Judicial activism causes crime.
Judicial Activism Causes Crime
by D. J.
Connolly.
A June 1998 Washington
Post editorial concerned a proposed Constitutional Amendment to
protect "victims' rights." The Post's editors
were against it. Liberal newspapers prefer that "We
the People" keep our grubby mitts off our Constitution and
let judges "evolve" it when it needs amending [1].
The question naturally
arises: why should we need a Constitutional Amendment to protect
victims' rights? The U. S. Supreme Court has told us that
our Constitution protects murderers,
rapists, thieves, and drug peddlers. How come our founders
cared more about criminals than their victims?
The question answers
itself; our founders placed no such preference in the
Constitution, it originated with Supreme Court policy initiatives
during the 1960's and 1970's. The revolution in criminal law
which followed those initiatives caused a great and long-lasting surge
in crime rates. The people were not too happy about all that
extra crime,
so they complained to their congressmen.
Your average congressmen would
never consider blaming the Supreme Court for the consequences of its
stealth legislation. They were all taught to believe that the
Constitution is whatever the judges say it is. Daring to
challenge this venerable fraud would get any politician hooted from
office by the media; it's a lot safer to pretend that one is trying to
fix the problem by amending the Constitution. So Congress
responded to the judicially created crime wave with a lot of posturing
about a Victims' Rights Amendment.
THE DECLINE AND DEATH OF VICTIMS' RIGHTS
In the 1960's it was
fashionable among liberal intellectuals to view criminals
as victims and "We the People" as the perpetrators. The ayatollahs on the Supreme Court like to be in tune with
current intellectual fashion. So the Court, led by Chief Justice
Earl Warren, went into the business of protecting criminals from us.
The Court needed a cover story to justify its policy shift, so
the justices fabricated a brand new meaning for the Bill of Rights [2].
Our founders had made it
perfectly clear that the Bill of Rights did not apply to the states.
It was intended to protect the states and the people from
excesses by the federal government. However, it was the perfect
vehicle for the Court to use to protect criminals from us. So,
almost a century after we adopted the 14th Amendment, the Court
suddenly discovered that the authors of the Amendment intended it to
"incorporate" certain parts of the Bill of Rights against the states.
From time to time, the Court would let us know exactly which
parts. Our judicial branch of government would not have found it
convenient for the 14th Amendment to "incorporate" all of the Bill of
Rights against the states [3].
The justices used their clever
new story line dozens of times in the early sixties. Between 1960
and
1965 the Court heard 75 cases in which criminals claimed that "We the
People" had violated their rights. It ruled in favor of the
crooks 64 of those 75 times. Let's consider a few examples.
In 1961, in Mapp v. Ohio,
the Warren Court rewrote the 170-year-old Fourth Amendment. When
they started, it said that the federal government (all of it including the Supreme Court) was
forbidden to conduct or sponsor "unreasonable searches and seizures" of
our "persons, houses, papers, and effects." When the court was finished, the Amendment contained a brand-new "exclusionary rule" for
state criminal trials. No state was allowed to use "tainted" evidence
in court. Tainted evidence turned out to be any evidence that a
creative defense lawyer could convince a willing judge was obtained in
an "unreasonable" search [4].
You would probably agree that
burglars, who break into our houses, rummage around, and steal our
stuff, are conducting "unreasonable searches and seizures." In
1960, just before the Supreme Court invented the exclusionary rule,
which clearly obstructed state and local law enforcement, we had about
900,000 burglaries in the United States. After 1960, the rate
started to increase dramatically, reaching about 1.3 million in 1965,
2.2 million in 1970, 3.3 million in 1975 and 3.8 million in 1980.
During the 20 year period between 1960 and 1980, therefore, we
had tens of millions of extra burglaries arguably due, at least in
part, to fraudulent Supreme Court actions. Every burglar who
escaped punishment because of the exclusionary rule remained free to
conduct "unreasonable searches and seizures" under the protection of
the U. S. Supreme Court. It would seem that the Court has been
trashing the Fourth Amendment big time [5].
Prior to Mapp v. Ohio,
the Supreme Court recognized the obvious; no part of the Constitution
mandated the exclusionary rule, especially in state trials. A few years
later, the Court again admitted this. In Linkletter v. Walker
(1965), it ordered that the benefits of the rule would not be available
to persons convicted in state trials prior to the Mapp decision.
It admitted, in effect, that Mapp v. Ohio was judicial legislation [4].
The Court said
(Our) purpose (in Mapp v. Ohio)
was to deter the lawless action of the police and to effectively
enforce the Fourth Amendment. That purpose will not at this late date
be served by the wholesale release of the guilty victims.
There was no mention of the need to deter the lawless action of judges who openly trashed the
Constitution [4].
PRONOUNCED JUDICIAL FANTASIES
Five years after Mapp v. Ohio
the Court rewrote the Fifth Amendment which says: "No person . . .
shall be compelled . . . to be a witness against himself." Our
founders remembered that English kings routinely used torture to obtain
confessions. So they wrote the Fifth Amendment to make sure the
new federal government didn't try this kind of stuff. In Miranda v. Arizona
(1966), the Warren Court proclaimed that the Amendment really means
that policemen in the states must take affirmative steps to protect
criminals from the consequences of their own stupidity.
Surely you've heard about
"Miranda warnings." Back in the early
1960's, somebody raped a woman in Phoenix and stole her car.
About two weeks later, the police found it parked in front
of Ernesto Miranda's home. Ernesto fit the description of the
rapist; he also had a prior arrest for rape and half a dozen arrests
for peeking in ladies' windows. So they put him in a lineup and
the victim picked him out.
Ernesto knew the cops
had him dead to rights. So, after an hour or two, he
confessed. There was no coercion; but the Court opined that he had not signed the
confession "voluntarily, knowingly, or intelligently." Nobody claimed that the police had tortured or
beaten him. Ernesto had just done something dumb. The Warren Court said that was
enough to violate its brand new revised Fifth Amendment.
The Court opined that, the
potentiality for compulsion is forcefully apparent, for example, in
Miranda, where the indigent Mexican defendant was a seriously disturbed
individual with pronounced sexual fantasies, . . . to be sure, the
records do not evince overt physical coercion or patent psychological
ploys. The fact remains (the police did not) undertake to afford
appropriate safeguards at the outset of the interrogation to insure
that the statements were truly the product of free choice [6].
This author does not argue for
allowing the police unfettered discretion in questioning suspects.
Policemen, like Supreme Court justices, are public employees and
their actions must conform to public policies formulated under our
laws. We never passed laws to insure that a predatory criminal
who is a "seriously disturbed individual with pronounced sexual
fantasies" is entitled to "safeguards at the outset of the
interrogation to insure that the statements were truly the product of
free choice."
Maybe it's a good idea to provide such "safeguards" to "seriously
disturbed individual(s) with pronounced sexual fantasies," maybe not.
We need to balance concern for such individuals with concern for
their victims. Our Constitution does not speak to that public
policy choice, and we never delegated authority to make that choice to
our judicial employees. A law professor named Paul Cassell has
estimated that "Miranda warnings"
prevent police from solving up to 359,000 crimes each year. Every
unsolved crime keeps a criminal out on the
street committing more crimes [7].
CRUEL
AND UNUSUAL CRIME RATES
The Warren Court started
manufacturing fraudulent constitutional rights for criminals about 1960.
By 1968, when Richard Nixon was elected President,
criminals were running amok. This made the voters quite
unhappy. That's partly why they elected Nixon; he had
promised to appoint judges who were not soft on crime.
Nixon tried to deliver; but he had to compromise with Democrats in the Senate to get his judges confirmed. So crime rates remained
sky high during his time in office and beyond.
Ronald Reagan did a
little better. By the late 1980's, Reagan had appointed
enough Supreme Court justices to move the Court in a different
direction. It quietly trimmed back on some criminal-friendly
rules invented by the Warren Court. It didn't do
anything too obvious; it certainly didn't admit that the earlier
opinions were fraudulent.
Supreme Court justices put defending the Court's image ahead of any
competing value. So the
Reagan appointees just trimmed back as slowly and quietly as they
could. Now let's look at the results of all this judicial
inventing, revising, and trimming.
The Warren Court started
making up new rules for criminal trials about 1960. By 1970
it had tipped the odds strongly in favor of the crooks. One
can see this by looking at the data on crime rates. Between
1960 and 1970, the murder rate almost doubled. The number
of rapes each year more than doubled. The number of
property crimes (burglary, car theft etc.) almost tripled. Crime
rates only went up a little bit more during the 1970's and
1980's. The Nixon Court didn't make the crime rate any better,
but it didn't make it much worse either. Crime rates peaked about
1994. That year victims reported about fourteen million
serious crimes to the police [5].
In a nation of 280 million
people, that's about one crime for every twenty people. So, in
1994, you had about one chance in twenty of being a victim.
That's about five times as high as your risk of being a victim
was back in 1960. Your risk went up five-fold after a lawless
Supreme Court amended our Constitution to protect crooks.
Now lets admit it's unlikely
that defective court rulings were the sole cause of the extra crimes;
other factors also influenced the crime rates. Social scientists
mention fatherless homes, drugs, failed public schools and TV violence.
They also mention demographics. In the years in question,
we had a big growth in the number of males between the ages of sixteen
and twenty-four. Young males commit most of the crimes. So
the baby boom helped cause the rise in crime rates.
The social scientists have a point. It's not fair to blame lawless judges for the entire
increase in crime rates; one certainly can't blame them for the baby boom. So it's clear that they don't deserve 100
percent of the blame. However, federal judges certainly deserve part of the blame; sometimes they even admit it.
Richard Posner, a federal appeals court judge, admitted in a book that he wrote that judges were
partly to blame for the increase in crime rates. But he didn't offer any estimates of how many crimes they actually
caused. So let's take a crack at producing one ourselves [8].
First let's review the
relevant facts. Fraudulent, or at least speculative, Supreme
Court opinions contemporaneous with the surge in crime rates not only
made it a lot harder to lock up criminals, they also supported many
other causes of crime. They ruined our urban public school
systems. Failed public schools lead directly to an increase in
the criminal population. Fraudulent contemporaneous Court
opinions also protected porn. Sexually explicit porn probably
inspires rape and child abuse; you can review some of the evidence for
this claim by consulting Catherine MacKinnin's Only Words. Violent porn promotes violent actions; an April 22, 1999 Article
in USA Today reviews the basis of this claim [9].
Taking all those things
into account, it seems fair to blame the Supreme Court for at
least one-half the increase in crime rates. Let's see what
that implies about the total number of crimes caused by judicial activism.
One can find detailed annual crime-rate data in any
almanac; the ones used to for this article are
described in the Notes and Citations section. We'll only look at the
twenty years from 1970 to 1990 [5].
During those two decades
the murder rate averaged about 20,000 per year, roughly twice
what it was in 1960. But we're only going to blame our judicial branch of government
for one-half the increase. That's about 100,000 murders [5].
The Court also gets
credit for one-half the growth in the rape business during those
years. That adds up to about a half-million rapes.
Using the same logic we conclude that the Supreme Court
caused about ninety million crimes of all types between 1970 and
1990 [5].
Perhaps you don't agree
that the Court deserves credit for 50 per cent of the growth in
crime rates that followed closely behind its revolution in
Bill-of-Rights interpretation. You think a much smaller
share, perhaps only 10 per cent, is a little more fair.
Fine. Using your more conservative estimate, we
conclude that fraudulent Supreme Court rulings caused only 20,000
murders, 100,000 rapes and eighteen million other crimes.
Whoopee! That's cause to celebrate!
CAUSAL MECHANISMS
Most social
scientists would say that we haven't proven a thing. Fifty
per cent, 10 per cent, it's all conjecture. One needs a more
convincing analysis of causal mechanisms to support blaming the
Court for any of those crimes. OK. Let's discuss some
causal mechanisms.
During the 1960's, the cops' rate of
success at locking up the perpetrators of serious crimes declined
by 34 percent. As a result, roughly
one-third of the criminals who would have been locked up under
the old rules, went free under the new rules. More
criminals on the loose means more crime. That is a no
brainer [10].
A group of social
scientists wanted to find out what criminals do when they are
on the loose; so they went into some prisons
and asked them. A fellow named Steven Levitt published a
study, in 1995, that reported what they found
out. The average convict they talked to claimed credit for
141 non-drug-related crimes per year. The number went way
up to 1834 crimes per year if they included drug crimes.
The social scientists didn't believe those numbers.
They thought that some of the convicts exaggerated because
their professional pride was on the line.
They wanted to get more
reliable numbers. So they went out and got all the hard
evidence they could to supplement the interview responses.
Then they used some high powered statistical methods to
massage all the numbers. When they were finished they
concluded that the average criminal, when on the loose, commits
about 0.004 murders, 0.05 rapes, and 15 miscellaneous other
crimes per year [11].
According to a fellow
named Charles Murray, writing in the Wall Street Journal, the
number of crooks in jail increased by about 1.5 million during
the 1980's and 1990's. The states had build a lot
of new prisons and federal judges appointed by Ronald Reagan had
quietly trimmed back some of the Warren Court's more damaging
rules. You can read about the trimming in the book by
Lazarus. Crime rates naturally fell as the number of crooks in
prison increased. Liberal newspapers said that was a disgrace;
since crime rates were falling, prison populations should be falling
too. The
liberals never mentioned the obvious. Crime rates had been
falling because prison populations were rising [12].
Three paragraphs back we
learned that, on average, each criminal on the loose commits
0.004 murders, 0.05 rapes, and 15 miscellaneous other crimes per
year. Keeping that extra 1.5 million crooks in jail,
therefore, avoided 6000 murders, 75,000 rapes, and 22,500,000
crimes of all types each year. The increase in the jail
population alone can explain all the drop in crime rates in the
late 1990's. That seems to remove any lingering doubt that
the Supreme Court caused the crime wave of the 1970's and 1980's.
Just in case one still
has lingering doubts, let's discuss deterrence. In 2001, an
economics professor named H. Naci Mocan and a graduate student
named R. Kaj Gittings published the results of a study examining
the deterrence effect of the death penalty. Mocan and
Gittings analyzed Justice Department records concerning all 6,143
death sentences handed out between 1977 and 1997 in the United
States. Only 432 (about seven percent) of the 6,143 death
sentences were actually carried out during the two-decade period
studied [13].
The two economists used
state-of-the-art statistical techniques to examine the effects
of the 432 executions on the murder rates in the states which
carried them out. They controlled, as statisticians say, for
the effects of unemployment rate, percentage of residents who
live in large cities, percentage of young adults in the
population, per capita alcohol consumption, racial composition of
the population, and indices of poverty like income and infant
mortality rate. In layman's terms, Mocan and Gittings
separated out, from all these other factors, the deterrence
effect of the 432 executions on the murder rate in the states
which carried them out. They concluded that, on average,
each of the 432 executions prevented about 5.5 murders.
The Mocan-Gittings study
provides dramatic evidence to support the intuitively obvious fact that
punishment deters crime. So it also supports the obvious fact
that punishment denied or delayed by fraudulent
judicial rulings causes extra crimes. Our judicial employees who
made the fraudulent rulings, therefore, are responsible for the extra
crimes just as surely as if they had driven the getaway car [14].
DUE PROCESS OF LAW
You would probably agree that
most crime victims are "deprived of life, liberty, or property, without
due process of law." If an employee of the federal government
abets a crime, therefore, he's violating the Fifth Amendment.
Since our judicial employees abetted millions of crimes, they've
got a lot to answer for.
The 14th Amendment applies the
same "due process" mandate to the states. It would seem,
therefore, that any state judge or prosecutor who honors a fraudulent
Supreme Court precedent, resulting in somebody new being victimized by
an unpunished thug, is violating the 14th Amendment. We've got a
lot of criminals walking around in $500 suits.
NOTES & CITATIONS
1. See "Rights of Crime Victims," Washington Post, June 29, 1998; Page A14. See
also the online essay, Our Evolving Constitution.
2. See, for example,
Lusky (1993), pages 129-130. See also the essay, "The
Constitution and Fundamental Rights" by Lino A. Graglia, in Licht, Ed.,
1992 (Check the Bibliography).
For an argument that the "ayatollahs" on the Supreme Court are
defying the First Amendment by running a national religion see the
online essay, Edicts of the Secular Papacy.
3. Many years earlier the Court had found it convenient for the 14th Amendment to
"incorporate" a completely different "Bill of Rights" against the states. See the online essay, Evolution of a Scam.
4. See Levinson, 1964, pages 157-58. Mapp V. Ohio can be found on
the Internet. See also the 1949
Supreme Court opinion in Wolf v. Colorado.
A transcript of Linkletter v. Walker can also be found on the Internet
.
You probably recall that the Constitution emphatically denied
"legislative Powers" to our judicial branch of government. See
Article I, Section 1.
5. Crime rate data
between 1960 and 1970 were taken from The American Almanac, 1973, page
143. Data for later years, through 1994, are from The Universal
Almanac, 1997, pages 285-288.
6. The Miranda opinion can be found on the
Internet at
http://www.tourolaw.edu/patch/Miranda/. It's also discussed in Pollack,
pages 267-268, and Cray, pages 457-61.
7. See "Handcuffing the Cops? A Thirty-Year Perspective on Miranda’s
Harmful Effects on Law Enforcement,"
by Paul G. Cassell and Richard Fowles. As of this writing, the article could be found on the Internet at
http://www.law.utah.edu/faculty/websites/cassellp/STANFIN.html
8. The admission of judicial blame for higher crime rates was in Posner, 1996,
page 386. For title and publisher check the Bibliography.
9. For an argument that federal judges ruined our urban public schools, see the online essay,
Twenty-Million Ruined Educations. Fraudulent obscenity rulings are discussed in Our Secular Papacy and Sacred Porn. Publication data on MacKinnon's book
is given in the Bibliography. See also "TV Violence Stalks Streets of Littleton
- And Your Town" by
Philip Meyer, USA Today, April 22, 1999.
10. Data on the drop in
crime solution rates, during the 1960's, was taken from The New
York Times Encyclopedic Almanac, 1971, page 275.
11. The data on how many crimes are avoided by keeping crooks in jail were taken from
Levitt, mainly pages 2 and 23. Check the Bibliography.
12. The rising prison population was described in The Cleveland Plain Dealer, January
19, 1998, page 8-A and a Wall Street Journal article, "And Now for the Bad News," by Charles Murray, Feb. 2, 1999, page
A22. See also the first half of Edward Lazarus's, Closed Chambers.
13. See "Pardons, Executions and Homicide," by H. Naci Mocan, R. Kaj Gittings,
National Bureau of Economics Research Working Paper No. w8639,
December 2001. The paper was reviewed in a January 20, 2002
article in the Washington Post by Richard Morin.
14. See the online essays, A Pattern of
Racketeering Activity and Cruel, But Not Unusual, Judicial Mischief.
For publication data on works cited, check the
Bibliography
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