There are few knottier problems for a society than deciding how much to pay for criminal justice enforcement.
The question is difficult because we never frame it in those terms. Instead, criminal justice costs largely are determined by the laws that legislative bodies pass and the legal opinions that courts issue. The same legislative bodies then appropriate funds that often fail to meet the needs of the laws they have created.
That was true in California and other states that passed “three strikes and you’re out” laws that reflected popular discontent with crime. But enforcement of these laws produced large increases in prison populations. Because third convictions carried automatic jail sentences, arrestees became less willing to plea bargain. Prosecutors had to take more cases to trial. More judges, courtrooms and other resources were needed.
The same thing happened when many states passed laws getting tough on drugs. Prison populations rose sharply, as did caseloads for courts, probation officers and parole boards.
This is not an argument against stiff sentences, just an observation that “getting tough on crime” usually implies spending more on courts and prisons than taxpayers may like.
Criminal justice always involves a difficult balance: protecting society from crime while protecting the basic constitutional rights of those suspected of committing crimes. People charged with crimes always had a constitutional right to get an attorney. But prior to the Supreme Court’s 1966 Miranda decision, police officers were not required to inform suspects of that right. Abuses may have been common. Many people, guilty and innocent, were convicted of crimes who would not have been had they gotten an attorney early in the process.
The Miranda ruling reduced these abuses. It also made it harder to convict criminals. Police had to devote more time and resources to investigations to make up for the fact that it was harder to get confessions.
Again, this is not an argument for or against the Miranda ruling, just an observation that a court decision changed the amount of resources needed to achieve some given level of law enforcement.
Society benefited from the ruling, in that some innocent people were spared conviction and punishment. It also benefited from the fact that even guilty people got their rights. Society lost, in that law enforcement became more difficult. Different people will come to different decisions about the relative worth to society of these outcomes.
We also have seen greater limits on the ability of law officers to use factors such as race in deciding which individuals are likely suspects. There are obvious injustices in assuming that young, male minority members are the obvious suspects in some crime. But such profiling may be efficient in resource use.
Statistically, teens and young adults are more likely to commit crimes than people over age 70. Men are more likely to commit crimes than women. Poor people are somewhat more likely to commit some crimes than people with higher incomes, and there are strong correlations between being low income and being a member of a racial or ethnic minority.
If you want to solve lots of cases, then giving the police considerable latitude to follow their own experience and instincts is the more efficient option. But this approach inevitably means that some groups or individuals will be subjected to much more intrusive policing than others.
Members of targeted groups will experience higher levels of arrest and imprisonment, even if they are innocent. Meanwhile, some criminals in non-targeted groups will get off scot-free because the police are looking elsewhere. These injustices are a cost to society even if they do not involve government appropriations.
We face these tradeoffs right now in anti-terrorism immigration enforcement. Statistically, young Islamic males from Middle Eastern countries may be more likely than others to want to overthrow the U.S. government. But those convicted of the Oklahoma City bombing were white, native-born males.
Spanish-speaking workers with poor English skills are more likely to be illegal immigrants than native English speakers in the same packing plant. But there are millions of people born in this country who still speak with some accent, and millions more who were born in Mexico and Central America and are naturalized citizens or legal residents. Picking language as the basis for deciding who to detain and investigate uses federal officers’ time more efficiently than some random statistical process. But many innocent, entirely legal workers may be humiliated and have their lives disrupted.
There is an old Latin phrase, Fiat justitia, ruat coelu: “Let justice be done, though the heavens fall.” The choices are not always that easy. There are tradeoffs in any use of resources, including law enforcement. These tradeoffs often entail deciding which outcome constitutes the lesser injustice.
© 2006 Edward Lotterman
Chanarambie Consulting, Inc.