In defense of “criminals”

Crime is not a status but an act; there are criminal acts but note well – there are no “criminals.” It is vitally important to recognize that the bulk of crimes actually committed are misdemeanors and are crimes that were not known to English common law. Furthermore, many modern “felonies” really don’t compare to common law felonies in terms of the damage that they do to their alleged “victims,” if any. All of the common law felonies were crimes against persons or property, not crimes of vice or regulatory compliance.

English common law had certain defined felonies (murder, larceny, burglary, rape, robbery, etc.), the commission of which could get the felon potentially executed and thereafter his estate forfeited to the Crown. This concept of forfeiture concept the “deodand” (Latin, that which is to be given to G-d, i.e. the Crown) persists as a recessive gene in our law, justifying in civil forfeiture levies upon goods and real estate today in our drug, gambling and prostitution laws. Today there are cases in my home state of Maryland with catchy names like “State of Maryland v. 156 Gaming Devices”; the cases are technically civil and against the object itself for constituting the proceeds or facilitating means of a drug crime or a gambling crime. Neither drugs nor gambling nor prostitution were felonies, however, in English common law.

Today’s criminal law is engaged primarily in the drug war. It’s hard to examine the basics of criminal procedure without looking at drug searches, drug probable cause, drug seizures, “dropsy” (the jurisprudence of drugs allegedly dropped on the ground by suspects) and the scope of possession versus possession “with intent” (usually a felony even if simple possession is a misdemeanor.) One does see the occasional “real crime” in court though many non-drug crimes don’t get successfully prosecuted. Shoplifting is still a real problem; almost every merchant needs to make allowances for deadweight losses from inventory shrinkage. I recall representing a graduate student from Korea early in my career who was successfully prosecuted for stealing a lot of merchandise out of Nordstrom’s; Nordstrom’s has a high enough mark-up per square foot of floor space to justify high-dollar security and loss prevention measures. It’s hard to feel sympathy for underwear thieves when the underwear cost Nordstrom prices. But most of criminal court deals with petty crimes like shoplifting, the occasional assault, disorderly conduct (i.e. plucking some cop’s last nerve) and perhaps most signficantly drug possession, especially marijuana. It’s not Bonnie and Clyde, but some percentage of the time just “Dumb and Dumber.”

Traffic court in my home state of Maryland is divided into jailable and non-jailable crimes. Non-jailable traffic crimes include the most common violation of the law: exceeding the posted speed limit, which I admit I committed earlier today and probably every judge on the Maryland bench has committed daily throughout her or his career on the bench. The average speed on most roads is illegal; doing 55 per the posted limit on the Baltimore Beltway will often garner a motorist rude gestures and behavior from other motorists much of the time if the weather is decent and traffic is moderate. Jailable offenses in Maryland include driving while suspended (usually due to motorist’s failure to attend a prior court date on a minor matter), driving an uninsured vehicle (very common in hard times when motorists cannot get their insurance premiums paid), driving under the influence/impaired (a real scourge), hit and run and fleeing/eluding a officer. All of these offenses did not exist at common law; they are all the result of either the speed of internal combustion vehicles, the regulatory infrastructure for those vehicles or both, none of which existed at common law.

There are truly outrageous crimes that arguably scream to heaven for vengeance. Predatory sex crimes come to mind, though some non-predatory sex crimes arguably don’t deserve criminal jurisprudence at all (e.g. prostitution, maintaining a bawdy house, consensual sex between adults or near-adults, etc. arguably should be lawful or merely regulated by health or social service authorities, rather than by criminal justice.) Certainly the taking of human life deserves the severest response, especially when neither accident nor legitimate self-defense or reasonable mistake are factors. And professional thieves – not someone stealing bread for his table but someone stealing inventory for profitable resale or pawning – and those who steal non-necessities like up-market underwear deserve little sympathy. But most “crime” involves administrative and regulatory compliance issues, vice, public health regulation or a moment’s obnoxious overreaction; most “crime” is dumb or risky, but not evil or predatory.

When we look at “crimes” rather than at the concept of “criminals” to describe human beings, we are able to humanize more of our fellow citizens who have violate specific parts of the law. This is not to encourage anarchy or disrespect for the law, but to encourage restraint, moderation, proportionality and reasonableness. We have no business pretending that a rapist and some habitual pot-smoker deserve the same label of “criminal” or “felon” as if their crimes were really species of the same genus. I am a proud member of the NORML National Legal Committee, but you don’t have to be a NORML advocate, a bleeding heart or Tommy Chong to think that sexual predation and car theft deserve the highest law enforcement emphasis and marijuana possession the lowest. Some of the same people who claim “the law is the law” self-righteously and the loudest can be found tooling at illegally high rates of speed in their SUVs, talking about how proud they are not to be “criminals” as they put other motorists at illegal risk.

I do not like the word “felon” either because it has gotten so watered down that someone who commits a rape and someone makes a one-rock transfer of crack cocaine bear the same label (for the felony of “distribution of CDS”). It makes it harder to be hard on truly predatory crimes when modern felonies become so obscenely inflated beyond their common law limits. In my home state, a rapist can ask for a pardon after 10 years under gubernatorial pardon regs, but someone convicted of distribution of CDS must wait 20 years; only a crackhead would think that crack is a bigger deal than rape.

In a way, you could say that this is a “conservative” position: let’s not turn every offense against the state or public order into a “felony”, but get it back to where the English common law stood on Independence Day, July 4, 1776, as is the standard stated in Maryland’s Declaration of Rights, Article 5 section (a)(1):

“That the Inhabitants of Maryland are entitled to the Common Law of England, and the trial by Jury, according to the course of that Law, and to the benefit of such of the English statutes as existed on the Fourth day of July, seventeen hundred and seventy-six….”

At a minimum, we should have grades of “felons” and “felonies” – intermediate for dealing CDS and other regulatory offenses and severe for murder, rape and carjacking. The lifetime disenfranchisement of millions of poor people as “felons” for non-predatory crimes – more likely to be unable to hire a good defense attorney to fight and negotiate from a position of strength – has a direct impact on how poor peoples’ needs get heard in Congress and state houses. In Canada, one of the first things that happens to a felon upon release from prison is voter registration: if you are free, you can vote. Not here, though things are improving in Maryland in this regard.

I don’t fear “criminals” at all and I don’t fear most “crime” – in part because I am male and big and look like a terrible target for a mugging, in part because I make a good enough living to live in a suburb with low-moderate crime rates, in part because I drive a high-mileage car with dents and in part because I know that most “crime” is victimless. I respectfully urge that the word “criminal” as a noun be purged from discourse and be replaced with discussions of actual crimes, with an emphasis on those crimes that actually victimize the bodies or property of real human beings, rather than merely the ego and control-freak natures of legislators whose first belch and hiccup are “there ought to be a law.” No, Wilbur, most of the time, there oughtn’t be.

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