QUESTIONING AUTHORITY Justice and Criminal Law By David L. Bazelon Knopf. 325 pp. $19.95
DAVID BAZELON, a judge of the United States Court of Appeals for the District of Columbia for more than 35 years -- 15 as chief judge -- has written his first book. A compendium of his most profound and provocative writings on criminal justice, the work is updated by brief connective and introductory essays.
Judge Bazelon is known to most lawyers and mental health professionals as the pre-eminent critic of the intersection of law and psychiatry. He authored the famous 1954 opinion for his court in Durham v. United States, which introduced a more liberal, virtually unbounded definition of criminal insanity. He wrote important opinions and articles on many other aspects of mental health law and has been a strong voice for reform in most other areas of criminal justice. No judge has been more persuasive on the deficiencies of criminal defense counsel, and few have written as forcefully on juvenile justice, preventive detention, prisons or the roots of crime. The key writings appear, clear and jargon-free, in Questioning Authority.
A major theme of the book is the moral function of the criminal law. "A truly moral criminal law," he says, must "remain sensitive to the social realities that underlie crime"; it must observe "equal justice under law" and must "force the community to confront the painful realities and agonizing choices posed by social injustice." He contrasts this view with the current mainstream notion that the principal, if not the only, goal of criminal law is the swift, certain and efficient punishment of criminals. He cogently argues that today's conventional wisdom -- lock them up as soon as they are accused, ignore procedural deficiencies since they are "guilty anyway," and put them in overcrowded jails and prisons for a lengthy and fixed duration -- is certain to fail as a solution to the crime problem. Many violent crimes are not even reported. Those that are reported result in convictions only 1 time in 10. If most criminals ultimately get caught for something -- a matter of speculation -- they are not caught most of the time. Even if they were, the penal system is so overloaded that there would be no place to put them. The money required to imprison substantially all criminals -- even the violent ones -- could rival the defense budget. Most of those imprisoned would ultimately have to be released. Today's prisons are schools in crime. Their graduates are the most predictable recidivists in society.
We can't have effective deterrence against crime, Judge Bazelon argues, without curfews, restrictions on travel; police on every block, with free access to our homes and private affairs and power to punish summarily. Such a repressive state is inconsistent with both our Constitution and our fundamental values. We should expect much less of our criminal justice system than we do. No matter how criminal law is administered, Bazelon says, it cannot be the primary agency of crime prevention.
Our only hope in the long run is to create a society in which there is widespread respect for the law and the system that enforces it. That respect is undermined when those accused of crime are denied the means to participate effectively in the adversary system, with competent counsel, independent experts and other necessities; when guilt is presumed at the outset and most that follows is mere formality; when denials of constitutional rights are disregarded by courts. The respect is enhanced when the system treats the accused with dignity and fairness, even when he is not a politician or a businessman.
But whatever we do in the criminal process will have marginal effects on criminal behavior. The root causes of crime are not in the criminal justice process but in society. We must alleviate poverty, improve education and redeem equal justice in order to give potential criminals a stake in the society that demands that they conform.
These ideas are not new. They had considerable currency 20 years ago. Most can be found in the last comprehensive national study of crime, conducted by a commission appointed by Lyndon Johnson as part of his plan for a "Great Society." But those who did not live through that period -- or who were otherwise engaged -- should find the ideas stimulating. The current attorney general seems never to have heard of them.
Another theme of the book, from which it draws its title, is that judges should not obscure reality with cant and ceremony but should strive to increase the visibility of reality. What actually goes on in jails, police stations, prisons and psychiatric hospitals should be inquired into and exposed. Judges should not shuffle people into and out of these institutions without asking hard questions about the point of it all. Nor should they pretend that all defense counsel are competent and loyal to their clients nor that all psychiatrists employed by state and federal institutions are unbiased. They should not order preventive detention, locking up a person merely because he is accused of a crime and may be a recidivist, without facing the reality that we can't predict dangerousness reliably and that such treatment destroys respect for the system, does little to prevent crime, and may even breed criminals. Judges should help to educate the public about its criminal justice system rather than conspiring to cover up its failings.
Although critical of much that passes for justice in the criminal law, Judge Bazelon doesn't purport to have easy answers to the issues discussed in the book. On the contrary, he asserts that we know very little about what drives people to commit violent crimes against their fellow humans. His major claim is that we must not accept simplistic solutions but should expose and explore complexities, in the hope that understanding will emerge and we will be receptive to reform when the understanding appears.
JUDGE BAZELON admits to having been beguiled by the psychiatric profession when he wrote Durham v. United States. He was led to believe that by the removal of formulaic obstacles to the free flow of information from expert to jury in insanity cases, the jury would get more reliable information with which to make the moral judgment implicit in the insanity verdict. These hopes were not realized, partly because the psychiatrists didn't have the expertise that many of them claimed. They also merely substituted new verbal formulas for the old ones. Thus, Bazelon joined in overturning Durham in a 1972 decision more restrictive of the insanity defense.
But Bazelon inveighs against the post-Hinckley moves to return the insanity defense to its 19th-century form or even to abolish it entirely. The insanity defense plays a statistically insignificant role in the criminal process. Fewer than 1 in 10,000 people accused of crime are found not guilty by reason of insanity. But the defense is an essential component, he argues, of our efforts to assure that we are punishing only the morally blameworthy. If we abandon that commitment, we are in deep trouble. ::
Steven Duke teaches at Yale Law School.