194 Book Reviews

Wasserman undertook two empirical stud- ies of CAB and 18b attorneys. The first con- trasted the performance of CAB and 18b at- torneys from 1980 to 1985. This period was chosen because 18b attorneys were paid sub- stantially less than CAB attorneys. He hy- pothesized that the representation provided by 18b attorneys would be poorer than that provided by CAB attorneys. He used 32 paired CAB/l8b briefs for codefendant trials to compare quality of representation. Eight re- tired appellate judges used a quality scale to compare the relative merit of each brief. The judges concluded that CAB briefs were mod- estly better than their 18b counterparts; the 18b briefs failed to raise meritorious issues frequently found in CAB briefs.

In his second empirical study, Wasserman randomly sampled 2,000 decisions to com- pare outcomes for CAB and 18b attorneys. The effort that was needed to obtain these data suggests to me that the Office of Court Administration was not anxious to have their data analyzed. Wasserman found that most appealed convictions were affirmed. Trial appeals received favorable action far more often than plea appeals. CAB attorneys ob- tained favorable action significantly more often than 18b panels but significantly less often than retained counsel. CAB obtained better outcomes than 18b in almost every area where superior advocacy might be expected to make a difference.

Wasserman’s strongest criticism of the ap- pellate process emerged in his study of char- acteristics common to cases that obtained fa vorable dispositions. He argues that the court rarely undertook serious challenges to the ba- sic way of doing business in the precinct houses and trial courts. Most of the favorable actions rested on technical grounds. Appeals rarely looked beneath the smooth surface of plea colloquies, rarely held the performance of trial counsel to be ineffective, and never found eyewitness evidence too unreliable to sustain a conviction. He argued that this pas- sivity was disturbing because two decades of criminal justice research (which is not cited) suggests that many valid pleas are foisted on resigned, cynical, or confused defendants, that many trial attorneys fail to perform the most

elementary tasks of criminal defense, and that many properly elicited identifications are highly unreliable, if not mistaken.

Wasserman concludes the book by review- ing other organizational methods for repre- senting indigent defendants. After consider- ing numerous possibilities, he suggests that the biggest problem in New York City is that 18b attorneys are underpaid. Some of the need for 18b attorneys could be relieved by getting the CAB to relax its conflict rules. Without empirical support, he suggests that “the sys- tem provides its most zealous representation precisely, where it can do the least damage- after the defendant has pleaded guilty or been convicted at trial on seemingly overwhelm- ing evidence. The system may simply not be willing to pay the cost of providing every in- digent defendant with zealous representation and individualized justice at earlier, more critical states of criminal adjudication.”

James F. Nelson Division of Criminal

Justice Services Albany, New York, 12203

Selective Incapacitation: Preventive De- tention of the Violent Offender by Donald Hanks

Vantage Press (516 West 34th Street, New York, New York lOOOl), 1991, 241 pp., hardcover-$16.95.

This is one of the best books in the crim- inal justice area that I have ever read. It is also very well written. Despite the impor- tant and timely ideas, it is likely to be looked upon with scorn by those who judge a book by its publisher. Since the publisher is a vanity press, many will ignore this book, which would be most unfortunate. Many of Hanks’s ideas are extremely important and could

Book Reviews 195

change the criminal justice system if implemented.

Preventive detention sounds like some kind

of less-than-legal technique, and it was so used by the police in arresting demonstrators pro-

testing against the Viet Nam war (Eisenman, 199 la). However, Hanks uses the term to suggest that most violence is committed by (a) a small number of repeat (b) juvenile or young offenders. Thus, sentencing should take this into account, instead of treating the violent repeat offenders like others who committed the crimes for which they are charged or instead of thinking that since

the person is a juvenile, he or she must not be a serious criminal or deserve any long- term incarceration. The author argues that a longer-than-usual prison term can be jus- tified in terms of the proven habit of the de- fendant, a habit of repeated violent attacks on

others. He also has a brilliant concept of “the sta-

tistical victim, ” which is the future victim of a violent offender. We do not know, at this point in time, who these future victims will be, but we can predict with a high degree of accuracy that an offender with a habit of long-

term violent behavior will have many more victims during his lifetime. Thus, the rights of these predicted victims should be taken into

account, along with the rights of the con- victed offender. If this were done, judges might not be so likely to order overcrowded prisons to release prisoners. While prisoners may have their rights violated by over- crowded prison conditions, many of the re- leased prisoners will violate the rights of fu- ture statistical victims. Thus, it is reasonable

to take into account the costs and benefits of releasing people from prison, and part of the cost involves the likelihood that some of them will have many victims.

Basically, what Hanks is asking for is a system that deals more rationally with con- victed violent offenders. As things now stand, what happens, even to violent, repeat of- fenders, is that the sentence they get may de- pend on the jurisdiction they are sentenced in rather than on a rational consideration of the needs of society and the offender (Eisenman,

199 lb). The Hanks proposal seems reason- able, along with the idea of doing research to see if assumptions about recidivism are as expected (Wooldredge, 1991).

Often, attorneys will defend perceived injustices in our court system by saying that it is the best system available. Is it? Hanks describes the approach in the former West Germany, which is less of an adver- sarial system than our own and which does not allow defense attorneys or prosecutors to do just about anything to get the results they want. Many of the ills of our courts are due to the adversarial nature of the en- counters between prosecutor and defense attorney, in which each is trying to win, as opposed to discovering the truth. The West German approach makes each more truly an officer of the court, and the chances for deception are lessened, as compared with the American approach. Thus, we may not have the best system available. Hanks also dis- cusses several things which he says give ad- vantages to the predator: plea bargaining, the exclusionary rule, and delay. Thus, in var- ious ways, violent people use the system to their advantage and continue to commit their offenses.

This is a readable book with many in- teresting, important ideas. Many defense attorneys would not like it, since it is concerned with longer incarceration for the small number of offenders who commit a great deal of the violent crime. Also, prison officials may object, as Hanks takes them to task for advocating more and more pris- ons. Hanks feels that only a small percent- age of prisoners require incarceration. The rest could be handled outside our prisons, but this would mean fewer jobs for all those who profit from what Hanks calls the prison industry. Hanks says that the U.S. Justice Department, through its Institute of Cor- rections, estimates that about half of all in- mates in state prisons could be released with- out being a danger to the community. Hanks consistently has citations to back up what are, at times, controversial ideas. This book is a very important contribution to under- standing criminal justice issues and ought to be widely read.

196 Book Reviews

REFERENCES Wooldredge, J. D. (1991). Age at first court interven- tion and the likelihood of recidivism among less se- rious juvenile offenders. J Grim Jusr 19:515-23.

Eisenman, R. (1991a). From crime f~ crearivify; Psy- chological and social factors in deviance. Dubuque, IA: Kendall/Hunt. Russell Eisenman

- (1991b). Is justice equal?: A look at restitution, probation or incarceration in six states. Louisiana

Department of Psychology

Journal of Counseling and Development 1 I (2):47- McNeese State University 50. Lake Charles, Louisiana 70609- 1895