My object all sublime

I shall achieve in time—

To let the punishment fit the crime¾

The punishment fit the crime.

From the comic opera The Mikado

W. S. Gilbert, 1885

Over the past years I’ve developed some strong attitudes concerning the evolution of the justice system in this country.  Those of you who follow this column regularly may question why my personal bias on this subject has found its way into an article ostensibly devoted to the subject of money.  It’s a fair complaint, to which I can only say: Read on and decide for yourself whether the two subjects are perhaps more related than you might have first imagined.

Here near the end of the first decade of this twenty-first century the United States conducts a unique criminal justice system.  Thanks to the “War on Drugs,” prison cells are filled with non-violent drug users.  At the same time large numbers of violent felons avoid incarceration after their offenses are negotiated down to lesser offenses¾this, as prisons throughout the nation operate in excess of 100 percent capacity.  Even those sentenced to death for heinous murders remain on hold up to a quarter century while the court system processes countless appeals.  And all the while our country’s leaders vow to make criminal justice “fair” while we “get tough on crime.”

Does any of this make sense?  I’m afraid so, though in a perverse way.  Never ignore that crime is big business, and not just as Al Capone would have understood.  To the people who make criminal justice their occupation, fighting crime means spending money.  The constant refrain from this group is that only by a constant infusion of money can lawlessness be combated.  And the group is huge¾lawyers, court employees, police, prison guards, contractors that build prisons, alarm system companies, the parole system, psychologists and psychiatrists, drug treatment hospitals¾the list is endless.

As a matter of comparison, be aware that a small mid-western community experienced a rat infestation a century ago.  The local town Council, in its wisdom, enacted a rat-removal ordinance offering to pay 25 cents for each rat-tail delivered to the city office.  As expected, within a short time many people operated rat farms with the tails harvested for profit.  And this is precisely what our criminal justice system now is¾a giant rat-tail farm.

Only a country as wealthy as ours can support such a system.  A poorer nation must handle crime as reality requires: summary courts, abbreviated appeals, minimally equipped and staffed prisons, and an inmate population that pays for its keep by actual “hard labor”—in short, criminals dealt with as the undesirable nuisance to society they are.

We, on the other hand, maintain a labyrinth in which the criminal constitutes a valuable asset, and where the meting out of justice and protection of the citizen ceases to be a primary goal.  The law-breaker is peripheral to all this, of course, as influential political and economic groups vie for the benefits.  In my view, the system operates primarily to distribute spoils, with little concern for its effect on crime.  Under these circumstances it is clear why law enforcement agencies and legislative bodies assume the stances they do.  As no real action can be taken to address problems¾let alone resolve them¾public officials simply placate the public by faking it.  Embarrassed by crime, legislatures regularly increase the severity of punishment.  At the same time, disturbed by the administration of the process, the appellate courts seek to reinforce civil rights by tightening evidentiary rules.  We are clearly making the worst of both worlds.

One other part of the problem is that, as a society, we are undecided as to who the prisons shall house, and for what purpose.  This institutionalized schizophrenia is nowhere near resolution and contributes to a massive increase in inmate population.  Of even greater significance is the polarizing effect on the law-enforcement community.  Only a courageous governor will dare resist the influence of a powerful prison-guard union.  The ability of such groups to lobby aggressively is something with which every aspiring office-seeker must reckon.  It is no longer a matter of the tail wagging the dog¾in reality the dog and the tail have changed places.  It is painfully clear that prisons now exist more to provide employment and benefits than to house criminals.

How shall things be resolved?  In all likelihood there will be no resolution until the criminal problem in America ceases to be viewed from the customary standpoint of punishment, deterrence, rehabilitation, and warehousing—all approaches that require additional money.  Only when we as a society begin to make elimination of criminality the primary goal will there be a pragmatic approach to the problem.  Exactly what this means in practical terms is open to dispute.  There is the risk, of course, of creating the sort of structure that operated during the waning years in the Soviet Union.  At that time novelist and historian Aleksandr Solzhenitsyn described Soviet justice as a garbage disposal system judged exclusively by its efficiency.  However without embracing at least a portion of this concept, all we will see is a continuation of business as usual.

In the final analysis, we as a civilized community must learn to distinguish between persons involved in self-destructive activities that we will tolerate, and felons to be dealt with harshly.  Once we make this distinction, the latter should then be treated as suggested by the eighteenth century King of Prussia, Frederick II:  “For infamous fellows we shall want infamous punishments.”