Your Turn in the Pokey

Douglas French
Oct. 16, 2012

Proponents of liberty argue over what parts of the economy or society government should not touch. Government should get out the education business, stay out of health care, and even leave roads and infrastructure to the private sector.

But when it comes to criminal justice, even many libertarians think government should supply the police and court system. And truly, government controls the criminal justice system. The results are tragic.

The government determines who is a criminal and who is not. The rate of violent crime has fallen, but some commentators guess that each of us commits three felonies a day. Mothers, fathers and grandmothers are being locked away for decades because they bought too much Sudafed in too short a period of time.

For instance, Diane Avera of Meridian Mississippi a 45-year-old grandmother must serve a year in jail unless she wins her appeal.

Diane was arrested and sentenced to jail in Alabama for buying cold medicine because authorities believed she was going to use it to make methamphetamine.

Being needlessly snared in the nation's drug war has been a nightmare for Ms. Avera, a woman who does personal care for the sick, disabled, and elderly. "I keep thinking I'm going to wake up, but I never do."

This wasn't against the law until the second Bush administration made it so.

Richard Nixon's "War on Drugs" kicked off in 1971, and four decades later, America is the world's most prolific jailer. There are 2.3 million Americans behind bars, the result of a trillion tax dollars spent and 45 million drug arrests made. The results: plenty of drug use, plenty of drugs, and a criminal justice system dependent on an increasing number of lawbreakers to pay salaries and benefits.

And their results are predictable.

Public safety is no longer the issue. The incentive at city hall is to lock up nonviolent offenders to make arrest quotas. Catching violent criminals is too time-consuming and costly. What has grown is the criminal justice industrial complex: a huge law enforcement and judicial system leviathan that feeds on an ever increasing crop of petty laws and legislation.

What's worse is that in the information age, criminal justice has become a spectator sport. The public can watch real cops in action on reality TV or live courtroom drama on cable. Hollywood can barely compete with footage of real people being snared in America's criminal justice dragnet. Society's squeaky clean can sit back, relax and sneer in judgment at their neighbors who can't quite seem to play by society's ever-changing rules.

In our small city, a biweekly paper called The Jailbird is being sold around town. Yes, for a buck, the reader can ogle mug shots of local people who have been arrested in the surrounding three counties. "Drunk Drivers — Drug Pushers — Deadbeat Dads" it shouts from the tippy-top of the cover.

For $58, you can even have The Jailbird sent to your home. After all, as the back cover asks, "Who do you know in this week's copy of The Jailbird?" You wouldn't want to miss it if a neighbor of co-worker made an appearance.

With everyone tripping over laws they can't see, it's just a matter of time before we all take a turn in the pokey. For instance, if you are stopped for a having a few too many and driving home (or walking home, for that matter), guess what? Not only will you likely make the local paper, but now, at least in our small Southern town, there is paper (all 16 pages of it) devoted to providing visual proof that the state is tough on crime.

So what kind of heinous crimes are represented on the front page of "the Bird" Year 1,Issue 9? Possession of methamphetamine, possession of cocaine, forgery, possession of oxycodone, shoplifting. Not exactly John Dillinger-level stuff.

Inside, it's more of the same: writing bad checks, bail jumping, DUI, running a red light, failure to pay child support, commercial gambling, no driver's license, no car insurance, speeding, possession of marijuana, public intoxication, carrying false ID, violation of unemployment compensation law, sale of a short-barreled gun, possession of illegal ammunition and hunting doves over bait.

Whew, it's a relief to have these hardened criminals off the streets.

In numerous places, the Bird cautions us that "Suspects pictured are innocent until proven guilty." We're told this on both the "Hotties & Hunks" page and the "Crazy Captions" page, where the Bird prints what it calls "funny arrest photos" and includes clever captions. For instance, a picture of a bald gentlemen with a particularly menacing look is provided the caption "Moe and Curly called, they said you could come pick up your stuff on the front doorstep next Monday…."

Or "Pepito's pork tamales with habanero sauce, the day after…" is the caption under the picture of a serious looking young Hispanic man biting his lip.

Despite the disclaimer, in the court of public opinion, these citizens have already been convicted, served up to be humiliated by their sanctimonious neighbors and the town's bluenoses.

Sure, a few folks pictured in the Bird are accused of violent offenses. But most are not. In fact most are accused of things that wouldn't be a crime in a free society. This only makes sense. Half the inmates in federal prisons are there for drug offenses. In state prisons, which have a much higher inmate population, over 20% of prisoners are serving time for drug offenses.

Laissez Faire Club author Lysander Spooner wrote a wonderful piece called "Vices Are Not Crimes" in 1875. Spooner pointed out that vices are acts in which someone hurts himself, while crimes constitute harming another person.

If there is no criminal intent, there can be no crime. In the case of vices, "the very essence of crime — that is, the design to injure the person or property of another — is wanting," explains Spooner.

"For a government to declare a vice to be a crime," Spooner wrote, "and to punish it as such, is an attempt to falsify the very nature of things." But for its own purposes, the state has turned nature on its head to feed its criminal justice apparatus. And sadly, ordinary people whose only crime was to make a transaction with another consenting adult rot in jail as tribute to the system.

The old saying among judges is, "Hang 'em high so the voters remember you on Election Day." Tough, hard-nosed judges continue to be elected around the country, enforcing draconian three strikes laws and the like, enacted by legislators pandering to a busybody citizenry that believes that laws can make them safe and absolve them of any responsibility for their own well-being.

As the U.S. economy continues to be regulated and inflated into oblivion, breaking bad may be the only way to put food on the table. A frightening prospect, with the police state lurking around every corner. When the state controls criminal justice, it considers all of us criminals.

Just a few weeks ago, the FBI and the Joint Terrorism Task Force arrest three young people in Seattle for now reason on than that they are self described anarchists. They have not been formally accused of any crimes. They have been held in solitary confinement and treated as terrorists — again without any evidence. One of them, Leah-Lynn Plante, made a video that you should watch to get a sense of the new criminal class.

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Douglas E. French is senior editor of the Laissez Faire Club. He received his master's degree under the direction of Murray N. Rothbard at the University of Nevada, Las Vegas, after many years in the business of banking. He is the author of two books, Early Speculative Bubbles and Increases in the Supply of Money, the first major empirical study of the relationship between early bubbles and the money supply, and Walk Away, a monograph assessing the philosophy and morality of strategic default. He is founder and editor of LibertyWatch magazine. Write him.