PENAL ENVY

Tougher Minimum Sentences Won't Bring Us The Tranquillity We Crave

In his second volume of Democracy in America (1840), Alexis de
Tocqueville noted that, after violent disturbances, people "become
enamoured with a disorderly love of order." More generally, he
forecasted that individuals would tend increasingly "to sacrifice
their rights to their tranquillity."

In an ideal world, punishing criminals hard is the best way to
minimize crime--as compared to imposing prior controls on everybody.
By increasing the cost of crime, you get less of it. David Friedman,
the well-known economist who teaches law at the University of Santa
Clara, writes: "There have been many statistical studies measuring
the effect on crime rates of changes in either the probability of
apprehension, the punishment, or both; with few exceptions, they show
that increasing expected punishment reduces crime rates" (Law's
Order: What Economics Has to Do with Law and Why it Matters,
Princeton University Press, 2000).

In our actual societies, though, the disorderly love of order is a
dangerous threat. The first problem is, who are the criminals? With
the proliferation of criminal laws over the past few decades, a large
number of so-called "criminals" are guilty of victimless crimes. In
the U.S., says David Kopel of the Independence Institute, "drug
offenders are the majority of federal prisoners, and a large minority
of state prisoners." Lots of "white-collar crimes" are paper crimes,
violating new, state-defined sorts of fraud. In fact, many of today's
crimes are yesterday's liberties. Which man could ever survive an
accusation of sexual crime, whether he is guilty or not? I also
suspect that more and more "criminals" are people who, having made a
youthful error, are forever blocked from going back to an honest life.

As for real criminals, public policy has done every thing to empower
them over peaceful citizens, who have become defenceless and scared
to resist. The paradigmatic case is mace, which was one of the first
weapons to be forbidden (for self-defence against humans) after the
liberticidal 1977 gun control law.

The Toronto Police Service advises, "If involved in a street-type
robbery, don't argue, don't fight and don't use weapons." In the
U.K., decades of crushing self-defence have led to mounting crime and
the introduction of liberticidal means to control it, from ASBOs
(antisocial behaviour orders) issued by policemen, even just on
hearsay, to ID cards.

It is as naive to believe that Canadian cops wouldn't use a higher
age of sexual consent against youths they don't like (say, in the war
on drugs), as it was naive to think that British cops wouldn't use
ASBOs against "crotchety old neighbours, prostitutes, beggars and
mothers who argue with their children" (The Economist, Feb. 5, 2005).

But why not impose minimum mandatory sentences on real, violent
criminals? One problem is that mandatory sentences squeeze the range
between minimum and maximum punishments and may, therefore, reduce
the marginal deterrence for the more serious ones. If the penalty is
the same for stealing a lamb or a sheep, "as well hang for a sheep as
for a lamb," as the old English proverb said. If the punishment for
smuggling guns or tobacco gets as high as for murder, what will the
rational smuggler do when he is caught by a customs cop on an
isolated, dark road? Mandatory sentences could possibly increase crime.

By the way, this sort of reasoning provides a good argument against
the death penalty in the real world. If the maximum punishment for
murder is 25 years in jail, the punishment for, say, smuggling coke
has to be lower. If the higher penalties were increased, you can bet
that the whole scale would slowly creep up.

Mandatory minimum sentences (of which a few are already in the
Criminal Code) will also discourage some criminals from pleading
guilty, or may incite the Crown not to prosecute when there are
attenuating circumstances.

To all this, add the fact that many small-time criminals are
subsidized by social welfare, and by the wall-to-wall welfare state
in the case of aboriginals. And observe how the state is often more
interested in controlling peaceful citizens than in fighting
criminals--except if the latter set their sights on the authorities.

Now, those who want to give still more power to this nice and
benevolent institution, please raise your hands.