All Commentary
Friday, September 1, 1995

Criminal Justice? The Legal System vs. Individual Responsibility

What Should Be Done to Lower the Crime Rate?

Progressives used to talk confidently about “building a new society.” Well, here it is. They’ve built it. We’re in it.

The intellectual cornerstone of the New Society was determinism: the belief that human behavior is in principle caused by factors outside the agent’s control. Once the psychological and/or socioeconomic “root causes” of undesired behavior—be it crime or capitalism—are found and addressed, that behavior can be methodically, “scientifically” eliminated.

If you weren’t mugged over the past week, it’s no thanks to this lunatic theory. In all its variants, it has swept post-Christian culture off its feet. The accredited “experts” and “specialists” of the social sciences that guide the criminal justice system have been dedicated to the denial of common sense.

In fact the denial of common sense virtually defines the expert, who smiles at the naive assumption that there are “bad” people—people who freely choose to do evil—and that the job of the state is to punish them. The late psychiatrist Karl Menninger spoke of “the crime of punishment” (itself a sternly judgmental phrase). The job of the state is to “rehabilitate” the criminal. On this view, the criminal becomes a kind of innocent, a victim whose crimes indict not himself but “society”; only the desire for retributive justice is condemned as atavistic.

Even our official language expresses the regnant ideology. Hence we now have departments not of penal justice, but of “correction.”

The trouble is, nobody gets corrected, and nobody even thinks anyone gets corrected, by prisons organized on these enlightened principles. Now that the root causes have been addressed, the crime rate has soared beyond anyone’s nightmare of anarchy. Safety from violence is no longer a common condition of American life, as it was a generation ago; it’s a commodity you pay dearly for—in choice real estate, security guards, neighborhood watches, burglar alarms, and whatever weapons the private citizen may still be permitted to possess.

Robert James Bidinotto, who put Willie Horton on the map, as it were, in a 1988 Reader’s Digest article, has edited a book of essays by highly intelligent but unabashedly unenlightened writers who take the view that the way to lower the crime rate is to put the scare into bad people. Furthermore, these writers don’t believe that bad people are badly frightened by the possibility of even a life sentence in a minimum-security facility with all the basic creature comforts and weekend furloughs.

If the essays in Criminal Justice? stopped there, the book would be instructive only to those least likely to read it: the mad scientists of what Mr. Bidinotto calls “the Excuse-Making Industry”—sociologists, Marxian economists, psychologists (Freudian and behavioral), biologists, and Ramsey Clark.

Mr. Bidinotto also has a fine short treatment of the philosophical problem with determinism: if the doctrine is true, we can never know it, since reason itself must be an illusion resulting from irrational causes. The idea is radically absurd. Criminal behavior may be encouraged or discouraged by many factors, but it isn’t “caused.” That is, no stimulus or condition yields a predictable result of the kind summed up in the weary aphorism that “poverty causes crime.” Many desperately poor societies have low crime rates. Ours has seen crime rise along with unparalleled prosperity. Mr. Bidinotto suggests that we “consider a heretical thought: not that `poverty causes crime,’ but that criminality causes poverty.

If there are no “root causes,” there are certainly incentives and disincentives for those for whom criminal options are matters of cold calculation. By one reckoning, only 1.7 percent of all crimes are punished by imprisonment. Not much deterrent there. (Of course enlightened opinion denies that punishment deters violent crime, even as it seeks to criminalize, i.e. deter, with threats of punishment, all sorts of formerly licit market activities; and it ascribes “greed” not to armed robbers who shoot clerks, but to businessmen and taxpayers who want to keep more of their own earnings.)

There are many fine essays in the book besides Mr. Bidinotto’s four contributions. David Walter, taking a leaf from Bastiat, provocatively suggests that the welfare state is so morally ambiguous that it encourages private individuals to do what the state itself constantly does: namely, grab others’ property. If nothing really belongs to anyone, what’s so wrong about theft? Ralph Adam Fine shows how plea bargaining corrupts the justice system, and also argues that the courts, expanding the Miranda principle beyond its original absurdity, have wrongly deprived the police of a legitimate asset: the need of many criminals to confess. Caleb Nelson similarly explores the irrationality of the exclusionary rule. Lee Coleman shows how the insanity defense lends itself to abuses; in fact the book as a whole could start a lively debate over who is crazier, psychiatrists or federal judges, with plenty of evidence for both sides. Other essays devastate such myths as the notion that our prisons house too many petty offenders who shouldn’t have been incarcerated in the first place.

Without succumbing to determinism, and agreeing with nearly everything the authors say, I nevertheless think there is a certain “root cause,” as it were, of our burgeoning crime rate: the mad ambition of liberalism to “remake society.” A society can neither be made nor remade; it can only be maintained, or corrupted and destroyed. The welfare state has disastrously weakened the tribal links and loyalties that make most men behave most of the time; chiefly, the desire for the respect of older men and the fear of disgrace in their eyes. We suffer from a glut of fatherless boys—not only fatherless, but also, so to speak, uncleless—who are more unassimilable than any wave of immigrants. A male mentor who sets a responsible example, and supplies the timely rebuke, can make all the difference to a borderline criminal. Put simply, people need love.

This is not to deny free will or the importance of incentives; on the contrary, millions of American boys, sons of mothers on welfare, lack one of the strongest incentives to good behavior: a real or virtual father who can provide both affection and authority. This is a terrible pity, and it creates problems for everyone. The “experts” seem not to grasp it; the rest of us should. An ounce of prevention is all to the good, and abolishing the welfare state would be more like a ton of prevention. I wish the book had said more about this dimension of crime.

Meanwhile, alas, we have to deal with the boys for whom prevention is too late. Toward them severity is the only remedy left to us. They have, after all, chosen to do evil, thereby leaving victims more pitiful than themselves. At that point they are simply bad people. Those who excuse them share their guilt. In this respect Criminal Justice? is consistently sensible and fresh, a damning indictment of a truly criminal system.

Mr. Sobran is a syndicated columnist and editor of a newsletter, Sobran’s.