About This Blog

Judging Crimes is a blog about criminal law, violent crime and the judiciary, dedicated to making the liberal case for greater democratic control of the criminal justice system.  It's a "view from the trenches" because it's written by a practitioner, not an academic or journalist.  It examines the changing role of the judiciary in American society by looking at what judges actually do, rather than what they say.  I know what they do because I deal with the consequences every day. 

Opinions issued by judges, from Supreme Court justices on down, are justifications for the exercise of governmental power.  But it is the exercise of power itself that should command our attention, not the justifications.  Judging Crimes is concerned with the reality of judicial power rather than the verbal formulas used to defend it. 

American law professors have long liked to say they teach their students "to think like a lawyer."  Learning to think that way is a matter of internalizing certain assumptions.  The practice of judging is likewise based on a foundation of shared assumptions, among them that the United States Constitution -- a document of 8,335 words, the length of a book chapter -- provides an answer to every question.  Rather like a Ouija board.

These assumptions are so ingrained -- and their internalization is so necessary to the successful practice of law -- that most people who subscribe to them aren't even aware of having done so.  Judging Crimes will try to engage not just with the expressions of judicial power, but with the assumptions on which those expressions  rest.  

Judging Crimes won't be filled with daily entries commenting on the day's events or provide a best-of-the-web welter of links.  Many other blogs already do that, far better than I could hope to do.  (Check out these.)  Instead, Judging Crimes will contain pieces of a length that might seem long for a blog but would be short in a serious magazine.  I hope to post new pieces several times a week.

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Wednesday
Sep162009

386. Go figure

Two divisions of the Department of Justice have released crime figures this month.  The press release from the Bureau of Justice Statistics, reporting the results of the National Crime Victimization Survey, says:

The violent crime rate in 2008—19.3 victimizations per 1,000 persons age 12 or older—was unchanged from the previous year, the Bureau of Justice Statistics (BJS) in the Office of Justice Programs, U.S. Department of Justice, announced today. ...

 In 2008, an estimated 4.9 million violent crimes (rapes or sexual assaults, robberies, aggravated assaults and simple assaults) occurred...

That's 1,930 victimizations per 100,000, of course.  Compare that to the figures released by the FBI 12 days later:

An estimated 1,382,012 violent crimes occurred nationwide in 2008... ["Violent crimes" are defined as "murder and nonnegligent manslaughter, forcible rape, robbery, and aggravated assault."]
There were an estimated 454.5 violent crimes per 100,000 inhabitants in 2008.

The chief explanation is that little word "simple."  About 3,472,590 of the assaults estimated by the NCVS are classified as "simple."  The survey defines simple assaults as those "requiring less than 2 days of hospitalization", a period of hospitalization that might strike some as non-trivial. 

In 1980, according to the CDC, the average length of hospital stay for all conditions was 7.5 days, while in 2006 it had shrunk to 4.7 days (see table 102 on page 392) [researching blogs ain't for sissies], so I wonder if the two-day cap might be a bit outdated.  Among medical insurers, one day is the new two days, but our crime statisticians might not have kept up.

Both the NCVS and FBI basically define aggravated assault as an attack with a weapon, although the wiggle room built into their definitions differs somewhat (NCVS here and FBI here.)   To stir in a bit more confusion, the term is used to designate an act that in many criminal codes, and in the tort system everywhere, is called battery and not assault at all.

Another difference between the two agencies' estimates is that the FBI counts homicides, a class of crime that has proved resistant to the NCVS's information-gathering techniques.

If the "simple" assaults are subtracted, and homicides added, the NCVS figures would work out to  1,720,812 violent crimes, a difference of 338,800 extremely serious violent crimes.  That's a lot of suffering to lose at the margin. 

But the difference is still larger than that figure suggests, because as far as I can make out the FBI figures includes crimes against people younger than 12, who are excluded from the survey for obvious reasons.

And even so I think it's almost a given that the NCVS understates the prevalence of crime, because it depends on what respondents are prepared to say when called up.  Would an abused 13-year-old speak freely to the voice on the other end of the line, when the abuser is waiting for his or her own turn on the phone?  Would the battered wife describe the beating she's ashamed to reveal to her best friend, when her husband is sitting at the kitchen table a few feet away?

The NCVS reports that 41.4% of all rapes and sexual assaults are reported to police.  A 2007 national report focused specially on drug-facilitated rape found that only 16% of rapes were reported to law enforcement, and estimated an annual total of over a million, or more than 4 times the NCVS number.

The amnesiac power of certain drugs was vividly illustrated to me by the orthopedist who set my son's broken arm.  Both bones were completely broken - he looked like Elastic Man - but about five minutes after the horrible grinding setting the doc asked him, "Did that hurt?" and Alex said: "No."  The doctor looked at us and said, "It's kind of scary."  More than kind of, although I'm glad he was spared the traumatic memory.

When you start factoring in rapes facilitated with drugs like that, you have to wonder about the accuracy of any estimate that doesn't include pharmaceutical factory output.

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