JUDGING CRIMES

Courtesy of the always-worthwhile New York Supreme Court Criminal Term Library - I keep thinking there must be a clever pun in there somewhere; I mean, it's the name of a blog, isn't it? - here's an NPR story about privatizing the police:

In the past, remote communities like this one [i.e., Wintergreen Resort, Virginia, along the Appalachian Trail] were ripe for thieves. But since residents started paying for their own private officers, crime has dropped 70 percent.

Many of the residents also did something else: They installed burglar alarms. Nationwide, one in four homes now has one. The alarms and an explosion of other devices, like steel bars, stronger doors and security glass, make it more of a hassle to break into homes, criminologists say.

Even locks, the most basic anti-burglary device, have undergone major changes since the 1970s.

"Good locks make all the difference," locksmith Rahm Bunnag says.

Locks are far more secure than they were 30 years ago, he says. They're far more intricate, he says, holding up two keys.

One, made by Ossa, has a second set of cuts on the side. Another, made by Medico, "looks like a normal key, but when you look down at the cuts, notice that it's cut at an angle. There's a 98 percent chance that says you can't pick it," Bunnag says.

The 1970s also saw the widespread introduction of the deadbolt. But the biggest change when it comes to locks, criminologists say, is that people started using them.

I have never understood why so many liberals, who are ideologically opposed to deregulation and privatization in other areas of life, are so comfortable with the idea that law enforcement should be an individual activity.  Security is a tax on the honest, as Bruce Schneier says (see post 52), and the folks in Wintergreen Resort are paying it, with their locks and private police force. 

The NPR story also mentions the "1 million private police and security guards at work in residential communities" - a mind-boggling number.  That's a million people who have jobs because the government can't be counted on to perform its most basic function, which is to protect its citizens from harm.

Meanwhile, Justice Stevens recently wrote about how a state can "grant its citizens broader protection than the Federal Constitution requires".  By "protection" he meant concealing reliable, relevant evidence from its juries, on the theory that when a state prevents itself from convicting a lawbreaker of breaking the law, the state is protecting its citizens from unconstitutional actions by police committed many months earlier - your basic space-time anomaly.

The fact that a state's citizens might feel the need to hire private police forces and make their homes into little castles in fact as well as in rhetoric is neither here nor there.  The little dears might think they need protection from criminals, but the Supreme Court knows better: they need protection from the state's own courts, which might otherwise convict them.

Then again, the basic concept of "more protection under the state Constitution" is hardly new: Ludwig Mies van der Rohe expressed it in a three-word slogan many decades ago.

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?

Every once in a while, the news makes a point of making my points for me.  The privatization of law enforcement has, from the beginning, been a theme of this blog. 

We're so used to the bars in front of windows, the military-grade storm doors, the concertina wire on the roof, the gated communities, the security guards, the anti-theft devices in cars, the parked cars spontaneously honking, and the idea that the person in the next car is very likely armed, that we hardly notice to what an extent we've outsourced the most basic function of society: protecting its members from danger.

Not so coincidentally, the society that privatizes its law enforcement has an enormous class bias in its incidence of violent crime.  The poorer you are, the more likely you'll be victimized.  This is true of robberies and burglaries, too, counterintuitive though that might at first seem. 

Then along comes an article such as that in the Albuquerque Journal this morning:

Some neighborhoods are getting the best police protection money can buy.

But other not-so-wealthy neighborhoods are calling foul on a city program that allows homeowners associations to contract with the Albuquerque Police Department to pay officers overtime to conduct extra patrols there.

The story explains that the Albuquerque Police Department charges neighborhoods $34/hour for the services of off-duty officers (if they're off-duty, why does the city get a cut? - an agent's 10%, I guess).  The program brings in a million bucks a year to the city.  The off-duty cops patrol in uniform and squad cars and give out tickets, just like on-duty cops, except their patrol is limited by the boundaries of the neighborhood associations that pay them.

The neighborhoods in question are in the "foothills" - the last neighborhoods before you hit the Sandia Mountains wilderness area.  In Albuquerque as in almost all cities built on uneven terrain, a rise in elevation generally means a rise in real estate price.  

Police Chief Ray Schultz said the program has been in place for years. He also pointed out that much more of his department's resources are dedicated to some poor neighborhoods that have much higher crime than the wealthier areas that don't have as much of a crime problem.

"A lot of this is perceptions," Schultz said. "Some neighborhoods feel more comfortable with the extra patrols. They do it more for the quality of life than there being a lot of criminal activity."

That's a pretty diplomatic way of saying that the neighborhoods getting the extra attention aren't the ones that need it. 

There's a lesson here.  If you don't want to be a victim of violent crime - if you don't want your children to get used to the sound of gunshots - if you don't want to attend their funerals before they have the chance to attend yours - there's a simple solution: move uphill.  It's the American way.

It's a good bet your local paper and evening news will have "Safety tips for Halloween."  Here's the word from Detroit, America's no. 2 city in crime as well as baseball:

• Let your children know not to cut through back alleys and fields. Make sure they know to stay in populated places and don't go off the beaten track. Stay in well lighted areas.

• Stop only at familiar houses in your own neighborhood unless they are accompanied by an adult.

• Small children should never be allowed to go out alone on Halloween. Make sure an older sibling or adult is with them.

• Instruct your children not to eat any treats until they bring them home to be examined by you

• Instruct your child to never go into the home of a stranger or get into their car.

This isn't just a crotchet of the big cities.  The Thomasville Times ("Serving the City of Roses and Surrounding Areas Since 1921!") provides its own set of tips for rural Alabama kids.  The Alabama paper, at least, puts more emphasis on the responsibility of adults, as perhaps befits a paper published just down the road from Harper Lee's Monroeville.

(However, the Thomasville Times also runs perhaps the creepiest internet ad I've seen yet: "We Help to Cure Child Behavior / Helping parents make their child easy and cooperative. / radconsultancy.com".  Child behavior needs to be cured??)

The Illinois state government issues its own set of Halloween safety tips, and something called the Ohio Crime Prevention Council advises parents to "report any suspicious activity to police, even if it appears to be just be some mischievous, older kids".

Yes, it's that time of year again, the one day of the year when the privatization of law enforcement crawls out from behind the platitudes and legalisms.  When the kids put on their masks, the mask drops from our country's bizarre experiment in privatizing law enforcement.  These well-intentioned tips reveal that the primary responsibility for ensuring the safety of society's most vulnerable citizens falls squarely on their own shoulders - and, in the case of small children, those of their parents, as well.

The safety tips are a measure of how normal violence against children has become.  The Ohio group says: "This is the time of year kids tend to jump on the smaller kids and take their candy, no matter what neighborhood you're from."  While of course the group is deploring it, they are also saying that in American society it is expected.  Whether or not it's acceptable, it's accepted.

Privatization of government services is universally understood to be a conservative movement when the services in question are anything except protection against violence.  But when the social interest involved is the physical safety of people demographically unlike the speaker, privatization becomes, through a miracle of political prestidigitation wholly appropriate to All Hallows Eve, sublimely progressive. 

Last month I was interviewed by BBC film crew doing a show on Billy the Kid that will combine dramatic recreations with commentary by historians. (In the States check the Discovery Channel listings in the spring for showtimes - it's your opportunity to find out if the publicity photo I've been using is out of date.)

The interviewer asked about the first killing attributed to the Kid, the death of Frank Cahill at Camp Grant, Arizona. Cahill was a blacksmith and presumably a muscular guy, as a couple thousand reps on the anvil every day is a recommended upper body workout.  Cahill, according to the version that's come down to us, bullied the Kid, whose nickname was as flatly descriptive as "Shorty" or "Lefty."  The Kid was 18 or so, and slightly-built, and after a particularly humiliating encounter he used modern technology to even the odds. Cahill died a couple days later of a lack of antibiotics.

 The BBC interviewer wanted to elicit some comments about the "Code of the West", which, it is generally assumed, would have excused the Cahill killing as self-defense.  In his question the interviewer said something about "this killing, which to modern viewers will seem quite clearly to be cold-blooded murder." 

Well, perhaps to modern British viewers.  I had to break the news that in modern New Mexico Billy would almost certainly be entitled to a self-defense instruction - the technical way of saying that New Mexico's courts of 2006 would be just as willing as their predecessors of 1876 to accept the killing as perfectly lawful, or at most manslaughter (see post 110), an offense with a maximum sentence of six years, none of which must be served in prison.

In New Mexico, as in most of the West, there is no duty to retreat. You don't have to make any effort to avoid deadly violence.  If you get involved in a fight, and realize too late you're going to lose, you're permitted to kill. Or, in other words, New Mexico is the nation's fifth most violent state because our judges like it that way.

(Legislators bear some responsibility, too, in that they don't make the effort to control the judges.  Our self-defense statute says homicide is lawfully committed in self-defense only when "necessary", but our courts interpret that to mean something like "the most convenient solution to one's immediate problem.")

The phrase "Code of the West" is misleading to the extent that it suggests things were organized by social compact, as if settlers had to sign an indenture when they left Independence, Missouri.  The Code was really just a set of pragmatic social conventions based on the absence of effective law enforcement.

Lincoln County, which in Billy's time was the size of Ireland or Panama (or, in U.S.-centric terms, Connecticut, Massachusetts, Vermont and New Hampshire combined), had one full-time peace officer, Sheriff William Brady. He hired deputies, and could summon a posse into existence, and the local justices of the peace worked with constables, but for them law enforcement was something they did in the spirit of today's volunteer firemen.

If robbers showed up at your homestead, you couldn't call the police. Someone had to slip away unnoticed and travel by horseback or on foot for help, and even then (unless you were lucky) help wouldn't come from the sheriff, who doubled as county tax collector and was often on the road. Maybe your messenger might locate a deputy, or maybe just some friends or acquaintances willing to take the risk.   And then it could be hours or days before the rescue crew returned to the scene of the outrage.

In short, law enforcement was, at the moment of crisis,  a private affair. The Code of the West was a way of dealing with that reality. Should you just give them what they want? Often, that made the most sense. But at some point a man who wanted respect had to draw a line.

I suspect that's what happened to Frank Cahill: the Kid decided he didn't want to be treated as a child any more.  And, so far as the record discloses, he never was. On the contrary, he quite quickly developed a reputation as a scary fellow, in many respects a useful reputation to have, although when that reputation grew outsized it contributed to his violent death at a young age. 

Does any of this sound familiar? Elijah Anderson wrote a book called Code of the Street: Decency, Violence, and the Moral Life of the Inner City that described the way young men in the worst neighborhoods are forced to decide if they want to become someone with "respect", defined in part as the ability to inspire caution in dangerous people. Al Sharpton recently got a headline or two calling the same process "gangsterism."

We have, in our cities, replicated one of the core realities of the Wild West, the nearly-complete privatization of law enforcement, the replacement of a government of laws by an alternative government based not on enacted laws but on a Code - on violence and its threat.

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.

In The World of Odysseus, the great classicist M.I. Finley - whose unusual life story is summarized on Amazon - wrote about the ancient Greek method for settling disputes, as illustrated in the twenty-third book of the Iliad: 

Although there are a few fragmentary phrases in the poems about royal judgements, they are contemporary notes, and therefore anachronistic, when slipped in by the poet.  He was composing at a time when the community principle had advanced to a point of some limited public administration of justice.  But he was singing about a time when that was not the case ...   The principle remained... of strictly private rights privately protected.

The tension between the community principle and strictly private rights privately protected is never entirely resolved.  USA Today ran an article this week about NRA-sponsored "Stand Your Ground" acts, which have been passed in Florida, Indiana and South Dakota, authorizing citizens to kill even when their own lives are not in danger.  Such statutes abandon the ancient idea that death should not be inflicted except in a either-him-or-me situation.  Rather, individual citizens may decide for themselves (within limits) whether another person deserves to die for his actions.  Here's Florida's version, and here's the Indiana statute in marked-up form.

"'For someone attacked by criminals to be victimized a second time by a second-guessing legal system is wrong,' the NRA's Wayne LaPierre says."  That's the same LaPierre who called federal law enforcement officers "jackbooted thugs."  LaPierre's rejection of "the community principle" is consistent, at least.  The legal system, in his view, is just as illegitimate as the police.

From one perspective, of course, the Florida and Indiana statutes are expressions of the community principle, because they were enacted democratically.  But from a different perspective they reject that principle, because they deny the power of society to make a moral judgment, binding on all its members, regarding the relative value of human life and personal property.  That judgment can only be made on the scene, by the one with the gun in his hand.

The same tension between private rights and the community principle is expressed in constitutional rulings by courts.   All constitutional rulings, by their nature, deny the right of society to bind its members by democratic means with regard to the particular topic.  (See post 54 and post 70.)  In severely practical terms, a ruling that the police are forbidden from taking certain actions to protect members of society is the same as saying it's up to individual members to protect themselves - which is where the ACLU and NRA find themselves making common cause.  

 When judges decides important public policy issues, they do so on the basis  of a sharply-limited factual record, thanks to the rules of evidence, various exclusionary rules, and rules concerning standing (the right to participate in courtroom proceedings).  (See post 26.)  Judges, primarily involved in deciding cases, make their policy decisions on the basis of anecdotal evidence, the anecdote in question being the case before them. 

There can't be many other formal decision-making processes that devote so many resources to ensuring the decision is ill-informed. 

For the participants in an individual case, releasing one violent person back into society, despite clear proof that he's dangerous to other people, can seem a small thing, as Charles May said it was in 1875.  (See post 50.)  But, over time, many such decisions can alter society.  And alterations in society always have ripple effects.  Most consequences are unintended.

Consider Mayer Hillman's paper "The Impact of Transport Policy on Children's Development."  (Or, if you'd prefer, read this excellent introduction to Hillman's work from the Guardian.)  Hillman points out the ways in which traffic policy, and the government's response to violent crime, have impoverished childhood. 

Children are driven to school because parents fear it's too dangerous to permit them to bicycle or walk.  Children are not allowed to wander around their neighborhoods after school.  Bicycling is considered a risky activity, not to be undertaken without protective gear.  Athletic leagues organized by adults have taken the place of pick-up games.  And we lawyers know why the monkey bars and tall slides have been removed from every playground in America.  There's hardly a playground left standing that can keep the interest of a child older than 5. 

As Hillman says, "In our wish to do the best for our children we have unwittingly cast them in the role of second-class citizens through an oversight of the role of their personal autonomy in the outdoor world. ...  Sadly, the age at which most children are allowed to get around on their own has been steadily raised."

The media is saturated with stories about childhood obesity, the socially-alienating effects of video games, and so on.  But you could read a thousand such articles without finding any but the most fleeting reference to a transportation policy whose chief and frequently only goal is to move as many cars as possible as quickly as possible, turning city streets into freeways that are dangerous even for fit adults to cross.   Still less will you see any connection made to judicial policies that prevent juries from learning the truth about the violent acts of dangerous people. 

Hillman points out that accidents are a poor indicator of dangerousness.  The more dangerous the streets are, the fewer kids ride their bicycles.  The fewer kids ride their bicycles, the fewer are injured riding them.  So a reduction in bicycle accidents involving children can actually mean the streets are less safe for children riding bikes.

In exactly the same way, a reduction in car thefts can reflect the ever-greater steps owners take to protect their cars: alarms, steering-wheel "clubs," electronic locks, pistols in the glove compartment,  security guards patrolling the parking lot, etc.  In other words, a reduction in car thefts can mean the danger has increased to the point that drastic measures have become commonplace. 

Security blogger Bruce Schneier, in his book Beyond Fear: Thinking Sensibly About Security in an Uncertain World, says "Security is a tax on the honest."  The tax burden is enormous in the United States.  The judicial policy of the past 50 years has been to privatize law enforcement.  The well-off (a group that includes every judge in the country) pay the tax with money spent on security.  Those without money pay with their victimizations.  And our butterball children pay the cost in bunker childhoods.

One hundred and fifty three police officers have been killed in the line of duty so far in 2005, including traffic accidents.  That's actually a relatively low number.  One reason the number of cop-murders isn't higher is "increased use of body armor," indicating somewhat ironically that even cops are caught up in the privatization of law enforcement.  (See post 1.)  Officers have to take individual responsibility for their own safety, bearing the cost in terms of discomfort and restricted movement, just as the responsibility for protecting neighborhoods has been largely transferred from the police themselves to individual homeowners, who bear the costs of home security.

The Supreme Court forbids state and federal courts from letting juries learn of the existence of evidence seized by police executing a "no-knock" search warrant -- unless the officers have  "reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be [a] dangerous or [b] futile, or that it would [c] inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence." 

Whether the officer's suspicion is reasonable is determined by a judge examining the matter months or even years after the fact, in the quiet of his or her chambers, after hearing lawyers hash it out at great length.  But even if the officer's suspicion is deemed to be not merely correct (otherwise there would be no court case) but reasonable, the evidence is still hidden from the jury unless the officer's' suspicion fits in one of the three sub-categories set forth by the Supreme Court.

Justice Stevens  explains that "[t]his standard ... strikes the appropriate balance between the legitimate law enforcement concerns at issue in the execution of search warrants and the individual privacy interests affected by no-knock entries."  Stevens' use of the scale metaphor (see post 10) disguises the significance of what he's saying.  He means that the interpretation his Court gives the fourth amendment has been calibrated to achieve the  optimal number of cop-killings.

It sounds brutal stated like that, but what else does the justice means when he refers to "the legitimate law enforcement concerns at issue"?  By far the most significant "concern" is that you might see your arterial blood spurting across the floor of some tweaking methhead's lab.  Stevens' point is that some Americans have to have their privacy violated, and some cops have to be murdered, and the Supreme Court's fourth amendment jurisprudence adjusts the ratio between them, just as you might adjust the balance between your stereo's speakers.

Despite the popular image of the Wild West as a lawless place, frontier New Mexico was crawling with lawyers.  Writs, warrants and indictments tumbled across the landscape.  The Anglo-American legal system, like the tumblewood, was a non-native species that proliferated wildly.  My book Such Men as Billy the Kid, like Judging Crimes, is concerned with crime, violence and the law -- with society's response when its most vulnerable members are victimized.

The violence of the Wild West wasn't some isolated phenomenon that just happened to coincide with the social Darwinism of the Gilded Age.  It was social Darwinism, the survival of the "fittest" -- the most ruthless and the least scrupulous.  

Today's violence is not fundamentally different.  Americans of the 21st century tolerate vastly more violence against their fellow citizens than do the inhabitants of any other developed nation.  What makes this politically acceptable is that victims of criminal violence are disproportionately the poor, members of minority groups, the physically disabled, the mentally ill, children and the elderly.  After all, who is less "fit" than a still-warm corpse? 

Protection from violence is something the well-off can buy, with their burglar alarms, private transportation, gated communities, security guards, concealed hangun permits, nanny-cams, and all the rest. Those who don't take these self-protective measures have only themselves to blame.

America's poor suffer violence for the same reason they suffer inadequate health care, and why so many mentally ill live in the streets: because Americans, as a society, haven't yet fully accepted the idea that the resources of government should be expended to benefit those most in need of them.