[Congressional Record Volume 140, Number 62 (Wednesday, May 18, 1994)]
[Extensions of Remarks]
[Page E]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: May 18, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
              JUDGE ABNER MIKVA ON: THE POLITICS OF CRIME

                                 ______


                          HON. JOHN J. LaFALCE

                              of new york

                    in the house of representatives

                         Tuesday, May 17, 1994

  Mr. LaFALCE. Mr. Speaker, concerns about crime and how to control and 
cope with it are topics being widely debated in the legislative 
hallways and in homes all across America.
  The Honorable Abner J. Mikva, Chief Judge of the U.S. Court of 
Appeals for the District of Columbia Circuit, and a former colleague in 
the House of Representatives, injected some interesting perspectives, 
which I largely share, into this debate during a lecture at my alma 
mater, Canisius College, in Buffalo, NY. The 11th speaker in the Frank 
G. Raichle Lecture Series, Judge Mikva's topic was: ``The Politics of 
Crime.''
  Judge Mikva's comments make for some particularly timely reading as 
we in the Congress continue to labor to forge meaningful anticrime 
legislation.

                         The Politics of Crime

                          (By Abner J. Mikva)

       When Congressman John LaFalce, one of Canisius's 
     distinguished alumni, first asked me if I would be interested 
     in speaking as part of the Raichle Lecture Series, I accepted 
     with alacrity. First of all, because it was John LaFalce 
     doing the asking. But second, because I knew that some very 
     distinguished personages had been previous lecturers in this 
     series. I have always believed in innocence by association, 
     and so if I can claim identification with the likes of 
     Justice Ruth Ginsburg and Judge Wald of my court, I do it. 
     And so, President Cooke had no trouble getting me to come to 
     Buffalo, especially if it wasn't during the winter time.
       I was gerrymandered during my tenure in Congress. I was not 
     the late Mayor Daley's favorite Chicago Democrat, and so 
     after the 1970 census, I found myself running on the North 
     Shore of Chicago, in what was then the richest congressional 
     district in the country. I didn't think that my views on 
     taxation and labor law and social programs, which had been 
     met with approbation in my South Side, University of Chicago 
     district, would fair too well in my new district. And so I 
     tried to make reform of the criminal laws one of the main 
     issues in the campaign. I talked about gun control, and 
     prison literacy programs, and a meaningful prison industry 
     structure. I talked about all the prisons I have visited, and 
     how we had to find alternative means of punishing and 
     treating criminals. I lost that campaign, even though I was 
     sort of the incumbent Congressman, running against a 
     relatively unknown opponent. The criminal laws have been 
     ``reformed'' several times since then (some would say 
     ``deformed''), and none of the ideas that I was then 
     expressing are any more popular now than then. But I am 
     stubborn, and what's more, none of the ideas that are not 
     being offered as solutions to our crime problems make much 
     sense to me. I am convinced that we are moving in the wrong 
     direction. And since Article III protects me from having to 
     persuade anybody that I am right in order to keep my job, let 
     me proceed.
       We have been trying to protect ourselves from and avenge 
     ourselves on the evil-doers amongst us since we came out of 
     our caves. Almost never do we recognize that there is great 
     tension between those two purposes--protection and vengeance. 
     In sentencing criminal defendants, there are four objectives 
     traditionally stated:
       1. Retribution--getting ``even'' with the defendant;
       2. Deterrence--frightening others from offending;
       3. Rehabilitation--reforming the defendant to sin no more.
       4. Incapacitation--keeping the defendant from committing 
     other crimes--at least while he is in jail;
       Of those four objectives, only incapacitation achieves any 
     of society's expectations. As to the others, they are 
     expensive, foolish, or at war with each other.
       Let us start with retribution--getting even, revenge. It's 
     very expensive. It now costs over $30,000 per year to keep a 
     defendant in a federal penal institution. That is more than 
     it costs to send someone to Harvard Law School. While we can 
     contemplate as to which institution does the inmate the most 
     harm, at least Harvard is not financed with tax revenues.
       Those who favor the death penalty, and there are many, 
     would say that retribution--an eye for an eye--is a 
     compelling argument for imposing more capital punishments. Be 
     assured that those cost even more. Put together the costs to 
     the judicial system in the endless, but often necessary, 
     appeals, the extra costs of keeping an inmate on death row, 
     the total lack of evidence that the death penalty has any 
     deterrence value, the obvious lack of rehabilitation 
     potential on any of our executed felons, and we are left with 
     a very uncomfortable justification for society engaging in 
     ``legalized murder''--and that is that we can make sure that 
     the particular sinner will sin no more.
       Many earlier civilizations--and some third world countries 
     today--meted out capital punishment for all kinds of crimes. 
     In early England, it was used against pick-pockets. It did 
     not even deter pick-pocketing at the public hangings of other 
     pickpockets, although it took care of the particular 
     pickpocket being hanged. Today, we are one of the few 
     countries still tolerating capital punishment at all. The 
     European Human Rights Treaty prohibits any signatories from 
     enacting capital punishment, and makes it very difficult for 
     any signatory to cooperate with those countries which use it. 
     Attorney General Meese had to assure the German government 
     that we would not seek capital punishment against an accused 
     terrorist before Germany would even consider the terrorist's 
     extradition to this country.
       A frequent historical justification for our ``get even'' 
     mentality is the Old Testament's ``eye for an eye'' and 
     ``tooth for a tooth'' doctrine. Actually, that biblical 
     reference would more appropriately justify restitution, the 
     talmudists tell us, because the ancient Jewish legal system 
     was not strong on capital punishment or vengeance. The idea 
     was that if someone took your eye, he would have to provide 
     restitution by ``seeing'' for you in your work.
       The ``deterrence'' factor is getting a lot of play in 
     legal literature. It blends in nicely with the cost-
     benefit analysis that my alma mater, the University of 
     Chicago has touted so highly. If it works for torts, and 
     adoptions, and environmental laws, why doesn't it make 
     sense to apply it to the criminal law. And so we have the 
     sentencing guidelines, which have federal judges poring 
     over a grid system, which factors in all of the elements 
     of the crime--the amount of drugs being carried, the 
     presence of a weapon--as well as the defendant's level of 
     remorse and cooperativeness, and achieves a sentencing 
     range for that person. The sentencing guidelines, coupled 
     with the mandatory minimum sentencing provisions that 
     Congress is fond of, appear to rest on the notion that the 
     criminally inclined carry around one of those sentencing 
     grid tables that judges use. Before he perpetrates his 
     crimes, the putative perpetrator sits down and figure out 
     the costs, finds them higher than the benefits, and thinks 
     better of perpetration.
       It has always befuddled me that we can seriously assume 
     that the members of our society who generally behave least 
     rationally are going to engage in the rational process that 
     underlies the deterrence theory. When coupled with the 
     mathematical computations that the sentencing guidelines 
     require, it is hard to believe that anyone is serious about 
     deterrence. A young 16 year old kid in New York is promised 
     $300.00 for delivering a ``package'' to someone in 
     Washington. He gets one-half in front, and the other half 
     when the package is delivered. On most occasions, he is 
     nabbed at Union Station in Washington, the package and the 
     $150.00 is seized, and he is sentenced on the basis of how 
     large a quantity of drugs was in the package. Whether seized 
     or not, there is nothing in our criminal justice system that 
     will deter the next 16 year old kid from leaping to the same 
     opportunity when it is offered him. And the attractiveness to 
     the next kid will not turn in any way on whether the 
     punishment is 5 years or 10 years or life or death.
       A recent survey showed that most black male teenagers, 
     living in the ghettos, did not expect to live until age 30. 
     Most of them had been in jail or had family members in jail. 
     Their life expectations, and life expectancy, were so bleak 
     that jail held no terrors. Factor that into a deterrence 
     formula.
       Then there is rehabilitation. We even name our institutions 
     as if we seriously think that our present punishment system 
     contributes to that end. Of course we reform kids in our 
     reform schools, or course we correct first-offenders in the 
     houses of correction, and of course we make our felons 
     penitent in the penitentiaries. Shall we talk about prison 
     industries? I am always amazed that our prison industry 
     planners are able to anticipate what jobs will become non-
     existent in our economy, and concentrate our training 
     programs in those fields. In Illinois, for example, prison 
     training concentrated in printing, where there has been 
     chronic unemployment since World War II, in tailoring, where 
     again the unemployment rate has been overwhelming, and in the 
     making of license plates. I always though that license plate 
     making was an especially interesting trade to learn in 
     prison. As far as I know, the only places where there are 
     jobs to make license plates is in--prisons.
       There are some literacy programs extant in the 
     penal institutions, but they are very few and poorly-
     funded. Statistics show that the overwhelming majority of 
     prison inmates have trouble with basic reading and writing 
     skills. How expensive can it be to require literacy 
     training? Nothing near what it costs us not to do it. The 
     recidivism rates throughout our country make it clear that 
     rehabilitation is a bust.
       That leaves incapacitation. That works. There are several 
     problems, however, with making that the centerpiece of our 
     criminal justice system. In the first place, if nothing is 
     done to check the flow of new felons, the cost is 
     overwhelming--not just the per capita costs that I referred 
     to earlier--but the additional costs of servicing an ever and 
     ever larger prison population. The cost of building new 
     prisons is much higher than the cost of the old prisons. 
     Older prisoners (and we do have to keep prisoners longer if 
     we are to really incapacitate them from further crime: good, 
     hardened criminals that have been exposed to the penal system 
     for any length of time need to be kept until they ``burn 
     out'' which may mean keeping them into their 50's and 60's.) 
     cost much more in medical expenses alone.
       In addition to cost, there is the national shame factor. We 
     now have more people in jail in relation to our population 
     than any other country in the world. Are we really the most 
     lawless nation around? And in addition to the shame factor, 
     there is the limits factor which in our body politic will 
     impose. Building all of those new prisons, putting more and 
     more policemen on the streets, finding more and more ways to 
     secure our houses and shopping malls and factories and post 
     offices from criminals, and then finding ourselves even more 
     in fear of our lives and safety than before, at a certain 
     point the taxpayers will say incapacitation is not enough. 
     And it isn't.
       The fact is that the criminal justice system is not 
     enough--or even the most relevant institution to deal with 
     our crime problems. It makes about as much sense to look to 
     prisons to solve our chronic crime problem as it would be to 
     build more funeral parlors to solve a cholera epidemic. A 
     very distinguished judge of the Superior Court of the 
     District of Columbia, Curtis von Kann, recently made a speech 
     on how to solve the homicide crisis in our nation's murder 
     capital. He said:
       ``The criminal justice system in America has never been 
     viewed by knowledgeable observers as the principal force in 
     reducing crime. That is not its job. Rather, its job is to 
     apprehend and try alleged offenders, and upon conviction, to 
     sentence them. While all of that, of course, has been thought 
     to have some impact on reducing crime, sociologists will tell 
     you that in any society the far more important factors 
     working to prevent the commission of crime are societal 
     factors--for example, education, widely shared moral and 
     religious codes of conduct, family structure and support and 
     viable lawful opportunities for employment and upward 
     mobility.''
       And there is the rub. Those ``societal factors'' are all 
     expensive and exactly what the voters do not want to hear. 
     They cost a lot of money, and they have no ``red meat'' 
     appeal to the people who have been terrorized by perceptions 
     of more violent crime. The voters want ``here and now'' 
     answers to the problem, not some goody two-shoes, bleeding 
     heart alternatives. And so the current crime bill that has 
     passed the Senate and is pending in the House of 
     Representatives has 50 new death penalty provisions, a huge 
     number of additional mandatory minimum sentencing provisions, 
     and $22 billion for more police, more jails, more resources 
     to the ``output end'' of the crime pipeline.
       Senator Paul Simon of my home state of Illinois was one 
     of four Senators to vote against the crime bill when it 
     passed the Senate late last year. I admire his courage, 
     but I hope he fares better than I did in 1970 when I was 
     one of 38 members of the House to vote against the 
     Organized Crime Act of 1970. I voted against it for 
     similar reasons to his--the provisions in the 1970 Act--
     like RICO (Racketeer Influenced Corrupt Organizations) and 
     other programs that did nothing about the serious street 
     crime problems we had even then--were totally irrelevant 
     to the problems we were supposedly addressing. I spend the 
     rest of my political career explaining why I voted ``for'' 
     organized crime. The majority of Congress know where the 
     politics of this issue lie.
       If we really want to get at the input piece of the crime 
     problem, we need to work at the disease. When my wife was 
     teaching school in the inner city of Washington, D.C., some 
     of her fellow teachers said that they could predict at the 
     third grade level which kids would end up in prison. They 
     were probably more right than wrong, and the predictions 
     weren't always self-fulfilling prophecies. Early intervention 
     is possible. It is expensive and it does not satisfy the red 
     meat eaters that I spoke of earlier. But it is not a radical 
     idea to suggest that there must be a substitution source for 
     family values, and parental guidance and societal mores that 
     most kids get at home. We need to give the troubled and anti-
     societal kids some visions of a good life that includes the 
     good things that our kids aspire to and achieve for. For one 
     third the cost of keeping somebody in jail after the fact, we 
     could send that somebody to a private school, or, better yet, 
     improve the public schools--at a far lower per capital cost 
     and with a great restoration of the historic first principle 
     of our democracy, a universal, free, public school system 
     that promotes the commonality of our nation.
       It would help if we took a bite out of the weapons of 
     crime. No other country has more handguns per capita than the 
     United States. We have kids killing kids for a pair of shoes, 
     or because somebody ``dissed'' somebody on the way to class. 
     Those killings and the overwhelming percentage of street 
     crimes are not done with hunting weapons. They are done with 
     concealable weapons, and a serious effort to reduce the 
     accessibility of handguns would make a substantial 
     difference.
       Mostly, it would help if we started looking at real 
     solutions. If we really want to reform the criminal justice 
     system, we have to start at the very first intersection that 
     it has with a rule-breaker. Usually, that is in the juvenile 
     delinquency system. If you saw the rap sheets that I see, you 
     would agree with me that the juvenile institutions are a 
     disaster. The detention facilities are overcrowded, 
     understaffed and without any discernible mission except to 
     act as a finishing school for young hoodlums. The juvenile 
     courts are not much better. Even when there are sensitive 
     judges who are trying to make some reason out of the system, 
     there are no resources available--no counselors, no mental 
     health specialists, no teachers, no nothing. Back when I was 
     practicing law, on those rare occasions when I represented a 
     juvenile in trouble with the law, I would opt for the adult 
     criminal court. At least there, the judge had some experience 
     with notions of due process, and, more important, there were 
     more resources available than at the juvenile court level.
       But I am not advocating a ``soft approach'' to juveniles. 
     On the contrary, I want that first encounter with the law, 
     whether it is at the juvenile level or at the adult level, to 
     be treated with the utmost urgency and stringency. I want to 
     do whatever it takes to break the chain then, when the rule-
     breaking may be non-lethal. If it means incarceration for a 
     long period to incapacitate the transgressor, and that is the 
     only remedy that will work in that case, let's do it. If it 
     means extensive counseling, that is still a lot cheaper than 
     subsequent institutionalization. If it means changing the 
     milieu of the juvenile (such as removing him or her from the 
     home where the rule-breaking is breeding), let's do it. If it 
     means moving the adult transgressor out of his community to 
     another place--whether it's a boot camp or a job in another 
     city, let's do it. Whatever we do at that early time is much 
     more likely to work, and be much cheaper to implement than 
     anything we do after the perpetrator has accumulated a nice 
     long curriculum vitae of crime.
       The President evoked a great response to his ``three 
     strikes and you are out'' proposal in his State of the Union 
     speech. As he should. It is incomprehensible to let serious 
     three time losers out on the street again. And we don't, with 
     very, very few exceptions. Most of the time, persons who are 
     found guilty of crimes of violence go to jail for very long 
     periods. I don't know many three time losers who judges or 
     jailers turn loose. I don't know many jailers who are soft on 
     crime. I don't know any judges who are soft on crime. I 
     certainly am not one of them. I have to remind myself over 
     and over on reviewing the appeals from the criminal court 
     (that our federal district court has become) that the issue 
     of law involved transcends the heinous facts of the case--or 
     the understandable fear that my fellow citizens--and I--have 
     of the street crime that threatens us all. Judges who see the 
     crime and carnage that are rampant in our big cities are not 
     unaware of the way people feel about the criminals among us. 
     But we have to be equally aware that the answer to the 
     problem will not come from a high bench or a black robe. Nor 
     will it come through more frequent and longer use of the 
     penal institutions to which we sentence those criminals.
       Somehow, we need to fashion a political process that breaks 
     the present linkage between crime and punishment and 
     politicians who are better able to sell the political package 
     that I so poorly hawked during my years as an elected 
     representative. I am hoping that some of those better 
     politicians are sitting right in this room.
       Thank you.

                          ____________________