Knowledge And Decisions

Intracriminal equity extends even to groundless appeals. If privately paid lawyers make frivolous appeals based on unsubstantiated claims of “insanity,” then a court-appointed attorney who fails to do so for his client has, in this view, denied the client his constitutionally guaranteed right to counsel²⁶⁰ — a right expanded during the Warren Court years to mean free provision of counsel, whose conduct of the defense can then be retrospectively evaluated by appellate courts to insure that he attempted enough technicalities to satisfy their conception of “competent” representation. It is not that the appellate court actually found the defendant insane — or even regarded that as a likely possibility — but that they second-guessed the defense strategy of the court-appointed attorney and thought that was a tactic he might have tried. Such extrapolations and improvisations from the simple constitutional right to use a lawyer illustrate again the law of diminishing returns, and the tendency of unconstrained institutions to extend themselves past the point of counterproductive inputs from the standpoint of their mandated purpose — in this case, determining guilt or innocence and meting out justice.

PUNISHMENT

Trends in the punishment of criminals can be readily summarized: over the past generation, punishments for convicted criminals have become less common, less severe, and less honestly reported to the public. In the American legal system, punishment is less common than in the British legal system from which it evolved. California alone has six times as many robbers as England, but more people were in prison for robbery in England than in California.²⁶¹ On paper, the United States has “the most severe set of criminal penalties in its law books of any advanced Western nation,”²⁶² but they are seldom put into practice. Less severe penalties — that are actually enforced — have produced a long-term reduction of serious crime (including hard drug usage) in Japan, over the same decades during which American crime rates have been soaring. Studies in various American cities show that most felons with prior convictions are placed on probation rather than going to jail.²⁶³

Harsh penalties on paper and probation in practice are part of a more general pattern of duplicity. “Life” sentences in many states mean “eligibility for parole in three to five years.”²⁶⁴ “First offenders” include long-term criminals whose prior convictions are not technically admissible in court because of the age at which these crimes were committed. Supposedly successful “rehabilitation” programs have repeatedly been found on closer scrutiny to have been ineffective, or even counterproductive.²⁶⁵ These are not random divergences between theory and practice. They are systematic biases overstating to the public what punishment is being applied or understating either the crime (reduced charges under “plea bargaining”) or the nature of the criminal (“first offender”). Concurrent sentences mean that there are no sentences for additional contemporaneous crimes. Parole boards mean that even the few sentences handed out in court are grossly overstated. So-called “supervised” probation or parole consists of “a 10- or 15-minute interview once or twice a month”²⁶⁶ between a criminal who is on his own otherwise and an official who, in two-thirds of felony probations, is responsible for more than one hundred cases at a time.²⁶⁷

These systematic biases in the transmission of knowledge insulate decision makers, advisers, and others who influence the criminal justice system from feedback from the actual experience of the public with the fruits of their decisions. Central to the duplicity and the insulation are vast differences between the beliefs of criminal law “insiders” and the public — and the determination on the part of insiders that public influence is to be minimized. It is a point of honor to have ignored “public clamor.” In short, criminal law decision making is insulated from feedback, not only institutionally but ideologically. No insulation is ever perfect, so that public outrage in some egregious cases that happen to come to light has occasional effect on the law. Nevertheless, the history of trends in criminal law over the past generation is essentially the history of intellectual fashions among a small group of theorists in law and sociology. These fashions include several key premises: (1) punishment is morally questionable, (2) punishment does not deter, and (3) sentences should be individualized to the criminal rather than generalized from the crime.