Magazines: Crime Time

The age of "Kojak liberals"


Crime has become the most hotly contested social policy issue of the 1990s, but the debate is decidedly overheated. Statistics issued by the Federal Bureau of Investigation and the Justice Department suggest that if you live in an area that isn't infested by drug dealers (and, of course, if you don't happen to be a drug dealer), your odds of being a victim of violent crime are about the same as they were 10 years ago.

How has crime fighting become such a prominent issue without a growing group of victims of crime? The most important reason is a gradual change in the attitudes of the Democratic Party. Until 1985, it was easy to tell the difference between Democrats and Republicans on crime issues. Democrats were the namby-pamby, goo-goo eggheads who thought hardened criminals could become good citizens with plenty of Prozac, hugs, and herb tea. The Republicans were the tough-as-nails types who delighted in tossing people in jail and throwing away the key, even if the jails didn't have keys.

But in the early '90s many Democrats became what Washington Post columnist E.J. Dionne called "Kojak liberals," trying to show that they were as tough on crime as their Republican rivals. As a result, far too many campaigns hinge on how eager the candidates are to send people to jail.

As president, Bill Clinton continues the effort he began as governor of Arkansas to be a no-nonsense crime fighter. This concern is due in part to his other failures. Ruth Shalit reports in the July 18 New Republic that high-ranking Clinton staffers were convinced that, if other administration proposals failed, the crime bill could be, in the words of a senior Justice Department aide, "the major domestic accomplishment of Clinton's first term….If health care doesn't work, if welfare reform doesn't work, this [crime bill] is going to be the thing."

While one branch of the government says it's fighting crime, other government agencies are turning previously law-abiding citizens into "criminals" by creating more punitive regulations. As James V. DeLong observes in the March American Enterprise, many activities that were not illegal 10 years ago now are. Landlords can have their buildings seized if tenants are found using drugs. People who don't properly fill out forms required under the Clean Air Act can go to jail. Employees of corporations can be considered criminals if they can't tell the courts what a petty cash fund was used for, or why a particular investment doesn't appear on company books.

DeLong observes that what he calls "the New Criminalization" has both economic and spiritual consequences. Corporations have to spend countless hours gathering permits and obeying bureaucrats, and even then they may unwittingly commit crimes; two-thirds of corporate lawyers surveyed by the National Law Journal in 1993 said their companies, due to the uncertainty and complexity of the law, had violated an environmental statute. (See "Crimes Against Nature," December 1993.) The result is an erosion of our sense of what is right and what is wrong. "Under the New Criminalization," DeLong observes, "with its technical complexity and often arbitrary provisions, no one can rely on an internal moral compass or on common sense as protection. The `reasonable person' standard is obviated."

Even as people are sent to jail for minor crimes, high-profile defendants appear to be set free due to technicalities in the law or to variants of the insanity defense. The average American, flooded with reports about the Menendez brothers, the Bobbitts, the trials resulting from the Los Angeles riots, as well as the guests on salacious talk shows, might well conclude that anyone can finagle his or her way to freedom with a sad story and slick attorneys.

That analysis is only partially true, reports Stephanie B. Goldberg in the June ABA Journal. Not many defendants use variations of the insanity defense, and three states have abolished insanity defenses entirely. Some "victimization" defenses, most notably battered woman's syndrome, are grudgingly accepted by the courts. But the requirement that battered women prove that they were in imminent danger of harm before they maimed or killed their husbands limits this defense. State University of New York at Buffalo law professor Charles P. Ewing says jurors are often skeptical about this defense because "99.9 percent of battered women don't kill their abusers."

More esoteric defenses are less successful. "Battered children's syndrome" may have helped free the Menendez brothers, but according to attorney Paul Mones, author of When a Child Kills, when children kill their parents, 95 percent of the time the youths are convicted and go to jail. The courts rarely allow defenses based on premenstrual syndrome, alcoholism, compulsive gambling, "black rage," or "urban stress syndrome" (which Milwaukee defense attorney Robin Shellow claimed had compelled her teenage client to kill another teenager for her leather coat).

Post-traumatic stress syndrome is recognized by some courts, though, and isn't just a defense for troubled Vietnam vets anymore. But in a 1993 study by the University of Massachusetts Medical Center, only 28 out of 8,163 defendants surveyed who had tried to claim insanity said they were suffering from post-traumatic stress syndrome, and those defendants were no more successful in getting off by convincing the courts that they were insane than other defendants who used more common defenses.

What may be true is that juries are less reliable and impartial than they used to be. In the July Washington Monthly, Daniel Franklin, in a review of Stephen J. Adler's The Jury, cites some alarming trends about the decline of juries. Well-educated people can usually exempt themselves from jury service nowadays. In New York, for example, lawyers, clergy, doctors, sole business proprietors, podiatrists, Christian Scientists, and embalmers can all exempt themselves. And many defense attorneys, through "peremptory strikes," can exclude people who may have read news articles about a particular case, in favor of people who know nothing about the defendants.

As juries are increasingly dominated by the less educated and trials become more complex, jurors become more confused. Adler's book cites a 1989 case in which tobacco manufacturer Liggett and Myers sued its rival, Brown and Williamson, for violating the Robinson-Patman Act, which prohibits companies from implementing "predatory" pricing schemes designed to drive competitors out of business. After seven months of testimony, one juror asked what, exactly, the Robinson-Patman Act was.

So the law these days is messy and confused, with courts clogged with arcane trials, "criminals" who victimized no one, and politicians demanding that sentences be lengthened and judges be "tougher." Given this morass, it may well be that the best thing the Clinton administration can do to fight crime is to rein in its regulators (particularly at the Environmental Protection Agency). Congressional Republicans who are properly skeptical of the federal government's efforts in social policy ought to extend their caution to crime-fighting activities. The failures of the government to improve American education or to reduce welfare dependency are well-documented. If the federal government can't improve our schools or cut the welfare rolls, how can we expect the feds to cut crime rates?

It may well be that the best way to fight crime is not to throw money at police departments, but to use existing funds more efficiently. In the Summer Policy Review Bret Schundler, the Republican mayor of Jersey City, complains that union regulations prohibit him from assigning more cops to street duty or reducing wages so that more police can be hired. While his city's per-capita income is $10,000, Schundler writes, the average Jersey City police officer, with salary, overtime, and benefits, earns $90,000 a year.

Rather than getting more money from the federal government, Schundler says, he could do a better job improving police assistance if he had more freedom to push officers out from behind their desks and into squad cars and hire new officers at more reasonable wages. "Bill Clinton's crime bill," he says, "in the finest Democratic party tradition, does little more than throw additional money at the crime problem while shifting the cost of policing from the local to the national taxpayer."

In the March Governing, Penelope Lemov reports on another useful reform that was recently adopted by the North Carolina legislature. In North Carolina, like many states, the cost of running and building prisons has soared, while irresponsible politicians ranted about imposing ever-stiffer sentences. So a bill was passed that requires any North Carolina legislator who introduces a bill lengthening a sentence for a particular crime to report how much the longer sentence will cost the state. "The idea of being able to stand up and be tough on crime without worrying about how to pay for it has got to stop," North Carolina Superior Court Judge Thomas W. Ross told Lemov.

Journalists can also do a better job informing the readers about what police actually do. Teachers are very articulate about the problems they face in their classrooms, and some social workers and sociologists have done a good job in describing the mind-numbing life of the welfare caseworker. But police officers do not do a good job in telling the public what they do, and the result is that far too many citizens, engorged by "reality" shows on the networks, believe that police spend their days kicking down doors and blasting away at Uzi-toting drug lords.

But, as George Kelling and Catherine Coles observe in the Summer Public Interest, many of the useful things police do to improve communities—asking tenants to turn down noisy stereos, suggesting that loiterers move on, detaining aggressive panhandlers—do more to help citizens feel safe and secure than SWAT teams or other flashy efforts. But such low-key, low-cost activities are hardly likely to win support from career politicians.

Long-term, local, incremental efforts will most likely do more to fight crime than any national effort. The proper response to any Washington-based solon's speech about crime is to take the cynicism one normally has for politicians—and double it.

Contributing Editor Martin Morse Wooster is the author of Angry Classrooms, Vacant Minds (Pacific Research Institute).