Knowledge And Decisions

While the extent to which procedural complexities and ambiguities impede criminal justice processes may be unique to the United States, elements of this trend have spread beyond the American borders. Even though the British courts do not exclude illegally seized evidence, and will not turn a felon loose merely because of police failure to follow procedural rules,²³⁷ there has been some movement in the direction of “the ‘Americanization’ of English criminal justice”:²³⁸ less chance of imprisonment,²³⁹ more lenient sentencing,²⁴⁰ more release into the community,²⁴¹ and activities described by their hoped-for results as “rehabilitation” programs. How much things have changed in England may be indicated by the fact that in the 1930s a murder conviction meant a two-out-of-three chance of execution within two months,²⁴² whereas in 1975 the death penalty was abolished.²⁴³ Along with these American procedures have come American results — court congestion,²⁴⁴ delayed trials,²⁴⁵ and rising crime rates.²⁴⁶

British intellectuals, like their American counterparts, have been preoccupied with the presumed social causes of crime²⁴⁷ — the “root causes” in American intellectual terminology. The usually presumed social “causes” of crime — poverty, unemployment, and broken homes — are wholly uncorrelated with the rise in crime in Britain. There has been no increase in poverty or broken homes there, and there has been a reduction of income inequality and a “virtually nonexistent” unemployment rate in Britain during the period of rapidly increasing crime rates.²⁴⁸ The criminal justice system has simply become slower and more uncertain.

By contrast, the only major nation in which crime rates have been going down over the past generation is Japan, where more than 90 percent of all violent crimes lead to arrest and 98 percent of all defendants are found guilty. Plea bargaining is illegal in Japan,²⁴⁹ as it is in many other countries. The sentences are no greater in Japan,²⁵⁰ but the chance of getting away scot-free are less. Various supposed causes of crime — television violence, urbanization, crowding — are at least as prevalent in Japan as in the United States.²⁵¹ There are, however, far more policemen per square mile in Japan than in the United States, though somewhat fewer per number of people.²⁵² There is no evidence, however, that Japan has discovered the “root causes” of crime, much less eliminated them — or, indeed, is putting forth much effort in that direction.

Both international and intertemporal comparisons indicate that criminal law procedures affect crime in the way that common sense suggests: punishment which comes quicker and/or with higher probability deters more than punishment that can be delayed or evaded. The tendency of the Supreme Court in the Warren era has been to expand the number and scope of the grounds on which criminals can appeal — delaying (and thereby diluting) a given punishment, reducing the probability of conviction for the actual offense (more plea bargaining) and reducing the probability of being convicted at all. The fact that guilt becomes largely irrelevant when the police do not follow specified procedures allows corrupt policemen to convey legal immunity to criminals by deliberately violating such procedures.²⁵³ The cost of groundless appeals to the criminal is zero if he has a lawyer supplied by the state or by third-party-financed (“public interest”) law firms. Even if he has to act as his own attorney, the costs are negligible if he is in jail with nothing else to do. The repugnant task of rationing justice is no less inescapable for its repugnance. Unless unlimited resources are available for criminal justice procedures — and congested courts imply that they are not — then one man’s right to appeal means a sacrifice of someone else’s right to a speedy trial and/or the sacrifice of innocent third parties victimized by the backlog of other criminals free on bail while awaiting trial in a congested court system.