Crime and Punishment in American History - Lawrence M. Friedman [294]
Yet if the new toughness has had any effect on crime rates, it is certainly hard to prove. Clear causal lines run the other way. High crime leads to high-stakes, high-profile politics, which leads to pressure on the law, and on the criminal justice system. The history of the death penalty, which we discussed earlier (see chapter 14), is a dramatic illustration of this point.
The agitation over crime triggered a general attack on every aspect of the criminal justice system that seemed too “soft” on crime. Supreme Court decisions in the days of the Warren Court, which seemed to “coddle” criminals, only fanned the flames of desire. Police expenditures went up; politicians scrambled to find the right reaction to the boiling, bubbling public rage.
Most of these reactions brought only temporary (political) relief, since the crime problem stubbornly refused to go away. In truth, local politicans could not really do much about crime. Crime, as Herbert Jacob, the political scientist, has pointed out, was a problem of the whole society rather than “one that had local roots” yet people tended to treat it as if it were local.31 Conversely, although presidents have routinely thundered against crime and promised to attack it through their office, criminal justice was and is highly local; not much can be done about it on the level of the whole society. Not much, at any rate, that anybody is particularly willing to do.
There is, therefore, a major structural contradiction. The causes of crime, the reach of crime, the reality of crime—all these are national in scale and scope. Criminal justice, on the other hand, is as local as local gets.32 Indeed, the criminal justice “system” is not a system at all. This particular mirror of society is a jigsaw puzzle with a thousand tiny pieces. No one is really in charge. Legislatures make rules; police and detectives carry them out (more or less). Prosecutors prosecute; defense attorneys defend; judges and juries go their own way. So do prison officials. Everybody seems to have veto power over everybody else. Juries can frustrate judges and the police; the police can make nonsense out of the legislature; prison officials can undo the work of judges; prosecutors can ignore the police and the judges. The system is like a leaky garden hose: you can try to turn up the pressure at one end, but more water does not come out at the other. All you get is more water squirting out of the holes.
Not that the system is static. It does, in fact, change; sometimes quite radically. But the changes are not smooth and neatly coordinated, traveling down a chain of command; they simply happen. The system is awkward, loose-joined, messy.33 As a result, “reforms” dissipate into thin air, muscle turns to flab, innovation turns into shipwreck. The causes of these failures “are found at every stage of planned change,” from conception to implementation.34
American criminal justice is organized (if you can call it organized at all) more or less along the lines of what Mirjan Damaska of Yale Law School has called the “coordinate” system. In such a system authority is extremely diffuse; there are many officials, none “clearly superior to others,” and there is “essentially a single stratum of authority.” The systems of continental Europe are more highly organized, more hierarchical,