The Need for Decriminalization

I’m sure most people who read the headline assume this post will be about decriminalizing marijuana. That’s not the case specifically, this post is actually about decriminalizing the average American. Wendy McElroy, one of my favorite regular contributors to Mises Daily, wrote a great piece describing the injustice of our so-called justice system. The primary failure of what we call a justice system is the fact that everything today is treated as a criminal offense deserving of jail time:

Between 2.3m and 2.4m Americans are behind bars, roughly one in every 100 adults. If those on parole or probation are included, one adult in 31 is under “correctional” supervision. As a proportion of its total population, America incarcerates five times more people than Britain, nine times more than Germany and 12 times more than Japan.

By contrast, in 1970, less than one in 400 Americans was incarcerated. Why has the prison population more than quadrupled over a few decades? Why are you, as an average person and daily felon, more vulnerable to arrest than at any other time?

Between 1970 and 2010 our country somehow leaped from having one in 400 Americans incarcerated to having one in 31 Americans incarcerated. Between those time periods a similar increase in violent crime isn’t noted so what is the cause? The cause is obvious, the government has continued making mundane behavior criminal:

In some cases, the violated laws are so obscure, vague, or complicated in language that even the police are ignorant of them. In other cases, outright innocence is not sufficient to escape the brutality of detention.

Under English Common Law, which our system was at one time based off of, it was fairly easy for a person to know whether or not they were committing a criminal act. Today you are likely committing three felony level crimes every day and don’t even realize it. Such facts should be disgusting to anybody but the most authoritarian individuals. What kinds of behavior can incite armed government agents kidnapping you and throwing you in a cage? The article gives a couple of downright scary examples:

In 2005, while a passenger in his family car, Anthony W. Florence was mistakenly arrested for a bench warrant on traffic tickets he had already satisfied; the proof of payment he carried was to no avail. During seven days in jail, Florence was strip-searched twice, even though the guards admitted they had no reasonable suspicion of contraband. He was otherwise deprived of rights; for example, guards watched him shower and forced him to undergo a routine delousing.[1]

Eventually released, the attempt to get justice has taken Florence years. On October 12, the United States Supreme Court is scheduled to hear Florence v. Burlington, et al., in which the question is “whether the Fourth Amendment permits a jail to conduct a suspicionless strip search of every individual arrested for any minor offense no matter what the circumstances.”[2]

Even though Florence had paid his traffic ticket and had proof of the payment he was arrested, detained, and forced to submit to acts supposedly reserved for criminals. In this case the whole idea of being innocent until proven guilty was tossed aside, which is becoming the default instead of the exception (when it should never be the case). Another example is given:

Norris was detained for four hours while they ransacked his home and confiscated 37 boxes of possessions without offering a warrant or an explanation. In March 2004, Norris was indicted under the Convention on International Trade in Endangered Species for “smuggling” the orchids he had ordered and paid for to run a side business. Norris was thrown into the same cell as a suspected murder and two suspected drug dealers.[3]

Violations of trade conventions should, at most, be considered civil cases. That is to say the violator should be fined and nothing more. Why? Because somebody guilty of smuggling, unless what they’re smuggling are human beings, is a victimless crime. While I find the act of incarceration an improper response to any crime as it doesn’t help return to the victim what was taken, at the very least it should be reserved for offenses where a victim has been inflicted with some form of violence.

Smuggling a plant does not bring harm to another person so why should it inflict violence on the offender? A third example is given to further express the severity of the situation:

In 2000, a poor kid from foster care named T.J. Hill thought he had found a path to success when he received a wrestling scholarship to Cal State Fullerton. School did not work out, and he was arrested in 2006 for possession of psilocybin (mushrooms).

The kid was put on probation but his troubles were not over:

In November 2008, he left the state and a warrant was issued for his arrest. Although the original charge was minor and no further illegal activity occurred, T.J. was jailed on $100,000 bail to prevent flight risk. His family has spent thousands on legal fees. Now well known for his volunteer work with children, even police officers are hoping T.J. escapes more jail time. As one of them said, “He’s a good guy. He’s changed lives.” Whether he will be allowed to continue doing so or will become dehumanized through a senseless, brutal imprisonment waits to be seen.

Even though his offense was victimless he spent time in jail. Why was his right to travel restricted for the mere act of possessing a verboten substance? Why did his parents have to pay thousands in legal fees to defend their child against a crime where no victim existed? Once again the possession of a verboten substance should, at most, be treated as a civil offense punishable by fine (although I firmly believe what you put into your body is your business and possession and/or consumption of a verboten substance shouldn’t be punishable in any regard).

These are only three examples in a sea of such cases. What is needed to a reform of our erroneously labeled justice system. We need to go from a system designed to exact punishment on the average person to a system where victims are properly compensated by their aggressor and crimes without victims no longer be considered crimes:

Libertarianism has evolved sophisticated theories of what constitutes a proper justice system and how to implement it. One of the most popular theories is based on restitution, rather than retribution or punishment. Restitution is the legal system in which a person “makes good” on a harm or wrong done to another individual and does so directly; if you steal $100, then you pay back $100 and reasonable damages directly to the victim of your theft. You do not pay a debt to society or to the state by going to prison. You do not undergo “punishment” other than the damages assessed. You make your victim “whole” — and, perhaps, a bit more for his trouble.

The article describes several steps in the correct direction, one of which I believe needs emphasis:

A sunset provision attached to all new or amended laws. This is a clause that provides an expiration date for a law unless action is taken to renew it. Today most laws are in effect indefinitely.

One of, if not the, biggest problem with our current justice system is the insurmountable number of laws and regulations on the books. Lawmakers have no quarrel with passing new laws or regulations as they never have to deal with the consequences nor concern themselves with the aftermath. If each law had to be revisited periodically (I would say put the span of time at one year or less) and have its continued existence justified by debate after the consequences had been noted I believe the number of laws on the books would be greatly reduced. If for no other reason than the fact lawmakers would have no time to create new laws if they were constantly debating renewal of existing laws.