Crime and Consequences
Copyright 1989 by Robert James Bidinotto. Mr. Bidinotto, who has written several articles for The Freeman, is a full-time writer and lecturer specializing in political and cultural topics.
Summary of Part I: The exploding crime rate of recent decades coincided, ironically, with (1) massive growth in government programs, intended to eradicate alleged “causes” of crime, and (2) sweeping changes in the criminal justice and corrections systems, intended to supplant punishment with inmate “rehabilitation.” These supposed “reforms” actually increased incentives for criminal irresponsibility. The result: more crimes than ever go unpunished.
The reforms were implemented by an “Excuse-Making Industry” of social scientists. Their deterministic theories “explained” criminality by blaming it on social, psychological, and biological forces that they claimed were outside the criminal’s control. It was shown that criminal acts are based on free-will choices of individuals: the criminal is both morally and legally responsible. But this is not the premise upon which today’s criminal justice system operates.
Part II: The Criminal Justice System
The criminal justice system’s failure to provide justice was inevitable, given the deterministic premises of its modern architects. Criminologists Wilson and Herrnstein explained, “The modern liberal position on criminal justice is rehabilitative, not retributive, because the offender is believed to have been driven to his crimes, rather than to have committed them freely and intentionally.[1]
Some “reformers” have even made their antipathy toward traditional conceptions of justice explicit• Here, two of them express acute discomfort with the classical symbol, Justitia—the familiar courtroom figure, robed and blindfolded, holding her scales and sword:
“Though excellently symbolizing impartial, even-handed, and effective justice generally, Justitia is ill- equipped to meet our current demands from penal sentences . . . . From her left hand she should drop the scales and put in its place the case history, the symbol of the full psychological, sociological, and criminological investigation of the individual criminal. Her right hand will find very little use for a sword in the modern penal system . . . . Around her knees she would be well advised to gather the adolescent social sciences . . . . Finally, it is essential that she remove that anachronistic bandage from her eyes and look about at the developments in society generally . . . .”[2] A new kind of justice—“social justice” or “distributive justice”—was to replace the “anachronis-tic,” Justitian sort. Since men were helpless playthings of circumstances, and since circumstances impinged upon men unequally, it was the moral duty of government to intervene and redress the resulting “injustices.” Government, according to Excuse- Makers such as John Rawls, was not to be society’s impartial umpire, but rather its meddling therapist.
This outlook, largely a legacy of Rousseau’s view of human nature,[3] spawned the redistributionist welfare state. “If you are bright, accomplished, famous, well-off, virtuous—you’re just lucky, you had nothing to do with it, you didn’t deserve any of it. Likewise, if you are stupid, lazy, corrupt, poor, mediocre, even criminal—you can’t help that, either. Therefore, ‘distributive justice’ requires that the government level the playing field.”[4]
It also led logically to “a culture of instinctive ‘sympathy for the devil,’” as one historian put it, “a feeling that criminals in this society are as much victims as victimizers, as much sinned against as sinners—if not more so.”[5]
Hence the Excuse-Maker’s curious double standard toward crime: “sympathy for the devil,” and simultaneous indifference toward crime victims. If no one can help being what he is, then the (usually) “lucky” and “privileged” middle-class crime victim merits only marginal concern. However, the “unlucky” and “under privileged” criminal is a chronic victim of circumstance, and deserves our full sympathy and compassion. The logic of determinism, then, requires an inversion of traditional justice.
This has produced several major social consequences, all mutually reinforcing.
The criminal justice system began supplanting punishment with leniency and “rehabilitation.” As early as 1949, the U.S. Supreme Court stated that retribution was “no longer the dominant objective of the criminal law,” and was to be replaced by “reformation and rehabilitation.”[6] Soon, police were also handcuffed by new court rulings favoring criminal suspects who, even if convicted, were quickly recycled into society. Meanwhile, redistributionist social spending programs abounded, punishing productivity, thrift, honesty, independence, responsibility—while rewarding idleness, profligacy, chiseling, parasitism, irresponsibility.[7] To make matters worse, such programs also diverted badly needed funds from the criminal justice system.
Today’s justice system is an afterthought in governmental spending priorities. According to the American Bar Association, “The entire criminal justice system is starved for resources. Less than 3% of all government spending in the United States went to support all civil and criminal justice activities in fiscal 1985. This compares with 20.8% for social insurance payments, 18.3% for national defense and international relations, and 10.9% for interest on debt. Less than 1% of all government spending went into operation of the Nation’s correctional system (including jails, prisons, probation, and parole).”[8]
Thanks chiefly to the Excuse-Making Industry, police are underfunded and undermanned to face the ever- mounting crime wave; court dockets are flooded with impossible caseloads; jails and prisons are filled to overflowing. This puts pressure on the entire system to incarcerate as few criminals as possible, and to release them as quickly as possible. Thus, the Excuse-Making Industry has undermined the system both morally and practically.
Subverting the Quest for Truth
Since the premise of the Excuse-Makers is that “the criminal is a social victim,” they see Constitutional rights not as a shield to protect the innocent from predators, but as a buffer between a “victimized” criminal class and the “injustice” of punishment. Byzantine procedural formalities, purportedly to guarantee the “rights” of the accused, now take precedence over the quest for simple truth and justice.
Confessions: The Miranda Decision[9]
On June 13, 1966, by a 5-4 decision, the United States Supreme Court rendered its now-famous Miranda v. Arizona decision. Supposedly based on the Fifth Amendment to the U.S. Constitution, which states that “No person . . . shall be compelled in any criminal case to be a witness against himself,” Miranda twisted these simple words beyond recognition.
The Court held that even voluntary, uncoerced confessions by a suspect in police custody would no longer be admissible as evidence, unless the police first warned him that (1) he had the right to remain silent, (2) anything he said might be used against him in court, (3) he had the immediate right to a lawyer, and (4) he could get a free lawyer if he couldn’t afford one. The suspect then had to expressly waive those rights before any questioning could proceed. Should police make the slightest omission or error in this ritual, any evidence they get can be thrown out, and the suspect can “walk.”
In this single decision, four veteran criminals, convicted after voluntarily confessing to separate crimes, had their convictions overturned. The first was a three-time convict who admitted to a robbery after being identified by two victims. The second forged stolen checks from a purse-snatching in which the victim was killed. The third, a veteran bank robber, confessed after being told of his rights, but didn’t explicitly waive them first. The fourth, arrested for kidnapping and rape, was identified by his victim, and later confessed “with full knowledge of my legal rights, understanding that any statement I make may be used against me.” He hadn’t, however, been formally advised of his right to have a lawyer present.
Even though these confessions weren’t “involuntary in traditional terms,” wrote Chief Justice Earl Warren for the majority, “in none of these cases did the officers undertake to aft ford the appropriate safeguards . . . to insure that the statements were truly the product of a free choice.”
By what convoluted reasoning could such voluntary admissions he construed to be coerced? According to the Court’s majority opinion, “In each of the cases, the defendant was thrust into an unfamiliar atmosphere and run through menacing police interrogation procedures. The potentiality for compulsion is force-fully apparent, for example . . . where the indigent Mexican defendant was a seriously disturbed individual with pronounced sexual fantasies [author's note: the man had been judged mentally competent to stand trial], and [where] the defendant was an indigent Los Angeles Negro who had dropped out of school in the sixth grade.” [Emphasis added]
This is the deterministic language of the Excuse-Maker, brimming with thinly veiled editorials about poverty and racism, regarding even a confessed criminal as a helpless pawn of social pressures. (By contrast, the rape victim was coldly described as “the complaining witness.”)
As for the remark about “menacing police interrogation procedures,” the Court admitted that, “To be sure, the records do not evince overt physical coercion or patent psychological ploys.” So, what was coercive? Dissenting Justice Byron White angrily noted,” . . . in the Court’s view in-custody interrogation is inherently coercive . . . . “[Emphasis added] Observe the deterministic premise: we must assume that the suspect had little or no free will, and that his confession was thus involuntary, unless police somehow proved otherwise.
Often a suspect, feeling guilty or anxious, wants to unburden himself. Thanks to Miranda, at that point police are obliged to buck up his flagging courage and nagging conscience with repeated reassurances about his right not to cooperate, Justice John Harlan, another Miranda dissenter, protested that “the thrust of the new rules is to negate all pressures, to reinforce the nervous or ignorant suspect, and ultimately to discourage any confession at all. The aim, in short, is toward ‘voluntariness’ in a utopian sense . . . . One is entitled to feel astonished that the Constitution can be read to produce this result.”
Furthermore—as the Court noted in subsequent cases—Miranda not only prohibited direct questioning without the suspect’s prior permission, but also banned even indirect comments between police officers in his presence which were “reasonably likely to elicit an incriminating response.” Any oblique police “appeal to . . . ‘decency and honor’” in the suspect, charged Justice Thurgood Marshall, was “a classic interrogation technique.” This is a perfectly logical outgrowth of the determinist premise. Since the suspect is presumed to be powerless in the face of his emotions, any appeal to these omnipotent emotions is itself “coercive.” Thus, the Excuse-Makers construe the Constitution as protecting a criminal even from his own guilty conscience.
Miranda dissenter Justice White warned at the time, “In some unknown number of cases, the Court’s rule will return a killer, a rapist or other criminal to the streets . . . to repeat his crime whenever it pleases him.” That, of course, is precisely what has happened.
In late 1968, the suspected murderer of a missing ten-year-old girl was warned five separate times of his Miranda rights, and remained silent. Later, on a drive with the police, one of-ricer remarked that the girl’s parents would be relieved if they could find her body, and give her a “good Christian burial.” The suspect, feeling guilty, then offered to lead them to the child’s body, and was later convicted of murder. But the Supreme Court—again by a slim 5-4 vote—ruled that the policeman’s statement amounted to unwanted interrogation, and that the case had to be retried. (Thanks to this ruling, the case was not resolved for over 15 years.)[10]
In California, a man beat a college co-ed to death. Read his Miranda fights, including his right to have a lawyer present, he waived them all and confessed. Yet a California appeals court threw out his conviction, because when arrested he hadn’t been allowed to consult his mother.[11]
In Pennsylvania, a man who admitted clubbing to death his mother, sister, and grandmother was set free, because the arresting officer told him that anything he said could be used “for or against” him. The court ruled that the word “for” made the confession inadmissible.[12]
In Texas, a girl was shot dead after agreeing to testify in a drug case. The suspect refused a lawyer, but was assigned one anyway. Read his Miranda rights, he again refused a lawyer. He chose to plea bargain, signed a detailed confession, and took police to the murder site. Despite this, a judge, citing Supreme Court decisions, threw out his confession—because no lawyer had been present.[13]
The cost of such procedural utopianism is incalculable: it lies not just in convictions dismissed and overturned, but in confessions never made. Forty percent of murder convictions depend upon voluntary confessions by the perpetrator.[14] It is crucial, then, that police be allowed to ask questions without first begging the suspect’s permission and encouraging his resistance. Yet Miranda equates “questions” with “coercion.”
A reconstituted Supreme Court returned partly to its senses in 1984. Its Quarles decision exempted police from having to give Miranda warnings in situations where there was an immediate danger to the public, and found that confessions obtained under such circumstances could stand in court.[15] But Miranda itself remains, an infamous legal legacy of the Excuse-Making Industry, and a major impediment to the pursuit of truth.
Evidence: Exclusionary Rules
Not only may confessions be excluded from criminal proceedings: so may any other sort of evidence.
The Fourth Amendment requires that only on “probable cause” may search warrants be issued, specifying the place to be searched, and the evidence sought. However, until 1914, even evidence illegally seized could be used in a criminal trial. That year, the Supreme Court ruled otherwise, and in 1961 (Mapp v. Ohio) extended the Federal exclusionary rule to the states.[16]
The consequences have been appalling. The Bureau of Justice Statistics and National Institute of Justice estimated in 1983 that up to 55,000 serious criminal cases are dropped annually, thanks to the exclusionary rule. These released criminals are free to prey on innocents again: half of those set loose on exclusionary-rule grounds have been rearrested within two years.[17]
In 1964, a 14-year-old girl was brutally murdered in New Hampshire. Finding the bullet had come from a rifle of the prime suspect, police went to the state attorney general who, under then-existing law, was authorized to issue search warrants. With this warrant, they found further incriminating evidence, and the suspect was tried and convicted. Seven years later, however, the U.S. Supreme Court reversed his conviction, on grounds that the attorney general, as a prosecutor, was not a neutral judicial party. Since his search warrant was invalid, the incriminating evidence from the search had to be thrown out, too. Here, police “erred” due to good-faith obedience to existing law; but—as Supreme Court Justice Benjamin Cardozo had once noted—“The criminal is to go free because the constable has blundered.”[18]
As in the case of Miranda confessions, the Supreme Court, in 1984, finally allowed some “good-faith” exceptions to search-and-seizure exclusionary rules. But that did not prevent it from allowing the guilty to escape in other cases.
A bullet fired through the floor of a squalid Phoenix apartment struck a man below. Entering the suspect’s apartment, investigating officers found three weapons, a stocking mask, and two sets of expensive stereo equipment. Common sense warranted suspicion, and an officer lifted a turntable to get the serial number. Routine checking confirmed that these were, indeed, stolen items, and they were seized as evidence.
However, Arizona courts ruled that, though police had the right to enter when responding to the shooting, they did not have the right to seize the stereos, since these were unrelated to the gunfire. Had their serial numbers been in plain view, the evidence would have been admissible; but touching them violated the suspect’s Fourth Amendment rights. In 1987, the Supreme Court upheld this decision by a 6-3 vote.[19]
Justice Hugo Black once wrote that such decisions seemed “calculated to make many good people believe our Court actually enjoys frustrating justice by unnecessarily turning professional criminals loose to prey upon society with impunity.” He had a point.[20] After all, the purpose of the courts is to determine truth and administer justice. That can’t happen if facts —however obtained—are selectively excluded from fact-finding proceedings. Yet because the Excuse-Making Industry regards those “driv-en” to crime as victims, matters of truth and justice are subordinated to a complex procedural etiquette whose alleged purpose is to “level the playing field.” The substantive ends of the justice system must be sacrificed to new procedural means —means to a new egalitarian end.
In this light, exclusionary rules and the Miranda decision may be viewed as having the same purpose as “affirmative action” rules: to tip the balance scales of “social justice” on behalf of a class of presumed social victims. And, if the facts of a given case interfere with that agenda, every effort must be made to exclude them from the courtroom.
Subverting the Quest for Justice
Bail and Release on Recognizance
At his arrest or his initial appearance on charges, a suspect may be released on his own recognizance or on bail (assuming charges aren’t dismissed outright), In many jurisdictions, a judge can deny bail if a suspect has a criminal record, or seems to pose a danger to the community. In the rest, he can hold the suspect without bail only if there is substantial doubt he’ll return for trial. But due to overcrowded cells—and the protests of Excuse- Making “civil liberties” attorneys—many judges try to minimize the number of criminals held for trial in jail. This often means absurdly dangerous leniency.
Consider a typical case, that of career criminal Philip J. DiCarlo. Wanted on numerous felony warrants in Massachusetts, he was arrested on separate charges in Florida, but freed on only $2,626 bail. He finally surrendered to Massachusetts authorities. In exchange for a guilty plea, DiCarlo bargained 15 felony burglary charges clown to only 8 counts, and got a sentence allowing parole eligibility after only two years. Despite being warned of the man’s 20-year adult criminal record, the judge then postponed the imposition of the sentence, and freed DiCarlo on his own recognizance so that he could be with his family for the holidays. Showing more common sense than the judge, DiCarlo promptly skipped town.[21]
Other bail incidents are no laughing matter. Despite convictions for two murders, two armed robberies, and an assault, Jerold Green of Philadelphia was nonetheless released on bail while appealing the second homicide verdict. After losing his appeal, Green didn’t bother reporting to prison. Instead, while being hunted, he committed a third murder.[22]
Or take the case of Steven Judy, imprisoned after three violent crimes involving kidnapping and stabbing during the 1970s. Paroled, he soon committed another robbery—yet was still granted bail. While free, he murdered an Indiana woman and her three children.[23]
Such incidents aren’t rare. The U.S. Justice Department reports thirty-five percent of those with serious criminal records, and who are freed on bail, either violate their release conditions, fail to reappear for trial, or are arrested for new crimes during the bail period. And this statistic includes only known violations.[24]
Excuse-Making “civil libertarians” argue that the rights of suspects to be freed on bail may he denied based only on “speculation” about their criminal tendencies.[25] But as the examples and statistics show, the danger of releasing career criminals is no matter of mere speculation. Career felons should never be released on recognizance, or bail. Bail is not a fundamental human right, or an end in itself: it’s a means to an end. Like the right to vote, it’s only a contextual, procedural right, whose purpose is to secure the substantive rights of life, liberty, and property.
Everything said about excluding evidence and confessions applies equally here. To defend bail for proven predators as some fundamental right is to subordinate the system’s ends to its means. Judging a man by his past record is both wise and just; and a chronic criminal can claim no “right” to be judged otherwise. This point, however, is lost on those who hold the deterministic, “criminal-as-vic-tim” premise.
Plea Bargaining
In Nevada, a man killed his girlfriend by forcing a large quantity of bourbon down her throat. A good case could have been made for premeditated murder, or at least second-de-gree homicide. But, in a plea bargain deal, the court allowed the defendant to plead guilty to a reduced charge of involuntary manslaughter. In exchange, he received a mere three-year sentence, and was released after only 22 months.[26]
In a 1981 courtroom deal, a Massachusetts man pied guilty to a charge of raping a female jogger. In return, he was sentenced to 10 years at Concord Reformatory, a sentence which meant a minimum of only one year to be actually served. But by the terms of his plea bargain arrangement, he spent only three days in jail before being transferred to a halfway house. That surely taught him an encouraging lesson about the justice system. In 1984, he was arrested for burglary and another rape—and became the prime suspect in seven other attacks on women.[27]
Or consider the young Wisconsin man who confessed to three armed robberies of savings and loan companies. A plea bargain deal placed this dangerous, repeat felon on probation for his full sentence, sending him instead to a “work release” program at the Milwaukee House of Correction. While serving this “sentence,” he was driven around town by social workers, allegedly to find a job. Instead, he brazenly robbed two more savings and loan branches. Four days after being released from the program, he robbed yet another.[28]
These are but a few examples of the thousands of sentencing outrages occurring daily throughout the nation. If a criminal is finally arrested after a string of offenses, and if the prosecutor decides to accept the case, and if police evidence isn’t thrown out on “exclusionary rule” grounds—then the criminal’s next way to evade justice is to “cop a plea.” Today, 80 to 90 percent of all convictions stem from pre-trial guilty pleas, invariably to reduced charges, negotiated between prosecutors and defense attorneys, and rubber-stamped by judges.[29]
Such cynical maneuvers allow criminals to evade the full penalties of their crimes by receiving reduced punishment or probation; permit lazy prosecutors to enhance their political careers by boasting of high “conviction rates”; let defense attorneys quickly handle a large number of clients (and collect a large number of fees) without ever having to prepare for trial; and (allegedly) help harried judges quickly clear clogged court calendars and jammed jails. It’s the triumph of expediency over justice. Everyone leaves the courtroom smiling- -except for the crime victims, who, ignored in the proceedings, look on in shocked disbelief and rage, realizing that they have just been mugged again.[30]
As Wisconsin Circuit Court Judge Ralph Adam Fine observes, plea bargaining is essentially a bribe to the defendant, a “payoff for a guilty plea,”[31] to entice him not to bother everyone with a trial. As a reward, a rape charge may be reduced (usually without the victim’s knowledge or consent) to mere “assault and battery”; and multiple crimes (say, breaking-and-entering, assault, and robbery) may be combined into a single charge (e.g.,”assault”). Once the deceit starts, there’s no end to it—as in the routine courtroom trick called “swallowing the gun,” i.e., reducing an armed-robbery charge to unarmed robbery, by simply ignoring the use of a gun in the crime.[32] Finally, even the sentences meted out for the remaining reduced charges are usually softened. Multiple sentences often are allowed to be served concurrently, rather than consecutively, letting the criminal pay only once for several offenses; or, with the complicity of a prosecutor, a “first offender” (i.e., one whose carefully edited record is presented to seem innocuous) may “walk” on a suspended sentence and probation.
The flip side is that the defendant is often made to understand that, should he plead innocent and lose in court, the prosecutor and judge will punish him with harsher sentences than he would have gotten if he had “gone along.” In this way, even innocent people are sometimes bullied into a guilty plea, and are denied their day in court.
Plea bargaining falsities the defendant’s true criminal record. In the case of the innocent defendant, it gives him the taint of a conviction he doesn’t deserve. In the (far more usual) case of a guilty defendant, it makes him look less menacing than he really is, and more worthy of further “breaks” from the next judge he sees.
This, of course, is a clear incentive to criminality. “Should we be surprised,” asked former Chief Justice Warren E. Burger, “if the word gets around . . . that you can commit two or three crimes for the price of only one?”[33] The U.S. National Advisory Commission on Criminal Justice Standards and Goals concluded in 1973 that “plea bargaining results in leniency that reduces the deterrent impact of the law.” Today, it’s also a ruse by which judges and lawyers skirt the tough sentencing requirements of new mandatory sentencing laws for repeat offenders. Prosecutors don’t bother telling the judge about a repeat offender’s prior record, and the judge doesn’t ask. Or, charges are simply reduced in advance, to compensate for the harsher penalties mandated by the actual offense.[34]
In 1971, the U.S. Supreme Court put its imprimatur on this cynical practice, calling plea bargaining “an essential component of the administration of justice . . . . If every criminal charge were subjected to a full-scale trial, the States and the Federal Government would need to multiply by many times the number of judges and court facilities.” The practice, echoes the American Bar Association, “saves time and conserves resources which can be applied to other pending cases.”[35]
But that is nonsense. In 1975, the state of Alaska’s attorney general ordered an end to all plea bargaining. Other jurisdictions, such as New Orleans and Pontiac, Michigan, have also rejected it. They all found that there was no sudden tidal wave of “not guilty” pleas, requiring a trial and swamping the system. In fact, as the National Institute of Justice discovered in a 1.980 investigation of the Alaska experiment, “Guilty pleas continued to flow in at nearly undiminished rates. Most defendants pied guilty even when the state offered them nothing in exchange for their cooperation.” Contrary to expectations, cases were actually processed more rapidly in each major jurisdiction, and sentences were more severe. As one prosecutor put it, “I was spending probably one third of my time arguing with defense attorneys. Now we have a smarter use of our time.”[36]
The key was for prosecutors to screen cases carefully before defendants were charged. Faced with air-tight cases against them, guilty defendants simply threw in the towel and pled guilty, anyway. In addition, ending plea bargaining put responsibility back into every level of the system: police did better investigating; prosecutors and lawyers began preparing their cases better; lazy judges were compelled to spend more time in court and control their calendars more efficiently. Most importantly, justice was served and criminals began to realize that they could not continue their arrogant manipulation of a paper-tiger court system.
Tough prosecution and sentencing does not clog the court system: it deters crime from occurring in the first place. Since repeat offenders commit most of the crime, careful case screening and “no-deals” prosecution tend to incapacitate a greater percentage of this group for longer periods—and thus actually reduce caseloads in the long run.
That’s the practical side. But more basic is the moral issue: Should the victims of these criminals expect anything less from our system of justice? And should the Excuse-Making Industry be allowed to thwart justice by corrupting the system?
Competency Hearings and Insanity Defenses
The hijacker of a New Orleans bus was found incompetent to stand trial, thanks to psychiatric testimony. Instead of incarceration, he was released. Fifteen months later, he was back in court—for dismembering his roommate.
A former Connecticut policeman killed his wife, but, due to “expert” psychiatric testimony, was acquitted of murder charges on the ground of insanity. He spent only three months under psychiatric treatment. Five years later, he was arrested once more—for killing his second wife.[37]
But for irony worthy of Hitchcock, the tale of serial killer Edward Kemper can’t be topped. After shooting both his grandparents as a teenager, Kemper spent the next four years in a mental hospital. In 1969, he was re turned to the California Youth Authority, whose “experts” disputed the court psychiatrist’s diagnosis and paroled him to his mother. Later, Kemper was examined by two parole psychiatrists, who recommended that his juvenile records be sealed to let him live a “normal” adult life. One of them wrote: “I see no psychiatric reason to consider him to be a danger to himself or any other member of society.” Yet at that very moment, out in their parking lot, in the trunk of Kemper’s car, was the corpse of his third female murder victim that year.
Due to their “expertise,” there would soon be five more.[38]
These cases graphically demonstrate that psychiatry cannot really judge the sanity of criminal defendants, let alone predict their future danger to society. Yet psychiatrists play a major role in the criminal justice system. They testify concerning a defendant’s “state of mind” at the time of his crime; judge whether he can grasp the charges against him and assist in his own legal defense; decide (if he’s committed to a mental hospital) when he’s “cured” and “safe” to return to society. By their “expert” testimony in competency hearings, and in “insanity” and “diminished capacity” defenses, they frequently help dangerous criminals escape the wheels of justice.
Criminals found “insane” spend, on average, far less time in custody than do those sent to prison for the same offenses. In New York from 1965-1976, those acquitted of murder by reason of insanity, and subsequently released from mental hospitals, spent an average of less than a year and a half in custody. (One murderer spent just one day in a hospital.) Similarly, New Jersey murderers found insane were released, on average, in just two years. In Florida, those released from mental hospitals following first-degree murder acquittals spent fewer than three years in psychiatric custody; by contrast, those convicted and sent to prison spent nearly ten years in confinement. Meanwhile, other studies have found that over a third of released criminal patients are rearrested.[39]
Stories of how clever criminals manipulate psychiatrists are legendary. In Two of a Kind —a brilliant, harrowing account of the “Hillside Strangler” case—author Darcy O’Brien shows how cold-blooded serial killer Ken Bianchi fooled three prominent psychiatrists by feigning a “multiple personality” disorder. Had he been successful, he would have been sent to a mental hospital instead of prison, staged a miraculous “recovery,” and soon have been released to prey again on young women. But even after a hypnosis expert proved that Bianchi had faked his hypnosis sessions and multiple personalities, the psychiatrists (though not the judge) remained stubbornly convinced that their “insanity” diagnoses had been correct.[40]
Perhaps the most egregious case is that of Thomas Vanda. In 1971, he murdered a 15-year-old girl, but was found “not guilty by reason of insanity” and sent to a mental institution. Released only nine months later, Vanda was soon arrested for the stabbing death of a 25-year-old woman. While in custody, he wrote another jailed murder suspect, advising him how to fake insanity. Vanda told him to offer bizarre interpretations of the famous Rorschach “inkblot test,” to feign “hearing voices” that “told you to do your crime,” and to “act crazy in front of the staff.” A Chicago psychiatrist had already judged Vanda legally insane for the second murder. Shown Vanda’s letter, he still insisted he had no cause to alter his finding.[41]
After psychiatrist Stanton Samenow and an associate studied dozens of people acquitted under the insanity defense, they concluded that most of them “aren’t crazy at all . . . . They were rational, purposeful and deliberate in what they did. But they were very astute at conning the system, the courts, the psychiatrists and the hospital into believing that they were mentally ill, thereby beating the charge.”[42]
Samenow, who has spent years studying criminals first-hand, also dismisses the idea that even the perpetrators of ghastly crimes operate under an “irresistible impulse” or compulsion. “What is habitual is not necessarily compulsive and beyond one’s control,” he warns. “Behind the appearance of uncontrollable impulse lies the stark reality of the offender’s calculating and proficient method of operating . . . . From my clinical observations, I have concluded that ‘kleptomaniacs’ and ‘pyromaniacs’ are simply people who enjoy stealing or setting fires.” (As another observer put it, a crime may be sickening, but not necessarily “sick.”)[43]
Samenow also cites the example of “Son of Sam” serial killer David Berkowitz. After capture, Berkowitz claimed that demons were talking to him through a dog, and had ordered him to kill. Later, he acknowledged he’d been faking insanity. “There were no real demons, no talking dogs, no satanic henchmen. I made it all up via my wild imagination so as to find some form of justification for my criminal acts against society.”[44]
Several courtroom outrages, however, have prompted a new look at the validity of psychiatric involvement in the legal system. One was the infamous diminished capacity, “Twinkle” defense of Dan White, who shot San Francisco’s mayor and a city superintendent in 1978. Despite abundant evidence of premeditation,[45] the jury accepted psychiatric testimony that (among other excuses) White’s mental control was impaired because of eating junk food. They found him guilty only of involuntary manslaughter. The other major outrage was the murder acquittal of would-be presidential assassin John Hinckley “by reason of insanity.” This led to a reform of Federal law. Before then, prosecutors had to prove the defendant sane; now, the defense must prove him insane.
But even this doesn’t get to the heart of the matter. Psychiatrist Lee Coleman warns that “psychiatrists do not have the tools that society thinks they have. They have no special way of predicting who will commit a criminal act or of determining when a criminal is cured of antisocial tendencies. They have no tests to determine a person’s innermost thoughts, even though the courts assume they do.” He argues that “psychiatry should be stripped of its state- given powers,” by banning psychiatric testimony in legal proceedings, as well as abolishing the “insanity” and “diminished capacity” defenses.[46]
This does not mean that judges and juries would be spared the legal task of determining criminal intent, only that “in determining what, if any, criminal intent was present, and in deciding punishment, [they] need no help from psychiatrists . . . . A decision on intent should be based on the factual evidence surrounding the crime.” A defense attorney would still be free to argue that the defendant was in an impaired mental state during his crime. But evidence would be limited to fact-based testimony of witnesses, citing the defendant’s bizarre or irrational statements and behavior.[47] It would not include fanciful theoretical speculations by Excuse-Making “experts,” using ink blots and word-association “tests” to decipher the alleged impact of junk food or an over-posses-sive mother on the defendant’s presumed mental state.
This is a common-sense approach to putting objectivity and responsibility back into criminal proceedings.
Probation and Parole
Parole is the release of a convict, under periodic supervision, after he has served only a portion of his sentence. Probation is the conditional release of an individual found guilty of a crime, as an alternative to incarceration, also usually under periodic supervision. Both are used routinely, and both are progeny of the Excuse-Making Industry.
As one criminology text puts it: “Parole can be considered as an extension of the rehabilitative (and now, reintegrative) program of the prison . . . . If prisons are, in fact, to be concerned with modifying criminal behavior so that the offender can eventually be reintegrated into society, parole is also supposed to provide the supervision and assistance that makes successful reintegration possible.” [Emphasis in original][48]
A measure of that “success” lies in the dismally high rates of inmate recidivism (i.e., percentages of inmates who commit subsequent crimes after release). A Rand Corporation study found that about half of those sentenced to probation in California were convicted of another crime within three years.[49] And “success rates for probation,” concede its backers, “are generally considerably higher than for parole.”[50] The Bureau of Justice Statistics released a 1985 study showing that 42 percent of inmates arriving at state prisons were on parole or probation for an earlier conviction at their time of arrival. Twenty-eight percent of these would still have been in prison for the earlier offense, had they served out the maximum term to which they were sentenced.[51] This means, of course, that thousands of people were needlessly subjected to robbery, assault, even murder, through the early parole and probation releases of convicted felons.
One example symbolizes them all. Larry Gene Bell had been involved in abnormal sexual incidents since he was a child. In 1975, at age 26, he tried to force a young housewife into his car at knifepoint. Bell plea bargained a deal to avoid prison by undergoing psychiatric treatment. He quit after two visits. Five months later, Bell tried to force a co-ed into his car at gunpoint. A psychiatrist recommended mental hospitalization, but Bell got a five- year prison sentence instead. However, after just 21 months, Bell was released on parole.
Later, on probation, he terrorized a little girl and her mother with obscene phone calls. Result: another plea bargain, and more probation, with orders to see a psychiatrist. He again stopped treatment after a short time. The climax came in 1985, when Bell kidnapped, sexually assaulted, then murdered two young girls. He’s now linked to the case of another missing woman, and suspected in the deaths of three more.[52]
Here we see many tools of the Excuse-Making Industry in action: plea bargaining, psychiatric defenses, early parole, suspended sentences, and probation. And we see the terrible price such policies regularly exact.[53]
The ideological origins of parole and probation are obvious. There are also pragmatic, cynical considerations motivating their proponents.
Probation is the routine sentence for any first offender, often regardless of the severity of the crime. As in the example above, it’s frequently “imposed” even in subsequent offenses. The reason? To free up overcrowded jail and prison cells. In 1985, for example, there were 503,300 state prison inmates and 255,000 Federal prisoners. In the same year, there were 277,400 people out on parole, and a whopping 1,870,100 on probation.[54]
There is an equally cynical reason for pa-role-namely, control of inmates. Parole is the handmaiden of “indeterminate sentencing”—sentences of indefinite length, with only the maximum specified. As the previously cited criminology text notes, the main reason underlying the development of parole in America was “shortened imprisonment as a reward for good conduct.”[55] By holding out the carrot of an early release, and poising the stick of a full sentence over the inmate’s head, prison authorities suppress inmate violence. In short, rather than risk the safety of the guards (and the warden’s job) in prison uprisings, the prison bureaucrats prefer to risk the lives and property of the public with early releases.
Neither parole nor probation are justifiable, practically or morally. They are a demonstrable failure in reducing inmate recidivism. They undermine the deterrent impact of the law on criminals, while demoralizing crime victims with their outrageous leniency. Most important, they jeopardize public safety. Like the “inmate reintegration” programs to be discussed in the next installment, they amount to playing Russian Roulette with innocent human lives.
1. James Q. Wilson and Richard J. Herrnstein, Crime and Human Nature (New York: Simon & Schuster, 1985), p. 505.
2. Norval Morris and Gordon Hawkins, The Honest Politician’s Guide to Crime Control (Chicago: University of Chicago Press, 1970), p. 138.
3. Wilson and Herrnstein, pp. 518-522.
4. Owen Gallagher, “The Only Real Crime is Punishing Criminals,” Conservative Digest, October 1988, p. 19.
5. Arthur Eckstein, “Revenge of the Nerd,” Chronicles, March 1988, p. 31.
6. Ralph Adam Fine, Escape of the Guilty (New York: Doral, Mead & Co,, 1986), p. 247.
7. Robert James Bidinotto, “Paying People Not to Grow,” The Freeman, October 1986-
8. American Bar Association, Criminal Justice in Crisis, November 1988, p. 5.
9. This section draws heavily from Fine, pp. 119-130.
11. “Why the Justice System Fails,” Time, March 23, 1981, p. 23.
12. Patrick J. Buchanan, “Children of the Warren Court,” Washington Inquirer, November 5,1982, p. 4.
13. Eugene H. Methvin, “The Case of Common Sense vs. Miranda,” Reader’s Digest, August 1987, p. 96.
17. Edwin Meese III, “A Rule Excluding Justice,” New York Times, April 15, 1983.
19. James J. Kirkpatrick column, Washington Post, March 24,1987.
21. Middlesex (Ms.) News, January 30,1985, p. 1.
22. “Oar Losing Battle Against Crime,” U.S. News & World Report, October 12,1981, p. 39.
24. Boston Herald and Boston Globe, January 28, 1985.
25. “Impact of Uncle Sam’s New Crime Law,” U.S. News & World Report, October 22,1984, p. 50.
26. Edmund Newton, “Criminals Have All the Rights,” Ladies’ Home Journal, September 1986.
27. Boston Herald, December 6, 1984, p. 5.
29. Criminal Justice in Crisis, p. 38; “Why the Justice System Falls,” Time, March 23, 1981, p. 22; Fine, p. 3.
30. Fine often an excellent summary of the plea bargaining “charade” in chapters 2-5.
32. Time, March 23,1981, p. 22.
33. U.S. News & World Report, October 12,1981, p. 41.
35. Criminal Justice in Crisis, pp. 4041; p. 67, note 80.
37. Preceding examples from “Turned Loose Too Soon?” U.S. News & World Report, June 27, 1983, p, 52.
38. Elliott Leyton, Hunting Humans (New York: Pocket Books, 1986), chapter 2, especially pp. 31 and 57.
39. Lee Coleman, The Reign of Error (Boston: Beacon Press, 1984), pp. 55-56. See also U.S. News & World Report, June 27,1983, pp. 53-54; and Fine, p, 218.
40. Darcy O’Brien, Two of a Kind (New York: New American Library, 1985), pp. 229-280, 350-353.
42. Quoted in People, May 14, 1984, p, 79.
43. Stanton E. Samenow, Inside the Criminal Mind (New York: Times Books, 1984), pp. 124-125.
45. For details see Coleman, pp. 65-70.
46. Ibid., p. x; chapters 3-5.
48. Robert D. Pursley, Introduction to Criminal Justice (New York: MacMillan, 1980), pp. 435-436.
49. “Punishment Outside Prisons,” Newsweek, June 9, 1986, p. 82.
50. Morris and Hawkins, p. 135.
51. New York Times, March 4, 1985.
52. Eugene H. Methvin, “Beauty and the Beast,” Readers Digest, February 1989, pp. 132-138.
53. For other examples of horror stories specifically concerning parole and probation releases, see: MacLean’s, July 18, 1988, esp. pp. 42-43; Fame, March 5, 1984, p. 50;, Redbook, April 1988, pp. 128, 162; U.S. News & World Report, June 27, 1983, p. 52.
54. Bureau of the Census, Statistical Abstract of the United States (1988), p. 176, Table 308.
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