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Guilty As Charged - You're Free to Go

A crazy idea that just might work.

by James Leroy Wilson
December 11, 2002

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Guilty As Charged; You're Free to Go_James Leroy Wilson-A crazy idea that just might work. The state of Illinois is reviewing its procedures on the death penalty. In other news, the United States Supreme Court recently heard arguments to strike down the registration and public listing (blacklisting?) of convicted child sex offenders who move into a community.

The two items are related in my mind because both speak to the injustice and futility of America's prisons. The sex offender was supposed to be "punished enough" by serving his time in jail. But what, exactly, was his punishment? He was housed away from civil society. That's it. We assume that the denial of freedom is a punishment from which one would "learn a lesson," but there isn't much basis for that assumption. Putting a pedophile in prison is a good thing because it protects our children from him, but only for the duration of the sentence. Despite having served their time, many states still view such men as threats to children, which is why they want to warn communities about such men.

In other words, as a form of punishment or rehabilitation, we admit that imprisonment is a failure.

And death penalty cases create a different sort of dilemma. Considering the numerous instances in which innocent men were put on death row in Illinois, there might be good reason to just get rid of state executions, and impose a lifetime prison sentence without parole instead. This gives the innocent a better chance, and more hope, to eventually be absolved of the crime for which he was convicted. (Assuming, of course, that there are people interested in examining the guilt of all convicts, not just death-row inmates.)

But the problem with life without parole is the injustice done to the taxpayer. Why should we house and maintain someone whom we'd never again want to see released into free society? Why do we have the obligation to make sure such people live? Why should the victims' families pay taxes to shelter, clothe and feed the person who murdered their loved one?

The easy answer is that this is the price society has to pay in order to keep itself safe. But prisons are useful only to the extent that they keep dangerous people off the streets. What prisons also do is release dangerous people into the streets, frequently replaced in their prison cells by non-violent people like small-time drug dealers.

Imprisonment is based on the assumption that the denial of liberty for a limited time is a sufficient punishment for, and deterrent to, crime. I have no idea what the basis for this assumption is, and many of us count on and perhaps even hope for prisoners to be brutalized, raped, and tortured by fellow inmates. That maybe the horror of prison life would be the deterrent that mere denial of liberty is not.

The failure of this approach is seen in prison overcrowding and the continuous building of new prisons. You would think that the risk of imprisonment would be a sufficient deterrent from crime, and the experience of prison would deter repeat offenders. We'll let the record speak for itself.

But what is the solution? What should be done?

Let's start with the basics. All genuine crime is a form of violence, a "violation." A crime is an act of assault, trespass, or theft of a person or his property by gross negligence, force, threat of force, or fraud. (By "fraud" I would include taking advantage of someone legally too immature or otherwise irresponsible to make informed, well-considered chices.) Any illegal act that doesn't meet this standard is not really a crime, but just disobedience to a tyrannical State. Any laws against behavior that is merely risky, self-destructive, disgusting, or otherwise "immoral" should be repealed. As should all laws that restrict freedom of association and freedom of contract. And the tax code must, at the very least, be simplified.

Because let's face it, the only possible motivation for having such laws is some idea of the "common good" in which some behaviors should be punished because, well, if everybody did it, society would self-destruct. If everyone took cocaine and became addicted, if everyone was a homosexual, if everyone bought only foreign goods, if every business offered low wages, provided dangerous working conditions, and high prices - if everybody did the same wrong thing, society would collapse.

But not everybody does do the same thing. We want, and therefore do, differnt things, and prioritze differently, based on assessments of our moral values, financial costs, and possible rewards. All that the State does when regulating non-violent activity is distort this decision-making. Mainly by favoring some behaviors, and therefore rewarding some businesses, over others. Checks and balances that the free market would produce on its own is replaced with State laws and regulations. And it takes a giant leap of faith that the regulators and law-enforcers act out of a genuine desire for, and an accurate sense of, the "common good" instead of their own self-interest.

So let's do away with laws, with "crimes" that harm no one. So then, how should we punish real crimes, actions which result in a loss of some sort for an innocent victim?

I believe he law should, first, force the guilty to compensate the victim as much as possible, and then pay for the court costs. After that, the law should prescribe punishment by establishing a period of time, during which anyone and everyone could do unto the convicted criminal what he had done unto the victim. Think of it as a "boomerang effect" of the Golden Rule. The law may impose limits of action, maximum time periods, and protect the property rights of family members of the criminal. But the jury would also have discretion, depending on the specifics of the case. For sixty days, say, anyone may pick the pocket of the pickpocket. For fifteen years, the rapist may be vulnerable to any form of assault or humiliation, or maybe to only specific kinds of assault and humiliation. Or, for as long as he lives, anyone may kill the convicted mass murderer, at any time, and not suffer any legal consequences. The point would be that anyone who wants to, may punish the convicted criminal. Have the criminal be treated as he has treated others.

Life would be a living hell for criminals. They would seek refuge. Criminals, or their loved ones (assuming they have any), would try to find a safe, secure environment in which they can live for the duration of their "sentence." A place with secure walls and round-the-clock armed guards who would keep revenge-minded intruders out, protect the the "housemates" from each other, and set guidelines for visitors.

The private sector is more than capable of providing this service. One firm could guarantee safe transport from the courthouse to the another firm's "home for criminals." Potential convicts and their supporters could shop for the best, most secure "home" he could afford. Financial terms could be negotiated, including, for guests anticipating a long stay, ways for them to work in exchange for their upkeep.

I'm not concerned right now with all of the details. Individuals, or businesses that run homes for criminals would be prohibited from aiding and abetting a convict from changing his identity, or suffer the same sentence. A convict who had custody rights over children may be forced to forfeit that custody. And a convict, or his family, would not be entitled to sue the business that promised to protect him if it somehow fails in its job, for the whole point would be that the convict, having had no respect for the rights for others, would have fewer to no rights himself. Businesses that would run the transport, housing, and/or protection of convicted criminals would thrive on reputation alone, but not be susceptible to legal liability.

If punishment for crime was taken out of the hands of government and given back to society and the free market, we would see one of two things, criminals getting what they deserved - getting what they had done to others - or they would be incarcerated by their own voluntary will. Either way, the convicted criminal alone suffers the consequences, not the taxpayer. And the State would be forced to abandon the liberty-denying business, and forsake the abuse and waste of the prison-industrial complex, and instead take on the Justice business instead.

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