The Straight Scoop on Crime Rates

Want to know the truth?

Here are five facts about crime in America. They don’t come from sound bites, talking heads, internet memes, or bloviating politicians. They come from the Federal Bureau of Investigation (FBI) and the U.S. Justice Department’s Bureau of Justice Statistics (or BJS). And they’re brought to you by the Pew Research Center, a nonprofit, nonpartisan think tank.

The rate of violent crime has fallen sharply over the last 25 years. Both the FBI and BJS data show a steep decline in the violent-crime rate since the early 1990s.

So has the rate of property crime. This category includes things like theft, burglary, and vandalism. Generally, they’re a lot more common than violent crime.

We, the public, can’t seem to handle the truth. Time and again in opinion polls, a majority of Americans say they believe crime is up, even when it’s down by double-digit percentages.

There are big differences in crime rates depending on where you live. This may not surprise you. The FBI attributes it to factors like population density and economic conditions, among others.

Many crimes go unreported. That may not surprise you, either. Although the FBI does not track unreported crime, the BJS does. We get the most complete picture by studying both data sets. According to the BJS, there are a variety of reasons why people don’t report crime. These include a feeling that police would not or could not do anything to help or that it was a personal issue or too trivial to report.

A Big Anniversary for the Bill of Rights

Thursday will mark 225 years to the day.

On December 15, 1791, the Commonwealth of Virginia became the eleventh state to ratify the first ten amendments to the U.S. Constitution. That meant that three-fourths of state legislatures had approved them, which meant the Bill of Rights was born.

To commemorate the occasion, here’s a great essay about one of its architects, James Madison. It talks about how Madison opposed a bill of rights at first because he feared that it would limit people’s essential rights to just those listed. He thought a list wasn’t necessary in a new system in which the people were sovereign and the government derived its power from their consent. He also believed that the real buffer against a tyranny of the majority lay in the Constitution’s structural checks and balances: federalism, bicameralism, and the separation of powers. Eventually, though, Madison came around, and at the first Congress of the United States, he introduced the amendments that became the Bill of Rights.

The ten amendments enshrine many of our most important rights and freedoms. They declare that, in America, you’re meant to be free in the following ways, among others.

  • You’re free to say, think, and believe what you want to say, think, or believe.
  • You’re free to print, publish, and broadcast information even if the government opposes it.
  • You’re free to associate with others, band together peaceably, and petition the government to redress your grievances.
  • The government can’t take your life, liberty, or property if it doesn’t follow fair and objective rules.
  • It can’t search or seize you, your home, or your property unreasonably or without following the rules.
  • It can’t take your property and put it to public use without paying you fairly for it.
  • It can’t punish you without telling you why and giving you a meaningful chance to defend yourself.
  • It can’t punish you excessively or inhumanely, no matter what.

For the full text of the U.S. Bill of Rights, see here. 

 

 

 

Our Great Living Poet

Bob Dylan won the Nobel Prize for Literature on Thursday, and it was nice to see the news. You may not know it depending on your walk of life, but Dylan is one of the great American poets of the past hundred years, and he’s had a lot to say about law and justice, too. He’s apparently the first songwriter to win the award, but that just means he writes poems and translates them into song and music. He reportedly hasn’t responded to the news yet, but it doesn’t matter. The honor is already his.

In tribute, below are the lyrics to one of my favorites. It’s not about law or justice, but it’s pure poetry written almost entirely in one- or two-syllable words. I’ve been singing a few lines from it to my son as a lullaby, and I hope you enjoy it, too, again or anew.

Hey, Mr. Tambourine Man, play a song for me
I’m not sleepy, and there is no place I’m going to
Hey, Mr. Tambourine Man, play a song for me
In the jingle jangle morning I’ll come followin’ you

Though I know that evenin’s empire has returned into sand
Vanished from my hand
Left me blindly here to stand but still not sleeping
My weariness amazes me, I’m branded on my feet
I have no one to meet
And the ancient empty street’s too dead for dreaming

Hey, Mr. Tambourine Man, play a song for me
I’m not sleepy, and there is no place I’m going to
Hey, Mr. Tambourine Man, play a song for me
In the jingle jangle morning I’ll come followin’ you

Take me on a trip upon your magic, swirlin’ ship
My senses have been stripped, my hands can’t feel to grip
My toes too numb to step
Wait only for my boot heels to be wanderin’
I’m ready to go anywhere, I’m ready for to fade
Into my own parade, cast your dancing spell my way
I promise to go under it

Hey, Mr. Tambourine Man, play a song for me
I’m not sleepy, and there is no place I’m going to
Hey, Mr. Tambourine Man, play a song for me
In the jingle jangle morning I’ll come followin’ you

Though you might hear laughin’, spinnin’, swingin’ madly across the sun
It’s not aimed at anyone, it’s just escapin’ on the run
And but for the sky there are no fences facin’
And if you hear vague traces of skippin’ reels of rhyme
To your tambourine in time, it’s just a ragged clown behind
I wouldn’t pay it any mind
It’s just a shadow you’re seein’ that he’s chasing

Hey, Mr. Tambourine Man, play a song for me
I’m not sleepy, and there is no place I’m going to
Hey, Mr. Tambourine Man, play a song for me
In the jingle jangle morning I’ll come followin’ you

Then take me disappearin’ through the smoke rings of my mind
Down the foggy ruins of time, far past the frozen leaves
The haunted, frightened trees, out to the windy beach
Far from the twisted reach of crazy sorrow
Yes, to dance beneath the diamond sky with one hand waving free
Silhouetted by the sea, circled by the circus sands
With all memory and fate driven deep beneath the waves
Let me forget about today until tomorrow

Hey, Mr. Tambourine Man, play a song for me
I’m not sleepy, and there is no place I’m going to
Hey, Mr. Tambourine Man, play a song for me
In the jingle jangle morning I’ll come followin’ you

The Circle of Life

Earlier this month, the California Court of Appeal published an interesting DUI case that we may talk about next week.

This week, I want to talk about something else.

My wife and I welcomed a baby boy into the world on Saturday. He’s our first. He spent his first three days in the Neonatal Intensive Care Unit, where he gave us a couple good scares. But he’s emerged with a clean bill of health, and we got to take him home last night.

What does this have to do with law and justice?

Only that, like most parents, I feel the weight of responsibility for his new life, and I’m more acutely aware than ever that my generation—or rather, our generations—are responsible for what becomes of this world.

We’re responsible for what becomes of us as a people and planet, and there’s no silver bullet. No magic potion. No easy fix. Anyone who tells you different is lying to you.

As man’s relationship to government evolves in this century, it’s up to us to be the adults in the room. It’s up to us to defend our common rights, freedoms, and dignity. It’s up to us to create and preserve a world in which our children can be safe, healthy, and happy.

With that, may God bless the United States of America, and may God bless my little boy every day of his life.

The Future of FOIA and Open Government

Speaking of anniversaries, this July 4, we didn’t just celebrate the 240th birthday of the Declaration of Independence; we also celebrated the 50th birthday of the Freedom of Information Act, which President Lyndon Johnson signed into law on July 4, 1966.

To honor the occasion, the Washington Post penned a pithy homage to this engine of open government that helps define what democracy means in the modern world.

The Post also reported, as did others, that the FOIA’s golden birthday coincided with President Obama’s signing into law the FOIA Improvement Act of 2016, a bipartisan effort to update and improve the statute going forward.

We’ve got a ways to go, still, no doubt. In practice, you don’t always get the documents you want. You often don’t get them on time, and you may not get them in their full, unredacted form. You may have to fight like hell for them, and you may have to sue.

So the statute isn’t perfect, that’s for sure.

But for the moment, let’s blow out these fifty candles and wish for many, many more.

The 50th Anniversary of Miranda

“The quality of a nation’s civilization can be largely measured by the methods it uses in the enforcement of its criminal law.”

This month marks the fiftieth anniversary of the U.S. Supreme Court’s seminal decision in Miranda v. Arizona.

To commemorate the occasion, here’s a great write-up on why the case matters so much and how we can do even better going forward.

But you should read the opinion for yourself if you can. It chronicles the history of the Fifth Amendment’s right against self-incrimination. It catalogues many of the standard police interrogation practices that remain current today. And it makes a moral case for an adversarial system that respects the dignity of its people over an inquisitorial system that simply overpowers them.

This last point becomes ever more important in our lifetimes as the balance of power between people and the state shifts decidedly, and permanently, in favor of the state.

Whether you read it or not, below is the core of the Miranda opinion, which describes what we’ve come to know as the Miranda warnings and which I’ve revised to make easier to read.

* * * * * *

We spell out our holding with some specificity in the pages that follow, but briefly stated, it is this: a prosecution may not use any statement that people make to police in a custodial interrogation unless it demonstrates that police used effective safeguards to protect the right against self-incrimination. By custodial interrogation, we mean any questioning that police initiate after they take people into custody or otherwise deprive them of their freedom of action in any significant way.

For the safeguards to be employed, we require the following procedures in the absence of other, fully effective ways to inform people of their right to remain silent and ensure they have a continuous opportunity to exercise it.

Before any questioning, the police must warn people that they have a right to remain silent; that any statement they make may be used against them as evidence; that they have a right to have an attorney there with them before they’re interrogated; and that they’re entitled to have an attorney appointed for them if they can’t afford one.

People may waive these rights as long as they do so knowingly, voluntarily, and intelligently. But they also reserve the right to change their minds and ask for a lawyer at any time, and if they do, the police must stop questioning them. The mere fact that people may answer some questions or volunteer some statements on their own does not deprive them of the right to refrain from answering further questions until they’ve consulted an attorney and consented to more questioning.

The Importance of Public Defense

Many people observed National Public Defense Day on March 18. Yes, there’s a day on the calendar for everything, but this one’s important.

It honors the day in 1963 that the Supreme Court decided Gideon v. Wainwright: the case of a poor defendant who believed the Constitution promised him an effective lawyer if he was accused of a crime.

The man had just finished having to defend himself against burglary charges at trial, where he was convicted and sentenced to five years in prison.

From prison, he wrote his own petition to the high court in pencil, and the Court said, you’re right, and gave him another trial.

There, with a trained lawyer who could effectively cross-examine the case, he was acquitted after one hour of jury deliberation.

To further honor that case and our national public defense system, here are two readable, interesting explanations of why we need more public defenders as judges.

Among other things, it would help ensure an independent judiciary, which is crucial to the checks and balances on which our rights and freedoms rely.

And we don’t have to look far in the world around us to appreciate that, as we’ve covered here the last two weeks.

The Price of Freedom is Eternal Vigilance

Antonin Scalia didn’t coin that expression, but the late Supreme Court Justice, who died one month ago, once delivered a speech that touched on a similarly uncomfortable notion.

Nearly two years to the day before his death, Scalia was speaking to a group of law students at the University of Hawaii, and he was asked about the Supreme Court’s infamous Korematsu decision from 1944. That’s the case in which the Court approved, by a 6-3 vote, the constitutionality of an executive order that forced the internment of all persons of Japanese descent, including American citizens.

Although Scalia unequivocally called the Court’s decision wrong, he also imparted the following admonition to his audience: “But you are kidding yourself if you think the same thing will not happen again.”

To explain himself, he referred to an older, Latin expression: “Inter arma enim silent leges … In times of war, the laws fall silent.”

And he went on to say, “That’s what was going on—the panic about the war and the invasion of the Pacific and whatnot. That’s what happens. It was wrong, but I would not be surprised to see it happen again—in time of war. It’s no justification but it is the reality.”

I wouldn’t be surprised, either, and I hope I’m wrong about that, but we’d be wrong to presume that it will never happen again because we’re so much better than we were or because we’ve evolved beyond our basic fears and instincts.

Sometimes, in fact, it seems we scare more easily than ever.

Whether or not you agree with Scalia on other points—and there’s plenty of grist for debate—the foregoing remarks reminded me that the price of freedom—and a better tomorrow—is eternal vigilance by this generation and every one to follow.

One Way to the Gallows

To appreciate due process, consider the story of a simple man named George Spencer who was accused, of all things, of impregnating a pig in puritan New England. His story takes place in 1642, and it’s excerpted from the book, The Case of the Piglet’s Paternity: Trials from New Haven Colony, 1639-1663, by Jon C. Blue, a Superior Court judge in Connecticut.

One day, a local farmer complained to the colony’s magistrates that a female pig he’d just bought had birthed a deformed stillborn, and what’s more, the dead piglet looked like Spencer, a former servant of the man who sold him the sow. I’m sure that alone was tough to hear for Spencer, who may not have been a looker. He had one good eye and one deformed eye, and apparently, his bad eye in particular resembled that of the piglet.

The resemblance caused such consternation that, ten days later, the magistrates questioned Spencer about “this abomination.” Not surprisingly, Spencer denied being the father, but the magistrates committed him to prison based on “strong probabilities.”

That night, one of the magistrates went to the prison, found Spencer talking with two other men, and asked him “if he had not committed that abominable filthiness with the sow.” But Spencer again denied it. The magistrate then pointedly asked whether he didn’t notice a family resemblance—ouch—and recited to him Proverbs 28:13: “He that hides his sins shall not prosper, but he that confesses and forsakes them shall find mercy.”

The magistrate pressed, asking Spencer if he regretted denying “the fact which seemed to be witnessed from heaven against him.”

Spencer then relented, said was he was sorry, and confessed to the deed.

It sealed his fate.

The following day, the magistrates returned to the prison with a throng of others. They confronted Spencer and urged him to confess his sin. He initially denied it, but when he was reminded of his prior confession, he confessed again.

Then people really got riled up. The next day, the colony’s governor joined the magistrates to question Spencer personally. The authorities asked him “how long the temptation had been upon his spirit before he committed it.” Spencer replied that “it had been upon his spirit two or three days before.”

Within a week, Spencer was put on trial. He had no time to prepare his defense or the means to do it. He had no right to a lawyer, a jury, or a presumption of innocence. The court urged him again “to give glory to God” by confessing, but Spencer wouldn’t do it. Instead, he reportedly cursed himself and desperately denied all that he’d formerly confessed.

It was too late. The court called a series of witnesses who testified to his prior confessions. Spencer answered that “the witnesses did him wrong and charged things upon him which he had not spoken,” and he again denied committing the act.

But the die was cast. The court found him guilty of the “unnatural and abominable” crime and, by the rule of Leviticus 20:15, sentenced him and the sow to death.

After the verdict, the court demanded that Spencer acknowledge “his sinful and abominable filthiness,” but Spencer replied that “he would leave it to God, adding that he had condemned himself by his former confessions.” The court declared itself “abundantly satisfied” of his guilt, and it ordered his sentence carried out.

George Spencer was hanged on April 8, 1642. Paraded before a crowd that had gathered at the gallows, he was urged to acknowledge his crime, and he again denied it. As the noose was fitted to his neck, the poor man fully and desperately confessed again, but as the mob pressed him to speak further of his sin, he fell silent, until the sentence was carried out.

Here’s to a constant march of progress.

They Risked Their Lives, Fortunes, and Honor, But the Rest is Up to Us

This Fourth of July weekend, there is new scholarship that suggests that the official transcription of the Declaration of Independence may bear a meaningful typographical error that does not appear on the original parchment or on other, early versions of the document.

The potential error relates to the punctuation we call a period, and it appears as follows in that revered first sentence of the second paragraph (in brackets):

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness[.]—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed….”

The potential error raises the question of whether the list of self-evident truths ends with the rights to life, liberty, and the pursuit of happiness or whether it goes on to include the observations that follow.

For my part, I think the parallel structure of those first few lines—that, that, that—settles the question, but in the end, it may not matter. The truth is that the Declaration was a touchstone statement of a revolutionary political theory—democracy—that transferred power from kings, nobles, and clergy to common men and women. Whether it’s self-evident or not, the American charter declared that government was, in some real sense, the exception not the rule; that it was the product of a social contract entered into by free people; and that it was empowered by their consent. These tenets were groundbreaking, and even at the dawn of the 19th century, they were far from obvious to the rest of the world; just ask France. Whether self-evident or not, moreover, they are not self-executing, so they rely on each generation to honor and preserve them.

For the full text of the official transcription from the website of the National Archives and Records Administration, see here. For a wonderful oral reading of the Declaration by 45 visitors to the National Mall in Washington, D.C., go here. For a look at other momentous events that have occurred on July 4, see here. They include July 4, 1826, when both John Adams and Thomas Jefferson passed away fifty years to the day of the Declaration’s adoption.

 

 

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