CRIME AND PUNISHMENT: In my all-time favorite sci-fi show, Star Trek, the bad guys would sometimes be sent off to "30 years in a rehabilitation colony." Even in the Sixties, when the show was new, it seemed like an uneasy compromise between our need to punish villains and the hope that "anti-social" behavior would, in the sci-fi future, be cured. Once rehabilitated, was there some reason for keeping those bad guys hanging around the colony? Or did it just take 30 years for the pills to work?
In the decade after Star Trek went off the air, the Vietnamese government applied some of its futuristic techniques on the conquered population of the south. Those infected by the defeated regime were sent to "re-education camps," there to learn how to become good Marxist-Leninist class warriors. Adult education is never easy, and many died in the attempt. Next door, in Cambodia, a sizeable portion of the population had to be slaughtered as a lesson to the remainder.
The subject of crime, and what to do about it, inspire endless amounts of nonsense -- and have done so for at least a century, possibly since the French Revolution found virtue in terror. (It is probably not a coincidence that the Cambodian butchers learned their particular brand of Marxism in Paris.) We look to rational principles and social conditions, abusive childhoods and deterrent effects, but these grandiose ideas always leave us in a muddle, and for good reason.
Crime has nothing to do with logic, sociology, or psychology. It's a moral judgment that a transgression merits punishment. Because justice is of a piece with morality, it can only derive its authority from custom and tradition. Similarly, the form of punishment dictated by a crime can only be justified by custom and tradition. Attempts to "rationalize" either crime or punishment -- by medicalizing criminal behavior, for example -- will invariably lead to injustice. It will weaken the authority of the community to punish transgressors, and shroud the courtroom in a moral fog.
Law bows to precedent. The first attempt to gather precedents into a coherent whole was the Code of Hammurabi -- and it makes instructive reading. A huge number of offenses merited death. Distinctions were made between classes: the penalty for killing a bad architect was death, for example, but killing the architect's slave called for a fine. The code never attempts to justify these distinctions. For the Babylonians, it was a self-evident truth that men are not created equal.
Inequality before the law violates a foundational principle of Anglo-Saxon justice, and appears shocking to present-day Americans. Yet it wasn't long ago that juries in the South refused to condemn white men for the murder of blacks, even black women. In 1963, for example, a rich young white Marylander, Billy Zantzinger, bludgeoned a 51-year-old black woman to death for no particular reason, and received six months' incarceration for the crime. The event was memorialized by Bob Dylan:
In the court of honor, the judge pounded his gavel
To show that all's equal and that the courts are on the level . . .
And handed down strongly, for penalty and repentance,
William Zanzinger with a six-month sentence.
On the opposite side of the ledger, those who talk about OJ Simpson (and their name is legion) are convinced that he got away with murdering his wife because he's black.
Equality is an ideal. It is impossible to attain it in any perfect or utopian sense -- true of every ideal. Justice, rather, lies in the constant and unyielding struggle towards equality. Citizens must be judged according to the facts and the law, not by their race, or status, or wealth. That is our custom. Institutions, organizations, and individuals keep a zealous watch against violations.
Recently, the MSM has been fussing about the number of prisoners in the US, and the disproportionate number of blacks in the prison population. The implication of the first statistic, of course, is that we are brutes and barbarians, scarcely better than Hammurabi. "Criminologists and legal scholars in other industrialized nations say they are mystified and appalled by the number and length of American prison sentences," complains the NYT.
But what is the right number of prisoners for a country? What is the standard? Most of those "other industrialized nations" are European, and largely subscribe to the Star Trek model of rehabilitative justice. When people break the law, Europeans believe it's a question of jobs and therapy rather than punishment. In addition, much European crime gets committed by non-European immigrants, who for political reasons tend to receive light sentences or simply be left alone and unprosecuted.
None of this is customary for any European country, and should be seen as part of an attempt, by Europe's elites, to establish a broad range of new customs based on rationalistic and hedonistic principles. I don't think rules of behavior can be plucked from the brain: but no matter. European scholars are perfectly free to feel "mystified and appalled" over our prisoner population -- Americans can wonder about Europe's honor killers and girl kidnappers roaming free -- their way is theirs, and ours, which at least holds true to our customs, is ours. No absolute standard exists, even in "industrialized" countries.
The second statistic implies that we are racists who systematically persecute black Americans. But that is true only if black Americans have been imprisoned unjustly, and no evidence is offered to support that claim. Parallel situations can easily be found. There is a huge preponderance of Italian-Americans in the mafia, for example, but nobody suggests that the FBI should go after Swedish-Americans for the sake of ethnic proportionality. The majority of France's prison population is Muslim, even though Muslims make up no more than 15 percent of the overall population. But they happen to overachieve in crime.
If our growing prison population, with its preponderance of blacks, is the result of barbaric or racist ideologies creeping into American law, then the crime rate should stay flat or move higher. If people get condemned for reasons other than crime, criminality should prosper. In fact, the US crime rate has declined steeply over the last two decades, coincidental with the rise in the prison population. Whatever those mystified Europeans may think, the length of our prison sentences have helped sustain the the peaceable way of life of law-abiding American citizens.
Blogger Bill Stuntz (Via Instapundit) analyzes sentencing practices in states under Republican and Democratic control, and finds them indistinguishable. Long prison sentences are a rare instance on nonpartisan consensus. Then Stuntz proceeds to a bit of speculation:
No doubt one might draw many lessons from this sad story. Here's mine: Criminal justice works badly when the voters whose preferences govern the system are not the voters who feel the effects of crime and punishment most directly. Over the last thirty-five years, our justice system has been governed primarily by the votes of suburban and small-town whites. But crime and punishment alike are heavily concentrated in poor city neighborhoods, and especially in black neighborhoods. Democracy works best when those making the relevant choices bear the cost of those choices. The politics of crime in the United States doesn't meet that standard: choices are made by some, and costs are borne by others. No wonder those costs are so staggeringly high.
Again, Stuntz offers no evidence in support of his theory. I live near the District of Columbia, which for 30 years has been governed by black Americans. It has no white suburbs to accommodate, no small-town whites demanding hard time for darker-skinned inner-city criminals. Yet the prison population from the District is just as large, and just as disproportionately black, as that of the rest of the country.
Let me offer a couple of final observations.
Crime ruptures the moral fabric of the community. It must be accounted for. Suppose the authorities had captured the Virginia Tech killer alive, and "rehabilitated" him into becoming gentle and St. Francis-like. From the perspective of justice, this would have changed nothing about the situation. The murders could not be uncommitted, the snuffed-out lives of 32 innocents would still cry out for an accounting. However harmless the killer became, he deserved to be punished under the customs and precedents of my own state of Virginia.
It may be, too, that some groups or subgroups tolerate far more violence than is customary in the larger community. But neither morality nor the law can make allowances for such groups without disfiguring, and possibly destroying, the ideal of equality before the law. The consequences of embracing groups as subjects of justice would be fatal for individual freedom. In effect, we would be returned to the Code of Hammurabi -- in which a noble's life was literally worth three times that of a peasant -- and to the days of Billy Zantzinger and the lonesome death of Hattie Carroll.
11:02:05 AM 
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