Because We're Not Angels: Fixing the American Criminal Justice System

If people were angels, there would be no need for law enforcement or a criminal justice system.

If law enforcement and the criminal justice system were staffed by angels, there would be no need for internal or external controls on law enforcement or any need for criminal justice reform.

For those of you who recognize the format, I am playing off of James Madison’s quote about the dilemma surrounding government from The Federalist Papers.

This dilemma was how to design a government that could be effective and yet not become tyrannical.

Today, the United States faces a similar dilemma when it comes to law enforcement and the criminal justice system.

On one hand, confidence in the police is (justifiably) at an all-time low thanks to highly publicized cases of police misconduct, corruption, and brutality. Many Americans, Black Americans in particular, have always had little if any confidence in law enforcement and the broader criminal justice system to protect and serve them or even to treat them fairly (the data sadly backing them up).

On the other hand, in order for a society to function at its most rudimentary level, it needs a system of law enforcement inside its territory to keep basic order and safety. Without a police force of some kind, what you have is a situation where life is nasty, brutish and short. Moreover, everywhere from a single-parent household to casinos need social contracts and rules to function properly.

Alas, people are not angels, and angels do not staff the police or the broader criminal justice system. 

My Biases

Done properly, police and prosecutorial work can be some of the most heroic work done in a society to keep people safe and hold dangerous people accountable.

Done properly.

I am of the opinion that people who commit crimes (especially violent crimes) must be punished, and I am comfortable with what many people would consider exceptionally harsh punishments for certain crimes.

For example, I would favor a mandatory minimum sentence of 10 years in prison for any type of assault or domestic violence and a minimum of 20 years for any type of sexual assault or anyone who commits violence against children, and I am quite at ease with life in prison for any type of murder or any type of sexual violence against children. I would also favor mandatory minimums for certain white-collar crimes, especially wage theft, or at least have them be treated the same as other types of theft.

I am of the opinion that white-collar crime, both in principle and in terms of damage, is no different than so-called blue-collar crime. Stealing is still stealing no matter how you are dressed while doing it.

The fact that the criminal justice system does not treat it more honestly is a sober indictment and more evidence of a two-tiered system in which money and skin color play an unjust role in how a person is treated.

As a principle, I am comfortable with sentencing people to death for certain crimes—mainly murder, treason, all cases of sexual violence (or otherwise extreme violence) against children, and certain cases of sexual assault. I am debating if any types of white-collar crime warrant the death penalty. Let me know what you think in the comments.

But until all systemic biases and errors are removed from the criminal justice system, I still favor a moratorium on capital punishment.

If I think any prison system should be emulated, it should be the Japanese prison system. In Japan, recidivism is quite low; the system breaks inmates down and builds them back up. Plus, from what I can tell, it’s a fair system, unlike the American system, which in many cases acts as a school for crime.

Most importantly, the idea that the “community” can and should hold offenders accountable is frankly quite stupid. What else is lynching besides the community punishing someone outside of the law (often with the law’s approval)? The community in question would be the majority White, and the “offender” more often than not would be an innocent Black man who had the audacity to succeed in life. More importantly, what if the community decides the perpetrator should get away with the crime?

This does not mean I think the criminal justice system is good or even competent as it is. But it is far easier to change policy than it is to fix attitudes.

Confirmed Facts about Public Safety in the United States

It has been established that in the United States, your experience as either a victim or a defendant in the American criminal justice system depends largely on your socioeconomic status, your sexual orientation, your gender, and, most importantly, your race.

Compared to other fully developed countries in Europe, Oceania, and East Asia, the United States has an exceptionally high crime rate, especially murder.

Most victims of murder, aggravated assault, and sexual assault know their attackers. Statistically, men are far likelier to be victims of murder and aggravated assault by other men, though women are statistically quite vulnerable to their male partners for murder and aggravated assault in the context of abusive relationships. Statistically, women make up the vast majority of sexual assault victims, and their (overwhelmingly male) attackers are most likely to be significant others or at least acquaintances.

People of color, especially Black Americans, are disproportionately likely to be victims of violent crimes of all types, along with property crimes.

In general, the most common motives for murder are jealousy around romantic relationships, financial gain, and impulsive rage. In the case of organized crime, a person can be murdered for becoming a liability or disrespecting the wrong person. Look up the case of Bugsy Siegel for a combination of both.

Most cases of aggravated assault (or assault that results in serious bodily injury) are motivated by simple rage and are impulsive (frequently fueled by drugs and alcohol). For a sadly common scenario, one young man attacks another and things get out of hand fast.

Keep in mind that with murder, perpetrators of violent crimes can have a mixture of motives.

Contrary to what true crime podcasts depict, most serial killers are misogynistic opportunists who kill because they find it fun and sexually arousing or are acting out of deep-seated irrational rage; they are not high-IQ men who kill out of a misguided artistic drive. Because these monsters are opportunists, they target people (mostly women) who are already on the margins—think sex workers and homeless people, people who are considered easy targets by the criminal element in general.

This is how serial killers are able to operate for decades at a time. Their targets tend to be people who the police and broader criminal justice system (along with the general public) consider disposable.

As a matter of fact, while there are legitimately clever operators in the world of organized crime who can lead highly complex organizations, plan/execute sophisticated operations, or manipulate systems effectively, your average criminal is not that smart, getting away with things largely on luck, an ineffective, corrupt, or overstretched law enforcement apparatus or at someone else’s direction.

If organized crime is powerful enough to challenge an area’s government, especially when organized crime can de facto directly control territory, then there are other serious problems underlying the situation, something I have written about before.

The Big Picture

Right now, America’s law enforcement apparatus has several overlapping and significant systemic issues. Many police departments are facing crises of staffing and recruiting on top of cultures inside said police departments that endanger the public, especially people of color.

Because of this, there has been a major rise in companies that provide private security, which in many cases are even less regulated than most police departments.

To be clear, private security companies can provide much needed support for major events like sports games, concerts, and conventions, thus taking pressure off of the police. These services can also provide protection for businesses and act as a deterrent to any troublemakers. In addition, if the situation is sufficiently dire, on paper they could replace a problematic police department.

But these companies and services pose several quandaries. Frequently, the personnel are less vetted and trained than are most police departments, which have an acute difficulty with that already. Moreover, these services operate in a fairly gray area when it comes to use of force—never a good idea. Often, the hirees for these private security services are not well paid, which only exacerbates the drawback of personnel being less than qualified.

The other option I have seen floated around is having the community administer justice. In some cases, especially when the legal system is inexcusably lenient or unfair, the community can be an excellent source of justice. Community support is also vital both to help victims of crimes and foster public safety.

But more often, community justice looks like lynching—if it’s not the horror itself. On top of the racist history of community justice in this country, I don’t trust the general public as a rule to be a reliable source of safety.

Because they lacked the administrative capacity, many cities in medieval and early-modern Europe relied on the “hue and cry” system, a system where ordinary citizens acted as the police. As you might expect, this system was woefully inadequate.

It has also been made clear to me that using the American military to administer law and order is an unacceptable option.

But the American criminal justice system as a whole has similar and quite worrying problems. Both county/district attorney’s offices and public defenders offices are severely understaffed. This means that victims of crimes don’t get justice, and offenders in need of representation don’t get the representation every American deserves.

For how many Americans are incarcerated in America, many American prisons have considerable staffing shortages, which ironically hurts inmates the most because that means vital support services for them are even more out of reach than usual.

Proposed Solutions

So given the alternatives and the current situation, the best bad option is to overhaul and fix the American criminal justice system that exists today.

Besides changes to American policing, something I have discussed before, other changes must be made.

For starters, I would support mandatory minimum sentencing for offenders convicted of sex crimes, starting at no less than 20 years in prison. If they ever leave prison, they can live no closer than 50 miles to a metropolitan core.

Of course, this is putting the cart before the horse considering that the overwhelming majority of rapists and sexual predators never face justice or are even caught at all. So it is imperative to elect County/District Attorneys who prioritize these cases, along with slow and painful changes to broader systems to treat these actions as what they are, violent crimes.

In addition, much more attention needs to be paid to white-collar criminals. Because of how lightly these types of criminals are punished when they are caught at all, I would support mandatory minimums for these types of crimes. Ideally, equivalent to what someone not wearing a suit was caught stealing.

I would also support mandatory minimum sentences for those convicted of domestic abuse on both principle and practical concerns. A disproportionate number of the January 6th terrorists(along with other terrorist and extremists) have an extensive history of domestic and sexual violence against women, so putting them behind bars for longer periods of time will keep people safer while acting as a deterrent. Most men who commit these crimes never change, so I don't see any reason to try rehabilitation.

But before any of this is needed, early intervention for kids going down the wrong path is essential. Because they are children, I would support a gentler approach than I do for adult offenders, especially when the crimes are quite minor.

Kids with emotional and academic difficulties need early intervention and intensive instruction. This will require more funding for schools and mental health support systems.

Of course, a question for all of you.

Who do you consider a potential threat without proof?

For me, it’s members of the far left and right, or populists in other words, especially their menfolk.

The recent allegations against Russel Brand being Exhibit A as to why.

I will always consider populists inherently more dangerous than anyone else.

This will be a tough problem just to manage, let alone solve.

Stay frosty, everyone.