Slouching Towards Gomorrah

by Robert H. Bork

  There is, as Dilulio says, an anti-incarceration lobby and as well an antipunishment coalition. These people are difficult to understand. Some years back I met a lawyer who is moderately well known in Washington. He mentioned that he was contemplating a lawsuit to close a nearby prison on the constitutional ground of “cruel and unusual punishment.” I asked if the punishment was cruel and unusual because of overcrowding. He said no, it was because people are imprisoned.

  Crime rates in a number of areas have stopped rising and in some places have begun to decline. It is possible that the rate of violent crimes has gone down in the nation as a whole. This appears to be partially due to better policing, slightly higher rates of incarceration, and a decline in the number of young males, who are almost entirely responsible for violent crime though more and more women are taking up the practice. But, as the Council on Crime report puts it: “Recent drops in serious crime are but the lull before the coming crime storm.“17 That is because the population of young males in the age groups that commit violent crime is about to increase rapidly, producing more violence than we know at present. It is also likely that the coming young felons will commit more serious crimes than today’s juvenile offenders do. According to the report, the literature indicates that “each generation of crime-prone boys is several times more dangerous than the one before it, and that over 80 percent of the most serious and frequent offenders escape detection and arrest.“

  As for the coming storm, Wattenberg reproduces charts showing that the violent crime rate went up sixfold from 1957 to 1993 and that the punishment expected by criminals for crimes of violence and burglary declined precipitously from 1950 to 1970. The criminals’ expectations reflected the reality. The Council on Crime report notes that the American justice system imprisons barely one criminal for every one hundred violent crimes, and that millions of convicted criminals with histories of violence end up on probation and parole rather than behind bars. That holds true even for the most violent repeat offenders. There are far more persons convicted of violent crimes who are on probation and parole than in prison. Many of those “under supervision” commit even more violent crimes.

  As the carnage continues, the public is offered such false panaceas as “midnight basketball”—that is, providing nighttime sports facilities to keep young men off the streets—and gun control. Neither is a serious response. Both may be seen as following from the egalitarians’ unwillingness to punish. Hence alternatives are sought that must be tried before or in lieu of punishment. Midnight basketball is so obviously a frivolous notion that it need not be discussed. Gun control, though advanced with religious fervor and harrowing tales of loved ones shot to death, is no less frivolous. The real argument against severe gun control is one of policy, not constitutionality.†

  As law professor Daniel Polsby demonstrates, “the conventional wisdom about guns and violence is mistaken. Guns don’t increase national rates of crime and violence—but the continued proliferation of gun control laws almost certainly does.“18 Gun control laws raise the cost of obtaining a firearm. This is a cost the criminal will willingly pay because a gun is essential to the business he is in. He probably will not have to pay the increased cost, because illicit markets adapt to overcome difficulties. There are, moreover, nearly 200,000,000 firearms in the United States now, many of them unregistered, and it is easy to smuggle guns in or to make them in basements and garages. A gun need not be state of the art to serve a criminals purpose. Criminals will never have difficulty getting guns. The citizen who wants a firearm for self-defense will not have access to illicit markets and will be deterred by the higher costs charged in legal transactions. The result is a steady supply of guns for criminal aggression and a diminished supply for self-defense.

  “It is easy to count the bodies of those who have been killed or wounded with guns,” Polsby remarks, “but not easy to count the people who have avoided harm because they had access to weapons…. [P]eople who are armed make comparatively unattractive victims. A criminal might not know if any one civilian is armed, but if it becomes known that a large number of civilians do carry weapons, criminals will become warier.“19 Gun control shifts the equation in favor of the criminal. Gun control proposals are nothing more than a modern liberal suggestion that government, which is unable to protect its citizens, make sure those citizens cannot defend themselves.

  Like gun control, the idea of life imprisonment for criminals convicted of three crimes of physical violence is probably a false panacea. “Three strikes and you’re out” may sound like baseball, and hence be congenial to the American mind, but as a prescription for crime control it is seriously overrated. Washington State adopted such a law in 1993 and reported murders down 10 percent, rapes down 18 percent, and assaults down 4 percent in the first six months.20 This a hopeful sign, though experience with the law has been too short to be sure. Some offenders are said to be leaving the state, which is good for Washington but may not be so happy for other states. Washington may be enjoying a drop in crime rates because it is exporting its criminals. We would have a better understanding of the policy’s effects if every state adopted it.

  But there is a more serious problem with “three strikes and you’re out “Violent crimes are almost entirely committed by young men. (This may be changing. In an unexpected development, the rate of growth of violent crime perpetrated by women now exceeds that of men.) When a male reaches the age of, say, forty, he almost always ceases to be dangerous. The implications are clear: by the time we have arrested and convicted a violent felon three times and sentenced him to life imprisonment, we may be accomplishing nothing more than warehousing men who have, in all probability, ceased to be a threat.

  A problem still more serious is that crimes will be committed by those who are caught and convicted one or two times but not caught for subsequent violence, or who are convicted three times but are free much of the time between their first and third convictions. The problem is even worse than that because in most jurisdictions juveniles who commit violent crimes are not even fingerprinted and their records as juveniles are not available to prosecutors or courts when they commit further crimes as adults. Thus, the third offense as an adult may in fact be the fourth, fifth, or sixth violent crime.

  Quite aside from these issues, inadequate prison terms have become a major problem. A Brookings Institution study finds that, on average, the serious criminal commits twelve serious crimes a year.21 That means that a criminal sentenced to ten years and let out in four will, on average, commit seventy-two violent crimes during the time he should have been in prison. Other studies put the number of violent crimes per year per criminal even higher. Newspapers routinely tell of murders committed by men out on probation, parole, or released early for good behavior. According to John Dilulio, “About three of every four convicted criminals (more than three million people) are on the streets without meaningful probation or parole supervision.“22

  A better response than “three strikes” would be to impose a stiff first sentence and make the offender serve all of it. Imprisonment serves several functions, and one is incapacitating the criminal. A violent man in prison will not shoot you, rape you, or crack your skull. There is no reason to be sentimental about a person who commits even one violent or serious crime. Violence is not inflicted through negligence or inadvertence. If the man who was sentenced to ten years served ten years, at least seventy-two people would be spared death, rape, or other serious injury.

  The last-ditch argument, as Dilulio calls it, of the anti-incarceration lobby is that prisons cost too much to permit imprisonment of violent offenders for all or most of their terms. But, as he points out, “barely a half cent of every government dollar (federal, state, and local) goes to keeping convicted criminals behind bars…. [and we spend] 12 times more on public welfare programs.” It “costs society about twice as much to let a criminal roam the streets as it does to keep him behind bars.” And that cost does not include the fear and suffering of victim
s and their friends or the fear of those who do not become victims but are concerned that they may.

  We clearly have need of drastic reform of our criminal justice system, which must begin with a public discussion about restraining violent criminals, adult and juvenile. As the Council on Crime report says:

  Before such a discourse can proceed, however, it must become unacceptable in elite circles to deny, discount, or disparage the public’s legitimate desire to slow or stop revolving-door justice. In the 1960’s and 70’s, prisoners’ rights activists and anti-incarceration analysts called for moratoria on prison construction (“Tear down the walls!”). Today many of these same people, flanked by various national media commentators, are battling—sometimes openly, but as often behind the scenes—to eliminate mandatory minimum laws, abolish or subvert truth-in-sentencing laws, and block any species of three strike laws. They freely publicize and propagandize about the social costs of incarceration while choking off public discussion of its considerable social benefits. They lobby to expand the capacity of activist judges to impose prison caps which trigger the release of dangerous felons. In short, they achieve through junk science, administrative discretion, or judicial fiat what could not be achieved through democratic debate and legislative action.23

  The co-chairs of the Council that issued the report containing that excellent passage are Griffin B. Bell, former federal judge and U.S. Attorney General, and William J. Bennett, former Secretary of Education and “drug czar.” The “elite circles” they speak of with anger and frustration are the people I have been calling modern liberals. These are the people Stanley Rothman and his colleagues studied and found that an attitude of non-punitiveness toward criminals correlates with alienation from the American system. The policies and attitudes promulgated by these “elite circles” are the reason that the probability of a violent criminal, even a repeater, going to prison and serving most of his time is now only about one-fifth of what it was in the early 1960s.

  These modern liberal elites are the same people who block any significant welfare reform despite the obvious connection between welfare and the explosion of illegitimacy and crime rates. Charles Murray contends that “illegitimacy is the single most important social problem of our time—more important than crime, drugs, poverty, illiteracy, welfare, or homelessness because it drives everything else.“24 The control of the “elite circles” over the making and implementation of policy is the reason we face a highly problematic future. What is a possible cure for crime and illegitimacy at unprecedented and probably still rising levels? One possible answer is that there may be no cure, or none that we can employ against the will of modern liberals. We may go on much as we have, at least until the welfare state collapses and society is engulfed in a hurricane of violence.25

  When physical safety becomes a major problem even for the middle classes, we must of necessity become a heavily policed, authoritarian society, a society in which the middle classes live in gated and walled communities and make their places of work hardened targets. After the Oklahoma City bombing, there were serious proposals in Washington to use the Army to provide security. The mayor of Washington, D.C., proposed using the National Guard to supplement the police in that drug-ridden and murder-racked city. Whites tend to dismiss the violence of the inner cities as a black problem. As the killing and the drugs spread to white neighborhoods and suburbs, as they are doing, the response will be far more repressive. Both the fear of crime and the escalating harshness of the response to it will sharply reduce Americans’ freedom of movement and peace of mind. Ours will become a most unpleasant society in which to live. Murray poses our alternatives: “Either we reverse the current trends in illegitimacy—especially white illegitimacy—or America must, willy-nilly, become an unrecognizably authoritarian, socially segregated, centralized state.“26

  If we would avoid that, we must beat modern liberalism in elections and place the machinery of the state in the hands of people willing to reform welfare and punish crime.

  10

  Killing for Convenience

  ABORTION, ASSISTED SUICIDE, AND EUTHANASIA

  Judging from the evidence, Americans do not view human life as sacrosanct. We engage in a variety of activities, from driving automobiles to constructing buildings, that we know will cause deaths. But the deliberate taking of the life of an individual has never been regarded as a matter of moral indifference. We debate the death penalty, for example, endlessly. It seems an anomaly, therefore, that we have so easily accepted practices that are the deliberate taking of identifiable individual lives. We have turned abortion into a constitutional right; one state has made assisted suicide a statutory right, and two federal circuit courts, not to be outdone, have made it a constitutional right; campaigns to legalize euthanasia are underway. It is entirely predictable that many of the elderly, ill, and infirm will be killed, and often without their consent. This is where radical individualism has taken us.

  When a society revises its attitude towards life and death, we can see the direction of its moral movement. For that reason, it is necessary to examine the morality of such practices as abortion, assisted suicide, and euthanasia and to try to determine where they are likely to lead.

  ABORTION

  The necessity for reflection about abortion does not depend on, but is certainly made dramatic by, the fact that there are approximately a million and a half abortions annually in the United States. To put it another way, since the Supreme Court’s 1973 decision in Roe v. Wade, there have been perhaps over 30 million abortions in the United States. Three out of ten conceptions today end in the destruction of the fetus. These facts, standing alone, do not decide the issue of morality, but they do mean that the issue is hugely significant.

  The issue is also heated, polarizing, and often debated on both sides in angry, moralistic terms. I will refrain from such rhetoric because for most of my life I held a position on the subject very different from the one I now take. For years I adopted, without bothering to think, the attitude common among secular, affluent, university-educated people who took the propriety of abortion for granted, even when it was illegal. The practice’s illegality, like that of drinking alcohol during Prohibition, was thought to reflect merely unenlightened prejudice or religious conviction, the two being regarded as much the same. From time to time, someone would say that it was a difficult moral problem, but there was rarely any doubt how the problem should be resolved. I remember a woman at Yale saying, without any disagreement from those around her, that “The fetus isn’t nothing, but I am for the mother’s right to abort it.” I probably nodded. Most of us had a vague and unexamined notion that while the fetus wasn’t nothing, it was also not fully human. The slightest reflection would have suggested that non-human or semi-human blobs of tissue do not magically turn into human beings.

  I objected to Roe v. Wade the moment it was decided, not because of any doubts about abortion, but because the decision was a radical deformation of the Constitution. The Constitution has nothing to say about abortion, leaving it, like most subjects, to the judgment and moral sense of the American people and their elected representatives. Roe and the decisions reaffirming it are equal in their audacity and abuse of judicial office to Dred Scott v. Sandford. Just as Dred Scott forced a southern pro-slavery position on the nation, Roe is nothing more than the Supreme Courts imposition on us of the morality of our cultural elites.

  Qualms about abortion began to arise when I first read about fetal pain. There is no doubt that, after its nervous system has developed to a degree, the fetus being dismembered or poisoned in the womb feels excruciating pain. For that reason, many people would confine abortion to the early stages of pregnancy but have no objection to it then. There are, on the other hand, people who oppose abortion at any stage and those who regard it as a right at any stage up to the moment of birth. I will discuss here the question of abortion at any stage from conception to birth.

  In thinking about abortion, it is necessary to address
two questions. Is abortion always the killing of a human being? If it is, is that killing done simply for convenience? I think there can be no doubt that the answer to the first question is yes; and the answer to the second is almost always. For many people, these answers will be dispositive, but for others, they will not. It will be necessary, therefore, to discuss some of the justifications given by pro-abortion thinkers who accept those answers but do not regard them as decisive.

  In discussing abortion I will not address instances where most people, however they might ultimately decide the issue, would feel genuine moral anguish; cases, for example, where it is known that the child will be born with severe deformities. My purpose is not to solve all moral issues but simply to address the major ones. Abortions in cases of deformity, etc., are a very small fraction of the total and, because they introduce special factors, do not cast light on the direction of our culture as do abortions of healthy pre-borns performed for convenience.