Wednesday, March 2, 2016

The Illogic of Sex Offender Registries and Preventive Detention Continues, With a Technocrat Twist

NOTE: While looking through my old essays, I found another 15 that struck me as particularly interesting. Some may seem a bit dated, as they discuss current events during the period 2008 to 2010, but the principles they discuss are still relevant.

I don't know which old article to cite first. Should I cite "The Limits of "Scientific" Management", "The Limits of Technocracy", "The Limits of Econometrics", "The Inherent Disappointment of Authoritarianism" and "The Right Way" on the impossibility of predicting human behavior? Or "Sex Offender Registry" on the foolishness of trying to release offenders who are still dangerous? Both seem to fit this article on Florida's new computer system intended to predict which juvenile delinquents will offend again.

Let me start by making clear my beliefs on crime and punishment. First, I am not a proponent of "lock 'em up and throw away the key." That sort of overreaction wastes resources and leaves in jail many who could safely be released. My position is that punishment must be practical, fulfilling the first goal of government, protecting all citizens from harm to their person or property.("Symmetry and Asymmetry in Government", "A True Conservative Platform", "A Rational Approach to Punishment", "The Ends Justify the Means?", "Fair or Functional?", "Not Completely One Sided", "Motives Unimportant", "Sunday Morning Talking Heads") Sometimes this does mean executing an individual who will never live peacefully with others.("Compassionate Execution", "The Death Penalty") But most of the time, this means incarceration until such a time as the offender is discouraged from offending again. In my view, that is the entire purpose of jail, protection. However, if someone can show that rehabilitation, or education, or some other program will both save more than it costs, and move prisoners out of the offender category sooner, I would be happy to consider it. But, those goals are still secondary to the goal of protecting citizens, which is the whole purpose of punishment.

However, having said I am a pragmatist in terms of punishment, I must say, given modern times, pragmatism leads one to adopt a policy not too different from the throw away the key school, for a few reasons. First, punishment once carried a stigma, and, as several noted ("Civilization and the Fear of Death"), that stigma made punishment more effective, allowing us to deter crime with ever lesser penalties. But, in recent years, the stigma has disappeared, and thus we need to rely on punishment alone, as the shame is absent. ("Shame and Behavior", "Our Rude Behavior", "Social Controls") Second, thanks to a combination of prison crowding1 and judges and parole boards which often seem far too lenient, as well as prison guidelines which grant far too much "good behavior" credit, prisoners serve only a fraction of their sentences, making it essential to sentence them to several times the desired punishment2.

Given my "law and order" position, I am sure many would expect that I would endorse preventive detention, sex offender registries, and even this recent juvenile delinquent prediction system. It certainly fits with the left-wing caricature of my beliefs, and, sadly, the beliefs of many on the right. However, I find all of them troubling, for a number of reasons.

Let us start with the registry, as that is the least controversial, and makes the best model for the rest. The idea is simple, sex offenders tend to offend again, so let us notify their neighbors that they are present, to make it more difficult. It sounds like a good idea, but it is really a combination of unsubstantiated beliefs, extra-legal punishment and, mostly, reactions to a broken system.

First, there is the assertion sex offenders never reform, so they must be tracked for life. This is simply absurd. Since "sex offenders" include 19 year olds with 15 year old girlfriends, for example, it seems bizarre to treat every "sex offender" as if he were a serial rapist or pedophile. There clearly are those who are likely to offend forever, but if they are, then keep them in jail, protect us, don't send them out in the world with a sign around their neck. But there are others who offended, did their time, and are unlikely to offend again. There is no reason to mark them for life because they lacked restraint3, exercised bad judgment, or otherwise committed a crime which they are unlikely to repeat. 

Which brings me to my second point, extra-legal punishment. I am a consistent conservative, unlike some. While I am happy to punish harshly those convicted, I also believe those not convicted, or having completed punishment, deserve to be accorded full rights4. However, sex offender registries attempt to do just the opposite, sentencing offenders to a lifetime of punishment, beyond what the court decreed5. If we want a lifetime of punishment, then we must sentence to that. We must not apply sentences beyond what the court handed down, no matter how justified we may think they are. Punishment of individuals is the province of the courts, not the legislature.

Which brings me to my final point, one we already touched on. All these solutions are simply ways to work around a defective system, that lets prisoners out too early, meaning they are far too likely to offend again. If we think sex offenders are going to offend again, then they should stay in jail, not go on a list, while they continue to commit crimes. We must not create extra-legal punishments and other makeshifts to fix these problems, we must address the problems themselves. To do otherwise is simply to layer new problems on old. ("Inescapable Logic", "The Cycle of Compassion", "Recipe For Disaster", "The Endless Cycle of Intervention", "Bad Economics Part 18", "The Irrationality of Government Redistribution") And that is the main reason I oppose such solutions.

Which brings me to "preventive detention". I oppose this, obviously, for all the same reasons I oppose sex offender registries. If a person is likely to offend again, then keep them in jail. Similarly, we should not jail those not convicted. And finally, if there are people the current system releases too early, then fix the system, don't circumvent it.

But preventive detention has three other problems. First, much of it relies on using mental health laws, and I have made clear in "Mental Illness" and "Finding What You are Looking For" that I am ardently opposed to involuntary commitment, for a number of reasons. Second, it is often used not to imprison past offenders once more, but to jail suspects who have never been convicted, which is clearly improper. Third, and most troubling, these sort of laws, unlike the blanket punishment of registries, try to distinguish between criminals and non-criminals, based upon the ability of "experts" to predict human behavior.

Which is my main problem with the current solution. With computers or without, we cannot reliably predict humans and the actions. I do not care where our technology goes in the future, human volition will always be unpredictable. We may be able to anticipate group behavior in general;, or make general rules about human actions, but we will never be able to predict what specific action a specific individual will take.

And that is my problem here. We are basically jailing juveniles, or otherwise punishing them, based on predictions about what they might do. That is wrong. We can only punish based on finished actions. To do otherwise is to try to prevent crime, which I have discussed before. ("The Inherent Disappointment of Authoritarianism", "Utopianism and Disaster", "Life Is Not Fair - And Trying To Make It So Makes Things Worse")The only possible justification for such an action introduces the concept of stopping one for his own good, or working for the "greater good" of society, which eliminates the idea of individual rights. In either case, the outcome is predictably bad. ("How the Government Corrupts Relationships",  "Deadly Cynicism", "The Citizen Dichotomy", "In A Nutshell", "Cognitive Dissonance Part 2", "The Right Way", "The Danger Inherent in Banning "Bad Ideas"", "Contradictory World Views" )

It would be easy to go on, but I think I have made my point. We cannot punish what has not happened, and we cannot reliably prevent crimes. Our only proper response is to punish crimes which have happened and hope that serves to deter others. But, even then, deterrence is secondary, punishment is intended only to punish the wrongdoers. And for those reasons, this new system is simply wrong. 
  
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1. In part this stems from a "soft on crime" lobby in many cities, which combines with NIMBY types to prevent new jails. But, even with new jails, our use of so much space on drug offenses still impedes our ability to imprison other offenders for long enough terms.("Drug Legalization", "Required Waste") I leave it o readers to decide whether that calls for reconsidering drug laws, or building even more prisons. My position is made clear in the posts cited.

2. This sentence inflation would be an interesting topic for another post. It is a depressing endless cycle. ("The Cycle of Compassion") As sentences grow, so does the lenient treatment and the good behavior credits, leading to a need for even more harsh sentences. Soon, if this continues, traffic offenses will carry triple life sentences, but that will be reduced to an afternoon in custody.

3. Dogma says all rape is a crime of violence, but with the inclusion of date rape and the extension of "no means no" up to the very moment of the final act, it is absurd to argue that. Thanks to modern views of rape, it is quite easy for lack of control (or in some cases buyer's remorse) to land someone in jail. I do not say it is the norm, but we have extended the crime so far, we cannot treat every rape as if it were a violent assault upon a stranger. Not to mention strict liability statutory rape, which allows no defense, even if the victim lied about her age. (I fully expect angry responses from this. First see "Opposing a General Principle With a Single Example" and "Anecdotes and Extreme Examples", to avoid making a faulty argument.)

4. I am hesitant to even deprive felons of the right to vote or own guns. If they are safe enough to release, then they should be accorded full rights. This does not apply to parole or probation, but once they have served all their time, I think they should be, legally, full citizens once again. There simply is no logic to depriving them of rights if they are considered safe enough to live free among us.

5. Some would argue the jury and judge know about the registry and so implicitly sentence to the registry. But since offenders convicted before the registry laws still go on the registry, that does not always apply. In addition, juries are not allowed to waive the registry penalty, making it effectively a mandatory sentence, a phenomenon with which I disagree for several reasons. (I may write about that later.)

6. This same logic makes me reluctant to enforce certain criminal statutes generally accepted, such as drunk driving. Technically, the laws require negligent driving, but drunkenness is assumed to prove negligence. In other words, the person is arrested for simply being drunk, the logic being that drunkenness makes injury of others likely. In short, it attempts to prevent possible harm. And thus I am hesitant to embrace such laws. But that is a topic for another time.

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POSTSCRIPT

No, my hand still isn't working, my compulsion to write simply got the better of me, so this was typed very slowly, with my left hand (and right index finger). Don't expect a lot more soon, as it is a very slow, tiring way to type, especially as I am used to typing as fast as I think, which is not possible at the moment.

POSTSCRIPT II

I gather this system is being imposed on juveniles already part of some "program", but such programs are themselves wrong. Either the child is a criminal and should be in jail, or is not and should be free. We cannot have a third "semi-criminal" state. I am reluctant to allow parole and probation for the same reasons. A free society cannot exist with multiple types of citizens ( "Symmetry and Asymmetry in Government"). 

Originally posted in Random Notes on 2010/04/15.

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