186. The social policy of the criminal law

I visited Vancouver in the 1980s, and as I was lingering over a long dinner in one of that city's many delightful downtown restaurants, I noticed a woman walking alone on the sidewalk outside.  The unbidden thought crossed my mind: "Canadian hookers are very well-dressed."

Almost as soon as the thought formed, I experienced a kind of shock of shame, because of course the woman wasn't a hooker at all, just someone walking from point A to point B.  She was well-dressed because she was a business person or maybe a lawyer.   Seeing her (and other well-dressed women, too) walk downtown in a big city after dark was, I'm sorry to say, something unusual in my North American experience. 

That was the moment when I first understood that crime, and the enforcement of the criminal law, is social policy.  (See post 160.)

Lawyers are trained to think in terms of boxes.  "Torts" are here, "criminal law" is there, and "social programs" are way over there, on the other side of the fence surrounding the judicial branch.  But, like so much else we learn in law school, that's just words, not reality.  When you read an anecdotal report of sex workers' interactions with police officers it's easy enough to see that the police are enacting the government's attitude toward certain of its citizens - specifically, the government's rejection of any responsibility for their well-being.

What bullying cops do to victimized streetwalkers is just a one tiny aspect of what the entire criminal justice system does to all victims of crime.  It's all social policy, every bit as much as spending on the schools.

The crime rate is a measure of a society's willingness to protect its vulnerable members from harm.  It tells us whether society's most powerful members - a group that, by any criterion, includes judges - are willing to accept responsibility for the well-being of the least powerful.

Victims of violent crime are, by definition, the most vulnerable members of society.  They are overwhelmingly  poor.  (See post 148.)  Members of minority groups, the young, the seriously mentally ill, the Deaf, illegal immigrants - these are the people who are seriously endangered by violent crime.

In the 1980s, women who weren't hookers avoided walking alone at night on downtown streets because it was so dangerous.  (It was, of course, extremely dangerous for sex workers, too.)   I'm inclined to think the situation has improved slightly in the intervening years, because I notice more women walking alone after dark in the dangerous city where I live - but then, the reason I notice increased numbers of solitary female walkers is because they remain relatively unusual.

It's not that Americans are so much more criminal than Canadians, or anyone else.  Our overall crime rate, including all types of property crime, is pretty much in the international ballpark (or pitch).   We're just more violent, or, to put it more precisely, our government doesn't protect the vulnerable from violence.  And the unit of government that's most resistant to protecting the vulnerable is our criminal court system. 

Recently our Supreme Court has come down hard against prosecuting domestic violence and child abuse cases.  (See post 148 and post 155.)  The hostility of the courts to female victims of violence is notorious.  (See post 47  and post 139.)   Lawyers, judges and law professors think of these as legal issues, to be analyzed by legal means, producing legal results.  And that's all.

When we debate policies put in place by the democratically-responsive branches of government, we look at their effects, not just their good intentions.  An example is the debate produced by the National Intelligence Estimate reporting that the war in Iraq is producing more terrorists than it eliminates - something The Economist said was "stating the obvious."

Or, to pick an example more palatable to conservatives, there's the perverse economic incentives of welfare programs that, with the noblest of intentions, wind up encouraging socially-destructive behaviors.

But, oddly, we don't debate judicial policy in terms of its effects, but only of its intentions.  The Supreme Court discovers a problem, treats it with a new rule fetched from one of the dustier corners of the suprisingly-cavernous Constitution, and announces the problem to be cured or remedied - and for lower court judges, reporters and law professors alike, that's usually that.  There are no consequences, except perhaps the difficulty of implementing the rule in the lower courts.

But whether judges choose to recognize it or not, there is a reality outside the courtroom.  And the consequences of judicial decisions can no more be confined within the four walls of the courtroom than cosmic rays can be blocked by the courthouse roof.

The reason the US is more violent than Canada is that our government tolerates more violence.   And by "our government," I mean: our courts.  Our democratically-responsive branches of government have enacted policies against violence, but our judicial branch resists their enforcement.  The judges themselves would say they are only enforcing the Constitution (with "the Constitution" defined as the collected works of the Supreme Court), but that - of course - only explains why they do it, not what they are doing.

Judges have determined that we should live in cities where women don't walk alone at night, unless they're hookers.  And the fact that most of our judges don't understand that they've done so - and would even deny the reality that they have - is perhaps the truest measure of their institution's dysfunction.