Tough on Crime or Cruel and Unusual on Punishment?

What did these folks and the other 80% of Californians miss?
(via The Sun)

I stumbled into a debate with a classmate, who fancies himself a progressive, over some of California’s ballot initiatives. We agreed referendums and initiatives suck; that surprised me because progressives seem to prefer direct democracy over republicanism. There’s a reason California has so much of the former.

Anyway, the initiatives in question were all related to crime and punishment. One was a repeal of the death penalty, one was a softening of the infamously harsh Three Strikes Law, and one was an anti-human trafficking proposition. To my slight surprise, I came out sounding like the bleeding heart leftist on all three.

There was no big debate over the death penalty; I was bemused he voted against repeal, but did not press him on it (after all, what difference would his vote have made?). Rarely is capital punishment the least controversial topic of conversation.

We the Californians decided, back in the ’90s, to avenge the horrible murder-kidnapping of 12-year-old Polly Klaas by getting Tough on Crime™. From now on, we collectively murmured, California would take the no-bullshit route to crime prevention—and to show we were serious, we invoked America’s pastime in naming the law. Three strikes and you’re out. And by out, we meant shut off from society, rotting alone in a cage until you die. It sounds harsh, but we wanted to deter the most serious and abhorrent crimes, like the one that lost us Polly Klaas.

Never mind that the law applies to minor drug offenses (and you can get more than one strike at a time), and puts petty shoplifters away for good. My leftist classmate and a moderate conservative classmate who was listening both protested that, duh, if they don’t want to go to jail, they shouldn’t sell weed (or shoplift, or drive drunk). Sounds a bit like “If she didn’t want to get raped, she shouldn’t have worn that skimpy outfit.” An extreme comparison? Not in the least; in both cases the punishment does not even remotely fit the crime, and the crime may not really be a crime at all. Selling marijuana, like wearing a skimpy outfit, is at worst a behavior that some or most of us frown upon, not something to justify prison time or rape.

Thankfully, California voters overwhelmingly agree and Proposition 36 passed. Not only that, it applies retroactively to anyone in jail who was never convicted of serious, violent crimes.

Prop. 35, the human trafficking initiative, also passed with flying colors, although this time, this was not a sign of cool temperament and reason winning the day. My conservative friend and my progressive friend once again agreed: How the hell can you be against requiring people convicted of human trafficking to register as sex offenders?

First, because I don’t care for the idea of punishing crimes based on the degree of disgust they incite in us. Justice is about equal recompense for harm done, not brutalizing or shaming people we don’t like. Second, because the proposition was not as simple as just adding human traffickers to the list.

It also requires these offenders to register with the state all their email addresses, Internet service providers, screen names and such. It also requires them to inform the police every time they comment on Yelp or blog or troll the latest Paul Krugman column.

My friend protests that he has no sympathy for human traffickers. Neither do I. Really! But why do we inflict this punishment on them and not murderers or vandals? Surely, they are also a detriment to society and monitoring their activities could make us safer. Nevertheless, these people have rights, and if we do not allow them their rights, our law is worthless. I have no strong opinion on how much jail time human traffickers should get—I find it suspect Prop. 35 raised it—but regardless, our society so far is pretty good about not punishing the same crime multiple times.

Perhaps the reason the death penalty issue did not turn into an extended discussion is because there is nothing obviously absurd about either side. I have strong reasons for wanting repeal, but can admit that at least in theory, the punishment fits the crime. We assign the death penalty almost exclusively to those offenders who bring intentional death upon others, and California has not done this since 2006.

The other two laws, however, are cases of tough-for-the-sake-of-it political posturing. Three Strikes, especially before the sensible vote last week, is a feel-good catch phrase signifying an arbitrary law named after a dead kid. Prop. 35 is well intended and sounds good, but it is an assault on speech and privacy rights, both of which belong to even the most hated members of society.

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This entry was posted in California, Elections and Voting and tagged , , , . Bookmark the permalink.

One Response to Tough on Crime or Cruel and Unusual on Punishment?

  1. Jeff says:

    I voted against Proposition 35, because “human trafficking” is such a vague concept. In fact, several years ago, “traffickers” recruited and transported me to California, offered me money and other benefits, and then they exploited my time and labor. This fits the official definition of “human trafficking”, but it also fits “working for the government,” which I do. They need to tighten up the definitions before making it a crime.

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