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INSTEAD OF CRIME AND PUNISHMENT
By. J. Neil Schulman
Copyright (c) 1992 by J. Neil Schulman.
This article may be reproduced without further
permission on computer bulletin boards provided that
it is reproduced whole and unchanged.
All other rights reserved.
Is there any relation between crimes and arrests, or
crime and punishment, for that matter? On this second
question, we know there is not: according to the Department
of Justice, 75% - 80% of violent crimes in this country
are committed by repeat offenders. Further, a chart in
the \Los Angeles Times\ provides good evidence there is
little relationship between crimes committed and arrests
made, as well.
As a sidebar to an article in the February 27, 1992
\Los Angeles Times\ on the brutality of the Japanese
criminal justice system, the \Times\ provided a chart of
Violations of Criminal Law per 100K of population in
various countries, and another chart comparing the Arrest
Rates in those countries.
The Violations chart shows Britain leading the pack
with 7,355 criminal law violations per 100K, West Germany
with 7,031 (the stats are from 1989, pre-German-
unification), France with 5,831, the U.S. with 5,741, Japan
with 1,358, and South Korea with 912.
The Arrest Rate chart (also 1989) shows South Korea
with 78.8%, West Germany with 47.2%, Japan with 46.2%,
France with 38.8%, Britain with 33.6%, and the U.S. with
21.1%
Since every country on this list aside from the U.S.
has a virtual prohibition of private ownership of firearms,
gun control doesn't lead to a less-criminal society.
Obviously that is a blind alley for those seeking a
reduction of crime.
Further, a comparison of the West German crime rate
with its arrest rates also seems to blow out of the water
the argument made by American law & order advocates that a
greater certainty of arrest and punishment will necessarily
lead to less crime: West Germany has both the second
highest crime rate and the second highest arrest rate --
possibly the first highest arrest rate, since the South
Korean arrest claims, requiring superhuman powers worthy of
Sherlock Holmes, strain any sensible person's credulity.
INDICTING THE CRIMINAL JUSTICE SYSTEM
Libertarian critics of the policy of crime and
punishment have long argued that crime is a necessary
product of the very nature of the State, created by it
along with provoking foreign threats to justify a military-
industrial complex, as a way of manipulating the public
into submission to political control. It is a sweeping
charge and one which is likely to be dismissed as crackpot
by anyone who can't conceive of an alternative way of
thinking about the subject.
But if we were to indict the criminal justice system
as a criminal conspiracy might be so indicted, and look for
evidence to support the charge, what do we find as the
system's "modus operandi"?
First, the State creates a set of laws which mix the
concept of crime as an attack upon an individual's life or
property with the idea that a crime is anything the State
says it is -- and thus crimes without victims -- or with
"the State" as the sole "victim" -- are created wholesale.
Thus "possession" of a prohibited substance or object, even
if such possession has inflicted no actual damage upon
another person, in many cases receives as much punishment
from the State as a robbery or murder. Additionally, the
State sets itself up as the judge of what is an offense
against itself, the judge which decides whether someone is
guilty of an offense against itself, and the judge which
decides what pains and costs to inflict upon a transgressor
against itself. Then it sends out armed agents to enforce
its decisions. Thus does the State treat itself as a God
or Sovereign, whose will is to be feared and obeyed, and
everyone else treated as one of its subjects.
Second, the "protection" of the "public" from crime,
defined however the State decides, is turned over to the
State which taxes the public on the basis that they "need"
protection from crime, then hires police to "enforce the
law" -- but police have no legal obligation to protect the
public which is being taxed to pay them from criminals, and
suffer no liability from failure to do so.
Third, a "criminal justice" system is set up in which
the guilt or innocence of a suspect bears only passing
resemblance to the sentences imposed on them after plea
bargains which trade ease of conviction for reduced
sentences -- regardless of whether the person charged is
guilty or innocent. No compensation is given to those who
are charged but found innocent, and often have their lives
ruined by the accusation; compensation of the victim of a
crime exists only as an occasional sideshow: the center
ring is reserved for imprisonment of the criminal at
taxpayer's expense, imposing additional costs upon the
victim.
When the system is supposedly "working," those who are
found guilty are sent into prisons which ensure that a
prisoner will learn the craft of crime as a permanent
lifestyle, creating a revolving-door criminal class which
provides permanent employment for police, lawyers, prison-
guards, and "crime-fighting" governors and legislators --
while everything these officials do, regardless of their
rhetoric, \increases\ the number of attacks by criminals
on the innocent.
When the system is supposedly "not working," this
massive prison bureaucracy is so clogged that convicted
criminals are sent back out the street in short order, to
attack more innocent victims and provide more grist for the
criminal-justice mill.
Meanwhile, the same system which creates crime and
does little to protect the public from it also demands that
the public disarm and rely on the government for protection
against criminals.
Is the libertarian indictment fantasy? Or is it a
stripping away of the Emperor's New Clothes? It seems
hard to avoid the conclusion that if you put all this
together, Criminal Justice is the protection shakedown of
the public by professional organized criminals in control
of an entire society: a system set up to terrorize the
public into a condition where it will abide any amount of
legalized theft and police control in order to be
liberated from constant criminal invasions engineered to
justify the system itself.
In a precise metaphor: the disease is being spread by
the very doctors the public relies on for the cure.
A NEW THEORY OF CRIME MANAGEMENT
The alternative to the game of Cops and Robbers by
which the criminal justice system encourages criminals to
prey upon the public so there is an excuse for the State to
catch and imprison them, is to eliminate the State from the
system as much as possible.
First, the public must come to realize that the first
line of defense against criminal invasion of their lives
and property is: themselves. No one cares about protecting
you, your loved ones, and your neighbors as much as you do
-- and no one aside from the potential victim is more
likely to be able to provide effective counter-measures
against invasion. The defense against criminal invasion
requires vigilance, planning, and a willingness to fight
back. The best and surest way to reduce crime is to make
it unprofitable and dangerous for the criminal. The
likelihood that a criminal attack will result in the
criminal's being injured or dying during the attack is,
both logically and practically, the surest way to achieve a
low-crime society. The example of Switzerland, a society
organized along the lines of universal defense by all
citizens, and where criminal attacks are virtually non-
existent, comes to mind immediately.
Second, the public must realize that there are three
"criminal justice" systems already at work in our country,
and the system of police, criminal indictments, trial, and
punishment is the least effective of the three. The other
two are the system of civil laws by which individuals who
cause damage to another can be sued and compensation
collected, and the insurance industry, by which victims can
measure the statistical likelihood of victimization against
the costs of potential attack, and calculate proper
"compensation" for themselves in advance.
Third, the public must realize that the criminal
justice system promotes crime and protects criminals rather
than fighting it, and move to eliminate it as quickly as is
humanly possible. This requires a massive awakening by the
American people to the actual functioning of the criminal
justice system, so they can evaluate for themselves whether
it is "failing," or whether it is doing precisely what it
is designed to do: victimize the public at all turns. The
concept of "crime" must be completely severed from its
statutory definitions, and replaced with a simple test: If
a crime has been committed, (a) Who committed it, (b) Who
is the victim, and (c) What costs has the criminal invasion
imposed upon the victim? If these three questions cannot
be answered clearly and firmly, there has been no crime
committed.
Fourth, the solution of what to do with a criminal who
is not killed in process of the crime -- a criminal who is
captured alive or manages to escape, or must be hunted down
-- must be made as much as possible contingent on the
accountable costs the criminal has imposed upon the victim.
Instead of "rehabilitating" a criminal or "punishing" a
criminal, the object must be to calculate as much as is
humanly possible the costs that a criminal has imposed upon
a victim (and the costs of apprehension and conviction as
well), and extract as much value as possible from that
criminal so that it may be used in compensation to the
victim.
The object of "criminal justice" must be restricted to
(a) augmenting the public's first-line self-defense with
additional lines of response, such as armed response to
burglar alarms; (b) detective work to locate, identify, and
capture those who have committed criminal invasions or
thefts; and (c) a trial system to assure that those
charged with an invasion or theft actually committed it,
and upon proof beyond a reasonable doubt, to calculate the
costs of that invasion and extract that cost from the
criminal so that it may be used to compensate the victim.
In the case where a criminal invasion has produced
irreparable harm such as the death of a victim or victims,
the murderer must be regarded as the property of the
victim's heirs, to dispose of as they wish, limited only
by such mitigations that the precepts of society deem
humane.
The current criminal justice system has failed. On
that there can be no doubt. A proof of this failure is
that each year the increased crime rate is used as an
excuse to ask for more money and wider powers. This sort of
reward for failure occurs only in the public sector; in the
private sector, where competition is allowed, merchants who
operate on this basis are driven out of business by
customers going elsewhere and, if the failure is deliberate
policy, the merchant indicted for fraud. They are not
given more money and told to keep trying.
The question remains: do the American people have the
courage and clarity of thought to identify the cause of
the failure of the criminal justice system as its very
design, and re-design the system so that it makes sense?
On that question, only time will tell.
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