What Do We Really Know About Crime?

James Vorenberg, professor of law, has been on leave from Harvard for the past year to serve as the executive secretary of the President's Commission on Crime. This is the full text of a speech he delivered at Harvard last June during commencement week.

When President Johnson appointed the Commission on Law Enforcement and Administration of Justice last summer he gave it two broad assignments and 18 months to accomplish them: First, to cast light on what we do and do not know about crime and the methods aimed at its prevention and control; and, second, to make recommendations about how to overhaul this country's system of criminal justice, including specifications as to who must do what to bring this about.

For one who expected to grow old gracefully in the practice or teaching of corporation law, the confrontation with crime and what we do (and do not do) about it has been a series of shocks. The sharpest shock has been discovering the extent to which we lack even the most essential knowledge about crime and the degree to which we make do with untested assumptions, myths and oversimplifications. In my own work with the Commission and in an earlier assignment as Director of the Justice Department's new Office of Criminal Justice, I seem to have spent most of my time trying to understand how our system for criminal administration operates in fact -- as distinguished from how courts, statutes, rules, textbooks (and even law school courses) generally describe it.

The public, understandably worried by warnings of the increasing dangers from crime, focuses on the issues and incidents which make good newspaper copy or television footage -- the brutal or daring crime; riots; capital punishment; the Supreme Court vs. the police; the skillful duel between counsel in the trial of the big case; the parole board's release of a notorious sex offender. Public officials who work in the system too often lack the knowledge and perspective to be sufficiently self-analytical or radical in their thinking about what they do in the name of administering justice. And, with some notable exceptions, the bar and the universities have done little to pierce the darkness which surrounds this field.

There are many forces standing in the way of an overhaul of our criminal system -- fear, vested political interests, the lack of a natural lobby group for the success of the system, and a general distaste for most of those who are the customers of our agencies of justice. But the most powerful inhibiting factor -- and the one which reinforces the others -- is ignorance.

In the first place, we know very little -- much less than most people think and newspaper stories would suggest -- about the volume, kinds and effects of crime and who the perpetrators and the victims are. Over many years the FBI has painstakingly developed a reporting system based on arrest and offense figures furnished by local police agencies, which is our only authoritative source of national crime data.

More To Tell

But there is much these figures cannot tell us.

It is increasingly clear that many crimes -- particularly property crimes -- are not reported to the police. Yet it is essential that we know the actual volume of crime in order to make rational decisions about how to allocate our resources in response. For example, if we should find that there are many times more larcenies and housebreakings than are reported, that fact might affect judgments about the number and deployment of policemen, laws relating to locks and alarms, or the deductible clauses in theft insurance policies. It might also encourage us to try to strike harder at the elaborate system by which stolen goods are marketed. Of course, we might decide not to do any of these things, but at least our decisions would be less blind than they are today.

Even more important, if we should discover -- as I suspect to be the case -- that a high proportion of the victims of unreported crime are poor people, we would begin to get a picture of an economic burden not touched by our present criminal enforcement machinery and falling primarily on those already living on the fringes of desperation. And, particularly if we were to look into the reasons these people do not report their victimization, we might also be better able to understand the deep disrespect of many citizens toward our system of law.

It is not only the public's failure to report crime to the police which clouds our knowledge. In many cities the police themselves are, in the vernacular, "killing" crime. Thus, it has become a common pattern for the crime rate to go up in the first year of a new chief's administration, since one of his first reforms is to take steps to improve reporting.

It should not be impossible to get at the so-called "dark figure" of unreported crime, by sampling the general public to determine the rate of victimization. As indicated in recent newspaper stories, the Crime Commission is experimenting with this technique.

Cancer And Colds

Lack of understanding about trends in crime rates may be even more harmful. I think I am right that when we seek to interpret health trends we look separately at the figures on tuberculosis, lung cancer, and measles. We do not lump these together and add ulcers, colds and athlete's foot and then seek to make a gross judgment about how we are doing.

Overcoming Inertia

How are we to overcome the inertia which our present ignoirance about crime imposes on attempts at reform? Like the rest of nature, the human brain abhors a vacuum. If we do not help people move toward an understanding of how complex the issues and the facts in this field are, they will continue to think in terms of meaningless and often destructive oversimplifications. It will be difficult to get support for the process of change if discussion of issues is confined to whether to be for or against the Supreme Court, whether to be tough or soft on criminals, whether to support or leash the police. The issues are complicated, and our thinking must be equally complicated.

For example, we must begin to explore whether the criminal system as now operated and other institutions in society, such as schools, employers, recreation programs and welfare agencies, are reinforcing patterns of delinquency by some of their practices, and this requires detailed examination of these practices and attempts to measure their effects.

When we talk about higher calibre police agencies we must consider in detail what kinds of education and background we want our policemen to have and what changes must be made in what we ask the police to do in order to attract the men we want.

If we seek bail reform, we should consider whether we are prepared to throw out the whole money bail system; whether some people who are arrested are so dangerous that there should be some procedure to keep them locked up awaiting trail; and, if so, whether we can design such a procedure which will work less unfairly than money bail.

And we must decide in what kinds of cases we are prepared to take some immediate risks by early release and employment of offenders in the hope that for their sake and ours they will be less likely to return to crime.

More Money

The process of change also depends on pumping more money into the system. There must be money to experiment with any money to finance the establishment of new programs which increased knowledge tells us should be adopted. Thus, if a better way is found for handling the men who account for more than two million drunkenness arrests each year than the present never-ending cycle of police, court and jail, we will need money for the facilities and staff to deal with them.

If new data processing techniques are shown to be capable of providing better and faster information to police, prosecutors, judges and correctional officials to guide their decisions, very large initial investments will be required.

If we persuade ourselves that better educated people would produce improved results at each stage of the system, we will have to find the funds to educate them or attract people who have gotten the education on their own.

The federal government has in recent years taken some limited steps to make research funds available for work in the criminal field, and one of the important questions now before the Crime Commission concerns the amount and sources of financial support which will be needed in the field. Investment of funds to give us information and to carry out changes in this field could turn out to be a great bargain for our society.

But more than anything else, we need people with ability working in the criminal system and doing research about crime. Great efforts are now under way to get more able lawyers into criminal practice. This is a hard and slow process because now the pay and prospects are poor, and since even the able defense lawyer is destined to lose most of his cases, deciding on such a career has similarity to being condemned to spend the rest of one's days with the Boston Red Sox.

More Trial Lawyers

The significance of getting the ablest law school graduates into criminal practice goes beyond the importance of providing good defense and prosecution lawyers. Experience has shown that when these people begin doing criminal work their impact is felt far beyond the cases they handle. They ask questions and put pressure on everyone in the system to examine what they are doing and why. They organize reform and research projects and become a powerful force for change.

In the next few years we will need several times as many lawyers in criminal practice as today, and they must be among the best -- not the least -- able of the bar. It will require a major reorganization in the allocation of legal personnel in our society to achieve this, and the bar, law schools, foundations and government will have to find ways to make criminal practice sufficiently attractive so that first-rate lawyers will spend at least a part of their professional lives in this field.

But the opportunities for graduates of law schools and other parts of the universities to play a role in bringing criminal administration out of the darkness are even broader. A whole range of new jobs is opening up. People are needed to organize and run local bail reform projects; to work with neighborhood legal service offices; to administer government research and grant programs; to work for the criminal administration planning committees which state governors are setting up in response to the recent request of the President. Police departments are beginning to see the advantage of employing house counsel as well as others from the social and behavioral sciences, and I predict that whenever energetic and imaginative people occupy these jobs, they will be enormously influential in helping the police break out of their present isolation.

Nor does it seem likely that the universities will continue to play as limited a role in this field as in the past. There is an increasing demand for those who combine an interest in teaching, research and direct participation in the process of social change. There is great excitement and satisfaction in devising, testing and helping to implement projects which may make the difference between jail aind freedom for thousands of people or which may result in reducing the frightful burden crime imposes on both the victims and the offenders. I can personally attest that the intellectual demands of the problems in this field are no less challenging -- and are perhaps even more frustrating -- than fighting one's way through the reorganization provisions of the Internal Revenue Code or Article IX of the Uniform Commercial Code.

Of course, we cannot be sure what the results will be if we apply to the problems of crime resources of money, understanding and ability commensurate with the scope of the need. But it is my strong belief that if the criminal system can be brought out of the dark, the unfairness and futility which marks its operation today will begin to yield to the process of change.

But I believe the public is seriously misled by a tendency to regard crime as a simple phenomenon, rather than distinguishing among offenses by type and degree of seriousness. For example, I suppose most people in this country today assume the danger of their being murdered or raped is increasing all the time. But the reported figures indicate that the rate of these crimes -- while high enough to be a continuing source of worry -- has barely kept pace with the overall population increase, and I believe we can assume that reporting is quite complete on homicides and unambiguous rapes. The dramatic relative increase in reported rates has taken place in the property crimes, particularly larceny, burglary and auto theft. To identify and understand changes in the danger the public faces, and to allocate preventive resources, it is necessary that we break crime trends into their component parts before seeking to draw conclusions from them.

Who's Responsible

Another reason why we need to understand the extent and nature of changes in the rates of serious crimes is that today the civil rights movement, the war on poverty, the moral decadence of American youth, new rehabilitation techniques, and the Supreme Court are individually and in combination being held responsible for making our streets, parks and homes less safe. It is, of course, important to try to understand these relationships, although it is very difficult to show that increases in crime are or are not "caused" by such factors. But as a starter, those who seek to establish such a relationship should be sure the trend itself has been properly identified and interpreted.

We know even less about the effects of what we try to do about crimes and criminals than we do about the facts concerning crime itself.

The police, for example, have virtually no measure of the success of steps they take to prevent crime. New York City recently invested an estimated 20 million dollars a year in subway guards, and the number of attacks on riders dropped sharply. People were indeed safer in the subways, but there was no way of knowing whether crime was reduced or just driven out of the subways into the streets, stores and homes. The investment may have been justified by the alleviation of people's great fear about riding the subways, but we should be clear that in terms of crime prevention, we do not know whether a similar sum spent on other prevention techniques, such as juvenile gang programs or better radio equipment, would or would not be a better investment in actual, overall safety.

A few weeks ago, in one of our cities which had been trying a number of new crime-prevention approaches, I congratulated the chief on having a smaller than average monthly increase in reported crime, and I asked him what he thought accounted for it. He said it might be the increased draft calls, or an unusually rainy month, or poorer reporting of crimes by some of his men, or something he was doing right -- but, if so, he didn't know what it was. His position -- shared by officials all through the criminal justice system -- is like that of a retailer trying to decide whether to change his markup on goods or his advertising policy without having the means to test the effect on sales and profits.

Invisible Decision

Our prosecutors and judges are faced with the same lack of tools to measure the success of what they are trying to do. Each day in a municipal criminal court hundreds of decisions are made to drop some cases without prosecution, to accept pleas of guilty in other cases in return for relatively lenient sentences or probation, and to prosecute a few cases to the limit. While we are all warmed by the glow of Perry Mason's courtroom brilliance, it is, in fact, this informal and invisible negotiating and adjusting process -- and even more invisible police decision on whether to arrest in the first place -- that constitutes the great bulk of the administration of justice in this country. There are virtually no rules or guidelines governing the decisions made in the more than 90% of the cases which do not get tired but which involve liberty or imprisonment for millions of people each year. The cases never show up in the printed reports, and it is extremely difficult to get even a "feel" of the basis on which most of these decisions are made. And, of course, there is no data on the effectiveness of such decisions, whether effectiveness is judged by the rate of repeated crime, the deterrent impact of the criminal law, or the respect and confidence of the public for the criminal process.

Occasionally there is a glimmer of light. There