Criminal Violence, Criminal Justice
Violent crime is always with us, but today more obtrusively and frighteningly than in earlier remembered times. Or at least so it seems. But where can we look to verify this? Reconstructing the crime and fear of the past is a delicate task. Until the late nineteenth century we have to rely on indirect or impressionistic sources, fragmentary public records, literature and letters. They often paint a lurid picture. Henry Fielding, the London Bow Street magistrate, wrote in 1751:
The innocent are put in terror, affronted and alarmed with threats and execrations, endangered with loaded pistols, beat with bludgeons and hacked with cutlasses, of which loss of health, of limbs, and often of life, is the consequence, and all this without any respect to age or dignity or sex.
Some twenty years later another Londoner, Jonas Hanway, complained:
I build an elegant villa, ten or twenty miles from the capital; I am obliged to provide an armed force to convey me thither, lest I should be attacked on the road with fire and ball.
In the United States, as Charles E. Silberman tells us, Lincoln warned in 1838 that internal violence was the worst domestic problem. In 1872 visitors to New York were cautioned not to go into Central Park after sundown and one late-nineteenth-century observer wrote that “municipal law is a failure…we must soon fall back on the law of self-preservation.” Is it then really a case of plus ça change and do our own times just always seem the worst of times? Criminal statistics of a sort have been gathered since the mid or late nineteenth century but the methods by which they were compiled and their reliability have been the subject of withering attack. Standards of reporting were frequently changed depending on whether the criminal justice administration of the moment was more interested in promoting fear of a crime wave or convincing the voters of its vigilance and efficiency. With the shift of an index, the stroke of a pen, or the punch of a key the incidence of serious crime could be reassuringly shrunk or disturbingly inflated. Only political promises called for more jaundiced scrutiny than crime statistics.
Standardized definitions and improved monitoring have in recent years led to statistics that hold more promise of reliability, though the “dark figure” of unreported crimes, which may be large, must always be guessed at. Scholarly combing of sources has also contributed to a broad view of the ebb and flow of violent crime over the last two centuries. In his important book, Crime and Industrial Society in the Nineteenth Century,1 J.J. Tobias showed that in England there was a marked decline in violent crime in the second half of the nineteenth century. The worst upheavals and urban strains of the Industrial Revolution were easing; prosperity increased and the numbers of deracinated, unemployed urban youth dropped. This improving trend continued into this century until property crimes increased markedly in the 1930s and subsequently, in the last decade, the English have recorded a significant upsurge of violent crime. In the United States, the President’s Commission on Law Enforcement and the Administration of Justice, reporting in 1967, wisely concluded that society had not yet found reliable methods for measuring either the volume or trend of crime. Nevertheless it ventured the assertion that between 1933 and 1965 there had been a tripling of forcible rapes per 100,000 of the population and a doubling of aggravated assaults. The murder rate, however, had dropped to 70 percent of its 1933 peak and was lower in 1967 than in 1960.
Silberman, in his useful new survey, asserts that crime statistics have recently become more dependable. He cites them for the proposition that the chances of being the victim of a major crime have tripled between 1960 and 1976, though the chances of being the victim of a serious accident are still enormously greater. But he sensibly reminds us that the crime wave of the 1960s and early 1970s took off from a very low base. From the early 1930s to the late 1950s the level of violent crime was abnormally low. For the first quarter of this century the crime rate had climbed steadily. But then homicides dropped 50 percent between 1933 and the early 1940s. This was, Silberman suggests, an exceptional lull in the enduring American storm of violence, but for older and middle-aged Americans in the present population it came to be regarded as a standard of normalcy, so that the present reversion to ancient national traditions of bludgeoning, garroting, knifing, and shooting has the shocking appearance of a blizzard in Miami.
How long the present bull market in violent crime will continue we of course cannot know. There are signs of a leveling off and even perhaps a slight contraction. The New York State Division of Criminal Justice in a report of November 1978 recorded a decrease of 3.8 percent in the number of serious crimes reported to the police. (There is a corresponding national decrease of 3.3 percent.) Governor Carey of New York immediately hailed the figures as proof that the New York approach to crime was working. Unhappily, this political habit of claiming credit for sunshine while disavowing earthquakes has nothing to do with reality. Crime rates, like the use of heroin and other drugs, go up and down for reasons that have to do with deep social stigmata that American politicians are not much interested in erasing or do not have the means or skill or support to do much about.
These reasons have much in common with the proletarian malaise created by the Industrial Revolution in England which, as we have seen, was a prime cause of the crime wave of the first half of the nineteenth century. The nature of that malaise was well described in a different context by the report of a United Nations conference on crime in 1960. Drawing attention to the dangers of increasing crime in what are euphemistically referred to as “developing” countries, the report referred to “cultural instability, the weakening of primary social controls and the exposure to conflicting social standards” as prime causes for such upheavals. These very afflictions, probably never far removed from any modern society, are oppressively evident in American cities today. The 1940s and 1950s brought a sudden lift from the worst economic miseries of the Depression; World War II gave some sense of national unity and purpose and provided energizing openings for activity and occupation; blacks, while socially not much better regarded, began to make some money and achieve mobility. These were the prime reasons for the decrease in violent crime. But the wave of optimism broke. Huge urban ghettos developed with very high rates of unemployment for young people; omnipresent television constantly juxtaposed the bleak realities of city life for the poor with the tormenting emblems of American success; resentment and a need for action, unrestrained by deeply felt social norms of control, led to the filling of empty or marginally engaged young lives by acts of criminal violence.
As Charles E. Silberman eloquently documents, there are especially chilling aspects to the increase in violent crime in recent years. One is the extreme youth of many of the offenders. The President’s Commission on Law Enforcement showed in 1967 that 44 percent of those arrested for forcible rape and more than 26 percent of those arrested for homicide and assault were in the eighteen- to twenty-four-year-old age group. For burglary and larceny 50 percent of those arrested were under eighteen. In the last decade these percentages have not diminished. So much publicity is given to crime by the very young that we may pardonably fear that soon even the babes and sucklings of the cities may assail us with knife and gun. Accompanying the youth of the offender there often seems to be a superfluity of viciousness, exceeding the amount of force necessary to effect the robbery. We are told of killings and maimings that seem to stem more from rage or inhuman brutality than a calculation of what is necessary to make off with property. The seeming senselessness of this conduct (though of course it is psychically charged with meaning) multiplies terror and bewilderment in the victim and in the rest of us who are zealously informed of the details of these crimes by the press and television.
Unnecessary viciousness and excess of zeal in the commission of crimes are of course not new. Christopher Hibbert has told us2 that eighteenth-century gangs in England would disfigure their victims “by boring out their eyes or flattening their noses.” Indeed, the fury of criminals has always been a subject of fascination. As so often, Aristotle knew all about it. In the Politics he wrote:
There are some crimes that are due to lack of necessities…. But want is not the only cause of crimes. Men also commit them simply for the pleasure it gives them, and just to get rid of an unsatisfied desire.
This is a splendid summary of the chief cause of violent crime in America today—“to get rid of an unsatisfied desire.” The desire may be vague and not quite definable to the person it inhabits. It may appear as a simple wish to acquire something, or to relieve boredom or to be revenged on another class or group of people. Elements of psychic rage and a need to find identity in violent self-expression are surely often as important as more overt impulses to acquire some of the things that others have. But, if these observations are correct, no very dramatic reduction in violent crime is likely until the psychic trauma created by social inequity and the broader neurosis-generating character of American life are significantly modified.
This thesis, conventionally thought of as a “liberal” one, is the main theme of the first half of Charles E. Silberman’s book. The writing of Criminal Violence, Criminal Justice was supported by the Ford Foundation over six years, during which the author was provided with a staff of research and administrative assistants and a consultative commission of experts. In his foreword Silberman seems to suggest that, for all this support, the writing of the book was a travail that could only be adequately rewarded by canonization. The book is, indeed, eminently commendable, though it may seem a less than overwhelming production for the expenditure of so much time and resources. It is a neatly packed compendium of the results of the best modern scholarship, for the most part sharp, sensible, and bright, though sometimes a bit rambling and often chatty and soothingly anecdotal in the style of a Time-Life popular primer. Silberman, though, stays cool and honest about important matters. He is not in the least afraid to say depressing or unpopular things, and the chief merit of his book is the uncompromising and convincing way he conveys to the general public certain truths that have for some time been well known to professional scholars of criminal justice.
The first of these (knowledge of which has been by no means confined to scholars) is that a very high proportion of crimes of violence is committed by young blacks. This is not merely an aspect of the “culture of poverty,” for Silberman points to sharply lower crime rates among Hispanics with lower income levels than blacks. Indeed, the connection between crime and poverty has always been complex and uncertain. What more tranquil and crime-free society could be found than Portugal under Salazar? The gutters of Calcutta are much safer than many a quarter of Detroit, Cleveland, Houston, or New York. Poverty must be mixed with other ingredients to produce the anger that can only find an outlet in violence. America readily furnishes these ingredients for blacks—the proximity of sumptuous wealth, a history of slavery, and continuing inequality of status and opportunity that leads to feelings of hopelessness and rage. Hispanics can take shelter in and draw sustenance from language, church, and family, sources of cultural confidence and self-control that are lacking for many blacks.
The proper conclusion of course is hardly tout comprendre, c’est tout pardonner. Dangerous black criminals, like dangerous white criminals, must with fairness and firmness be put in prison. Equality demands no less. Equality might also demand that large-scale business criminals, who are hardly ever black, should also be better acquainted with our prisons, and Silberman does not say enough about this.
But while the focus on blacks will occasion no surprise, other conclusions reached by the author will disappoint or puzzle many readers. Little can be done, he contends, to reduce violent crime by changing police methods, increasing the number of visible police, or cutting down the time it takes to get to the scene of a crime. Recent research in this field strongly supports this finding. It does not mean of course that we do not need police or that they generally do little good. The absence of an organized, active police force can catastrophically increase serious crime, as police strikes in many cities have shown. The prohibitions of the criminal law are observed for two reasons—because they have become absorbed into the moral personality of the citizen and because of a simple fear of consequences. For many people, much of the time, the awareness of a functioning law-enforcement apparatus provides sufficient immediate deterrence. In a more subtle fashion, the immemorial existence of the organized force of the state, always standing ready to intervene, helps all of us to invest legal prohibitions with aspects of obligation. Right leans on might as might should lean on right.
Obviously for some people this connection breaks down, or else we would have no criminals. Without organized deterrence it would break down devastatingly. But the law of diminishing returns applies here as elsewhere and there is no evidence that more police placed more visibly on the streets would make much difference.
The public’s favorite villains—judges, legal doctrine, and court procedures—are also largely exonerated by Silberman’s researches from charges of excessive softness. It is not true, he points out, that violent offenders are saved from their just deserts by constitutional protections such as the Miranda rules. These constitutional holdings obstruct convictions very little for crime generally and scarcely at all in cases of violence. Nor are dangerous criminals turned swiftly back into the streets through the revolving doors of “plea bargaining.” As many as 65 percent of those who are arrested for serious crimes of violence receive prison sentences, and the usual reason why such an arrest does not end in such a disposition is that the offense was committed between persons who previously had relations with one another, such as lovers or family members, and the complaint is eventually not pressed. In a rough and ready fashion prosecutors and courts (with the exception of juvenile courts that have not functioned responsibly) do identify dangerous criminals and do not treat them with undue tenderness.
It seems extraordinarily unlikely that any lessening of violent crime could be realized by sending more people to prison or extending the stay of those who do go there. A report published in August 1978 by the Bureau of National Affairs put the prison and jail population in the United States at 500,000. This is a sizable percentage of the national population and enormously higher than the percentage found in Western European countries. Prisons are, indeed, necessary for some of the reasons that police are necessary and for other reasons too. The existence of prisons and the prospect of incarceration make up a backdrop of deterrence that keeps the crime rate from overflowing. Prisons also serve the melancholy social task of consuming the youth of violent offenders and returning them to the community drained of the vitality necessary for aggression. Finally, prison sentences serve the morally unifying and emotionally releasing purpose of expressing communal reprobation through ceremonies of degradation that bind people together in separating them from the criminal. But, as with the police, more is not necessarily better, and prisons have probably already fulfilled their essentially limited capacity to control crime.
Silberman’s conclusions are clear, honest, and, to an extent, grim. Every society gets the crime it deserves, though unhappily the impact of crime falls for the most part on those who deserve it least and are least able to bear it. The improvement of law enforcement institutions will do very little to bring about any perceptible reduction of crime. As with inflation, we must grit our teeth and bear violent crime until the slowly changing rhythm of affairs shifts enough to bring relief. Or else we must dynamically seek to bring about basic social reforms that might dilute the sour bile of nihilistic anger. Such serious and far-reaching changes hardly seem likely.
These conclusions may well be correct, though prediction in these matters is a great risk. After all, it is also conceivable that poor, crime-ridden city communities will be swept with religious revivals whose enthusiasm would extirpate crime and provide energizing and perhaps temporarily satisfying outlets for action. This at least is more likely than the prospect that armed groups of ghetto bandits will harass the opulent fringes of Scarsdale or Sausalito. But, faced with the probability of having to accommodate a high level of violent crime for a long time, we could certainly undertake morally urgent practical tasks, some of which are acknowledged and advocated by Silberman.
The criminal justice system wears an appearance of rank injustice and harrowing inefficiency to most of those—defendants, complainants, and witnesses—who are subjected to it. This appearance is often not contradicted by the reality. Plea bargaining may be a roughly efficient device, but its present forms exact a terrible price in the sacrifice of that inquiry into acts and responsibility that the criminal process must conduct if it is to do justice. Many judges are ignorant and abusive. They radiate antipathy to defense lawyers and do not heed even gross constitutional violations. This happens in federal courts as well as in state ones and Chief Justice Burger’s laments about the quality of the bar would be better directed at the quality of the judiciary. Criminal courts are conducted in an uncivil and contemptuous fashion. In some cities—Philadelphia and Houston may serve as examples—at least a section of the police force conducts lawless and racist attacks on citizens. The prison systems of many states, nicely distributed across the nation and including Texas and Rhode Island, are horror chambers that intervention by the federal courts cannot adequately reform. In Rhode Island, until a recent federal court ruling, the treatment for attempted suicide in a juvenile facility was solitary confinement.
This deeply stained judicial and correctional process must be cleansed if respect for the law is even to become a possibility. For, if sympathy for violent criminals is misplaced, prudent self-interest as well as moral imperatives require that, while we deal with them firmly, we must also deal with them in ways that are fair and not barbarous. Many people today are puzzled and angry about the threat of violent crime. In some cases, notably politicians, this is because of the aggravation that confronting a complex phenomenon produces in the primitive mind. Other people have real cause for alarm, because they have been victims, or know victims, or see danger in the streets around them. But the impulse to commit violent crimes will only be refueled by irrational and violent criminal justice. Charles E. Silberman’s book is a useful contribution to a calmer understanding of the problem.
Now in print as Urban Crime in Victorian England (Schocken, 1972).↩
In The Roots of Evil: A Social History of Crime and Punishment (Little, Brown, 1963).↩
Criminal Violence: An Exchange March 8, 1979