In response to:
American Terror from the January 25, 1979 issue
To the Editors:
Reference is made to Professor Graham Hughes’s article “American Terror” [NYR, January 25]. While I do not know the author’s background, the combination of ignorance about, and arrogance toward, the trial bench suggests to me that he has relatively little actual criminal litigation experience. My some seventeen years of general practice (much of it criminal defense) in central and northern California led me to quite a different evaluation than that by Professor Hughes. My approximately three years on the bench has not caused me to change my view.
While I quite agree that, in general, the trial bench is not composed of either saints or profound scholars (my guess is the same can be said for NYU’s law faculty), I neither found nor find it composed of the discourteous Yahoos intimated by the article. On the contrary, whatever their personal predilections, most trial judges are solid journeymen lawyers, attempting within those limits to fairly administer the law. Thus, although I frankly believe that many trial judges unfortunately are not sympathetic to the values of the Fourth and Fifth Amendments, much less the exclusionary rule (thereby reflecting their class, training, and experience), nonetheless, day in and day out, they attempt to rule consistent with stare decisis. Indeed, I know no other professional group whose members so often and so consistently apply standards with which they personally do not agree. Given the citizenry’s often manifested antipathy to ensuring constitutional rights for the accused, and given the fact that most trial judges in this country must stand for election, the day-to-day experience in the courts constitutes a continuing quiet testimony to the courage of the judiciary.
Nor do I think that the point of this letter is irrelevant to the major thesis of the article. As the author suggests, at least one cause of violent crime is alienation from the social standard which makes such conduct unacceptable; and undeserved, generalized disrespect for the bench merely contributes to disrespect for the law itself.
Obviously, I do not mean to suggest that measured and reasonable criticism of the bench or individual trial judges is unwarranted. Rather, my point is that the kind of gratuitous insults expressed in the article are not only unjustified, but perhaps add a mite to the social dislocation which probably is a major cause of violent crime.
Lawrence K. Karlton
Judge of the Superior Court
To the Editors:
Graham Hughes’s review of Charles Silberman’s Criminal Violence, Criminal Justice makes epistemic leaps which are unsupported by the data. A disproportionately high number of blacks are arrested for violent street crimes, but the conclusion that blacks are more violent than other races cannot be assumed, despite Hughes’s “common knowledge” references.
Both Hughes and Silberman fail to acknowledge the higher police presence in black ghettos, increasing the chances of poor blacks being arrested, convicted, and imprisoned. Neither Hughes nor Silberman mentions the violence of white collar crimes, most of which goes undetected. Law enforcement agencies are designed to control street crime, and statistics primarily reflect this one aspect of crime in our society. Research on white collar crimes of violence is scant.
Some researchers have proposed that clearance rates are positively related to police manpower; quite simply, more cops, more arrests. My own research at Northeastern University (1978) found the violent arrest rate among women nationwide (1952-1976) to be consistently related to the number of police available to apprehend persons accused of the reported offenses.
The caveat that poor blacks lack cultural confidence and self-control is totally unsupported. That blacks are therefore more prone to crime denies the impact of the plethora of inequitable social conditions which Silberman alleges to espouse.
Marjorie Brown Roy
Director of Research
Office of the Commissioner of Probation
To the Editors:
Graham Hughes appears to share the assumption, held by many Americans, that a decrease in violent crime can be achieved by the exercise of public power, whether for deterrence through an improved system of criminal justice or by bringing about “basic social reforms that might dilute the sour bite of nihilistic anger.” In fact the alternative method, private retaliation, is practiced in less modernized societies and is a much more effective deterrent than criminal proceedings. In Greece, for example, rape is only committed very rarely; when it does occur, the relatives of the victim go out and catch the attacker and kill him.
When public authority asserts a monopolistic right to conduct a business, it is usually inefficient in pursuing its professed goals. It may, however, achieve other goals. In the United States the criminal courts and their arm, the police, are highly successful in deterring the victim of crime from having recourse to private vengeance. In general the function of legal proceedings, civil and criminal, in the modern state is to preserve and increase the control of lawyers over society; this control provokes a sense of frustration or “nihilistic anger.”
There is a real, though indirect, connection between the high proportion of lawyers in the population of the United States and the high rate of crime. The link is the curious but widespread respect, not for the law, but for the lawyer.
Department of History
University of California
Graham Hughes replies:
I welcome Judge Karlton’s confidence in his colleagues. My views on the judiciary are concededly impressionistic but, at least for one region, they are based on adequate experience. While I have never practiced law full-time, I have considerable familiarity with criminal trials in federal courts and in the courts of New York State. This comes from practice in those courts, from observation of trials, and from reading trial transcripts. A substantial number of judges whom I have observed or before whom I have appeared have seemed to me to be of questionable competence and often chilling or even abusive to the defense while fulsomely benevolent to the prosecutor. Indeed, such conduct is sometimes so blatant that it outrages the jury to the point of provoking unreasonable acquittals. This is very well documented in Peter Zimroth’s classic examination of an important New York State criminal trial in Perversions of Justice (Viking Press, 1974).
Support for my opinion is to be found in a January 1979 draft report of a special committee of New York City law-enforcement officials that states that many New York Supreme Court Justices “are simply incapable of administering a caseload efficiently.” Of course Judge Karlton may be right that things are better in California. This would be good news.
Ms. Roy’s suggestion that the explanation for the high proportion of blacks arrested for violent crimes may simply be the higher police presence in black ghettos is implausible. Unless the police are thought always to be motivated only by malevolent racism, it seems more likely that the number of police in black ghettos is due to other good evidence of a very high crime rate there. In his book Charles Silberman is clear that he does not believe that there is any racial factor that disposes blacks to violence. I agree with him. I also suggested in my article that white-collar (usually white) criminals are treated too leniently. But to argue that the evidence that much violent crime is committed by blacks is unpersuasive rather reminds me of the tobacco industry’s cavils about the link between cigarette smoking and lung cancer. Of course it is logically possible that there is some other explanation but proof beyond a reasonable doubt should suffice.
I am not sure whether Professor Sealey is serious but I shall assume that he is. Atavistic longings for a simpler time seem unhelpful if not irrelevant. Under his preferred system women who lack proximate and aggressive relatives would certainly be at the rapist’s mercy. I think it was Stephen, the great English nineteenth-century jurist, who said that “the criminal law is to vengeance as marriage is to lust”—less exciting perhaps but better than burning.