The Tyranny of Clichés: How Liberals Cheat in the War of Ideas (24 page)

What Maddow and her compatriots are really up to is a branding exercise. Just as admen try to convince dumb teenagers that their life will turn into a music video if they drink a certain beverage, progressives are trying to suggest that we can all fill the holes in our souls with a sense of accomplishment and community—greatness, even!—by paying higher taxes for more public-works projects, more generous entitlement checks, and faster passenger trains.

At the political level what Maddow, Frank, Obama & Co are doing is simple bait-and-switch marketing. Citizens are told that if they empower politicians and bureaucrats with votes and tax dollars, they’ll get something magical in return: meaning. A major problem with this is, it’s simply not true. The most alienated, deracinated, cynical people in modern human
history are those people who outsourced the intellectual heavy lifting in life to the State, which in turn foisted the literal heavy lifting back to them. The people of the Soviet Union were, all in all, a miserable lot. Public spaces weren’t hubs of civil society; they were places to defecate, steal, and exploit others. Whether in Moscow or, for that matter, Chicago, the hallways of public housing projects are often a Hobbesian realm of devil take the hindmost.

Moreover, at the philosophical level, what they are talking about is not government but the State, and the two things are not the same. The government in the Anglo-American tradition is for the most part a necessary evil. The State, in the European, and specifically German-historicist, tradition imported by progressives in the late nineteenth and early twentieth centuries is something different altogether. Under the Constitution the government is a well-defined institution charged with certain important but limited responsibilities. It delivers mail, protects the borders, levies taxes, fights wars, etc. To be sure, it plays an important symbolic role in our lives as well, and helps define what it means to be an American. But it is ultimately silent on what it means to be a human being.

The State, on the other hand, is a far more ambitious and all-encompassing entity. With the State we really are all in it together. Hillary Clinton writes in
It Takes a Village
that civil society is just a “term social scientists use to describe the way we work together for common purposes.” But this is closer to the opposite of what civil society means. Civil society is that sphere or realm where individuals, groups, and institutions interact for private purposes. It is in this place where that thing called “life” most visibly takes place. Under tyrannical regimes civil society is kept as constrained as possible, because everything is political, everything is the State’s business. That’s why dictators curtail free association and why dissidents are forced to conspire secretly while playing soccer or chess.

Sometimes the only place where civil society is allowed to flourish is around the kitchen table, and sometimes not even then. In the Soviet Union children were taught to inform on their parents. Robert Ley, head of the Nazi German Labor Front, famously said the only private person in Germany was someone who was asleep.

According to the political philosophy that inspired the progressives, Communists, and Fascists, the “State,” in the worlds of F. W. Hegel, “is the actually existing, realized moral life.… The divine idea as it exists on earth.” As he proclaimed in
The Philosophy of History
: “[A]ll worth which the human being possesses—all spiritual reality, he possesses only through the State.” Richard Ely, intellectual mentor to Woodrow Wilson, Theodore Roosevelt, and Robert La Follette, translated Hegelianism into an American theology of the State. “God works through the State in carrying out His purposes more universally than through any other institution,” Ely wrote. It “is religious in its essence” and “a mighty force in furthering God’s kingdom and establishing righteous relations.” The only legitimate reason to restrain the State’s right and authority to intervene in society, according to Ely, lay in the limits of its “ability to do good.”
³

Alas, most progressives don’t grasp the distinction between government and State and treat the words and concepts interchangeably. They see the government as the vessel for the nation’s soul and its aspirations, the repository and reservoir of our meaning. The simple fact is that the Founding Fathers never dreamed that government was the path to self-fulfillment. And yet the progressive marketers of liberalism are determined to make the government that spent nearly $3.5 trillion in 2011—pushing our national debt past $15 trillion—into some kind of church or nationalized calling for the sorts of high school girls who say, “If we all try our hardest, we can make this the best yearbook ever!”

13

TEN GUILTY MEN

J
oe is an accountant. Joe has lived an upright and decent life. One day Joe is accused of murder. The trial sparks a great controversy. Cable news networks throw out much of their regular programming to debate questions of guilt and innocence, circumstantial evidence, alibis, and justice. Ad rates for erectile dysfunction pills and gold skyrocket.

As sure as night follows day, someone will say, “Better ten guilty men go free than one innocent man” be punished, imprisoned, or executed. This is what Alan Dershowitz said during the O. J. Simpson trial. No doubt it’s what he would say if his client ever succeeded in fulfilling his vow to find the “real killers,” and Dershowitz found himself trying to free murderers once again.

And to be fair, Dershowitz is just one of an army of distinguished legal minds to offer this pithy aphorism. The legendary English jurist William Blackstone—the
fons et origio
of much of our common law—said, “Better that ten guilty persons escape than that one innocent suffer.” In fact, this 10 to 1 formula has become known as the “Blackstone ratio” or “Blackstone’s formulation.” In a brilliant study, “
n
Guilty Men,” legal scholar Alexander Volokh traced the idea that it is better to let
n
number of guilty men free from Abraham’s argument with God in the book of Genesis over
the fate of Sodom to the writings of the Roman emperor Trajan, to the legal writings of Moses Maimonides, to Geraldo Rivera. Most often in these formulations
n
equals ten, but sometimes it can be less. “It’s better to turn five guilty men loose than it is to convict one innocent man,” says Thomas Berry Bruce, the ex-Mississippi executioner and roadside fruit stand operator. And sometimes it can be more. In 1471 English chief justice John Fortescue put the number at twenty: “Indeed I would rather wish twenty evildoers to escape death through pity, than one man to be unjustly condemned.” (Though Fontescue didn’t necessarily want the evildoers to go free, just to avoid the executioner’s block).
¹

But as Volokh concludes after his exhaustive adventure across millennia and civilizations, Blackstone’s ratio stands as “the father of criminal law.”
²

There’s only one problem: It’s not true. Or to be more accurate, it’s unproven.

Of course, it depends on what you mean by “better.” Better for whom?

I think it’s better for dogmatic reasons. But for the empiricist, the nonideologue, the antidogmatist, the fellow who concerns himself solely with what works, it is demonstrably false that we’re better off when the guilty go free.

Let’s go back to Joe for a moment. Joe, before he was a defendant, was an accountant. It was his chosen career. What does that mean? Well, in this case (and most like it) it meant he spent many years doing what accountants do: filing taxes, adding up columns of numbers, etc. He was, in short, a
career
accountant.

Now let’s ponder these ten guilty men. We know they are guilty precisely because it is asserted as a given. It is the very premise of the phrase “better ten guilty men.” So I don’t need to prove their guilt to anybody. These are guilty men. Guilty of what? Crimes. That too is stipulated. No distinction is made about what kinds of crimes these guilty men have committed. The formulation is not “better ten men guilty of nonviolent misdemeanors go free than one innocent go to jail.” It is simply that it would be better if “guilty men”—any guilty men—go free.

Well, we know a few things about criminals. Most do not commit a single crime. It is believed that for every single criminal act we know about, assign blame for, prove, and convict, that perpetrator has possibly committed dozens, even
hundreds of other crimes. We also know that a great many criminals—particularly violent criminals and sex offenders—commit more crimes when they are released from prison. We call these people “career criminals.”

In other words, career accountants do taxes over and over again and career criminals commit crimes over and over again.

In a groundbreaking study, Marvin Wolfgang (whom the British
Journal of Criminology
described as “the most influential criminologist in the English-speaking world”) looked at the records of all of the boys born in 1945 in Philadelphia and who attended school (around ten thousand). He found that just under 7 percent of the boys in Philadelphia committed more than half of all the crimes of that cohort.

Moreover, he followed the Class of ’45 for three decades, until 1975. Dismayingly, most did little jail time. On average, the fourteen murderers in the group spent a mere four years in prison. When interviewed, these worst of the worst admitted that they’d committed anywhere from eight to eleven crimes for each offense they were arrested for. That is not to say they were arrested for eight to eleven crimes. They got away with eight to eleven other crimes for each crime the police knew about. Wolfgang found that if each boy in the criminal 7 percent had stayed just one more year in jail, Philadelphians would have suffered seventy-two hundred fewer
serious
crimes.
³

Wolfgang’s was just the first of a vast body of social science research showing that a small number of criminals commit a wildly outsized share of the crimes.
⁴
A Rand study interviewed more than two thousand prisoners serving time for robbery in California, Texas, and Michigan. Almost all said they’d committed a lot more crimes than the ones they were convicted for. The half who confessed to committing the
fewest
burglaries said they averaged about six a year. But the most active criminals—the top 10 percent—averaged more than 230 per year. That’s one crime every thirty-eight hours. The bottom half of robbers averaged five a year, the top performing 10 percent of robbers averaged 87.

And then there are the costs of crime. According to a study in the
Journal of Forensic Psychiatry & Psychology
, Iowa State’s Matt Delisi and his coauthors found: “The most violent and prolific offenders singly produced costs greater than $150 million–$160 million per year in terms of victim
costs, criminal justice costs, lost offender productivity, and public willingness-to-pay costs. A 1998 study found that “the total external costs of a life of crime are estimated to range from approximately $1.5 million to $1.8 million per person. Of that amount, about 25 percent are tangible victim costs, 50 percent lost quality of life, 20 percent criminal justice costs, and 5 percent offense productivity losses.”

So let’s go back to Joe the accountant. Let us imagine for the sake of argument that people are serious when they say “better ten guilty men go free than one innocent man go to jail.” Further, let us imagine that we could actually put this idea into practice. Joe, the innocent accountant, will be able to return to his wife, two adorable kids, and lovable golden retriever. But doing so will require letting ten guilty men go free. And not just any ten guilty men, but ten of the men all the empirical research tells will commit many, many more crimes. Those ten rapists and murderers will collectively commit scores, maybe even hundreds more rapes and murders. They will create hundreds, even thousands, of grieving families and friends. They will inflate the climate of fear on the streets. They will cost society untold millions in health care, security, and criminal justice costs. Oh, and let us not forget that those ten men will be in effect pardoned for the crimes we know they committed. Your raped daughter, your murdered father: They will go without meaningful justice, just so Joe doesn’t have to endure any more injustice.

Or we can let Joe rot in prison and let those ten guilty men stay where they are.

Not surprisingly, Jeremy Bentham, the author of utilitarianism, recognized the dilemma of ten guilty men. In
A Treatise on Judicial Evidence
(1825) he writes:

At first it was said to be better to save several guilty men, than to condemn a single innocent man; others, to make the maxim more striking, fixed on the number ten, a third made this ten a hundred, and a fourth made it a thousand. All these candidates for the prize of humanity have been outstripped by I know not how many writers, who hold, that, in no case, ought an accused person to be condemned, unless the evidence amount to mathematical or absolute
certainty. According to this maxim, nobody ought to be punished, lest an innocent man be punished.
⁵

Obviously, this is nonsense on stilts, to borrow a phrase from Bentham himself. But if we are to take the logic of
n
guilty men seriously, we have to ask why it is nonsense. After all, we can be sure that there is, somewhere in our vast penal system, an innocent man rotting behind bars. After all, we know from the revolution in forensic genetics that the falsely accused are routinely freed from prison. The only way we can be absolutely sure that such crimes are never repeated is to let everyone out of prison and then close them down for all time.

Now you might say we’ve reached the point of
argumentum ad absurdum
. The reasonable man would respond that the “better ten guilty men” principle isn’t a literal policy proposal. It is an illustration of a principle.