Let’s Decriminalize The USA
As a white male, I cannot possibly understand what black folks have gone through and are currently going through in this racist country of ours. Because I cannot understand, I can neither sympathize nor empathize, as both of those require understanding. Some writers have a problem with the concept of white allyship, as they feel it’s tantamount to me offering to help them clean up my mess. Out of respect for that position, I will not call myself an ally. The body I currently inhabit is not able to march. 10 years ago, sure, but no longer. So I have been thinking about how I can use my white privilege to add value to the larger conversation. What exactly can I contribute?
I believe that defunding the police is a necessary and important step. We need to reduce the size of the police’s brief, mostly because they are not qualified or trained to do many of the tasks expected of them. They should not be playing amateur psychologist to a fighting couple, or rousting homeless people from sleep, or appearing at assemblies. But there is another part to this equation and that is reducing the amount of work police need to do within their area of expertise.
I do not respect Donald Trump. I think he is a truly awful human being, and possibly an even worse President. However, he recently put forward a thesis which, as distasteful as it is on its face, has truly progressive implications if followed to its logical conclusion. He said that he wanted to slow down testing for COVID-18 because the fewer tests you give, the fewer cases there are. We know this to be false — there will be the same number, just with many fewer diagnosed. However, let us switch now from mishandling pandemics to other failing government functions.
Following Trumpian logic, the best way to handle illegal immigration is not to build a wall, but to eliminate the border. If there is no border, there cannot be any immigrants, and therefore no illegal immigrants. If he wants to lessen the number of people in jail, eliminate some laws.
The idea that too many actions in the USA are criminalized is one that the left and right share. On the left, the point is made that minor infractions are often used to detain or jail BIPOC folx in a manner that is disproportionate to the detaining of white folx for the very same offenses. On the right, there is a thought that an average person can’t get through their day without committing three felonies.
Right now, between county jails, state prisons, and federal prisons, 7% of people (2.3 million)residing in the USA are incarcerated. Not only does the US jail more people than any other country on earth,we also have 4.3% of the world’s population and 22% of its prisoners. The number of incarcerated people has grown by 450% since 1980. There is a general agreement that this level of incarceration isn’t healthy for the USA, and something must be done. There are many competing theses about possible solutions, and to them, I would like to add my own.
The American legal system employs a very elegant classification system to differentiate between two types of crimes: Malum in Se and Malum Prohibitum. Mala in se crimes are easy to understand. They are illegal because they are evil. Genocide, premeditated murder, and planting landmines are all examples of malum in se. Malum prohibitum is much trickier because it relies upon circular reasoning; An action is illegal because it is prohibited and prohibited because it is illegal.
An example that has special resonance right now would be looting. Why is looting illegal? Because it is stealing. Why is stealing illegal? Because we believe in a concept called private property. Why do we believe in private property? Because w have a founding ethos of individualism, where everyone is expected to succeed on their own, and the acquisition of goods is a way to demonstrate that success. While in this case, I might have answered the question, I had to go very far afield to do so, and the answer lacks the moral clarity found in the identification of a malum se crime.
There are now over 4500 Federal crimes, and over half are malum prohibitum. If we eliminated those, as well as crimes against property that do not involve armed robbery, we might start to get somewhere in terms of reducing incarceration rates in the USA.
Remember, the police who have been pepper-spraying peaceful protestors have done so in the name of protecting property. They are serving and protecting the needs of the moneyed class, not the people. There would be no police out on the street if there were no crimes against property. I think if it can’t breathe, listen, feel pain, or get out of the way, it doesn’t deserve legal protection. I know that some of you are going to bring up looting as an example of why this could never work, but I think it is the exception that proves the rule. Trevor Noah has a beautiful rap about the social contract, and how that social contract, — the unspoken one that says we are all in this together as Americans, and we will protect, care for, and listen to each other — has been shattered in the case of African-Americans. Once that bond is gone, once civility is exposed as merely a veneer, why not loot?
The reason I say that this is the exception that proves the rule is that it serves to illuminate the problem. Namely, in the words of my inimitable fiancee, that we are “garbage humans.” When I bring up the idea of ending crimes against property, the counterargument is that without any repercussions, people would just be stealing anything they wanted. In their world, if you passed a street corner with a gorgeous car, you would naturally hotwire it and drive off. I submit that the law is the only part of the society where we not only focus our energies on preventing the worst possible outcome but make everyone live as if that outcome is the most common.
If we apply the same process to grocery store management, an argument could be made that cartons of eggs should not be out on shelves because people could grab them and use them as weapons. Put in a wildlife context, no one should ever go hiking because they might get mauled by a wild animal. Are these outcomes impossible? No. Unlikely? Yes. Does it make sense to use them as social organizing principles? Absolutely not. I understand that many people will retort that I’m just not in reality and that while my theory is fine, it has very little to do with how the world works.
It is here that we return to the issue of garbage humans. We have to be better, both as individuals and as a citizenry. We have to stop seeing the world as a zero-sum game. We have to care about the needs of the community of much as our own. We have to be kinder, more emotionally generous, and listen better. We have to treat others the way we wish to be treated. None of this is news.
What is at stake here is the ability to see people different from us as equal members of society. If we do not cultivate and regain this ability as a country, it will mean the end of the grand experiment we call the United States of America. As we begin the 245th year of our union, I ask you all to follow the words of the great late 20th Century American philosophers Bill S. Preston, Esq., and Ted Theodore Logan and be excellent to each other.