap." 

But those categories are artificial, or rather imaginary.  The criminal law is the government's policy for addressing the immediate, practical needs of the very poor.  The BJS figures reveal the essence of our government's policy: If you don't want to be victimized by violent criminals, it's your responsibility to increase your income level to a point where you can afford private law enforcement.  

Rich people aren't immune from violent crime because their wallets and purses project a force field, but simply because they can afford to pay for their own protection.  "Security in a tax on the honest," in Bruce Schneier's words, and if you can't afford it, then you're not entitled to enjoy the most fundamental benefit of living in an organized society: freedom from physical danger.

New Mexico's Court of Appeals rarely allows oral argument, at least in criminal cases.  I've always assumed that's because inviting prosecutors into the courtroom results in such expensive cleaning bills - it's hard to get that brimstone smell out of your robes.  And then there's the nasty hoof-shaped burn marks the AAGs leave in the carpet, if you give them too much time at the podium. 

From comments to this blog and elsewhere in the blogosphere, I gather this isn't a universal attitude among state court judges.  There are, if my readers are to be believed, jurisdictions in which judges see their role as fulfilling the will of the people who elect the legislators who enact laws against criminal behavior.  It's a difficult concept for those of us who practice criminal law in New Mexico to get our minds around.

As it happens, New Mexico is one of the most violent states in the Union.  This table shows that the violent crime rate in New Mexico rose from 143 incidents per 100,000 inhabitants in 1960 to 757.9 in 2000, vaulting us into fourth place in the state rankings.  The murder rate was exactly the same at the beginning and end of the period - but during the same 40 years, the national lethality rate decreased by two-thirds.  (See post 34.) 

For an example of the sort of non-pharmaceutical advances that contributed to lowering the lethality rate, consider that New Mexico's only  Level 1 trauma center first began its helicopter service in 1983.  In 1960, fully 34% of New Mexico's population was rural.  Those folks, and those living in towns of 2,500 to 25,000, had to depend on driving across a very large state to a hospital in one of the very few urban centers to get expert treatment for their knife and bullet wounds.   So for the state's homicide rate to be the same in 2000 as in 1960, we had to manage at least a three-fold increase in potentially-lethal violence.  But, by golly, we were up to the task!

Here's a different table that puts NM # 5 in the violent crime rate among the states in 2004, but # 1 among non-Southern states (with non-state D.C. leading the pack).

Does the judiciary have any impact on the violent crime rate?  Or, to put it another way, is a locality's violent crime rate a reflection on the judiciary?

The Observer, the Sunday edition of Britain's Guardian, gave us some statistics last Sunday:

An investigation shows that conviction rates for many of the most violent crimes have been in freefall since Labour came to power in 1997 and are now well below 10 per cent. The chronically low figures for convictions come at the same time as reports that violent crime is increasing.

An analysis of Home Office figures reveals that only 9.7 per cent of all 'serious woundings', including stabbings, that are reported to the police result in a conviction. For robberies the figure falls to 8.9 per cent and for rape, it is 5.5 per cent.

Since 1980, the paper reported, serious woundings have more than quadrupled, and recorded rapes have increased nearly elevenfold.  Could an 11-fold increase in rapes have anything to do with the 5.5% conviction rate for reported rapes?  Is there a rapist in the world so lacking in malign ego-grandiosity that he would consider himself at risk from a 5.5% chance of punishment?

But, judges told the reporter, the problem lay not with them but with the prosecutors and police.  In 1980, apparently, British prosecutors and police suddenly became incompetent, while the judges kept on doing what they have always been doing.

Well, it's possible, I suppose.  Perhaps some hideous fungus infested barristers' wigs and worked its way into the crown prosecutors' brains.  Only by maintaining a strict professional quarantine from the real world could the U.K.'s judges avoid a similar infestation in their own, even more ludicrous wigs.  (Here's some dress-for-success tips for you legal-fashion mavens.)

But, back in the U.S., the sole justification given by the federal Supreme Court for permitting accused criminals to bring tort counterclaims against the government - that is, motions to suppress evidence - is that preventing laws against criminal violence from being enforced will deter police wrongdoing.  Now, if the dismissal of a prosecution will affect the behavior of a person who isn't even a party to it, doesn't it stand to reason it might also affect the behavior of a person who is?

To answer my own rhetorical questions, if the performance of the criminal courts has no effect on the violent crime rate, there's no reason to have criminal courts.  For judges to deny their direct influence on the numbers of dead and bereaved would be to deny the social value of their profession. 

Slate, usually a bastion of intelligence on the web, ran an article by Alexandra Natapoff, a professor of law, that includes this passage:

And so people plead guilty, at a rate of 90 percent to 95 percent. The criminal trial is nearly extinct. Most defendants never get the benefits of the constitutional protections contained in the Bill of Rights. To be charged with a crime means, in practice, that you will most likely plead guilty to a crime, not because you are guilty, but because the system offers no other realistic options.

This state of affairs has eroded our collective bedrock intuition that people are innocent until proven guilty.

"Collective bedrock" sounds like an exercise in Jungian geology.  And it's the very opposite of an intuition to say that people are innocent until proven guilty.  Our intuition, when confronted with evidence of wrongdoing, tends much more in the direction of the multitude's response to the accusation against Susannah.  Daniel's ratiocination was the unintuitive approach.  The idea that people are innocent until proved guilty is a learned attitude, a mark of civilization.

I hope the professor isn't saying that because a person is innocent until proven guilty, therefore people who plead guilty are innocent, because their guilt hasn't been proven. 

A friend of mine was once on a Law Day panel with a judge at a high school.  In response to a student's question, my friend said casually, Well, of course the exclusionary rule means that guilty people go free.  The judge said: That's not right.  If the evidence is suppressed, they can't be found guilty.

Well, it all depends on what your definition of "guilty" is, I suppose.  If "guilty" means the jury's foreperson signed that particular verdict form, then both the judge and the professor are correct.  But if "guilty" is defined instead as the condition of one who has committed a crime, they're both wrong.

Anyway, speaking as an appellate lawyer working for an Attorney General's office, and knowing something about the huge backlog of appeals awaiting action in the offices of our counterparts in the New Mexico Public Defender's office, I feel I'm on pretty firm ground when I say that, out here in the sticks at least, the criminal trial is "nearly extinct" in roughly the same sense in which Canada geese are.

The word "charged", as used by the professor, is ambiguous.  Most people, I think, would say a person arrested by police has been charged.  In fact, the American Heritage dictionary provides this illustrative usage: "The police charged him with car theft."

A significant percentage of those charged in the dictionary's sense don't plead guilty for the simple reason that they're not prosecuted.  You can find the figures in post 58: the annual number of arrests vastly exceeds the number of convictions.  If you prefer anecdotal evidence, there's Edward Conlon's memoir, a pertinent excerpt from which is given in post 100. 

In Albuquerque, a medium-sized city (# 33 in the nation based on actual city population, or # 62 by the more realistic metropolitan statistical area ranking - I sometimes get the impression that most people living elsewhere think we're more like this), about one-third of all arrests are not followed by prosecution.  That's been the average for years, or so I've been informed by folks familiar with the administration of the Bernalillo County DA's office. 

A paralegal whose job was to screen drug cases told me about 20% of the cases didn't get past her desk.  And - of course - in every single one of those cases we can be absolutely certain that somebody had violated the law. 

These are rough figures, and we should cushion them with fat margins of error.  Even so, there's no escaping the conclusion that a lot of arrestees are never prosecuted.  

If the professor is using "charged" in the more technical sense, to refer to a pleading that survives the initial determination of probable cause, then she seems to be saying that probable cause doesn't correspond to factual guilt more than half the time ("most likely").  In drug cases, that's just silly: the same cocaine in your pocket simultaneously establishes both probable cause and guilt beyond a reasonable doubt. 

In non-drug cases, my guess is that findings of probable cause correspond to factual guilt far more accurately than do guilty verdicts.    That's because guilty verdicts are, or ought to be, based on a finding of proof beyond a reasonable doubt.  By adopting such a very high standard of proof we ensure that a great number of very guilty people avoid punishment.  Al Capone was never convicted of murder, but that means only he was not guilty,  not that he was innocent. 

 My guess is that Professor Natapoff was hyperventilating in the style of those advocates who flash alarming statistics to draw attention to their cause: 4 out of 5 Americans will, at some point in their lives, suffer from [insert your favored syndrome or disease here].  And I certainly don't dispute her basic point, that resources should be poured into the defense of indigent criminals.  But fully 1,724% of state legislators indicate that the publication of silly hyperbole in online magazines makes them less likely to vote for increased funding for the cause in question.