And Justice For All

Any discussions about reforming the state of our legal system must necessarily include our system of civil justice. The civil justice system exists not to keep society safe from physical harm, but rather to allow individuals a place for solving disputes that do not rise to the level of criminal behavior, whether they involve private citizens, businesses, or the government. But the fact that civil matters do not usually involve direct or immediate threats to the safety of society does not mean that they are of less importance in maintaining a functioning society. Civil justice concerns deserve to be resolved in just as timely a manner as criminal justice concerns and with the same basic tenets of Common Sense.

Unfortunately, in our legal system today, civil matters often fall to the wayside when it comes to getting their fair day in court. Because our criminal courts and civil courts are combined, and because criminal matters are tantamount to keeping society safe from abhorrent activities, civil matters often get pushed to the end of the line when it comes to getting them resolved in the court system. The result is a multi-year process for resolving civil complaints, driving up the costs for individuals and delaying disposition of the matter at hand. This frustration can lead to individuals taking matters into their own hands, creating the potential for civil matters to turn into criminal matters. This is a cycle that has to come to an end.

Just to be clear, when I refer to “civil justice,” I am talking about things like contract law, property disputes, product liability, family issues, community ordinances, building codes, malpractice, and other activities not specifically covered by misdemeanor or felony criminal codes. These are the kinds of legal issues that ordinary people deal with when they encounter the court system. But because of the structure of our civil court system, individuals that attempt to right a wrong against them are faced with an astounding challenge, both financially and legally. Our civil codes are filled with nuances of procedure that enable lawyers and large, financially secure corporations to draw out the process and essentially bleed an individuals ability to gain justice by driving up costs. This creates an inequity in the system that is supposed to be available to all citizens. Further, the number of questionable legal suits brought into the system by citizens and businesses needlessly clog the courts, creating a backlog too large to get through in a timely manner. Justice should be fair and efficient, or it is hardly just at all.

So what can be done to make our civil justice system more responsive to the needs of society? The first step would be to establish two layers of civil justice: one layer that deals with disputes between individuals only, and another that handles any disputes involving businesses and government. The need for this is simple; individual disputes are often less complicated to resolve, and therefore don’t require all of the accoutrements of a full-blown legal trial. Rather than be held hostage to expensive attorney fees, overbooked court calendars, and endless delays, personal civil disputes could be remanded to binding mediation, similar to what is available in many areas today, but with a few changes.

This type of mediation would be required for any disputes that could result a possible financial reward under a defined dollar amount or to resolve other, non-financial problems. A three-member panel of ordinary citizens who serve in that capacity for a defined length of time, and then are rotated out and replaced (similar to convening a jury pool) would hear disputes. Each party would represent themselves at mediation and agree to be bound by the panel’s decision. Panels could be established based on population numbers so that there would be plenty available to handle disputes in a timely manner. This would allow for all citizens to have access to mediation for minor civil disputes without having to pay high court costs, filing fees, attorney fees, or having to wait for an extended amount of time for redress. Decisions would be final, eliminating endless appeals and allowing people to move on with their lives.

In addition to speeding up the process for resolving minor disputes between individuals, binding, mandatory mediation would result in lower overall costs associated with the legal system, and greater participation of the citizenry in the legal process, furthering each persons understanding of the necessity of involvement with societal needs.

For civil matters involving businesses, government, or for individual disputes with a higher potential financial reward, civil courts should be established that are independent of the criminal court system. This is necessary to increase the speed with which these kinds of disputes can be resolved and thus avoid the high costs associated with these types of trials. Like the criminal court system, civil courts can be established at the state and national levels, housed in the same buildings, and sharing the same procedural guidelines. The state courts would be responsible for solving disputes between parties residing in the same state, while the national courts would work on matters that involve parties from different states. A national set of procedures and rules would govern how the courts would operate.

In order for this type of division to work, national civil codes would have to be enacted, similar in nature to the national criminal code, so that every citizen, business, or government entity would understand what kind of conduct was acceptable and what would likely result in being brought to court. Unlike our current cadre of civil codes, these would not vary from state to state, but would be consistent throughout the country, except in cases where geographical concerns dictated slightly different policies, with similar restrictions regarding what constitutes illegal civil conduct. Further, appropriate guidelines for jury awards should be developed to put an end to outrageous awards that tend to get passed on to the public through higher costs. Finally, any type of pre-trial settlements involving product liability, malpractice, or governmental misbehavior should be made public to prevent the same actions from occurring over and over again. Privately made back room deals should not be allowed, preventing non-disclosure contracts that keep the public from being aware of potential problems resulting from poorly made products or policies.

While it has become commonly accepted that the only way to get someone’s attention is by hitting them in the bank account, civil justice should not be viewed as some sort of lottery pool, whereby individuals can strike it rich by claiming damages or concocting dubious claims. Verifiable economic damages should be shown before awards are handed out. Potential economic damages should be based on statistical averages based on the harm done and the loss of potential economic earnings, if appropriate. Intangible damages should be handled in other ways if possible. More importantly, parties on the losing end of civil trials should be made to rectify their errors by correcting the problems that led to the court action. They should be held accountable for repairing and replacing the faulty products, rewriting poorly thought out policy, or standing by their written contractual agreements.

The final piece of the puzzle concerns the legal profession itself. Rather than act as public servants, lawyers have gotten a negative reputation by reaping in more than they recover for their clients and by elongating the legal processes in order to drive up billable hours. The whole point of having legal representation is so that individuals don’t have to learn all the fine points of law in order to stand up for themselves. Simplifying the codes would go a long way in eliminating this problem, but so would limiting the amount of a winning party’s award that a lawyer could claim. This is not to say that attorneys should work for free, but as an integral part of the justice system, they have a duty to advocate for the individual more than they have a right to get rich.

The integrity of the justice system depends on its opacity and its ability to produce equal justice for all parties involved. It should operate on the least amount of money possible while maintaining its integrity as a bastion of truth and honor. In any democracy, the rule of law is one of the pillars of strength by which that democracy will stand or fall. If society can’t look to its justice system and feel confident that anyone, at anytime, can find recourse within it, then it is a broken system and could lead to eventual mayhem. We are edging ever closer to a system that is jaded and increasingly viewed with suspicion. This is not justice at all.

Is That Really A Crime?

The final element of criminal justice reform rests in ensuring that our legal code is both just and enforceable. Too much has been written into criminal law that endeavors to regulate behavior which has no overriding social need to be regulated. Individual actions that result in no physical or financial harm to others or their property, or that result in no permanent negative societal impact, should therefore not be included in our criminal legal codes. At the same time, actions that are deemed harmful should not be nearly as stratified as they currently are, which has resulted in too many possible ways for excusing or diminishing criminal behavior. Finally, for criminal codes to be effective, they must be regularly and evenly enforced. To that end, I believe that a more simplified legal code is necessary for an efficient criminal justice system to function and better protect us as citizens.

To begin with, it is important to recognize the fact that current legal codes are often infused with religious morality issues that are not equally recognized by all individuals and not evenly applied to all citizens. This almost guarantees that our laws create criminals simply by the fact that they exist as laws. Any national or state legal code should reduce the number of criminal acts to include only those acts that are nearly universally accepted as harmful to others, regardless of religious or personal spiritual beliefs. Such acts would be clearly accepted and recognized by all citizens as just laws enacted to reduce instances of harm to others or society as a whole.

Such acts as have been described in previous essays would include the obvious crimes of murder, rape, robbery, assault, destruction of property, destruction of the environment, fraud, kidnapping, counterfeiting, bribery of public officials, immigration violations, and the willful disregard for the safety and well-being of others. We have laws dealing with all of these actions now, and it is hard to argue that the existence of these laws is anything but just. Still, there is room for reform within these laws that can lead to their being strengthened to better protect society and hopefully reduce the frequency of their being ignored.

Take our laws against murder, for example. It is widely accepted that the action of ending the life of another person is a criminal act in all cases except for self-defense or during the execution of legal military operations. But, in an effort to account for the variety of ways in which a person can end another’s life, we have created laws that include varying degrees of murder, each with different penalties ranging from a death sentence to less than a year of incarceration. This system can be manipulated in such a way as to appear to lessen the severity of the act of murder from one of depravity to one of mere carelessness. Society is not better protected from those who would commit murder by having such divisions in the legal code, but rather the criminals are insulated from the seriousness of their actions.

I use murder as an example to demonstrate a point. Murder, or the ending of another’s life, is usually considered to be the worst of all possible crimes. The horror it brings to the victim and the pain it unleashes onto the victims families is among the hardest to imagine. How then, can the taking of another’s life have different degrees of depravity? To me, it is irrelevant whether a murder is planned in advance, occurs during the commission of another crime, or is the result of completely irresponsible and thoughtless behavior. A life is still extinguished, a family is still left behind, a child may grow up without their parent, or a mother may bury her own child. Murder, unlike accidental death (which can occur through acts of natural disaster, medical complications, or unforeseeable chain reactions), can be avoided simply by not killing someone or by not performing acts that could reasonable lead to someone getting killed. As such, murder laws should be reformed to include any act that causes the death of another person through negligence or by purposeful design. The only exceptions for taking another’s life would be instances of actual self-defense, where your own life, or that of another, is in danger of being taken. Period.

Similarly, the legal codes for rape or sexual battery, serious assault, willful destruction of the environment, and kidnapping, among others, should be rewritten to exclude the various levels of severity, as these crimes reduce the security of society in addition to irreparably harming the victims of those crimes. By eliminating the different levels of criminal severity, society would be sending a message that these kinds of acts are intolerable and would receive the harshest punishments. There would be no wiggle room for the convicted criminal to move away from the consequences of their actions, and could result in less instances of these acts occurring.

Some criminal behavior though, can be stratified, depending on the amount of harm that is actually done. Non-violent criminal acts such robbery, destruction of property, fraud, immigration violations, counterfeiting, and bribery are not all equal in nature and so some classification is in order. Still, these crimes are anti-social by nature, and demand to have their place in any criminal code that is established. And, as they are all serious in nature, in that they affect a persons financial livelihood or society’s stability, they should be limited in their classifications to just a very few divisions, based upon either the value of the financial destruction or the amount of societal upheaval that results in their having been committed. These divisions would determine whether an individual would be tried under the national laws, state laws, or in some cases of minor petty theft or property destruction, at the local level.

Absent from a revised legal code would be any restrictions on how individuals treat their own (non-living) property or their own bodies. This would necessarily include laws that prohibit voluntary use of drugs or alcohol (unless their use results in harm to someone other than the user), laws pertaining to consensual sexual activity between adult individuals, suicide laws, and laws that mandate specific personal safety requirements. These kinds of laws are established not so much in an effort to keep the whole of society safe, but rather to regulate behavior that is morally objectionable to certain portions of society or to save society money by reducing instances of physical harm to the individual. Rather than create established legal codes to prohibit these behaviors, society can reduce their instances through honest educational efforts about the possible harm that can occur to individuals engaging in these behaviors. Further, certain legal waivers and restrictions can be created that will release society from incurring the costs that may occur when these behaviors lead to individual harm. Citizens wishing to engage in these acts would have to take full responsibility for any harmful individual effects that may result due to their participation in these activities. Society should also establish stiffer than normal penalties if citizens engaged in possibly self-harming actions commit of an actual crime.

All other acts not established as national or state crimes would necessarily fall into the category of misdemeanor, civil violations, or non-criminal, and could be amended by future generations.

Such a common sense approach to creating laws would have several benefits to society: reduction of confusing criminal code and streamlining existing violations; better enforceability of the crimes that remain; reduced costs for enforcement by redefining what constitutes criminal behavior; and a consensus regarding criminal behavior versus non-criminal behavior.

The actual revision of the legal codes can’t possibly be discussed completely in just one essay, but I think that the basic tenets for reform are here. Common Sense should be the hand that guides the reform movement when making the actual changes. And it is important to remember that we are only discussing criminal legal code in this essay. Other legal codes have to exist to regulate civil behavior of corporations and individuals that provide a basis for non-criminal public conduct in order to ensure that the needs of society are met, but these too should be limited in scope. Reformation of the civil justice system will be the topic of my next essay.

Making Crime Pay

An important yet often neglected aspect of our criminal justice system is the effectiveness of our punishment system. Any punishment meted out by our legal system must contain three elements: it must appropriately punish the convicted person, it must act as a deterrent to others, and it must protect society from repeated criminal acts. Without these elements present, we end up with a system that arrests, convicts, then locks up and ignores for a period of time, then releases back to the population a person with no significant change in behavior or prospects for reform. This revolving door system enforces the idea that punishment for a crime is not serious enough to avoid committing the crime, especially if the pay off for the crime is lucrative enough for the criminal.

Human nature being what it is, it is inevitable that some people will engage in criminal acts. The reasons that drive an individual to crime are many and varied, and I won’t pretend that all circumstances are the same for all criminal offenders. That said, I am prepared to make a sweeping generalization in an effort to categorize criminal behavior in order to better explain how we can more effectively use our criminal punishment system to help deter would-be criminals and to help protect the needs of society.

In the simplest terms, criminal behavior can be partitioned in this way: petty crimes that create a public nuisance that do not directly harm other individuals, but have the potential to harm others or the shared elements of society, and are committed thoughtlessly but not maliciously; serious crimes that are intended to or do cause harm to another person, their property, or the property of society committed out of personal vengeance or for financial gain, whether premeditated or not; and depraved acts against society that cause irreparable personal injury or death, harm the structure and safety of society on a local or national level, or that erode the basic principles of democracy and freedom for personal power and gain, whether premeditated or not. Using these definitions, it becomes easier to establish appropriate punishments for criminal behavior.

The Constitution recognizes two basic forms of punishment in Article VIII of the Bill of Rights, but does so in a way as to restrain society from over-punishing convicted individuals.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

This short sentence has be redefined many times over the years as society’s ideals have shifted and as the legal code has become more complex, and I think that the authors of that document meant to leave this area open to some interpretation by future generations. They seemed to recognize the fact that what may be considered excessive or cruel in their day might not be applicable to future citizens. In the mid and late 1700’s, it was not unheard of for convicted prisoners to be impoverished, drawn and quartered, burned to death, or other such punishment in accord for their crimes. They realized that these types of punishments, when meted out by society, were not so much a deterrent to crime, but rather a reflection of the crimes back onto society. That sentence tried to establish the concept that effective punishment was one that was commensurate to the crime and that anything that moved beyond that threshold would be unbecoming of a society that established itself on the doctrines of life, liberty, and the pursuit of happiness.

But I further believe that the Founding Fathers did not include this Article in the Bill of Rights in an effort to over-protect those people who do commit criminal acts. Indeed, the individual rights of life, liberty, and the pursuit of happiness are directly affected by the guaranty of society’s right to safety, and those who stray beyond the laws must be held accountable in order that others can pursue their happiness without fear of harm. Common Sense requires nothing less than the administration of effective punishment for criminal offenders that enables the offender to either be rehabilitated and returned to society as a productive, contributing member, or to be removed from society completely so as to never threaten the security and stability of others again or drain the financial resources of public funds.

If you look at our punishment system today, you will notice a high rate of recidivism for criminal acts coupled with a low rate of rehabilitation and an even lower rate of societal protection. You will notice large disparities in the application of punishments that dilute the desired effects of keeping the worst criminals out of society while reforming those who can be redirected back into the mainstream. And you will see a system that is expensively wasteful, unmindful of rehabilitation, skewed in favor of the convicted criminal’s comforts and desires and less concerned about reducing crime. Criminal punishment in our politically correct world today is not so much about protecting society and reducing crime as it is about creating a self-perpetuating money trough and feel good atmosphere among criminals while leaving innocent citizens to fend for themselves.

One of the most basic needs of human beings is the need to be accepted by others, so surely the lack of acceptance brings about some kind of negative feeling. Conversely, the conveyance of acceptance allows the receiver to bask in the approval of his peers and promotes similar behavior that allowed for such praise to be given. If this is true, then one of the most valuable tools in preventing recurring criminal behavior is easily, and inexpensively, available to society. Plainly said, it is time to return the concept of public shame to our criminal punishment system. Psychologists will decry this type of punishment at least as cruel, because they are enamored in their beliefs that individual psyche’s are more frail that even the thinnest crystal glass. On the contrary, if properly applied, bestowing shame on individuals for petty level crimes could have a great impact on the incidence of occurrence.

Currently, punishments for petty level crimes often take the form of monetary fines, community service and/or some kind of “counseling.” These punishments have not proven to be very effective in reducing these kinds of crimes simply because there is no longer any sort of negative stigma associated with committing these petty level acts. Paying a fine doesn’t mean much to people who can afford a few hundred dollars whenever they choose to behave poorly. Community service can be too easily turned into something that the offender would normally be doing in the course of their daily life, and counseling is usually just another way for the court system to levy fines without assuring that behavior has been effectively changed. Past societies understood the need to infuse elements of public scorn into their punishments as a way to affect an individuals desire not to repeat that action. These punishments could be limited in scope and combined with elements of monetary fines and verifiable, but free, courses aimed at identifying the offending behavior and learning how to reduce it. At the conclusion, the offender would be received back into the good graces of the community without prejudice and the incident forgotten.

Serious crimes require more serious punishments including a period of probation, incarceration, and restitution to their victims. While in prison, convicts should be required to work at an occupation, so that they have a skill when they return to society. Convicts should be required to take courses on societal expectations and behavior modification. They should be required to give public addresses regarding their crimes, and upon their release should experience a similar shunning procedure by their community. Upon completion of their sentence, they too should be publicly welcomed back into the community or established into another. Because these crimes are more serious in nature than petty crimes, a convicted individual who recommits should have their sentences increased proportionally, including, eventually, their permanent removal from society.

The worst of the criminal offenders are those who cause irreparable personal injury or death, harm the structure and safety of society on a local or national level, or erode the basic principles of democracy and freedom for personal power and gain. Not all of these acts are of a physically violent nature, but still demonstrate a lack of societal involvement to the point of indifference, enabling the offender to feel no remorse and thus be likely to commit similar acts in the future. For these individuals, a lengthy incarceration is probably the most non-cruel method of punishment. The seriousness of their crimes should guarantee that they be removed from the public for some time. Along with many of the techniques described above, upon their potential release, these offenders should be required to register their crimes with a national registry that could track their locations and occupations throughout the country.

For some criminals though, lengthy prison sentences often enable convicted individuals to continue to inflict misery on society. These people commit the worst crimes of humanity and once committed, cannot be made up for. Why then should we as a society, as taxpayers, continue efforts to house and feed and educate these monsters among us? A more effective punishment for these criminals, and a more palatable one for society, would be banishment. Better than the death penalty for it doesn’t kill in the name of justice. Better than life in prison because it doesn’t drain the tax coffers. Better for society in that we know the criminal is out of our midst forever. Our national justice system could establish a penal colony of sorts on one of our many bombed out Pacific Atolls. Construct simple shelters, provide a few transports a year of basic supplies, and then forget about them. This final and total act of non-acceptance might be enough to make a few individuals think twice before plunging off the deep end.

The effects of adapting some of these changes into the punishment could result in the reduction of criminal behavior both through stronger social deterrents and more standard, equally applied punishments. The cost savings could be substantial through the decreased need for short term and permanent incarceration and their associated expenses. The increased safety to society procured through the permanent removal of the most villainous of criminals is nothing less than society deserves. And they reflect society’s desire not to inflict excessive, cruel, or unusual punishments on offenders or itself.

The last step in reforming the criminal justice system involves the revision of the legal code itself. Those thoughts in my next essay.