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Wednesday, July 01, 2009

Durkheim’s Law and Order

A terrible crime is committed, the kind that brings scores of relatives to their knees in grief and sets thousands more residents on edge; the kind of crime that can lead people to question their own sense of the rightness of the moral order in which they live.  A wrong doer is identified.  Upon him the moral outrage of the community is turned.  Through the expression of that outrage in punishment (originally in the most physical and painful ways), the sense of rightness to the moral order is restored. 

This, in cliff-note form at any rate, is the theory of the social function of punishment proffered by pioneer sociologist Emile Durkheim in his 1893 book De la division du travail social (The Division of Labor in Society).  Most sociology and criminology students over the years have acknowledged that it captures at least some of what the complex processes we call “criminal justice” represents (but also processes like lynching and the torture of enemies). Durkheim was arguing against the optimism of penal reformers in his era who believed that the primary function of criminal justice was social defense through the rational operation of deterrence, incapacitation, and where possible, penal reformation.  Efforts to cloak the criminal justice system in the clothes of rational science and organization, Durkheim believed, would be frustrated by the persistence of the emotional and moral responses that he described.

In America, paradoxically, our public has always supported the optimistic reformist ideology about penal justice. (See my article on Lombroso and American popular consciousness in the Texas Law Review, 2005).  Even our recent turn toward very extensive use of imprisonment has been promoted relentlessly on the claim that prison works to reduce crime.  Ironically, it is the law enforcement establishment, ---that modern bureaucratic nexus created to realize the modern goals of social defense, police and prosecutors especially, --- who seem to believe in the Durkheimian version of their job description.

Case in point, Austin Texas, as described in James McKinley Jr.’s finely written and researched article in today’s NYTimes on a terrible crime committed 17 years ago in that city, and the likely wrongful convictions that have emerged thanks to DNA testing.

"Seventeen years have come and gone. The yogurt shop where four teenage girls were raped and murdered has been replaced with a payday loan store. No sign remains of the fire the killers set to cover their tracks; no plaque marks the place where the girls died.

Yet this city has been unable to put the horrific crime to rest. Last week, two men who were awaiting retrial for the murders walked out of jail on bond after new evidence surfaced suggesting that someone else might have taken part in the attack….

For years, investigations went nowhere. The police chased down thousands of leads and received several false confessions.

In 1999, cold-case detectives went back to interview Maurice Pierce, who had been a suspect for a brief time early on. Then one of Mr. Pierce’s friends, Mr. Scott, gave a rambling 20-hour confession in September 1999 in which he described the attack in detail. He said a teenager named Forrest Welborn had waited outside in a getaway car while he, Mr. Springsteen and Mr. Pierce had committed the crime.

Within days, Mr. Springsteen gave a shorter confession in West Virginia, where he was living, confirming many details in Mr. Scott’s account, the police said. Both retracted their confessions before trial.

Sgt. Ron Lara, who interrogated both men, said they had given details about the crime that had never been made public, like the position of the bodies. “There is no doubt in my mind, personally,” Sergeant Lara said of their guilt….

The convictions did not stand. In 2007, an appeals court ordered new trials because the defendants had not been able to cross-examine each other about their videotaped statements, which prosecutors had introduced at trial because they had no physical evidence.

In preparing for a retrial, prosecutors decided to perform a new test on samples from Miss Ayer’s body in hopes of finding evidence to bolster the case. The technology, which had not been available in 2001, was able to detect minute amounts of genetic material.

But the DNA did not match any of the four suspects…"

So why do police take every kind of risk with the truth to obtain inculpating evidence from suspects, even in the absence of strong reasons to believe in their guilt (for an account of these high risk practices in the confession area see Richard Leo's recent award winning book, Police Interrogation and American Justice)?  And why do prosecutors pursue such cases, often in willful blindness to the questionable nature of the evidence and sometimes long after strong reasons have emerged to question those convictions obtained?  It may be that the people who are drawn into law enforcement share an emotional and moral sensibility about crime that better fits the Durkheimian account than the average American.  It may be that exposure to the pain and suffering of violent crime at close range that police officers and prosecutors receive on the job, leads them to have a greater need for the kind of emotional release that Durkheim described.  But I fear it is most likely because as an account of what their job is about, i.e., to give the community a target for it’s emotional and moral dis-ease in the aftermath of a terrible crime, the Durkhiemian vision is one much easier to accomplish (provided they maintain a blue wall of silence around any mistakes) than the complicated, hard, and often frustrated pursuit of social defense through the arrest and conviction of actual criminals. 

Posted by Jonathan Simon on July 1, 2009 at 11:29 AM | Permalink


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A fascinating discussion. Let me offer some insights from my own practice experience, which until my recent move to academia consisted of litigating civil rights cases stemming from wrongful convictions. As Jonathan notes and as the Austin yogurt shop case demonstrates, there is a fierce and often highly irrational tendency among prosecutors and police - along with, not coincidentally, crime victims - to continue to assert belief in the guilt of a perpetrator whose innocence has been demonstrated. I have seen far more extreme and ludicrous examples than what the news coverage recounts in the Austin case, often recounted under oath in depositions or at trial. There are many potential explanations for this, but my gut feeling is that at the root of it is an experience that I used to call cognitive dissonance but that upon reflection I see as essentially Durkheimian:

These individuals experienced and/or investigated extreme criminal acts (most exonerations are in murder and rape cases) and achieved, through a conviction, the restoration of moral order. But if they convicted the wrong person, not only was that restoration illusory, but THEY - the police, the prosecutors, perhaps even (she or he might feel) the victim - have engaged in actions that themselves "lead people to question their own sense of the rightness of the moral order in which they live." If the "exoneration" is a true one, the moral champions must come to terms with their own roles in not only a personal tragedy in the conviction of an innocent citizen, but a moral upheaval in a) the failure of the criminal justice system to vet truth from falsity, and b) the destabilizing of society worked by the true wrongdoer's freedom.

Posted by: J. Laurin | Jul 3, 2009 11:44:49 AM

Thanks for you insightful observations about sources of error in prosecutors' offices. I think the police are actually much more to blame in most of these cases where a false confession or a botched line-up are involved. Where I fault the prosecution is in the tenaciousness with which many offices fight efforts to exonerate prisoners even when major elements of the evidence has collapsed (as in the Austin Texas case mentioned in my post where even after DNA evidence showed that someone other than the two men convicted had deposited DNA on the victims, the prosecutors are still maintaining that that men may be guilty any way). I agree that many less serious and non-violent crimes also result in wrongful convictions but we should be open to the possibility that different motivations are at work. In the case of extreme violent crimes, the Durkheimian pressure to find someone to blame for the sake of moral equilibrium may be operative. In drug cases I would suspect that something very different, a kind of cynicism about whether individual guilt (as opposed to group membership) even matters, promoted by the drug war itself, may be more salient.

Posted by: Jonathan Simon | Jul 2, 2009 6:49:32 PM

As a means of explaining "prosecutorial blindness to innocence," Durkheim's theory is incomplete, I think. If this blindness is a result of the police or prosecutors' need to provide some equilibrium to a communal sense of moral rightness, then we'd expect to see this blindness only in high profile and/ or high level cases. Instead, however, we really see it more pervasively, even down to the level of victimless crimes for which there is no sense of needing to right the community's sense of moral balance.

As a former state level prosecutor now turned law prof, I think there's more going on than just this one explanation. Though I do think Durkheim's theory is part of the picture, particularly with high level (i.e. murder, rape, etc.) cases, there are many more factors contributing to the prosecutorial blindness which, I admit, exists fairly extensively.

For instance, DA's offices are (in my experience) the ultimate echo chamber, full of group-think. If police arrest a suspect, that arrest is cloaked with a sort of presumption of accuracy with which prosecutors really do need to contend if they ultimately drop a case. There's a severe social pressure to uphold the position of the arresting officer. Moreover, in "vertical" prosecutorial systems, where one ADA conducts the "intake" investigation and decides whether to file formal charges and another ADA gets the case from arraignment to trial, there's a pressure to uphold the intake ADA's decision, despite the fact that such investigations are often ridiculously insufficient. If you fail to uphold the determination of the police and/ or the intake ADA, you must be "trial shy," and not really worthy of elevation to higher levels. This is a palpable social-psychological force, severely curtailing the likelihood of a genuine, subsequent objective review of the case.

Also, there is an intense resource scarcity, even at seemingly high levels. At major metropolitan DA's offices, "run of the mill" homicides are handled by relatively low level prosecutors (my former self, included). These prosecutors have, perhaps, twenty other homicides. With that caseload, the ability to conduct an extensive review of each case is limited, and often the job of conducting such an evaluation is left to the defense side. In a case with a motivated (read: well-paid) defense counsel, justice usually is served. But, where defense counsel lacks initiative, the case will go to trial, cloaked in the jury's eyes with the implicit imprimatur of the DA's Office and the police department.

While I think you're on to something when you note that those drawn to a prosecutorial career may have a heightened sense of providing an equilibrium in moral rightness, I think more practical (and less theoretical) forces complete the picture.

Posted by: NewLawProf | Jul 2, 2009 11:35:45 AM

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