Friday, August 24, 2012

How to Design a System of Laws

First, why design a system, as opposed to just letting the judges make up their own minds?

Uniformity.   If you have a system, then you won't have a situation where two guys get arrested for doing the same crime and one gets stoned to death, while the other gets community service.

This is an obvious problem.  Not only is it clear that one person got the wrong punishment, but it creates anger in the person that received the worse punishment as well as their family.  It creates unnecessary stress in the society.  It also allows prejudice to unfairly punish the disadvantaged and the privilege to escape reasonable punishments.

A uniform system is therefore much better - both for society as a whole and for the judge (it makes their decisions easier).

Next we need some guideline on how to decide the punishment.  I am going to use an old one.  In the original Hebrew, from the Old Testament, it is:

עין תחת עין‎

In Arabic it is:


In English, it is a rather famous phrase:  "An Eye for An Eye."

There are many ways to interpret this, but I am going to interpret it fairly simply:  The punishment must be appropriate to the crime.  It's an eye for an eye, not an eye for $10.  The government shouldn't kill someone to punish them for stealing - you can't pay money to counter a beating.

In the United States uses a similar rule (The Eighth amendment to the Constitution.)  The idea is to limit punishments to avoid excess.

So the first thing we need to do is categorize crimes.

  • Body Crimes.   Here someone kills, maims, or otherwise inflicts harm and/or pain to another.
  • Wallet Crimes.  Here, someone steals money or something of value from another person. 
  • Cage Crimes.   Here someone attempts to control another person.  Blackmail, kidnapping, slavery.
  • Rude Crimes.   Here someone engages in activities that undermine the culture or society without hurting someone, stealing from someone or forcing someone.   Some people call these 'victim less crimes'.  Marijuana use, Obscenity, speeding, etc.  If the crime doesn't physically hurt someone, take their money, or control them, it's just an affront to the culture, not to a person.  That';s called being rude.
Please note that you can also punish people for accidents and more importantly for negligent or intentionally risky behavior.   Taking an unloaded revolver, putting one bullet in the chamber, then spinning the revolver and pointing it at someone and pulling the trigger should still be a Body Crime even if the gun doesn't go off. 

Also notice that many crimes can fit into two or more categories.  If you rob a bank and in the process kill someone, that is both a Body Crime and a Wallet Crime.  They must be tried and punished for both crimes.

There are three basic concepts of criminal justice:  rehabilitation, prevention, and punishment.

Rehabilitation only works if the person wants to be rehabilitated - ask any drug abuse detox program.  You can not under any circumstance force someone to take it.   The process of rehabilitation is at heart an education program that usually require classes albeit sometimes with minimal constraints/security to keep people from backsliding.  But remember, as it requires cooperation, it can't really be forced - not if it's going to work.  The best you can do here is to offer it as a way to reduce other criminal sentences.

Prevention only works for the duration of the punishment.  It generally is either very expensive or involves some rather questionable actions on the part of the legal system - such as sterilizing or mutilating the accused.  Note you almost NEVER have to kill someone to prevent them from committing a crime - to my knowledge no quadriplegic has ever committed a serious crime.  Unless you are talking about murder or certain Cage crimes (slavery, rape) then prevention as a criminal sentence is a bad idea - it costs (either morally or financially) more to do than the potential crime.  Why not for rude crime or wallet crimes? Then you are doing something worse than what they did - and generally not preventing the crimes from happening.

That leaves punishment, so let's talk about what is appropriate type of punishment for each crime type.
  • Wallet crimes are easy - the criminal should pay money.  At the very least it should exceed what he stole. 
  • Rude Crimes are also fairly easy.  If you commit a crime against a community's culture, then you should pay back community service.   Feed the poor, collect garbage, care for the elderly, etc.
  • Cage Crimes are also a bit easy - if they attempt to control others, they should be controlled - i.e. prison.
  • Body Crimes are harder.   Do we want to attempt to offer the literal 'eye for an eye'?  There are some issues with that - among other things it means a mistake by the judge will double the crime.   In addition, it doesn't in anyway compensate anyone for the crime - society comes out behind, not ahead.   For that reason, some might say it makes more sense use prison to punish for Body Crimes.  This is an arguable point, one so I will leave it up to the individual criminal system.
There are several distinct advantages of this method.  It prevents wild abuses such as throwing someone in jail for cursing on TV.   It makes sense to most people.

We don't need the punishments to exactly match the crime - it might be more than the crime, it might end up as less than the crime.  That is up for the judge to decide based on the situation.   Among other things we should probably punish an intentional act more than negligence and we might not even punish a truly unforeseeable accident.  Stealing to feed your children is different from stealing to buy a race car.

When it comes to rude crimes, small crimes should be one day - 8 hours or so.   The worst of the worst crime should be no more than 1000 hours over an entire year (basically every single weekend).  That could be an appropriate punishment for doing something irrevocable and unfixable - such as insulting someone till they committed suicide. 

But even give that, sometimes we simply can not use those types of punishments.  If a broke man steals from you, he can't pay you back.  If you are using the literal version of "An Eye for An Eye", then if a blind man pokes your eyes out, you can't blind him back.  If someone has already been given community service requirements that exceed 24 hours a day for the rest of his life, then he can't do it  (let alone giving him time to sleep, eat, go to work, etc.)

So how do you deal with that.   Well, you if it is a Wallet crime you can upgrade the punishment.   That is, if someone steals more than they can re-pay, we can have them pay what they can and either service community service and/or go to prison.   Those are clear cut cases, and I would expect that most Wallet severe crimes would routinely end in prison. 

Similarly, for Rude crimes, if someone has an excessive amount of community service - more than 1,000 hours a year - and yet continues to do crimes we can upgrade to something more sever like house arrest.  (AFTER they have already been sentenced - no "he did so many bad things in one event or even one extended series of events then we should send him to jail).   But please note that those should be extreme situations, not the norm.  1000 hours a year of community service should basically be the worst sentence you can get per single arrest for Rude Crimes.

Cage and Body crimes are more difficult.  We can send people to harsher prisons and/or increase the sentencing. There is a big difference between time in a prison with an exercise yard and one without one.  There is a big difference between letting people read in prison and forcing them to work.  Why should we just restrict those conditions to punishment/rewards for good behavior in prison?  The point is judge should be making those decisions, not a warden (or a legislature trying to close a budget gap with prison labor - see here.)

Why don't we already do this?  Well, some people think the Rude crimes should be punished a lot more severely.

Here are a list of Rude Crimes that some cultures want to punish with extreme sanctions:
  • Marijuana use (not sales - that could easily be called a Wallet - tax avoidance, Body - damaging their body, or even a Cage - addiction.  Similarly any drug such as alcohol that encourages violent behavior could be a negligent Body Crime)
  • Voluntary Prostitution  (Again, pimping would be a Cage Crime)
  • Homosexuality (Again, Rape would be a Body Crime, I am talking about consensual)
  • Virtual Child Pornography (i.e. cartoons, etc.)
First of all, I'm not saying these should be crimes, not am I saying they shouldn't be crimes.   But if you DO insist on making them a crime, then the punishment has to be appropriate, not excessive.    Governments have a tendency to go overboard on the punishments in an insane attempt to discourage the behavior.  But people do them anyway.  The governments think by making the punishment extremely severe, it will prevent the behavior from occurring.

This will never work.   People don't stop doing things because they are punished excessively.  All that does is anger them and turn them against the government.      

Why doesn't excessive punishment work?

Look at prostitution - jail doesn't stop the women from doing it.  They need the money and don't think it's wrong, and so many other people agree with them.  People pity these women, they don't think "they are evil."   The prostitutes think society is being rude by arresting them, not that they are being rude.

Punishment only works if the punished person thinks they deserve to be punished.  If they don't, then instead of stopping the activity, they do it MORE to 'get back at you'.  Punishment requires the punished person to both know why they are being punished and to think they deserve it - and deserve it more than anyone else.  The most specifically have to think they deserve it more than the person doing the punishment.
When a man breaks into your home, holds you at gun point and screams "How dare you park in my spot!" and begins to beat you relentlessly, you don't think "Well, I'll never do that again."  Instead you wish for the good guy to arrive and rescue you.   Even if they never come, that's what you think.  As long as you think you are the good guy and the cops are the bad guys, excessive punishment will never work.

Whats worse, most cops needs the aid of non-cops to help them catch criminals.  Ask any police man, he will tell you that he needs honest people to refuse to aid the criminals, honest people to never consider doing the crime themselves, and honest people to aid the police in catching and stopping the crime.

If the punishment is excessive, then honest people feel sympathy for the criminal, not the government.  They aid the criminals, they consider trying it, and they don't help the police.  In order to stop a crime, people need to think that the crime is serious, not that the government is tyrannical.

When people think they are being unfairly treated, it just makes them want to protest.  Excessive punishments turn you against the government, not against the crime.

Think of it - what if your government was taken over by an evil political party.  If you like gun rights, think of an anti-gun zealot party that outlaws gun possesion and kills people found with them.  If you are pro-islamic, think of an athiestic party that outlaws Islam.  If you are gay, think of an anti-gay party that wants to kill you for your sexuality?  We all know how anti-marijuana laws affect the marijuana user - it makes them vote against the people passing those laws.

Would you bow down to their demands or rise up in revolution?

In every case, you create a revolutionary, not an obedient citizen.   Even if they don't actually rise up, your policy has increased the problems within the country rather than decreasing them.  

No comments:

Post a Comment