Karl Spence’s Reply: A Word Salad Tsunami
February 16, 2017 (Fault Lines) – One of the cardinal rules for defense attorneys is judging people by what they do, not merely what they say. To borrow a phrase from my Southern roots, “A hit dog hollers.”
So if you remember this Fault Lines column a few weeks ago debunking this “crime tsunami” absurdity by Karl Spence in National Review Online, you can imagine my amusement when the dog sent me an email. (A separate, super-heavily-edited version of my Fault Lines column ran in the NRO with illustrative graphs if you’d like to take a look at them.)
In my customary spirit of magnanimity, I thought I’d give Karl ample space to make his case. Here’s an unedited, copy-and-paste of his commentary:
Dear Mr. Doucette,
I’m writing to thank you for noticing my NRO article, and also to answer some of the questions you raise in response to it.
First of all, let me express my regret that in condensing my manuscript to a reasonable length, I was obliged to omit this passage which originally followed immediately after my first mention of Dr. Brown’s work on vigilantism: “Before proceeding, let’s make clear that neither Brown, nor I, nor Trump, is an advocate of lynch law. Swift and certain enforcement of the death penalty against murderers can indeed make criminals fear the law. The trick, pace Perlstein, is to achieve that goal without sacrificing due process. But for now, let’s just see what can happen when outlaws are confronted with a credible threat of sudden death.”
A lot of people quit reading my NRO piece, I think, before ever getting to the spot where I mention Brown’s and Theodore Roosevelt’s opposition to rule by lynch mobs. But as you correctly observe, my jeremiad was long and rambling even after being condensed and abridged. Some misunderstanding resulting from its abridgement couldn’t be helped.
The version of your response that appeared in Mimesis Law deplores my “extended whining” about the exclusionary rule. You didn’t mention Benjamin Cardozo, even though my whining consisted almost entirely of quotations from his “constable has blundered” opinion rejecting that rule. All the same, I thank you for apprising me of recent developments regarding the exclusionary rule. I’m embarrassed to admit I haven’t kept abreast of them, but it comforts me to know that not everyone in authority mistakes the Constitution for a suicide pact.
I freely admit to being an ignorant bumpkin of no great professional accomplishment. That is one reason why, in the proposal that is my article’s bottom line, I rely on the words (and the ideas behind them) of three such respected figures as Madison, Roosevelt and Cardozo. May I ask, why did your response to my article not mention them?
You have unfortunately shown that these words of mine, though written long ago, remain timely today: “There are those who have never been very angry about crime in America, who ignored it when it was at its worst, who actually took pride in not being angry about it, and took pleasure in despising those who were.”
Did you avoid mentioning Madison, Roosevelt and Cardozo because you feared you’d look silly despising them, instead of just despising me?
You likewise avoid, in discussing aggravated assault, any mention of the UMass-Amherst researchers. Are they all wet, then? Large phenomena have multiple causes. Spousal abuse is one issue, but not the only one or even the most consequential one. Do you deny that improvements in emergency trauma care have anything to do with the divergence between the murder rate and the aggravated assault rate?
You put scare quotes around my words “data” (without showing that any of the data are false) and “crime” (asserting that crime is “a generally rare occurrence” and that the FBI’s Uniform Crime Reports are a summary of arrests, not of crimes known to police).
Regarding your last point, the FBI says its UCR program “collects the number of offenses that come to the attention of law enforcement.” It also collects “data regarding clearances of these offenses,” but that is not what my chart reflects. Many offenses that are reported to police never lead to an arrest, and many arrests are bargained down or for other reasons do not result in a conviction. The chart reflects crimes reported to police. Arrests have nothing to do with it.
Regarding your point about crime being “generally rare,” please consider TR’s words to the governor of Indiana: “All thoughtful men must feel the gravest alarm over the growth of lynching in this country.” Lynching claimed, as I understand, some 4,700 victims between the 1880s and the 1960s. Since 1960, murder has claimed more than 190 times that amount. If all thoughtful men must feel the gravest alarm over lynching, what must we feel over something that has been 190 times deadlier than lynching, and in a much shorter interval?
You went to some trouble fiddling around with my crime wave chart. In Mimesis, you comment that it looks “like copy from an actual newspaper.” Bingo! It is a revised and updated version of exactly that, designed by me and executed by the graphics department of the Chattanooga Free Press, for which I then worked as a copy editor, columnist and editorialist.
You suggest, however, that some ulterior motive explains why its baseline is 1960: “Can we agree that artificially picking 1960 – 57 years ago – as the baseline is weird?” No, actually, we can’t. 1960 happens to be the first year for which the FBI’s UCR system was fully up and running. I didn’t go on about how crime is so many percentage points greater than it was in 1950 or 1940 or 1930, because the numbers from before 1960 are not as reliable as those after.
The chart happens to cover essentially my span of life. Born in 1951, I’m old enough to remember how things were before crime took off. When I was a boy, my parents gave me the run of Houston, Texas. It never occurred to us to be afraid of our fellow citizens. They let me take the bus downtown to the movie palaces and the central library, and after I proved I could negotiate traffic safely, they let me ride my bicycle through all sorts of neighborhoods to distant hobby shops. Do you know of any suburban parents who would let their kids do all that today?
Your alternative depictions of the crime wave can’t make it go away. Mount Washington would look like a little bump next to Everest, and Everest would look even smaller next to the distance from here to the moon. You and I would have a hard time getting on top of any of them. The point of a graphic is to show a variation at a scale that is easily seen and understood. Indeed, some graphics exaggerate the variations they depict by cutting out most of the difference between their values and zero. Mine didn’t. Why do you impute to it an intention to deceive?
I’ve long believed that it’s useless to hope for the Court to reverse itself on any of the great “landmark” decisions to which conservatives object. … But the solution I’ve long advocated — an omnibus constitutional amendment ordering the justices to adhere to originalism, to what John Marshall called a “fair construction” of the Constitution — has problems of its own. On some points, the Constitution’s original meaning is unclear or unknowable; on others, its original meaning, while clear enough, is something few Americans would want to return to today. To gain the supermajority support required for success, therefore, a Fair Construction Amendment would need special sections to obviate such problems, a complication which makes the project unattractive, I’m told, to “movement conservatives.” On the Eighth Amendment by itself, those problems don’t exist. Its original meaning is not even in dispute, and most Americans, especially once apprised of the facts about the death penalty and deterrence, would prefer that meaning to the deterrence-impairing “obstacle course” the Court has substituted for it. No other issue finds elite opinion and public opinion so far apart.
Need I say that John Marshall is another respected figure you did not venture to mention? And that phrase “obstacle course” – it comes from Raoul Berger. Another contemptible fellow? What about Harold J. Rothwax, whose views informed my own? I know that Marshall, Berger and Rothwax are no more the voice of God than Madison, Roosevelt and Cardozo are. But are they to be rejected out of hand? Why omit all reference to them, if not to avoid dealing with the points they make?
For example, “Any mere technicality” is Roosevelt’s phrase, not mine. I take it to mean any point of criminal procedure having nothing to do with distinguishing guilt from innocence. It has been disparaged not just by me but by Roosevelt, Cardozo, Rothwax and Berger. Also by two other respected figures I didn’t have room to cite.
Here is what the great 18th-century English novelist and jurist Henry Fielding thought of culprits going free on technicalities: “The villain, contrary to the opinion and almost direct knowledge of all present, is triumphantly acquitted, laughs at the court, scorns the law, vows revenge against his prosecutors, and returns to his trade with a great increase of confidence, and commonly of cruelty.”
And here’s how the beloved FDR Democrat Will Rogers viewed the technicalities that so bothered the gentlemen already mentioned: “Is our court procedure broken down, lame, or limping? Something sure is cuckoo. It looks like after a person’s guilt in this country is established, why, then the battle as to whether he should be punished is the real test of the court. It seems if he is lucky enough to get convicted, or confesses, why he has a great chance of going free.”
By some people’s standards, perhaps Rogers (who liked to say “All I know is what I read in the papers”) really was an ignorant bumpkin. Fielding, not so much. But like the rest, these two are not to be rejected out of hand.
I’m sure there are many more aspects of this to discuss, and I look forward to our discussing them.
While I give Karl an A for effort, taking snippets of quotes from Founding Fathers, jurists, and other intellectuals out-of-context without actually understanding them doesn’t make it my responsibility to explain it to him.
Knock yourself out in the comments if you’d like to give it a shot yourself!