They went to work with unsurpassable efficiency. Full employment, a maximum of resulting output, and general well-being ought to have been the consequence. It is true that instead we find misery, shame and, at the end of it all, a stream of blood. But that was a chance coincidence.
—Joseph A. Schumpeter1
What is intellectually interesting about visions are their assumptions and their reasoning, but what is socially crucial is the extent to which they are resistant to evidence. All social theories being imperfect, the harm done by their imperfections depends not only on how far they differ from reality, but also on how readily they adjust to evidence, to come back into line with the facts. One theory may be more plausible, or even more sound, than another, but if it is also more dogmatic, then that can make it far more dangerous than a theory that is not initially as close to the truth but which is more capable of adjusting to feedback from the real world. The prevailing vision of our time—the vision of the anointed—has shown an extraordinary ability to defy evidence.
Characteristic patterns have developed among the anointed for dealing with the repeated failures of policies based on their vision. Other patterns have developed for seizing upon statistics in such a way as to buttress the assumptions of the vision, even when the same set of statistics contains numbers that contradict the vision. Finally, there is the phenomenon of honored prophets among the anointed, who continue to be honored as their predictions fail by vast margins, time and again. The first of these phenomena will be explored in this chapter, the others in the chapters that follow.
A very distinct pattern has emerged repeatedly when policies favored by the anointed turn out to fail. This pattern typically has four stages:
STAGE 1. THE “CRISIS”: Some situation exists, whose negative aspects the anointed propose to eliminate. Such a situation is routinely characterized as a “crisis,” even though all human situations have negative aspects, and even though evidence is seldom asked or given to show how the situation at hand is either uniquely bad or threatening to get worse. Sometimes the situation described as a “crisis” has in fact already been getting better for years.
STAGE 2. THE “SOLUTION”: Policies to end the “crisis” are advocated by the anointed, who say that these policies will lead to beneficial result A. Critics say that these policies will lead to detrimental result Z. The anointed dismiss these latter claims as absurd and “simplistic,” if not dishonest.
STAGE 3. THE RESULTS: The policies are instituted and lead to detrimental result Z.
STAGE 4. THE RESPONSE: Those who attribute detrimental result Z to the policies instituted are dismissed as “simplistic” for ignoring the “complexities” involved, as “many factors” went into determining the outcome. The burden of proof is put on the critics to demonstrate to a certainty that these policies alone were the only possible cause of the worsening that occurred. No burden of proof whatever is put on those who had so confidently predicted improvement. Indeed, it is often asserted that things would have been even worse, were it not for the wonderful programs that mitigated the inevitable damage from other factors.
Examples of this pattern are all too abundant. Three will be considered here. The first and most general involves the set of social welfare policies called the “war on poverty” during the administration of President Lyndon B. Johnson, but continuing under other labels since then. Next is the policy of introducing “sex education” into the public schools, as a means of reducing teenage pregnancy and venereal diseases. The third example will be policies designed to reduce crime by adopting a less punitive approach, being more concerned with preventive social policies beforehand and rehabilitation afterward, as well as showing more concern for the legal rights of defendants in criminal cases.
Governmental policies designed to alleviate the privations of the poor go back much further than President Johnson’s “war on poverty,” and of course reach far beyond the boundaries of the United States. What was different about this particular set of social programs, first proposed to Congress during the Kennedy administration and later enacted into law during the Johnson administration, was that its stated purpose was a reduction of dependency, not simply the provision of more material goods to the poor. This was the recurring theme of the “war on poverty,” from the time President Kennedy introduced this legislation in 1962 until President Johnson saw it passed and signed it into law in 1964.
John F. Kennedy stated the purpose of the “war on poverty” to be “to help our less fortunate citizens to help themselves.”2 He said: “We must find ways of returning far more of our dependent people to independence.”3 The whole point of currently increased federal spending on this effort was “to strengthen and broaden the rehabilitative and preventive services” offered to “persons who are dependent or who would otherwise become dependent,” so that long-run savings in government spending were expected from a subsequent decline in dependency. As President Kennedy put it:
Public welfare, in short, must be more than a salvage operation, picking up the debris from the wreckage of human lives. Its emphasis must be directed increasingly toward prevention and rehabilitation—on reducing not only the long-range cost in budgetary terms but the long-range cost in human terms as well.4
The same theme of increased short-run spending for long-run savings, as a result of reduced dependency, was a theme repeated in a New York Times editorial:
President Kennedy’s welfare message to Congress yesterday stems from a recognition that no lasting solution to the problem can be bought with a relief check. Financial help to the needy must be supplemented by a vastly expanded range of professional and community services. Their aim: to keep men, women and children from having to rely on public assistance by making them useful, creative citizens. The President does not pretend it will be cheap to provide the needed build-up in staff, facilities and rehabilitation allowances. The initial cost will actually be greater than the mere continuation of handouts. The dividends will come in the restoration of individual dignity and in the long-run reduction of the need for government help.5
The Congressional Quarterly of the same date (February 2, 1962) likewise reported: “The President stressed that the welfare program should be directed toward the prevention of dependence and the rehabilitation of current relief recipients.”6
The same theme carried over into the Johnson administration, where the anti-poverty program was sold as a way to “break the cycle of poverty” and to make “taxpayers out of taxeaters.”7 “Give a hand, not a handout” was the slogan of the “war on poverty.” In keeping with that theme, President Johnson said in August 1964, when the legislation was finally passed: “The days of the dole in our country are numbered.”8 This initial thrust of the “war on poverty” programs must be clearly recognized at the outset, for one of many responses to the failures of government programs has been to redefine their goals after the fact, to make the programs look “successful.”
A subsidiary theme of the “war on poverty” was that social programs were a way of heading off urban violence. Lyndon Johnson spoke of “conditions that breed despair and violence.” He said:
All of us know what those conditions are: ignorance, discrimination, slums, poverty, disease, not enough jobs.9
The same theme was echoed in the celebrated 1968 Kerner Commission report on ghetto riots, which proclaimed that pervasive discrimination and segregation were “the source of the deepest bitterness and lie at the center of the problem of racial disorder.”10 The riots of 1967 were attributed to “the failure of all levels of government—Federal and state as well as local—to come to grips with the problems of our cities.” In keeping with this theme that bad social conditions and official neglect lead to despair, which in turn leads to violence, civil rights leaders and other minority spokesmen began regularly predicting “a long hot summer” of violence if their demands for more government programs were not met.11 Such predictions became a staple of political discourse and have remained so over the years. Government agencies seeking to expand their budgets and extend their powers likewise encouraged the belief that social programs reduced the incidence of riots and other violence, while a reduction of such programs would escalate civil disorder.12
A diametrically opposite set of beliefs and predictions came from critics of the “war on poverty” proposals. Senator Barry Goldwater predicted that these programs would “encourage poverty” by encouraging “more and more people to move into the ranks of those being taken care of by the government.”13 Nor did he expect expanded social programs to lead to a more harmonious society, for he saw their underlying philosophy as an “attempt to divide Americans” along class lines, to “pigeon-hole people and make hyphenated Americans.”14 As these programs got under way, the mayors of Los Angeles, San Francisco, and Detroit blamed the “war on poverty” for “fostering class struggle” through its support of community activists, radical intellectuals, and others with a vested interest in disaffection and turmoil.15 The assumption that initial increases in government spending on social programs would lead to reduced spending in later years, as dependency declined, was likewise disputed by opponents like columnist Henry Hazlitt, who said, “we can expect the price tag to increase geometrically as the years go on.”16
From an analytical standpoint, the issues were virtually ideal for testing: Two conflicting sets of belief led logically to opposite conclusions, stated in terms that could be tested empirically. Almost never, however, were such empirical tests made. The views expressed in the vision of the anointed became axiomatic. A reexamination of that vision, as it applied to the “war on poverty,” shows that it went through the four stages already described:
STAGE 1. THE “CRISIS”: Given that the purpose of the “war on poverty” was to reduce dependency, the question is: How much dependency was there at the time and was it increasing or decreasing before the new policies were instituted? In short, what was the “crisis” for which the anointed were proposing a “solution”?
As of the time the “war on poverty” programs began, the number of people who lived below the official poverty line had been declining continuously since 1960, and was only about half of what it had been in 1950.17 On the more fundamental issue of dependency, the situation was even more clearly improving. The proportion of people whose earning put them below the poverty level without counting government benefits declined by about one-third from 1950 to 1965.18 In short, dependency on government transfers as a means of warding off poverty was declining when the “war on poverty” began.
STAGE 2. THE “SOLUTION”: The Economic Opportunity Act was passed in 1964, creating the Office of Economic Opportunity, the “war on poverty” agency. As an historian of poverty programs put it, “Congress was quick to buy a program that might help welfare wither away.”19 The Council of Economic Advisers declared, “conquest of poverty is well within our power.”
STAGE 3. THE RESULTS: The percentage of people dependent upon the federal government to keep above the poverty line increased. Although the number of such dependent people had been declining for more than a decade before the “war on poverty” programs began, this downward trend now reversed itself and began rising within a few years after that program got under way.20
Official poverty continued its decline for some time, as massive federal outlays lifted many people above the official poverty line, but not out of dependency—the original goal. Eventually, however, even official poverty began to rise, so that a larger number of people were in poverty in 1992 than were in poverty in 1964, when the “war on poverty” began.21 Although the Office of Economic Opportunity itself was modestly funded, by government standards, it was a spearhead, a catalyst, and to some extent a coordinator of anti-poverty programs in other agencies as well. The massive expansion of anti-poverty social programs continued even after the Office of Economic Opportunity was disbanded in 1974 and its programs were reassigned to other agencies. Overall federal spending on programs for the poor escalated as eligibility rules for welfare and Social Security were loosened, the size of benefits was increased, and unemployment insurance was made more available to more people, and for longer periods of time.22
Despite initial claims that various government services would lead to reduced federal outlays on welfare programs as more people became self-sufficient, the very opposite happened. The number of people receiving public assistance more than doubled from 1960 to 1977.23 The dollar value of public housing rose nearly five-fold in a decade and the amount spent on food stamps rose more than tenfold. All government-provided in-kind benefits increased about eight-fold from 1965 to 1969 and more than twenty-fold by 1974.24 Federal spending on such social welfare programs not only rose in dollar terms and in real terms, but also a percentage of the nation’s gross national product, going from 8 percent of GNP in 1960 to 16 percent by 1974.25
As for urban ghetto riots, they raged across the country during this era.26 Later, they declined sharply after the beginning of the Nixon administration, which opposed the whole “war on poverty” approach and eventually abolished the Office of Economic Opportunity, which had been the spearhead of this program. Still later, during the eight years of the Reagan presidency—supposedly the nadir of neglect—major urban riots became virtually extinct. The fact that the actual course of events followed a pattern diametrically the opposite of what was assumed and proclaimed by those with the vision of the anointed made not the slightest dent in the policies they advocated or in the assumptions behind those policies. In this respect as in others, the vision of the anointed had achieved a sacrosanct status, hermetically sealed off from the contaminating influence of facts.
STAGE 4. THE RESPONSE: The failure of the “war on poverty” to achieve its goal of reducing dependency—and in fact an increasing dependency as these policies went into effect—brought no acknowledgment of failure. In the many retrospective evaluations of these programs in later years and decades, most of their political and media proponents resolutely ignored the original goal of reducing dependency. The goal was instead redefined as reducing poverty by transferring resources. As former Johnson White House aide Hodding Carter III put it, “millions of people were lifted out of poverty during the period, or had their plight considerably alleviated, by government programs and public expenditures.”27 A member of President Johnson’s Cabinet suggested yet another criterion of success: “Ask the 11 million students who have received loans for their college education whether the Higher Education Act failed.” Similar questions were suggested for those who used a wide range of other government programs.28 In short, the test for whether a program was good for the country as a whole was whether those who personally benefitted from it found it beneficial. Yet a third line of defense of failed policies has been to claim moral merit for their good intentions. Hodding Carter III was only one of many to use this defense when he wrote of the “war on poverty” as “a clear, steady trend away from the majority’s long and shameful disregard of the other, hidden America of hard-core hopelessness.”29
Related to the moral redemption of the uncaring masses was the excitement and inspiration of the elite. At a twentieth anniversary commemoration of the Johnson administration’s social programs, another former aide to President Johnson referred to “the vision that excited and inspired the nation.”30 Mrs. Johnson spoke of the “sense of caring” and the “exhilaration” of her husband’s efforts.31 Finally, it was asserted that things would have been even worse, were it not for these programs. “The question is not what the bottom line is today—with poverty up—but where would we be if we didn’t have these programs in place?” asked Professor Sheldon Danziger, director of the University of Wisconsin’s Institute for Research on Poverty. “I think we’d have poverty rates over 25 percent.”32 Even though poverty and dependency were going down for years before the “war on poverty” began, Professor Danziger chose to assert that poverty rates would have gone up. There is no possible reply to these heads-I-win-and-tails-you-lose assertions, except to note that they would justify any policy on any subject anywhere, regardless of its empirically observed consequences.
In short, no matter what happens, the vision of the anointed always succeeds, if not by the original criteria, then by criteria extemporized later—and if not by empirical criteria, then by criteria sufficiently subjective to escape even the possibility of refutation. Evidence becomes irrelevant.
Among the many crusades which gathered new steam during the 1960s was the crusade to spread sex education into the public schools and through other channels. Among the first acts of the Office of Economic Opportunity in 1964 was making a grant to a Planned Parenthood unit in Texas. From a total expenditure of less than half a million dollars in fiscal year 1965, OEO expanded its financing of sex education more than five-fold by fiscal year 1966.33 Not only did the federal government begin in the late 1960s to greatly expand its own expenditures on sex education—often known as “family planning” or by other euphemisms—but it also began to mandate that states promote such programs as well. The number of patients served by “family planning” clinics increased approximately five-fold between 1968 and 1978.34 As early as 1968, the National Education Association in its NEA Journal was saying that a federally funded project in a Washington school “demonstrated the need for sex education as an integral part of school curriculum beginning in the early grades.” Some of the pregnant girls counseled “reported feeling that if they had studied human sexuality with understanding teachers during elementary school, they would not have become pregnant.”35 Sex education and “family planning” clinics—so called despite their being established to prevent having babies—not only grew rapidly but also changed in the clientele they served. As a study of this era put it:
Family planning services grew phenomenally from the mid-60s to the mid-70s. In 1964, the federal government made its first family planning grant, which served only married women. By 1970, Congress had passed the first national family planning and population legislation. Federal expenditures grew from $16 million to close to $200 million. In 1969, there were less than a quarter of a million teenagers using family planning clinics; by 1976 this had swollen to 1.2 million.36
According to the Alan Guttmacher Institute, a leading research and advocacy organization promoting sex education, the federal government’s support of “family planning services” rose from less than $14 million in 1968 to $279 million a decade later37—nearly a twenty-fold increase. By the early 1980s, nearly two-thirds of the money received by “family planning” agencies came from the federal government.38 What was the purpose of all this activity? “Sex education is considered one of the primary tools to help adolescents avoid unwanted pregnancy,” according to a typical comment of the period.39 Once more, we have the four-stage pattern:
STAGE 1. THE “CRISIS”: In 1968, it was claimed that “contraception education and counseling is now urgently needed to help prevent pregnancy and illegitimacy in high school girls.”40 The head of Planned Parenthood testified before a congressional subcommittee in 1966 as to the need for sex education “to assist our young people in reducing the incidence of out-of-wedlock births and early marriage necessitated by pregnancy.”41 The incidence of venereal disease among young people was cited by the head of the New York City Board of Education as showing the need for “a crash educational program.” An article in the American School Board Journal in 1969 depicted sex education as a way of combatting “illegitimacy and venereal disease.”42 PTA Magazine likewise urged sex education to combat “the spiraling rate of venereal diseases, the pregnancies before marriage, the emotionally disastrous results of irresponsible sexual behavior.”43
Similar statements abounded from a variety of sources. But what was in fact the situation when this kind of “crisis” mentality was being used to push for more sex education in the schools? Fertility rates among teenage girls had been declining for more than a decade since 1957.44 Venereal disease was also declining. The rate of infection for gonorrhea, for example, declined every year from 1950 through 1959, and the rate of syphilis infection was, by 1960, less than half of what it had been in 1950.45 This was the “crisis” which federal aid was to solve.
STAGE 2. THE “SOLUTION”: Massive federal aid to sex education programs in the schools, and to “family planning” clinics, was advocated to combat teenage pregnancy and venereal disease. After sex education, according to a “Professor of Family Life,” a boy “will find decreased need for casual, irresponsible and self-centered experimentation with sex.”46 Critics opposed such actions on various grounds, including a belief that sex education would lead to more sexual activity, rather than less, and to more teenage pregnancy as well. Such views were dismissed in the media and in politics, as well as by the advocates of sex education. The New York Times editorially rejected “emotions and unexamined tradition” in this area47 and its education editor declared: “To fear that sex education will become synonymous with greater sexual permissiveness is to misunderstand the fundamental purpose of the entire enterprise.”48 As in many other cases, intentions were the touchstone of the vision of the anointed.
STAGE 3. THE RESULTS: As early as 1968, nearly half of all schools in the country—public and private, religious and secular—had sex education, and it was rapidly growing.49 As sex education programs spread widely through the American educational system during the 1970s, the pregnancy rate among 15- to 19- year-old females rose from approximately 68 per thousand in 1970 to approximately 96 per thousand by 1980.50 Among unmarried girls in the 15- to 17-year-old bracket, birth rates rose 29 percent between 1970 and 1984,51 despite a massive increase in abortions, which more than doubled during the same period. Among girls under 15, the number of abortions surpassed the number of live births by 1974.52 The reason was not hard to find: According to the Alan Guttmacher Institute, the percentage of unmarried teenage girls who had engaged in sex was higher at every age from 15 through 19 by 1976 than it was just five years earlier.53 The rate of teenage gonorrhea tripled between 1956 and 1975.54 Sargent Shriver, former head of the Office of Economic Opportunity, which led the early charge for more sex education and “family planning” clinics, testified candidly to a congressional committee in 1978: “Just as venereal disease has skyrocketed 350% in the last 15 years when we have had more clinics, more pills, and more sex education than ever in history, teen-age pregnancy has risen.”55 Such candor was, however, the exception rather than the rule among those who had pushed for sex education and birth control (“family planning”) clinics.
STAGE 4. THE RESPONSE: Sex education advocates continue to treat as axiomatic the need for more sex education to combat teenage pregnancy and venereal disease. As late as 1980, and in spite of mounting evidence, the Alan Guttmacher Institute proclaimed: “Teenage pregnancy can, through better education and preventive services, be, if not altogether avoided, at least reduced, and through better maternity, abortion and social services, be reduced in its personal impact on the teenager who does get pregnant.” Opposition to sex education continued to be dismissed as a “simplistic view” in the American Biology Teacher journal.56 Congressman James H. Scheuer of New York found that the alarming statistics on rising teenage pregnancy only “highlights the need for strong leadership by the Federal Government in solving this problem.”57 The very possibility that “strong” federal “leadership” might have worsened the situation was not even mentioned. To the Alan Guttmacher Institute as well, an “almost quadrupling” of venereal disease between 1960 and 197258 only showed that more “broadly based national programs channeled through the public school system are needed and are long overdue.”59 Opposition to sex education has been depicted as “a threat to a democratic society.”60 When confronted with the evidence that pregnancy and abortions increased during the 1970s, sex education advocates often deny that sex education was widespread during that decade, by restricting the term “sex education” to compulsory sex education, which tended to be mandated later.
Although sex education programs have been sold to the public, to Congress, and to education officials as ways of reducing such tangible social ills as teenage pregnancy and venereal disease, many of the leaders of this movement have long had a more expansive agenda. As a congressional committee report noted gingerly:
The primary objective of Federal efforts in family life and sex education has been to reduce unwanted pregnancy rates among teenagers, while the primary goal of most sex educators appears to be encouragement of healthy attitudes about sex and sexuality.61
In short, however politically useful public concern about teenage pregnancy and venereal disease might be in obtaining government money and access to a captive audience in the public schools, the real goal was to change students’ attitudes—put bluntly, to brainwash them with the vision of the anointed, in order to supplant the values they had been taught at home. In the words of an article in the Journal of School Health, sex education presents “an exciting opportunity to develop new norms.”62 Only in the light of this agenda does it make sense that so-called “sex education” should be advocated to take place throughout the school years—from kindergarten to college—when it could not possibly take that much time to teach basic biological or medical information about sex. What takes that long is a constant indoctrination in new attitudes.63 An example of such indoctrination may be useful:
A popular sex instructional program for junior high school students, aged 13 and 14, shows film strips of four naked couples, two homosexual and two heterosexual, performing a variety of sexually explicit acts, and teachers are warned with a cautionary note from the sex educators not to show the material to parents or friends: “Many of the materials of this program shown to people outside the context of the program itself can evoke misunderstanding and difficulties.”64
Parents who learned of this program and protested were quickly labeled “fundamentalists” and “right-wing extremists,” even though they were in fact affluent Episcopalians in Connecticut.65 Here is an almost textbook example of the vision of the anointed, preempting the decisions of parents as to when and how their own children shall be introduced to sex—and dismissing out of hand those with different views. Nor was this episode peculiar to this particular school. Similar things have happened all over the country.66 Parents are denigrated both in discussions of public policy and in the materials given to students in the schools.67 A typical comment from “experts” is that “sex and sexuality have become far too complex and technical to leave to the typical parent, who is either uninformed or too bashful to share useful sexual information with his child.”68
This utter certainty of being right, even to the point of circumventing parents, is completely consistent with the vision, however inconsistent it is with decades of empirical evidence on the actual consequences of “healthy attitudes toward sex” as promoted by “experts.” The key point about the sex education crusade, from the standpoint of understanding the vision of the anointed, is that evidence proved to be as irrelevant here as on other issues.
Like so many negative social trends, soaring crime rates began in the 1960s, amid glowing optimism about how much better things could be if the traditional beliefs of the many were replaced by the special new insights of the few. In the case of criminal justice, however, the policy changes did not originate so much in legislation as in judicial and administrative rulings and policies. But the zeitgeist alone did not initiate the changing policies, which depended on specific people doing specific things. Among the key people whose words and actions set the tone for the changes in the criminal justice system in the 1960s were the chief justice of the U.S. Supreme Court, the attorney general of the United States, and the chief judge of the Circuit Court of Appeals for the District of Columbia, then as now regarded as de facto the second highest court in the land. By name they were, respectively, Earl Warren, Ramsey Clark, and David L. Bazelon. What was the problem or “crisis” they were attempting to “solve”?
STAGE 1. THE “CRISIS”: Although Chief Judge Bazelon said in 1960 that “we desperately need all the help we can get from modern behavioral scientists”69 in dealing with the criminal law, the cold facts suggest no such desperation or crisis. Since the most reliable long-term data are on murder, what was the murder rate at that point? The number of murders committed in the United States in 1960 was less than in 1950, 1940, or 1930—even though the population was growing over those decades and murders in the two new states of Hawaii and Alaska were counted in the national statistics for the first time in 1960.70 The murder rate, in proportion to population, was in 1960 just under half of what it had been in 1934.71
As Judge Bazelon saw the criminal justice system in 1960, the problem was not with “the so-called criminal population”72 but with society, whose “need to punish” was a “primitive urge” that was “highly irrational”73—indeed, a “deep childish fear that with any reduction of punishment, multitudes would run amuck.”74 It was this “vindictiveness,” this “irrationality” of “notions and practices regarding punishment”75 that had to be corrected. The criminal “is like us, only somewhat weaker,” according to Judge Bazelon, and “needs help if he is going to bring out the good in himself and restrain the bad.”76 Society is indeed guilty of “creating this special class of human beings,” by its “social failure” for which “the criminal serves as a scapegoat.”77 Punishment is itself a “dehumanizing process” and a “social branding” which only promotes more crime.78 Since criminals “have a special problem and need special help,” Judge Bazelon argued for “psychiatric treatment” with “new, more sophisticated techniques,” and asked:
Would it really be the end of the world if all jails were turned into hospitals or rehabilitation centers?79
Chief Judge Bazelon’s views were not the isolated opinions of one man but expressed a widespread vision among the anointed, many of whom lionized him for such statements.80 The same therapeutic vision was still apparent more than a quarter of a century later, when Supreme Court Justice William J. Brennan referred to “the etiology of crime,” for which he called upon “psychiatrists and psychologists,” as well as “experts in the behavioral sciences,” for help.81 Brennan’s long-time colleague on the Supreme Court, Justice William O. Douglas, likewise took the therapeutic approach:
Rehabilitation of criminals has seldom been attempted. Killing them or locking them up is the tried-and-true ancient method. Why not turn our faces toward rehabilitation?82
The therapeutic vision also permeated the writings and speeches of President Lyndon Johnson’s attorney general, Ramsey Clark:
Rehabilitation must be the goal of modern corrections. Every other consideration must be subordinated to it. To rehabilitate is to give health, freedom from drugs and alcohol, to provide education, vocational training, understanding and the ability to contribute to society.
Rehabilitation means the purpose of law is justice—and that as a generous people we wish to give every individual his chance for fulfillment. The theory of rehabilitation is based on the belief that healthy, rational people will not injure others, that they will understand that the individual and his society are best served by conduct that does not inflict injury, and that a just society has the ability to provide health and purpose and opportunity for all its citizens. Rehabilitated, an individual will not have the capacity—cannot bring himself—to injure another or take or destroy property.83
With Attorney General Clark, as with Chief Judge Bazelon and others, the problem was with the benighted public and its outdated attitudes. Society imposes long prison sentences “because we are angry,” according to Clark, but “this will not reduce crime.” He said: “If it is the public safety we are concerned about, the question is how persons convicted of crimes can be rehabilitated, not how long they should be locked up.”84 Again, it is necessary to emphasize that these were not the isolated opinions of one man. Ramsey Clark’s book, Crime in America, was widely praised among the opinion elites. New York Times columnist Tom Wicker, for example, called Clark “an awesomely knowledgeable professional” and praised his “generosity and understanding” as well as his “courage and persistence and eloquence.”85 The Saturday Review called Crime in America one of “the best books written on violence in America.”86 Similar praise appeared in Time magazine and in the New Republic.87 As far away as London, the Times Literary Supplement said in its review of Crime in America that no one has “done more to state the problem and light the way to improvement than Ramsey Clark.”88 More importantly, the attorney general, Chief Judge Bazelon, and justices of the Supreme Court were not simply people whose words received a large and favorable public notice from opinion-making elites. They were people in a position to act.
STAGE 2. THE “SOLUTION”: A series of landmark Supreme Court decisions in the 1960s changed the course of criminal justice in the United States. Mapp v. Ohio (1961), Escobido v. Illinois (1964), and Miranda v. Arizona (1966) successively expanded the rights of criminals in the custody of the police by making their convictions invalid if the procedures specified by the courts were not followed in detail by the police. Gideon v. Wainwright (1963) required states to provide free attorneys to criminal defendants, subject to the threat that their convictions would be overturned, even if guilt was unquestioned, when such attorneys were not provided. In California, even when state-appointed attorneys were supplied, if these attorneys’ defense strategies were second-guessed by appellate judges and considered inadequate, convictions could be overturned on grounds of denial of the constitutional right to counsel.89
Although the U.S. Supreme Court began this judicial revolution in criminal law in the 1960s, even earlier Chief Judge Bazelon had expanded the scope of the “insanity” defense in the landmark case of Durham v. United States (1954) and he continued to lead the D.C. Circuit Court of Appeals toward more expansive views of criminals’ rights. In addition, courts across the land involved themselves more and more in the administration of prisons, prescribing better living conditions and imposing on the prison system a duty to provide prisoners with access to law books, in order to prepare appeals of their convictions. Moreover, sentences were less often imposed and tended to be of shorter duration.90
In short, the vision of the anointed triumphed in the criminal justice system. The assumptions underlying its actions were the same as elsewhere. Sweeping presumptions about the irrationality and mean-spiritedness of the public were made without either evidence or a sense of need for evidence. Conversely, the validity and applicability of the beliefs of “experts” were taken as axiomatic. Judge Bazelon, for example, referred to the insanity defense as “merely one way of welcoming the psychiatrist into the courtroom.”91 Whatever the merits or demerits of this approach, it fulfilled the essential requirements for the vision of the anointed: It established that the anointed and the benighted were on vastly different moral and intellectual planes and it justified taking decisions out of the hands of those who passed the existing laws, in response to the voting public, and put these decisions in the hands of judges responsive to those with “expertise.” Moreover, it put the burden of proof on others. As Judge Bazelon put it, “in the absence of decisive empirical data,”92 he was prepared to experiment. There was no suggestion of what empirical data should be used to test the success of that experiment, either absolutely or relative to the approach discarded with such disdain. Although judges took the lead in this revolution in criminal justice, they were seconded by those in politics and in the media who shared the prevailing vision. President Lyndon Johnson saw social programs as the real way to fight crime. As quoted in the New York Times:
“I don’t know why some people sit idly by and are willing to take the more expensive route—the delinquency route, the jail route, the penitentiary route,” he asserted.
“It takes more of our money to take care of a convict in a penitentiary than it does to prepare a boy to be a good, taxpaying citizen who can read and write,” he said.…93
Similar views were expressed by 1968 Democratic vice-presidential candidate Edmund Muskie. Responding to the law and order issues raised by his opponents in the election campaign, Senator Muskie said:
But you can’t have law and order based on ignorance.… You’ve got to build it by education, enlightenment and opportunity. That’s the way to make a society safe.94
These views did not pass unchallenged, though the legal changes became “the law of the land,” largely by judicial rather than legislative process. On the Supreme Court itself, there were bitter dissents from the continued expansions—or creations—of criminals’ “rights.” The Miranda decision of 1966, which climaxed the judicial revolution in criminal law, led to this scene in the Supreme Court:
Justice Harlan, his face flushed and his voice occasionally faltering with emotion, denounced the decision as “dangerous experimentation” at a time of a “high crime rate that is a matter of growing concern.”
He said it was a “new doctrine” without substantial precedent, reflecting a balance in favor of the accused.
Justice White said:
“In some unknown number of cases the Court’s rule will return a killer, a rapist or other criminal to the streets and to the environment which produced him, to repeat his crime whenever it pleases him.
“As a consequence, there will not be a gain, but a loss, in human dignity.”95
Such dissents were brushed aside and outcries from the public and from law enforcement officials were dismissed. At a 1965 judicial conference, where a former police commissioner of New York City complained about the trend of the Supreme Court’s decisions on criminal law, his concerns were immediately met with sarcastic ridicule by a law professor who asked, “I wonder what rights we’d have left if we always yielded to the police hysteria.” According to the New York Times account, Justice William J. Brennan and Chief Justice Earl Warren sat “stony-faced” during the police commissioner’s statements, but then “frequently roared with laughter” as the law professor poured scorn and derision on those statements, which were characterized as “simplistic, narrow-minded and politically expedient.”96 The benighted were simply not to be taken seriously by the anointed.
Had anyone been seriously interested in testing the opposing theories of crime empirically, those theories were ideally suited for such testing, since each theory led to conclusions which were not only logically consistent with its own premises but which were virtually inescapable, given their respective premises. Moreover, these conclusions were clearly distinguishable empirically and data were readily available.
In the prevailing vision of the anointed, emphasis on punishment was mistaken when what was needed were therapeutic alternatives to punishment, social programs to get at the “root causes” of crime, and more rights for those accused and convicted of crimes, so as to establish that the law was fair and worthy of respect, which respect would then be an ingredient in more law-abiding behavior by those otherwise alienated from society. By contrast, the traditional view would lead one to expect a rising crime rate after the changes of the 1960s. If punishment deters, as the traditionalists believed, then the reduction in imprisonment that occurred in the 1960s would tend to produce more crime. But if imprisonment itself exacerbated the crime problem, as Judge Bazelon, Ramsey Clark, and numerous others with the vision of the anointed claimed, then this reduction in imprisonment would tend to reduce crime. Similarly, if social programs for the poor, for minorities, and for the mentally disturbed were needed to get at the “root causes” of crime, as the anointed claimed, then the vast and unprecedented expansion of such programs during the 1960s should have reduced the crime rate. The logical implications of each vision were quite clear. All that was needed was empirical evidence.
STAGE 3. THE RESULTS: Crime rates skyrocketed. Murder rates suddenly shot up until the murder rate in 1974 was more than twice as high as in 1961.97 Between 1960 and 1976, a citizen’s chances of becoming a victim of a major violent crime tripled.98 The number of policemen killed also tripled during the decade of the 1960s.99 Young criminals, who had been especially favored by the new solicitude, became especially violent. The arrest rate of juveniles for murder more than tripled between 1965 and 1990, even allowing for changes in population size.100
As in other areas, such evidence has made little or no difference in the vision of the anointed, except to spur them on to new feats of ingenuity in interpretation.
STAGE 4. THE RESPONSE: Since neither criminal law changes nor any other social changes are likely to produce truly instantaneous effects, there was a brief period during which no change in the crime rate was discernible—and this momentary lull provided occasions for expressions of much disdain toward those who had predicted that the new criminal justice practices would lead to higher crime rates. Just two months after the Miranda decision in 1966, the New York Times declared that “the gloomy predictions of its critics have been happily unrealized.”101 However, once the crime rates had clearly begun to rise in the wake of this and many other judicial changes designed to reduce them, the tactics of the proponents of those innovations shifted. Among the early responses to soaring crime rates, in the wake of policies designed to reduce them, were denials that crimes were in fact more frequent. Increased reporting of crime or better collection of data was held responsible for the upsurge in the official statistics.102 However, as James Q. Wilson put it, “by 1970, enough members of the liberal audience had had their typewriters stolen to make it difficult to deny the existence of a crime wave.”103 Moreover, even in the absence of accumulating personal experience, it was difficult to believe that soaring murder statistics reflected simply better record keeping, since it had always been hard to ignore a dead body.
An alternative to denying rising crime rates was to make it socially unacceptable to talk about it, by equating discussions of “law and order” with racism, since it was well known that crime rates were higher among blacks. “Law and order” was “an inflammatory statement,” according to the well-known psychiatrist Karl Menninger. “What it really means, I’m afraid, is that we should all go out and find the niggers and beat them up.”104 This was only one of many expressions of the prevailing vision by Dr. Menninger, whose book The Crime of Punishment was widely hailed as it blamed “society” for crime, treated criminals as more wronged than wronging, and urged a substitution of psychiatric treatment for punishment. Another remarkable attempt to evade the bitter implications of the data on the reversal of the crime rate decline after the criminal justice system was transformed in the 1960s was made in another highly touted book, Criminal Violence, Criminal Justice, by Charles E. Silberman, who wrote:
For all the talk about the decline in punishment and the hobbling effect of the Warren Court, moreover, what data are available indicate that contemporary criminal courts prosecute, convict, and incarcerate a larger proportion of those arrested for a felony today than did the courts of the 1920s.105
What was not explained was why the 1920s were selected as a base period for determining the effect of the Warren Court, which began in 1953 and whose landmark criminal law decisions were made in the 1960s. If this desperate expedient of choosing an irrelevant base period suggests that Silberman’s conclusions could not have been supported if his before-and-after comparison had been based on the actual dates of the actual decisions, or even on the date of the beginning of the Warren Court, a look at a few readily available facts confirms that suspicion. First of all, the likelihood that someone who committed a serious crime would be arrested fell until it was only one-fifth as high by 1979 as it had been in 1962.106 As for going to prison, an earlier trend toward rising imprisonment rates was ended in the late 1950s and early 1960s, and imprisonment rates remained low as crime rates rose during the 1960s.107
In short, contrary to what Silberman suggests, criminals were no longer being apprehended, convicted, and incarcerated as they were before the Warren Court remade the criminal law. Moreover, the consequences were precisely what anyone without the vision of the anointed would have expected: When Earl Warren became chief justice in 1953, the homicide rate in the United States was 4.8 per 100,000 population—lower than it had been in four decades.108 But a sharp rise in homicides began in the 1960s, more than doubling from 1963 to 1973,109 and by 1991 the rate for murder and deliberate manslaughter alone was 9.8 per 100,000110—even omitting other forms of homicide which had been counted in earlier statistics. Whatever the weight of before-and-after statistics, insofar as they are cited at all, the “before” year selected can change the conclusion completely. Silberman’s selection of the 1920s as his base of comparison suggests a desperate evasion of the obvious. Once again, it must be noted that Charles E. Silberman’s views were not simply the opinions of one man, as the widespread praise of his book in the elite media demonstrated.111
The general public and law enforcement officials who did not share the elite vision continued to complain, but while their concerns found some response in the political arena, the anointed were unmoved. Chief Justice Earl Warren brushed aside those whose “self-righteous indignation” about rising crime rates was based on “oversimplification.” According to the chief justice, “all of us must assume a share of the responsibility,” for he attributed the rising crime rates to the fact that “for decades we have swept under the rug” the slum conditions which breed crime.112 He ignored the fact that crime rates had been declining during all those decades when they should have been rising, according to his theory. Nor is there any reason to believe that Warren ever reconsidered that theory as crime rates continued to soar, for he said in his memoirs:
A sizable proportion of the American people, too, groping for a reason for so much criminal activity in our disturbed society but overlooking the root causes of crime—such as the degradation of slum life in the ghetto, ignorance, poverty, the drug traffic, unemployment, and organized crime (often made possible by the corruption of law enforcement officials)—joined in placing the blame on the courts and particularly on the Supreme Court.113
No attempt was made to show how any of these other factors had worsened so dramatically during the 1960s as to explain the complete turnaround in the historically declining murder rate, for example, or why none of the supposed benefits of the new criminal justice reforms materialized. The relationship between theory and evidence was simply not discussed. The vision was axiomatic.