[First published on skepolitical.com on 6/9/12]
The problem of overcriminalization has long interested me for several reasons. The first reason occurred to me as a naive teenager, when, after reading Crime and Punishment, I took away the lesson that people should follow the laws regardless of how silly they seem, because no man is smarter or more important than society. However, this clearly doesn’t stand up to deeper analysis. Some laws that are on the books are clearly ridiculous, and, after all, slavery used to be the law of the land. How can we expect people to respect the laws when the laws are so clearly bad? As someone who believes in the idea that the American people are responsible for the conduct of their government, I was scandalized by this realization. To this day, I still feel complicit in this hypocrisy. The Skeptic movement has assumed the role of pointing out the most obviously illogical beliefs. If we are to apply skepticism to politics, a reasonable place to start would be pointing out laws that offend our ethical premises. Let’s review some of the consequences of overlooking such laws.
When our ethics and our legislation do not line up, it breeds contempt for the law, police officers, and the legal system. It creates space for more corruption in the ranks of police officers and lawyers and judges because it affords them discretion: when there are so many crimes that we can’t reasonably expect officers to try to stop them all or our prosecutors to prosecute every one, picking and choosing becomes acceptable. Of course, venal police officers, lawyers, and judges would commit their blatant corruptions regardless of whether society allows them discretion, but the freedom to pick and choose results in the widespread application of more subtly corrupt practices like racial profiling or giving fellow officers a break. In the case of victimless crimes like drug offenses, these officers and legal professionals can justify this behavior by telling themselves that these crimes do not hurt anyone, so nobody’s legal rights are being violated. However, it is still clearly unfair for some offenders to be prosecuted (usually the least powerful among us) while others aren’t (the most connected and priviliged). The law should be fair.
Meanwhile, our court system is overridden with cases, with devastating consequences. Public defenders spending embarrassingly little time on cases. The conditions in overflowing prisons are so bad that courts are calling them unconstitutional (resulting in the release of many prisoners), we sometimes deny UN access to investigate human rights violations (for which we are sometimes condemned), prisoners are going on hunger strike to gain support for their demands for better conditions, and foreign countries debate whether they should be willing to extradite suspects to our country, lest they violate their own legal and ethical standards by subjecting their detainees to our legal and penal systems.
After minimal public discourse (where were you, mainstream media?), our penal system has begun to be privatized, transferring some of these ethical pressures off of politicians and onto private corporations, those paragons of ethical behavior. Guess what happens when we bring corporate interests into a situation? That’s right, they will start lobbying congress for whatever they think will increase their profits. In this case, it’s longer prison sentences, particularly for the most common offenses such as those involving drugs.
These issues threaten the legitimacy of our legal system, one of the most fundamental aspects of civil society, and, as I said, these issues have been quite troubling to me for some time. At the heart of the matter seems to be the criminalization of victimless crimes, and the non-skeptical way people accept it. After all, those people suffering in prison are bad people, and we should keep them away from our civil society, right?
I recently heard yet another reason to oppose overcriminalization. There are concerns about the limited access to a real choice for a jury trial for many defendants, with 97% of cases ending in plea bargain, encouraged by over-encumbered judges. At least some of these guilty pleas are being made by innocent people.
I like to consider myself a man of principle. If I were faced with a false charge, I would never plead guilty. Or would I? Consider the case of Brian Banks, falsely accused of rape at the age of 16 and told by his lawyer that, because he is black, the jury would probably convict him and send him to prison for 41 years. He was given ten minutes to decide whether to take a plea bargain for an eighteen month sentence.
Facing those odds and that offer and only 10 minutes to make this heart-wrenching decision, are you sure you would be able to stand on principle and plead not guilty? What if the choices were standing trial facing life in prison versus an offer of one day in prison? At some point, I think almost all of us would just say “okay, I did it,” and get it over with. At what point does this become more like a medieval Heresy trial, where you can go free just by confessing, and less like the justice system system we learned about in civics class, worthy of all the power and respect we Americans afford it?
In a recent episode of To The Point with Warren Olney, Lucian Dervan discussed the story of Brian Banks and linked the problem of plea-bargaining to the problem of overcriminalization. Specifically, he pointed out that as the potential length of a sentence is increased, agreeing to a plea bargain becomes more and more enticing. The constitutionality of plea bargaining was established by the Supreme Court in 1970, but Dervan raises the interesting question of whether defendants are being denied the right to a fair trial if they are so often being coerced into pleading guilty. Yes, every defendant has the choice to demand a jury trial, but if the Prosecutor is offering you 1 year versus a potential 50, is that really a choice? Does that incentivize bringing weak cases against defendants in the hopes of getting them at least a short sentence even if there is only a small chance of a successful jury prosecution? Also, Dervan points out that cases that are plea-bargained are rarely investigated fully, so a defendant like Brian Banks may never learn that the evidence likely would have exonerated him.
I’m not quite persuaded that by Dervan’s argument that plea bargaining denies defendants the right to a trial. Even if the option to go to trial is hardly a “choice,” the choice is still there and I think this clearly satisfies the constitutional requirement. However, I want to examine the factor that Dervan pointed to as exacerbating this entire problem: overcriminalization. Specifically, overly-long sentences. This form of overcriminalization is something that I hadn’t considered before, but when the sentences for crimes are made extremely long, the decision to go to trial becomes that much more daunting for a defendant. Many innocent people are pleading guilty.
In case you aren’t upset enough already, let’s return to the Brian Banks story. According to the Dervan on To The Point, the consequences of the decision to plead guilty were not adequately explained to Banks, who decided to take the deal to serve only eighteen months. Apparently, such deals are not required to be upheld by the presiding judge, and so Banks ended up with a six year sentence. After serving five years, he was let out on parole, and for the rest of his life he would be a registered sex offender, meaning his options for where to live would be restricted and potential employers would forever be reluctant to hire him. These are factors that a highly stressed 16-year-old should not have to consider in the space of ten minutes, and, besides, nobody tried explaining most of these consequences to him. Fortunately for him, his accuser was recently caught admitting she made the story up, and the California Innocence Project took up his case. Now his record is clear, and in fact he is trying out with NFL teams.
As an aside, one interesting Occupy action idea I’ve heard is to have all those arrested demand jury trials. This would create an enormous disruption (remember the hundreds arrested on the Brooklyn Bridge last fall?), and might have the effect of bringing these issues into the public eye. Yes, it’s easy for me to say without facing jail time myself, but it’s something I’d be excited to see.
You may be wondering why you should care what I have to say about these matters and what they have to do with skepticism. Indeed, I have said before that these issues are all just distractions from the prime political imperative: to get more critical thinking into our culture and schools. However, these are the types of issues that make a skeptical society so imperative. If you are outraged by this sort of story, if you are looking for some answer to the question of why such outrages persist in our society, perhaps I can persuade you that Skepticism is the answer. I hope eventually to focus more on writing about why I’m optimistic about Skepticism and what we can do about these things. In the meantime, please bear with me, I’m still a beginner when it comes to writing about politics, but I’m enjoying the experience of writing about these issues that I think should convince people that something needs to change. Also, you can rest assured that, since you are dealing with a skeptic, I am very open to criticism and discussion. Please, point out my biases and fallacies and my jumping to conclusions! (320)