JUDGING CRIMES

I've always thought of the criminal law as a reflection of society's attitude toward the weak.  And even if you weren't weak before you were attacked, there's nothing quite like a bullet to weaken you.  At least in the Western states, with the "no duty to retreat" ethos, our courts are gung-ho about encouraging people to take care of it themselves.  (And not just the courts, either.)

That tolerance for DIY revenge sometimes leads to a judicial attitude of lightly-disguised contempt for those who don't partake.  If you're not going to protect yourself, why should we protect you?  Judges are protective of people they identify with, and who wants to identify with a woman who returns to the man who broke her cheekbone?

But the ultimate disposable people don't even make it far enough to have their ID photo introduced as a prosecution exhibit.  Last fall the Bureau of Justice Statistics published a fact sheet on Unidentified Human Remains in the United States, 1980-2004.  The fact sheet reported that 10,328 unidentified remains were reported to the National Death Index (now there's a memorable response to the cocktail party question, What do you do?).

But the 10,328 figure means only that that many unidentified remains were reported to the NDI during the 25-year period under study.  Three-quarters of the reported cases came from from just 5 states, which tells you the total is an undercount. 

DOJ's National Institute of Justice reports that "[m]ore than 40,000 sets of human remains that cannot be identified through conventional means are held in the evidence rooms of medical examiners throughout the country".

But even the census of evidence rooms is an undercount, according to the DOJ report, because "many cities and counties continue to bury unidentified remains without attempting to collect DNA samples."

As of February, 2005, the NCIC - the FBI's national criminal database - contained information on just 5,900 unidentified remains, according to the BJS.  (Incidentally, if you use the Google toolbar at work, make sure you're not in Google images when you search for BJS.)  The number had barely risen as of 2007, according to one of those other acronyms mentioned earlier (I'm getting tired of writing in federalese).

Of the relatively handful of cases entered into the NCIC, 27% were classified as homicides, but in almost exactly half the cause of death couldn't be determined.  I think it's reasonable to suppose that most of the "unidentified" category are in the category because of what the passage of time does to mortal remains, and the passage of time in turn suggests concealment, and concealment suggests ...

It's not that hard to think of ways in which an accident victim's body might also be concealed (avalanche, wandering in hypothermic disorientation, seeking help for your flat tire at an isolated dilapidated farmhouse despite the warning provided by the creepy background music), but there's a report filed for most of those, I would think.  While the remains, when eventually found, might be in what the papers usually call an advanced state of decay, they'd still be identified.

I think, in short, that far more than 27% of the 40,000+ unidentified remains represent murders people have gotten away with.  And there must be another large number of remains that haven't yet been found. 

People got away with murdering these particular victims because they were so disposable.  It's hard to think of a more definitive marker of low social status.  Really, if you have so little self-respect that you allow your body to rot in a shallow grave for years and years, why should we care?

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?

In an 1885 rape case, the Indiana Supreme Court approved this instruction as a correct statement of the law:

Evidence has been introduced as to the moral character of the prosecuting witness, and as to her reputation for chastity and virtue.  You are not to understand from this that a rape cannot be committed on a woman of bad moral character.  A woman may be a common prostitute, and may still be the victim of a rape.  This evidence has been introduced only for the purpose of affecting her credibility as a witness, and as a circumstance affecting the probability of the act of intercourse being voluntary or against her will, -- upon the theory that a person of bad moral character is less likely to speak the truth as a witness than one of good moral character, and that woman who is chaste and virtuous will be less likely to consent to an act of illicit carnal intercourse than one who is unchaste.  [State v. Anderson, 4 N.E. 63]

Fast forward 122 years:

A defendant accused of forcing a prostitute at gunpoint to have sex with him and three other men got lucky, so to speak, last week.

A Philadelphia judge dropped all sex and assault charges at his preliminary hearing.

Municipal Judge Teresa Carr Deni instead held the defendant on the bizarre charge of armed robbery for - get this - "theft of services." ...

Deni told me she based her decision on the fact that the prostitute consented to have sex with the defendant.

"She consented and she didn't get paid . . . I thought it was a robbery."

The prostitute, a 20-year-old single mother, agreed to $150 for an hour of oral and vaginal sex on Sept. 20, according to assistant district attorney Rich DeSipio. The arrangements were made through her posting on Craigslist.

She met the defendant, Dominique Gindraw, 19, at what she thought was his house, but which turned out to be an abandoned property in North Philadelphia.

He asked if she'd have sex with his friend, too, and she agreed for another $100.

The friend showed up without money, the gun was pulled and more men arrived.

When a fifth man arrived and was invited to join, DeSipio said, he asked why the girl was crying - and declined. He helped her get dressed so she could leave. ...

"Did she tell you she had another client before she went to report it?" Deni asked me yesterday when we met at a coffee shop.

"I thought rape was a terrible trauma."

A case like this, she said - to my astonishment - "minimizes true rape cases and demeans women who are really raped."

Women who are "really raped," of course, are women who don't perform sex acts for money.  If the woman is "of bad moral character," forcing her at gunpoint to have sex with four men is not rape.  It's theft.  She's not a person - she's candy displayed on the drugstore shelf for kids with sticky fingers to pilfer.

One point about Judge Deni's refusal to follow the law is pretty obvious: she revels in the self-righteous feeling that she has outraged people:

Deni acknowledged that her ruling and remarks would be controversial.

"I know I'm going to get killed on this."

But she said she has to "sleep at night with what I decide."

And on the night of Oct. 4, when she ruled in the preliminary hearing of this case?

"I slept well."

This attitude - self-righteousness bizarrely divorced from any concept of righteousness - is a pretty common judicial syndrome, the third most frequently-encountered of the classic vocational  ailments of judges.  It's not simply a matter of épater les bourgeoisie, though I suspect there's an element of that: you can't get more bourgeois that being a judge, and pretending to be a little bit racy beneath the black robe is titillating.  More than that, though, it's a tell-tale symptom of Post-Civil Rights Era Syndrome, a psychological condition expressed (appropriately enough) in a syllogism:

The southern judges who upheld morality, decency and the grand principles of constitutional government by ruling against segregation in the 1950s and 1960s were heroes, whose example all judges should strive to emulate;

the rulings of those judges were met with great public uproar;

therefore, any judge whose ruling is met with great public uproar is a hero, whose example all judges should strive to emulate.

Well, it makes a great deal of emotional sense, which after all is what counts.  As Oliver Wendell Holmes said, "The life of the law has not been logic; it has been the self-satisfaction of judges."

But how did we get to the point where the Philadelphia of 2007 is so much more reactionary with respect to violence against women than the near-frontier Indiana of the 1880s?

Because our collective consciousness has been so lowered.

DNA "exonerations" almost exclusively free males convicted of sex crimes against females, and it takes little imagination to realize that DNA testing will only rarely point unequivocally to a single perpetrator when the victim had sex with someone else in the day or two before the attack - a category that includes not only prostitutes but, you know, people with boyfriends and husbands.  (See post 246.) 

Liberal Slate has come out foursquare in favor of a return to the pre-1960s doctrine that rape convictions should never be based on the woman's testimony alone.  (See post 280 and post 290.)

A Nebraska judge made national news by prohibiting the victim of a rape from using her own words to tell the jury about what happened to her, on the ground that allowing the female to speak for herself might encourage the jury to convict the male defendant.

In my own New Mexico, a liberal legislature in 1975 removed "absence of consent" from the rape statute, so that any sexual penetration accomplished by force or coercion was criminal.  The idea back then was that in sex crimes, as with all other crimes, the only thing that counted was what the perpetrator did.  But in 2005, the Supreme Court rewrote its uniform jury instructions to reinsert (so to speak) that element, so that today, as 50 years ago, rape is lawful unless the prosecution can prove beyond a reasonable doubt that the victim isn't a slut who was practically begging for it.

There is a common thread to all these developments.

It may still be possible to believe the criminal justice system is not being transformed into an institutionalized backlash against the women's movement.   It requires a lot of faith, though.  Such unshakeable faith can be heartbreaking when manifested by, say, a 4-year-old cancer victim.  It's a little less touching when encountered in an otherwise-healthy adult.

I should add that the Philadelphia Bar Association's chancellor, Jane L. Dalton, has said what ought to be obvious, and was (I believe) the actual point of Judge Deni's ruling, even if the judge hid it from herself: "The victim has been brutalized twice in this case: first by the assailants, and now by the court."

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.

Webster's defines peroration as "the concluding part of a discourse and especially an oration" but that's a curiously flat way to put it.  A literary analysis of sermon structure gets to the real point: the peroration of a sermon is a "[r]ecapitulation and amplification of the argument designed to arouse emotion in the listener."

Much of the religious symbolism of the courtroom is obvious: the cavernous public room, the rows of uncomfortable wooden pews all facing one direction, the figure in the black robe facing the opposite direction, the large wooden structure centered on a raised platform to serve as a focal point, the stereotyped, kitschy artwork, the requirement that the audience stand up and sit down on cue, the bar beyond which only the initiated may venture, even the iconostasis from behind which the black-robed authority figure emerges (though, it must be admitted, judges are more likely to decorate in bordello scarlet than your average vestry committee).

But some of the ways in which the judiciary has assumed the role of state religion are less obvious, such as the high degree of faith necessary to believe that Supreme Court justices really receive regular revelations from the Framers.  (See post 233.)   And the perorations commonly tacked onto the ends of opinions. 

The Judge Arnold rhetoric quoted in post 274 was a peroration: it was the concluding section of his opinion and its elevated tone was intended to have an emotional impact on the reader, as it evidently did on Justice Brennan and the obituary-writers of the New York Times - not to mention the judges of the Second Circuit who recently quoted it twice.  Here's the last three sentences again:

Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced.

This, I think, is far more revealing than insightful.  The rhetorical strategy of euphemism is in full flower: the case involved a pedophile, who had previously been found not guilty of molesting or raping two little girls on the basis that he suffered from an "irresistible impulse" to rape them, and who murdered his most recent 10-year-old victim.  (Opinions in the case refer to him as a "former mental patient", but he was institutionalized by court order and not because it was medically indicated - his only psychological diagnoses were pedophilia and antisocial personality disorder, though you have to read the record to discover that fact.)

So what Arnold was really saying was: "In the long run, the prepubescent girls of America are both freer and safer if a person with the irresistible impulse to rape them, who has acted on that impulse multiple times and who killed at least one of his victims, is permitted to select new victims from among them."

That's not really fair, of course.  Arnold said "in the long run" and he counseled us not to confine our attention to the case at hand.  So what he really meant was: "The prepubescent girls of America are both freer and safer if lots of pedophiliac murderers, not just this one, are set loose among them."

No?  Then how about: "pedophiliac murderers are both freer and safer if the state is prohibited from punishing them."  That makes sense, at least.  But then, as Tonto might have asked, "What do you mean by 'we', Judge Arnold?"

It's not a coincidence that the case involved the murder of a 10-year-old, or that the linked Second Circuit case involved the murder of a crack-using prostitute.  The social status of the victim is critically important to the disposition of criminal cases.  Imagine that the victim in either case was a federal judge.  Do you think we'd hear the same rhetoric about how we'd all be freer and safer if we just accepted that judges get iced from time to time?

Arnold, you'll notice, didn't say "safe" or "free."  He used the comparative forms of those words.  His point was that the actions of the police officer posed a greater threat to our safety and freedom than the actions of the murderer.  The police officer in question asked the murderer to consider whether his victim's parents deserved to give their little girl a Christian burial.  So put on your blindfold, pick up the scales - no, wait, pick up the scales first, then put on the blindfold and tell me if you agree that asking that question poses a greater threat to our freedom and safety than kidnapping and killing one of us.

When Arnold's decision was reversed by the U.S. Supreme Court, Justice Byron White observed that "four Members of the Court, including myself, were of the view that [the detective in the case] had done nothing wrong at all, let alone anything unconstitutional."  So our freedom and safety is more threatened by a policeman doing something that 44% of the justices of the Supreme Court think entirely right and proper than by a pedophile kidnapping and killing a child.

(What does that say about 44% of the Supreme Court? - is that why Justice Brennan found the words so "stirring"?)

Assume for a moment (it's difficult, I know) that Arnold actually thought about the words he included in his peroration.  In that case, the real question raised by his opinion was: Who gets to decide what makes us freer and safer?  There's nothing in the opinion to indicate that Arnold understood that his opinion raised that question, but nonetheless he effectively answered it: The people don't get to decide.  Judges do.  Or, rather, the Founding Fathers do, communicating their desires through the earthly medium of judges.

And so finally we get to the real issues decided by Judge Arnold: Which is better for federal judges, allowing the people to make fundamental decisions about freedom and safety in their society, or making those decisions on their behalf?  Which is better for the legal profession, to allow a client to render his own case unwinnable or to prevent him from doing so? 

No wonder those judges on the Second Circuit like Arnold's peroration so much.

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.

Want to amaze your friends with your ability to predict the outcome of cases argued in the United States Supreme Court?  Now you, too, can master the arcane arts of American Kremlinology.  There are only a handful of rules to learn, and they fit snugly in just three categories.

The first category consists of gimmes - the easy cases, the ones that require no more thought than the justices themselves give to them.  The second category are the negative rules: the classic mistakes.  The third category contains the rules of prediction proper. 

(But all, it must be remembered, are subject to the 5% rule – even the gimmes.  In roughly 5% of cases, the justices will predictably depart from their settled patterns just to prove they can.  Grand jurors do the same thing.)

Category One: The gimmes.

Capital litigation.  Scalia and Thomas will always vote to uphold a death penalty.  (See post 131.)

Justice Ginsburg's magical thinking.  Justice Ginsburg is committed to the idea that any federal judge is, by virtue of that little ceremony involving pixie dust that traditionally concludes Senate confirmation hearings, superior to any state court judge.  She will always vote in favor of increased federal oversight of state criminal courts.  (See post 243.)  Except, that is, when she votes to slap down the Ninth Circuit, when a greater principle is at stake.  (See "cui bono", below.)

Ninth Circuit slapdowns.  Whenever the Supreme Court agrees to hear a Ninth Circuit decision in a habeas corpus case, it means the Ninth Circuit will be slapped down, usually by a unanimous opinion.  Most recent example: last month's Bockting decision, in which not one of the nine could find a good word to say about the Ninth Circuit.  This isn't because the Ninth Circuit is particularly "liberal" (see "the classic mistakes," below), but because it's so large.  Its judges know the numbers are on their side.  The Supreme Court can't - or, more accurately, can't be bothered - to review more a tiny percent of their decisions, so they don't have any incentive to do what the Supreme Court says.  They can make up the law as they go along.  As a practical matter, the Ninth Circuit is the Supreme Court in the far West.

Every year, the Supreme Court goes through the ritual of showing what it could do to the Ninth Circuit, if it wanted to.  The Ninth Circuit, you'll notice, is not intimidated.  Its judges know they're going to be reversed every time the Supreme Court grants certiorari in one of their habeas cases, but they'll have issued several dozen additional decisions by then.

Category Two: The classic mistakes.

Republican / Democrat.  (Note: Bush v. Gore is the 5% rule in operation.)  Newspaper reporters constantly make the mistake of assuming that because the Court is "turning right"- a turn it has been making since Clement Haynsworth - it will seek to accommodate Republican talking points.  But the justices consider it very vulgar to be seen doing partisan politics.  Not because that would be improper for members of the Court - if they did it, then by definition it wouldn't be improper - but because it's beneath the Court's dignity.  Being above the fray is the mark of the Court's superiority to democracy.  And if the Court weren't superior to democracy, what possible justification could it have for thwarting the people's will so often?

Right-left ideology.  This classic mistake is related to the last, but it's not the same.  While it's easy to guess the presidential votes of the justices - after all, they voted in public in 2000 - few of the cases heard by the Supreme Court are useful fodder for, say, the sort of questions used to vet prospective Iraq rebuilders during the heady first days of the occupation.  Most Supreme Court cases can be made to fit into the freeze-dried categories familiar from Heritage Foundation press releases only by trimming them of exactly those subtle and pseudo-subtle intricacies most calculated to excite the minds of Supreme Court clerks.

It's a category mistake to think of the world of the courtroom as part of the real world.  The courtroom is its own little biosphere.  Analyzing Supreme Court decisions with the template used to analyze congressional politics is like applying NBA rules to Nintendo.

The legal merits.  Unlike the first two, this classic mistake is most commonly made by lawyers, not journalists.  The legal merits of a case in the Supreme Court aren't necessarily irrelevant to the decision reached, but at most they serve as tiebreaker.  That's not a cynical remark.  The Court makes the merits meritorious.  Referring to the "merits" of the Supreme Court cases like referring to the artistic value of a canvas after stretching and prepping but before the first color has been added.  The Court doesn't decide cases on the merits; it decides cases and then tells us what the merits were.

The decision-making matrix

Now, as Mick Jagger said, we get down to the nitty-gritty.  Once you're sure you've avoided the classic mistakes, and you've put the gimmes to one side, you're ready to predict Supreme Court decisions.  It's a three-step process, as simple as A-B-C.

A.  Cui bono?  "Let Cassius's famous question, Who benefited? be asked about these people."  In the overwhelming majority of Supreme Court cases, this is the decisive consideration.  Just ask yourself these questions:

1.  What result would be best for the individual justice writing the opinion or the Court as an institution?  If the answer is clear, that is the result of Court will reach.  If the answer is unclear, proceed to the next question.

2.  What result would be best for the federal judiciary?  If the answer is clear, that is the result of Court will reach.  If the answer is unclear, proceed to the next question.

3.  What result would be best for judges generally, state as well as federal?  If the answer is clear, that is the result of Court will reach.  If the answer is unclear, move on to "status of the parties."

B.  Status of the parties.  If the cui bono decision-making matrix doesn't lead to a clear answer, the justices look to the respective social statuses of the parties.  Probably they don't do this quite consciously, but middle class, middle-aged, educated white male defendants do very well in the Supreme Court, as long as their victims are people the justices (and their clerks) find it less easy to identify with.  The important thing isn't the defendant's status per se, but his status relative to that of his victim.  (See post 102 and post 228.) 

When applying both A and B, keep in mind that judges are, by self-selection, people who enjoy wielding power.  In fact, "wield power" is a judge's job description.  It's not a bad thing that judging attracts people who find power attractive.  On the contrary, there are few things more useless than an indecisive judge.  But it means that the self-interest of judges will always bias them to favor the ruling that increases their own power, or the power of their institution.  That's the cui bono rule.  After all, you have to possess power before you can use power to do good.  So if you want to do the maximum good, you first have to maximize your power.  In fact, maximizing your power is the same as acting for the good of the Republic.  (See "Justice Ginsburg's magical thinking", above.)

The other side of the coin, however, is that people who like power tend to have little time for weaklings.  The conditions that manufacture "born victims" are well-understood but the psychology is of less than no interest to those in whom self-defeating behavior arouses revulsion rather than pity.

C.  Legal arguments.  This is where the lawyers come in.  We'd like to think we have greater influence than this placement suggests, but that's vanity talking.  I do believe we have a marginal influence in many cases, and a marginal influence will make all the difference in marginal cases.  But, as every lawyer knows, you can only play the cards you've been dealt.  Even your opportunities for cheating are seriously circumscribed.

Suitably modified to accommodate local conditions, these simple rules explain the inner workings of every other court in the country, too.

And now you know!

I've long noticed that a very high percentage of the "exonerations" engineered by the Innocence Project - the name is an excellent example of "unspeak" - seem to involve violent sex crimes.  If a lesson is to be drawn, it's that it's too easy to convict men of sex crimes against women.

Do you believe that?

Innocent people are sometimes convicted.  I don't think anyone can doubt that, any more than anyone can doubt that guilty people are sometimes acquitted.  (I once had to respond to a brief that cited Barry Scheck's book, and I was happy to concede that Scheck's most famous case showed that juries do, indeed, sometimes reach irrational verdicts.)  No human institution is perfect.  The legal system isn't even in the top 40.

The Innocence Project website claims "195 exonerated."    In 2005, America had the grotesquely high number of 2,193,798 people in our prisons and jails.   So it appears we have an error rate in our criminal courts of 195/2,193,798, or .000088%.

Do you believe that?

If all the Innocence Project did was prove that only a tiny fraction of 1% of all American prisoners are wrongfully convicted, it would actually be establishing how fantastically accurate our judiciary's factfinding mechanisms are.  Yet that's not the lesson people draw from the Project's publicity machine.

In the Washington Post review I cited in the last post, Patrick Anderson wrote:

The recent past has not been kind to America's prosecutors; the growing number of innocent people freed from prison by DNA testing has demonstrated that at least some are overzealous, incompetent or simply corrupt.

Well, a good number of prosecutors are incompetent - the low pay sees to that - but they aren't the ones responsible for the wrongful convictions.  "Overzealous" is an euphemism for dishonest, but I don't know why an euphemism is needed: some prosecutors are dishonest, just like some reporters.  And, you know, prosecutors whose dishonesty is discovered tend to become ex-prosecutors, and another name for "ex-prosecutor" is "defense attorney." 

My point isn't that Anderson doesn't appear to have given the matter much thought, but that an intelligent person who doesn't give the matter much thought is very likely to believe implicitly in the Innocence Project's self-promotion.  

But is there actually any reason, other than the self-promotion, to believe that the Project is freeing the innocent, as opposed to the guilty whose guilt can't be re-proved beyond a reasonable doubt after the passage of many years?  (This question, unlike the earlier ones, isn't entirely rhetorical.  Newspaper accounts of the legal system are notoriously unreliable.  See post 183.   Judges, when they're on their high horses, are even worse.  And true-believer lawyers are the absolute worst, because their lies are in service of a higher truth.  That doesn't leave many sources of information.)

I tried looking on the Innocence Project website for statistics about the nature of the crimes for which the "exonerated" had been convicted.  What percentage of the "exonerated" had been doing time for sex crimes against women?  Maybe the statistics are there and I just didn't find them, or maybe you'd have to tote up the figures yourself.

But, luckily, George Soros paid a gaggle of law professors to assemble the figures for me.  This 2004 report, looking (I think) at a different dataset of freed prisoners, states that "93% of the exonerations for non-homicidal crimes [were] concentrated among the rape cases".  Moreover, "all but a couple" of the murder exonerations "included rape as well."

Why should that be?  A clue is offered by the CBC's deeply touching account of the 26 Vancouver women whose remains were found on Pickton's pig farm.  It's no coincidence that they share much in common with the victims of Ridgway, the Green River Killer.  Sex workers, everyone knows, are at extremely high risk of becoming victims of violence.  Imagine for a moment that the victim of a 10-year-old murder was a prostitute, and testing of samples taken from her body shows the DNA of someone other than the convicted killer.  Does that exonerate the killer?

Yes, of course, provided you use "exonerated" as the Innocence Project does.  

Now, imagine instead that the woman wasn't a prostitute but happened to have unprotected sex with someone the day before she was murdered by someone else.  Ten years later, testing reveals sperm from the first someone.  Does that exonerate the second someone?  Or does it, instead, add one more difficulty to the already-difficult task of retrying a case after so many years, encouraging the prosecution to give up?

The Wisconsin Innocence Project achieved the release of Steven Avery - he's one of the 195 on the national website - and just weeks later the charred remains of a young woman were found scattered around his family's junkyard.  (See post 17.)   Avery's nephew described how he and his uncle tortured, raped and murdered the woman - and how his uncle watched him take his turn, congratulating him on his rape technique.  Supposedly his computer contained all sorts of violent pornography.  (Avery is on trial now.) 

So how does one explain the amazing coincidence that the victim of the earlier rape "wrongly" identified a man who, if the stories are to be believed, not only enjoys sexual violence against women but likes to watch other men committing it, too?

Realizing they were on a roll, the Wisconsin Innocence Project next turned their attention to Ralph Armstrong, whose rape conviction the Wisconsin Supreme Court overturned despite "a mountain of evidence" against him.   Armstrong is well-known here in New Mexico:

On the night of October 3, 1971 at about 11:15 the prosecutrix was returning home. She had parked and locked her car when another car drove up and stopped behind hers. A man, later identified as the defendant [i.e., Armstrong], got down and called to her and as she turned he walked up and took her by the arm. He had a knife in his hand which he held close to her stomach. He ordered her to get back into her car on the passenger side. Defendant then got in and drove to an isolated area east of Albuquerque where the acts complained of were committed.

Defendant does not dispute the fact that the sexual acts complained of took place.  (511 P.2d at 561)

Armstrong's defense, almost hilariously, was that New Mexico's sodomy statute was unconstitutional because it criminalized consensual acts as well as the particular type of anal sex he preferred.  (Almost hilariously, because he got one judge to agree with him.) 

(Incidentally, saying that a person "got down" from a car is a common New Mexico usage, but I've never heard anyone from anywhere else use it.)

Armstrong was on parole from the New Mexico conviction when, according to the jury in his Wisconsin case, he acted on the lesson learned: leave no witnesses.   Four members of the Wisconsin Supreme Court thought the jury's verdict wasn't reason enough to keep Armstrong in prison, given DNA evidence that the victim had had sex with her fiance some time before her murder. 

As pointed out by the dissenting justice,

There is another fact that bears on the testimony about semen.  [The victim] was raped anally and vaginally with a hard object.  Her injuries were not caused by being raped with a body part.  Therefore, it is understandable that semen from the perpetrator of this crime was not left at the crime scene.

So, just like the Avery case, it turns out that a person who was "wrongfully" convicted of this sex crime just happened to be a man who is extremely dangerous to women.  Gee, what are the odds?

Why does "misidentification" happen so frequently with sex crimes?  The Colorado Court of Appeals explained in 1891:

Conviction of [rape] is seldom or never allowed upon the unsupported evidence of the prosecutrix. She is allowed to, and is generally the only witness who can, testify directly to the principal facts,-the perpetration of the offense; but to warrant conviction the evidence of the main fact must be corroborated by other evidence of circumstances and facts sustaining the principal charge. The injured party is legally competent as a witness. “But her credibility must depend upon the circumstances of the case which concur with her testimony; whether she is a person of good fame ..."  (Bueno, 28 P. at 249)

Cases like Avery's and Armstrong's are taking us back to the world in which a woman's testimony is automatically viewed as suspect.  Judges reversing rape convictions no longer write about what a dangerous precedent they would be setting if they allowed a conviction to rest on the woman's "unsupported evidence."   Instead they talk about the unreliability of eyewitness identification.  But it amounts to the same thing.

And judges are too discreet these days to say a woman's "ill fame" makes her testimony unbelievable as a matter of law.  But these two Wisconsin cases show that some judges still believe it.  The slut defense remains a get-out-of-jail-free card: "Look, she had sex with someone else, too, so what I did wasn't rape."

For those of my readers needing to take care of business in school tomorrow, or planning a visit to your local Stop-'n'-Rob store, you'll be glad to know that the NRA has some stylish new gear for you.  Yes, now you, too, can wear concealed-carry jeans with the belt loops thoughtfully positioned "so they don't interfere with holster wear. Pants feature two internal magazine pockets and a concealment pocket in the front and back."  Today's NRA.  You provide the homicidal impulse - we'll take care of the rest!

Meanwhile, in John Wayne County, California, an accused criminal was acquitted.  Not because he didn't do it:

No one disputes that an on-duty Irvine police officer got an erection and ejaculated on a motorist during an early-morning traffic stop in Laguna Beach. The female driver reported it, DNA testing confirmed it and officer David Alex Park finally admitted it.

How'd he get  off - I mean, how'd he get acquitted?  Easy: he spent a lot of time stalking his prey, eventually choosing a stripper on her way home from her workplace.  His lawyer simply made sure the 11 male jurors knew she was a low status woman:

In his closing argument, [defense attorney Al] Stokke pounced. He called Lucy one of those “girls who have learned the art of the tease, getting what they want . . . they’ve learned to separate men from their money.”

[Prosecutor Shaddi] Kamiabipour wasn’t amused. “Dancer or not, sexually promiscuous nor not, she had the right not to consent,” she told jurors. “[Park] doesn’t get a freebie just because of who she is . . . He used her like an object.”

But Kamiabipour was wrong.  The cop did get a freebie.  He had the jurors' permission to use her like an object.  After all, “She’s an overtly sexual person.”  The jurors employed the same decision-making matrix favored by the United States Supreme Court.  (See post 102 and post 228.)  (At least the cop was fired.)

Meanwhile, another lesson in the relationship of status to the law was administered in poor Burma, where, according to an understandably anonymous blogger,

A Toyota SUV  being driven by the son of Dr. Tin Aung Aye (Supreme Court Justice of lower Burma), managed to seriously crunch a Suzuki Wagon car on Pyay Road, Yangon.

Witnesses say that he looked drunk or on drugs at the time of accident. Apparently he was doing a U turn on a major road in Yangon when he hit the Suzuki. The elderly diver of the Suzuki subsequently died in the infamous Yangon Hospital’s emergency department.

No charges were preferred, although a directive came down from on high that henceforth judges weren't to permit their family members to drive the official vehicles "without the presence of Supreme Justice himself on the car."  My favorite bit: each judge gets both an SUV and a van from the store of vehicles impounded (all in accordance with approved judicial procedures, of course) by the government.  I wonder if judges get to place orders for specific makes, colors and option packages?

And in Boston, a Judicial Conduct Commission investigation concluded that two state judges did nothing wrong when they delayed entering judgment against a sitting state Senator - the political mentor of one of them - until after her tough primary campaign.  The Commission's findings are almost parodic: "The commission's investigation revealed that, while there was inadvertent delay in the processing of this case, there was no misconduct on the part of any judge."   There was "no misconduct" in the sense that there isn't actually a rule against judges using their power of office to influence elections.  And what other sense is there?

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.