JUDGING CRIMES

Ronald Dworkin's work is routinely described with such daunting superlatives as "the most important systematic contribution to Anglo-American legal philosophy made since the mid-1960s" (hard to tell if that's intended as a compliment, and you have to pay money to view the concluding paragraph online, so I guess we'll never know), although it seems strangely unphilosophical to dye one's hair, as he appears to have done in this official photo.  That magisterial stare, and then that hair, like Caesar wearing a propeller beanie.

Now, far be it from me to be judgmental.  It's certainly no more ridiculous for a 76-year-old philosopher to have blond hair than it is for Robert Plant, at age 59, to be prancing around with a full head of ringlets. 

Well, no, I take that back.  It's more ridiculous, after all, since men who sing soprano have long been known for non-receding hairlines, according to this remarkably scary-looking hair doc.

 Anyway, Dworkin published a piece last summer in the New York Review of Books telling his readers that the conservatives on the Supreme Court spent the 2006-07 term "overruling, most often by stealth, the central constitutional doctrines that generations of past justices, conservative as well as liberal, had constructed."  The doctrines being overruled "aimed at ... establishing a criminal process that is fair as well as effective."

No, really, I'm not kidding.  Click on the link if you don't believe me.  He really, honestly used those two adjectives to describe our criminal justice system.  Has anyone else done so, in your memory?

But then, if you examine the words closely, you'll see he didn't actually say that the doctrines succeeded in establishing a criminal process that was either fair or effective, only that the justices aimed to.  And then you can define the adjectives in various ways.  "Fair" can mean that a guilty-as-sin murderer has a 50/50 chance of walking.  What, after all, is fairer than a coin flip?

Still, I don't mean to be mean.  Dworkin only practiced law for four years, quitting while Barack Obama was still in diapers.  His practice was limited to Sullivan & Cromwell, and learning to practice law by working as an associate at a big New York firm is like learning how to sail by washing dishes on a cruise ship.  Criminal law is populated by people who are notably unconsoled by philosophy, and I'm sure it's far outside his interests.  He's a good liberal, so he knows the Court's criminal procedure decisions of the previous 45 years were Good Things.

But who were they good for?  The answer appears so obvious that at first it seems the only choice is between cynical wisecracks.  As the even-older Anthony Lewis wrote in an even-more-recent edition of the New York Review of Books, the new conservative Court is "hostile to ... the rights of criminal defendants". 

It's self-evident, isn't it, that protecting the rights of criminal defendants is good for criminal defendants?

At a micro level, dealing with one defendant at a time, the Supreme Court's method for protecting their rights has proved remarkably beneficial for certain individual defendants.  But on the macro level, looking at criminal defendants as a class, the picture is not nearly so clear.

Consider these drearily familiar statistics:

On December 31, 2006 —

    – 2,258,983 prisoners were held in Federal or State prisons or in local jails -- an increase of 2.9% from yearend 2005, less than the average annual growth of 3.4% since yearend 1995.
    – there were an estimated 501 prison inmates per 100,000 U.S. residents -- up from 411 at yearend 1995.
    – the number of women under the jurisdiction of State or Federal prison authorities increased 4.5% from yearend 2005, reaching 112,498, and the number of men rose 2.7%, totaling 1,458,363.

As we all know, that's a lot of prisoners.  Human Rights Watch says: "The country that holds itself out as the 'land of freedom' incarcerates a higher percentage of its people than any other country."  (Um, that's actually "land of the free.")  Even if, for the sake of accuracy, that ought to read "than any other country you could imagine yourself voluntarily choosing to live in," that's still pretty stunning.

I haven't looked hard enough to find prison population figures for 1961, but if you take a look at this chart you'll see 1961 is the base camp at the foot of Everest.  (You can find a more elegantly-presented version of the chart on page 43 of this pdf .)  Almost as soon as the Supreme Court began the federal takeover of criminal procedure in 1961, the prison population began climbing up to the sky.

If one looks only at the two variables - Supreme Court intervention in state criminal law and prison population - one would hardly be able to avoid the conclusion that the judiciary's policy has had a less-than-wholly-benign  effect on criminal defendants as a whole.

But surely that can't be right.  It must be a coincidence.  Right? 

In part, sure.  There are lots and lots of partial explanations for the weird growth of the prison population in America - which is, really, a very strange social development.  But to assert that the policy pursued by the courts isn't one of those explanations is to discount the importance of the courts themselves.  After all, if their policies don't have a real-world effect, why do they bother?

I don't think it's a coincidence at all.  And I think Dworkin actually suggests why not, though I suspect he didn't have this in mind when he talked about effectiveness and fairness.  The underlying idea of the whole judicial project since 1961 is that criminal law is a zero-sum game: that a detriment to the prosecution is a benefit to the defense, and vice versa.  Dworkin buys it: in his world-view, fairness and effectiveness in the criminal law are opposing values.  (Mind you, I'm pretty confident he hasn't actually thought about it, but that's what his second-hand rhetoric translates into.)

But life is far more complicated than that world-view allows.  What the courts have done since 1961 is decrease the risk of punishment.  Even if you're caught red-handed - hell, even if you take the police to the body - you might still walk.  Our democratic branches of government can't alter that, because the courts have decreed it to be required by the Constitution.  So our democratic branches alter a different variable - the severity of the punishment.  They increase the sentences.

This, I think, is a perfectly logical and, on the terms imposed by the Supreme Court, entirely reasonable course of action for Congress and state legislatures to pursue.  It's also socially destructive: we've raised a generation of young men who think it's normal for daddy to be in jail.  But which governmental institution first started spinning the top?

Still, I don't think we should criticize the elderly gents harumphing in the pages of the New York Review of Books  for failing to notice.  At their age, they have every right to hunker down behind their psychological defenses. 

I grew up with the idea that it was liberal to think that the purpose of prison is, or should be, rehabilitation.  But that idea leads to a very illiberal consequence: it makes incarceration for drug crimes halfway-plausible.

Another – and, I think, more realistic – way to think of prison is as exile.  Prison is a casting-out from society, a way to isolate those people who have demonstrated their inability to live in society without hurting others.  If you think of prison in those seemingly-primitive terms, then locking people up for using drugs makes no sense at all.  Addicts are dangerous to themselves, and to those unfortunate enough to love or trust them.  But the metaphorical knife to the heart is qualitatively different from the literal one.

The central goal of criminal law, and perhaps the only goal, should be to identify, as accurately and certainly as possible, dangerous violent people, the people described by Lonnie Athens, who was so memorably profiled by Richard Rhodes, and by Robert D. Hare, creator of the Hare Psychopathy Checklist.  There was a good reason for our ancestors to huddle together in the back of the cave.  And it remains the most important function of government.