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“Land of the Free?”, Part 2


The United States of America is NOT the “Land of the Free”.  If that hurts your feelings, I’m with you.  In Part 1, I described in general terms the culmination of the “criminal justice” system in the United States of America.  We are less free, in that sense, than any country in the world because we incarcerate more people than any other country on the planet. It all starts with bad policy.

We Criminalize Too Much Behavior

We already have too many criminal laws in our country.  Americans can commit arrestable, jailable crimes in many thousands of ways, many of which are not readily known to people. The laws are so numerous, efforts to so much as get an accurate count of them have been abandoned. A study of federal statues in 1982 found over 3,000, which didn’t include the massive number of crimes created by regulatory authority. It also didn’t include any of the states’ laws.  Countless new federal and state laws have since added to that fuzzy total.

Politicians Add To The Problem

Our politicians usually call for new criminal laws to address immediate concerns.  Sometimes, new laws make sense because people could have new, previously unforeseeable means of committing harmful acts. Technology is a field which offers such new possibilities.   If a new crime isn’t created by new law, the next best “go to” law is to increase the punishment for the same crime.  This gives politicians an opportunity to claim they are “tough on crime”.  “Smart” on crime is a far better alternative, but that gets less political support.

Criminal laws are usually pitched as a public safety issue.  Surely, some criminal laws properly support the priority of public safety. To think criminal laws all promote public safety is naïve and grossly mistaken, however. Many crimes are “victimless” and rely upon tenuous theoretical links, as well as dismiss alternatives outside of criminal punishment.  

Victimless Crimes Shouldn’t Be

A broad category of crimes is known as “victimless crimes”. There is no one definition, but the general concept means a crime with no obvious victim.  They include individual behaviors like consuming drugs, as well as consensual conduct between adults, such as gambling and prostitution.  The expected harm, if any, would generally be an accepted risk by a participant, or a threadlike link to society in general.

Victimless crimes ought not be criminalized at all.  In some states, some are already decriminalized and regulated. Legalizing marijuana usage is already popular and growing more so. Oregon has fully embraced drug legalization and the implementation of drug treatment in its place, which I applaud.   Addicts should be treated, not criminalized.  Prostitution in Nevada long has been legal and regulated.

The Failed “War on Drugs”

The “War on Drugs” is a great example of a massive failure in criminal law policy.  Various laws had been passed regarding drugs, but the modern “War on Drugs” began by declaration of President Richard Nixon in 1971. He called drug usage “public enemy number one”. Prosecutions and incarceration have exploded by roughly 500 percent ever since. Bad criminal policy is far more complex and involved than the “War on Drugs”, but it gives insight into why such awful policy is made.

Prejudices, including racism, also work their way into policy and always have. The results on our population, especially people of color, have been devastating without significantly hurting the illicit drug trade.

Use Our Minds Before Our Emotions

Facts, reason, and expert opinions are nothing in politics compared to the desire to attack and punish. For political advantage, politicians make choices against what the facts dictate. That inevitably leads to bad policy and continues today.

Politicians continue to reject objective analysis of data because it isn’t politically expedient.  The results are tragic in human consequences.

Laws don’t necessarily follow factual data and are often emotional reactions to events and perceived problems.  Scoring political points to get votes and funding result in bad policies.  Those policies stubbornly persist, even when they fly in the face of overwhelming data.

Much of what we believe about “law and order” and “criminal justice” is wrong and outdated. Greater punishments do not keep people from committing crimes.  Fear of getting caught is a far greater deterrent than more crimes and punishment under law. We like to think of problems having simple solutions, but that’s not realistic or mature thinking. It’s the kind of superficial “thinking” which has led to our country’s incarceration epidemic.

Incarceration Makes Society Worse

Considering the fact this country imprisons more people than any other on the planet, we need to change. Prison sentences are not helpful in preventing crime. Prisons generally make people worse, and when they return to society, they face poverty, unemployment, homelessness, ostracization, and few options to improve.  Recidivism is rampant and almost inevitable. Further incarceration only intensifies the problems.  The ill effects extend to families and friends, including dependent children. Most people who are incarcerated will be released. 

What We Can Do Now

The first step is to repeal laws creating victimless crimes.  Where appropriate for safety concerns, lawmakers can create regulatory management of certain behavior now classified as crime.  Said regulations can effectively address demonstrable risks commonly associated with those behaviors. 

The next step would be to base criminal law on facts, objective data, and the application of professional, expert judgment to policy decisions.  Blood lust, fear, hatred, and runaway emotions must be overtly rejected in favor of reasonable minds.

Another critical step would be to develop a strong reticence toward the creation of new crimes and harsher punishments.

Importantly, we must spend public funds on the root causes of crime. As a criminal defense attorney, I’ve long understood the penal system, both for misdemeanors and felonies, is disproportionately filled with people who are mentally ill, have intellectual disability (formerly called mentally retarded), extremely poor, homeless, and people who have substance abuse problems. Often, it’s more than one of these characteristics. These are conditions which require help, not punishment. By helping these people, we help our entire society.

Continue to Part III >>