Vol. 9 No. 8 (August 1999) pp. 340-341.

CRIME, PUBLIC OPINION, AND CIVIL LIBERTIES: THE TOLERANT PUBLIC by Shmuel Lock. Westport, Connecticut: Praeger Publishers. 267 pp.

Reviewed by James L. Gibson, Department of Political Science, Washington University, St. Louis.

Shmuel Lock is interested in how lawyers and the mass public feel about civil liberties, and especially civil liberties for criminal defendants (generally, due process protections). Consequently, he conducted a telephone survey of the U.S. mass public (in 1994-95), and a complementary mail survey of a sample of American lawyers. This book reports the comparison of the opinions as expressed in these two surveys.

Lock actually has several goals in this book. One is to assess the so-called "elitist theory of democracy," a theory that asserts that the elites are the primary carriers of the "democratic creed." Lock also compares mass and elite preferences with the rulings of the U.S. Supreme Court. Another purpose is to assess whether the mass media "biases" public opinion by its portrayal of crime and the criminal justice system. Finally, and relatedly, Lock pursues the practical goal of finding means of "educating" the mass public so that they will become more supportive of civil liberties for criminal defendants.

Lock discovers that his legal elites are more supportive of due process protections than the mass public, but not overwhelmingly so, and not on every aspect of due process. For instance, 30% of the mass public but only 12% of the lawyers support the detention of suspects for 48 hours even when they are not charged with a specific crime. The lawyers seem to have more organized beliefs than the mass public about these various issues (but this is a finding that Lock does not pursue very far). Generally, the preferences of the mass public are consistent with the policy decisions of the Court. For instance, 81% of the mass public favored allowing police to frisk suspects if they had a good belief of incriminating evidence, a policy the Court adopted in Terry v Ohio, 1968. This congruence is not always so: only 18% of the mass public support allowing a suspect who is mentally ill to waive the right to counsel, a practice the Court sanctioned in Colorado v. Connelly, 1986. Little reason is given for why the public supports some of these issues but not others.

This book makes several important contributions. We know precious little about the attitudes and values of elites, and especially of legal elites. Surveys of the mass public are common, but few studies directly compare the mass public with elites. And of course lawyers are an important constituency for the U.S. Supreme Court – it is actually a bit surprising that more studies have not focused on legal elites. Lock’s book thus contributes to filling an important gap in our research literature.

It is tempting to treat the book as a study of political tolerance, and Lock in fact invokes much of the tolerance literature. But one must be careful about thinking of this as a study of political tolerance. Tolerance research is generally grounded in democratic theory. In asking people whether unpopular political minorities should be allowed to compete for political power, tolerance studies explicitly tie public preferences to the effective operation of democratic governance. This connection is much less clear in this study. Does democracy require that a person’s property not be viewed from the air without a search warrant? Liberalism might require this, and certainly Lock’s view of a justice does, but it seems likely to me that the quality of democratic governance is not much dependent upon whether the government is allowed to view property from the air without a search warrant. I do not discount the importance of due process for democracy, but many of the issues addressed here seem to be issues of ordinary public policy rather than fundamental principles of democracy.

The theoretical contribution of any book in which the number of pages of tables approaches the number of pages of text is suspect. This book is no exception. This is overwhelmingly a descriptive analysis of opinions. (One chapter is quite explicit about the lack of theoretical grounding. Chapter 4 is entitled "Other Differences of Interest Between the Public and Legal Elite".) This greatly limits the utility of what emerges from the book. One might like, for instance, to know much more about why elites are more supportive of due process than the mass public – what processes account for the differences? And generally the empirical findings presented are weak. For instance, Table 5.5 analyzes variance on three dependent variables – attitudes toward criminal procedure, search and seizure, and the rights of the accused – using 34 predictors within each equation. Ten coefficients achieve statistical significance at a reasonable level (.01, given more than 600 cases). Only four coefficients of 102 have a standardized regression coefficient exceeding .15. These are weak findings, to say the least. And the

theoretical status of many of these predictors is suspect – for instance, it is hard to fathom exactly what the theoretical meaning of "martial status" might be. Most importantly, the author has no clear vision (or empirical tests) of the processes that lead to mass and elites differences. Important literature on this subject is ignored.

Generally speaking, the statistical analysis in this book is hard to digest. The author relies mainly on significance tests, which of course are terribly unenlightening. On many occasions, the author makes claims about relationships that are not even supported by statistically significant findings, and generally the standards used to interpret the data are difficult to discern. Many pages are consumed by bivariate analysis, and these findings are typically undone by the multivariate analysis. The author is especially caviler when it comes to positing causality, both in the statistical analysis and in his language about the connections among the variables. Indeed, if one really wanted to trudge through the empirical findings of this book, one would have to conduct a great deal of supplementary analysis of the tables. The text is occasionally simply wrong about the conclusions supported by the statistical analysis.

The author also oversteps the data when addressing issues such as the manipulation of mass opinion by the media. No rigorous evidence of media "bias" is presented, and the causal connection between what the media reports and what people perceive and believe is nowhere addressed.

In the end, the value of the book is in its description of opinions on these topics, a non-trivial contribution. Theories of tolerance, democratic elitism, Supreme Court responsiveness, etc., are not much affected by the analysis, but we do learn a considerable about the attitudes and values of the mass public and legal elites in the U.S.

Copyright 1995