BY RICHARD NEELY
THROUGH AT LEAST THE PAST decade, no public problem has worried Americans more persistently than crime.
When people are asked in opinion surveys to list the problems that concern them most, the threat of crime typically comes at or near the top of the list. But when the same people list the issues on which they’ll decide which candidate to vote for, crime usually comes behind half-a-dozen other subjects. The explanation they offer most frequently is that a candidate’s statements about crime are unimportant—no one can do much about the problem.
What is misguided about this attitude is that it A possible to do something about crime. Although the evidence lacks scientific precision, certain facts of criminal-law enforcement are clear:
In many big cities, where the limit on crime is the presence of the police (as opposed to family members, watchful neighbors, and the like, who limit crime elsewhere), more officers on the streets or in the subways means fewer criminals who dare to act. But in courtrooms, most accused criminals go free because the system cannot afford to have it any other way. Everyone involved in the criminal courts is overtaxed, from the policemen, who must take time off the beat to testify, to the prosecutors, who need to dispose of cases as quickly as possible, to the judges, who know as they make their sentencing decisions that the prisons are already overcrowded. The result of this pressure is the plea-bargain, in which a man who faces, for example, a ten-year sentence with a three-year minimum term if convicted of armed robbery will instead plead guilty to grand larceny and end up serving one year in jail.
Many people complain that plea-bargaining returns criminals to the streets, but few have considered the statistics that lie behind this practice. There are nearly 104,000 felony arrests in New York City every year. New York City has facilities for only about 5,000 fullblown jury trials per year, so it is forced to do what nearly all city courts must: find some way to dispose of the surplus, usually through plea-bargaining or dropped charges. Many of the people thereby freed undoubtedly belong in jail, and the crime rate would undoubtedly fall if they were imprisoned. All that is required is money—for police, prosecutors, judges, and jails.
Why, then, have we not taken steps we know would have some effect? The answers are complicated, but chief among them is that for every proposal that might be made to reduce crime, there is a pow - erful, organized interest that opposes it. These obstructive groups often include the most influential force of all, the middle-class interests that so frequently complain about the threat of crime.
This problem is intimately connected with the general difficulties of American courts, but not the courts as they are usually conceived. When lay people speak of the courts, they often mean judges and attendant judicial staffs of clerks and secretaries. However, the term “courts” must be expanded when we talk of criminal law to encompass all of the supporting agencies that either feed criminals to the judges or receive them after conviction. When courts are understood in this way, it becomes clear that improving their operations can be costly. Doubling the number of policemen and prosecutors would spare many people the costs they now bear as victims of crime, but it would increase the costs many others would pay in taxes.
As is often the case, the people who stand to gain the most from this protection are the ones with the least say about how public money is spent. The primary victims of crime pay the lowest taxes. Most victims of crime live in ghettos or declining working-class neighborhoods, and they work at low-wage jobs in places such as all-night diners or gas stations, which are easy to rob. But the taxpayers who would bear the cost of better protection for these victims are themselves seldom victims—they are instead large corporations with privately retained security forces, or middle-class taxpayers who live in well-protected neighborhoods and send their children to safe neighborhood schools or private schools.
Although it might not seem in the interest of the middle class to pay for increased enforcement, the cost of crime in the United States runs to hundreds of billions of dollars every year—much more than increased enforcement would cost. Shoplifting alone accounts for a loss of between 3 and 7 percent of all merchandise inventoried for sale by large chain stores, which means we all pay 3 to 7 percent more for our routine dry-goods purchases.
Moreover, criminal courts and their supporting agencies—unlike most government operations—actually generate revenue. At the simplest level, traffic courts and magistrate courts make more money from fees and fines than it costs to operate them. When state or local business regulations are enforced, the fines augment the treasury. Low crime rates also contribute to a desirable climate for industry, commerce, and residences, which in turn means higher property values and a stronger tax base. Lack of funding for the courts must be something more than just a reflection of overall budget constraints; while budget considerations do play a part, underfunding is often deliberate, purposeful, and unrelated to the budget.
One simple example should illustrate the point. Cheating on federal and state income taxes is pervasive in all classes of society; except among the compulsively honest, cheating usually occurs in direct proportion to opportunity. Why, then, do we not expand the Internal Revenue Service and its state counterparts? Every new revenue agent pays his salary and overhead at least eight times. The answer is that we do not really want Rhadamanthine enforcement of the tax laws. As long as the IRS is overworked and understaffed, everyone except the scrupulously honest will enact his own personal tax-reform program. The IRS’s understaffing also guarantees that all but the most flagrant evaders will escape with a payment of back taxes and possibly a civil penalty.
Overworked United States attorneys cannot spend their time arguing every questionable deduction in tax court. The IRS will challenge a businessman’s deductions, only to cede most of its points at settlement conferences. The mediocre enforcement of the tax codes stems not only from the IRS’s lack of staff but also from a lack of U.S. attorneys, U.S. district court judges, and court-of-appeals judges. Without an increase in the personnel of supporting agencies, there is a limit to the effectiveness of new IRS agents, but there is no question that such an increase will bring in more money than it costs.
Since more rigorous enforcement will inspire a higher level of “voluntary” compliance, it must be obvious that some people out there do not want better enforcement. I am probably one. I actually do pay every cent I owe in taxes, and since I am a public official, I get audited about every four years. Notwithstanding my annoyance with those who cheat, I do not want to be audited more than once every four years, because it is a nuisance. Quite frankly, I prefer to let my neighbor cheat a little rather than be bothered with a yearly audit.
Most people probably feel as I do about forgiving their neighbors’ tax trespasses in return for minimal personal harassment by Uncle Sam, but a similar philosophy of live and let live does not exist about violent crime. Why, then, do we not double the number of cops and courts?
The reason is both ideological and financial. Policemen, in my experience, are by nature bullies as well as heroes, and the smaller the police force, the more policemen tend to exhibit the characteristics of heroes rather than bullies. But the more policemen who are “cracking down on crime,” the greater the likelihood that individual citizens will suffer abuse of their civil liberties. Work in any bureaucracy tends to expand to fill the time allocated to do it. If the police are not busy with serious crime, they may meddle in such citizen activities as private poker games, where no one wants their help. Consequently, a silent, even unconscious alliance exists between pro-civil-liberties liberals, who want small police forces for ideological reasons, and conservative taxpayers, who do not want to pay the costs of what from their point of view amounts to social services for others.
My favorite illustration of the diverse alliances that oppose improvements in the criminal-justice system is the repeated failure of a bill that is perennially introduced in the West Virginia Legislature. The bill, which is introduced at the request of the state attorney general, would give the attorney general statewide prosecutorial powers. Under the current system, each West Virginia county elects a prosecutor who has absolute discretion concerning what crimes will be prosecuted in his county. The attorney general handles criminal cases on appeal, defends the state’s interests in federal habeas corpus proceedings, and represents the state’s agencies in civil litigation; however, the attorney general has no power to initiate prosecutions at the trial-court level in the fifty-five counties. Why should there not be a statewide prosecutorial agency, particularly since many local prosecutors are reluctant to enforce the law against their political friends?
The answer is quite simple. The position of attorney general has historically been a stepping-stone to the governorship. Since 1936, four out often governors held the office of attorney general immediately before their election as governor. High elected office has tended to go to media stars since the demise of well-organized political machines. Only certain types of political antics, however, attract media attention; these include crusades against political corruption and white-collar crime. Everyone who is actively involved in either business or government is aware of the public-relations value of an anti-corruption crusade, yet even the consummately honest prefer not to be bothered by one. Zealous investigations demand the production of documents, testimony by employees on company time, and a costly disruption of normal business operations. None of these costs is borne by the government; all must be borne by the private sector.
The important facts are that there is less than universal support for the enforcement of most laws, from consumer fraud to drug use, and that lack of consensus about the value of some types of law enforcement is seen in the legislatures failure to establish a statewide enforcement agency.
In West Virginia’s four northernmost counties, the population is composed largely of the children of Italians, Greeks, Poles, Hungarians, and other non-AngloSaxon peoples. The biggest illegal gambling institutions used to be the churches, which held regular, illegal bingo parties and raised significant revenues (bingo games for charitable organizations were recently legalized). Other social institutions similarly rely on slot machines and football pools; it is a way of life completely different from that of the predominantly fundamentalist southern part of the state. Local prosecutors in those counties are elected by citizens who expect a policy of conspicuous non-enforcement of the gambling laws, at least as they apply to churches and social clubs. The last thing on earth they want is a statewide strike force destroying their churches and clubs.
In 1977, when John D. Rockefeller IV became governor, his new chief of the state police attempted to enforce the gambling laws in the northern counties. Within a month, the state police were instructed to back off, because it became obvious that continued enforcement would anger every member of the legislature from those counties and that, in retaliation, those legislators would torpedo the governor’s legislative program.
EVERY EFFORT AT IMPROVEMENT IN THE CRIMINAL justice system will seem either helpful or threatening, depending on the perspective of some political-interest group. Thus an increase in the number of policemen means more protection to some, more bullying to others. If, for example, the staffs of prosecuting attorneys are increased so that they can diligently prosecute armed robbers, murderers, and dope peddlers, they will also be available to ferret out consumer fraud, anti-trust violations, and political corruption. Since prosecuting attorneys are usually elected and, therefore, are lawyers with political ambitions, they will be tempted, as in West Virginia, to play to the press by prosecuting white-collar crime. These campaigns are middle-class morality plays that assuage the newspaper reader’s sense of unrecognized merit. They are usually less attractive to the political establishment, however resolute it may be about cracking down on murder and armed robbery. Even firebrand political reformers use questionable tactics at election time, and the prospect of an elaborate enforcement bureaucracy falling into enemy hands is horrifying to politicians.
A classic example of frivolous white-collar-crime prosecution took place recently in Pittsburgh. A county commissioner, who was also the county Democratic Party chairman, was charged with theft of services during his tenure as county coroner. At that time, in addition to being coroner, he owned a private laboratory, which did pathology and toxicology testing. It was alleged that he brought tissue specimens from his lab to the morgue, where they were processed by morgue employees on the county payroll, thereby “stealing” $115,000 worth of county services.
The case had all the trappings of a political trial. The defendant, Cyril H. Wecht, was highly placed in county politics, so prosecuting him would bring much publicityadverse for Wecht, angelic for the prosecutor. Wecht had political enemies even within his own party, and some of them were involved in initiating and developing the investigation. Others used the investigation and trial as a reason to force him to withdraw from the party chairmanship. And the district attorney responsible for the prosecution, perhaps trading on the publicity it generated, was running for the state supreme court bench at the same time.
Political or not, theft of government services is not a trivial charge. But this case certainly was not one of those occasions when an expensive jury trial was warranted by any cost-benefit analysis of the “public good.” Fortunately for Wecht, he was able to hire the nationally known trial lawyer Stanley Preiser to defend him. After six weeks of exhaustive testimony and with thirty-two cartons of documentary evidence, the jury deliberated for ten hours and acquitted Wecht.
The investigation and trial took nearly two years and involved ten investigators and seven lawyers from the district attorney’s office at one time or another. The trial lasted six weeks, and the whole affair was estimated to have cost the county about $1.5 million—more than ten times the value of the services said to have been stolen. The money spent on the trial could have bought almost forty prosecutors for a year at an annual salary of $40,000, and they each could have been prosecuting fifty violent crimes and property crimes such as murder, rape, arson,
armed robbery, and larceny—the ones that affect the average citizen’s life.
As long as we are talking only about the criminal courts, the questions are comparatively simple. But when we add the complications created by the civil courts, all bets are off. Devoting more money to the criminal courts would return economic dividends to the public, but increased funding for the entire court system has a much more mixed effect. Indeed, for certain groups, including local governments, businesses, unions, landlords, and even tenants, a better-functioning court system would be a calamity.
Consider the case of New York City, which is notorious for its long court delays, in the abstract, most New Yorkers would like to have an efficient court system so that criminals would be sent away. To the casual observer, New York’s felon problem would appear easy to solve by increasing the number of policemen and prosecutors, and by expanding the court system.
The hitch, however, is that a New York trial-court judge is empowered to hear both criminal and civil cases; if the number of judges is increased, more civil cases can be heard. Of 25,589 civil cases concluded in New York City in the first forty weeks of the 1979-1980 fiscal year, 5,523 were against New York City itself. New York City has been on the verge of bankruptcy since 1975, and the policies of the Reagan Administration threaten even greater financial strains in the next two and a half years. The potential liability for New York City from the civil suits currently awaiting trial runs to billions of dollars. New York City cannot afford an efficient court system, because it would be bankrupt beyond bail-out if all these suits came to trial in one or two years.
New York is an extraordinary example, but legal-aid and other public-interest lawyers elsewhere are bringing suits challenging the standards of operation in mental hospitals, prisons, schools, and other state and local facilities. When courts take action in these areas, it can mean that local governments must spend millions or even billions of dollars they never planned to. In New Jersey, for example, the state supreme court ordered the legislature to enact an income tax to support the public schools. This required the allocation of state money to projects that judges wanted rather than to projects that the governor and the legislators wanted.
The moral of these stories is that the costs of creating more courts, along with all their supporting staff, are but a fraction of the total amount of money that an expansion of the courts will eventually involve. Typically, the entire judicial branch of government takes less than 2 percent of any state’s budget. In New York City, the cost of doubling the number of judges, prosecutors, city attorneys, courtrooms, and supporting staff would be small compared with the cost of paying the judgments the new courts would render against the city.
In other parts of the United States, there are powerful private interests in the same position as New York City: they are not in the least interested in improving the efficiency of civil courts. If, for instance, litigation against insurance companies takes eight years to complete, the company has the use of its money for eight years, and can invest it during that period at between 10 and 18 percent. Furthermore, delay alone is a powerful force to inspire settlements for low sums. Since most federal and state courts are unified criminal and civil tribunals, in which any judge can hear either type of case, the positive economic effect for the general public of improved criminal courts is almost always offset by increased costs on the civil side for those who have the most political power. The public takes its accustomed beating.
IF EXPANDING THE COURTS HAS VARIED EFFECTS, SOME of them welcomed and some of them abhorred by powerful political groups, the logical solution would be to separate the courts’ various functions. We might create institutions that would work in areas where there is broad agreement—such as fighting violent crime—while avoiding other areas. Everyone wants violent criminals prosecuted and the streets made safe. During the 1960s and 1970s, there were numerous programs that attempted to get at the root causes of crime—slums, broken families, unemployment. While we have not abandoned these efforts, there is an increasing awareness that we do not have either the resources or the knowledge to reduce violent crime through preventive means, and this lack should not be used as an excuse for doing nothing.
New institutions will not be developed, however, until there is an organized citizen lobby that makes campaign contributions, sends out direct-mail newsletters about how elected officials perform in the area of court reform, and has representatives entering into the give-and-take of political bargaining in the committee rooms and the corridors of legislatures. Until there is such a lobby around which political support can coalesce, politically workable plans will not be generated. Since there is no active citizen lobby for court reform, and since, to the contrary, all of the day-to-day political rewards go to those who oppose court reform, the legislative branch is entirely indifferent to the courts. In fact, I cannot think of any other subject of major social concern that intrudes itself less upon the imagination of the average legislator than the courts. Yet court reform, albeit in simplistic terms, is the frequent subject of campaign rhetoric, which gives the illusion that politicians have some continuing interest in the subject. Sadly, the courts are usually regarded in the same light as is the Federal Reserve Board—as an institution that is to be reviled and attacked but ultimately to be left unchanged.
The history of the environmental movement suggests the direction that a citizens’ movement could take. Environmental and conservation issues used to be as low a legislative priority as court reform is today. But in the early 1960s, the whole question of pollution control and conservation of unspoiled wilderness captured the imagination of the college-educated middle class. Suddenly, defense of the environment took on the aura of a religious crusade. Groups such as the Sierra Club organized on the national level, and in every state local groups developed and kept in communication with one another.
The reform of the criminal law may be ripe for the same type of crusade that the environmentalists led fifteen years ago. Most street crime is, to be sure, perpetrated upon the poor, because they must live where the criminals are. But crime has risen to a level that intrudes itself into the lives of many middle-class citizens on a daily basis. It is the middle class that has organizational and political skills, along with a spare hundred dollars to contribute to a political-action group. It was essentially the middle class that accomplished the environmental revolution.
THE BEGINNINGS OF A CITIzen lobby for better law enforcement can already be perceived. In West Virginia last year, the relatives of persons killed by drunk drivers organized themselves to make the drunk-driving penalties more severe. In general, the enforcement of the drunk-driving laws in the United States is a disgrace. But last year, the public outcry against drunk drivers was such that the West Virginia Legislature made drunk driving a serious offense, amending the law to include a no-nonsense procedure for enforcement.
West Virginia’s decision to crack down on drunk driving was not unique; several other states amended their laws last year with spectacular results. In California, for example, after a new drunk-driving law went into effect, the highway death toll during the Christmas season was reduced by 50 percent over the previous year.
Drunk driving differs from other criminal questions in that it is a comparatively easily understood problem and there is no political pressure to protect drunk drivers. Although there is no pressure to protect any criminal who strikes at random, the more a criminal activity looks like a regular business—car theft, gambling, drug sales—the more criminals organize to influence the political process. Even more important in the passage of the drunk-driving laws, perhaps, was the lack of debate about what would reduce drunk driving. Everyone agreed that strict sanctions, quickly applied, would do the trick for the occasional drunk, and that permanent revocation of their licenses would keep most of the habitual drunks off the road. Like the environmental movement, the lobby against drunk driving knew just what it wanted.
By contrast, efforts within the political system to improve the criminal-justice system often stall because of the timeless debate about stricter enforcement versus elimination of the root causes of crime. The advantage of a citizen lobby seriously concerned with an improved criminal-justice system is that citizens want protection—they are content if the symptoms of the disease can be controlled, and that is probably the practical approach for the foreseeable future.
It is important to differentiate between traditional law-and-order rhetoric and real criminal-law reform. Traditional law-and-order rhetoric addresses itself primarily to the decisions of the United States Supreme Court since Miranda v. Arizona in 1966, when the Supreme Court began the wholesale reform of the criminal law in order to further civil rights and civil liberties. A return to police brutality, official harassment of the lower socio-economic class, and kangaroo-court summary convictions by forced guilty pleas is not my idea of criminal-law reform. It is possible to have a wellfunctioning system of criminal-law enforcement without the violations of personal integrity inherent in the police state. But it would be expensive.
In my estimation, a good criminal-justice system that reduces violent and petty crime to roughly one fifth of their current level could be established with substantially less political activism than was required for environmental reform. Furthermore, the costs to the nation of criminallaw reform would be dramatically less than those of the environmental movement, although they would all be borne directly by the taxpayers instead of being paid for through the inflation of consumer prices, as was the case with most environmental reforms. Cleaning up the environment exacted its costs through lost jobs, higher utility bills, and more expensive automobiles. Criminal-law reform will cost higher taxes.
It is not necessary that everyone suddenly become interested in criminal-law reform. After all, the number of voters who were actively dedicated to the ecology revolution was comparatively small. Extremely effective interest groups—the National Rifle Association, for example—are comparatively small in terms of active members. It must be remembered that politicians are not concerned with influencing everyone who is eligible to vote—just the 21 to 65 percent, depending on the election, who actually come to the polls. It is the militant and not the indifferent voter who must be satisfied first. □