The wheels of criminal justice grind with legendary slowness in America. Can we make them roll any swifter?
Certainly the spectacular criminal justice reform we accomplished in recent years didn't address the question of speed. It aimed instead at reducing the crime rate, and it succeeded overwhelmingly. By contrast with England, Sweden, and the Netherlands, the U.S. rate of property crime has declined dramatically, and the rate of violent crime has dropped significantly, too—chiefly because, contrary to the advice of some intellectuals, we have embraced the criminal justice system and attempted to use it. Abroad, they often warily reject it. But we have succeeded at a huge price: we have over a million people in state prisons. These institutions work well at deterring misconduct and incapacitating offenders, but they don't change people.
If you want to change the people, speed becomes crucial. Any parent knows that. When raising children, we do not say, "John, because you've been teasing Mary unmercifully at the dinner table, six months from now you're going to be grounded." Nor do we say to Mary, "Because you have been feeding John's homework to the dog, you have a 50-50 chance nine months from now of being grounded." We believe as ordinary human beings that the swift penalty or the swift reward is far more efficacious.
The criminal justice system does not believe in swiftness, and for a very good reason. The U.S. Constitution gives to criminal defendants, as to all of us, the right to a fair trial, the right to counsel, and the power to resist certain forms of interrogation. We wish to ensure that the chances of an innocent person's being punished are minimal. There is no way, therefore, to make the criminal justice system, as it deals with accused offenders, much speedier. We have statutes in many states and at the federal level that induce jurisdictions to bring about speedy trials, but a "speedy trial" ordinarily takes place at least six months after the offense has been committed.
This is an ineffective way to teach the importance of decent standards of behavior to young people. It is an especially fruitless way to teach decent standards of behavior to those young people who are always getting in trouble. Their attention span is approximately 20 minutes: if it were much longer, the police would never catch them, because they would plan their crimes more skillfully. But though the inability of wrongdoers to think far ahead has made police work in this country much easier than it otherwise would be, it also means that our capacity to alter the behavior of such intensely present-orientated persons correspondingly shrinks.
Can we make the criminal justice system swifter without abandoning constitutional protections for the innocent party? We can, if we realize that a large fraction of the criminal population is, at any given time, free in the community but directly subject to the authority of the state. Three-fourths of all persons who have been convicted of a crime are in the community on probation or parole, and they are therefore subject to community supervision. All children who are required to attend school are in the community under another kind of state supervision. If we can reach these people more effectively, then we can make the presence of the law-abiding adult world more real to them. And we can do so without recourse to trials, prisons, and all the time-consuming procedures that appropriately accompany them.
Let me mention half a dozen ways we can do this. First, Night Lights, a project in Boston, assigns probation officers to ride around in police patrol cars at night. In this way, probation officers actively go out and check up on people on probation instead of waiting in their offices until somebody on probation calls to say that all is going well.
It doesn't take many probation officers to do this: in Boston, only three or four a night. But by driving around in police cars and by being equipped with the special powers that probation officers have because they are dealing with people already adjudicated by the criminal justice system, they can enter spaces and ask questions that police officers ordinarily cannot.
The effect of Night Lights has been to make probationers realize that the eyes of the community are steadily upon them. At any given moment, a probation officer may appear. At any time, you had better have an explanation for why you're not at home or not working.
A second example also comes from Boston. Pioneered by David Kennedy at Harvard's John F. Kennedy School of Government, it is called the Boston Gun Project. Aimed at people in gangs, the project represents a reversal of the conventional thinking that the purpose of society is to prevent gangs from forming or, if they do form, to ensure that people in gangs will do harmless things, like playing midnight basketball. The effect of such interventions has largely been to make the gangs more legitimate in the eyes of young people thinking of joining them.
People join gangs in Boston for the same reason they join gangs in most other large cities. It is not primarily to deal in drugs, though some gangs engage in that. They engage in gang activity because they lack a family structure or because the gang makes life on the street so difficult and so dangerous that unless they join, they lack protection against others.
Joining gangs is the norm all over urban America today. The Boston Gun Project said, "We will let gangs continue to exist. Where we will draw the line is whether they commit a violent crime."
In Boston, 1,300 youths accounted for 60 percent of all homicides in recent years. The typical gang member has a one-in-seven chance of being killed during the next ten years. Being in a gang makes life much more dangerous than it was for combat infantrymen in Vietnam, even if it may make it safer than living in the same neighborhoods without being part of a gang.
What the Boston Gun Project does is assemble all the relevant agencies in Boston—police, probation authorities, parole authorities, school authorities, and so on—and then tell gang members that if somebody in their gang commits a homicide, the government will use all its resources to make life miserable for the entire gang. The authorities will serve every warrant, revoke every probation or parole, pull every lever designed to make certain that the gang cannot function. The gang understands that its task is to prevent its members from shooting somebody. As with Night Lights, law enforcement officers don't wait until someone commits a crime to display their authority. They act to prevent crime before it happens.
The result of this effort has been a reduction by two-thirds of the number of youth homicides that occurred in Boston during a one-year period. Indeed, for two years no one under the age of 17 was shot in the entire city.
The third strategy: gang injunctions. Gangs are at least as important a part of urban life in California as elsewhere, and gang warfare is one of the reasons the state's homicide rate has been so high. A gang injunction is a civil action brought by a district attorney, who tells a civil court that a gang in a particular community—by sitting in front of citizens' homes, selling drugs, engaging in fights, or harming property—is making life difficult for people who attempt to live there peacefully. The gang is a public nuisance (a well-defined legal category); as such, the law allows its activity to be curbed by a court issuing an injunction.
The injunction states the name of the gang and identifies many of its members by name. It then states all the things members of the gang may not do. They may not wear their gang colors. They may not wear their bandannas. They may not meet in groups larger than three. They may not sell drugs. They may not consume alcohol in public.
The injunction is then served on the gang. Though it is a civil injunction, violations of it can be prosecuted in criminal court. The California Supreme Court has upheld this arrangement, and such injunctions are now in operation in San Jose, Los Angeles, and many other cities. Though this technique may not work to keep rival gangs apart, it does have material value in keeping a single gang from dominating life in an otherwise peaceful neighborhood.
Fourth possibility: drug tests. The majority of people arrested for a crime and confined to jail in any one of our 23 largest cities were on drugs in the preceding 72 hours, as drug tests administered on arrest confirm. Since many drug metabolites stay in the body for only 72 hours, many of those who test negative may have been using drugs in the preceding period.
These people are prosecuted. Some go to jail. In jail we hope they encounter a drug treatment program (although in many jurisdictions they do not).
When they are released from prison, however, and returned to the streets, they are left pretty much on their own. The goal of parole or probation supervision ought to be to get them to enter a drug treatment program in the community. What we know about drug treatment programs can be stated in one sentence: however the program is organized, it works if people stay with it, whether they do so voluntarily or under duress. (See "Yes, Drug Treatment Can Work," Summer 1995.) The problem, just as with Alcoholics Anonymous, is getting people to stay with it.
We should coerce drug users to enter drug treatment programs if they are parolees or probationers in the community. We can require it either by state statute, or else by requiring paroled offenders to sign, as a condition of release, a document that indicates that they are to take regular drug tests in the community.
The difficulty is in administering the test. Tests cannot be administered once a month or in the probation officer's office. They have to be administered more or less on the street, more than once a week. Twice a week would be optimum, once a week the minimum.
Probationers or parolees who have dirty urine face a choice—enter a drug treatment program or return to jail. This, of course, puts large burdens on police and probation officers who have to supervise the drug testing, as well as on those who run drug treatment programs in or out of correctional facilities.
But if we wish to reduce the link between crime and drugs, we can do it only by reducing the demand for drugs. We've had a lot of experience in this country with efforts to reduce the supply of drugs. They have not had much effect. The price of cocaine on the streets today is lower than it was a few years ago, suggesting that the ability of people to move drugs into our country exceeds our capacity to intercept those drugs at the border. Demand reduction is the key. And the people on whom we can operate quite directly to reduce it are those already under the control of the criminal justice system.
Fifth example: gun searches. I suppose if I had been in Congress I might have voted for the Brady Bill, aimed at reducing the supply of guns by controlling sales at the point of purchase. But I wouldn't have had much confidence that it would make a difference: five-sixths of all guns used in crimes are stolen or borrowed. They are not purchased from a federally licensed gun dealer.
We are told that the Brady Law has prevented a large number of felons from buying guns. That is true. What we don't know is whether this prevented a large number of people from killing with guns. I think not.
To be effective, gun searches have to deal with the demand side of the equation. Some people carry guns in places where they should not carry them—in school yards, on street corners where gangs congregate, and in and out of bars and restaurants where like-minded people can be found.
We can reduce the demand for carrying guns in public places, so that fights that once entailed the exchange of punches will now not escalate into nine-millimeter gunfire. We can do this in two ways. One, pioneered by Charleston, South Carolina's famous police chief, Reuben Greenberg, offers a cash payment to anyone who informs the authorities that a person is carrying a gun in a school yard. The police investigate immediately. If they find a gun, they seize it, arrest the person carrying it, and pay the bribe.
This system deters people from carrying guns to school yards for the purpose of strutting their masculinity by flipping open their jackets or pulling up their shirttails to impress their friends with the fact that they are loaded. The more people who are loaded in a school yard, the higher the probability of a fatal accident. These payments make such macho displays risky enough to discourage gun carrying in school.
The other way to deter gun toting is through technology. The National Institute of Justice, led by Jeremy Travis, and the Department of Defense have jointly funded research to develop technology that can identify at a distance a concealed weapon. The aim is to produce millimeter-band radars or infrared cameras that will show not only that someone is concealing a heavy piece of metal but also that it is so clearly a gun that you can tell if it is a revolver or an automatic.
Assuming this technology can be made small enough and cheap enough, the police will be able to use it in public places where gangs hang out or where violence is common. If they see a gun image, they can then ask the suspect if he is carrying a gun and, if so, whether it is licensed. If he is carrying an unlicensed weapon, he is subject to arrest. My guess is that the courts are likely to uphold this procedure as meeting the 1968 test of reasonable suspicion for stopping and frisking someone.
Finally: truancy. Schoolchildren are supposed to be in school or, if not, then home sick in bed watching reruns of Gilligan's Island.
Truant officers, where they exist at all, don't do much good. The police, however, can be effective truant officers by stopping and questioning young people of apparent school age standing on street corners at a time when school is in session. If they cannot show that they have a reasonable excuse for not being in school, then the police should escort them to either their home or the school.
In cities where such truancy enforcement has been practiced, such as Charleston and San Jose, the rate of burglaries in the areas near schools has gone down dramatically.
I mention these six examples to offer a concrete sense of what I mean when I say that we have under-invested in making the criminal justice system quicker. We are in a position to make it clear to would-be criminals that the adult population is watching them, judging them, and swiftly holding them to a higher standard of behavior than what their own opportunistic instincts would endorse. That is likely to change their behavior dramatically.
