Date: Wed, 5 Oct 1994 14:50:07 -0700 (PDT) From: "David J. Edmondson" THE QUILL Queer Individual Liberty Letter, Vol. 1, No. 3, June, 1993 A publication of Gays and Lesbians for Individual Liberty GLIL TO HOST SPEAKER ON DRUG PRICE CONTROLS Effect on AIDS to Be Consdered; "Will Clinton Sign Our Death Warrant?" Drug companies have come under fire for allegedly gouging. Clinton's health-care reforms may include significantly increased regulation and price controls on the development and sale of medical drugs such as those used in the treatment of AIDS and related illnesses. Richard Rue, health-care project director at the Heartland Institute and author of _Why We Spend Too Much on Health Care_, will speak to GLIL on the effects that such policies would have on future research, development, and availability of drugs. The speech will be on Wednesday, June 16, and 7:00 p.m. in lecture hall 102 of the Charles Sumner School, 1201 - 17 St. N.W. (at M St.) In addition to this event, GLIL will continue to have a happy hour at Trumpets, 17th and Q streets, N.W., on the first Tuesday of every month from 6:30 to 8:00 p.m. For more information on any GLIL activities, please call 703-920-4023. CRIMINAL LAW: IS THE CURE WORSE THAN THE ILLNESS? Dave Edmondson Most people have a vague notion of criminal law as a legal mechanism designed to protect us from bad people who want to rape us, break into our homes, and so forth, and to achieve justice when they do. In truth, however, criminal law as understood in the common-law legal tradition has nothing to do with making crime victims whole and has more to do with preserving the sovereignty of the state than with preventing harm to individuals. Moreover, insofar as it even aims to prevent harm to individuals, it largely fails in that aim. Criminal law in the common-law tradition views the offense not as a harm to an individual, but rather as a breach of "the King's peace" or, in other words, the majesty of the state. Legislatures have broad freedom to assign arbitrary and disproportionate punishments, so that Congress may make it a felony to ride a bicycle on the grounds of National Airport (as it has done) and so that Maryland may provide longer prison terms for consensual sodomy than for some forms of sexual assault (as it has done). By contrast, traditional common law does not criminalize simple breach of contract or even most forms of negligent homicide. Moreover, the decision to bring charges lies within the practically limitless discretion of police and prosecutors; the actual victim, if there even is one, has no standing to force a prosecution. For instance, it is all too common for police in cruising areas to make numerous arrests for sodomy solicitation while ignoring fag-bashing. When and if the state prosecutes, the victim is not a party to the proceedings, but merely a "complaining witness." When the criminal prosecution is over, the victim has still not received damages and must bring a separate civil action. By contrast, the private law of tort views the offense as a breach of some duty to a private party; for example, tort law defines negligence as the breach of the duty of care that a reasonable person would have exercised. The person alleging herself to have been wronged may choose to sue; if she so chooses, she must prove both the occurrence of the tort and the amount of damages that she has sustained as a result. In a suit for negligence, for instance, she must prove the four elements of duty, breach, causation, and damages. The common law of tort also seeks to protect defendants from unreasonable results; for instance, a plaintiff who brings in a $1,200 repair estimate for an old car valued at $600 will have a hard time arguing for damages over $600. Thus, doing justice both to the victim and to the defendant is the function of tort law, not of criminal law. What purpose does such a state of affairs serve? Since most politicians are not brazen enough to attempt to justify criminal law as an exercise of raw power for its own sake, and since such a justification would most likely not arouse the passions that criminal law does, one might expect some sort of rationalization for such a system. Commentators on criminal law have advanced several, but none will survive scrutiny. The simplest explanation of the purpose of criminal law, and one with an undeniable emotional appeal, is the idea of retribu tion; that is, that the wrongdoer should get what's coming to him. The problem is that the appeal does not extend beyond emotion. Certainly, there is no law of conservation of well being, whereby doing bad things to the criminal somehow improves the lot of the victim. Tort damages do more to make the victim whole than criminal punishment ever can. Another theory states that we must "warehouse" criminals to prevent them from repeating their crimes. This theory ignores the high incidence of repeat offenses. In other words, it plainly cannot work unless the state imposes life imprisonment without parole, or perhaps the death penalty, for all crimes, no matter how petty. For example, if a rapist receives a certain sentence, the state must free him once he has served his sentence, if not before; once released, of course, he will be free to rape again. Besides, it is less than completely rational to keep people from repeating crimes involving drugs and sodomy by sending them to America's prisons, which are notorious dens of drugs and sodomy. A more sophisticated variant of prevention is rehabilitation, or somehow using prisons to turn criminals into virtuous, produc tive citizens. Unfortunately, there seem to be as many hypotheses as to what makes a person a criminal as there are commentators on the subject. Moreover, far from reforming criminals, criminal punishment in the common-law tradition has generally further brutalized them. Deterrence differs from the last two explanations for criminal law in that its goal is to prevent criminal acts by others rather than by the defendant at bar. The empirical evidence for deter rence is not much stronger than that for prevention or rehabilita tion. England punished pickpockets by hanging until the first half of the nineteenth century. Originally, the hangings were public spectacles designed to deter the audiences from picking pockets. In the eighteenth century, however, the authorities had to make hangings private because the spectators at the public executions had too often fallen prey to pickpockets. In the 1840's, during the debate over the reform of capital punishment, the advocates of hanging suddenly discovered that this form of punishment, origi nally devised as public degradation, was in fact the most humane form of capital punishment. Two more modern examples illustrate the level of effectiveness of deterrence: the Nazi deportation of the Danish police in 1944 and the strike of the Montreal police in 1969. In both cases, while nonviolent property crimes increased, violent crimes did not. Since nonviolent property crimes would seem to be those most susceptible to prevention by private security measures, deterrence through criminal enforcement appears to be redundant. Some suggest still another justification for criminal law in that victims do not have the resources to conduct a prosecution. This justification ignores those legal systems, such as Islamic law, that have traditionally provided only private prosecution and have adopted public prosecution only as a recent Westernization. North Yemen, for instance, did without public prosecution until the 1960's. When advocates of criminal law have exhausted the other rationales, they fall back on the idea of criminal law as a formal pronouncement of society's moral disapproval of certain acts. This rationale does not explain why we need such a formal pronouncement or why it should take the form of criminal punishment. The concept of criminal punishment as moral censure also raises the troubling questions of the definition of society and of the authority of society thus defined to express its morality through criminal punishment. Does society speak only through consensus? If not, what percentage suffices, and do dissenters somehow cease to be society? What gives the majority the right to impose its moral outrage on the minority through brute force? Considered thus, the idea of criminal law as an expression of moral censure is quickly seen as circular. That is, it says only that the mob should have its way quite simply because the mob should have its way. Since our tradition of criminal law completely fails to serve one of its purposes, doing justice for the victims of crimes, and is at best inefficient and more often ineffective at the other, preventing crimes, what remains is the simple assertion of the state's dominance over its subjects. Even non-libertarians should quickly grasp the circularity of maintaining a state for the purpose of upholding the majesty of the state. I believe that inhabitants of a libertarian society could more effectively protect themselves from wrongdoers by relying on such means as self defense and security, which reduce potential criminals' ability to commit crimes in the first place, and private-law remedies, which seek to make victims whole. WHAT IS _THE QUILL_? _The Quill: Queer Individual Liberty Letter_ is the bimonthly newsletter of Gays and Lesbians for Individual Liberty (GLIL). It is intended to include news of the organization, policy essays, and other articles of interest to lesbian, gay, and bisexual libertari ans. We welcome articles and letters to the editor. You may send submissions for the next issue (whose publication date has been moved to September) through August 15 to GLIL, PO Box 65743, Washington DC 20035-5743. If you would like to be added to the mailing list, please write to GLIL at the address given above. If you would prefer to receive _The Quill_ by fax, please so indicate. While we do not currently charge for _The Quill_, we should appreciate a contribu tion to help cover the costs of printing and mailing. ------------------------------------------------------------------------------ Dave Edmondson ghoti@netcom.com, 72020.600@compuserve.com, dave.edmondson@glib.org "Exalted Master, you told us that the world would end yesterday." "My child, it did end yesterday, but you're too sinful to notice."