JUDGING CRIMES

In 2003, Justice Kennedy issued an opinion thunderously denouncing the defiantly racist jury-selection policies officially adopted by the Dallas District Attorney's office of 1963.  (See post 57.)  If he had contented himself with that, we could all say: Better late than never.  But the point of his opinion was that stringent policies needed to be applied today to fix the injustices that had escaped the justices' attention a generation ago.

Shouldn't this be seen as an admission by the Court that for 40 years it failed in its duty to ensure equal justice under law in Dallas?  That idea wouldn't occur to most people in the legal world, I think, and especially not to the justices themselves.  They seem to perceive nothing peculiar about their institution's way of arriving late to the party and then announcing loudly that it's both the host and the guest of honor.

Justice Breyer recently called Brown v. Board of Education "this Court’s finest hour."  Given that he  "married into a well-established family of the British aristocracy", we can be sure that his Churchillian echo was intended.  A beleaguered democracy standing alone against Hitler, a court belatedly overturning its own evil decision of 58 years previously - well, I'll take Justice Breyer at his word, he sees a resemblance.  One of those Madonna-in-the-pancake things, I guess.

But what about those intervening 58 years?  Even if one assumes that the justices of 1896 didn't actually sell their souls to the devil - even if we assume they honestly didn't understand they were institutionalizing the racism of their class and genuinely thought they were fairly interpreting the constitutional phrase "equal protection" (big assumptions, I know, but Supreme Court justices tend to be sketchy about reality) - even on those heroic assumptions, the socially destructive effects of Court-approved racial segregation were plainly apparent long before 1954. 

Brown v. Board of Education was a remedy for the injustices of the preceding two generations.  Even apart from the most important point - that the Court itself was largely responsible for those injustices, by barring the courthouse doors against the oppressed - the slowness of the Court's response illustrates the generation-ago rule.  The Court always works in arrears.

Other examples are provided by some of the Court's most controversial decisions.  Its 1972 ruling that capital punishment was unconstitutional came at the end of a 21-year trend of fewer executions every year.  Its abortion ruling of the next year capped a similar trend toward liberalized state laws.  (Both decisions, of course, decisively ended those trends, with consequences still being felt today.  See post 270.)

And I don't think anyone can doubt that the Warren Court's "constitutionalization" of procedures in state criminal courts was a response to the use of the criminal law as a weapon of racial oppression, particularly but not exclusively in the Southern states.  But that systematized abuse was already apparent long before Miranda. 

I think the evidence is pretty strong that Justice Ginsburg hasn't thought seriously about criminal law since before the Civil Rights Act of 1964.  She's still acting on the shared assumptions of her generation and class - the well-to-do Upper West Side intellectuals of Bob Dylan's folk period.  Judging from her votes in criminal cases, I'm quite certain she sees all cops in terms of the legendary Southern lawmen of the day.  She quite sincerely wishes to right the wrongs of a generation or two ago.

Twenty or so years ago, America saw a wave of bizarre sex abuse prosecutions.  (In some instances the abuse alleged was almost as bizarre as the decision to prosecute.)  The Supreme Court stepped right up to the plate in 2004 and decided Crawford, a case that effectively prevents many child sex abuse cases from going forward - which, I think, was the point.  The Court was offering a remedy for the problems of a generation ago. 

Look around you.  Make a note of current social problems.  Future justices of the Supreme Court are assuredly doing so.  In twenty or forty years, when those same justices are too old and cosseted to have any reason to think about anything new ever again, they'll issue constitutional rulings in great clouds of self-righteousness to right the wrongs of 2007.

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.

No matter how many times the Supremes tell us that it's just too tacky to imagine them doing anything quite so infra dig as merely deciding cases (see post 7), it's very difficult to break the habit of thinking of the Court as a court.

It's easy to fall into the trap of thinking that Massachusetts v. EPA was a case about greenhouse gases, or that the recent death penalty cases out of Texas were cases about the death penalty in Texas.  In fact the Court's decisions had almost nothing to do with those particular subjects.  Almost nothing, because the subjects lent themselves to many pages of narrative prose, which in the military is called the deception strategy. 

In the run-up to the first Gulf War, the Marines spent many days practicing amphibious landings in front of CNN's cameras, while the Army, far inland, prepared its actual advance across the desert -- an attack that met little resistance because Saddam Hussein's troops were stationed to repel the Marines that their TV-viewing had conditioned them to believe would soon be splashing out of the waves. 

In the same way, the Supreme Court typically devotes many pages of its opinion to detailing the facts of a given case before announcing rules of universal application.  But the Court's disposition of the particular case is rarely more than an illustration of how the new rules work - and often enough it's not even that but a rarely-to-be-repeated anomaly.  (See post 228.)  Judging a Supreme Court case by its facts is like judging an instruction manual by the artistic quality of its line drawings.  The critique isn't invalid, exactly, but it misses the point.

To bring the analogy a little closer to home, the facts of a case decided by the Supreme Court might be compared to the affecting anecdotes that congressmen invite witnesses to tell during televised committee hearings.   Listening to a family farmer talk about the daily struggle to make ends meet on grandpappy's homestead is, admittedly, more enthralling than the details of cotton subsidies, but the two really don't have much to do with each other. 

The media, which likes stories, will report on the facts of a Supreme Court case while all but ignoring the actual decision rendered by the Court. 

The real point of the EPA case is summed up by Max Schulz at the Manhattan Institute: "It merely increases the power of the unelected judicial class to make the laws our elected representatives at all levels should be making."   That's not an effect of the ruling.  It is the ruling. 

The issue being decided was not whether greenhouse gases should be regulated, or even whether the EPA had fulfilled its duty under the law to decide whether or not they should be regulated (which is more or less what the Court actually said - in technical legal terms, the ruling was pretty much a writ of mandamus, except that a writ of mandamus would have been improper, so they couldn't call it that).  The issue was whether the power to make that decision should be exercised by judges or by elected officials.

With respect to greenhouse gases and the Bush EPA, the effect of the ruling is less than zero, since the EPA's front office will be restaffed in just another 20 months anyway, and even the least-competent Washington bureaucracy can stretch out any rule-making process that long.

For environmentalists, the prospect of our national environmental policy being administered by Bush's EPA until January '09 is pretty alarming.  I think they need to start worrying that it will be be administered by Bush's federal judges for the next half-century. 

If you devoted time to the project of inventing the most ridiculously inefficient system of environmental regulation imaginable, I don't think you could top the federal lawsuit, which after years of litigation can, at most, determine that an executive branch agency failed, long ago, to fulfill the legislative branch's will. 

The court can attempt to remedy that failure by ordering the executive branch agency to buckle down, and then for the next 10 or 20 years the focus of the litigation will shift to the question whether the executive fulfilled the judicial branch's will.

This type of litigation quickly begins to resemble a fractal generator, patterns endlessly subdividing into smaller patterns forever.  The original point is almost instantly lost.  Just think for a moment about how many consent decrees have been entered into in the past 30-40 years.  And now think about conditions inside American prisons, the quality (and racial composition) of our public schools, our society's treatment of the seriously mentally ill, and the way in which we treat children without families. 

I don't mean to imply that the whole experience of judges managing executive branch agencies by court order has been an unbroken record of utter failure.   Doubtless the record has been broken somewhere, and certainly some failures are sub-utter.   Nonetheless, as a broad generalization, I don't think I'm entirely out of line to suggest that judges are not ideal executive branch managers. 

For example, imagine if President Bush announced as his nominee to head the EPA a person who had no post-secondary education in any technical field relating to environmental science beyond biology 101, who had never supervised an organization with more than three employees, and who proposed to work at the agency only part-time. 

At least, if the President had done that, his appointee likely wouldn't go to work in the same black polyester dress every day.

In the Texas death penalty cases, the issue was similarly straightforward.  The Constitution specifically says that Congress has the authority to define the powers of federal courts.  The question before the Court was: should federal courts respect Congress when it exercises that authority?  The Court's answer was: You talkin' to me?  

One can oppose the death penalty – one can agree that Texas's administration of it is a  reflection of a brutally violent culture rather than a corrective to it (see post 62) – even that it deserves to be called all sorts of headline-worthy names such as "lethal injustice" – and still say, even if a bit tentatively or even plaintively: Maybe, I dunno.  Maybe the Court really should try to, you know, obey the law?

All you have to know about the real meaning of the Texas cases is summed up by Chief Justice Roberts (I've gently de-legalesed the following):

This Court had considered similar challenges to the same instructions no fewer than five times in the years before the state habeas courts considered the challenges at issue here. ...  Under the [governing statute], a state-court decision can be set aside on federal habeas review only if it is "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States."  When this Court considers similar challenges to the same jury instructions five separate times, it usually is not because the applicable legal rules are "clearly established." The Court today nonetheless picks from the five precedents the one that ruled in favor of the defendant and anoints that case as the one embodying "clearly established Federal law."

Of course the majority opinion (written by Justice Stevens) didn't really mean that the one case was clearly established federal law while the other four weren't.  All the majority meant was:  You can't stop us.

If not for the bicoastal bias of the national media, which showers so much attention on the Ninth Circuit, the Sixth might long ere this have achieved the title of most-ridiculed circuit court.  As it is, the Sixth, which covers an odd arc of the country from Soulsville to Hitsville (and beyond), has had to put the fun back in dysfunctional in the obscurity of flyover country.  (See post 234 and post 210.)

The Cincinnati Enquirer recently did a study on the death penalty decisions of the Sixth Circuit, and you ought to look at it before it disappears behind the paid-archive walls.  They have this cool graphic: click on the face of the President, and you see a presentation of his appointees' votes in death penalty cases.

The bottom line?  Well, you guessed it:

Judges appointed by Republican presidents voted to deny inmate appeals 85 percent of the time.

Judges appointed by Democrats voted to grant at least some portion of those appeals 75 percent of the time.

Republican appointees dissented from majority opinions 25 times, always arguing against the inmate. Democratic appointees dissented 29 times, all but once arguing for the inmate.

What to make of it?  The Enquirer quotes Richard Dieter of the  Death Penalty Information Center saying: "It makes blind justice look like part of the political system."  Well, you might be asking yourself, could that be because the federal government is part of the political system, by definition?  But that wouldn't be quite fair. Dieter was just using lawyer talk to convey the idea: "I can't tell you what I really think without pissing off the judges, but I'm sure glad to get my organization a mention in  your Sunday edition, so here's a quote."  His website presents the data in more conventional tabular form.

(Did Dieter miss the career fate had planned for him when he didn't join the Weight Watchers management team?)

I didn't see a total number of cases considered, but my guess is that the trends are so pronounced that conclusions can validly be drawn from even a relatively small sample.  But what conclusions should we draw?  That the Sixth Circuit judges are all partisan hacks? 

Well, maybe.  No one gets to be a federal judge without demonstrating some of the traits of hackdom.    After all, why would any President or Senator guarantee you a fat salary for life no matter how badly, or how little, you do your job, unless you first made yourself exceptionally useful to them?  But while there is an obvious touch of defensiveness in the way judges bristle at the very thought of doing something as vulgar as "politics" from the bench, in general they make a point of not taking direction from merely elected officials.

Besides, some prominent Republicans have opposed the death penalty, and a certain well-known Democratic governor of Arkansas used an execution as a campaign prop.  (It worked, didn't it?)  When Republican felon-to-be George Ryan commuted all the death sentences in Illinois, Democratic Governor-elect Rod Blagojevich criticized him.  (Like a true process liberal, he criticized Ryan for the way he did it rather than for what he did: "'I think a blanket anything is usually wrong,' Blagojevich said.") 

Pennsylvania's former Republican Senator, reading the polls, started trying to soften his position on the death penalty a year before the election, seeking cover behind Catholic doctrine, which in general cannot be described as liberal.  (But it didn't work for Santorum, did it?  In matters of death, it's easier to prove you're for it than against it.)

So if elected officials feel comfortable bucking their party line on the death penalty, why would judges be uncomfortable doing the same?  A better explanation for the Sixth Circuit's statistics might be psychological, as hinted by the Enquirer, which characterizes the Sixth Circuit as "deeply divided", meaning that it's staffed by people who loathe one another, and indeed make a convincing case for each other's loathsomeness.  (See post 234.)  

The Enquirer even found a former member of the court to bad-mouth it in public, something I can't recall ever seeing before.   Those people really don't like each other.  But still - ordering another person's death just to spite a disagreeable coworker?  I mean, maybe once or twice, sure.   Who wouldn't?  But we're talking about a lot of decisions over a long period of time.  

Ockham's Razor says that one should avoid multiplying hypotheses unnecessarily: the simplest answer is usually the best.  And, slashing away crudely, I'd say the real explanation for the Enquirer's numbers is simply that the votes of the Sixth Circuit judges have less to do with political affiliation than with the judges' personal beliefs. 

That is, judges who support the death penalty in general vote to uphold it in individual cases, while those who oppose it look for any way to overturn it.  That sounds far too banal to count as an insight, but it actually suggests something far more disturbing than the Enquirer dared to suggest.

It's this: What's going on in the Sixth Circuit may be legal - though from time to time I have my doubts - but it's not the law.  There is no death penalty law in the Sixth Circuit.  What we're seeing instead is the ugada principle - the Clan Elder deciding who's entitled to a haunch of mammoth or a kidnapped girl by gesturing with his caribou thighbone and saying, "Ugh.  Uh.  Duh."  Which settled the matter.   (See post 106.) 

It's the General Stroessner principle - the tinpot dictator whose word was the only law his people had.  (See post 159.)  It's the very thing John Adams was decrying in his familiar phrase "a government of laws not men."  The death-row inmates of the Sixth Circuit are living under a government of men (and women), not laws.

What would be really interesting would be to chart the votes of the judges on issues one degree more subtle than the death penalty, like search and seizure cases, certifications of class actions against private businesses, mega-million-dollar jury awards, and the like.  I'm pretty confident similar patterns would emerge, even if the lineup of the judges shifted somewhat.  If so, it would show that death-row inmates aren't so very different from the rest of us, after all.

(Thanks to David Badertscher's New York Supreme Court Criminal Term Library blog for the initial link to the Enquirer story.)

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.)

The great legal reporter Tony Mauro had a recent article in Legal Times about Alabama Supreme Court Justice Tom Parker.  The headline read: "Alabama Judge Declares War on U.S. Supreme Court: State justice says colleagues should 'actively resist' juvenile death penalty ruling".  Shades of massive resistance and standing in the schoolhouse door.

It's hard to imagine a less sympathetic cause than seeking to execute people who committed their crimes while children.  Alabama's Justice Parker seems particularly exercised that Roper v. Simmons is based on foreign law. In the echo-chamber of American media it has become accepted wisdom that Justice Kennedy ruled that foreigners can give new meanings to our Constitution, even though his actual opinion is a tad bit more nuanced than that: "The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions."

Nonetheless, decisions such as Roper present us with a fundamental problem that only rarely gets addressed.  Most discussions of controversial cases turn on whether one approves or disapproves of the result.  First you decide how you feel about it, then you come up with reasons why you're right to feel that way.  That's typical of legal argument - lawyers construct their syllogisms backwards, beginning with the conclusions their clients want - but the process shouldn't be confused with thinking.

There are really only three possible explanations for Roper.  Either it's correct and the American courts grievously failed in their duty to enforce the eighth amendment for the first 214 years following its ratification; or else it's wrong and the Supreme Court itself violated the Constitution when it decided the case.  Or - the third possibility - the eighth amendment means something different now than it meant in 1791, or even in 1989.

Roper itself adopts the third possibility, referring to "our society's evolving standards of decency" as reflected by the actions of various state legislatures.  But note the oddity: by definition, standards of decency had not evolved in Missouri's society, or there would have been no case for the Supreme Court to decide.  And: if the actions of state legislatures reflect evolving standards of decency, why does the Supreme Court need to get involved at all?

 The underlying logic of Roper, and other eighth amendment cases before it, seems to be that the Supreme Court's role is to hurry along the process of evolution.  If a majority of states has enacted legislation restricting the death penalty, then it's the Supreme Court's role to sweep in the outliers by declaring the majority rule to be constitutionally required.  Git along little dogies.

But article V spells out how the Constitution can be amended, and it doesn't say anything about the Supreme Court keeping a tally of state legislation and then, at some point, declaring the Constitution amended by process of evolution.  The idea of the Constitution changing without amendment is contrary to its very concept as "paramount law, unchangeable by ordinary means".  If our elected representatives cannot change the Constitution's meaning by legislation, as the great anti-Jeffersonian Chief Justice John Marshall so famously declared, can five unelected justices change it by decision?  Marshall didn't think so: he thought that "the framers of the constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature."

More fundamentally still, if one accepts the idea that the Constitution established a democratic government, the uncomfortable question is unavoidable: In what sense have the American people chosen to live under the constitutional rule announced in Roper?  The people of many states chose by democratic means to enact laws prohibiting the execution of people who committed their crimes as children.  (The Supreme Court, as always, is a trailing indicator of social change.)  But the people of Missouri didn't make that choice.  Can it really be said that, when they joined the Union, they agreed to surrender their power of choosing?  Did they really delegate their power of self-government to the Supreme Court with respect to the issue of the death penalty?

The answer to all these questions, I'm afraid, is: Justice Parker has a point, repulsive though his particular hobbyhorse  may be. 

There is little difference between the reported property crime rates of developed Western nations.  England and Wales are higher than Australia in car damage, but lower in burglary.  And so on.  The U.S. is right in the middle of the pack.

Homicide is different.  The United States' homicide rate is consistently much higher than that of any other developed Western nation.  But when you dig a little deeper, you discover that the American homicide rate varies greatly among the individual states.  Our northern states, generally speaking, are comparable to Canada, Australia and Western Europe.  It's the southern states that raise our national average.

The difference between the states is made stark by the Centers for Disease Control injury maps service.  Follow the link and hit "Create national map", then change the default "Cause of death" to "homicide", and click on the blue map-and-arrow icon.

What you'll see is a startlingly vivid map.  Counties that have a homicide rate at or above the 90th national percentile (i.e., in the top 10%) are shaded in red.  Counties with a homicide rate at or above the 75th percentile, but below the 90th percentile, are shaded in blue.  Most of the color is found in counties below the 37th parallel,  the slightly ragged line that runs along the tops of Arizona, New Mexico, Oklahoma, Arkansas, Tennessee and North Carolina.

A map of states that have the death penalty is not particularly revealing.  A map of the states that  carried out the most executions during the years 1997-2003 tells us a little bit more.  By the time we get to a map of the states identified by the percentage of inmates on death row, a pattern is beginning to emerge.

Below are two columns.  The column on the left gives the 15 states with the highest homicide rates per 100,000 inhabitants, using 1997 figures.  In the right-hand column are the top 15 ranked by death sentences imposed (which is to say, ordered, but not necessarily carried out) per 100,000 inhabitants. 

Homicide Rate (1997)                                     Death Penalty Rate (1997)

1. Louisiana (15.7/100,000)                       1. Nevada (5.18/100,000)

2.  Mississippi (13.1)                                        2.  Oklahoma (4.13)

3.   Nevada (11.1)                                              3.  Alabama (3.68)  

4.  Alabama (9.9)                                             4. Arizona (2.64)

5. (tie) Arkansas (9.9)                                    5.  Florida (2.52)

              Maryland (9.9)                                    6. North Carolina (2.37)

7.  Tennessee (9.5)                                          7.  Mississippi (2.34)

8.  Illinois (9.2)                                                 8.  Texas (2.26)

9.  Alaska (8.9)                                                  9.  Delaware (2.04)

10.  South Carolina (8.4)                            10.  Tennessee (1.92)

11.  North Carolina (8.3)                             11.  South Carolina (1.80)

12.  Arizona (8.2)                                           12.  Pennsylvania (1.78)

13.  California (8.0)                                      13.  Idaho (1.57)

14.  Missouri (7.9)                                        14. Missouri (1.63)

15.  Michigan (7.9)                                       15.  Louisiana (1.61)

Nine states appear on both of the above lists.  Others don't miss by much.  Oklahoma and Florida, near the top of the right-hand column, tied for the 20th highest homicide rate in 1997. 

Here you can find 2003 homicide figures in Excel spreadsheet format.  (Click on table 5.)  The most interesting change from 1997 to 2003 involved Texas, the state notorious for sheer number of executions.  In 1997 its homicide rate ranked it at # 22.  Six years later, it was tied for # 10.   All the states I looked at (22 in all) saw a drop in the homicide rate from 1997 to 2003.  Texas was tied for the second-smallest drop.

The rough correlation between homicide and death penalty rates can be interpreted many ways.  For instance: the more murderous the state, the more that drastic measures such as the death penalty are needed, and the more popular support capital punishment will have.

But I think a more convincing interpretation looks at regional culture.  In some areas of the United States, the flash point (see post59) is lower than in other areas.  As Bertram Wyatt-Brown showed in his Southern Honor: Ethics and Behavior in the Old South (also available in abridged form as Honor and Violence in the Old South), there's a long historical tradition of violence in the defense of honor in the South.  That is, there's a long tradition of deciding that a person deserves to die for what he's done.  The South has long had a lower flash point than the snowy wastes of the north.

I think the states below the 37th parallel tend to have high murder rates and high death penalty rates because both rates reflect the low flash points of cultures that don't question the premise that a person can, by his behavior, forfeit the right to live.  Some individuals find that standard satisfied at a relatively low level of provocation ("he cut me off") while the state requires a much higher level ("especially cruel and atrocious").  But the moral impulses are unmistakably related.

When should people kill other people?  It sounds at first like an outrageous question, but it's not.  Our President recently guessed we've killed about 30,000 Iraqis, and I don't doubt he believes most of the killings were justified.  Michael Reagan said he thought Howard Dean should be "hung" (presumably he meant "hanged," but maybe he was thinking of Mussolini's end).  Two days ago Ann Coulter said: "We need somebody to put rat poisoning in Justice Stevens' creme brulee."

Coulter immediately added: "That's just a joke, for you in the media."  But she was mistaken: the distinguishing feature of jokes is that they're funny.   Here's a description of the death she claimed to think would be amusing if suffered by a 85-year-old man who (for all that I sometimes disagree with him) has served his nation with integrity for thirty years.

We've recently had news stories about the Florida man who punched a teacher's aide and was immediately lauded as "Father of the Year" by a radio station.  The radio station, in the time-honored tradition of leaders of lynch mobs, skipped the interim step of trying to determine if the aide had actually done what he was accused of doing.  (It seems pretty clear he hadn't.)  The punch wasn't lethal, but the radio station's impulse to approve of its infliction can't be easily limited to violence that falls on this side of that line.

Every society accepts as a basic governing principle that some violence is justified.  That means not only violence by the government - wars, arrests, imprisonments, the death penalty - but private violence, one citizen against another.  One important difference between societies is the way they decide when it's okay to kill.  

Attempts to explain America's homicide rate in terms of childhood abuse, poverty, the prevalence of guns and so on always founder on the unarguable fact that most people who were abused as children, live in poverty or own guns don't kill.  Each of these factors doubtless contributes to the overall rate - it's a safe assumption that most violent criminals (like most comedians, another hostile group) had wretched childhoods, and the ready access to weapons obviously promotes impulsive killings - but they aren't by themselves reasons for lethal violence.

With most homicides, I think, the decisive factor is the killer's conclusion that the victim deserves to die. 

Most murders are, from the killer's perspective of the moment, not merely rational but just.  A gangster disrespected by a member of a rival gang has no doubt about what the rival deserves.  Many men, and a few women, confronted with a partner who wants to leave likewise have no doubt about what the partner deserves. 

Texas notoriously long had on its books a statute that read: "Homicide is justifiable when committed by the husband upon the person of any one taken in the act of adultery with the wife, provided the killing take place before the parties to the act of adultery have separated."  (In 1885 this was codified as Penal Code, art. 567.)  But "in the act" was loosely construed. 

In State v. Price, 18 Texas App. 474, 5 Am. Crim. Reports 385 (1885), for instance, the husband went out to the corn crib one night to investigate his wife's absence from the house.  It was dark and he called out, "Who's there?"  His wife answered, identifying herself.  From rustling noises he gathered she had been lying down.  He asked who was with her and she said no one.  But then the lover, a man named Chandler, jumped out of the darkness and grabbed the husband's gun.  They tussled until the husband said, "Let go the gun, and let me go about my business."   Chandler let go and the husband shot him.  (It's  hard to blame the wife for preferring Chandler, isn't it?)  The husband didn't pretend he had actually caught the couple in the act:

"I do not know what they (Chandler and my wife) were doing. I did not take time to investigate that. I knew they were there for no good. ... I can't say that I thought they were having connection with each other at the time I called to them at the door of the crib; but by finding them together I supposed that their object was to have connection with each other[.]"

That, the Texas court determined, entitled the husband to a jury instruction on the issue.  Under Texas law, the jury was justified in concluding that Chandler deserved to die.

The Texas court noted that while the Texas statute was unique in America, every other state reduced homicide committed by the outraged husband to manslaughter.  As far as the other states were concerned, the homicide wasn't excused, as it was in Texas, but it was less culpable than other killings.  Blackstone, the font of 19th century American law, considered that killing the lover was manslaughter, but only "the lowest degree of it: and therefore in such a case the court directed the burning in the hand to be gently inflicted, because there could not be a greater provocation."  (pp. 191-192)  There's nothing quite like a gently-inflicted brand.

The American Heritage Dictionary, on-line at the wonderful Bartleby site, gives these two definitions for "flash point":

1. The lowest temperature at which the vapor of a combustible liquid can be made to ignite momentarily in air. 2. The point at which eruption into significant action, creation, or violence occurs.

Just as the flash points of combustible liquids fall along a spectrum, with gasoline's flash point at -40 F and kerosene's at +110, so do the figurative flash points of different societies.   That's one reason why homicide rates vary so enormously between different states.  (Compare Maine and Maryland in this FBI table.)   Blackstone and most Americans of the 19th century believed the husband's killing of his wife's lover was understandable but still not such a great idea; but Texans thought the back-door man deserved his fate.  Texas's flash point was lower than that of the other states.

The idea of comparative flash points also helps to explain why America's homicide rate is so much higher than those of the countries closest to us culturally, such as Canada, Australia and Western Europe.   (See page 29 of this British Parliament report.)  Americans are inclined to think homicide is justified at a lower level of provocation than are other peoples.

 The implications of this idea for the death penalty debate will be discussed in later posts.

Tonight America is – once again – going through a grotesque cliff's-edge, will-they-or-won't-they drama involving a celebrity prisoner.  Ann Althouse reminds us of Tookie Williams' crimes, which were about as cold as murder can get. 

This story repeats itself every few years in the America mass media, but much less frequently than executions take place.  Why do we (or "the media" that caters to us) care so much about one prisoner about to be executed, and so little about the rest of them?

When a case reaches a certain nearly-hysterical level of publicity, the public gets some sense of the experience of a sentencing judge.  The crime is long past.  The victim exists only in photographs and words, no more real than the solemn, doomed soldiers staring out of Civil War portraits.  The judge never met him, and never will, and his death cannot have made any difference to the judge's life.

But the convicted murderer stands before the judge as a person.  Murder makes its victims two-dimensional, but the convicted murderer still has the light in his eye, the characteristic way he holds his head, his gestures, his voice, his words.  The killer always has a complexity denied the victim.

When publicity reaches the saturation point with the sick drama of execution eve, we are made to think about a person whose vitality makes him so much more interesting than those who vitality he extinguished.  But then the needle is inserted, the drip is started, and the third dimension is taken from the killer, too.