Criminal Violence, Criminal Justice, by Charles E. Silberman
Criminal Violence, Criminal Justice.
by Charles E. Silberman.
Random House. 540 pp. $15.00.
Charles Silberman sets out in this book to revive belief in the proposition that the only correct policy for government to adopt in dealing with crime is to attack its root causes. Unlike liberals of the early 1960’s, he does not deny that criminal violence is an ugly, massive reality, nor does he argue that what we know of crime is hopelessly distorted by bad statistics or official prejudice. On the contrary: he paints a vivid and, on the whole, accurate picture of big-city crime, combining useful data, scholarly observations, and personal vignettes. In short, he does not fall into the trap of some intellectuals: denying with words what is confirmed by the facts of everyday life. Because of this, however, he is required to make a bold assertion—that even though we face a serious (and in some communities, catastrophic) crime problem, we should not ask or expect the criminal-justice system to do much about it.
In the first part of his book, Silberman tells us once again that crime is a serious problem. Though he covers familiar ground, he covers it carefully and, to his credit, he does not duck the delicate question of the relationship between crime and race. As he notes, it is virtually impossible to speak honestly about this without giving offense to either blacks or whites, or more likely, both. Blacks commit a disproportionate share of violent crimes; this fact cannot be denied by attacking the motives of those who cite it or explained away by claiming that blacks commit more crimes because they are poorer than whites. (Blacks and Hispanics in our large cities have about the same income levels, but the rate of violent crime among the former is three to five times as great as among the latter.) Silberman’s explanation, which is controversial, is that blacks learned violence from having violence practiced on them. If any group is kept in subjugation by the use of physical force and public humiliation, members of that group will understandably come to believe that force and humiliation should be used to manage their own affairs and, when circumstances permit, their relations with other groups.
In the second part of the book, Silberman attempts to show that, given the impact of racism, poverty, and community disorganization in promoting crime, we can expect little reduction in crime from changes in the criminal-justice system. “We simply do not know enough,” he writes, to be confident that increased levels of punishment will reduce crime; “the police simply do not know what to do to reduce crime”; there is no point in trying to change the behavior of judges because the adult court system is already producing results that are “rational and just.” Only two major changes in the system need be made, according to Silberman—reform the juvenile-justice system so as to reduce the number of young people who are locked up, and reform the adult correctional system so as to meliorate its brutality and violence.
It is an astonishing defense of the status quo, all the more so when one realizes that, given his perspective, Silberman could have as easily come to the same conclusion no matter how small, ineffective, understaffed, or unjust the existing police and court organizations might be. Though he acknowledges that the total absence of a police force would probably make crime go up, he offers no reason for believing that anything more than the barest minimum of coercive authority would be of any value.
There is an important sense in which such skepticism is warranted. The great differences between American and, say, Japanese crime rates are not the result of any significant differences between law-enforcement systems; nor are there many scholars who believe that any dramatic reductions in crime are likely to follow from the adoption of even the best-designed legal or organizational changes. What is at issue, however, is not whether large gains in public safety can be quickly achieved by institutional arrangements, but from which program the commitment of a given level of resources is likely to elicit the most benefit. In a given community, will $1 million purchase more safety if spent on income redistribution, school construction, psychiatric clinics, police anti-crime squads, faster prosecution of cases, stricter sentencing guidelines, or alternative correctional programs?
By resolutely subjecting every crime-reduction strategy that involves law enforcement to the most searching and skeptical criticism, Silberman is able to create the impression that nothing works and that those who suppose otherwise are either gadget-loving manipulators or oppression-loving ideologues. To the extent that he succeeds in this demolition, Silberman relieves himself of the necessity of showing that his favored programs—community-development projects—have any value, for if law enforcement (as he puts it) “is not the answer,” then attacking root causes must be.
In short, Silberman applies a double standard: a rigorous one for any proposal that involves the use of sanctions, a lenient—indeed, nonexistent—one for any proposal that involves “community development.” Consider his treatment of the studies of whether sanctions other than capital punishment deter crime. There are more than two dozen studies on this matter, the great majority of which suggest that as the probability (or certainty) of punishment for a given crime goes up in a city, county, or state, the rate at which that crime is committed goes down. There are a number of methodological difficulties with these studies, and one should not conclude that they prove that more-certain penalties cause crime to go down. But they are almost all consistent with that view, and with common sense. Silberman acknowledges the existence of these studies, but then quickly changes the subject to that of the death penalty, pointing out (rightly) that there is no consistent body of evidence showing that executions deter murders. He then returns to the subject of the deterrent effect of ordinary criminal penalties, saying that “we simply do not know” whether the increased certainty of punishment will have “any effect at all.” With a turn of a phrase, he ignores or dismisses an extraordinary amount of the most painstaking research.
Compare this with his treatment of community-development projects. They are wonderful. Silberman has no evidence for this save the testimony of his own observations, but those observations are enough to convince him that serious crime has been “cut by more than 50 per cent” in one area of St. Louis and that equally dramatic changes have been wrought in parts of Puerto Rico, Brooklyn, and Palo Alto. He may be right; I hope he is; but there is no way to tell. Suppose a police chief had written a book claiming that by the use of aggressive patrolling techniques, decoy squads, and swift prosecution of career criminals his city had managed to cut serious crime by more than 50 per cent. Silberman’s scorn can easily be imagined as he pointed out the lack of data, the poor methodology, the self-serving motives, and the ideological biases that make such a claim suspect. And his criticisms might well be appropriate. Unfortunately, he does not even notice how telling such criticisms are when applied to the conclusions of Criminal Violence, Criminal Justice.
To many readers, the most curious part of Silberman’s effort to discredit the view that any change in law enforcement, except lessened brutality, can have a desirable effect will be his attack on the widely-shared belief that the sentences given convicted offenders are unduly disparate. He simply denies that there is much disparity in sentencing (after confessing that he once believed this error). His principal source of evidence for this is the study by Leslie Wilkins and Don Gottfredson of sentencing decisions in Denver and Vermont, in which, he claims, they found that “80 to 85 per cent of the sentences could be predicted, given a small core of information about the nature and seriousness of the offense and of the offender’s prior record.”
I have before me that study, and it shows no such thing. In the first place, most of the analysis is devoted to explaining the grounds on which judges decide to sentence persons to prison without regard to length of sentence. Such “in” or “out” decisions can, indeed, be predicted rather reliably by knowing just a few key facts, but that hardly shows that a disparity does not exist. Silberman’s claim is like saying that we do not have an unequal distribution of income in this country because we can predict which people are above and which below the median income. The Wilkins-Gottfredson study (which, by the way, I think is an excellent start on the task of generating sentencing guidelines that will reduce disparities) does take into account in some tables the length of the maximum sentence imposed, but since convicts can serve quite various amounts of time up to the maximum, the analysis does not show that judges, left to their own devices, give comparable penalties for comparable offenses and offenders.
Other studies demonstrate what prosecutors and defense attorneys have always known—the identity of the judge makes a large difference. In Los Angeles, for example, the toughest superior court judge, according to a RAND study, sends 57 per cent of the convicted robbers to prison whereas the most lenient sends but 7 per cent.
What is curious about all this is why Silberman should go to such great lengths to deny the obvious, especially since he no doubt believes that equals should be treated equally and that personal whim should not influence human lives and futures. What could be more praiseworthy than to reduce or eliminate injustice? The answer, I conjecture, is this: Silberman fears that any effort to reduce sentence disparities will lead to sentencing laws and guidelines that are more punitive than those we now have. He does not want to run that risk, even for the sake of justice.
Silberman portrays himself as a centrist humanitarian, talking sense between the liberals who deny the reality of crime and the reactionaries who want to jail or hang everybody without regard to the communal disorganization that breeds crime. It is a false dichotomy, and hence the centrist position he stakes out is a spurious one. There may have once been arguments of the sort he supposes and there remain, to be sure, some zanies of the Left and the Right who take extreme positions. But almost everybody else has come to share a broad consensus that certain aspects of both the social milieu and the criminal-justice system must be improved simultaneously. The debate is over which aspects and at what cost.
To make it appear that proponents of improving the effectiveness of the criminal-justice system are enemies of social progress, Silberman misrepresents their views. I wish I could make this point impersonally, but I cannot, since he has cast me in the role of arch-villain. I supposedly “deride” the notion that there is any connection between poverty and crime, oppose efforts to reduce poverty, and believe that slum dwellers have always “preferred their dissolute and crime-ridden way of life.” (Later on, I am portrayed as an architect of, and flack for, the “Nixon program” of law enforcement.)
The whole attack would be preposterous were it not for the insight it gives into how Silberman’s mind works. He wants to discredit any hopes for crime reduction as a consequence of a better criminal-justice system; to do this, he needs to show that advocates of such improvement are enemies of the people; and to do that, he needs some straw men. What I and many other analysts of crime have been saying is quite different: government programs to reduce crime by eliminating its ultimate causes are not likely to be successful because such causes are deeply embedded in the cultural system, family structures, and the historical legacy of habitual violence (among whites, among blacks, and between whites and blacks). But government can probably make some modest but significant improvements in public safety by assuming that would-be offenders are rational and will respond to the competing benefits of legitimate and illegitimate opportunities. One of the reasons crime rose is that we allowed youthful unemployment to rise at the very time that the penalties for youthful crime were falling. We ought to reverse this pattern by “simultaneously decreasing teenage unemployment and increasing the risks of youthful crime” (Thinking About Crime, p. 178). Moreover, “reducing poverty and breaking up the ghettos are desirable policies in their own right, whatever their effects on crime” (ibid., p. 203).
Above all, we ought to try to learn what works and in the process abandon our preconceptions about what ought to work. Over the last five or ten years, enormous gains have been made in devising and testing alternative ways of using the police and of managing prosecutorial offices. We need to bring the same frankly experimental cast of mind to the task of operating manpower programs, running community-development projects, and designing new and less brutalizing correctional strategies. We are only at the beginning of any real knowledge about how best to improve the conditions of life. Were that knowledge available, it would probably tell us that many different changes—in law enforcement and in economic and social opportunities—can, if taken in combination, produce some modest gains in public safety but no transformation of human nature. What we should not do is make, as Silberman does in the very last line of his book, the emotionally appealing but intellectually empty claim that “the question is no longer what to do, but whether we have the will to do it.”