Restitution is inherently self-limiting in how much the perpetrator is processed by the system. Beyond what is necessary to guarantee that the harm or wrong is repaired, there is no need for a perpetrator to relinquish any of his rights. A thief need not be caged to pay back $100 plus damages; all he needs to do is pay it back. There is no need for the currently huge prison industry nor the degradation of society that accompanies it.
To accomplish this, legal scholar Randy Barnett advocates sweeping away the entire criminal justice system. In its place, he proposes to establish a broadened civil-court system that adjudicates civil liabilities and damages. Many critics object to the pure restitution model; for example, they claim restitution cannot adequately redress crimes like murder. Whatever the merits of such objections, it is clear that restitution can address the great majority of harms and wrongs. Moreover, if an action required the presence of an actual victim whose person or property had been injured, then most current laws would fall off the books. Prisons would be spacious.5
Small Steps toward Justice
Fortunately, smaller steps than outright revolution can offer relief to many people suffering from the injustice of our legal and penal systems. These steps include
A sunset provision attached to all new or amended laws. This is a clause that provides an expiration date for a law unless action is taken to renew it. Today most laws are in effect indefinitely.
The elimination of civil-contempt imprisonments, which most commonly occur in family courts; men who are unable to pay court ordered spousal or child support are imprisoned for “contempt” without a trial or appeal process, and for whatever term is set by a judge. This converts the penal system into a debtor’s prison. The America legal system is distinguished from most other Western ones in permitting such imprisonment.
The elimination of a double standard under the law for those involved in law enforcement. For example, the elimination of personal immunity for the willful wrongdoing of police officers on duty and for district attorneys who pursue blatantly flimsy cases. Such immunity skews incentives toward brutality and overprosecution.
Reinstatement of the mens rea safeguard. Mens rea means there was no “guilty mind” when an act occurred and, so, there was no crime although civil liability may well exist. For example, if a man bumps into another car without noticing it, he should not be charged with leaving the scene of an accident. He is civilly liable but not criminal so. Currently, there is a concerted attack on mens rea so that people are deemed criminally “guilty” despite their intent.6
Establishment of an “ignorance-of-the-law” defense. This differs from mens rea. For example, if a man knows he hits a car and leaves the scene, an “ignorance” defense would be “I didn’t know doing so was illegal.” It would be an invalid defense because everyone in our society is reasonably deemed to know that the destruction of property is wrong. But it is currently impossible for anyone — including the police — to know the content of every law. The principle that “ignorance of the law is no excuse” comes from 17th-century philosopher Thomas Hobbes who addressed willful ignorance of laws that were well-known or a matter of common sense. Thus the claim “I didn’t know rape was wrong” is an invalid defense while “I didn’t know buying an orchid was wrong” would probably be valid even to Hobbes.
The elimination of criminal charges for all nonviolent “wrongdoing” toward law-enforcement agents. Such charges include obstruction of justice, lying to the police, and peacefully resisting arrest.
The decriminalization of all drugs
A return to the traditional rules of statutory interpretation by which criminal statutes are narrowly construed. Today, not merely criminal laws but seemingly unrelated ones, such as the Commerce Act, are being stretched to include a wide range of so-called violators as criminals.
The list could be much longer. But the implementation of any one of the foregoing and simple protections of justice could save misery or ruination for many thousands of innocent people.
Conclusions
Why are such reforms unlikely to occur?
Legislators have a strong incentive to call constantly for more laws and stricter enforcement. Until a large enough voter or protest base has been victimized by the law and demands change, politicians are rewarded for continuing that call. Being “hard” on crime is not merely a vote winner but also gives the state apparatus, on which the hands of legislators rest, much greater social control. Meanwhile, the asset forfeiture that often accompanies arrests can turn a tidy profit, not merely for the state but especially for the police departments that absorb the assets.
Moreover, hordes of unionized people now have well-paying, plush-benefited jobs in the legal and penal systems. If 90 percent of arrests and imprisonments were eliminated then 90 percent of those jobs might disappear.
And so you and your children are likely to continue living under the constant threat of arrest by an arbitrary power against whom you either have no defense or a defense that could be ruinous. You will continue to live in a police state.
1. Robert Barnes, “Supreme Court is asked about jails’ blanket strip-search policies,” Washington Post, September 12, 2011.
2.”Florence v. Board of Chosen Freeholders of the County of Burlington,” SCOTUS blog.
3.”Too many laws, too many prisoners,” The Economist, July 22, 2010.
4. [4] Bill McClellan, “Wrestler is still grappling with an old arrest,”StLtoday.com, September 18, 2011.
5. Randy E. Barnett, “Restitution: A New Paradigm of Criminal Justice,” Ethics volume 87, number 4 (1977).
6. Gary Fields and John R. Emshwiller, “As Federal Crime List Grows, Threshold of Guilt Declines,” WSJ.com, September 27, 2011.
