Morgan O. Reynolds is Associate Professor of Economics at Texas A & M University. This article is based on Crime by Choice, to be published by the Fisher Institute in 1984.
Crime remains a silent contender for the number I domestic ill. It won’t go away. Criminal experts are prone to explain this by saying that crime is “intractable,” that there is little we can do. This claim is false. Crime is complex, to be sure, because it involves factors beyond law enforcement such as the strength of the family, neighborhoods, schools, and churches. But crime is simple in the sense that government officials can reduce crime by doing their job, namely, by making crime too unprofitable to practice.
No added resources are needed by the criminal justice system in order to accomplish this. Government finds it easy enough to spend money, but difficult to spend it productively. Between 1960 and 1982, for example, the number of serious crimes known to the police jumped from 3.3 million to 12.8 million, while government spending on police, courts, and corrections was doubling as a share of GNP, rising to one per cent of total output. Furthermore, victimization surveys show that only about one-third of crimes are reported to the police.
The key to making our cities less dangerous is to change the rules of the game. We must reduce the enormous daily waste of time and effort that makes it so expensive to arrest, convict, and punish the guilty. While the machinery of government and its bureaucrats is always plagued by weak accountability and inefficiency, the law enforcement problem has increased dramatically over the last twenty years. Since 1961 the criminal justice system has been transformed from a law enforcement system into a thicket of criminal rights and make-work projects for nearly 2 million lawyers, judges, social workers, psychologists, criminologists, prison officials, and other bureaucrats. More people now produce less justice.
The quadrupling of crime over the past twenty years is due to a top-down revolution, as all revolutions in public policy are. Friedrich von Hayek points out that political opinion over the long run is determined by the active intellectuals. That is why in every country that has moved toward socialism, there was a long preceding phase during which socialist ideas governed the thinking of most intellectuals. Expanded rights for criminal defendants, sociological theories of crime, theories of rehabilitation, and dubious legal processes have followed the same path.
The Short Run: Rebuilding External Constraints
Suppose that we had a carte blanche on crime policy and a mandate to reduce crime. What changes would be prudent and effective? I do not claim that my recommendations are feasible in short-run political terms, only that they are sound ways to reduce crime. The basic short-run strategy is to raise the criminal’s chances of arrest and conviction and increase the effectiveness of punishment, all without added burden on the taxpayer. This is far from impossible, provided these five recommendations were followed:
1. Avoid worsening the problem through increased community “rehabilitation” and other “therapeutic” treatments instead of prison terms.
2. Repeal the laws which make the crime problem worse than necessary, such as drug laws, gun control laws, rules restricting the use of prison labor, and those granting coercive privileges to organized labor.
3. Revise the exclusionary rules, suppression of evidence, inordinate delays, technical reversals, instability in criminal procedures, bias in favor of criminal defendants, and disregard for the rule of law by Supreme Court majorities.
4. Make greater use of private incentives and private contractors for police, prosecution, and corrections work, so that the taxpayers get more for their money.
5. Make sentencing fit the crime, not the criminal: Punishment should be usual, even-handed, determinate, prompt, shorter, more severe (though not cruel) and served in full.
The cardinal rule for any physician is “First, do no harm,” and recommendations 1 and 2 reflect this philosophy. The likely prospect is that things will get worse before they get better because criminal policies are still dominated by unsound ideas and unsound advisers. Legislatures are losing their earlier resolve and bowing to public pressure over the last few years. The people selling therapy for criminals are succeeding once again based on the argument that prisons are crowded and there is no sense in spending more money on failed policies. The legislature in Texas recently accepted this idea, pulling up short just as more plentiful and longer prison terms were beginning to make a dent in-crime rates. So the first order of business is to fend off more of the same policies which caused the crime epidemic in the first place.
Perhaps the most controversial recommendation is to repeal the criminal drug laws (and laws against other victimless crime), cases in which the cure is worse than the disease. Over 20 per cent of criminal arrests are for drug violations and these clog up the courts, preoccupy police resources, sustain the infrastructure of organized crime, raise the price of opiates so that as much as 30 per cent more street crime occurs, promote corruption, and have failed miserably in every respect. Similarly, gun laws are misguided attempts to control crime “on the cheap” which never have worked and cannot work in America. They are counterproductive and reduce citizen protection. The numerous restrictions on the use of prison labor have reduced the output of the economy, raised the prison bill for taxpayers, and denied prisoners wider employment opportunities. Even the prospects of rehabilitation have been harmed by these protectionist mea sures. Another labor policy adding to the crime problem is the tacit right of labor unions to use “the weapons of labor” in order to create artificial scarcities of labor via violence and threat of violence. The special privileges of labor unions, both by statute and common law, should be re voked. Not only would this directly reduce violence, it would also reduce the close association between organized crime and organized labor.
In addition to discontinuing some things, the public sector should do some things that presently are not being done. The most important step is to rebalance our biased criminal procedures. It is no exaggeration to say that the Warren Court has the blood of thousands of crime victims on its hands. Without the ability to convict the guilty promptly and conclusively in fair if less-than-ideal procedures, nothing can substantially reduce crime. With all of the privileges granted to the accused in today’s courts, we are fortunate to have as little crime as we have.
The techniques of the marketplace can improve the productivity of the public sector. Police departments, for example, should be at least partially rewarded on the basis of gains in reducing crime rates. The crime data should be checked by independent auditors. Private security agencies should be allowed to bid for contracts to supply police services where it is legally feasible. Based on experience, these measures can emerge on a piecemeal basis around the country, learning as we go. Similarly, private incentives and contractors can be more widely used in prosecution and corrections. When the duty of protecting a citizen from criminal harm is left solely to government, there are times due to neglect, malice, or political intrigue that prosecutors fail to act on behalf of the victim. If criminal law were amended to allow wider private rights of enforcement in the courts, then the citizen can protect himself if the government does not, and enforcement will be much more energetic. Prisoners should have more productive opportunities, with the profit motive allowed wider scope on both the demand and supply sides of the highly restricted market for prison labor services and in prison-made products. The ingenuity of the marketplace and competition should be harnessed to serve the cause of crime reduction.
Recommendation 5 is to change sentencing policies. We should eliminate false advertising: make sentences shorter but served in full. Sentences should fit the crime, not the criminal. The present philosophy about the appropriate procedures for determination of guilt and assignment of punishment basically should be reversed. Evidence about the accused’s criminal background, for example, should be allowed in weighing the probability of guilt or innocence, but should be ignored for sentencing. We do it for traffic fines or tax evasion and should do it for criminal offenses as well. Perhaps juveniles should receive special consideration but punishment basically should fit the act, not the age nor the criminal record of the guilty party. One of the tragedies of the current arrangement is that juveniles initially receive tender-loving-care at the hands of the criminal system and are almost seduced into a criminal life. Not taking the system seriously, some of them end up serving long sentences as habitual criminals for crimes so old that nobody can remember them.
Severity of punishment can be humanely increased through greater use of solitary confinement. This serves the cause of justice because anti-social individuals and criminal bands destroy social cooperation, so let them bear the logical results of their actions. The English penal system used this technique with great success in days gone by, and their abandonment of the procedure has been a factor in the British crime epidemic. Solitary confinement also has the virtue of decreasing schooling in criminal skills and criminal contacts. Prisoners also should work, but I favor the carrot of productive, remunerative employment opportunities rather than the stick of breaking rocks all day.
And what about the death penalty? I personally favor its reinstitution to administer just deserts for the absolutely worst crimes. Life imprisonment in an era of color TV and coed prisons cannot do justice for the acts of a Richard Speck. We terminate vicious animals, and if we believe that society is worth protecting we should be willing to execute the vicious killers that spring up among humans. Our present unwillingness to execute the most grotesque evildoers speaks loudly to criminals about our society and its ideological climate. As Friedrich Nietzsche said, “There is a point in the history of society when it becomes so pathologically soft and tender that among other things it Sides even with those who harm it, criminals, and does this quite seriously and honestly.
The Long Run: Rebuilding Internal Constraints
The rise of crime has not been an isolated social phenomenon. For instance, there is a striking parallel with the demise of discipline in the schools. Why? The basic reason is that a large, influential segment of public opinion came to believe that students should not be punished—made unhappy, reprimanded, scorned—for doing things that are wrong. As a substitute we ended up with “special counseling programs” and other non-answers. Those opposed to punishment share Rousseau’s view of man, feeling that social constraints inhibit healthy human development, that people are born friendly and considerate. Pro-punishers believe that man is a mixture of good and bad, but that our basic instinct is to look out for number one and trample anyone who gets in the way of what we want. Under the weight of painful experience, our schools may be shifting away from Rousseau’s views, but it can only be effective if adults are willing to face up to things, to show some backbone. Without serious steps to restrain the law-breaking minority, of course, the reversion to savagery is never far away.
The breakdown of the personal qualities of self-restraint, honesty, integrity, foresight, self- reliance, and consideration for others is indissolubly linked with the welfare state. For what is the redistributive state but a glorification of envy? There is an irreconcilable conflict between the rule of law, which depends on limited government, and the welfare state, which depends on a limitless government. As government has passed more and more laws and regulations, individual liberty has shrunk and disorder has grown. The rule of man has been substituted for the rule of law.
Crime and the Welfare State
The welfare state does not respect private property. It takes from the politically uninfluential and gives to the politically influential. Redistribution by government is not called stealing, though the same act is if performed by a private individual rather than a government official. Neither shoplifters nor more serious criminals think of themselves as stealing; they say that they just “take” things. In a way, they are right because crime and most of what takes place under the heading of politics amount to the same thing.
Changing the incentives faced by criminals is relatively easy from a technical point of view. Just make punishment swift, sure, and severe. It requires a firm but limited government. But if government is to restore the rule of law and protect private property, government itself must abide by the law. And this is not consistent with the welfare state.
Collectivists like to say that a war on poverty is also a war on crime. I agree with this statement but not in the sense that collectivists mean it. Collectivists mean more coerced re distribution, generous welfare benefits, more social workers and bureaucrats. The consequences of these programs have been family dissolution, illegitimacy, mass unemployment, demoralization, and non-existent work skills. Redistribution perpetuates poverty, intensifies it, and therefore increases crime. The real war on poverty occurs daily in the marketplace. Capitalism, entrepreneurship, commerce, and the creation of new wealth is the real war on poverty. Capitalism encourages independence, self-reliance, honest dealing, expanded employment opportunities, and therefore less crime.
New job opportunities in the private sector reduce the relative attractiveness of crime and do not call for more government training and welfare programs. They demand less welfarism. Government should get out of the way and allow the marketplace to create more opportunities and wealth. Many factors influence the labor market conditions that potential criminals confront. For example, federal minimum wage laws and union wage rates prevent many young people, whose services are not worth $3.35 or more per hour, from finding legitimate work. Stealing then is more attractive because they cannot find occasional jobs to pick up spending money. They also fail to acquire the skills, like basic reliability, that would allow them to raise their value in the marketplace. Many other policies adversely affect crime rates, including monetary and fiscal policies. The graduated tax rates, for example, used to finance destructive social programs retard economic growth and employment opportunities.
Robbery and tyranny by the state is a reflection of the general breakdown of moral law, as it was in ancient Rome, when people had lost all respect for the sanctity of private property. If the lights go out in any major American city, many thousands of people will go on a crime spree, as they did in New York City in the blackout of 1977. The intellectuals have spent decades telling people that they are underdogs in an unjust and decaying society, and that violating the laws against theft or rape is a form of social protest, a form of higher morality.
The long run problem of producing more considerate people means greater reliance on the private market and less on government. It is no surprise that a decline in criminal behavior occurred with the growth of capitalism, and that greater criminality has been associated with the rise of the welfare state and socialism. Reviving internal constraints means gradually reversing the growth of Leviathan. If we are to solve the problem of crime, as with other ills of the welfare state, we must work toward a society where economic and social policies are determined by free markets, not centralized coercion.
The underlying problem is to change the intellectual climate in this country toward liberty and justice and away from collectivism and injustice. No one can avoid this intellectual battle in our politicized era. The purpose of the criminal justice system must become the pursuit of justice once again. 
4. See Morgan O. Reynolds, “Unions and Violence,” The Freeman (February 1983), pp. 98106, and “Contradictions of Unionism,” Journal of Political, Social, and Economic Studies (Winter 1982), pp. 387-409.
5. For the arguments, see Steven R. Schlesinger, “Criminal Procedures in the Courtroom,” especially pp. 192-200 on the exclusionary rule in Crime and Public Policy, edited by James Q. Wilson (San Francisco, CA: Institute for Contemporary Studies, 1983).
9. For corroborating views, see Christie Davies, “Crime, Bureaucracy, and Inequality,” Policy Review, 23 (Winter 1983), pp. 89-105; James Q. Wilson, “Crime and American Culture,” The Public Interest, 70 (Winter 1983), pp. 22-48.