Knowledge And Decisions

These patterns have some bearing on popular explanations for crime. For example, crime has been blamed on “poverty, racism and discrimination”²⁰⁸ and on “the inhumanity of our prisons.”²⁰⁹ As already noted, poverty and racial discrimination (whether measured in incomes, education, or segregation laws) were greater in the past, and their continuing effects are more apparent among older blacks than the younger. Crime, however, is greatest among youthful blacks²¹⁰ and hostility to police is greatest among upper income blacks.²¹¹ As for harsh punishment as a source of repeated crimes, (1) those persons arrested and released or acquitted are rearrested more often than those that are imprisoned²¹² and (2) the escalation of crime rates during the 1960s occurred while smaller and smaller proportions of people were going to prison — indeed while the conviction rate was falling²¹³ and the prison population was going down as the crime rate soared.²¹⁴ Insofar as poverty, discrimination, and imprisonment are variables believed to be correlated with crime rates, the evidence refutes the hypothesis. Insofar as these constitute an axiom, it is of course immune to evidence.

The level and trend of American crime rates may be put in perspective by comparison with those of other nations. Murder rates in the United States have been several times those in such comparable societies as those of Western Europe and Japan.²¹⁵ Robbery rates are also higher.²¹⁶ Crime rates in general are only moderately higher in the United States than in Europe,²¹⁷ but it is in the violent crimes that the difference between the U.S. and other countries is greatest. For example, New York, London, and Tokyo have comparable numbers of inhabitants (Tokyo the most), but there are eight times as many murders in New York as in Tokyo,²¹⁸ and fifteen times as many murders as in London.²¹⁹ Intertemporal comparisons show a rise in crime rates around the world²²⁰ — with the notable exception of Japan. What is different about Japan may provide some factual basis for testing competing theories of crime control.

The rising murder rate in the United States is largely a phenomenon dating from the mid-1960s, and continuing to escalate in the 1970s²²¹ — a rise generally coinciding with the sharp dropoff in executions.²²² This rise in murder rates reversed a long-term decline in the murder rate in the United States. The absolute number of murders in American urban centers of 25,000 or more remained relatively constant from 1937 through 1957,²²³ even though the population in such centers was growing rapidly over that span.²²⁴ Urbanization, as such, apparently had not entailed rising murder rates. Demographic and socioeconomic changes in the population have been too gradual to account for the sudden reversal of a downward trend and its replacement by an escalating upward trend. The only apparent variable that has changed dramatically in the 1960s and 1970s has been the procedures and practices of the criminal law.

CRIMINAL LAW PROCEDURE

One of the basic questions about criminal law procedure is simply how much of it there is, in purely quantitative terms. In England, the longest criminal trial on record lasted forty-eight days.²²⁵ In the United States, there have been criminal trials in which the selection of a jury alone has taken months.²²⁶ In England the selection of a jury “usually takes no more than a few minutes.²²⁷ A criminal trial length that would be “routine” in California²²⁸ would be record-breaking in England. The British example is particularly appropriate, not only because of general similarities between the two countries but more particularly because American law grew out of British law, the two countries have similar notions of fairness, and England is not regarded as either a police state or a place where innocent defendants are railroaded to jail.

Delays in American courts did not just happen. A procedural revolution in criminal law was created by the Supreme Court in the 1960s — the decade when crime rates more than doubled. Much attention has been focused on the specifics of these procedural changes — warnings to suspects, restrictions on evidence, etc. — but it is also worth noting the sheer multiplicity of new grounds for delay at every stage of criminal procedure, from jury selection all the way to appeals to the Supreme Court.