Knowledge And Decisions

In recent years criminal law procedures have often been viewed, not as social institutions for transmitting knowledge about guilt or innocence, but as arenas for contests between combatants (prosecution and defendants) whose prospects must be to some degree equalized. In particular, the power of the state is depicted as so disproportionate to that of the defendant that some kind of equalization is in order. There is even great concern for intracriminal equity — equalizing the prospects of criminals with varying sophistication to escape prosecution or conviction. If experienced criminals, gang members, and Mafiosi know how to “stonewall” police questions, then “elemental fairness”²⁵⁴ requires that similar sophistication be supplied by the government to less sophisticated criminals as a precondition for a guilty verdict to stand up in the appellate courts.²⁵⁵ To do otherwise, according to this view, is to “take advantage of the poor, the ignorant, and the distracted.”²⁵⁶ Thus, intracriminal equity supersedes criminal-victim equity in this formula — or rather, the second kind of equity is ignored. This is a special case of the “fair contest” approach, which emphasizes the great power of the government vis-à-vis the individual criminal. But to judge “power” by physical artifacts — numbers of officials, sums of money, quantity of weapons, etc. — is to ignore the relationship of those things to their intended objects. A motor that is far too powerful for a lawn mower may be grossly inadequate for a truck. The individual criminal need only be concerned with saving himself from conviction, while the government must safeguard a whole population from his acts and the acts of other criminals, and from the fears and precautions due to those acts. Empirically, the evidence is that criminals as a group are more than able to hold their own against the government. Few crimes in the United States lead to anyone’s being imprisoned.²⁵⁷

Intracriminal equity, like any form of equity, is equity only along a given dimension and conflicts with equity along other dimensions. For example, if people are to be paid according to an equitable principle of how much effort they put into their work, that conflicts with sharing equitably in the employer’s earnings, or receiving an equitable portion of total national output — quite aside from the conflict of equity in general with various economic and other principles. Intracriminal equity likewise cannot be extended indefinitely without conflicting with equitable considerations regarding the victims of crime or the public in general. However, no institutional mechanism forces federal appellate courts to weigh these other considerations. And because federal courts supersede all state courts, the latter — though elective and therefore subject to feedback — are bound by the federal precedent. In short, the only constraints on how far intracriminal equity can be carried are constraints the federal judges choose to impose on themselves. When a U.S. Attorney General and a Chief Justice of the Supreme Court both argue for judicial equalization of legal prospects as between less sophisticated criminals and more sophisticated criminals, so that “hardened underworld types” will not have an unfair advantage over “unwary”²⁵⁸ or “distracted”²⁵⁹ criminals, clearly intracriminal equity is a principle enjoying a vogue in high places. The principle has been extended well beyond the idea that a court must not create categorical inequities of its own to the idea that it must redress certain preexisting inequities in criminal endowments of sophistication in eluding the law. Since courts cannot equalize downward by reducing the cleverness of the most accomplished criminals, all that is left is to equalize upward by increasing the ability of less clever criminals to evade punishment for their acts — regardless of what that means in terms of equity to victims and the public.