J. Neil Schulman’s Stopping Power — Instead of Crime and Punishment
Stopping Power — Why 70 Million Americans Own Guns
A Book by J. Neil Schulman
Instead of Crime and Punishment
Is there any relation between crimes and arrests, or crime and punishment, for that matter? On this second question, we know there is not: according to the Department of Justice, 75%-80% of violent crimes in this country are committed by repeat offenders. Further, a chart in the Los Angeles Times provides good evidence there is little relationship between crimes committed and arrests made, as well.
As a sidebar to an article in the February 27, 1992 Los Angeles Times on the brutality of the Japanese criminal justice system, the Times provided a chart of Violations of Criminal Law per 100K of population in various countries, and another chart comparing the Arrest Rates in those countries.
The Violations chart shows Britain leading the pack with 7,355 criminal law violations per 100K, West Germany with 7,031 (the stats are from 1989, pre-German-unification), France with 5,831, the U.S. with 5,741, Japan with 1,358, and South Korea with 912.
The Arrest Rate chart (also 1989) shows South Korea with 78.8%, West Germany with 47.2%, Japan with 46.2%, France with 38.8%, Britain with 33.6%, and the U.S. with 21.1%
Since every country on this list aside from the U.S. has a virtual prohibition of private ownership of firearms, gun control doesn’t lead to a less-criminal society. Obviously that is a blind alley for those seeking a reduction of crime.
Further, a comparison of the West German crime rate with its arrest rates also seems to blow out of the water the argument made by American law & order advocates that a greater certainty of arrest and punishment will necessarily lead to less crime: West Germany has both the second highest crime rate and the second highest arrest rate — possibly the first highest arrest rate, since the South Korean arrest claims, requiring superhuman powers worthy of Sherlock Holmes, strain any sensible person’s credulity.
Indicting The Criminal Justice System
Libertarian critics of the policy of crime and punishment have long argued that crime is a necessary product of the very nature of the State, created by it, along with provoking foreign threats to justify a military-industrial complex, as a way of manipulating the public into submission to political control. It is a sweeping charge and one which is likely to be dismissed as crackpot by anyone who can’t conceive of an alternative way of thinking about the subject.
But if we were to indict the criminal justice system as a criminal conspiracy might be so indicted, and look for evidence to support the charge, what do we find as the system’s “modus operandi”?
First, the State creates a set of laws which mix the concept of crime as an attack upon an individual’s life or property with the idea that a crime is anything the State says it is — and thus crimes without victims — or with “the State” as the sole “victim” — are created wholesale. Thus “possession” of a prohibited substance or object, even if such possession has inflicted no actual damage upon another person, in many cases receives as much punishment from the State as a robbery or murder. Additionally, the State sets itself up as the judge of what is an offense against itself, the judge which decides whether someone is guilty of an offense against itself, and the judge which decides what pains and costs to inflict upon a transgressor against itself. Then it sends out armed agents to enforce its decisions. Thus does the State treat itself as a God or Sovereign, whose will is to be feared and obeyed, and everyone else treated as one of its subjects.
Second, the “protection” of the “public” from crime, defined however the State decides, is turned over to the State which taxes the public on the basis that they “need” protection from crime, then hires police to “enforce the law” — but police have no legal obligation to protect the public which is being taxed to pay them from criminals, and suffer no liability from failure to do so.
Third, a “criminal justice” system is set up in which the guilt or innocence of a suspect bears only passing resemblance to the sentences imposed on them after plea bargains which trade ease of conviction for reduced sentences — regardless of whether the person charged is guilty or innocent. No compensation is given to those who are charged but found innocent, and often have their lives ruined by the accusation; compensation of the victim of a crime exists only as an occasional sideshow: the center ring is reserved for imprisonment of the criminal at taxpayer’s expense, imposing additional costs upon the victim.
When the system is supposedly “working,” those who are found guilty are sent into prisons which ensure that a prisoner will learn the craft of crime as a permanent lifestyle, creating a revolving-door criminal class which provides permanent employment for police, lawyers, prison-guards, and “crime-fighting” governors and legislators — while everything these officials do, regardless of their rhetoric, increases the number of attacks by criminals on the innocent.
When the system is supposedly “not working,” this massive prison bureaucracy is so clogged that convicted criminals are sent back out the street in short order, to attack more innocent victims and provide more grist for the criminal-justice mill.
Meanwhile, the same system which creates crime and does little to protect the public from it also demands that the public disarm and rely on the government for protection against criminals.
Is the libertarian indictment fantasy? Or is it a stripping away of the Emperor’s New Clothes? It seems hard to avoid the conclusion that if you put all this together, Criminal Justice is the protection shakedown of the public by professional organized criminals in control of an entire society: a system set up to terrorize the public into a condition where it will abide any amount of legalized theft and police control in order to be liberated from constant criminal invasions engineered to justify the system itself.
In a precise metaphor: the disease is being spread by the very doctors the public relies on for the cure.
A New Theory of Crime Management
The alternative to the game of Cops and Robbers by which the criminal justice system encourages criminals to prey upon the public so there is an excuse for the State to catch and imprison them, is to eliminate the State from the system as much as possible.
The public must come to realize that the first line of defense against criminal invasion of their lives and property is themselves. No one cares about protecting you, your loved ones, and your neighbors as much as you do — and no one aside from the potential victim is more likely to be able to provide effective counter-measures against invasion. The defense against criminal invasion requires vigilance, planning, and a willingness to fight back. The best and surest way to reduce crime is to make it unprofitable and dangerous for the criminal. The likelihood that a criminal attack will result in the criminal’s being injured or dying during the attack is, both logically and practically, the surest way to achieve a low-crime society. The example of Switzerland, a society organized along the lines of universal defense by all citizens, and where criminal attacks are virtually non-existent, comes to mind immediately.
Further, there are three “criminal justice” systems already at work in our country, and the system of police, criminal indictments, trial, and punishment is the least effective of the three. The other two are the system of civil laws by which individuals who cause damage to another can be sued and compensation collected, and the insurance industry, by which victims can measure the statistical likelihood of victimization against the costs of potential attack, and calculate proper “compensation” for themselves in advance.
The criminal justice system promotes crime and protects criminals rather than fighting it. You don’t have to be a radical libertarian to agree with that view. But the American people still need to ask themselves whether the problems are due to an unwillingness of the system to enforce its own criminal code, or whether the theory of crime and punishment on which that code is based does precisely what it is functionally structured to do: victimize the public at all turns.
To implement the new paradigm, the concept of “crime” must be completely severed from its statutory definitions and replaced with a simple test: If a crime has been committed, (a) Who committed it, (b) Who is the victim, and (c) What costs has the criminal invasion imposed upon the victim? If these three questions cannot be answered clearly and firmly, there will have been no crime committed.
The solution of what to do with a criminal who is not killed in process of the crime — a criminal who is captured alive or manages to escape, or must be hunted down — must be made as much as possible contingent on the accountable costs the criminal has imposed upon the victim. Instead of “rehabilitating” a criminal or “punishing” a criminal, the object must be to calculate as much as is humanly possible the costs that a criminal has imposed upon a victim (and the costs of apprehension and conviction as well), and extract as much value as possible from that criminal so that it may be used in compensation to the victim.
The object of “criminal justice” must be restricted to (a) augmenting the public’s first-line self-defense with additional lines of response, such as armed response to burglar alarms; (b) detective work to locate, identify, and capture those who have committed criminal invasions or thefts; and (c) a trial system to assure that those charged with an invasion or theft actually committed it, and upon proof beyond a reasonable doubt, to calculate the costs of that invasion and extract that cost from the criminal so that it may be used to compensate the victim. In the case where a criminal invasion has produced irreparable harm such as the death of a victim or victims, the murderer must be regarded as the property of the victim’s heirs, to dispose of as they wish, limited only by such mitigations that the precepts of society deem humane.
There can be no doubt that the current criminal justice system has failed. A proof of this failure is that each year the increased crime rate is used as an excuse to ask for more money and wider powers. This sort of reward for failure occurs only in the public sector; in the private sector, where competition is allowed, merchants who operate on this basis are driven out of business by customers going elsewhere and, if the failure is deliberate policy, the merchant indicted for fraud. They are not given more money and told to keep trying.
The question remains: do the American people have the courage and clarity of thought to identify the cause of the failure of the criminal justice system as its very design, and redesign the system so that it makes sense?
Next in Stopping Power — Why 70 Million Americans Own Guns is If Execution Is Just, What Is Justice?
Copyright © 1994, 1999 J. Neil Schulman &
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