Chapter 5: Crime and Punishment

In this chapter I describe how I would reform the criminal justice system by basing it on restitution and revenge rather than the concept of “reform” of the criminal. The municipality would be required to make restitution to the victim, and collect from the criminal, who would be confined at hard labor until he made reimbursement.

Of Book

(Copyright July 31 2006)

The present state of violent crime and other lawlessness in this country today would make Billy the Kid and Wild Bill Hickock blush. And the government does nothing about it except pass more laws that it cannot enforce. Our inner cities are free fire zones, which except for the absence of heavy artillery are worse than Baghdad. In Boston, there were nearly a hundred murders in 1990, all committed with guns or knives. There were more people murdered in Detroit in the first three months of 1991 than were killed in the First Gulf War. And many of the killers go scot free, because any witness who knows what’s good for him will adopt the “hear no evil, see no evil, speak no evil” posture. The police certainly won’t be able to protect him if he testifies.

In 1998, 62% of all murders were committed with firearms, 52% with handguns (SATUS 1995-2000, Table 333), weapons having no other purpose than to kill people. The first step is to get these removed. One of my first acts as Dictator will be to reclaim the streets for the ordinary citizen. I will immediately declare martial law, nationalize, and place under 24-hour military security, all firearms and ammunition manufacturers and all gun dealers. I will prohibit importation of any weapons or ammunition; a gun without ammunition is only a club. All persons owning licensed firearms will be required to surrender them for storage in a local militia armory.

So, you say, in confiscating their arms, I have already broken my promise to respect the constitutional rights of the citizenry. Not so. The second amendment to the Constitution reads:

“A well-regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.”

It is very clear that the framers of the Constitution intended that the keeping and bearing of arms was to be in connection with the service by the citizenry in an organized militia, not the human turkey-shoot we now have. Thus, I would allow a legally-licensed owner to keep his weapon under his name in a secure militia armory. Provided this citizen participated in the regular organized drills of the militia, he would retain ownership of his weapon, and could check it out for hunting (rifles or shotguns only) or target practice. You see, the law-abiding citizenry would retain all their constitutional rights to keep and bear arms in the context of an organized, disciplined militia, which is what the framers of the Constitution intended. Purchase of guns and ammunition could be made only by members of the militias at their local armories. Handguns would receive special treatment, since their only purpose is to kill people. Access to them would be permitted for target practice only on the premises of the armory, or in the event of a declared national emergency.

Persons holding unlicensed firearms or ammunition would be informed that the penalty for being caught with either one would be life imprisonment at hard labor without parole. A one-month grace period would be allowed for such persons to turn in their weapons anonymously at local police stations or armories. All merchants presently selling firearms would have to go into some other business, because the sole vendors would be the militia armories, selling only to their own members in good standing. Most of the firearm and ammunition factories would be closed, because there would be little or no market for their product; the ones that remain would be operated by the government under 24-hour 7-day military security.

It would be a great dislocation, but when it was complete, the only way one American would be able to murder another would be with bare hands, a crowbar, or a baseball bat. Then martial law could be lifted, and the country could get back to dealing with ordinary crime and punishment. And for this, I would dictate an equally dramatic change in the way society deals with the criminal element.

Let’s go back in time to a period when it was safe to walk the streets of every American city at night, back in the thirties and forties, even as late as the nineteen-fifties. Was this because there was less poverty? Hell no! In the thirties, people didn’t have a pot to piss in. Were there more police? Hell no! In the forties, the police were all in the armed services. Were people more law abiding? Hell no! the fifties was the decade of Willie Sutton and his ilk, which robbed banks because that’s where the money was; it was the decade of the Brink’s heist in Boston, which was and is the biggest armed robbery in the history of crime (taking inflation into account). Why was it safe to walk the streets?

For one thing, it was the racket of The Mob (AKA the Mafia, La Cosa Nostra) at that time to sell “protection” to the shopkeepers and merchants. The difference between the Mob and the police when it came to protection was that the Mob delivered the goods. You paid protection to the Mob; if any goof ball held up your shop, he was found a few days later in the river wearing concrete swim fins. Punishment was swift, certain, not interfered with by lawyers or the American Civil Liberties Union or the Miranda Doctrine. What’s more, the Mob reimbursed you for your losses; you didn’t need burglary insurance. All you had to do was pay your protection on time.

When my wife and I were first married, I was a grad student at MIT. We lived on H——-d Street in Boston, across the Charles River, because it was convenient and we could afford the rent (it being what her Dedham uncle referred to as one of the “lower class districts of Boston”). In the building we lived in, eighty percent of the apartments were occupied by floozies who received, for a fee, protective and procurement services from the Mob. When my lovely twenty-year-old bride returned home in the evening from her job on Newbury Street, disembarking from the subway and walking down Massachusetts Avenue, she was met every single afternoon at the corner of H——-d Street and Mass Ave. by the local Mafia soldier, gat bulging in his shoulder holster, who escorted her down the one block of the street to the door of the apartment building. There were no suspicious characters roaming the halls of the incredibly seedy apartment building. Only residents and customers got in. My wife was safer than if she had been in church. The Mob tolerated no problems from bums, muggers, burglars or other common criminals whose pernicious acts would cause the police to enter the neighborhood and clumsily stumble over their profitable rackets.

In the seventies, after the power of the Mob in the protection racket had waned, due to police interference or discovery of more lucrative rackets or both, I knew a man who lived right around the corner from where we had lived that year. In his building, muggers and burglars roamed the halls continually; their favorite tactic was to start a trash fire in the hall to get the residents to flee their apartments. As the occupants came out of the door, the muggers would shake them down, and the burglars would slip in behind them to loot the place. At least few people got hurt. Its gotten worse since then; innocent people now get killed in the crossfire of automatic weapons in the Baghdad-style gang warfare that now pervades inner-city neighborhoods.

What was different? For one thing, presence. The Mobs foot-soldiers were there on the beat. For another thing, the certainty of punishment, swift and sure, for transgressions against the protected. It just wasn’t a good idea for anyone to mess around with protected stores or to commit violence against the citizenry. If we want to return to the “good old days” when people could walk the streets without concern for their personal safety, we have to bring both of these elements back, this time under the auspices of the government rather than the Mob.

For openers, I would require that the municipalities be the insurers of their citizens against personal injury and property damage or loss due to crime. Taxes, of course, will be increased by the amount of the insurance premiums the citizenry no longer has to pay. Any citizen who lost property because of a crime would be reimbursed on the spot for his loss. Any citizen who was injured in such a crime would be reimbursed for medical expenses plus a generous sum for pain and suffering. The choice of the city then is “pay now” for police presence, or “pay (more) later” to reimburse the citizenry for its losses. It will cost less to put cops on the street as foot-soldiers to prevent crime than to pay for it after the fact.

The second element of my reforms is that the criminal justice system be turned around 180 degrees from the present focus on “reform” of the criminal to the twin principles of restitution and revenge, to make the victim whole. I have already stated that the municipality shall make prompt restitution to the victim; it is merely acting in this regard as the agent of the victim, and must in turn obtain restitution from the criminal. With regard to revenge, the government is again acting on behalf of the victim of a crime resulting in personal injury. It must apprehend the criminal and exact from him the revenge to which the victim is entitled. In this respect, the ancient Talmudic law “an eye for an eye, a tooth for a tooth–” represents a very useful model: the first codification of a wronged individual surrendering to Society his God-given right to revenge, in exchange for Society’s promise to obtain that revenge for him.

For personal injury crimes that do not result in death, I think the cat-o-nine-tails, administered by a brutal expert, could be a very useful instrument of revenge. If I were injured by a mugger, I would derive considerable satisfaction from seeing him get a dozen lashes in the public square before being carted off to jail to work off the restitution part of his sentence.

As I have said, the government must make restitution to the victim, and then collect that restitution from the criminal. The criminal goes to jail to labor, earning a reasonable wage, from which is deducted the cost of apprehending and trying him, and the cost of keeping him incarcerated. (The salaries and the jobs will be those now enjoyed by the illegal immigrants we will no longer have.) When the cumulative difference between earnings and cost equals the restitution paid by the government plus interest, the criminal is released. Simple, straightforward, not a lot of opportunity for plea bargains or other legal machinations. Sentencing does not involve any arcane reasoning about the “psychological profile” of the criminal, or his “good behavior” while in the jug. He goes to the clink to be forced to make restitution, and he gets out when he has done so. Interestingly enough, in this mode of incarceration, white collar embezzlers who snooker their employers out of a hundred grand or more will spend the rest of their lives in the clink unless they cough it all back. They can’t earn enough in a lifetime at the going wage for any trade to make restitution of that amount while in jail.

Revenge extends to capital punishment. When the criminal takes the life of his victim, he is condemned to death. Conviction will require concrete physical evidence, including but not limited to DNA evidence. Notoriously unreliable eyewitness identification will not suffice. However, the nearest relative(s) of the victim must be the executioner(s). All executions are to be in public, by the guillotine, to be as bloody as possible. Upon conviction, followed by immediate appeal and prompt decision, the fate of the criminal is placed in the hands of his executioners. If they are squeamish, or otherwise inclined to mercy, the sentence is commuted to life imprisonment. If not, the guillotine is immediately set up, the criminal placed in the stocks, and the lanyard handed to a kinsperson of the victim to exact the revenge of the family. There will be no ten years on “death row” for everybody to forget the horror of the crime and salivate only over the horrors of execution.

It will be very much in the best interests of an incarcerated criminal to be well-behaved, and not try to escape or beat up on fellow prisoners or guards, or trash the prison. Then he can do his time in a minimum-security camp where the cost of keeping him is minimal, little more than room and board. Look at the arithmetic. Suppose he earns $10 an hour at a modestly skilled trade, working a full shift six days a week, about 2500 hours per year. He grosses $25K per year. In the minimum-security prison, the cost of keeping him is $10K per year, and he can generate $15K per year for restitution. If he is a burglar with a couple of scores to his credit before he was caught, he will probably be out in a year or two. Some criminals convicted of crimes not involving personal injury, and whose behavior in jail was exemplary, could be released to a form of “house arrest” under 24-hour electronic surveillance. This would permit them to move around enough to hold down a job, and buy their own groceries, but would otherwise keep them off the streets. The requirement for restitution would not be lifted, however; the criminal would remain under house arrest until restitution was completed.

If, on the other hand, the criminal is a hard-core troublemaker with a record of crimes of violence, who splits at every conceivable opportunity and beats up on fellow prisoners, or otherwise makes all kinds of trouble, he will have to do his time in a maximum-security facility, where it costs $40K per year to keep him. The cost of keeping him locked up is greater than his earnings, and every year he spends there he goes deeper in the hole as far as restitution is concerned.

So much for the business of turning the moral basis of the criminal justice system around from “reform” of the criminal back to where it belongs, to revenge and restitution for the victim. I could go on at much greater length, but you get the idea.. You can argue that there is a whole class of “victimless” crimes, where society as a whole is the victim, but no one individual is: illegal gambling, prostitution, air pollution, illegal dumping, littering, folding-stapling-or-mutilating, pornography, thousands of criminal acts that could not be punished in my scheme. Exactly; these are not crimes in my lexicon. These are merely somebody’s religion, morals, or ethics codified into law. These laws are widely flouted and seldom enforced; when they are enforced, they hopelessly gum up the works of the criminal justice system.

In the hullabaloo after the fatal fire in an illegal social club in New York in March 1990, it was revealed in the paper that the owner of the building had some thirty arrest warrants out on him for criminal violations of the building code. In the same article, it was noted that there were 450,000 such arrest warrants extant in New York, which the police were making absolutely no effort to serve. They couldn’t keep up with the warrants for “serious” (read “violent”) crimes, ie those with victims. They weren’t going to bother with all the others. The courts couldn’t handle all these cases if the arrest warrants were served, anyway. There is nothing that breeds disrespect for the law more than laws that are not enforced, or which are capriciously or selectively enforced.

My system would be much simpler. If there is no identifiable individual victim to whom revenge or restitution is due, there is no crime. All this other legally-codified morality and ethics would be left to the civil justice system to deal with. Let the lawyers have a field day! See Chapter 11 for how I am going to reform that industry.

The next place I am going to stand the system of criminal justice on its ear is in the courtroom. The judge and the jury will have the absolute right to know every fact about the case known to anyone. How else can they make an informed decision of guilt or innocence? Right now, for example, a witness or the defendant in a crime of violence can have a record for violent crimes as long as your arm, but that fact is studiously excluded from the jury: the history of prior convictions is “not relevant” to the case being tried, and “may unfairly prejudice the jury”. It sure is relevant to the credibility of the defendant or of character witnesses testifying that he is as gentle as a lamb, or of the accessory turning state’s evidence under an immunity deal.

Then there is that exquisitely-refined distillation of the legal mind that we are blessed with today, the “tainted fact”. Suppose the police are armed with a search warrant listing the wrong address for the residence to be searched. They bust down the door, search the place, and find incontrovertible physical evidence of guilt. It will not be admissible in court, because of the faulty search warrant.

The facts discovered in the search are “tainted” because the faulty warrant made the search illegal.

Suppose the police bring unbearable psychological pressure on a criminal to confess, without having explicitly warned him of his right to remain silent, in a ritually-codified statement that must be recited verbatim like a catechism. If he capitulates, confesses, and leads the police to the physical evidence that absolutely confirms his guilt beyond any shadow of a doubt, the jury will never see that evidence. It will not be admitted, since the police discovered it as a result of an illegally-obtained confession. The facts that would prove the defendant’s guilt are “tainted” and not admissible.

What absolute nonsense! The legal profession apparently regards a trial as a game, to be played according to rules made by lawyers, interpreted by lawyers, and understood only by lawyers. “The flanker was moving forward when the ball was snapped, therefore the play never took place, the touchdown doesn’t count (it is a “tainted fact” even though millions of people saw it happen) and the offense is penalized five yards.”

It is not a game. It is a matter of life and death for defendant and victims alike. In my dictatorship, The judge and jury will be entitled to know every fact, no matter how that fact was uncovered. If the police committed a crime against the defendant by violating his constitutional rights, then deal with that in a separate trial with the police as defendants and the criminal as victim, entitled to his revenge and restitution. But do not hide the facts, however they were obtained. If a cop knows he will go to jail if he commits a crime against a suspect, even though the suspect is found guilty and goes to jail himself, that cop is going to be very careful about his investigation. I suspect he will be even more careful than if he is “punished” by having the facts he discovers declared to be “tainted”. He will have a lot more personally at stake.

Another point that I would throw out the window is the “tabula rasa” theory of jury selection and service. When Oliver North was on trial they had to find a jury in Washington that was so ignorant or so disconnected from the public life of the country that no members had heard, read, or seen anything about his highly-publicized appearances before Congress. I would hardly call that a jury of Ollie’s peers.

Today, the lawyers playing their cat-and-mouse game over the body and soul of the defendant in a trial that involves some scientific or technological sleuthing (such as DNA identification) would absolutely blanch at the thought that anybody on the jury was knowledgeable in the science or technology involved. Why such a person might know exactly when a prosecution or defense expert was “stretching” his knowledge base to fit his employer’s theories. Such a person might actually be able to tell when one of the experts was a scientific con-man, however personable and credible he might seem to the average juror.

I would turn the process absolutely upside down. If the case is to depend on testimony by expert witnesses of any stripe whatever, there must be jurors empaneled who are knowledgeable or expert in the subject. Because of their outside, in-depth knowledge of the limits of the profession, they would be far better able to evaluate the conflicting testimonies of the hired guns on both sides than the present ignoramus juries. Because the experts would realize that their pronouncements were being scrutinized by a jury of their peers, they would give far more realistic and careful testimony, less couched in the absolute terms so earnestly sought by lawyers.

Finally, I would give the jury the right to ask questions of every witness. After the lawyers had asked all their questions, any juror who had a question that hadn’t been answered by the testimony could ask it himself. The one time I sat on a criminal jury, I thought the district attorney and the counsel for the defense were leaving many loose ends because of the well-known lawyer’s first rule of examination and cross examination: “Never ask a question that you don’t already know the answer to”. Every lawyer in court is trying to get only those facts into the testimony that support the arguments he is going to make, and to rigorously suppress any others. To that end, he raises all sorts of objections to questions by the opposing lawyer that might lead to exposure of a fact that casts doubt on his argument. He studiously avoids some topics in his examination of his witnesses, so that the opposing counsel can’t raise embarrassing questions in cross-examination. Like I said, these people treat the whole thing as a game, with the jury left to guess which shell the pea is under. However, if the jury asks the question, our lawyer friend will have to think twice about objecting because the jury is eventually going to have to buy his argument if he is to win. If he is too obnoxious in objecting, the jury is going to wonder what he is trying to hide.

So you see, in my dictatorship, juries will be knowledgeable, and participants in uncovering the facts at the trial, as well as the final arbiters of the weight of the evidence.

There will be fewer weapons, fewer crooks on the street, more police on the street, faster trials based on more facts, swifter punishment, punishment based on revenge and restitution. If this sounds like the system the Mob ran in the pre-war and post- war periods you shouldn’t be the least surprised. The streets were safe to walk then, even at night. In my dictatorship, they will be again.

You may argue that it will be too expensive to multiply the number of cops, and have them walking the beats on every block in the city. Baloney. The city will have to pay the cost of crime; it will be cheaper for them to have ten times as many cops than to pay the cost of the crime that goes on now. In the steady-state, the cost will be borne by the criminals through the value of their labor, which reimburses the municipality for the restitution it has made plus the costs of the criminal justice system. The savings to society as a whole due to the reduction in crime will be astronomical. My system will save money, no matter how much it costs.

Ubiquitous feet-on-the-ground police presence will also go along way towards eliminating the gang warfare that plagues so many of our cities. The fundamental motivation for much of this is self-protection. Gangs form to protect their members from violence by other gangs. A massive police presence to interdict and punish violence as soon as it happens will defuse much of this internecine strife.

Finally, a very large fraction of the crime that now occurs is drug-related: Addicts stealing to feed their habit, the settling of disputes in the drug-trade business, the intimidation of citizens who have witnessed illegal transactions or complained to police about open trafficking in their neighborhoods. Until the illegal drug trade is choked off, it will continue to be a stimulus to violent crime. In the next chapter, I will detail my ideas for stopping that in its tracks.

67 Responses to “CHAPTER 5 OF BOOK”

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    * Re: MIT grad student and Mob protection. Was a grad student stipend sufficient to pay for this excellent protection?
    * According to a National Geographic documentary, mob power waned because they moved to selling drugs, as they were more profitable than gambling, racketeering, and protection. Would you have been as supportive of the Mob if your wife had been forced to buy (and become dependent on) illegal drugs?
    * Reference to Chapter 11; still to be written?
    * Perhaps may references to Chapter links, instead.

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