Criminal Justice Reform

By Carl M. "Marty" Swinney

A Libertarian Approach to Crime and Punishment

I suggest to you that the function of a legislator is to legislate, not to deliver "pep talks" to a depressed electorate, so what this paper will concern itself with has a lot more to do with laws and new approaches of a political sort than it does with the ritualistic opposition to evil that we are hearing from the two "older" parties and their candidates. Some may disagree, but please remember that no elected official or aspirant to office can maintain his or her integrity if they mislead you or prey upon your fears in order to gain prestige as your elected representative. I would also like to remind you that government at all levels is very skillful at spending your money, but incapable of creating a Utopia.

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Crime is not going to disappear. This should be quite obvious, for mankind, throughout history, has tried everything from unspeakable brutality to blaming law-abiding victims for creating criminals---and nothing has ever worked as well as we would like.
Perhaps we have overlooked a significant fact: that "society" is not a "thing" or a being or a separately-existing entity. There is really no such "thing" as "society"; there are only individuals. Society, as such, has no rights. Each individual person does. Crime is a violation of the rights of the individual.
These violations occur when a person's right to his body or to his rightfully-acquired property is denied him. Violence, theft, fraud and coercion are, therefore, crimes. Whenever individuals act voluntarily, without trespassing on the rights of others, no crime can exist.
Unfortunately, not everyone sees it this way. There are those who believe that their personal codes of morality require them to force their neighbors to behave similarly. So laws forbidding many forms of voluntary behavior are common. Politicians, quick to respond to popular demands that uniformity be imposed in the name of morality, denounce otherwise harmless people.
This, I submit, can only create victims.
Also unfortunate is the fact that this zealous persecution of scapegoats usually intensifies as things continue to go wrong. Rising crime rates have convinced many citizens that things are out of control. The natural response is to crack down harder. Paroles are rescinded, sentences lengthened, laws of evidence are changed and everyone comes to feel that more surveillance of law-abiding men and women is required. Some Constitutional rights are questioned, such as the perfectly obvious right of owning a firearm.
I therefore propose that we consider the consequences of repealing all pointless victimless "crime" laws (and they are all pointless) and of concentrating on nothing more than the defense of the rights of the individual.
The difficulties faced by our State and Federal criminal justice systems are defined and viewed differently by the various groups concerned with criminal activity. For the penal bureaucrat, funding for new facilities is a pressing concern; for the victim, justice and restitution may be the only important goal; and for the otherwise uninvolved citizen, crime prevention is vital. Still other views are obtained from parole officers, policemen and attorneys. There is no sector of the criminal justice system that is willing to admit to being satisfied with our nation's response to criminals. The most distressing aspect of this dissatisfaction is that it is always expressed in terms that place responsibility for perceived failures upon others. Police agencies, for example, cite budget cutbacks as hindering their enforcement capabilities; the assumption implicit in this complaint is that more money will somehow allow police to lower the crime rate. Prison wardens take a narrower view, simply pointing to overcrowding. Whether they see incarceration as some form of crime control is irrelevant: they are mandated to receive and to hold criminals, and this is made difficult by politicians or "uncooperative" taxpayers (who must, ultimately, foot the bill). Thus, each sector of the criminal justice system blames tight-fisted taxpayers or some other part of the system for the shortcomings of the whole.
Because of heightened public concern, each separate segment of the system is able to publicize its narrow functions and demands, implying that its individual performance is exemplary under virtually impossible circumstances. Our criminal justice system is actually at war with itself and with the public!
This scramble for attention and increased funding has several effects, none of them positive:
First, placing blame on others publicizes the shortcomings of the entire system and increases the feelings of frustration, danger and powerlessness felt by the individual taxpayer. It is in the nature of bureaus to provide conclusive evidence that their need for more money is legitimate, if not downright urgent. This is best acheived by what I call "the view to alarm". Competition for budget increases is conducted in the language of fear, exaggeration and defensive rationalizations. As an example of this, please refer to the billboards once erected around the city by the Los Angeles Police Department in their bid for a pay raise: it pictured a helpless woman about to be attacked or car-jacked---or robbed or raped or murdered. The viewer, presumably, was free to select his or her own particular "worst crime".
Second, hard feelings are inevitable. Judges must surely resent their characterization as being "soft on crime" and taxpayers often feel preyed upon by the system as a whole. Yet, if the overall perception of the criminal justice system as inefficient and unresponsive is ever to be erased, a spirit of rational planning and genuine cooperation will have to prevail.
Third, many so-called "solutions" are mere aggregates of the demands of the agencies within the criminal justice system. The politicians may take each demand at face value (a dubious procedure at best) and add up the total. This invariably means higher taxes. Few ever question the wisdom of rewarding a system that is woefully inadequate.
Fourth, increasingly harsh measures may be called for. With each segment of the system publicizing the failures of others, the frustration of the individual voter can boil over into demands for a stern approach. The lines between speedy justice and summary justice, between proper punishment and cruel punishment, between law enforcement and vigilantilism, may become blurred.
It seems clear that a continued dependence on the individual parts of the criminal justice system for suggestions in the improvement of the system as a whole is not likely to affect the crime rate significantly (if at all) or to produce anything but accelerating tax increases and further erosion and encroachments into our already-precarious Constitutional rights. Attempting to reduce the difficulties which crime causes by spending vast and ever-increasing quantities of money will surely serve the best interests of the agencies and professions involved, but how or whether the public might benefit is neither clear nor certain.

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It is sometimes suggested that the present philosophy of our criminal justice system is a kind of three-ring circus: First, the criminal is not given attractive alternatives to law-breaking and is not likely to be apprehended; second, punishment is often a post-graduate course in more sophisticated criminal techniques; and third, having failed to deter or to rehabilitate recidivists, the system brutalizes them. The proper approach is claimed to be through an understanding of sociological and psychological principles---a more or less "scientific" treatment designed to render criminality unnecessary and therefore obsolete.
Fundamental to this approach is the belief that economic and social conditions create criminality. By transferring funds from the private to the public sector, poverty is to be eliminated or at least drastically reduced. By applying sophisticated psychological techniques to individuals, values are to be changed. Whether this process is called "re-education" or "behavior modification" (or "brainwashing"), it is a frank attempt to alter, manipulate and control human thought and action. Thus, it is claimed that government can identify and "treat" those persons who, in spite of economic well-being, commit "anti-social" acts.
While this approach seems to skirt much of the present criminal justice system by trying to deal with the causes of crime, it must be recognized that the money to be spent by government to eliminate poverty, re-make society and force conformity on individuals would be simply an astronomical total. Thus the present problem---having to spend eternally-increasing sums on the dubious advice of bureaucracy---would not be solved. The present insatiable agencies would be augmented by a complex of even more costly bureaus.
An even more serious objection to this proposal for governmental manipulation of the economic, social and psychological aspects of our lives is the grave threat it poses to our liberty.
Throughout history, there has never been a shortage of self-proclaimed moral elites; now, it appears that somewhat more sophisticated tools are at their disposal. The precedents of high levels of taxation and the so-called "mental health" movement should convince even the overly trusting that government is willing to confiscate personal wealth to make possible the imposition of standards of behavior on law-abiding citizens. The systematic refusal to admit that "mental patients" have Constitutional rights, is an entrenched policy of our legal system which has not drawn enough criticism from so-called "civil libertarians"; it is largely unknown and consequently unquestioned. The use of drug and behavior modification "therapy" may be so violative of individual rights---because of their involuntary imposition and the dehumanizing assumptions on which they rest---that it may not be proper even to speak of their "abuse", since that would imply an "appropriate" use for them.
Moreover, our democratic processes do not afford the individual sufficient protection from mind-manipulating authorities. The precedents for flagrant violations of our Constitutional rights are profoundly respected within the judiciary system; the "crazy person" is not deemed fit for writs of habeus corpus, for the right to a trial by jury, or for the right to control what substances are introduced into his or her body.
We must also reckon with the recent emergence of quasi-religious political zealots who are attacking voluntary sexual practices, freedom of expression and individual medical choice. Strickly speaking, there was nothing undemocratic or illegal about the Salem witch trials, nor could the victims of these heinous mixtures of religion and politics be said to have been denied their rights---as those rights were defined by the government of that day. A democracy can legally do whatever the majority wants with an unpopular minority. No court in this nation is ultimately immune to this simple principle.

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The search for solutions to the problems of crime and our criminal justice system is not properly guided either by advice from within that system or from those who wish to exercise control, whether mental or social, over us. The former is likely to be misleading and not innovative; the latter is simply dangerous. But something must be done.
Something MUST be done. We, as a nation, now hold the dubious "distinction" of imprisoning a greater percentage of our population than any other nation in the world, including South Africa, North Korea and Communist China. And yet, crime continues to rise.
To quote from a recent article in Reason magazine [October 1994, page 16], entitled "Lock 'em Up---War On Drugs Produces More Inmates, Not Less Crime": "We may never settle the question of whether or not there is a causal link between illegal drugs and other criminal activity. But even if such a link exists, locking up drug offenders doesn't appear to be the solution. Last year ended with a record 948,881 state and Federal prisoners, up from only 329,821 in 1980. Although nearly half of the increase is due to more drug offenders entering prison, new committments for property and violent crimes, as well as arrests for sexual assault, aggravated assault, and robbery, have continued to rise.
"Overcrowding is particularly acute in Federal prisons, where there are now more than twice as many drug offenders as there were total inmates in 1980 (emphasis added). The United States' incarceration rate for prisoners sentenced to more than a year also reached a world record 351 per 100,000 residents in 1993---and that's not counting the approximately 450,000 people held in city and county jails on any given day. That means that primarily because of drug prohibition, U.S. citizens are more likely to be locked up than any other people in the world."
And the costs continue to rise as well:

• Between $25,000 and $75,000 per inmate per year, depending on the level of security;
• $21 BILLION per year for jail costs alone;
• $52 BILLION for Federal "Drug War" costs;
• Over 400,000 "Drug War" prisoners, most of whom have not been convicted of any act of violence or theft.

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The principles of a proper improvement of our criminal justice system should be as follows:
1) The personal and property rights of the individual citizen must not be violated. As in medicine, the first principle is "Do No Harm";
2) The only person who may properly be deprived against his or her will of life, liberty or property, is that person who has himself violated the personal or property rights of another. Coercion is understood to be a violation of personal rights;
3) Victims of crimes are entitled to restitution, protection from retaliation and some say in the sentencing process;
4) Convicted criminals are not to be denied more rights than is appropriate for their sentences; and
5) All accused persons, regardless of their reputed mental state, are entitled to the same legal recourses.

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There is little incentive for the legal and penal segments of the criminal justice system to respect the rights of the individual. Prostitution, for example, which is defined as a voluntary contract for the provision of sexual favors in return for a consideration, is not properly a crime, but rather a vice. But the prostitute-as-criminal is often as important to the police agencies and the courts as she is to her customers: She is involved in a revolving-door justice which amounts to legalization. Forfeited bail and fines are virtual license fees for the occupation! Police agencies can use the volume of arrests to bolster their claims that more officers are needed. Arresting and processing prostitutes, while certainly degrading for all concerned, is not as dangerous as apprehending violent criminals. Thus, police departments and local legal jurisdictions are unlikely to support the legalization of prostitution.
The taxpayer is also victimized by the criminal justice system which, under the current method of funding (i.e. taxation), confiscates his wealth by threatening to make him a criminal if he does not comply. This is a literal priceless opportunity for the criminal justice system. Any similarly unprincipled private concern would be ecstatic to have such insulation from competition and responsibility. It would be illogical to expect law enforcement, the courts or the prison system to welcome any changes in coercive funding.
But against this natural opposition some steps should be taken to cut costs to the taxpayer. Primary among these is the elimination of vices from the list of crimes, or what we Libertarians have been calling for lo these many years: the repeal of all victimless "crime" laws.
The second major step which should be taken to reduce costs is the gainful employment of prisoners. Typically opposed by labor unions and business-funded lobbies, such programs are stigmatized as "slave labor." It is assumed, but not proved, that competition from prisoner-manned industries is somehow "unfair." The fact that the prisoners would be employed, competitively, if they were not criminals, is overlooked. For all practical purposes, penal institutions function to withhold labor from the market, acting in response to pressure groups who are seeking simply to use the coercive power of the State to fortify their economic positions at the taxpayers' expense.
Convict industries are therefore mired in a morass of state regulation and prohibition, though the concept continues to get some attention from the authorities from time to time. The most useful approach would be to allow the convicts themselves to initiate the programs. Private industries should be expected to pay prevailing wage and piece rates if they contract with convicts. Earnings should be divided between restitution payments to the criminal's victims, costs of institutionalization and prosecution, convict privileges and a trust fund for the convict's release.
Resistance from labor, business and the penal authorities doubtless would handicap progress, but these negative influences are based on narrow interests; they can be overcome by a continuing commitment to the concept of convict industries. This committment would not require as much faith or sacrifice as is presently involved in continuing rehabilitation programs, which do not provide substantial evidence that they can ever succeed.
This proposal for convict industries has firm roots in the current work furlough programs, and I feel that a genuine commitment would produce good results rather quickly---and that the long-term prospects are virtually incredible.
Ultimately, I would like to see our prison system pay for itself and thereby relieve our nation's taxpayers of a twenty-one BILLION dollar annual liability.
Today, the victim of a crime is victimized thrice: First, by the criminal who violates his individual rights to person or property; next, as an uncompensated witness who must take time off from work without pay to testify in the (unlikely) event that the criminal is apprehended and brought to trial. The final victimization occurs when the criminal is sent to prison: the victim, in his role as taxpayer, is forced---literally coerced---into paying more of his hard-earned money to maintain that criminal in jail; and, at a cost of between $25,000 and $75,000 per inmate-year, which is probably more than our hypothetical victim even makes after taxes! It is possible to protect the rights of the accused without ignoring those preyed upon by criminals. And, as for releases and sentencing, the victim or his family should always be consulted. In fact, many victims of crime only want back what is rightfully theirs, and have no real desire in seeing another human being locked up in prison for years. In any event, the victim should have a major say in the disposition of what is, after all, his case against the criminal. No crime is committed against "the People of the State of California" or against "the People of the United States of America"---only against individuals. We must end this legal fiction that you or I suffer as much from a robbery in a far part of the country as does the individual who is robbed.
In sum, I propose that the individual rights of everyone be respected. By cutting costs, reducing the workload of police and prosecutors by abolishing laws against victimless "crimes", instituting restitution and allowing inmates to be gainfully employed, and giving victims a greater say in sentencing and parole, we can begin to reverse the corrosive frustration which so many people feel today about our society. There is reason for optimism: We Libertarians know that whenever respect for individual rights is the primary consideration of government, things cannot be getting worse.

CARL M. "MARTY" SWINNEY
Libertarian Candidate
24th State Senate District