Posts Tagged ‘Juries’

On Jury Nullification

Friday, October 28th, 2016

Over on my comic, reader Martenzo this morning asked:

While this is off-topic for the current chapter, I got curious after reading about the recent Bundy acquittal in Oregon. Are you ever going to cover jury duty in greater detail, and will you mention jury nullification? Are you, as a lawyer, even allowed to admit jury nullification is a right that exists?

Without discussing the Bundy case (because I haven’t thought it through, frankly), I dashed off a quick reply. While tapping away at the keyboard, it occurred to me that the reply really belonged here on the blog, instead. Especially since I’ve kind of let the blog slide to the back burner (then off the stove entirely) this year.

I didn’t go back and read over my answer before clicking “submit.” It may well be cringeworthy. But everything on this blog is a first draft, too—it’s always been raw and unedited. So in keeping with tradition, I’m going to cut-and-paste my response below, cover my eyes, and click on “publish.”

Here goes…



When we get to Advanced Criminal Procedure, I’ll have a whole chapter on juries, how they and the law’s views of them have evolved over time, etc. And yes, jury nullification will be a big part of it. Criminal juries historically did have the power to vote “not guilty” if a law was unjust or if a conviction would result in injustice. The jury was thought of as the “conscience of the community.”

In the early U.S., it was also seen as a check against unconstitutional laws. Jurors proudly refused to convict people charged under the Alien and Sedition Acts, for example. These were enacted under President Adams, and were used to prosecute newspapers critical of him. (Think now to Hillary’s bugaboo about Citizens United being allowed to criticize her, and Trump’s similar wish that the First Amendment didn’t let people criticize him, and you’ll see that some things never change.) Ironically, Adams himself accepted jury nullification as a necessary power of the jury, saying “it is not only [the juror’s] right, but his duty … to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”

Jury nullification continued to be an important check on unconstitutional laws throughout the 19th century, as well as laws that were contrary to the values of the community, being used to acquit people who had violated the Fugitive Slave Ave and also early alcohol prohibition laws.

As we started to transition into the 20th Century, however, judges started shutting it down as views on the role of the jury changed. At the time of the founding, the jury was seen as judge of both the law and the facts. Our first Chief Justice, John Jay, writing for a unanimous court, spelled it out neatly in the case of Georgia v. Brailsford, 3 U.S. 1 (1794). He explained that, while traditionally it’s the role of the jury to decide what the facts of the case are, and the role of the judge to decide issues of law (as judges presumably know the law better), nevertheless that’s only a rule of thumb. The law, however, is that both the law and the facts are “within [the jury’s] power of decision.”

By the 1890s, however, the rule of thumb had come to be seen as the rule itself. (This happens a lot. I’m working on a law review article taking a deep dive there.) Courts saw the jury’s job as finding the official version of the facts, to which the judge could then apply the applicable law. Jury nullification, then, came to be seen not as an important civic right, but as a dangerous transgression on the role of the court, and a frustration of justice. As a result, trial judges routinely instruct juries that it’s their job to decide the facts, but the law is up to the judge. Lawyers who insinuate that a jury might say “not guilty” even if the facts fit the elements of the crime, are going to get shut down or worse. In the courts where I usually practice, a juror who indicates that he might nullify is going to be excused as if he said he would not be able to follow the judge’s legal instructions.

Even telling people about jury nullification pisses off prosecutors. In 2010, the feds arrested a guy for handing out fliers in front of the federal courthouse here in Manhattan, and prosecuted him for jury tampering under 18 U.S.C. § 1504. In 2015, Michigan prosecutors charged a guy with obstruction of justice for doing the same thing there. Both guys faced jail time, but the judges in both cases dismissed the charges.

That’s because, although judges don’t like jury nullification, and don’t like jurors being told about it, nullification is still not against the law, and (so long as you’re not trying to influence a juror in a specific case) the First Amendment protects telling people about it.

Indeed, though trial courts and prosecutors don’t like it, higher appellate courts continue to recognize that jury nullification is a power that juries have. Writing for the Supreme Court in 1920, Justice Oliver Wendell Holmes put it plain–though the judge should explain to the jury the law that applies to the facts, “the jury has the power to bring in a verdict in the teeth of both law and facts.” Horning v. District of Columbia, 254 U.S. 135 (1920). The Supreme Court and other higher courts have continued to accept this to the present day. See, e.g. U.S. v. Dougherty, 473 F.2d 1113 (D.C. Cir. 1972) (“The pages of history shine on instances of the jury’s exercise of its prerogative to disregard uncontradicted evidence and instructions of the judge. * * * The jury system operates in fact so that the jury will not convict when they empathize with the defendant, as when the offense is one they see themselves as likely to commit, or consider generally acceptable or condonable under the mores of the community.”) As recently as 2013, the Supreme Court has repeated its maxim “A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government” from the case Duncan v. Louisiana, 391 U.S. 145 (1968) (Google Scholar link to the cases using that phrase).

HOWEVER — and this is a big however — these same courts are perfectly fine with ruling that the jury doesn’t need to be informed of its power to nullify. In fact, they tend to espouse the rule that juries shouldn’t be told they can nullify. The general idea is that if we do that, we’ll have anarchy. People will get acquitted, not because the jury thinks the law is unjust or unjustly applied, but because they don’t like the police, or they feel that “too many young black men are already in prison,” or because one rogue juror — rather than the community — thought the offense shouldn’t be against the law. If juries aren’t told they can nullify, then nullification will only happen in real true instances of injustice, unconstitutionality, abuse of government power, or violation of community values.

Accepting that the jury has this power, while at the same time insisting that they not be informed of it, is seen not as a compromise, but as a well-balanced equilibrium. We don’t get chaos and anarchy contrary to the will of the people (as expressed by the legislature that passed the laws… and I guess as also expressed by the unelected bureaucrats who enacted the vastly more numerous regulatory crimes). But we do get a “safety valve” for the truly exceptional cases. If we tell the jury that they can nullify, it will throw this whole equilibrium out of whack.

Courts back this up by insisting that jurors already know they can do it, anyway. “Everyone knows,” from the osmosis of popular culture, that juries have the prerogative to acquit when a conviction offends their conscience. Formally telling them they can, then, could be taken as a strong hint that they should. It will make them consider it when they shouldn’t. It will be a validation for those who would use it for the wrong reasons. No, no, we ensure that it’s only used for the most egregious cases by letting the popular culture create the general perception that it can happen, and ourselves refusing to tell jurors outright.

I’m not making this up. You can’t make this up. That’s what courts actually say.

(Aside: this isn’t the only area of our jurisprudence with such an inane rule. As you may recall from an earlier chapter, courts generally prohibit evidence informing juries of how inaccurate and unreliable eyewitness testimony is. Why? Because we don’t want jurors to hear that, and besides “everyone knows” anyway, so the testimony is unnecessary.)

Sadly, the theory fails when confronted with the facts. Everyone doesn’t know. It is frankly routine for jurors to be incredibly distraught by their guilty verdicts, convinced that they had absolutely no choice but to say guilty because the elements of the crime were satisfied. That’s what the judge and prosecutor — and maybe even their orientation video — firmly instructed them. Those who indicated that there was even a chance that they might not follow that instruction had been dismissed. The truth is that jurors do not know or understand that it is their power, right, and civic duty to vote “not guilty” in cases where a conviction would be unjust. Jurors of good conscience are routinely devastated by the awful decisions they felt compelled to make. Meanwhile, real human beings are right now suffering awful years of lengthy prison sentences, their lives ruined, their families destroyed, by convictions nobody of good conscience would have wanted.

Look, runaway juries are a truly bad thing. When I was a young prosecutor in Manhattan, we used to joke ruefully with our counterparts in the Bronx that the only time they could get a conviction at trial was if they were prosecuting cops. It was an exaggeration, of course, but the kernel of truth was that people were so unsatisfied with the justice system in that community that truly guilty people were going free, not because their individual conviction would have been unjust, but as an expression of larger, deeper failings. But it wasn’t a solution to the entrenched problems. Police saw it as proof that they were the opponents of the community, rather than its protectors, a justification for their “us vs. them” mentality. Two of my first trials in that period that ended in hung juries, where every single juror was convinced of guilt, but members of oppressed communities didn’t want to see another young black man go to jail. Their words, not mine (and hence my use of the phrase earlier). Nullification is not a safety valve for systemic failures. It’s for individual justice. Trials are individual cases about individual people. Defense attorneys who want to change the system through individual cases both fail at it and wrong their clients. Juries who want to protest or change the system through individual cases also fail and do a disservice to justice. This is the chaos and anarchy judges fear. They didn’t just fantasize about it.

The jury’s prerogative of nullification is a powerful component, not only of our justice system, but of our constitutional heritage. From the earliest juries in medieval England to the modern courthouses of our postindustrial society, the jury’s role as the conscience of the community has served as the last resort of the people to protect their rights and their justice from the might of the state, against the caprices and failings of those who wield that power. The power to say “not guilty” is absolutely necessary to democracy and the rule of law. Without it, tyranny is all to easy. The next John Adams could succeed in imprisoning anyone who said unkind things about it.

But when it the tool is used for the wrong task, it undermines that very democracy and rule of law.

So what’s the solution?

Easy. Tell juries as a matter of course, in those orientation videos so proud of the jury’s important role in society, that one of its important roles is to act as the conscience of the community. Inform them, in plain language, that the jury can act as a safety valve and acquit even when the facts technically fit the crime, when to do so in this particular case would offend our human decency. But warn that this power must not be abused. Warn that voting not guilty just because you don’t like the fact that something’s against the law, or as a form of political protest, steals justice from our justice system. In voir dire, do eliminate for cause anyone who thinks the offense shouldn’t be against the law — the jury’s role in defeating unconstitutional laws has probably been transferred to the courts ever since Marbury v. Madison et al. Do eliminate for cause anyone who would abuse the nullification power. But don’t eliminate anyone who promises to use it to prevent individual injustice. Do let lawyers argue for it and against it. And do instruct them before deliberations on its appropriate use.

Sure, judges might screw it up. Courts would rule on those instructions. We might even develop a line of cases refining our jurisprudence on precisely when jury nullification is desirable. Instead of being a worrisome secret, it might become a subject of popular debate and scholarly thought. And people serving on juries will proudly and confidently see that justice is done.

That wouldn’t be such a bad thing.

Making the Jury’s Job Easier – and Better

Sunday, September 11th, 2011

Anyone who has served on a jury or tried a case knows that the American jury system is pretty stupid.  Don’t get us wrong — it is absolutely without a doubt a sacred institution designed to ensure justice better than any other system we know of — but it’s still stupid.

Think about it — You take a dozen people who probably don’t practice criminal law.  You tell them they’re going to be deciding someone’s guilt or innocence, and then you shove a few weeks of testimony and exhibits in front of them.  But you don’t tell them what the law is — what they’ll be applying — until after all the evidence is over.  You don’t tell them what they should have been listening for, until it’s too late.  You don’t let them ask questions of witnesses to clarify points they didn’t get.  When everything’s over, and it’s finally time to tell them the law they’re going to apply, you simply read it to them for a few hours.  You don’t let them take notes.  You don’t give them a copy of the law you just read them.  They are presumed to have memorized and applied correctly the intricate flowchart of criminal elements for each crime, definitions of legal jargon, and all the other attendant instructions.  If they ask for clarification later, you simply read the instruction to them again.

And that’s not even half of it.  On top of all that, you make them do the judge’s job, in addition to their own.

The jury’s job is to make findings of fact.  The judge’s job is to make rulings of law.  The jury’s job is very important — their job is to decide on the official version of the facts.  The court cannot do anything until the facts are established, and then it can take the necessary action — whether it be punishing the guilty or freeing the not guilty.  But the determination of “guilty” or “not guilty” is a legal conclusion reached by analyzing the official version of the facts.  And in our system, we tell the jury to make that ruling of law.

In fact, those who were not in that jury room will only ever see the ultimate legal conclusion, and will only be able to speculate as to what the actual facts were on which that conclusion was based.  Based on studies of jurors (and anecdotal discussions after many trials), it appears that a large number of verdicts are based on flawed application of the law to the facts — or even without any such application whatsoever.  People are found guilty of crimes where jurors did not think essential elements had been proven beyond a reasonable doubt.  People are found not guilty of crimes where the jurors were actually persuaded of the necessary elements.  Jurors hang, or screw up, because they don’t understand what they’re doing.

The system is stupid, and almost guarantees injustice.

Fortunately, the problems are easy to fix.


One simple fix, which resolves quite a few of these inanities, would involve little more than (more…)

More Google Mistrials

Friday, January 21st, 2011

Back in the infancy of this blog, we wrote a piece called “No More Google Mistrials: A proposal for courts to adapt to modern life.”  In it, we lamented that our jurisprudence hadn’t caught up with the realities of the internet age, and that mistrials were still being called whenever jurors got caught looking stuff up online.  We pointed out that it wasn’t exactly a new phenomenon — people had been Googling stuff for years — so it was high time the courts got caught up.

Amazingly, this post seems to have escaped the notice of the “they” who make up the rules of how a trial is to proceed.  Heavens forfend, but it might even be possible that a number of judges may never have even heard mention of it.  Stranger things have happened, though we can’t think of any offhand.

Be that as it may, the internet is forever, and it seems to get read from time to time.  Mainly by members of the press, it appears, and usually right after yet another Google mistrial has been declared.  That’s when we seem to field calls about it, anyway.

And that’s what happened earlier this week.  We were on our way to handle a case out in the rust belt, and were driving past Wilkes-Barre, Pennsylvania (a town near and dear to our heart ever since we landed a small plane there in a freakishly windy day back in our teens, a simple refueling that wound up involving the National Guard, a mistaken identity, extremely obliging air traffic controllers, and an absurd amount of adrenaline — though that’s a story for another time).  When we happened to get a call from a reporter right there in Wilkes-Barre, calling to discuss a Google mistrial that had just happened there.  (You can read the resulting article here.)

We basically said the same things in the interview as we’d written a couple of years ago, which is news enough right there.  Our opinions and positions do tend to evolve as we learn new facts or new ways of looking at old facts, so it was a nice surprise to read our old blog post for the first time since we’d written it and find that it’s pretty much what we’d just said.

But on second thought, we actually said some new stuff in this interview.  Some new policy considerations came to mind.  The reporter gets the credit for this, because unlike most reporters who just want a quick sound bite so they can get back to banging out their story by deadline, this reporter debated us.  She flatly challenged our position, saying that few if any would agree with us, and demanding that we defend it.  It was a pretty skillful interview.  Pity none of the good stuff made it into the article.  We blame the editors, of course.

So for the benefit of those who have bothered to read this far, here’s the good stuff:


We don’t want jurors going out and (more…)

Nullifying Nullification

Monday, October 11th, 2010

In more than a dozen years of conducting and observing felony jury trials, at both the state and federal level, we’ve seen enough jury nullification to know it’s a real phenomenon, and not merely anecdotal.  We’ve seen jurors refuse to convict the most obviously guilty defendant, because they felt sorry for her, or because they didn’t want to put another young black man in prison, or because they had some random political or religious agenda.  We’ve seen jurors vote to convict, even though they had reasonable doubt, because it was obvious to them that the guy must have committed the crime, even if the evidence wasn’t really there.

In other words, jurors’ assessment of the evidence often has nothing to do with their actual vote on guilt or innocence.  They take it on themselves to act as a “conscience of the community,” and frustrate the whole point of their role.  (For more on how our jury system defeats justice, see our previous post here.)

The purpose of a trial jury is nothing more nor less than to decide the official version of the facts.  That’s all.  Society needs to make a decision about what to do in this case.

The decision is purely formulaic, in criminal law: if and only if we have facts A, B and C, then the defendant has committed crime X.  If fact B is missing, crime X did not happen.  It’s up to the jury to decide whether A, B and C really are what happened.  Whatever the jury decides, that is the official version of the facts.  The system can now take whatever action is appropriate under those facts, and both the parties and society can turn the page and get on with their lives.

[Truth — that’s “Truth” with a capital “T” — is not the goal.  It’s (more…)

How the Jury System Defeats Justice

Thursday, July 8th, 2010


Our jury system is supposed to maximize justice.  So how come our system only makes it harder for jurors to do the right thing?

Take this example: A judge in Florida today began reading some 100 pages of instructions to the jury in a case charging a lawyer with stealing $4 million from clients.  A hundred pages of instructions.  Which the jurors are expected to absorb through their ears.  Which, on appeal, the jurors will be presumed to have remembered perfectly, and to have applied with absolute precision.

Nobody really believes that jurors remember the details of their instructions, of course.  And nobody really believes that they apply those instructions to the letter.  It’s just a useful fiction.  Like so much of the law, what’s important is that the litany was spoken.  Say the right words, and we can all presume the right thing was done, and we can all move on with our lives.  

The system is more interested in finality than with the truth, is why.  The truth is nice, and something to be hoped for, but it isn’t necessary.  The whole point of a trial is not to arrive at the truth, but to arrive at an official version of the facts.  The judge can then apply the law to these official facts, and then everyone can close the book on that matter.  It’s a kind of justice, perhaps, but it’s not about truth, and it never has been.  The jury’s job is to consider the admissible evidence, and decide whether it makes out certain facts.

That’s really not a huge task.  Oh, it can be difficult to weigh evidence and separate fact from falsehood, but the task itself is very straightforward.  In a criminal case, for example, the jury has only to decide whether the defendant committed each of the elements of the crime.

Nevertheless, we sure make it hard for them to do even that.

The elements they are to consider, after all, are in the judge’s instructions.  And the judge won’t (more…)

No More Google Mistrials: A Proposal for Courts to Adapt to Modern Life

Wednesday, March 18th, 2009


“Google mistrials” are in the news again. Every few years, we hear about mistrials being declared because jurors were caught researching the facts online. It’s not a new phenomenon — there have always been jurors who felt the urge to find out for themselves what really happened — all that’s new is how easy the Internet makes it. And even Google mistrials have been happening for many years.

Jurors naturally want to investigate on their own. It’s normal. After all, the whole purpose of a jury is to arrive at an official version of the facts, jurors do take this job seriously, and they commonly feel hamstrung by rules of evidence that keep them from seeing the whole picture. Taking the initiative can be thought of as a means to achieving true justice. Such initiative is even the major plot device of that old classic “Twelve Angry Men,” commonly seen as a drama that epitomizes true justice.

The justice system, on the other hand, has evolved over the centuries to ensure justice in quite a different way. Instead of allowing trial juries to investigate the facts, the courts carefully limit the facts to which juries are exposed. Before being spoon-fed to the jurors, facts must first be sifted through rules of admissibility, to ensure that only relevant and reliable information is made available. Then both sides in the trial get to challenge, cross-examine and argue about that evidence. This testing by fire, even if intended to obfuscate rather than clarify the facts, is generally seen as serving the higher goal of a just result.

So unlike “Twelve Angry Men,” when a juror in real life goes out into the world beyond the courtroom, and finds evidence that was not presented at trial which could affect the outcome of the case, justice is deemed to have been frustrated. A mistrial is declared, and everyone has to do it over again. The judge, jury, court employees, lawyers, witnesses and parties will have wasted their time, effort and money.

But it used to take some effort to cause such mistrials, and so they were rare. Jurors may have WANTED to go out and do some research on their own, but few had the time and resources to match their inclination. Nowadays, however, everyone is a research specialist. In everyone’s pocket is a miniature Hitchhiker’s Guide to the Galaxy, a phone or PDA with full access to the Internet. Looking up individuals, events, photos, aerial images, detailed maps, weather, weapons, forensics, public records, and practically anything else is now fast, effortless and free.

There are no obstacles to such research, and so everyone does it. And they do it all the time. It’s not a here-and-there thing like visiting a library; it’s part of the habits of people’s daily lives. The simple fact is that it is something people do naturally and routinely throughout their day. Telling someone not to go online these days is as inane as telling them they can’t talk about their day with their spouses and best friends.

Beyond simple inanity, ensuring that jurors comply with a no-Googling rule is simply unworkable in real life. Access to the Internet is ubiquitous in modern life. It’s everywhere. Unless courts are willing to confiscate all wireless devices of any sort at the courthouse, and then sequester every jury at great expense to ensure that they don’t access the web after hours, then courts are simply not going to be able to prevent Googling from happening. Jurors are going to be instructed not to do it, they’re going to do it anyway in ever-increasing numbers, and so mistrials are going to happen in ever-increasing numbers.

It’s time for modern jurisprudence to catch up to modern reality. Independent juror research simply cannot be grounds for mistrial any more.

It’s not such a stretch, by the way. We already allow jurors to take into the jury room any common knowledge and common sense they already possess. In fact, we insist on it. All that would be required of the law would be a presumption that anything available on the net is common knowledge.

That’s a simple fix, and an intellectually honest one.

What would that mean? That would mean that lawyers would have to be a little more diligent in investigating their cases. They’re going to have to presume that anything on the Internet is common knowledge. So if that common knowledge is wrong, they’re first going to have to realize it’s out there, and then debunk it.

So what? That’s what any good lawyer does now, anyway. If there’s a common perception that happens to be a mis-perception, then effective counsel will do their best to educate the jury to at the very least minimize the effects of that misperception. We do this all the time, in all sorts of cases. Prosecutors try to nullify the perception that circumstantial evidence is somehow less reliable than direct evidence. Defense attorneys try to undo the perception that an eyewitness identification is as damning as it gets. There are tons of examples for every kind of case that goes to trial.

The risk, of course, is that by attempting to debunk an attitude, one may merely highlight it to a juror who wouldn’t have otherwise have thought it. That’s the same risk we take now. We try to minimize it during jury selection, if we can. And we judge the risks and take the course we judge to be best.

In short, the law needs to accommodate modern reality by treating data commonly available as if it people were commonly aware of it. The law may already do so, and the courts just haven’t gotten around to realizing it yet. It really may be nothing more than a simple matter of re-interpretation of a longstanding rule.

So no more Google mistrials, please. Efficiency would be improved, and justice would be served.

As Technology Improves, Solving Murders Gets Harder (fractal weirdness)

Thursday, January 8th, 2009

Homicide Clearance Rates

In 1963, the first year of comparable recordkeeping, 91% of murders were solved. In 2007, the number was only 61%.

At the same time, the technological ability to solve murders increased dramatically. Scientific crime scene investigation significantly increases the amount of useful evidence that can be found. Digital crime labs and computerized analysis make it easier to interpret that evidence. And of course, modern DNA techniques enable police to make unbelievably accurate identifications from the smallest particle of hair or fluid. Today’s reality would have been a science fiction fantasy twenty years ago.

So what gives?

For one thing, the kinds of murders have changed. In previous generations, murder was almost always a personal matter. The victim and the killer knew each other, had a relationship. Husbands killed wives. Friends killed friends. Rivals killed each other. To begin a successful investigation, a detective would paint a bull’s-eye on the victim. The closer a suspect was to that bull’s-eye, the more likely they were to be the killer. Cases were solved not so much by technology and physical evidence, as by getting people to talk or confess. Acquaintance homicides were, and still are, often solved because the killer contacted the police or surrendered himself.

But now, a significant number of murders are committed by gang members. Gang members and drug dealers get killed by their own groups, who aren’t likely to talk lest they be killed themselves. They get killed by members of rival gangs, and may not even know their killers. Killers may even kill completely unrelated, innocent people, through mistaken identity or reckless “drive-by” shootings. Witnesses are intimidated by the threat of being killed themselves if they come forward. So relying on people to talk or confess is not as likely to solve these crimes.

For another thing, technology only gets you so far. DNA only identifies someone if you have a sample of their DNA to compare. Gunshot residue only helps if you have the suspect’s fingers in the first place. Fingerprints are harder to find than people think, and even then can only be compared to known fingerprints. In other words, technology helps you confirm that you have the right suspect, but first you have to get that suspect. And getting the suspect in the first place often means an old-fashioned investment of shoe leather — hitting the streets, talking to possible witnesses, and conducting skilled interrogations.

Because of the advances in technology, acquaintance homicides are truly being solved at a greater rate than they were in previous decades. The suspects are known, or easily found, so the DNA and other scientific tests make identifying the killer much more certain. The scientific identification also helps get confessions.

But stranger-to-stranger homicides have increased dramatically. And despite the technological advances, these continue to have a high probability of never being solved. Motive is hard to figure out. The killings are often part of a planned crime, so that less evidence will be left behind for law enforcement to find. And any connection between killer and victim is going to be hard or impossible to identify.


So what can be done?

Studies find no correlation between the number of available police officers, or the amount of their budget, and the ability to clear homicide cases. So shoving more officers on the street, or shoveling more money at the problem, is not a solution.

Studies do show, however, that cases get cleared when detectives are ambitious and they are held accountable for the success or failure of their investigations. Cases get cleared more often when the detectives have the necessary time to devote to the investigation, and when they are part of a specialized unit where everybody is focusing on the same kind of crime.

How do you get ambitious detectives? Study after study shows this to be a huge factor. Media attention can help, when there is a lot of pressure to solve a high-profile case. But in urban areas the media is often antagonistic, media praise of police rare, and so is an underdeveloped tool. Better P.R. by the police could improve ambition. Increased internal attention, status and reward for greater clearance rates would help, as well.

Solving stranger or gang-related murders requires witnesses to come forward. They fear retribution, or being punished themselves for their own crimes. Most murders, even stranger murders, are witnessed. So a critical need is to overcome witness fears.

Studies have found that most witnesses were actually involved with the crime. They either took part in some way, they brought the killer and victim together, or they tried to stop the murder from taking place. “Innocent bystanders” only make up 9% of witnesses.

Civic pride is not likely to cause the majority of witnesses to come forward. Gang culture, and the culture of the communities where such gangs flourish, teaches witnesses to do the opposite. Cash rewards sometimes help, but the amounts commonly offered are simply too small to justify the risks a witness would run if he came forward.

Ensured anonymity is a must. But in a judicial system that properly allows the accused to see and confront his accusers, anonymity cannot be ensures. Witnesses know this. Only a real and system-wide practice of concealing the appearance and identity of witnesses to violent crimes is likely to inspire the necessary confidence. And in our legal culture, we as Americans simply value the confrontation rights of the accused more than we value the evidence we might gain by limiting those rights. That’s just the way it is.


Reducing gangs themselves, and changing the culture in which they flourish, is the long-term solution.

Gangs arise within subcultures where there is little other societal bonding and community for young males, where those young males lack (or do not see) the ability to gain status and women otherwise, and where there is a general lack of control over one’s life. Entertainment media have a huge impact on perceptions of the world. These factors create perverse incentives, so that gang membership and codes of behavior can seem to be the right choice to make.

Common factors of such communities are a lack of value placed on education, a reliance on government or others, a lack of ownership, and a xenophobic relationship with the larger community. Undervalued education minimizes earnings and options in adulthood, as the lack of parental involvement kills schools and a thou-shalt-not-do-better-than-us attitude among peers kills student ambition. Reliance on welfare, the police, programs and others to take care of life’s needs leads to an endemic lack of personal responsibility, which kills family ties and any bond to a larger civic society. Illiteracy, immersion in the skewed reality of television and musical entertainments, and a perception that the rest of society is foreign and irrelevant, further impact perceptions of how the world works.

These problems have often been many generations in the making, and are not susceptible to overnight changes. Policy changes would be required that strengthen the family bond, rather than giving incentives to father children from multiple mothers without requiring any long-term ties and responsibilities. Policy changes would be required that lead community members to see themselves as part of the larger society, and not separate from it, subject to separate rules. Policy changes would be required that create incentives for parental involvement in schools, and pave the way for cultural views of education as the means to success.