Liberals and Criminal Justice
So I like to think of myself as a sort of sporadic liberal. I'm reading a bunch of criminal procedure cases, and I thought I'd share a dilemma that I think liberals have to face.
Crime, particularly violent crime, disproportionately harms the poor and helpless (I'm making this up, but I bet statistics would bear me out). I bet poor people are more likely to be injured, killed, raped, abused, or robbed. There are also secondary considerations. One of the things that drives affluent people out of bad neighborhoods is their desire for safety (if safety weren't a concern, I wouldn't mind living just about anywhere with reasonably clean air). This exacerbates the educational inequality that results from our property tax based funding system. The same thing undermines businesses in high-crime areas, reducing available employment.
And yet, liberals tend to support rights for defendants that seem extravagant. You can quibble about the number of criminals who go free, but certainly that's a tradeoff that we face. Why do liberals make the tradeoff they do (more crime, more rights)? I think there are three reasons.
1. Liberals are aware that we have a two-tier (or maybe three-tier) criminal justice system in which rich people hire lawyers who invoke their rights effectively, while poor people don't know their rights and can't exercise them. If anything, though, this should cut the other way. Given elaborate rights, we might want to extend them to poor people. If we get to choose whether to have those rights in the first place, though, and we expect them to benefit rich people disproportionately (at both ends - the incidence of crime and the ability to invoke rights), this should at least make us think about curtailing rights.
2. Liberals are suspicious of police action, both in the abstract and as a result of bitter experience. In this, liberals have quite a bit in common with the founders of this country. They know that vulnerable minorities and dissenters are hounded out, harassed, and abused by the police. Since the middle class doesn't experience this very often, there isn't much political control of police behavior. Only vigilant courts will do the job.
3. Liberals tend to have an expansive view of personal rights. While this is admirable in many circumstances, I'm not sure liberals pay enough attention to the costs those rights impose on people who aren't as visible to the courts.
All of that said, among the determinants of crime, I would imagine Constitutional safeguards aren't anywhere near the top of the list. Still, even if the tradeoff isn't so dire, it's one that I think thoughtful liberals can disagree about.
[UPDATE: I think similar analysis is relevant in the case of school discipline. Public schools are very careful about disciplining students, and this puts serious costs on teachers and good students. At my Catholic high school, discipline was swift and (relatively) severe, and there were very few fights or other disruptions.]
Crime, particularly violent crime, disproportionately harms the poor and helpless (I'm making this up, but I bet statistics would bear me out). I bet poor people are more likely to be injured, killed, raped, abused, or robbed. There are also secondary considerations. One of the things that drives affluent people out of bad neighborhoods is their desire for safety (if safety weren't a concern, I wouldn't mind living just about anywhere with reasonably clean air). This exacerbates the educational inequality that results from our property tax based funding system. The same thing undermines businesses in high-crime areas, reducing available employment.
And yet, liberals tend to support rights for defendants that seem extravagant. You can quibble about the number of criminals who go free, but certainly that's a tradeoff that we face. Why do liberals make the tradeoff they do (more crime, more rights)? I think there are three reasons.
1. Liberals are aware that we have a two-tier (or maybe three-tier) criminal justice system in which rich people hire lawyers who invoke their rights effectively, while poor people don't know their rights and can't exercise them. If anything, though, this should cut the other way. Given elaborate rights, we might want to extend them to poor people. If we get to choose whether to have those rights in the first place, though, and we expect them to benefit rich people disproportionately (at both ends - the incidence of crime and the ability to invoke rights), this should at least make us think about curtailing rights.
2. Liberals are suspicious of police action, both in the abstract and as a result of bitter experience. In this, liberals have quite a bit in common with the founders of this country. They know that vulnerable minorities and dissenters are hounded out, harassed, and abused by the police. Since the middle class doesn't experience this very often, there isn't much political control of police behavior. Only vigilant courts will do the job.
3. Liberals tend to have an expansive view of personal rights. While this is admirable in many circumstances, I'm not sure liberals pay enough attention to the costs those rights impose on people who aren't as visible to the courts.
All of that said, among the determinants of crime, I would imagine Constitutional safeguards aren't anywhere near the top of the list. Still, even if the tradeoff isn't so dire, it's one that I think thoughtful liberals can disagree about.
[UPDATE: I think similar analysis is relevant in the case of school discipline. Public schools are very careful about disciplining students, and this puts serious costs on teachers and good students. At my Catholic high school, discipline was swift and (relatively) severe, and there were very few fights or other disruptions.]
posted by James | 6:12 AM
1 Comments:
Neat post. I totally agree that liberals tend to ignore the costs of rights (I mean, my biggest problem with them is their aversion to thinking like economists), and that this is glaringly apparent in our system of criminal procedure. A system of expansive defendants' rights requires deviations in order to practically serve the ends of criminal justice. Plea-bargaining epitomizes this, and, as John Langbein famously observed, it has notable parallels to the system of torture that emerged in medieval Europe in order to satisfy unreasonably strict confession requirements for conviction. Anyway, what's so great about the privilege against self-incrimination?
"[I]f the law’s demands on me are appropriately justified, and if its adjudicative procedures are just and fair (and these qualifications are, as always, crucial), I have at least a moral duty, as a citizen, to respond to any well-founded charges which are laid against me; to submit myself to the judgment of the court; and to assist the court in reaching a just and accurate verdict on my conduct (from which it follows, we may note, that I have a moral duty to plead guilty if I know that I am guilty). For every citizen has a moral duty to assist the law in achieving its proper purposes, as an aspect of his duty to be concerned for the common good of his community; and those purposes include the maintenance and efficient working of a system of criminal trials which aim to bring wrong-doers to answer for their actions." - R. A. Duff, Trials and Punishments
Why shouldn’t this moral duty be a legal one?
Duff answers: "The law still demands [one’s] obedience (we hope justifiably): but it should not demand, thought it still seeks, her acceptance of its claims; it leaves her the option – the right – of being externally related to it, so long as she obeys it. So too the trial should seek, but should not require, the defendant’s participation in and acceptance of its proceedings: it should leave her the option of seeing it (externally) as a contest between herself and the prosecution; and one way to do this is to allow her a right of silence." - Id.
I have two basic issues with this position. First, I do not understand how acceptance of the law, in this sense, can be legislated. Acceptance is a mental state. Like contrition, it can be induced or impeded, but how can it be compelled, short of mind-control? By its very nature, how one views the law is beyond the reach of the law, so it seems artificial and pointless to “preserve” its inviolability. Second, why should this supposed freedom to always dissent from the law stop at the privilege against self-incrimination? There is a fundamental and irresolvable conflict between authority and autonomy; conceptually, if either side gives an inch, it may as well give everything. In the words of Robert Wolff, “Taking responsibility for one’s actions means making the final decisions about what one should do. For the autonomous man, there is no such thing, strictly speaking, as a command.” The law cannot non-arbitrarily recognize some external limitations on its capacity but not others; what principle could it appeal to without undermining its supposed authority? Admittedly, the privilege against self-incrimination seems to be an ideal symbolic statement of the law’s imperfection, but it has no theoretical superiority to, say, a hypothetical privilege to steal items worth less than five dollars.
Add to this the crime control benefits.
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