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LETíS TAKE THE CAPITAL [BUT NOT THE PUNISHMENT] OUT OF CAPITAL PUNISHMENT

September 26, 1999
 Dr. John Young

A reporter on National Public Radio was driving to work, and he saw an older child hurting a younger one. He stopped, rolled down his car window and told the older boy to stop. What the older boy did, instead, in response, was to punch the younger boy in the face. The reporter got out of his car and asked the older boy what he thought he was doing. The boyís response was: "Itís a free country."

Americans have come to believe that they are free to do whatever they want, whatever they can get away with. We have romanticized crime and are desensitizing ourselves. Day after day, most of us watch, read and listen to both fictional and factual dramas about crime and the pursuit, and occasional punishment, of criminals. Criminals have often become the famous, sometimes even the heroes of our culture. Social liberals, like most of us, have fairly often treated law enforcement as the enemy. We have acted periodically as if the victims of crime had brought these criminal violations upon themselves, and occasionally we have lifted criminals up as models of liberation and courage.

Criminality has regularly been excused as the almost inevitable products of child abuse and neglect, poverty, racism, institutional injustice, and economic inequality. This psycho-babel and romantic nonsense miss a central fact about crime and criminals. Most of the people suffering from child abuse and neglect, poverty, racism, institutional injustice, and economic inequality choose throughout their lives NOT to act criminally, and these honest and innocent members of the neglected and impoverished classes are most often the victims of crime. So, the cultural context may help to explain, but it does not excuse criminal behavior.

A few years ago, I visited in the course of a single week two Unitarian Universalist mothers, whose only sons, are criminals. Each young man had a lot of potential and was popular with his school mates, and later, with his adult friends. Each got into drugs, and, then, was sucked up into the vortex of crime. The African-American man is middle-aged now, in and out of prison, in and out of addiction, loved by his family, but, essentially, caught in a periodic need to be violent with the world. The European-American is younger and was sitting in jail waiting to be convicted of trying to carry several pounds of marijuana back to another state. He had made fun of his housemates who had regular jobs, when there was all this money to be made with drugs. Neither man is evil incarnate. Both are human beings with talents, skills, and virtues, who made some anti-social choices and have some bad habits. In each case, the law enforcement officers involved may have also made some bad choices; however, they were mostly trying to do their complicated jobs. Their jobs are work that most of us would NOT want and could not do as well as they are done by the average law enforcement officer. In the initial incident with the African-American man, the officers were told that he was trying to kill himself, and in disarming him, an officer was killed, and he was convicted for that crime. In the other manís then pending case, the officers were looking for drugs, and he was carrying drugs. I suffered with those two mothers and their families, who were seeing their sonsí lives ruined. Criminals, too, are people, and when we know them, we, almost inevitably, suffer with them as well as from them.

Deep in our hearts, most of us know that we have been close to criminality at some moment in our lives. We wonder what would have happened if we had been arrested when we were using drugs, driving under the influence, padding our taxes, or misusing company funds. We wonder what would have happened if we had followed that impulse to steal, to strike out at another person, to force sex on someone who did not want it, to lie in a legal interchange, to use a gun when we were angry at the world, to betray the secrets of our government. The potential for criminality resides in every human heart, and many people have been, at least a little, over the edge a few times. But most of us have been lucky, and we have pulled ourselves back from the brink, and have chosen safer, wiser and more legal ways of life.

A Unitarian Universalist friend of mine, Bob Bacon, defends death row inmates in their appeals. He is a passionate opponent of the death penalty, and I have been persuaded by his arguments. Bob readily admits that most of these people have done serious, violent criminal acts, and he believes that, in most cases, they should be imprisoned for most or all of their lifetimes. He believes that they should be imprisoned both as justified punishment for homicides and because they are a continuing danger to the public.

Capital punishment is unwise public policy because: 1. it continues the human error that killing human beings is justifiable. So, capital punishment helps to perpetuate the violence that it is trying to overcome, 2. We are our brotherís keeper, and we need to "keep" even the worst among us, not kill them. Otherwise, we will continue to get the sevenfold vengeance that Yahweh proclaimed against those who would kill the killer, Cain, 3. it costs society more to execute violent criminals than it does to imprison them for their lifetimes, because our judicial system properly demands that such criminals shall have full legal recourse before execution.

However, to take the capital out of capital punishment in no way is meant to imply that I oppose punishment, nor that I think it unnecessary to isolate the worst among us, not to exclude that minority that cannot or will not live at peace in civil society. There are thousands of human beings who deserve and need to be isolated from society. Violent, anti-social and criminal behavior needs to be condemned and deserves to be punished. The trick is, in William Gilbertís wonderful song in The MIKADO: "My object all sublime I shall achieve in timeóto let the punishment fit the crime, the punishment fit the crime."

In our obsession with freedom as entitlements, and in our fantasies, which turn criminals into heroes and embrace anti-social behavior as freedom, we have perverted the 8th Amendment to the US Constitution. It states that "cruel and unusual punishment shall not be inflicted." We have perverted this into a vague sense that punishment itself is inappropriate and unjust. Yes, criminal behavior is deviant; so, is severe punishment, in its minority status, thus, cruel and unusual in a literal sense. We do hope that punishment remains unusual because crime remains unusual, and it is clear that punishment will always be on the cruel end of the kind/cruel continuum. However, I believe that we must become much more creative and ingenious in our punishments. We must make our punishments much more varied to make the punishments fit the crimes. We must more effectively isolate those that need to be isolated while doing so in ways that minimize the costs to the society and maximize the justifiable punishment to those who perpetuate evil and who do act criminally. The Roman poet, Virgil, said in the 1st century b.c: "Had I 100 tongues, a 100 mouths, a voice of iron and a chest of brass, I could not tell all the forms of crime, not could I name all the types of punishment."

What are the facts about crime in the United States? According to the most current Crime in America available in the Jacksonville Library [which provides data through 1997] compiled by the FBI and published by the Dept. of Justice, overall crime went down 10% between 1993 and 1997. 93% of that crime was some act of theft, 8% were assaults, 7/10ths of 1% were rapes, and 1/10th of 1% were murders. During those 5 years, violent crime decreased by 18%, rapes by 13%, and murders decreased by 28%. The South is the highest crime region of the country, but Jacksonville has less crime than many comparable American cities. More than 2/3s of murders are committed with guns. Florida has the 4th highest rate of bias crimes: 60% of such hate crimes are because of race, 14% because of sexual orientation, 11% because of ethnicity, and 15% because of religion.

The Florida Times Union reported on June 4, 99: that prison time in Florida has nearly tripled, primarily because of the new truth in sentencing law which requires those incarcerated to serve 85% of their sentence and being harder on repeat offenders and criminals who use guns. Public Radio reported this Tuesday that it now costs from $35,000. to $75,000. to imprison an American for one year, as much as twice the most expensive private university. A legislative leader commented that those in jail serve longer, but, overtime, that it should decrease the number going to prison.

The River City News section of the February 25, 99, Times Union reported that in our churchís area, Arlington, violent crime decreased 13% and property crime by 3% however murders doubled to 10. Similar results were reflected elsewhere in Jacksonville. Community policing and neighborhood involvement were credited in helping crime generally to decline.

Perhaps the most important fact about crime is that: a very small proportion of offenders commit a very large proportion of total criminal offences:7% of criminals committed 2/3s of all violent crimes, and 85% of all robberies are committed by 10% of robbers. [Newsweek 9/13/93, p. 12].

It is predominantly young males in their teens and twenties that commit crime, and it is predominantly young males that are the victims of crime. Persons under 20 are 10 times more likely to be victims than are people over 65. Men are twice as likely as women to be victims of violence, even though almost all domestic violence and rape is committed against women. In 80% of violent crimes, the criminal and victim are of the same race, and most often they know one another. African-Americans are 50% more likely to be victims than are European-Americans. It is also true that about 50% of violent crimes and perhaps two thirds of property crimes go unreported, and that only about ľ of reported crimes are solved.

About half the people in American prisons are there because of a violent crime. Another fourth are there because of property crimes, and the remaining fourth are there because of drug offenses. Almost half of the people incarcerated do not end up back in prison. Most criminals are supervised at home on probation and stand a good chance of not committing further offenses.

This brings me to what I believe would be more effective responses to crime. I have four primary proposals, but let me start this brief summary with three wise quotations: John Locke in On Education, published in 1693: " Good and evil, reward and punishment, are the only motives to a rational creature; these are the spur and reins whereby all mankind are set to work, and guided." Frederich Nietzsche, in Human Al Too Human, published in 1878: "The broad effects which can be obtained by punishment in man and beast are the increase of fear, the sharpening of the sense of cunning, the mastery of the desires; so it is that punishment tames man, but does not make him better." And finally, Mark Twain, in The Gorky Incident, published in 1906: "Laws are sand, customs are rock. Laws can be evaded and punishment escaped, but an openly transgressed custom brings sure punishment."

My first and the most effective deterrent to crime is to nurture children, particularly boys, so that they do not become criminals in the first place. In our poverty ghettos, particularly, but also in our society in general, we are nurturing criminals. Our first priority needs to be to give male children better role models, real alternatives and strong support for law-abiding behavior. Boys need to learn not to act on impulse. They need to know that violence is wrong, and that stealing is stupid, and they need to see and know from the behavior of adults in their lives, particularly the men in their lives, that good behavior is rewarded and that bad behavior will be effectively punished. Mondayís Time Union lifestyle section had a lead article on Michael Gurianís new book, The Good Son. He argues that parents need to be home with their young children, to have a dependable family and friendship support structure and to develop brains that are linked to their emotions. Spending time with TV and computer games need to be cut way down. Males need to be effectively involved, particularly with adolescents, and to model the kind of behavior that they want the young people to practice. As many African-American leaders have argued. We need to take the glamour out of serving jail time: prisons with no television, no privileges, no drugs, no inmate gangs. As African-American Mac Arthur grant winner Stanley Crouch said: "If a teenager is arrested for murder, serves 50 years without parole, the criminal occupation of our cities can be broken. You are not our brothers when you kill."

Second, we need to lock up and keep locked up the relatively small minority of uncontrollably violent people and career criminals. That 7% of criminals who do 2/3s of all violent crime, and those 10% of robbers who commit 85% of all robberies. Three strikes laws and longer sentencing laws may effectively help with this population. There is little evidence that many of these characters can be rehabilitated, and I would propose spending as little money on them as possible. They should get long, hard time, no play, no benefits. They have not earned anything but a hard subsistence from their society. They should work in prisonóhard, even dangerous work, to pay their prison bills.

Third, I would propose that we decriminalize all narcotics. I personally believe that drugs are harmful to the body and to the spirit, and a waste of money, but I also believe that our society is caught in incredible hypocrisy in holding some drugs up as miracle cures and our proudest cultural achievements, and alcohol consumption still as the essence of adult sophistication in our society, while arresting other people for using narcotics that millions of other Americans are also using. The September 9th, TIMES UNION, reported that 70% of all illegal drug users hold full-time jobs. I would suggest making it illegal for people under 18 to possess or use: cigarettes, alcohol, drugs, guns, and other weapons. Make it a felony for anyone to sell them or to give them these things, except under extremely controlled circumstances, and let adults ruin themselves, if they so choose. However, make adults pay for their choices. Donít make the rest of us pay for their health insurance, hospitalization, car insurance, etc. If people drive under the influence, take their cars and driving privileges away for good. And take all the profit out of drugs by letting the free market grow and manufacture them openly. Take all the glamour out of drugs by making them legal, taxed to the hilt [like alcohol and tobacco now], and let people know the facts. Our hypocrisy has meant that the facts are questioned because we seem to be, as Hannah Arendt said about the hypocriteís crime, "bearing false witness against ourselves."

Fourth, emphasize restorative justice. Make the punishment fit the crime. Spend most of our justice resources on changing the behavior of young men before, or at the onset, of criminal behavior. Help young addicts break their new habits before they are decades long life-styles. Make young criminals pay back and put themselves under the watchful eyes of their victims. If some one robs cars, take away his driving license for a long time, seize his cars. If some one steals money, make it hard for him to possess any wealth, except directly by his hard work, and make him keep paying his victim back for a long time. There is no reason that many non-violent, non-repeat offenders need to be incarcerated in prisons, but they do deserve to be punished, and they should be working hard to pay back their victims and to pay back society for their failure to live by the rules. In the future, some of the violent may be caught before they are born, or breed another generation through genetic engineering. Some of the violent may be transformed to non-violence by regular, required chemical treatment or effective re-education. Some of the violent can be disciplined into self-control by their families, their communities, and the clear penalties of the law.

As Twain reminded us, the living customs of a community are much stronger than the laws. Our inner cities, corporate boardrooms, legislative offices, and even this congregation needs to make its customs clear and enforce them as communities. Then, the laws can remain a last resort to be used to control the tiny anti-social criminal minority. That is what community policing really means: policing more by the community through the practice of clear customs, than forced by law enforcement. However, it does also mean working with the police, not against them, when law enforcement is necessary.

There will remain a minority of thousands of individuals who need to be isolated, who need to be institutionalized, who deserve to be imprisoned, and their imprisonment should be no fun, and continuous hard work. It should cost the society as little as possible, and their lives should be bleak and hard, as the movie FARGO reminded us is the usual reality for criminals and for their victims. We need to remember that most of the victims have been as or more oppressed, mistreated and disadvantaged as any criminal, and they choose to continue to live life honestly and non-violently. There is nothing romantic about crime; it should not be a "free" country for people who want to live by violent impulses or anti-social tendencies, for people who wonít play by the rules. Punishment and isolation are the ways to do justice to such people and to the society in which they are choosing not to be partners. Letís take the capital but not the punishment out of capital punishment.

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