Overcriminalization has become a national plague. And when more and more behaviors are criminalized, there are more and more occasions for police, who embody the state's monopoly on legitimate violence, and who fully participate in humanity's flaws, to make mistakes.
Society needs laws; therefore it needs law enforcement. But "overcriminalization matters" because "making an offense criminal also means that the police will go armed to enforce it." The job of the police "is to carry out the legislative will." But today's political system takes "bizarre delight in creating new crimes" for enforcement. And "every act of enforcement includes the possibility of violence"... "It's unlikely that the New York Legislature, in creating the crime of selling untaxed cigarettes, imagined that anyone would die for violating it. But a wise legislator would give the matter some thought before creating a crime. Officials who fail to take into account the obvious fact that the laws they're so eager to pass will be enforced at the point of a gun cannot fairly be described as public servants."
[Garner] lived and died in a country with about 5 percent of the world's population but 25 percent of its prisoners. In 2012, one of every 108 adults was behind bars, many in federal prisons containing about 40 percent more inmates than they were designed to hold.
Most of today's 2.2 million prisoners will be coming back to their neighborhoods, and few of them will have been improved by the experience of incarceration. This will be true even if they did not experience the often deranging use of prolonged solitary confinement, which violates the Eighth Amendment's ban on "cruel and unusual punishments" and is, to put things plainly, torture.
Where to start?
First, it might strike some that a tax on cigarettes, and criminal penalties for not paying it, are illustrations of criminalization run wild, but....really? Is the sales tax on furniture, tires or lemonade likewise the emblem of overreach? Why would that be? And why is the taxation of cigarettes any different?
State sales taxes have been around for a very long time. Did they get to be the menace of Criminalization Run Amok just last week? Are they the menace of Criminalization Run Amok at all? Will does not directly assert, much less demonstrate, any such thing, but his thesis depends on it.
I don't like sales taxes better than anyone else, but if state governments are to be funded, they seem like as good an idea as any. Neither such taxes nor criminal penalties for evading them had previously been thought to be the hallmark of despotism; indeed, conservatives generally prefer sales taxes to income taxes, on the theory that it's better to tax consumption than production.
Second, it is of course true that, eventually, the government will use force to implement criminal law. What, exactly, is Will proposing as the alternative? There is to be sure the possibility that a particular law enforcement agent will, out of misplaced zeal or simply error, resort to force prematurely, or in excess (as I have said I believe happened in the Garner case). But that possibility inheres in the enforcement of any law. So what is Will's point?
The point might be that sales taxes on cigarettes are a bad idea and shouldn't be enforced; much of what he says seems to suggest as much. But suggesting is not proving, and the argument seems half-hearted if not silly.
The other and more likely point might be that (unspecified) laws roughly similar to, but even more carelessly sprawling than, cigarette sales taxes are a worse idea. That might well be true. But it has essentially nothing to do with the shock value of Garner's death, which is the emotive engine of Will's piece.
Third and relatedly, Will is beating the truth beyond recognition when he says that Garner "die[d] for violating" New York's tax law. Garner died because the policeman viewed him, perhaps correctly but probably not, as resisting arrest, then used too much force for too long. Is there some reason to believe the officer would have behaved differently had Garner been suspected of minor burglary or pimping? If there is, Will doesn't give it.
It may be that dozens or hundreds of the laws presently on the books are ill-advised or worse. I incline toward that view myself. But if so, the case has to be thought through, one statute at a time. Hoisting Eric Garner's death the way Will does is just grandstanding impersonating analysis.
Most conspicuous among Will's errors, however, is the enormous and magical leap from the weak "death-because-of-sales-tax" theory to the positively moribund "over-incarceration-because-of-too-many-statutes" theory. The likelihood that Garner or anyone else would wind up with a stretch in prison -- and still less in solitary confinement -- because of non-payment of cigarette taxes, or any remotely similar regulatory crime, is virtually non-existent. Not for nothing does Will decline to finish the point (to the extent he ever starts it).
Finally, Will speaks of the "abyss" of our criminal justice system without mentioning, or even seeming to think it's worth mentioning, the main thing the system has produced.
Yes, it's produced some atrocious outcomes. It's produced, in addition to Eric Garner's death, the crack-fueled crime wave, the Fast-and-Furious scandal, and the OJ acquittal. What Will misses in his outrage is the fact that society has no choice but to seek both to reduce the system's errors and to accept their inevitability. He briefly mentions the inescapability of error, but misses most of its import; the essential concept of trade-off's just never makes it into his essay.
The principal thing our criminal justice system has produced is the one Will is most culpable for omitting: Over the last generation, it has produced an astonishing drop in crime and crime victimization. The crime rate is half what it was twenty years ago; there were, for example, more than 10,000 fewer murders in the United States last year than there were in 1993, although we have a much larger population now. The supposed "abyss" of a system has achieved this at the same time scrutiny of the police, and protections for the accused, have never been more focused.
The amount of suffering averted by more resolute policing and a greater willingness to use incarceration is staggering. It's unfortunate that George Will, justifiably a conservative icon, couldn't pause from his outrage to see it.
UPDATE: A slightly edited adaptation of this piece is now up on the Volokh Conspiracy courtesy of my friend and former colleague Prof. Paul Cassell and Prof. Eugene Volokh.
George Will is more of a libertarian than a conservative at this point, and it's not all that unusual, unfortunately, for him to say strange stuff.
I recall a column in which he purported to defend "judicial activism," but every example he gave was one of legitimate judicial review -- enforcing constitutional limitations as originally understood. He offered no justification at all for actual judicial activism -- making up constitutional rules that the people who wrote and ratified the constitutional provision in question would never have thought it required.
Strange stuff is one thing. Will's piece here is just illogical (as well as blinkered), and it was the logical blundering, taken together with its very wrongheaded conclusion, that made me think it needed an answer from someone who at least resembles a conservative.
I have a problem with people presumed to be smart who parrot the claim that America has about 5 percent of the world's population but 25 percent of its prisoners.
How, one wonders, did George Will find out how many prisoners are in China, North Korea and Iran? He undoubtedly read this statement on the ACLU website or in a letter to the editor of the New York Times, and accepted it as true.
News flash Mr. Will, there are numerous governments around the world which don't choose to accurately report to the world how many people they have locked up, sent to work camps or taken out and shot. Researchers who accept the numbers that their ministers of propaganda give them are naive. Actually that "incarceration nation" figure is based upon an estimate (read guess).
One thing I've learned this month is to take anything especially statistics stated in the media with a grain of salt (namely the 20% of all women in university are sexually assaulted).
As many on this blog have said many times, social science research and statistics can be easily manipulated especially by those with a specific policy agenda. I think the best place to start in any assessment of statistics / studies is to see who is doing the research and see what their biases are.
Regarding whether the United States has 25% of the world's prison population or not, I have no idea if that is the case, but applying my previously stated thesis, if the number comes from the ACLU, I'd definitely take it with a grain of salt.
Even if it is true, it doesn't mean anything except perhaps we have more crime than the average country (or we put criminals in jail more frequently, perhaps). And if we have a crime problem, that is a far more complex issue than can be addressed by merely looking at incarceration rates.