Knowledge And Decisions

If appellate courts are to be part of a coherent legal system, rather than arbiters armed with power to decide each case anew in whatever way they choose, then what is decided in one case must be part of a legal pattern applicable to other cases with similar objective factors involved. What is decided in extreme cases becomes a precedent for other cases. In this kind of social package deal, often “hard cases make bad law” for the future. For example, blatant racial bias in trials and sentencing in some cases in some states may cause the whole federal legal system to involve itself in the minute details of state courts in all states.²⁰⁰ As a result, a white, Anglo-Saxon criminal caught in the act in California may go free because of legal procedures created when an innocent black was railroaded to jail by an all-white jury in Mississippi. Appellate courts can adjust the application of their decisions to some extent, but there are limits to how far this can go and still retain the rule of law and the role of appellate courts as rule-making organizations, rather than roving commissions with sovereign powers to decide each case as they please. This is neither a criticism nor a defense of appellate courts, but simply an indication of the momentous legal trade-offs involved.

The Constitution of the United States limits how far these trade-offs can go in one direction — that is, how high the cost can go for a criminal defendant, or even for a convicted criminal. There are no comparable limits on the costs which the legal system can impose on a crime victim seeking to prosecute the criminal. In the case of rape victims these costs are obvious not only for the victim, but also for the larger society, which has its own interests in keeping rapists off the street. But there are no victim’s counterpart of the defendant’s constitutional protections against double jeopardy, self-incrimination, or cruel and unusual punishment. In particular, the right to a speedy trial applies only to the defendant, not to the victim or to witnesses who can become exhausted, disgusted, fearful, or forgetful in crucial details as repeated trial delays stretch out for months or even years. Indeed, victims or witnesses may die or move out of state as legal processes drag on, quite aside from the financial losses imposed in taking off from work repeatedly to go to court for a trial that is again and again postponed at the defendant’s request. Criminal lawyers are well aware of the advantages of sheer delay in wearing down plaintiffs and witnesses, or even a district attorney with a limited budget and limited time. In short, “due process” has a social cost, and that cost can — in particular cases — rise to levels which in effect negate the law in question. This may or may not be inherent in any form of constitutional law. What is important here is to be aware of such cost relationships — the central reality of trade-offs — as we turn from this brief static sketch of criminal law and appellate courts to a consideration of the trends in criminal law recent decades. These include trends in crime rates, in arrest procedures, in trials, and appeals.

CRIME RATES

Crime rates per 100,000 persons more than doubled during the decade of the 1960s — whether measured by total crime, violent crime, or property crime.²⁰¹ How much of this represents an actual rise in crime, and how much an increased reporting of crime, remains a matter of controversy. However, there is general agreement among people who agree on little else, that murder has generally been accurately reported, since it is hard to ignore a corpse or someone’s sudden disappearance.²⁰² Trends in this widely reported crime are also rising dramatically. Murder rates in large cities doubled in less than a decade between 1963 and 1971. The probability that someone living his whole life in a large city today will be murdered is greater than the probability of an American soldier in World War II being killed in combat.²⁰³

Crime is no more random than any other social activities. Murder rates in the big cities are more than four times as high as in the suburbs.²⁰⁴ More than half of all serious crime in the United States is committed by youths from ten to seventeen years old.²⁰⁵ Moreover, juvenile crime rates are increasing faster than adult crime rates.²⁰⁶ The number of murders committed by sixteen-year-olds tripled in four years in New York City.²⁰⁷