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The Basics of It

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A couple of days ago, I took note of the unchecked spending our new federal budget provides for the continued explosive growth of the welfare state.  Today I want to spell out, very briefly, the fundamental connection between the welfare state and a dysfunctional criminal law.  It might already be obvious; to readers of this blog it probably is.  But it's worth repeating because it is the central divide in domestic policy in our country.

 

Either we view citizens as responsible for their own lives and behavior or not.  If we do, we don't need and shouldn't have a welfare state of anything approaching its current gargantuan reach.  And we can embrace a criminal law grounded in the moral confidence of independent adults  --  the confidence, for example, to execute dangerous and malevolent killers, and do so without apologizing to the chattering class in the academy or the press.  It is likewise the confidence to imprison criminals for their punishment and our safety.  It enables us to reject calls to spurn accountability in favor of a phony and corrosive "compassion."  We can reserve authentic compassion for the victims of crime, and we won't confuse victims with victimizers.

 

The alternative theory views a citizen not as a responsible actor but as a vessel of forces beyond his control.  There is little or no genuine free will or choice.  There is only the overwhelming affliction of racism, militarism, childhood trauma, brain lesions and so on.  So viewed, citizens are not responsible.  The state is responsible.  It is thus up to the state to put food on the dining room table and excuses on the courtroom table.  Criminals are the real victims; those more traditionally thought of as victims of crime are mere inconvenient collateral damage of the capitalist behemoth, and will be treated as such.

 

For most of its history, our country has looked upon its citizens as responsible actors.  Taking that view, it has prospered like no other civilization in history  --  prosperity marked by respect for individual autonomy, the rights and dignity of minorities, private property and the rule of law.  But that view has been under attack for quite some time, and is under attack today as seldom before.  It is under attack by a government that assumes we cannot provide for ourselves and have neither the moral authority nor the wit to treat criminals for what they are or, for that matter, war criminals for what they are.  Indeed it's a government so lacking in moral clarity that it can't tell the one from the other.

 

The new budget is a literally gigantic reminder of the ideas we need to, and are going to, fight.   

 

UPDATE:  Some commenters have objected that this entry is off topic and shows that C&C has turned into a soapbox for conservative causes generally.  That is incorrect.

 

The entry is relevant to criminal  law and sentencing in  two ways.  Directly and  immediately, the open-the-prison-gates movement is gaining traction by arguing that the cost of imprisonment (not to mention the death penalty) is unsustainable in light of the deficits state governments, and particularly the federal government, are facing.  But the real cause of these deficits is the explosion of entitlement spending.   To fail to point this out is to give a free ride to the anti-imprisonment movement  --  in essence, to allow it to make incarceration the culprit when assuredly it is not.  If we are to contain deficit spending, neither prisons nor the law enforcement system is the place to look.  Entitlement spending is.

 

Second, over the long term, but at least equally important, public support for sober sentencing will not survive the underlying ethos of the welfare state.  That ethos  is that individuals cannot really be held  responsible for their own lives and behavior (or even for paying their own  bills with earned income).  The ethos of unapologetic criminal punishment is, contrariwise, that individuals are really responsible for their own lives and behavior (if they weren't, the morality of punishing  them would be  open to serious question).   To the extent the government indulges more and  more entitlement spending and the assumptions about human nature that underlie it, the very foundations of just punishment are undermined.  Thus entitlement spending is very much relevant to the core subjects here.

 

6 Comments

That pull-yourself-up-by-your-bootstraps stuff sounds just wonderful in theory, but I think the reality is quite a bit different. Personally, I don't want to live in some place like Liberia or Haiti where it's every man for himself and you have the freedom to starve to death. Programs such as Medicaid, Medicare, school lunches, food stamps, workmen's comp, Social Security and, yes, God forbid, welfare are the marks of a civilized country that attempts to ensure that no one starves, goes homeless or without medical care for want of money. I have absolutely no problem with the concept behind these programs.

If you're talking about crime, then I agree that excuses for it are irrelevant. Public safety is paramount.

The "culture of dependency" is insidious, and if allowed to flourish, creates apologists for all behavior--including crime.

yankalp, I think that Bill's post was not a call to repeal all safety net legislation, but commentary on attitudes that can be shaped by it. There can be too much of a good thing.

I'm not sure whether this website is devoted to criminal justice issues, or just a place to endorse every conservative view imaginable, and it does make me wonder about Criminal Justice Legal Foundation itself. If CJLF is simply another conservative advocacy organization, perhaps the appellate courts that review its amicus filings should keep that in mind. The postings on this site have been increasingly straying from what I thought the core message of CJLF was, that the organization was interested in protecting its conception of the rule of law through the vigorous enforcement of criminal statutes.

This blog is about crime issues, and not conservative views generally.

However, issues are not neatly compartmentalized. For example, discussions about so-called "root causes" necessarily connect crime with government social policy.

CJLF sponsors this blog, but not everything discussed here represents CJLF policy. As noted on the "About C&C Blog" page, "The opinions expressed by outside authors reflect their individual opinion and are not necessarily those of CJLF."

Mr. Scheidegger, I appreciate your attempt to justify the increasingly (conservative) political tone of the posts on this blog, but it just didn't cut it for me.

I am a state criminal prosecutor, pro-death penalty, currently working on actual death penalty cases. I turn to this blog almost daily for news updates, legal updates, and links to court opinions and CJLF's consistently excellent briefing in order to keep myself abreast of capital litigation issues in the federal courts and around the country. But more and more, I log onto this blog and find stuff that sounds a lot more like Rush Limbaugh than what I have come to expect in terms of excellence of content. The entries by Bill Otis tend to be particularly Limbaugh-esque.

Please don't lose your focus. I can turn on any show on Fox News if I want to hear more right-wing political ranting.

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