Sentencing reform vs. Minority Report


Shocked, shocked I am to see good intentions go off the rails

You know, it seems like only yesterday a particularly odd combination of Americans was aligned on at least one point…the surveillance state launched post-9/11 was out of control. Right wing wackos and left wing wackos alike looked on in horror as America yawned when huge telecoms rolled over to Uncle Sam’s demands for the connect-the-dots bonanza of metadata.

Yet I’m seeing strange signs of support for an increased surveillance state if that’s what it takes to feel safe in today’s American landscape.

It seems like only yesterday that Tom Cruise helped turn Philip K. Dick’s 1956 prophetic Minority Report into a cautionary tale for our own generation.

Yet we’ve got “serious candidates” and their supporters seriously suggesting national mental health databases, as though the tradition of doctor/patient confidentiality is just a social nicety. The probable cause that your privacy should be subject to government scrutiny is that you tell a doctor a thing and the doctor is required to share it with the government, which, effectively would co-opt mental health workers as uncompensated government agents. More proximal, probable cause would be that a person sought mental health care.

We’ve got other “serious people” advocating for Red Flag laws. That sounds good, right? If the perceived probability of a person doing a thing is perceived to be high enough, there should be laws that people with a low probability deficiency should have certain rights abridged because of something they are perceived as probably likely to do.

Oh, it certainly sounds good at first pass. John Doe is a convicted domestic abuser. John just had a temporary order of protection placed on him by the courts. John sure as hell should not, according to the prevailing wisdom,  be allowed to exercise an existing right we don’t like that’s still on the books because of what we believe he probably might do.

Remember, it’s only a slippery slope when you see the other side going down it. In this case, as a wise, mature society, we would surely keep the power conceded to this simple limit…that thought policing would only be used to stop the acquisition of deadly items of deadliness. There’s no way it could possibly slip into a poorly cast Minority Report knock-off.

It’s not that I think the intentions are bad here. I just think the logic is screwy. But I’m a solutions guy, or at least I try to be. I don’t like bitching without having at least some hair-brained notion to propose as an improvement to the existing hair-brained notions.

I think the problem is that we’re trying to penalize people before things happen. But here’s the deal…we already have a way to penalize people for things they have already done.

John Doe gives the police probable cause for an arrest. It’s determined that he should be charged with 1st degree generic violent crime. The DA sees a win. They don’t plea. They take John to court. The jury agrees with the state. The judge passes down the sentence within the bounds of the governing statute. It’s all very formulaic.

Well, we have the right to move freely about the country, do we not? Then the judge sentences John to a period of time wherein John no longer has that right. Infringement of that right is part of the package deal.

John is sentenced to a period of time wherein he is not entitled to unbridled free speech, insofar as John may not just wear whatever he damned well pleases. It’s an infringed right at which we don’t bat an eye.

John is sentenced to a period of time where he’s not even allowed to use a proper steak knife on his gruel much less open carry his AR-15.  That just makes sense, even, I hope, to the most ardent of gun rights supporters.

John is sentenced to a period of time where he has no expectation of security in his own possessions insofar as his personal effects might be searched at any time. If the guards find and seize his pruno, he has no right of compensation for his lost property.

Why, it’s almost like there’s a whole slate of rights we widely perceive as perfectly okay to strip away so long as the stripping is a matter of sentencing.

But what happens when John has paid his dues to society? Not so fast. Society decides what those dues are, and their payment doesn’t always stop when John gets the cab ride away from the prison. Sometimes John doesn’t get to vote. Mind you, that’s controversial enough that many are fighting to see John keep that right.

If John were convicted of hacking, perhaps John would lose his right to various types of personal possessions and the enjoyment thereof, probably computerized personal possessions.

If John were convicted of embezzlement, we might not mind so much if professional societies and licensing bodies decide to discriminate against him by barring him from certain professional career tracks, like accountancy.

If John were accused of the monstrous crime of having non-consensual sexual activity with a 12 year old (because rape is hard to spell), no sooner than he finishes his thirty day suspended sentence he loses his right to privacy insofar as he has to tell everyone nearby that he had a thing for 12-year olds that one time.

Isn’t that puzzling? There are some rights that are considered sacrosanct. Take the freedom of religion, for instance. We seem to generally agree that the state shouldn’t be permitted to impose a government-decreed religion on a prisoner, or even on a parolee. There’s still a certain degree of commerce that prisoners may engage in, insofar as they might still direct their outside financial affairs from inside. There’s a degree to which they retain the right to free speech and association insofar as they remain free to write letters to just about any organization with whom they care to correspond. They retain rights to counsel, and to not be subjected to cruel and unusual punishments (at least in theory).

Yet there’s that whole litany of rights that go right out the window as a given. Losing those rights is just part of getting sentenced. John loses those rights when he’s in. He loses others when he’s out.

He keeps some. He loses some.

Why, it’s almost like it’s arbitrary and capricious somehow. We’ve collectively, silently, tacitly accepted that, with cause, the state can infringe on these rights, but not those rights.

So here’s a thought. Stop trying to change gun laws by telling people what they can’t do because of what they might do. That way lies the infringing of rights of millions upon millions of Americans who have not given the state probable cause to take those rights away because of the monstrous actions of fewer than 1/10% of them. Besides, those kinds of measures take place from the top down and present one monolithic target for any opposition to oppose.

Instead, try going for sentencing reform. Pour over the state and federal statutes that define criminal activities and their statutory punishments. Where gun ownership appears germane, slap on an infringement as part of the sentence. Non-violently steal a Snickers bar because you’re hungry? Probably don’t have your right to own a gun stripped. Beat your girlfriend to a pulp? $10958109 in fines, up to 15 years in jail, 30 years barred from the ownership, use, or possession of a firearm, any part thereof, or ammunition. It’s clean, simple, direct, and the kind of thing that fits easily into a statute.

There. Now the anti-gun violence crowd (which, really, isn’t that everyone?) has not one gun control idea to support or oppose, but 51+ jurisdictions and as many criminal statutes as are on the books to go after.

You’re welcome.