August 9, 2007
Legal Department
Evil Lawmaking: Free Punishment
About a month ago, Gideon at a public defender posted a poll for his fellow criminal defense lawyers to pick the "most evil legal principle". Being lawyers, Gideon and his readers are concerned with real legal principles, like harmless error and reasonable suspicion. I'm more concerned with the principles used by legislatures when creating new criminal laws.
One of the aspects of law making that seems...well, not evil exactly, but certainly suspicious, is when a criminal law specifies a punishment that don't cost the government anything to implement.
Throwing someone in jail costs a lot of money, maybe $25,000 per year, so when lawmakers specify a prison sentence for a particular crime, they're saying it's worth our money to punish the criminal and keep him off the streets. I tend to assume they really believe an act is worthy of punishment when they're willing to put their money where their mouth is.
On the other hand, many states also punish felons by taking away their right to vote. I understand that it's not unusual for a first-time offender to receive no prison time for a minor felony, but still lose the right to vote. In other words, we're supposed to believe they're bad enough to no longer deserve one of the key rights of citizenship, but not so bad that we should actually commit any resources to their punishment.
That seems...insincere.
The same rules apply to gun ownership: Felons aren't allowed to own guns. Again, they're apparently too dangerous to own guns, but not so dangerous that they can't be allowed to roam freely among us.
Another problem with free punishment is that since it costs nothing, there's no reason to stop. Criminals who lose their rights usually lose them forever. If you rob a liquor store when you're 19, you still won't be able to vote or own a gun when you're a 50-year old grandparent.
(Actually, there are ways to get relief, but it's not automatic, and politicians have been know to close these "loopholes" from time to time.)
Another example of a free punishment is suspending someone's driver's license. To the person who loses their driving privileges, it's a disruptive life change, but to the government that does it to them, it's just a database entry and a form letter. So any time politicians want to "get tough" on drunk drivers or parking ticket scofflaws they just tack on a license suspension or increase one that's already there, because they pay no cost for doing so.
It's not that there aren't good reasons for taking away the licenses of drunk drivers and keeping violent felons from owning guns. However, as long as doing so doesn't cost anything, there's going to be a temptation to punish too much, just because we can.
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