Judicial Activism Causes Crime

by D. J. Connolly.
 

 

A June 1998 Washington Post editorial concerned a proposed Constitutional Amendment to protect "victims' rights."  The Post's editors were against it.  Liberal newspapers prefer that "We the People" keep our grubby mitts off our Constitution and let judges "evolve" it when it needs amending [1].

The question naturally arises: why should we need a Constitutional Amendment to protect victims' rights?  The U. S. Supreme Court has told us that our Constitution protects murderers, rapists, thieves, and drug peddlers.  How come our founders cared more about criminals than their victims?

The question answers itself; our founders placed no such preference in the Constitution, it originated with Supreme Court policy initiatives during the 1960's and 1970's.  The revolution in criminal law which followed those initiatives caused a great and long-lasting surge in crime rates.  The people were not too happy about all that extra crime, so they complained to their congressmen.

Your average congressmen would never consider blaming the Supreme Court for the consequences of its stealth legislation.  They were all taught to believe that the Constitution is whatever the judges say it is.  Daring to challenge this venerable fraud would get any politician hooted from office by the media; it's a lot safer to pretend that one is trying to fix the problem by amending the Constitution.  So Congress responded to the judicially created crime wave with a lot of posturing about a Victims' Rights Amendment.
 

THE DECLINE AND DEATH OF VICTIMS' RIGHTS

In the 1960's it was fashionable among liberal intellectuals to view criminals as victims and "We the People" as the perpetrators.  The ayatollahs on the Supreme Court like to be in tune with current intellectual fashion.  So the Court, led by Chief Justice Earl Warren, went into the business of protecting criminals from us.  The Court needed a cover story to justify its policy shift, so the justices fabricated a brand new meaning for the Bill of Rights [2].

Our founders had made it perfectly clear that the Bill of Rights did not apply to the states.  It was intended to protect the states and the people from excesses by the federal government.  However, it was the perfect vehicle for the Court to use to protect criminals from us.  So, almost a century after we adopted the 14th Amendment, the Court suddenly discovered that the authors of the Amendment intended it to "incorporate" certain parts of the Bill of Rights against the states.  From time to time, the Court would let us know exactly which parts.  Our judicial branch of government would not have found it convenient for the 14th Amendment to "incorporate" all of the Bill of Rights against the states [3].

The justices used their clever new story line dozens of times in the early sixties.  Between 1960 and 1965 the Court heard 75 cases in which criminals claimed that "We the People" had violated their rights.  It ruled in favor of the crooks 64 of those 75 times.  Let's consider a few examples.  In 1961, in Mapp v. Ohio, the Warren Court rewrote the 170-year-old Fourth Amendment.  When they started, it said that the federal government (all of it including the Supreme Court) was forbidden to conduct or sponsor "unreasonable searches and seizures" of our "persons, houses, papers, and effects."  When the court was finished, the Amendment contained a brand-new "exclusionary rule" for state criminal trials.  No state was allowed to use "tainted" evidence in court.  Tainted evidence turned out to be any evidence that a creative defense lawyer could convince a willing judge was obtained in an "unreasonable" search [4].

You would probably agree that burglars, who break into our houses, rummage around, and steal our stuff, are conducting "unreasonable searches and seizures."  In 1960, just before the Supreme Court invented the exclusionary rule, which clearly obstructed state and local law enforcement, we had about 900,000 burglaries in the United States.  After 1960, the rate started to increase dramatically, reaching about 1.3 million in 1965, 2.2 million in 1970, 3.3 million in 1975 and 3.8 million in 1980.  During the 20 year period between 1960 and 1980, therefore, we had tens of millions of extra burglaries arguably due, at least in part, to fraudulent Supreme Court actions.  Every burglar who escaped punishment because of the exclusionary rule remained free to conduct "unreasonable searches and seizures" under the protection of the U. S. Supreme Court.  It would seem that the Court has been trashing the Fourth Amendment big time [5].

Prior to Mapp v. Ohio, the Supreme Court recognized the obvious; no part of the Constitution mandated the exclusionary rule, especially in state trials.  A few years later, the Court again admitted this.  In Linkletter v. Walker (1965), it ordered that the benefits of the rule would not be available to persons convicted in state trials prior to the Mapp decision.  It admitted, in effect, that Mapp v. Ohio was judicial legislation [4].

The Court said

(Our) purpose (in Mapp v. Ohio) was to deter the lawless action of the police and to effectively enforce the Fourth Amendment. That purpose will not at this late date be served by the wholesale release of the guilty victims.
There was no mention of the need to deter the lawless action of judges who openly trashed the Constitution [4].
 

PRONOUNCED JUDICIAL FANTASIES

Five years after Mapp v. Ohio the Court rewrote the Fifth Amendment which says: "No person . . . shall be compelled . . . to be a witness against himself."  Our founders remembered that English kings routinely used torture to obtain confessions.  So they wrote the Fifth Amendment to make sure the new federal government didn't try this kind of stuff.  In Miranda v. Arizona (1966), the Warren Court proclaimed that the Amendment really means that policemen in the states must take affirmative steps to protect criminals from the consequences of their own stupidity.

Surely you've heard about "Miranda warnings."  Back in the early 1960's, somebody raped a woman in Phoenix and stole her car.  About two weeks later, the police found it parked in front of Ernesto Miranda's home.  Ernesto fit the description of the rapist; he also had a prior arrest for rape and half a dozen arrests for peeking in ladies' windows.  So they put him in a lineup and the victim picked him out.

Ernesto knew the cops had him dead to rights.  So, after an hour or two, he confessed.  There was no coercion; but the Court opined that he had not signed the confession "voluntarily, knowingly, or intelligently."  Nobody claimed that the police had tortured or beaten him.  Ernesto had just done something dumb.  The Warren Court said that was enough to violate its brand new revised Fifth Amendment.   The Court opined that,

the potentiality for compulsion is forcefully apparent, for example, in Miranda, where the indigent Mexican defendant was a seriously disturbed individual with pronounced sexual fantasies, . . . to be sure, the records do not evince overt physical coercion or patent psychological ploys.  The fact remains (the police did not) undertake to afford appropriate safeguards at the outset of the interrogation to insure that the statements were truly the product of free choice [6].
This author does not argue for allowing the police unfettered discretion in questioning suspects.  Policemen, like Supreme Court justices, are public employees and their actions must conform to public policies formulated under our laws.  We never passed laws to insure that a predatory criminal who is a "seriously disturbed individual with pronounced sexual fantasies" is entitled to "safeguards at the outset of the interrogation to insure that the statements were truly the product of free choice."   Maybe it's a good idea to provide such "safeguards" to "seriously disturbed individual(s) with pronounced sexual fantasies," maybe not.  We need to balance concern for such individuals with concern for their victims.  Our Constitution does not speak to that public policy choice, and we never delegated authority to make that choice to our judicial employees.  A law professor named Paul Cassell has estimated that "Miranda warnings" prevent police from solving up to 359,000 crimes each year.  Every unsolved crime keeps a criminal out on the street committing more crimes [7].
 

CRUEL AND UNUSUAL CRIME RATES

The Warren Court started manufacturing fraudulent constitutional rights for criminals about 1960.  By 1968, when Richard Nixon was elected President, criminals were running amok.  This made the voters quite unhappy.  That's partly why they elected Nixon; he had promised to appoint judges who were not soft on crime.  Nixon tried to deliver; but he had to compromise with Democrats in the Senate to get his judges confirmed.  So crime rates remained sky high during his time in office and beyond.

Ronald Reagan did a little better.  By the late 1980's, Reagan had appointed enough Supreme Court justices to move the Court in a different direction.  It quietly trimmed back on some criminal-friendly rules invented by the Warren Court.  It didn't do anything too obvious; it certainly didn't admit that the earlier opinions were fraudulent.   Supreme Court justices put defending the Court's image ahead of any competing value.  So the Reagan appointees just trimmed back as slowly and quietly as they could.  Now let's look at the results of all this judicial inventing, revising, and trimming.

The Warren Court started making up new rules for criminal trials about 1960.  By 1970 it had tipped the odds strongly in favor of the crooks.  One can see this by looking at the data on crime rates.  Between 1960 and 1970, the murder rate almost doubled.  The number of rapes each year more than doubled.  The number of property crimes (burglary, car theft etc.) almost tripled. Crime rates only went up a little bit more during the 1970's and 1980's. The Nixon Court didn't make the crime rate any better, but it didn't make it much worse either. Crime rates peaked about 1994.  That year victims reported about fourteen million serious crimes to the police [5].

In a nation of 280 million people, that's about one crime for every twenty people.  So, in 1994, you had about one chance in twenty of being a victim.  That's about five times as high as your risk of being a victim was back in 1960.  Your risk went up five-fold after a lawless Supreme Court amended our Constitution to protect crooks.

Now lets admit it's unlikely that defective court rulings were the sole cause of the extra crimes; other factors also influenced the crime rates.  Social scientists mention fatherless homes, drugs, failed public schools and TV violence.  They also mention demographics.  In the years in question, we had a big growth in the number of males between the ages of sixteen and twenty-four.  Young males commit most of the crimes.  So the baby boom helped cause the rise in crime rates.

The social scientists have a point.  It's not fair to blame lawless judges for the entire increase in crime rates; one certainly can't blame them for the baby boom.  So it's clear that they don't deserve 100 percent of the blame.  However, federal judges certainly deserve part of the blame; sometimes they even admit it.  Richard Posner, a federal appeals court judge, admitted in a book that he wrote that judges were partly to blame for the increase in crime rates.  But he didn't offer any estimates of how many crimes they actually caused.  So let's take a crack at producing one ourselves [8].

First let's review the relevant facts.  Fraudulent, or at least speculative, Supreme Court opinions contemporaneous with the surge in crime rates not only made it a lot harder to lock up criminals, they also supported many other causes of crime.  They ruined our urban public school systems.  Failed public schools lead directly to an increase in the criminal population.  Fraudulent contemporaneous Court opinions also protected porn.  Sexually explicit porn probably inspires rape and child abuse; you can review some of the evidence for this claim by consulting Catherine MacKinnin's Only Words.  Violent porn promotes violent actions; an April 22, 1999 Article in USA Today reviews the basis of this claim [9].

Taking all those things into account, it seems fair to blame the Supreme Court for at least one-half the increase in crime rates.  Let's see what that implies about the total number of crimes caused by judicial activism.  One can find detailed annual crime-rate data in any almanac; the ones used to for this article are described in the Notes and Citations section.  We'll only look at the twenty years from 1970 to 1990 [5].

During those two decades the murder rate averaged about 20,000 per year, roughly twice what it was in 1960.  But we're only going to blame our judicial branch of government for one-half the increase.  That's about 100,000 murders [5].

The Court also gets credit for one-half the growth in the rape business during those years.  That adds up to about a half-million rapes.  Using the same logic we conclude that the Supreme Court caused about ninety million crimes of all types between 1970 and 1990 [5].

Perhaps you don't agree that the Court deserves credit for 50 per cent of the growth in crime rates that followed closely behind its revolution in Bill-of-Rights interpretation.  You think a much smaller share, perhaps only 10 per cent, is a little more fair.  Fine.  Using your more conservative estimate, we conclude that fraudulent Supreme Court rulings caused only 20,000 murders, 100,000 rapes and eighteen million other crimes.

Whoopee!  That's cause to celebrate!
 

CAUSAL MECHANISMS

Most social scientists would say that we haven't proven a thing.  Fifty per cent, 10 per cent, it's all conjecture.  One needs a more convincing analysis of causal mechanisms to support blaming the Court for any of those crimes.  OK.  Let's discuss some causal mechanisms.

During the 1960's, the cops' rate of success at locking up the perpetrators of serious crimes declined by 34 percent.  As a result, roughly one-third of the criminals who would have been locked up under the old rules, went free under the new rules.  More criminals on the loose means more crime.  That is a no brainer [10].

A group of social scientists wanted to find out what criminals do when they are on the loose; so they went into some prisons and asked them.  A fellow named Steven Levitt published a study, in 1995, that reported what they found out.  The average convict they talked to claimed credit for 141 non-drug-related crimes per year.  The number went way up to 1834 crimes per year if they included drug crimes.  The social scientists didn't believe those numbers.  They thought that some of the convicts exaggerated because their professional pride was on the line.

They wanted to get more reliable numbers.  So they went out and got all the hard evidence they could to supplement the interview responses.  Then they used some high powered statistical methods to massage all the numbers.  When they were finished they concluded that the average criminal, when on the loose, commits about 0.004 murders, 0.05 rapes, and 15 miscellaneous other crimes per year [11].

According to a fellow named Charles Murray, writing in the Wall Street Journal, the number of crooks in jail increased by about 1.5 million during the 1980's and 1990's.  The states had build a lot of new prisons and federal judges appointed by Ronald Reagan had quietly trimmed back some of the Warren Court's more damaging rules.  You can read about the trimming in the book by Lazarus.  Crime rates naturally fell as the number of crooks in prison increased.  Liberal newspapers said that was a disgrace; since crime rates were falling, prison populations should be falling too.  The liberals never mentioned the obvious.  Crime rates had been falling because prison populations were rising [12].

Three paragraphs back we learned that, on average, each criminal on the loose commits 0.004 murders, 0.05 rapes, and 15 miscellaneous other crimes per year.  Keeping that extra 1.5 million crooks in jail, therefore, avoided 6000 murders, 75,000 rapes, and 22,500,000 crimes of all types each year.  The increase in the jail population alone can explain all the drop in crime rates in the late 1990's.  That seems to remove any lingering doubt that the Supreme Court caused the crime wave of the 1970's and 1980's.

Just in case one still has lingering doubts, let's discuss deterrence.  In 2001, an economics professor named H. Naci Mocan and a graduate student named R. Kaj Gittings published the results of a study examining the deterrence effect of the death penalty.  Mocan and Gittings analyzed Justice Department records concerning all 6,143 death sentences handed out between 1977 and 1997 in the United States.  Only 432 (about seven percent) of the 6,143 death sentences were actually carried out during the two-decade period studied [13].

The two economists used state-of-the-art statistical techniques to examine the effects of the 432 executions on the murder rates in the states which carried them out.  They controlled, as statisticians say, for the effects of unemployment rate, percentage of residents who live in large cities, percentage of young adults in the population, per capita alcohol consumption, racial composition of the population, and indices of poverty like income and infant mortality rate.  In layman's terms, Mocan and Gittings separated out, from all these other factors, the deterrence effect of the 432 executions on the murder rate in the states which carried them out.  They concluded that, on average, each of the 432 executions prevented about 5.5 murders.

The Mocan-Gittings study provides dramatic evidence to support the intuitively obvious fact that punishment deters crime.  So it also supports the obvious fact that punishment denied or delayed by fraudulent judicial rulings causes extra crimes.  Our judicial employees who made the fraudulent rulings, therefore, are responsible for the extra crimes just as surely as if they had driven the getaway car [14].
 

DUE PROCESS OF LAW

You would probably agree that most crime victims are "deprived of life, liberty, or property, without due process of law."  If an employee of the federal government abets a crime, therefore, he's violating the Fifth Amendment.  Since our judicial employees abetted millions of crimes, they've got a lot to answer for.

The 14th Amendment applies the same "due process" mandate to the states.  It would seem, therefore, that any state judge or prosecutor who honors a fraudulent Supreme Court precedent, resulting in somebody new being victimized by an unpunished thug, is violating the 14th Amendment.  We've got a lot of criminals walking around in $500 suits.

 

NOTES & CITATIONS

1.  See "Rights of Crime Victims," Washington Post, June 29, 1998; Page A14.  See also the online essay, Our Evolving Constitution.

2.  See, for example, Lusky (1993), pages 129-130.  See also the essay, "The Constitution and Fundamental Rights" by Lino A. Graglia, in Licht, Ed., 1992 (Check the Bibliography).  For an argument that the "ayatollahs" on the Supreme Court are defying the First Amendment by running a national religion see the online essay, Edicts of the Secular Papacy.

3.  Many years earlier the Court had found it convenient for the 14th Amendment to "incorporate" a completely different "Bill of Rights" against the states.  See the online essay, Evolution of a Scam.

4.  See Levinson, 1964, pages 157-58.  Mapp V. Ohio can be found on the Internet.  See also the 1949 Supreme Court opinion in Wolf v. Colorado.   A transcript of Linkletter v. Walker can also be found on the Internet .  You probably recall that the Constitution emphatically denied "legislative Powers" to our judicial branch of government.  See Article I, Section 1.

5.  Crime rate data between 1960 and 1970 were taken from The American Almanac, 1973, page 143.  Data for later years, through 1994, are from The Universal Almanac, 1997, pages 285-288.

6.  The Miranda opinion can be found on the Internet at http://www.tourolaw.edu/patch/Miranda/.  It's also discussed in Pollack, pages 267-268, and Cray, pages 457-61.

7.  See "Handcuffing the Cops? A Thirty-Year Perspective on Miranda’s Harmful Effects on Law Enforcement," by Paul G. Cassell and Richard Fowles.  As of this writing, the article could be found on the Internet at http://www.law.utah.edu/faculty/websites/cassellp/STANFIN.html

8.  The admission of judicial blame for higher crime rates was in Posner, 1996, page 386.  For title and publisher check the Bibliography.

9.  For an argument that federal judges ruined our urban public schools, see the online essay, Twenty-Million Ruined Educations.  Fraudulent obscenity rulings are discussed in Our Secular Papacy and Sacred Porn.  Publication data on MacKinnon's book is given in the Bibliography.  See also "TV Violence Stalks Streets of Littleton - And Your Town" by Philip Meyer, USA Today, April 22, 1999.

10. Data on the drop in crime solution rates, during the 1960's, was taken from The New York Times Encyclopedic Almanac, 1971, page 275.

11. The data on how many crimes are avoided by keeping crooks in jail were taken from Levitt, mainly pages 2 and 23.  Check the Bibliography.

12. The rising prison population was described in The Cleveland Plain Dealer, January 19, 1998, page 8-A and a Wall Street Journal article, "And Now for the Bad News," by Charles Murray, Feb. 2, 1999, page A22. See also the first half of Edward Lazarus's, Closed Chambers.

13. See "Pardons, Executions and Homicide," by H. Naci Mocan, R. Kaj Gittings, National Bureau of Economics Research Working Paper No. w8639, December 2001.  The paper was reviewed in a January 20, 2002 article in the Washington Post by Richard Morin.

14. See the online essays, A Pattern of Racketeering Activity and Cruel, But Not Unusual, Judicial Mischief.

 

For publication data on works cited, check the Bibliography
 

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This article is excerpted from materials in the book, Grand Larceny: An Unexpurgated History of the Supreme Court.

 

All Rights Reserved
D. J. Connolly