Crime and Consequences; R. Bidinotto

252 THEFREEMAN IDEAS ON LIBERTY Crime and Consequences by Robert James Bidinotto Part I: Criminal Responsibility D uring the past Presidential campaign, the issue of crime loomed large-due, in part, to this writer's Reader'sDigestarti cle on the now-infamous Willie Horton case'! That story offers a fitting introduction to the sub ject of America's seemingly intractable crime problem, and what's wrong with our criminal jus tice and correctional systems. Horton was a habitual criminal, sentenced in Massachusetts to "life with no possibility of pa role" for the savage,'unprovoked knife slaying of a teenage boy. However, like many other alleged "lifers" in that state, after only 10 years in prison he was transferred to an unwalled, minimum-se curity facility.There, he became eligible for daily work release, as well as unescorted weekend fur loughs, from prison. Following the example of 10 other "life-with out-parole" killers over the years, Horton decid ed not to return from one of his furloughs. In stead, months later, he invaded the home of a young Maryland couple, where for nearly 12 hours he viciously tortured the man and raped the woman.

Not even a "life without parole" sentence for a gruesome murder had been enough to keep a killer off the streets-a fact which incensed Copyright 1989 by Robert James Bidinotto. Mr. Bidinotto, who has written several articlesfor The Free man, is a full-time writer and lecturer specializing in political and cultural topics. enough Americans to become a major election is sue. It also reopened the public debate about the criminal justice system in America. For as the campaign rhetoric grew heated, many citizens be gan to discover that the Horton episode was not an isolated exception. Instead, they learned that, in today's criminal justice system, justice is the exception. Now that public awareness of, and concern about, such matters is intense, it seems an oppor tune time to reconsider the way in which we ap proach the problem of crime. Permit me to begin on a personal note. My work on the Horton story put me in touch with police, parole and probation workers; with politi cians, prosecutors, and prison reformers; with judges and jurists, therapists and theorists, cor rections officials and-most important-crime victims.The faces of victims have haunted me for over a year. So at the outset, let me declare my bias without apology: it is for them. Today, they are too often the forgotten people in our legal system; and their cries for justice must be heard and answered.

For months, the more I learned, the more I re alized that what happened in the Horton episode was symptomatic of a whole approach to crime which has gained sway during the past three decades. In this article, and those in the next two issues of The Freeman, that approach will be ex plored in its many facets: • the reasons for the surge in criminality dur ing the past three decades; • the various theories which purport to "ex plain" crime; • the nature of criminals; -the criminal justice system which confronts them; -the correctional system which tries to reform them; and -the ways in which our approach to crime might be changed. The CrimeExplosion Across the nation, our system of dealing with crime has utterly broken down. To put things in perspective, we must first grapple with some numbers. Crime itself contin ues to increase, with no end in sight. The number ofcrimes reported in 1987 was 12 percent higher than in 1983 and 21 percent higher than in 1978.2 Not only is the number of crimes increasing; so is the crime rate-the number of reported crimes per 100,000people. From 1964 to 1980, the prop erty crime rate increased nearly 2.5 times, while the rate of violent crime tripled. 3 Though these rates declined somewhat during the first half of this decade, they have been rising steadily since.4 Such statistics tend to depersonalize the issue.

It's quite another matter when you are personally assaulted or robbed; when your wife or daughter is raped; when your neighbor's home is burglar ized; when an employee embezzles funds from your business. Such things happen to us more fre quently than we realize. In 1986 alone, about one household in four was touched by some kind of crime-meaning that at least someone in each of those homes fell prey to a criminal.5 Another gauge of the crime explosion is the rapid growth of prison populations. In 1960,there were some 200,000 inmates in Federal and state prisons; by 1987, there were 581,609.6 This might seem proof of a growing "get-tough" attitude to ward crime. Yet the percentage of serious crimes committed which resulted in imprisonment actu ally fell sharply throughout the 1960s and 1970s. In 1986, the ratio of prison commitments to total crimes was 32 percent lower than in 1960.7 This means that a third fewer of total crimes were be ing punished with imprisonment. It also means that, despite rapidly increasing prison popula tions, the crime rate is growing even faster than we've built cells to hold all the new criminals.

And in fact, even these statistics paint too rosy a picture. 253 The Federal Bureau of Investigation (FBI) an nounced that, in 1986,13.2million serious crimes, from murder to auto theft, were reported to local authorities. 8 However, the FBI's statistics cover only eight specific "index crimes." Moreover, its numbers reflect only those incidents reported to police. In fact, the FBI's annual Uniform Crime Reports grossly understates the total number of crimes which actually occur. In an effort to get more reliable numbers, the American Bar Association (ABA) recently com piled information from various sources, including crime-victim surveys. The ABA estimated that, in reality, about 34 million serious crimes had been perpetrated nationally during 1986-some 2.5 times what the officialnumbers indicate.9 This means that other official data-such as computations of arrest and imprisonment rates-do not begin to convey how serious the crime problem is. For example, FBI statistics show that only one of every five serious crimes reported to police are "cleared" by an arrest. 1O But if the ABA is correct, we must multiply by 2.5 to account for unreported serious crimes. This reveals that there is actually only one arrest for every 12.5 serious crimes committed. Put another way: only eight serious crimes in 100 result in so much as an arrest.

What are the chances that even this small per centage of arrested criminals will ever see the in side of prison? Consider now what happens with in the criminal justice system. "CriminalJustice":An Overview Of the eight felons per 100 serious crimes who are arrested, one or two are teenagers who are routed to the juvenile justice system (which is far more lenient than the adult system). This leaves only six or seven adults apprehended for every 100 serious crimes committed. Of these, many are released for lack of sufficient evidence or on technicalities; a few are acquitted after standing trial. Of the tiny number remaining who plead guilty or are convicted, most receive dramatically reduced sentences, or are allowed simply to "walk" on probation, thanks to "plea-bargain" arrangements. The results? According to the federal govern ment, for every 100 serious crimes reported in 1986, only 4.3 criminals went to prison.ll But ad254 THE FREEMAN • JULY 1989 justing once again to account for unreported crimes, we find that in 1986, only 1.7 percent of the most serious crimes were punished by impris onment. In other words, only 17 perpetrators were put behind bars for every 1,000 major felonies.

In calculating his chances of being punished, then, any would-be criminal would logicallycon clude that the odds are definitely on his side-that today in America, crime does pay. Hence the phenomenon of the career criminal. Most crimes are committed by repeat offenders, often arrested but rarely imprisoned. For exam ple, in 1986, Massachusetts state prison inmates each had an average of 12.6 prior court appear ances. Since, as we have seen, the typical criminal gets away with 12.5 felonies for his every arrest, simple multiplication (12.6 X 12.5) suggests that, on average, many of the Massachusetts inmates had committed well over 100 crimes. Few of these inmates were teenagers: their average age was 31. Yet despite their status as career crimi nals, 47 percent of them had never before been incarcerated as adults.12 The career criminal knows, too, that even in the unlikely event he's ever sent to prison, all is not lost. If he's been convicted of multiple felonies, he stands a good chance of getting "con current sentences," to be served simultaneously instead of consecutively.This greatly reduces the time he'll spend behind bars. And he also knows that prison sentences almost never mean what they say.

In most jurisdictions, parole eligibility comes after serving only a fraction of the nominal term handed down by a judge. In addition, from the time he enters prison, the inmate is offered a de facto bribe of automatic deductions from his sentence for each day of good behavior (called "good time"), as well as additional deductions for blood donations or participation in various reha bilitation programs. These may count either against his prison term itself, or his post-release parole supervision time. Furthermore, virtually every state offers the in mate a wide array of outside release programs. After serving only part of his sentence, the in mate can become eligible to leave prison walls and work at a job (work release), or attend class es (education release), or simply visit his family and friends for several days at a time (home furloughs). The public's image of the hardened criminal leaving prison handcuffed to an armed guard is many years out of date. In many current release programs, even dangerous killers (such as Willie Horton) are simply turned loose without any prison escort-presumably in the "custody"

of a familymember or friend. In summary: even among that small percent age of hardened, repeat offenders who are appre hended, convicted, and imprisoned, few will spend very long under lock and key. And within a short time after release on parole, most resume their criminal careers. Proof of this lies in many studies showing that paroled inmates have high rates of "recidivism" (or relapse into crime). De pending on how recidivism is measured, fully a third to half of all paroled inmates are returned to prison within a year or twa-and this despite the very low chance of being arrested for any of their subsequent crimes. As every criminal knows, the "criminal justice system" is a sham. As we shall later see, the con sequences are undermining the motivation and integrity of those who man the institutions of the law. Worst of all, millions of victims, who hope for justice, find that some of the worst crimes against them are perpetrated after they go to court.

Irrationality of this magnitude doesn't "ju~t happen." Nor would it long be tolerated, without a complicated framework of abstract rationaliza tions to soothe, confuse, and dismiss critics. Like most compromised institutions, today's criminal justice system is the handiwork of what I call the "Excuse-Making Industry." The Excuse-MakingIndustry This industry consists primarily of intellectuals in the social-science establishment: the philoso phers, psychological theorists, political scientists, legal scholars, sociologists, criminologists, economists, and historians whose theories have shaped our modern legal system. It also consists of an activist wing of fellow-travelers: social workers, counselors, therapists, legal-aid and civ illiberties lawyers, "inmate rights" advocates, "progressive" politicians and activists,and so on. It was this industry which, in the 1960s and 1970s,initiated a quiet revolution in the criminal justice system. Its proponents managed to rout the last of those who believed that the system's purpose was to apprehend and punish criminals.

Instead, the Excuse-Making Industry was able fi nally to institutionalize its long-cherished dream: not the punishment, but the rehabilitation of criminals. Prisons were renamed "correctional facilities," and state bureaus of prisons became "depart ments of correction." Many aspects of the legal and prison systems, outlined above, were imple mented about ihis time. These reforms dove tailed with other products of the industry: mas sive government spending programs to eradicate what it called "the causes of crime." Welfare pro grams mushroomed; academic standards declined so as not to "discriminate" against the "disadvan taged"; "elitist" moral standards were scorned by various "liberation" movements. Summing up the unintended consequences of these efforts, Charles Murray has written: "The changes in welfare and changes in the risks at tached to crime and changes in the educational environment reinforced each other. Together, they radically altered the [social]incentive struc ture." This became especially evident in the area of crime: crime rates began to take off while penalties for crime lessened. Soon, "a thoughtful person watching the world around him. . . was accurately perceiving a considerably reduced risk of getting caught. . . . It was not just that we had more people to put in jails than we had jails to hold them. . . ; we also deliberately stopped putting people in jail as often. From 1961 through 1969, the number of prisoners in federal and state facilities-the absolute number, not just a proportion of arrestees-dropped ev ery year, despite a doubling of crime during the same period."13 Clearly,it wasn't the intention of the social-sci ence establishment that crime rates soar. The Ex cuse-Making Industry is no diabolical, centrally directed conspiracy, harboring some warped, un fathomable desire to foster criminality. Rather, it's a sprawling intellectual consensus, consisting of many diverse, competing, and often conflicting elements-but united in a single premise: that the criminal isn't responsible for his behavior.

There are many variations on the theme that binds the Excuse-Making Industry. There are sociologists,who hold that environ mental, racial, social, and economic factors have CRIME AND CONSEQUENCES 255 "driven" the criminal to his antisocial behav ior-a view echoed by economists, usually of a Marxist inclination, who argue that criminals are formed by their membership in an "exploited" economic class. There are Freudian psychologists, who con tend that criminals are helpless pawns of emo tional drives rooted in childhood; and behavioral psychologists, who believe criminals are clay, shaped by "negative reinforcers" in their families and neighborhoods. There are biologists, who cite the alleged cor relation between criminal behavior and posses sion of a so-called "mesomorphic body type"; other biologists and geneticists, who think crimi nality is caused by genetic, physiological,or bio chemical deficiencies; still others, who believe there may be a racial or ethnic "propensity" to criminality.

There are eclectics, who think a combination of such "causes" can "explain" crime. But whatever the variation, the theme is a con stant. The criminal is not responsible for his ac tions, because man is not a causal agent in any primary sense. Forces and circumstances outside his control "cause" him to behave as he does. He should be forgiven, or treated therapeutically, or placed in a better environment, or counseled to "cope" with his uncontrollable inner demons. But he must not be held accountable for his ac tionsand, under no circumstances,punished for what he "couldn't help." For all its internal bickering, the Excuse-Mak ing Industry's common theme may be summed up in a singlecry: "He couldn't help it, because..." Arguments arise only in answer to the question: "... because why?" Consider some of the commonly advanced "explanations" for criminal behavior. The SociologicalExcuse In the musical West Side Story, one juvenile delinquent incisively satirizes the sociological theory of crime, telling the local cop, Officer Krupke: "We're depraved on accounta we're de prived."

Former U.S. Attorney General Ramsey Clark offered a more formal summary of the view that crime is "caused" by external social and econom ic factors: 256 THE FREEMAN. JULY 1989 If we are to deal meaningfully with crime, what must be seen is the dehumanizing effect on the individual of slums, racism, ignorance and violence, of corruption and impotence to fulfill rights, of poverty and unemployment and idleness, of generations of malnutrition, of congenital brain damage and prenatal neglect, of sickness and disease, of pollution, of de crepit, dirty, ugly, unsafe, overcrowded hous ing, of alcoholism and narcotics addiction, of avarice, anxiety, fear, hatred, hopelessness and injustice. These are the fountainheads of crime. They can be controlled. As imprecise, distorted and prejudiced as our learning is, these sources of crime and their controllability clearly emerge to any who would see,14 This is probably the most widely held view of criminal causation-and probably the easiest to refute. Whatever might be said of the prevalence of unsavory social conditions today, surely they were even more prevalent in decades and cen turies past, and are more prevalent today in Third World nations. Yet despite the fact that conditions and circumstances have been con stantly improving for the vast majority of people, crime today is increasing; and it is increasing faster in America and other developed countries than in most poorer parts of the world.IS The sociological excuse (of which Marxist "class warfare" theory is a subset) flies in the face of common sense and empirical evidence. Even within the same poor, inner-city families, some youngsters become criminals, while the majority do not. Sociology (including Marxism), based on the collectivistpremise that men are interchange able members of undifferentiated groups, cannot account for such obvious diversity in individual behavior under identical circumstances.

Or consider the following example: "During the 1960s, one neighborhood in San Francisco had the lowest income, the highest unemploy ment rate, the highest proportion of families with incomes under $4,000 per year, the least educa tional attainment, the highest tuberculosis rate, and the highest proportion of substandard hous ing of any area of the city. That neighborhood was called Chinatown. Yet in 1965, there were only five persons of Chinese ancestry committed to prison in the entire state of California. "16 Clearly, factors other than economics and ethnic status affect the propensity toward criminality. How, then, do we explain the disproportionate numbers of poor and black inmates in prisons? For one thing, those who are better-off finan cially can afford better lawyers, and manage to "beat their raps" more consistently than those forced to rely upon court-appointed attorneys or legal-aid lawyers.

We might also consider a heretical thought: not that "poverty causes crime," but that criminality causespoverty. While most poor people behave responsibly and work hard to better themselves, somedo not. The majority's responsible behavior has a much greater likelihood of leading many of them out of poverty; but the minority's irresponsibility is an almost sure path both to continued poverty, and to criminality. Irresponsible youths tend to be self-indulgent and short-range in their thinking. They disrupt their classes,drop out of school, de velop criminal associations,drink, gamble, get in volved with drugs, malinger on the job, or simply refuse to work at all. These are hardly habits that lead to upward mobility or which keep one out of trouble. Also, the ranks of the poor are infused daily with new members: people who were once better-off, but whose irresponsible attitudes and actions have caused them to lose their jobs or families, to become addicted to drugs, or to associate with people of bad character.

If good people have a much greater likelihood of ascending from poverty, and if bad people have a much greater likelihood of sinking into or remaining in poverty, is it any wonder that the ranks of the poor contain a disproportionate number of criminals? Character, it has been said, is destiny.It should come as no surprise that pris ons are filled disproportionately with people who are both criminal and poor. But it was their crimi nality which caused their poverty, not the other way around. There is empirical evidence to support this hy pothesis. In a classic study of male criminality, Sheldon and Eleanor Glueck conducted in-depth surveys of 500 young delinquents, matching them with 500 nondelinquent boys of similar ages, eth nic backgrounds, 1.0.'s, and housing in compara ble slum neighborhoods. Even so, the delinquent boys' homes were more crowded and less tidy, and had lower average family earnings, fewer breadwinners, lower educational levels for parents and grandparents, greater histories of family discord, higher incidences of public welfare sup port. .. and crime.17 These facts may be characterized as symptoms of irresponsibility.Since the boys' impoverished environments were virtually identical, the chief differentiating factor between the two groups seemed to be exposure to differing sets of atti tudes, values, morals. Even though all the boys came from the slums, the "bad boys" more fre quently came from homes in which irresponsibili ty and criminality were prevalent; and those fac tors were correlated with even lower income and living standards. This bears out the "crime causes poverty" hypothesis.

Moreover, these influences by no means had a uniform impact on the boys: plenty of the "good boys" were exposed to bad moral influences, too; and many of the "bad boys" came from better moral environments. This is a telling argument against the collectivist premises of the sociolo gists. "Influences" are not the same as "causes": one's response to his environment (these facts seem to say) is individual. As for the reasons why members of racial mi norities constitute a disproportionate share of the inmate population, the facts lead to interpreta tions other than "racism." As mentioned earlier, Charles Murray has pre sented overwhelming evidence that welfare-state programs increase incentives for irresponsible be havior among their presumed beneficiaries. 18 Historically, such programs have been directed toward the poor, particularly blacks and other mi norities. Murray shows that during the 1960s and 1970s, when government programs for these so cial groups expanded enormously, a host of symp toms of irresponsible behavior among these same groups followed-including a virtual explosion of criminality.19 Based upon such evidence, we can safely con clude that the disproportionate incarceration rate of minorities is caused, not by their having some "racial predisposition" to criminality, nor by a "racist" legal system singling them out for arrest and imprisonment. It stems, rather, from the per nicious, unintended consequences of welfare statism, which has increased incentives for irre sponsibility among targeted minorities-most notably, urban blacks.

The sociological "deprivation" theory of crime CRIME AND CONSEQUENCES 257 also cannot explain the fact that "white-collar" crimes are increasing as fast as street crimes. From 1978 to 1987, forgery and counterfeiting went up 23.5 percent, fraud soared 41.8 percent, and embezzlement skyrocketed 56.3 percent. 20 Such crimes are not typically perpetrated by those languishing in the social environment lamented by Mr. Clark. The bookstores are cur rently loaded with similarly sordid tales of "high society" crimes, crimes by doctors and Wall Street con artists, crimes by high-living drug lords. One wonders how sociologists would have accounted for the crimes and perversions in the courts of Nero and Caligula: clearly, these folks weren't "depraved on account a they're de prived." As Robert M. Byrn put it: "Not all criminal of fenders come from a deprived background, and only a small portion of our disadvantaged citizens become criminals. Organized crime was not re formed when it moved into legitimate business.

White-collar offenders frequently hold good jobs and live in respectable neighborhoods. Could it be, after all, that the problem is moral as well as social?"21 The point is simple. In various places at vari ous times, there may arise a statistical correlation between crime and any number of socio-econom ic factors. But criminality cannot be causally at tributed to external social and economic factors alone. To excuse criminals because of poor social environments leaves unexplained the crimes of those from good social environments. And the sociological excuse is an insult to millions of oth ers from the poor backgrounds, who have not turned to crime. The PsychologicalExcuse Where the sociological excuse for criminality blames forces outsidethe criminal, the psycholog ical excuse blames forces inside the criminal. Both, however, share the view that whatever these forces are, the individual has no power to resist or control them.

Whether we treat criminals punitively or thera peutically depends upon the issue of "criminal re sponsibility"-whether the individual has control of his actions. This issue'is at the core of the de bate over punishment vs. rehabilitation. For if the individual is not responsible, then we should not 258 THE FREEMAN • JULY 1989 engage in what famous psychiatrist Karl Men ninger denounced as "the crime of punishment." Such psychological determinists believe "the idea of punishment must be completely eliminated."22 Freudian Psychoanalysis. Most of us would agree that some people are so mentally impaired they shouldn't be held accountable for acts nor mally regarded as criminal. But the notion, pro moted by many psychologicaltheories, that virtu ally all people are driven to act by inner forces beyond their control, undermines the very premise of criminal responsibility. This notion is the legacy of the father of psy choanalysis, Sigmund Freud. Freud authored the view that the individual "can't help himself' be cause he is driven by dark inner forces beyond his control, that frustration of these· basic inner "drives" is the source of mental illness.

"I feel," he wrote, "that the irrational forces in man's nature are so strong, that the rational forces have little chance of success against them." To Freud, human nature was, at root, virtually criminal. "Every individual is virtually an enemy of civilization. . . . Men are not gentle creatures who want to be loved, and who at the most can defend themselves·if they are attacked; they are, on the contrary,.creatures among whose instinc tual endowments is to be reckoned a powerful share of aggressiveness. As a result, their neigh bor is for them not only a potential helper or sex ual object, but also someone who tempts them to satisfy their aggressiveness on him, to exploit his capacity for work without compensation, to use him sexually without his consent, to seize his pos sessions, to humiliate him, to cause him pain, to torture and kill him."23 Freud's influence on American psychiatry, and on the culture in general, has been nothing short of enormous. In a society groping for mean ing and direction, his explanation of human be havior became dominant. By the late 196Os,a na tional survey found that "Sigmund Freud's is the only doctrine that has had any wide acceptance in psychiatry today. . . ." Another psychiatrist wrote in the InternationalJournalof Psychiatry that "as far as the large segment of educated opinion in the United States is concerned, the at titude of acceptance of Freud's theory has won out." Likewise, Richard LaPiere, a Stanford soci ologist, wrote in 1959 that the Freudian ethic is "the ethic that is most commonly advocated by the intellectual leaders of the United States," and described it as "the idea that man cannot and should not be expected to be provident, self-re liant, or venturesome,and that he must and should be supported, protected, socially main tained."24 This ethic remains a cornerstone of the Ex cuse-Making Industry's efforts to rehabilitate criminals (and, incidentally, to replace American capitalism with a paternalistic socialism). Yet how effective has the theory of psychological causa- · tion been in actually rehabilitating psychiatric pa tients?

In 1959, psychologist Hans J. Eysenck analyzed 19 reports covering 7,000psychiatric pa tients from 1927 to 1951. He found that the rate of improvement or cure was only 64 percent. The spontaneous recovery rate for patients receiving no psychotherapy was 66 percent. In another study, Canadian psychiatrist Raymond Prince spent 17 months with Nigerian witch doc tors-and concluded that their rates of therapeu tic success rivaled those of North American clin ics and hospitals.25 More pertinent is the effectiveness of psy chotherapy in rehabilitating criminals. In the most ambitious effort ever made to evaluate criminal rehabilitation efforts, Robert Martinson, Douglas Lipton, and Judith Wilks surveyed 31 different programs between 1945 and 1967. These employed individual or group psychother apy (Freudian psychoanalysis as well as other techniques) to reduce criminal recidivism rates-the percentage of inmates who, once re leased, return to crime.

Their conclusion: "With few and isolated ex ceptions, the rehabilitative efforts that have been reported so far have had no appreciable effect on recidivism." For group therapies in particular, there were "few reliable and valid findings con cerning their effectiveness." Individual psy chotherapy only seemed to improve certain crim inals who had been judged "amenable" to treatment; but in other cases, criminality actually increasedafter treatment. These findings have been confirmed in a number of other studies.26 Theories are only as good as their demonstra ble relationship to the facts of reality. Most psy chological theories are based upon sweeping in ferences drawn from dubious causal assumptions. The main problem is that these can't be demonstrated. At root, the psychological excuse simply boils down to the truism that all actions are moti vated. But this doesn't tell us much. It doesn't tell us whether those motives are causal primaries, or simply the results of something else, over which we have a measure of volitional control. And it doesn't tell us whether those motives, once they arise, can be overridden or channeled by the indi vidual.

We're often tugged by competing emotions. To say that somebody had an impulse or inclination to commit some crime, tells us no more than the fact that "he felt like it." Well, we already know that. The existence of civilization, however, is evi dence that we do have some power, at some level, to choose which emotions will prove decisive. But the psychological excuse assumes that emotions are causally irreducible and irresistible. In effect, it equates all desires with compulsions. Another problem with the psychological expla nation is that it isn't one explanation. There are many psychological theories, each contradicting all the others. In practice, this means that no two psychologists or psychiatrists seem to agree on the specific "causes" of any given person's ac tions. In a review of the relevant literature on the re liability of psychiatric diagnoses, Wisconsin Cir cuit Court Judge Ralph Adam Fine reported the following:27 In one study, pairs of psychiatrists diagnosed 427 psychiatric patients, and were able to agree only 50 percent of the time; in another study, 54 percent of the time.

Case histories of 34 patients at the UCLA Neuropsychiatric Institute were given to 10 staff psychiatrists, 10 psychiatric residents, and 10 un trained college students with diverse back grounds. There was no statistical difference in the rates at which any of the groups selected the right diagnosis. Two University of Oklahoma researchers filmed an actor playing a happy, problem-free sci entist. They showed the film to 156 undergradu ate students, 40 law students, 45 graduate stu dents in clinical psychology, 25 practicing clinical psychologists, and 25 psychiatrists. Each group was told that the man looked normal, but had been previously diagnosed as "quite psychotic." Result: the actor was diagnosed as mentally ill by 84 percent of the undergraduate students, 90 perCRIME AND CONSEQUENCES 259 cent of the law students, 88 percent of the gradu ate psychology students and clinical psycholo gists, and 100 percent of the psychiatrists. Later, five identically composed groups were shown the same film of the same actor-but were told that he "looked like a healthy man." All of them diag nosed the actor as free of mental illness.

A final example. Eight normal volunteers, led by a Stanford psychology professor, presented themselves to 12 psychiatric hospitals in five states, complaining of hearing voices that said "empty," "hollow," and "thud." Except for their identities, they answered all other questions truthfully. All were admitted, at which point they behaved normally. Their hospitalizations lasted from seven to 52 days, upon which time they were released with diagnoses of "schizophrenia in remission." However, 35 of 118 actual mental patients in the same hospitals voiced suspicions that the eight were utterly sane people sent to "check up on the hospital." These anecdotes make some serious points. If supposed "experts" in the psychiatric field cannot even tell if a person is basically sane or insane, how can they tell what subtle "forces" cause him to act as he does? If they cannot reliably or objec tively "explain" the causal antecedents of any given individual's actions, on what grounds do they justify their general theories purporting to "explain" so complex a thing as criminal behav ior? On what grounds do they presume to offer "expert testimony" in courtrooms concerning the motives of defendants, or to design "rehabilita tion" programs for criminals?

At present, psychological theories of causation have more in common with demonology than sci ence: they excuse outrageous behavior, but ex plain little. Behaviorism.Thanks to the failure of Freudian and neo-Freudian therapies, there has been a flourishing of competing theories of cau sation-the most notable being behaviorism. In its most pure form (as in the theories of B. F. Skinner), behaviorism proposes an almost me chanical model of human action-that man is lit tle more than a stimulus-response machine, like a rat or pigeon, instead of a conscious, thinking en tity with some power of choice. This billiard-ball approach to human causality, say behaviorists, is "objective" and "scientific," unlike the "subjec tive" approach of psychoanalysis.

260 THE FREEMAN. JULY 1989 Behaviorism thus ignores the "inner state" of an individual or his past history,concentrating on altering his present behavior strictly by "condi tioning" him with rewards and punishments (called "reinforcers"). It is not going too far to say that the behavioral approach to human change is essentially the same as that used by dog trainers. Whereas Freudian psychology is the founda tion for the "therapeutic" approach to crime, be haviorism "reinforces" the sociologicalapproach. It lends weight to such environmental excuses for criminality as poverty, "peer pressure," racism, and the like. Behaviorists believe that people will change their "responses" if we change the "rein forcing stimuli" in the external environment. (Some have taken this to mean the eradication of the profit motive and capitalism.) But proceeding on the premise that individuals are no more complex than pigeons apparently has its limitations. For one thing, so-called "be havior modification" programs don't seem to have much more lasting impact on criminals than do those based on conventional psychology.

One study examined 24 such programs be tween 1965 and 1975,all aimed at altering the be havior of institutionalized delinquent youths by use of rewards and punishments. Almost all suc ceeded-while the youths remained in the insti tutions. But when four of the programs followed up on their subjects after they were returned to the community, three reported no significant, lasting reduction in the young criminals' recidi vism rates. The fourth program reported such a reduction, but it wasn't a carefully controlled sample. Other similar studies have been unable to demonstrate any lasting impact of behavior modification.28 It seems, then, that even criminals are more complex than dogs. Behaviorism, in refusing to consider that an individual's thinking and values might playa role in his motivation, joins conven tional psychology as another failed theory of hu man action. While both provide a wealth of ex cuses for criminal behavior, neither helps us understand, alter, or prevent it.

The BiologicalExcuses This last group of excuses for criminality con sists of variations on the "bad seed" theory: the view that one is genetically or constitutionally predisposed toward criminality.In fact, these the ories have more empirical support than do socio logicaland psychologicaltheories. There are certain physical attributes which re peatedly have been shown to correlate statistical ly with increased criminality: being male, having lower-than-average intelligence, having certain temperamental traits (such as hyperactivity), hav ing a certain body type (heavy-boned and muscu lar). In addition, evidence from the studies of twins tends to show that the likelihood of finding a criminal twin, if the other twin was criminal, was statistically significant-and even greater for identical twins than for fraternal twins. This held true even in studies which discounted for envi ronmental factors. A systematic Danish study of over 14,000 adopted children also showed that adopted children whose biological parents had been criminals had a measurably greater likeli hood of becoming criminals themselves-even more than if their adoptive parents were crimi nals. This held true even for adopted siblings raised apart.

The best summary of such evidence appears in James Q. Wilson and Richard J. Herrnstein's comprehensive examination of criminal causa tion, Crime and Human Nature. They conclude that while "the average offender tends to be con stitutionally distinctive," he is "not extremely or abnormally so." But as moderate behaviorists, they believesuch "predispositionstowardcrime. . . are expressed as psychological traits and activat ed by circumstances."29 In fact, these interesting correlations are far from being causally decisive. Even in the studies cited by Wilson and Herrnstein, the correlations occurred in only a small minority of cases. What ever effect such traits have on personality, the link to criminal behavior is statistically weak. In herited factors, for example, may predispose someone toward aggressiveness,a high degree of physical energy, and a short temper. But why do some individuals with such traits become profes sional football players, while others become street criminals? A family argument might "cause" one short-fused man with a heavy, mus cular body to storm out of the house, cursing, and "let off steam" by chopping wood-while anoth er similar man will begin to batter his children.

Personality traits only define general capacities. There's no evidence that what one does with those capacities is predetermined. Hence, even the "biological explanations" do not pose con vincingexcuses for criminal behavior. Determinism,Free Will,and CriminalResponsibility Like the characters in the fable of "The Blind Men and the Elephant," each member of the Ex cuse-Making Industry grabs onto one part of hu man nature, then assumes it constitutes or ex plains the whole. Psychologists focus on a person's emotional life; biologists focus on his brain, genes, or anatomy; sociologists and behav iorists focus on his family and neighborhood. Each of these does so in the name of "science," rejecting free will-the premise that the individu al can make some primary, irreducible choices about his thoughts, feelings, or actions-as "un scientific" or mystical. The Excuse-Making Industry is premised on the philosophical doctrine of determinism. Deter minists hold that, in any given moment, there's only one action that an individual can take-an action determined by the sum total of all the causes operating on him up to that point. To a de terminist, human thoughts, feelings, and actions are all necessitated by antecedent factors; the in dividual has no choice about them. By contrast, a free will theory posits that some action, or choice, or thought is not necessitated by antecedent fac tors, but is under the direct, volitional control of the individual.30 This is no digression. The issue of free will ver sus determinism is the key to resolving any argu ment about the causes and cures of crime. If de terminism is true, then man truly "can't help"

what he is or does; he is not the sculptor of cir cumstances' but the clay. Then, the entire idea of criminal responsibility-and of a criminal justice system to punish wrongdoers-is absurd. If, on the other hand, ,man has some measure of irre ducibly free control over his thinking, feeling, or behavior, then he does ultimately bear responsi bility for what he does-and the quest for justice makes sense. Determinism certainly sounds scientific: it seems firmly rooted in cause-and-effect thinking. Everything requires a cause; thus human thoughts, feelings, and actions require antecedent CRIME AND CONSEQUENCES 261 causes. By contrast, at first blush, free will (or vo lition) sounds "causeless"-hence, unscientific. How can any human decision be "causeless"? As many philosophers have noted, however, the apparent conflict between "causality" and "free will" rests upon a dubious view of causali ty-what has been called the "billiard-ball" theo ry. By this view, certain events are caused by pre ceding events. The action of one billiard ball hitting another causes the second to move. Like wise, the action of a man stabbing someone is caused by preceding events-in his childhood (the psychological excuse), in his neighborhood (the sociological excuse), or in his biochemistry (the biological excuse). In the first case, the struck billiard ball had no choice but to move; in the second case, the "affected" man had no choice but to stab.

There is, however, an alternative view of causality.By this view, it isn't actions which cause subsequent actions; rather, entities cause actions. This leads to a much more complex interpreta tion of causality,in which "external forces" acting on an entity are only one element "causing" sub sequent events. The most important cause, how ever, is the nature of the entity itself: its matter, form, properties, and potentialities, in conjunc tion with outside forces. This theory of causality, then, would hold that there are a number of forms of causality in na ture. Inanimate objects respond passively;organ isms are goal-directed from within; animals act on the basis of. perceptual-level consciousness, showing psychological causation; while man has the additional abilities to think, introspect, and direct his awareness. By this theory, man has final self-control in certain areas. This doesn't violate the law of cause-and-effect, since we act completely in ac cord with our nature as conscious, reasoning enti ties. Human volition, then, isn't an affront to the law of causality:it's an instance of it.31 There are various doctrines and theories of free will, of course. Some 'posit total control over thoughts, feelings, and actions; some suggest that only thoughts might be under direct control; still others argue for a more narrow control, over the level and focus of consciousness. For our purpos es here, resolution of this question doesn't mat ter. What does matter is whether determinism is a respectable intellectual alternative. It is not.

262 THE FREEMAN • JULY 1989 No, free will cannot be "proved." That's be cause proof presupposesfree will. It's impossible to prove or to know anything if one's thinking processes aren't free-if the outcome of our thinking is predetermined by forces beyond our control. Volition lies at the starting point of all knowledge and proof-not at the conclusion of some logical chain. It doesn't need to be "proved," because it's a building block of proof itself. This poses a fatal dilemma for determinism, and for the whole Excuse-MakingIndustry which stands upon it. Knowledge presupposes the free dom to validate or refute a belief by a self-direct ed thinking process. However,those who claim to know that determinism is true must logicallycon cede that they, too, "can't help" what they think, feel, or do. Yet if that is the case, then they can't claim to "know" that determinism is true-be cause they wereforcedto believein its validity.

The dilemma is inescapable: the excuse-mak ers are slaves to their own theory. To claim knowledge of the validity of determinism, or to try to persuade others, presupposes a freedom which their own theory denies them. Determin ists want to have their free will,while eating it. It's therefore no wonder that the Excuse Making Industry has failed dismally in its efforts to reform. criminals. By not taking into account the free will of the criminal, it's ignoring the very factor which is decisiveto his criminality: his responsibility for his actions. Instead, it has shaped the institutions of the law to excuse him from justice-as we shall see in the next seg m~t D Next month, Mr. Bidinottoexaminesthe crimi naljusticesystem. 1. Robert James Bidinotto, "Getting Away With Murder," Reader'sDigest,July 1988. 2. Federal Bureau of Investigation,Crime in the United States (Uniform Crime Reports, 1987),p. 41.

3. Charles Murray, Losing Ground (New York: Basic Books, 1984);from data on p. 256, Table 18. 4. Crimein the UnitedStates,p. 41, Table 1. 5. Bureau of the Census,StatisticalAbstractof the UnitedStates, 1988edition,p. 163. 6. Ibid.,p. 154,Fig. 5.2. 7. Bureau of Justice Statistics, Bulletin, "Prisoners in 1987," April 1988,pp. 1,5. 8. Crimein the UnitedStates,p. 41. 9. American Bar Association,CriminalJusticein Crisis,Novem ber 1988,p. 4. 10. Crimein the UnitedStates,p. 155. 11. Bureau of Justice Statistics, Bulletin,p. 5; shown as 43 im prisonments per 1,000 of the following reported crimes: murder, non-negligentmanslaughter,rape, robbery,aggravated assault,and burglary. 12. MassachusettsDepartment of Correction 1986 Annual Re port, Appendix E, p. 20. 13. Murray,pp.167-170. 14. Quoted in Melvin D. Barger, "Crime: The Unsolved Prob lem," The Freeman,February 1980,p. 98. 15. James Q. Wilsonand Richard1. Herrnstein, Crimeand Hu man Nature(NewYork:Simon& Schuster,1985),Ch. 17.

16. Ibid.,p. 473. 17. Ibid., pp. 175-179.The Glueck study had many other far reaching conclusions, and has been savaged by sociologists for decades. 18. See also Robert James Bidinotto, "Paying People Not to Grow," The Freeman,October 1986. 19. Murray,especiallychapters 8,12,13, and 14. 20. Crimein the UnitedStates,p. 168,Table27. 21. Robert M. Byrn, "The Morality of Punishment," America, Jan. 15, 1972. Quoted in J. Weston Walch, Debate Handbook On CriminalJustice(Portland, Me.: self-published,1976),p. 89. 22. Richard X. Clark, quoted in Walch, p. 52. Also Wilson and Herrnstein, pp. 489-90. 23. Quoted in Frank Goble, Beyond Failure: How to Cure a NeuroticSociety(Ottawa, IL: Green Hill Publishers,1977),pp. 37 8. 24. Ibid.,pp. 39-40. 25. Ibid.,pp. 41, 43; also Wilsonand Herrnstein, pp. 378-79. 26. Stanton E. Samenow,Inside the CriminalMind (New York: Times Books, 1984),p. 193. Also Wilson and Herrnstein, pp. 377 79.

27. Ralph Adam Fine, Escapeof the Guilty (New York: Dodd, Mead & Co., 1986),pp. 203-208. 28. Wilsonand Herrnstein, pp. 381-384. 29. Ibid.,pp. 102-103.See especiallychapters 3-7. 30. David Kelley, "The Nature of Free Will," recorded lecture given in Toronto, Canada in October 1986. (Published by Uncom mon Sense Services, 59 Poplar Crescent, Aurora, Ontario UG 3M4.) 31. The author is indebted to David Kelleyfor the general argu ment presented in this section.