It's Time to Confront Failures of Justice (Part II)

Serious crime and failures of justice aren't going away.

This is the second in a five-part series where we're guest blogging about our new book Confronting Failures of Justice: Getting Away With Murder and Rape, available here. In the last post we introduced the largely overlooked problem of failures of justice—instances where guilty offenders escape punishment entirely or receive a clearly inadequate punishment. But perhaps focusing on instances of unpunished crime is unnecessary because the problem is solving itself? One common response to worries over crime and lack of punishment is that it reflects perennial fearmongering about an ever-diminishing crime problem. Aren't we enjoying historically low rates of crime? Are failures of justice really a pressing problem for policymakers if serious crime is continually shrinking? We consider this argument about crime rates in our book's first chapter.

[T]he truth is that America is not enjoying historically low rates of crime, and serious crimes such as murder, rape, and aggravated assault are on the rise again, especially in urban jurisdictions, after falling from their peak in the early 90s. If the graph showing crime rate trends is framed to start in the 1970s, 80s, or 90s, this may suggest that America is enjoying historically low crime rates.

But, in reality, those three decades represented America's abnormal highs in crime. If one looks at the broader historical record, it becomes clear that when compared to before the devastating crime wave starting in the late 1960s, our current crime rates are higher today. For example, comparing the FBI's crime data reported by the Library of Congress from 1960 with 2019 (the last year the Library of Congress chose to report these inconvenient statistics) shows that total offenses per 100,000 increased from 1,887 to 2,489, a 32% increase. Violent crime increased even more dramatically, as shown in the table below. Modern violent crime rates are well above double the 1960 benchmark, mainly due to the explosion in aggravated assault:

Year	Total Offenses per 100,000	Violent	Murder	Forcible Rape	Robbery	Aggravated Assault
1960	1,887.2	160.9	5.1	9.6	60.1	86.1
2019	2,489.3	379.4	5.4	42.6	81.6	250.2

This data does not even account for the recent surge in homicides since 2019 which saw the murder rate rise by nearly 30% from 2019 to 2020. Even the 2019 data understates the size of the problem as the murder-rate comparison is deceptive: enormous advances in emergency medical care since 1960 have dramatically improved the survivability of a shooting or aggravated assault. Victims now arrive at hospitals sooner due to better ambulance and helicopter response times, and most hospitals now have dedicated trauma centers skilled in treating severe wounds. For example, serious gunshot wounds treated in hospitals increased almost 50% between 2001 and 2011 even as the death rate decreased, causing the murder rate to drop from 5.6 to 4.7. Studies show that if 1960s medical technology prevailed today, the murder rate would be more than five times higher than it is. In 2020, 22,000 homicides took place in America. Without modern technologies, this number would be closer to 110,000. America is not in a period of historically low violent crime but rather a period of advanced emergency care saving many victims from death despite steady or increasing severe violence in many jurisdictions. Addressing failures of justice is more important now than ever as America is caught in a vicious cycle of rising severe violence and falling clearance rates.

It is worth noting that official crime statistics fail to tell the whole story due to non-reporting. Less than half of violent crime is even reported to police, a fact that can obscure trendlines. For example, while reported violent crime fell 2% between 2021 and 2022—a fact many journalists loudly touted to suggest worrying over crime was fearmongering—total violent crime incidents (including non-reported crimes) rose by around 40%. Violent crime in 2022 was almost 20% higher than the 2015-2019 average.

In addition to serious crime rates increasing or stagnating, clearance rates are also dismal and getting worse in many jurisdictions. National homicide clearance rates decreased from around 90% in 1960 to under 50% in 2020, and the true homicide clearance rate is even lower due to police declaring "solved" cases that never even lead to an arrest, much less a conviction. Despite advances in investigative technology, killers are escaping justice at increasingly high rates. Police departments are sitting on over 250,000 cold murder cases, and each year six to ten thousand get added to that number. If one added attempted murder cases (those aggravated assaults that would have led to death in the past), this number would be well over a million.

Clearance rates in many large cities have reached truly abysmal levels. In 2022, in cities with populations larger than a million, only about 8.4% of violent crime and 1.4% of property crimes even led to an arrest. The sheer scale of unpunished crime is deeply disturbing and unknown to most Americans. And contrary to the dismissive claims of some, it is not a problem that is solving itself. Our next post will consider the costs of these massive and routine failures of justice.