Archive for May, 2015

A Modest Proposal

Wednesday, May 20th, 2015

Yesterday, the New York Senate voted to pass “Brittany’s Law,” to create a new public registry of offenders. Think “sex offender” registry, only for anyone convicted of any violent felony. People with a conviction in their past would have to register for ten years or more (under penalty of another felony conviction). Local law enforcement would be notified of who these people are and where they’re living (makes it easier to harass and arrest them and put them back in jail again). If there’s a fear of re-offense (evidenced by such things as being out on parole, or whether the original violent felony involved violence), then the public could be notified with their photo, details of what they did, where they live now, and more.

Why? Because, you know people who were once convicted of a violent crime? Sometimes they commit another one later! Gasp! Think of the children! The public must be informed and protected, so we can protect our children and our neighborhoods and our workplaces from all those people, some of whom might commit another violent crime later perhaps! Who cares if it had just been a domestic dispute, or they’d shouted “fire” in a crowded theater, or they’d defended themselves in a fight by kicking while wearing shoes, or they moved here from another state and brought their gun with them? (All potential violent felonies in NY.) We need to be protected from all violent felons, if the law’s going to protect us from rapists and murderers and terrorists! That’s what this law’s trying to do: protect us.

But some people complain that this is a bad thing.

Some folks say it punishes people all over again, after they’ve already served their time. Some folks say it makes it harder for these people to reintegrate into society, find a place to live, and get a job. Some folks say this only increases the chances that these people will return to crime.

Some people object on the grounds that any law named after a victim is de facto overbroad, unjust, and a nightmare waiting to happen.

Other people, however, point out that some violent criminals do commit subsequent crimes after they’ve done their time. They can pose a threat. We can’t just rely on criminal law to deal with it, because that only punishes people after they’ve committed a crime. We want to prevent those crimes from happening in the first place. Honest to god, think of the children!

Well, if you put it that way, it all makes sense! Let’s punish people — not for what they did do, but for what they might do. We don’t want a law that reacts, we want a law that protects.

When you put it that way, though… The problem is, this new law just doesn’t go far enough.

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The central premise of this law, and others like it, is that rehabilitation doesn’t work. It’s a nice idea, but in reality rehabilitation’s just a pipe dream.

That’s kinda true. Criminal penalties — whether they be jail, prison, probation or what have you — simply don’t prevent recidivism. The vast majority of people who get arrested will never ever commit another offense, regardless of whether their case is prosecuted or dismissed. Either it was a one-off mistake in an otherwise blameless life, or the mere arrest and arraignment was enough to scare them straight. The few who do go on to reoffend don’t seem to stop. At least, their punishment seems to have little measurable effect on whether they stop or not. (Ignoring drug treatment and mental health treatment, which aren’t technically punishment anyway.)

No, nobody with a halfway-decent understanding of our criminal justice system thinks that punishment rehabilitates anybody. It just doesn’t happen.

It doesn’t deter anything, either. Very few criminals decide not to offend after sober reflection of what the consequences might be. Even fewer violent criminals. (Those people who are deterred are those for whom the mere fact that punishment happens is enough to scare them away from contemplating crime. The possibility of a conviction alone is deterrence enough. The nature of the punishment is irrelevant. More importantly, these are not the people we’re worried about.)

If jail doesn’t rehabilitate, if it doesn’t deter, then what good is it?

It’s great for removal — getting the criminals off the streets so they can’t commit further crimes. Inmates can’t mug people on the street. They don’t kill us. They don’t rape… the rest of us. We’re safe from them.

More than that, we know that it works! Crime is down nationwide — violent crime, too — not merely because of demographic shifts but because in recent decades we’ve been locking people up for longer and longer chunks of their lives, keeping them off the streets. The prison population is soaring despite the drop in crime not because we’re shoving more people into prison, but because once there they’re staying longer. Sure we have more people locked up per capita than anywhere else on Earth, but aren’t we safer? Yes, TV shows and the news make people think crime is astronomically more likely than it really is, but you and I aren’t stupid people swayed by that nonsense — we’re the cognoscenti. We know that crime is down, and locking people up is why.

We’re safe from them… For as long as they’re locked up, anyway.

Most of the time, incarceration is sadly temporary.

Which means we’re not safe. And even Brittany’s law can’t protect us. Not really.

Which is why I have a modest proposal:

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Execution.

Punish all violent felonies by death.

Think about it: Removal is the only thing that works. The whole point of Brittany’s Law is to make removal more permanent — to keep them out of our communities and workplaces long after the justice system was forced to release them from custody. Removal’s what we want. The only way to really get that removal is to… you know… remove those people. For good. For once and for all. And execution’s really the only way to go.

Life sentence, you say? But why go to all the expense of feeding and housing and protecting and providing care for a dirty stinking nasty criminal for the rest of his life? First they hurt their victim, and now they’re going to suck our taxes dry for the rest of their days? Don’t forget, most violent offenders are young men between 17 and 30, with a long life ahead of them. And what’s the point of a life sentence, anyway? If you’re going to take away a man’s liberty permanently, if you’re going to remove him from the world permanently, what’s the point of keeping him alive? Death is more certain, efficient, and (if actually carried out instead of jammed up with decades of appeals) cost-effective.

What about exile, you ask? How historically-minded you are. There once was a time when you could ship off your criminals to another land, with a realistic expectation that they’d never get back. Sadly, in these modern times, there aren’t too many countries out there willing to let us ship boatloads of violent criminals to their shores. Plus how expensive would that be? And then they could always escape and sneak back through our borders like any illegal immigrant, and you just did all that for nothing. No, it’s just not workable in this day and age.

Execution is the only way to make sure these people never commit another crime again.

It’s the only way to be sure.

This isn’t an original idea, of course. For hundreds of years, our legal predecessors punished minor crimes with a fine, and major ones with death. (Jail was where you waited until the sentence was handed down, to make sure you didn’t flee in the meantime.) It only became a problem in England when they started criminalizing too many things and people started being killed for stuff that didn’t seem so major. We only invented prison sentences more recently, in an enlightened attempt to match the severity of the penalty to the severity of the crime, taking away a portion of your life that could be measured with scientific exactitude. And also to give you a chance to ponder your misdeeds and make yourself a better person, so you could come out a valuable contributing member of society once more. But now we know that rehabilitation is hogwash, and figuring out how many years a crime is “worth” only heightens the impermanence of the removal. It defeats the whole purpose! No, let’s go back to the tried-and-true. And if there do happen to be a few crimes that shouldn’t be punished with death, it shouldn’t take much time at all to identify and amend them.

Think about all the tax dollars we’d free up from the prisons. Think, liberals, of all those for-profit prisons we’d put out of business, along with the corruption they breed. Think, conservatives, of how low our crime rate would plummet, once we start keeping the bad guys off the street for good. Think, libertarians, of the smaller government we’d enjoy with far fewer agencies and bureaucracies and social programs and social workers and defense lawyers and the rest of the whole long tail of woe that trails behind each of these losers counterproductive members of society. Think, jurists and lawmakers, of the respect for the law we would instill when any potential lawbreaker has a gas chamber waiting for him. Think, everybody, of the children!

It’s a modest proposal, I know. But seriously, if we’re going to give up on every purpose of punishment but removal, then let’s be serious about it and remove them.

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No?

That’s not what you want?

Well, make up your mind. Because it’s exactly what you’re trying to accomplish. Your representatives say so every time they vote for something like this. Obviously it’s what you, their voters, want. Otherwise they wouldn’t do it.

Tell you what: You figure out why my modest proposal is wrong. Then explain in the comments why your Brittany’s law (or what have you) is somehow, nevertheless, right.

Go ahead. Just don’t forget to think of the children.

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[Inspired by reading the back-and-forth after this tweet by Scott Greenfield]

A Fundamental Disconnect

Friday, May 1st, 2015

Your smartphone has a lot of private stuff on it. Passwords, photos, messages, files. You want to keep it private. So it’s a good thing that companies are building better encryption into their phones, right?

Not according to law enforcement. They complain a lot about encryption. Encryption is pretty good, these days, which means law enforcement can’t easily get stuff that’s encrypted. It used to be you have to be kinda tech-savvy yourself to encrypt your stuff. But now phones are encrypting your stuff by default. Cops, prosecutors, spies, and regulators want those passwords, photos, messages, files. And now they can’t get them. They’re frustrated. Like a spoiled brat throwing a tantrum, telling her dad to make Willy Wonka give her what she wants, they shout at lawmakers to make the nasty companies give them access. Maybe they don’t go “if you loved me, you would” (though they might), but echoing the rallying cry of governmental overreach everywhere, they scream “think of the children!”

Seriously, that’s their argument. Eric Holder, our recently-departed Attorney General, cried “think of the children!” last autumn at the Global Alliance Against Child Sexual Abuse Online conference. Law enforcement can do its job while “adequately protecting” your privacy (whatever he thinks that means), he said — but “when a child is in danger, law enforcement needs to be able to take every legally available step to quickly find and protect the child and to stop those that abuse children. It is worrisome to see companies thwarting our ability to do so.”

 

Damn those evil, evil companies for helping child abusers!

It’s a common refrain. Just the other day, a Massachusetts district attorney testified before Congress that “when unaccountable corporate interests place crucial evidence beyond the legitimate reach of our courts, they are in fact placing those who rape, defraud, assault and even kill in a position of profound advantage over victims and society.”

Damn those evil, evil corporations!

What law enforcement needs, they say, is a “backdoor” — they demand and insist that tech companies build flaws into their encryption, so that government can get those secret files and catch bad guys. We can trust law enforcement to only use those encryption flaws for a good cause. And it’s not like any of those bad guys will be able to use those flaws to commit more crimes.

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Of course this is pure nonsense. And fortunately there was at least one congressman present on Wednesday who knows it.

California Rep. Ted Liu called B.S., in no uncertain terms. Tech companies aren’t doing this to help criminals, he said, but to protect their customers. “Because the public is demanding it.” And by the way, the public is demanding it because it “does not want an out-of-control surveillance state.” That’s right, the public is demanding protection from the government.

Which is what the Fourth Amendment’s all about, after all. Protecting our privacy from government intrusion.

This may seem obvious to you. That you have basic privacy interests in your stuff. And just because the government wants to see it, that doesn’t mean they should be able to.

But law enforcement doesn’t see it that way. Nope. Cops and prosecutors and spies and regulators honestly believe they are entitled to it. If evidence of a crime exists, they honest to God think there oughta be a way for them to get it.

That’s the fundamental disconnect that’s driving this debate. Because they’re wrong.

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Let’s set aside the colossally stupid assumption that only good guys will be able to exploit backdoors to encryption. But only after noting that this alone demonstrates an enormous lack of understanding about how data tech works. That the folks who are supposed to be protecting us from malicious hackers want to give those very crooks a way to steal our private data, our bank accounts, our private photos — this alone should be alarming as hell.

Who’s accusing whom of aiding and abetting the bad guys?

But let’s set that aside. Let’s focus on that disconnect. That fundamental misunderstanding of the role of law enforcement, of the Constitution they’re sworn to uphold, and what law enforcement is “entitled” to.

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Here’s the deal: Law enforcement isn’t entitled to a damn thing.

Yes, we’d love for them to be able to get all the evidence they lawfully can. Absolutely. If there’s evidence of a crime, and the government can find it without violating anyone’s rights, then by all means the government should do so. Society wants criminals to be punished for their crimes, and that can’t happen without evidence to prove that they did it.

Society wants that. But it demands that government not violate our rights in the process. There’s nothing in the Constitution granting law enforcement the right to collect evidence. But there’s plenty in there specifically protecting individuals from the government, specifically limiting what the government can do when it tries to gather evidence. Why? Because although catching and punishing the bad guys would be nice, it’s not as important to us as making sure the government doesn’t use its awesome power to do bad things to us.

We’ve balanced it nicely with our Exclusionary Rule. If law enforcement crosses the line, then they’re not allowed to use evidence they got by crossing that line. But they can still use the other stuff they got lawfully. This encourages them to gather all they lawfully can, without any fear of repercussions, and only takes away stuff they shouldn’t have had in the first place. And our courts bend over backward to say evidence was lawfully gathered.

But not everything can be lawfully gathered. It just can’t. Just because it exists, that doesn’t mean the government can see it.

“But private actors can see it!” you hear law enforcement cry. “Where’s the justice in a system that prevents the police from seeing stuff a civilian or a company could see?”

One: You are also civilians. No matter how much you arm yourselves with military gear and dress up like soldiers, police are not the military. You’re us. We’re not “them.”

Two: As Representative Ted Liu pointed out in a strong rebuke to the D.A. at that hearing, “here’s the difference: Apple and Google don’t have coercive power. District attorneys do, the FBI does, the NSA does.”

It’s simple. Private actors aren’t restricted by the Fourth Amendment, because private actors aren’t the government. They can’t throw you in jail. Maybe they can sue you or ding your credit rating, but the government can destroy your life and even take it away. The Constitution tries very hard to limit what the government can do with all that power. And as Rep. Liu concluded, “it’s very simple to draw a privacy balance when it comes to law enforcement and privacy: just follow the damn Constitution.”

So no. You can’t whine and cry that you’re not allowed to see things the rest of us can see. We need to be protected from you. Our founding fathers knew it. The Constitution you’re sworn to uphold exists to protect us from you. From you, not from Google.

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“But what about the children!”

What about them?

“What about a kid who’s in danger of being horribly abused by a bad guy?”

And you have his phone, but not… him?

“Didn’t you hear us? A kid could have been horribly abused!”

That would be sickening and awful, and we’d love it if you caught the guy who did it.

“Well, what if the evidence we need to prove the bad guy did it is encrypted on his phone?”

And you’d know this… without having other evidence?

“For the sake of argument, yes! My God, we won’t be able to punish the man who made this child suffer!”

And this is different from every other case where you can’t find the evidence you need… how?

“We know it exists! Probably!”

And this is different from any other case where you can’t find the evidence you need… how?

“But tech companies can design their products so we can find the evidence! Government should compel them to do that!”

Well, how about private safes and security vaults, should those manufacturers be forced to design inherent flaws so cops can open them easily?

“That’s a great idea! Yes!”

Wait, I didn’t-

“Yes! And lawyers and doctors and priests — we should be able to force them to tell us what the suspect told them! And…”

You’re starting to scare me. This is the kind of government overreach we’re afraid of. Don’t you get it?

“But think of the children!”