Copping Out

Reading about our crime problem induces many reflections, all of them melancholy. There is little being done; we fiddle while Detroit burns. Our miserable adventure in Vietnam, that monstrous self-inflicted wound, diverts and divides us at the precise moment when we are about to be overwhelmed by catastrophes within, of which the problem of crime is a mere symptom. If we escape what has become the fire this time, there is a question that in a less frenzied moment someone might pursue: What is it in our national character that forces us to load the dice against ourselves? Why is it that, confronted with a problem that is complicated enough as it stands, we insist on methodically thwarting our own efforts to deal with it, and then expend so much energy and resourcefulness in erasing the complications of our complications? Illustrations abound, but the one at hand will serve.

The President appointed his Commission on Law Enforcement and the Administration of Justice in July 1965, and ordered it to report in eighteen months, a ridiculously short period of time when one considers the complexity of the problem and the improbability that another opportunity for national introspection on the subject of crime will soon recur. He set the Commission the task of answering five questions so embarrassingly naïve (e.g., “Why does juvenile delinquency know no economic or educational boundaries?”) and so question-begging (e.g., “Why does organized crime continue to expand?”) that they are not even quoted in the Commission’s Report. He then appointed a membership which, with a few exceptions, was either personally or institutionally incapable of considering a fundamental question which a group concerned with serious issues of policy should have confronted: What is the criminal sanction good for? Because of the extreme political sensitivity of an inquiry that would have challenged prevalent law-enforcement dogmas, the situation called for awareness of the issues and the courage to meet them. The awareness may have been there, but if it was, the courage was lacking.

OF COURSE we need to do all the good things that this generally enlightened Report tells us we need to do. We need to recognize that the problem of crime cannot be separated from the social conditions that engender it. We need to upgrade the police. We need to make the courts at once more efficient and more fair. We need to rely less on imprisonment as a correctional device. The Report is a useful piece of public education in these and other particulars, although in many respects its concrete recommendations will seem too cautious to those who are acquainted with current thinking on such matters as police-community relations and sentencing policies.

The common fallacy in thinking about the control of crime is to divorce the question of how to deal with crime from the question of what crime is. That fallacy is perpetuated in the Report. Crime is treated as a natural fact, on a specious analogy with disease. The system of criminal justice must be made to work on whatever raw material is fed into it. Only once, when it deals with the “safe” issue of alcoholism, do the Commission’s recommendations show any recognition of the strains that are put on the system by the improvident use of the criminal sanction. Yet the plain fact is that the overloading of the criminal justice system which the Report so amply documents can be largely attributed to the burden of investigation, arrest, screening, prosecution, trial, and correction of much behavior that has nothing to do with the first concern of a system of public order: the basic security of person and property. Here, as in other aspects of our national policy, appears the fatal American tendency to allow our commitments to outstrip our capabilities.

The Commission’s Report demonstrates the imbalance, but its proposals are only occasionally responsive to it, except in a mechanical way: more money, more people, more research. (Research is the opiate of presidential commissions.) No doubt our capabilities need to be increased, but is it unthinkable to reduce our commitments?

Furthermore, there is good reason to believe that the system operates most unfairly and least effectively when it deals with such conduct as prostitution, sexual deviation, abortion, gambling, and drug use. Breaches of the right of privacy are of course to be expected when private and consensual conduct is the object of police investigation. Police corruption is notoriously encouraged by this kind of work: “vice squad” is a double-entendre. The most patent shortcomings of our correctional system can be seen in our pitifully inept handling of non-dangerous but incorrigible minor offenders.

Moreover, there is the matter of organized crime. Whatever it may be, organized crime flourishes largely by rationalizing the production and distribution of illegal goods and services. Our laws against drugs, gambling, and abortions are examples of what may be described as a kind of protective tariff that fosters the activity of the criminal, especially the organized criminal. By outlawing something that people badly want to buy, we increase the seller’s risk and therefore drive up the price. The illegal seller of drugs, for example, is sheltered from the competition of those who are unwilling to break the law, and thereby can exact a kind of monopoly profit which helps to sustain the illegal enterprise we call organized crime. Eliminating the ban on illegal goods and services would probably not suffice to eradicate organized crime, but the problem requires analysis. Indifference to the fundamental question of what the criminal sanction is good for has so far impeded that analysis.

ONE OTHER FACTOR must be mentioned: the war between the police and the urban poor probably has been exacerbated by the aggressively interventionist character of our substantive criminal law. Drug use, gambling, and prostitution are a few among the many symptoms of misery whose repression makes the ghetto dweller see the police more as destroyers than as protectors.

An investigation of crime in America therefore cannot afford to ignore defining what kinds of conduct should count as criminal. If in dealing with the criminal process the Commission was not aware of this, it should have been when its investigation turned to organized crime and to the drug problem. But it was not.

What we most needed from a National Crime Commission and what we did not get is a sober assessment of the priorities in the use of the criminal sanction in dealing with anti-social behavior. Perhaps such an assessment would conclude that what we are doing now is just about right, that the continued employment of the criminal sanction as the first-line attack on everything we dislike about the behavior of other people represents the height of social wisdom. Nevertheless, the exercise would have been worth having.

Such an assessment would have to begin from the recognition that “crime” is an artifact, not a natural phenomenon. Crime is what society chooses to treat as criminal. That recognition requires no great insight, only a willingness to face reality. But the Commission was so composed as to preclude this willingness, except in the one area where it somehow seemed “safe.” Of nineteen members, four (including the chairman) were law-enforcement officials, either police or prosecutors. Three were judges. Five were eminent members of the organized bar. Two were Democratic officeholders, temporarily out of office. One was a distinguished academic specialist in the field of criminal law. Only four were in some sense both “private citizens” and “laymen”: a university president (Kingman Brewster), a newspaper publisher (Otis Chandler), the president of a women’s organization (Julia Stuart), the head of an important civil rights organization (Whitney Young). (It may be significant that, of the last four, three were part of a small group that dissented from the Commission’s central default.) Not one criminal defense lawyer, who would have represented the other side of what is, after all, a two-sided process. Not one behavioral scientist, who would have shed some light on the obscure nature of both producers and consumers of criminal law. Not one economist, although the question of what the criminal sanction is good for is, in its most important practical dimension, economic. Not one philosopher, who might have had the surest grasp of the ultimate puzzles about the criminal sanction.

A group with these deficiencies could hardly be expected to address itself to the question of the moral and practical limitations on the use of the criminal sanction. Lacking that central focus, the Commission was reduced to particularism, which gives the Report a very patchy look. It must be said, however, that this particularism is more often than not of a high quality. Only occasionally are the specific recommendations (of which there are more than 200) retrograde. Most of them are unexceptionable. That this is so appears to be very largely owing to the efforts of a large and talented staff, ably directed by Professor James Vorenberg of Harvard, and augmented by the efforts of almost 400 consultants and advisers.

THE COMMISSION’S WORK is revealed in six layers. The Report itself consists of three layers. First, there is a Summary at the beginning of the Report: seven pages on blue paper which begin by stressing the prevalence of crime in our society (without pausing to point out that crime is a man-made rather than a natural entity) and which then set out seven principal objectives recommended by the Commission: preventing crime by eliminating the social conditions that produce it; improving the efficiency of the criminal justice system and reducing the situations in which crimes are most likely to be committed; developing “a far broader range of alternatives for dealing with offenders”; eliminating injustices in the operation of the criminal process; helping law-enforcement officers to develop “higher levels of knowledge, expertise, initiative and integririty”; enabling “every segment of the system of criminal justice to devote a significant part of its resources to research”; providing more money for the criminal process; involving the widest possible segment of the community in the process of change.

The second layer consists of the 200 or so recommendations of the Commission, printed throughout the thirteen chapters of the Report in bold-face type, and ranging in scope from providing a minimum family income to establishing a uniform police telephone number. The third layer is the text of the Report itself, more than 300 pages of it, handsomely printed and furnished with illustrations, charts, and tables.

The fourth layer consists of nine volumes of Task Force Reports, more than 15,000 pages long, including a number of studies by consultants to the Commission, which are printed with disclaimers of endorsement. The fifth is a series of Research Studies and Selected Consultants’ Papers, available from the Commission in mimeographed form. The sixth is the numerous drafts and working papers which are not being made public.

The first three layers (all contained in the single Report volume) are as far as most readers are likely to penetrate. This is a pity, because much of the strong stuff of the other volumes has been dismissed altogether or much diluted in the Report volume. A striking example of this progressive dilution as one moves from the deeper layers to the Report itself can be seen in the Commission’s treatment of the narcotics problem. Of all the areas of social concern in which the criminal sanction may be seen to operate most dubiously, this is at the moment the most prominent. The chapter in the Report on Narcotics and Drug Abuse is wholly unsatisfactory. Apart from some trivial proposals for tidying up existing laws and some predictably wrong-headed ones for increasing the enforcement staff of the Bureaus of Customs and Narcotics, the Report falls back on a plea for more research. The Commission simply refused to face the question of whether the possession of marijuana ought to be a criminal offense, on the astonishing ground that “differences of opinion are absolute and the claims are beyond reconciliation.” As if the problem were amenable to consensus politics! In a rare breach in the Commission’s unanimity, four members protested against the evasive treatment of the problem.

The dissenters might have gone on to note that the Report simply ignores the impressive evidence presented by its own consultants who argue that some steps toward liberalization of the narcotics laws are desirable. The extensive review of the available scientific evidence contained in Dr. Richard H. Blum’s papers on the subject, reprinted as appendices to the Task Force Report on Narcotics and Drug Abuse, is nowhere challenged in the Report. Nor is there any reference in the Report to the carefully considered recommendation by Professor Michael Rosenthal, also printed in the Task Force volume, that “neither use nor simple possession of marijuana should be the subject of criminal prohibition by either the Federal Government or the States.”

The Commission raises the fundamental question of what the criminal law is good for only once, when it states that drunkenness per se should not be a criminal offense. Perhaps there are compelling reasons why the same conclusion would not apply to the possession or use of some or all drugs. But the Commission did not say what those reasons are nor, indeed, did it feel called upon to discuss, in even the most summary way, a possible inconsistency in its recommendations.

An even more egregious example of this evasiveness is the Commission’s only attempt, except for its safely detailed recommendations on alcoholism, to confront the underlying problem of the appropriate uses of the criminal sanction. One searches in vain in the Summary and bold-face recommendations in the Report for any sign that the problem was perceived. In the Report itself, hints appear that it was perceived—by the staff and its consultants—but repressed by the Commission. Tucked away in the chapter on the Courts (there is no chapter on the Legislatures, although it is they, strictly speaking, who create the crime problem) are a few circumspect paragraphs about the possible unwisdom of using the criminal sanction to deal with such offenses as “drunkenness, disorderly conduct, vagrancy, gambling, and minor sexual violations.” (One wonders why even a mild reference to the possession of marijuana should have been unacceptable at that point.) The passage concludes with the demure observation that “the Commission has not found itself in a position to resolve this issue. However, it does urge the public and legislatures, when code reform is being considered, to weigh carefully the kinds of behavior that should be defined as criminal.” One may well ask: weigh in what scales? A partial answer is provided by Chapter 8 of the Task Force Report on the Courts, in which another of the Commission’s consultants, Professor Sanford H. Kadish, develops the arguments against the indiscriminate use of the criminal sanction to reach private consensual conduct, such as homosexuality, gambling, and abortion. One must have access to the working papers that the Commission did not choose to print to see how far short this chapter fell of the original and fuller view of its principal author. Since a version of Professor Kadish’s paper will appear in a non-governmental forum, it is no breach of confidence to report that he goes much further than Chapter 8 of the Task Force Report, which goes much further than the text of the Commission’s Report itself, which goes much further than any recommendation made in the Report. The Commission had better consultants than it deserved or was able to use. That is often the way with commissions. One wonders whether it has to be.

It should not have been hard to put together a distinguished group to conduct a more searching inquiry than this Commission did. The list of 400 staff members, consultants, and advisers would have provided a far better starting point, even if one were to exclude all public officials (a probably useful principle in an enterprise of this kind).

I should not leave the impression that the Report is valueless. The chapter on Juvenile Delinquency and Youth Crime, for example, is excellent. It faces squarely the social and economic core of criminal behavior and advocates a series of social-welfare measures that go far beyond anything the Administration ever proposed at the highwater mark of the war on poverty. Indeed, there is some irony in the fact that the Crime Commission’s boldest recommendations are outside the field of crime. The chapter on Youth Crime is admirable also in its rejection of the still-prevalent dogma that juvenile-court proceedings are for the child’s benefit and therefore need not conform to standards of fairness. Moreover the chapter on Corrections is forward-looking in its plea for greater reliance on alternatives to imprisonment, like probation. At the other extreme is chapter on Organized Crime, which is standard demonology, full of calls for action based on evidence far less trustworthy than that on the question of marijuana upon which the Commission declined to act. Here again one finds that what the Commission allowed to be exposed on the surface is undermined by the work of its consultants. Tucked away as an Appendix to the Task Force Report on Organized Crime is a paper by Professor Thomas Schelling entitled Economic Analysis of Organized Crime. By applying to the organization of illegal enterprise the same criteria that govern the structure of legitimate markets, he raises doubts about the plausibility of the official dogma that there is a single nationwide criminal oligarchy. Schelling also points to the connection between the criminal prohibition of consensual transactions and the prosperity of organized crime.

Finally, however, the Report is good precisely to the extent that it sees crime and its control in a social context and bad precisely to the extent that it does not. A steadier focus on social conditions would have produced better results. It would have forced the critical review of our drug-control policies which the Commission explicitly refused to undertake. And perhaps some light could have been cast on the paradox that we mount a rhetorical attack on organized crime while perpetuating the substantive criminal laws that enable organized crime to flourish.