The Big Story About Crime and Punishment That James Q. Wilson Missed
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.
It is with trepidation and regret that I demur in any degree from the widespread praise accorded political scientist James Q. Wilson, who died a couple of weeks ago from leukemia, aged 80. He was a brilliant and a delightful man, and one of the greatest and most amiable figures in the neoconservative movement, the more so as he was not especially aggressive in his advocacy nor even a reformed liberal, though he had been a supporter of John F. Kennedy, Lyndon B. Johnson, and Hubert Humphrey, and a member of LBJ’s Crime Commission.
Jim Wilson was a very affable, sensible, soft-spoken, and insightful man, with a much better sense of humor than most academics. His personality always reminded me a little of Bill Safire, though he was also a rigorous scholar and researcher to Bill’s public relations, journalism, political insider formation, and had an exhaustive knowledge of philology.
Wilson’s greatest influence was on treatment of crime, and he is rightly credited with much of the progress that resulted from what is generally called the “Broken Window” theory — that leaving broken windows unrepaired would ensure that a great many more windows would be broken; and that repairing them and punishing the vandals and intruders responsible would radically reduce the incidence of crime. So it did, and complementary refinements in police work, most famously under Rudolph Giuliani and William Brattan in New York and then in many other cities, coupled with an aging population and declining poverty levels, produced startling improvements in rates of crime.
Unfortunately, Jim Wilson’s influence in areas of custodial policy and the technical operation of criminal justice were a good deal less benign and effective than his suggestions for deterring crime at point of incidence. Also unfortunately, my own legal travails did not become a subject of discussion between us, other than a typically gracious note of solidarity from him early on. I was looking forward to constructively engaging him on the subject when this ghastly persecution I have endured finally ends in a few weeks.
I don’t think Jim Wilson ever remotely grasped how thoroughly corrupt and intrinsically unjust the U.S. justice system is, as only someone who has been through it from the wrong end can. When I asked him if he had no misgivings about the plea bargain system, in 2002, before I had any direct experience of what a bazaar of extortion, perjury, and intimidation it is, he did not go beyond acknowledgement that improvements would be desirable. He generally approved high incarceration rates, oblivious to the implications of the United States having six to 12 times as many incarcerated people per capita as Australia, Canada, France, Germany, Japan, and the United Kingdom.
He was relatively relaxed about the War on Drugs, though it was already a conspicuous failure, and approved the death penalty, though he was troubled by the fact that the execution of the innocent was not rare. Fine and decent man though he was, he was too much of a clinical statistician to give adequate weight to the human damage American prosecutors and jailers glory in inflicting (as I have since discovered).
In “Reforming Criminal Trials” in 1995, he acknowledged that some much-publicized trials had become “lawyer-dominated soap operas in which the search for truth has been subordinated to the manipulation of procedures.” I suggested to him that more worrisome was that almost 90 per cent of criminal cases weren’t tried at all, but plea-bargained, and that over 90 per cent were convictions, compared to about 65% in Canada, where about 70% of cases are tried, but only 40 per cent of convictions lead to incarceration (and the crime rate is much lower).
His proposed remedies in 1995 were to allow the judges to select the juries, have the judges call and question witnesses, and spare jurors some of the laborious technicalities; allow witnesses to testify in narrative form; and have some cases tried by a joint prosecution-defense bar to “reduce the extent to which wealthy defendants could hire attorneys not available to the average person.” I had my doubts about this menu at the time, but now know that it would make matters worse and not better.
Most of the judges are ex-prosecutors and are biased, as all political, professional, and societal pressures are for convictions, and the media have locked arms with the politically and financially ambitious prosecutors and the politicians (mainly lawyers), who claim success in the War on Crime and legislate endless grand-standing laws for the benefit of the legal cartel and the delectation of their electors. And the defense bar are friends of the prosecutors going through the motions in full knowledge of what a stacked deck it is, accomplices in the infamous charade of impartial justice.
There is nothing wrong with witnesses testifying in narrative form, but it wouldn’t achieve much. And wealthy clients having better counsel than people of modest means isn’t the problem. The problems are that the plea bargain extorts incriminating perjury; and prosecutors are not accountable for undeterred routine misconduct that would cause them to be disbarred in other serious jurisdictions, (viz. the Senator Stevens case).
The prosecutors freeze defendants’ assets with false FBI affidavits in ex parte proceedings, preventing a real defense; most of the public defenders are Judas goats who effectively work for the prosecutors; procedure and witness preparation are loaded in favor of the prosecutors; the prosecutors speak last to the jurors, who don’t get to consult the transcript; and it all starts with the grand jury, which is a contemptible rubber stamp for the prosecutors and will indict anybody for anything. The War on Drugs has cost more than $1 trillion, has led to the absurdly overextended imprisonment of two million easily and instantly replaced small fry, and more plentiful, cheaper, higher quality drugs in America, and civil war in Mexico and several other countries.
The Fifth, Sixth, and Eighth Amendment guaranties of due process, no seizure of property without due compensation, a grand jury that is an assurance against capricious prosecution, access to counsel, an impartial jury, prompt justice and reasonable bail, are a myth, an heirloom. And the death penalty is barbarous, ineffectual, grossly overused, and not infrequently —as Jim Wilson admitted to me 20 years ago — imposed on the innocent.
I liked and admired James Q. Wilson; he was a fine man and a rigorous intellect who made a positive difference, but where was he while American criminal justice was becoming the terrible conveyor-belt of corruption, hypocrisy, and abuse that it now is?
From the Huffington Post.