Archive | Criminal Law

Crime and punishment, race and class

The burdens of crime and incarceration are not evenly spread; instead, they are highly concentrated by race and class. Neither race nor class alone is a sufficient explanatory variable. (Bruce Western has done groundbreaking work on this.)

The picture is worst for African-Americans; even adjusting for overall lower incomes, African-Americans suffer much more crime than do members of other ethnic categories. Homicide provides the most dramatic example; representing less than 15% of the population, blacks suffer more than 50% of the murders.

Like all crime problems, this problem tends to be self-sustaining. Since enforcement and prosecution resources are much more equally distributed than is crime, an offender who commits a crime where crime is common is less vulnerable to arrest, vigorous prosecution, and a stiff sentence than an offender who commits the same crime in a more law-abiding neighborhood.

Strong patterns of residential segregation by race and class plus differential crime rates together mean that the average poor African-American grows up in a higher-crime environment than a white American of comparable income or a more prosperous African-American. And since higher-crime areas are also lower-punishment-per-crime areas, crimes committed against poor black people draw lower-than-average punishments.

Thus the current system fails to fulfill the Constitutional mandate of “equal protection of the laws,” if “equal protection” means that a crime against a poor or black person will be investigated as diligently, prosecuted as forcefully, and punished as severely as the same crime against a rich or white person.

Assuming that the threat of punishment has some deterrent effect, growing up where that threat is smaller – and licit economic opportunity less available – should be expected, other things equal, to lead to a higher rate of criminal activity. And indeed that is what we find. African-Americans are far more heavily victimized than others, […]

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Benefits and costs: crime, crime avoidance, crime control

Crime has been a badly underestimated problem: more so among scholarly experts than among ordinary citizens or elected officials.  A1% reduction in crime provides economic value – measured in terms of willingness-to-pay – of something like $15 billion a year.

The material losses due to victimization are only a small part of the crime problem.  For example, property losses from residential burglary average out to $4 per house or apartment per month.   And yet, in a survey, people asked how much they would be willing to pay out of their own funds to reduce burglary in their community by 10% gave an average answer of $100 per year.

One difference between victimization losses and other costs is that victimization doesn’t just happen.  Victimization is done to someone by someone else.  Being singled out – even anonymously – by another person for ill-treatment is a different experience than being the victim of mere happenstance. “Even a dog,” said Justice Holmes, “knows the difference between being stumbled over and being kicked.”  

As a result, people make extensive efforts to avoid being victimized:  everything from double-locking doors to moving to the suburbs.  How, in the absence of crime, could one account for the coexistence of housing abandonment and new housing construction only a few miles apart?  The direct and secondary costs of crime avoidance easily swamp the immediate costs of victimization.  

Now, it might seem that if avoidance costs exceed victimization losses, the avoidance costs must be irrationally high.  Not so.  The victimization losses we observe are those that remain after potential victims have taken countermeasures in the forms of locks, burglar alarms, gated communities, and suburban addresses. One reason crime has fallen in the past decade is that potential victims – households and businesses – have moved away from high-crime neighborhoods […]

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How to Have Less Crime and Less Punishment

Thanks to Eugene’s generosity, I will have access to this space all week to expound what I see as a great moral and practical imperative:  to put our new knowledge of what controls crime into use, with the goal of achieving “half and half”:  half as much crime and half as many people behind bars in a decade as we have today.  (Here’s the a book-length version of the argument.)


Engineers have a sardonic saying:  “When brute force fails, you’re not using enough.”  For three decades, in the face of the great crime wave that started in the early 1960s, we have been trying to solve our crime problem with brute force:  building more and more prisons and jails. We now keep 2.4 million of our fellow human beings under lock and key at any one time, and that number has continued to grow despite the spectacular drop in crime between 1994 and 2004, which took crime rates to 50% of their peak levels.

Imprisonment at five times the historical level in the United States, and at five times the level of any of the countries with which we would like to compare ourselves, has not been sufficient to fully reverse the growth in crime; current crime rates are still at 2.5 times the level of the late 1950s and early 1960s.  Even that discouraging number understates how much worse things are now than they were half a century ago; today’s high crime rates persist in the face not only of ferocious punishment but also of greatly enhanced – and very costly – adaptations by potential victims to avoid being victimized.  Those adaptations range from buying alarm systems to moving to the suburbs.  Most of all, they involve avoiding risky situations.  The need to take such precautions […]

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The Wall Street Journal on Alvarez v. Smith

The Wall Street Journal has an editorial urging the Supreme Court to rule in favor of the property owners in Alvarez v. Smith, an important property rights case that I have been trying to draw attention to for a long time (see my recent Findlaw column on it and previous posts on the subject here and here):

With states and cities struggling with deficits, one fertile source of revenue has been money or property seized by police in possible connection with crimes. Not to be left behind, Illinois has pursued this tactic aggressively, using a law which encourages both police departments and prosecutors to take property for forfeiture, long before the accused ever get their day in court.

This practice was challenged at the Supreme Court recently in Alvarez v. Smith, where six people allege that police use of the Illinois Drug Asset Forfeiture Procedure Act violated their right to due process under the Fourteenth Amendment. Though forfeiture laws are designed to strip criminals of ill-gotten gains, three of the six were never charged with a crime. All six had their property or money taken without a warrant and had to wait for months or years without a hearing on the legitimacy of the forfeiture…

Under Illinois law, the state has 187 days after property is seized to file forfeiture proceedings. Meanwhile, of forfeited funds seized, 25% lands in the lap of the prosecutor’s office. Another 65% goes to the department that seized the property, giving police added incentive to take the property to pad their budgets. Justice Sonia Sotomayor noted this police incentive with concern….

We’re all for relieving criminals of illegal profits, but civil forfeiture laws must be used with caution and oversight lest they infringe on fundamental rights. Alvarez v. Smith provides an opportunity to


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A Step Toward Sanity on Medical Marijuana

The AP reports that the Justice Department will issue a memo formally establishing a new policy regarding the federal prosecution of marijuana possession and sale in states that have decriminalized medical marijuana.

The Obama administration will not seek to arrest medical marijuana users and suppliers as long as they conform to state laws, under new policy guidelines to be sent to federal prosecutors Monday.Two Justice Department officials described the new policy to The Associated Press, saying prosecutors will be told it is not a good use of their time to arrest people who use or provide medical marijuana in strict compliance with state laws. . . .

A three-page memo spelling out the policy is expected to be sent Monday to federal prosecutors in the 14 states, and also to top officials at the FBI and the Drug Enforcement Administration.

The memo, the officials said, emphasizes that prosecutors have wide discretion in choosing which cases to pursue, and says it is not a good use of federal manpower to prosecute those who are without a doubt in compliance with state law. . . .

At the same time, the officials said, the government will still prosecute those who use medical marijuana as a cover for other illegal activity. The memo particularly warns that some suspects may hide old-fashioned drug dealing or other crimes behind a medical marijuana business.

In particular, the memo urges prosecutors to pursue marijuana cases which involve violence, the illegal use of firearms, selling pot to minors, money laundering or other crimes.

As I’ve noted on The Corner, assuming this is an accurate account of the guidelines, this is a positive step toward a more rational drug control policy and greater respect for state-level policymaking.

The Justice Department has to set prosecutorial priorities, as there are […]

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When Did Sex Offenders Have to Register?

This morning, in United States v. Cain, the U.S. Court of Appeals for the Sixth Circuit split over whether a sex offender convicted prior to the enactment of the federal Sexual Offenders Registration and Notification Act (SORNA) was required to update his sex offender registration before the  Attorney General adopted regulations implementing the law’s registration requirement and specifying the applicaiton of the requirment to pre-SORNA offenses.  Judge Rogers, joined by Judge Guy, held for the defendant, concluding there was no obligation to register prior to the adoption of the regulations.  Judge Griffin dissented.

The law at issue was part of the Adam Walsh Child Protection and Safety Act of 2006.  The Supreme Court already has one case this term concerning this law (United States v. Comstock).  Could this make for a second? […]

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First Circuit upholds federal ban on juvenile handgun possession

The decision is here, and includes extensive analysis of 19th and early 20th century state laws (and court decisions upholding them under state constitution RKBA provisions) against juvenile handgun possession, or sale of handguns to juveniles. The decision also rejects a challenge that the federal ban on simple possession in one’s own home exceeds congressional authority under the power to regulate interstate commerce. In Taking Federalism Seriously: Lopez and the Partial Birth Abortion Ban Act, 30 Connecticut Law Review 59 (1997), Glenn H. Reynolds and I argued that the interstate commerce power should not be used to regulate intrastate activity, especially activity involving controversial social issues like firearms or abortion. In a 1999 Issue Paper for the Independence Institute, I wrote a brief section (Part VII) which presents some policy arguments against the federal aw. As you’ll see by reading the First Circuit case, there are good reason why the juvenile delinquent should not have owned a gun. But I that there is a less restrictive alternative than the federal approach. […]

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“Cyberbullying Bill Gets Chilly Reception”

Some folks say that Congress will do anything that resonates with the public, and that Congress doesn’t care about the Constitution — especially if the Constitution gets in the way of “protecting the children.” If you think that, you should read this report about Wednesday’s House Judiciary subcommittee hearing on the proposed Megan Meier Cyberbullying Prevention Act that Eugene blogged about a few months ago. A taste:

  Proposed legislation demanding up to two years in prison for electronic speech meant to “coerce, intimidate, harass or cause substantial emotional distress to a person” was met with little enthusiasm by a House subcommittee on Wednesday.
  Rep. Linda Sanchez (D-California) lobbied fellow lawmakers of a House Judiciary subcommittee to back her proposed legislation dubbed the “Megan Meier Cyberbullying Prevention Act.” In its first congressional hearing, Sanchez said the proposal was designed to target the cyberbullying that led to the 2006 suicide of the 13-year-old Meier of Missouri.
  “Bullying has gone electronic,” Sanchez testified before the Subcommitttee on Crime, Terrorism and Homeland Security. “This literally means kids can be bullies at any hour of the day or the night, or even in the victims’ own home.”
  From the outset of the 90-minute hearing, however, committee members from the left and the right said they thought the measure was an unconstitutional breach of free speech. “We need to be extremely careful before heading down this path,” Bobby Scott, a Democrat from Virginia and the committee’s chairman, said during the hearing’s opening moment.
  Rep. Louie Gohmert (R-Texas) said the legislation “appears to be another chapter of over-criminalization.” He quipped, however, that the law could target the “mean-spirited liberals” in the blogosphere that are attacking himself and his family regularly.
  About 30 minutes later, Gohmert said that not all prosecutors would exercise good judgment, that they might


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