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The Bell Curve of Crime & Punishment

I meet some bad people in my line of work. I also meet some really nice people. And I meet a whole lot of people somewhere in between those two extremes.

The law, unfortunately, ignores the bell curve of crime and punishment, making the assumption that my clients will always be of the worst sort.

There’s an old saying that “hard cases make bad law.” The Wikipedia article just linked appears to incorrectly note that “Oliver Wendell Holmes” put forth the utilitarian argument for this in the case of Northern Securities Co. v. United States. In fact, “Oliver Wendell Holmes” never served on the United States Supreme Court. His son, however, did. And Oliver Wendell Holmes, Jr.’s dissent in the aforementioned case includes this argument:

Great cases, like hard cases, make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.[1]

I’ll admit to not completely understanding what Holmes meant when he said “not by reason of their real importance in shaping the law of the future.” Perhaps he meant that these “great cases” should not be considered important enough to shape the law of the future. That certainly seems to fit with the rest of what he was saying.

Unfortunately, the “hydraulic pressure” aspect of their impact is all-too-clear.

Hydraulic pressure may well be one of the more powerful natural forces known to man. Not only do we utilize it ourselves, harnessing it directly, but erosion by hydraulic forces has shaped the entire face of the Earth. Canyons have been carved out by the effects of hydraulic pressure.

Holmes’ metaphor for the effect of “great cases,” then, is apt. The tendency today is for laws to come into being pretty much only by the pressure of “great cases.” Our legislature — and certainly the mob which rules via initiatives in states like California — seldom deliberates, instead being moved by “some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment.”

The result, as anyone cognizant of history or logic would readily expect — is bad law.

Not surprisingly, the passage of bad laws has unintended consequences. Many such consequences create their own harm. Yet they also take the original harm, the harm they were intended to fix, cure, or control, and make it worse than it would have been had the law never come into existence.

The inexorable pressure of these bad laws reshapes society in ways that would make the social and legal landscape unrecognizable to our nation’s founders.

When I — and I’m not alone — try to explain this to people, they are either incapable, or unwilling, to sit still long enough to process the argument. Like the voters whose knee jerk reactions to the “great cases” bring about bad law in the first place, they merely fall back to an emotional reaction.

But if we’re to find a way out of this — if we’re to really fix things — we’re going to have to stop and think. Stop. And think.

Our reaction, for example, to our perceptions regarding crime have driven us to increasingly more harshness in the law, with the result that “what previously was clear seem[s] doubtful, and before which even well settled principles of law will bend.” No longer do we seriously consider anyone innocent until proven guilty. When a child goes missing, his parents are usually our first suspects. The strength of this suspicion is such that investigations sometimes don’t even bother much to look anywhere else.

And fair trials? For the most part, a thing of the past. Sure, we try, but increasingly we find that trials are unnecessary because guilt has been determined in advance. The number of exonerations — people found innocent after conviction, usually by DNA testing — is passing 250. (Scary sidenote: The number one cause of conviction in these cases is eyewitness identification.) Even people sentenced to death have been exonerated. Douglas and Powell were released after 14 years on death row. Increasingly, it becomes impossible to believe that we have not executed innocents. Ask any defense attorney: the presumption of innocence is dead.

What’s worse is the growing belief that once someone has committed a crime, they can never really be rehabilitated. Our laws suffer this belief as the penalties increase in harshness each year. Three Strikes? How about One Strike? (Update 9/26/2016: link broken) (Which type of law, incidentally, California already had before Chelsea’s Law was recently passed.)

The ease with which people are convicted today is reversing a trend that has lasted for hundreds, if not more than a thousand, years, as we learned ways to balance catching and punishing criminals against ensuring innocents were not swept up in the net. Indeed, our ignorance of the history of the criminal justice system’s major developments for testing guilt and innocence means that, increasingly, innocent people go to jail. And while we also increasingly see innocent people “eventually” being exonerated and freed, innocent people die in prison.

I blame the victims for this — and those of us who kowtow to them. Criminals should be punished when they commit crimes. But they should be punished by people with whole and sane minds. Victims nearly always suffer a kind of temporary insanity over their loss — who can blame them? — and are incapable of recognizing that no matter how excessive the punishment, they will never be made whole again after the loss. The more terrible the loss, the more incapable victims are of a reasoned response.

But we, the sane, the lawmakers, who have not been immediately touched by the losses, need to remember that no matter how harsh the law becomes, criminals will always escape. Tightening the noose, locking those accused — often without even a true conviction — away and tossing the key, naming new laws after slain victims will not change this. What it will do is ensure that still more innocent people go to prison. Some of them will go because they plead guilty, even though they aren’t.

Many of my clients accept offers, even when evidence against them is not solid and they maintain their innocence, clearly not because they are guilty, but because throwing the dice at trial means risking the loss of even more of their valuable time on earth to jail or prison.

If they’re not guilty, people (maybe even you) say, “Why plead guilty?” Indeed, many of my clients who are innocent of their charges — yes, innocent people do get accused! — are initially horrified when the prosecution makes an offer. By law, I am required to communicate any offer made. Clients who believe themselves innocent ask, “Why would I accept an offer and plead guilty to something I did not do?”

Sadly, some of these people come to a conclusion in the end that they would rather serve some short period of time — one year, three years, six years and sometimes more — than risk what could happen to them if they lose at trial.

And, again, it’s become increasingly easier for people to lose at trial, even with a good lawyer. Certain types of cases — those involving young children, or gangs, come most quickly to mind — are slanted against the accused even before they start.

The seriousness and number of criminal acts — and criminals — follow a bell curve, otherwise known as a “standard normal distribution.” This is because crime, unfortunately, is a natural process. Natural processes tend to conform to a particular probability distribution. As expected of bell curves, this means that many (most?) statistics about crimes and criminals will show, among other things, that there is a normal distribution for various things that might matter to us as a society. For example, we can analyzehow often particular types of crimes are committed relative to other types of crimes; how often criminals tend to commit crimes; and so on.

But analysis isn’t as exciting, or stimulating, as the sensationalistic stories about the outliers. Outliers are those who defy the norm. Certain types of crimes, such as child molestation, show a high degree of variability both in the type of person who commits the crime and in the likelihood that they will reoffend and another child will be “damaged.”

[T]he numbers appeared to dispute the popular notion that sex offenders are incorrigible. Even among child molesters, about 18 percent had been arrested for similar offenses before, and only 3.3 percent of those released in 1994 were arrested again for a crime against a child.

A few, however, fit the mold of a serial pedophiles.[2]

Yet our laws increasingly focus on the outliers — the few — and, because of the mistaken belief “once a child molester, always a child molester,” the criminal penalties for even a first offense have climbed into the absurdosphere, driven by victims and/or their families.

Such laws, with harsh sentences and long prison terms even for first offenders, have been passed to deal with numerous other issues such as gangs, drunk drivers, and drug offenders.

The attitudes — the emotions — that drive these laws don’t just skew the bell curve for sentencing towards excessive sentences. They also skew the bell curve regarding the numbers of innocent people who escape conviction. And those who don’t.

What’s needed is a return to the constitutional values upon which this country was founded. We need to return to the belief that people accused of a crime are — truly — considered innocent until the prosecutor proves, beyond a reasonable doubt, that the accused is actually guilty. We need to return to a belief that certain types of evidence may be too inflammatory and unreliable to be allowed in criminal trials.

(One area I can think to start with is the elimination of bogus “gang experts” — i.e., “cops who arrest a bunch of gang members and talk to other cops about arresting gang members.” Such “experts” have no real training in sociology, psychology, or anthropology and frequently vehemently disagree with those who do have such expertise. Often, they do not even have college educations. Yet, increasingly, whether or not alleged “gang members” are convicted depends entirely upon the testimony of such experts, rather than on the testimony of percipient witnesses of the charged crimes.)

More importantly, we need to stop listening to the anguished cries of temporarily insane victims and/or their families as a means of deciding what the law should be.

  1. Northern Securities Co. v. U.S. (1904) 193 U.S. 197 [24 S.Ct. 436]. I cannot give, with any comfort, a point-cite, because WestLaw is showing some odd pagination on this case which doesn’t fit with the pagination legend.
  2. “Rearrest Less Likely for Sex Offenders” (November 16, 2003) Associated Press.