THE ISSUE OF CRIMINALIZATION OF BEHAVIOR

THE ISSUE OF CRIMINALIZATION OF BEHAVIOR

As we consider the matter of application of restorative justice concepts to our secular legal system, one thing which must be addressed is the unnecessary criminalization of behavior. By this I mean the automatic selection of the criminal law process over the civil law process for dealing with a breach of the law.

Let us remember that we have two different “justice” systems: one from crimes (called “public wrongs”), and one for torts, breaches of contract, etc. (called “private wrongs”). The exact same actions by Person A can result in either, or both, criminal and civil proceedings. One can be found innocent of the criminal act and liable for the civil act (as was O.J. Simpson), and there is no double jeopardy involved because the two systems are different.

In the first, the State must prove the material elements of a crime “beyond a reasonable doubt” while in the second, the person harmed must prove violation of duty or breach of contract by a “preponderance of the evidence”. It is the difference between radically tipping the balance scales and barely tipping them.

In the criminal arena, we have numerous constitutional and other safeguards, limiting the law and process. These safeguards do not exist in the civil law, for the civil law is not considered punitive (a concept I disagree with), and prison is not a possibility.

Thus we can require things of people, and compel things in process, in the civil setting which we could not do in the criminal setting.

Thus we ought to ask the question: “Is this act an act which requires criminalization, or may we deal with it civilly?” That is what I want to explore in this paper, using the matters of driving under the influence, driving while suspended, drunk and disorderly, and possession or sale of controlled substances as an examples.

These thoughts were prompted when, in 2000, there was a proposed ballot initiative for a new jail in La Plata County, Colorado. As I investigated matters, I found that at any moment at least 50% of the available bed space was taken up by these type offenses. Many of the sentences were mandatory sentences — established by the State Legislature, but with the economic burden being placed on the counties.

I write this with some trepidation, as I fear I will be misunderstood. This is very rough, and is done in hopes of forming a basis for discussion.

Scenario #1

A police officer sees a car weaving down the road and stops the car. This act is done “to protect and serve”, as the driving shows a high potential for an accident. A field sobriety test is conducted and shows positive for being “under the influence”.

In the normal criminalization process, the individual is taken to the Jail and the criminal law processes begin.

But there has been no harm to a citizen, so why criminalize the act? Because we think criminalization, and the punishment it will bring, will deter this person and others in the future. Yet history plainly shows it does not do so. So, what alternatives might be available if we approached this from the civil law side?

Impound the car, regardless of the presence of other persons in the car who could drive the car away, and regardless of ownership of the car.

The driver is: (a) driven home by the officer; (b) driven home by other occupants after another vehicle is secured (the officer’s radio system can be used to accomplish this); (c) taken to detox by the officer; (d) put in a taxi; (e) held at the scene until friends or family arrives; (f) allowed to walk home; (g) other.

A “log” (record) of this event is made in a central repository for the State (and community?).

Money (and/or personal property in the possession of the driver, and even the car?) is confiscated as needed to pay for all expenses involved. This can be required civilly with full due process of law.

When someone comes for the car, they have to pay to the state (or community) an amount for: impound; costs of transportation of driver; detox; whatever. If the amount is not paid, the car, regardless of ownership or liens, is sold to pay the charges.

Under this scenario, even the 12th offense changes nothing except possibly the use of detox as first choice rather than one of the other alternatives.

Scenario #2

Here we have Scenario #1 but there is an auto accident involving property damage and/or injury to others (including passengers in the drunk driver’s car), but no death.

The exact same response with the addition that the proceeds from sale of the vehicle over the expenses of the State go to the victim(s) for damages. However, the passengers are precluded from recovering for their injuries as they knowingly got in the car of one who had been drinking.

In addition, unless the under the influence driver can prove (by a preponderance of the evidence, or beyond a reasonable doubt?) that his being under the influence had nothing whatsoever to do with causing the accident, the driver is automatically civilly responsible for all damages and injuries. Any claim of total lack of fault is submitted to a judge for determination (no jury).

The amount of the damages shall be determined by face-to-face negotiations between the parties, although the parties (including an insurance company?) may have lawyers present to participate in the discussions. Notice that “fault” is not on the agenda. If the parties cannot agree, the issue of amount is submitted to a judge (again, no jury).

If the driver has no insurance, that fact is “criminalized”. We might look at an industrial “prison” for not to exceed 6 full years, during which time all of his income is sent to the victims. The facility might look very much like an old “company town”, with housing on site. But I see no reason for security. Running away before the end of the restitution time might or might not be made “escape” for further intervention of the criminal law as we now know it. The family of the driver might also be denied all state financial benefits during this time. However, the “offender” could also be “ransomed” from this “sentence” by others, the amount of ransom being equal to the amount of damage determined by the Judge if the parties have not agreed face-to-face.

[In a later writing I will show how each of these ideas is supported by biblical passages.]

Scenario #3

Here we have the same situation as Scenario #2 except that there is a death. In this event, the action is “criminalized”.

Everything goes according to #2 unless this should be the second instance of this driver causing the death of another while operating a motor vehicle. That is, we are going to deal with this restitutionally rather than by incarceration.

If it is a second offense of causing death while driving under the influence, then, unless the driver is ransomed — that is, an amount is paid to the family of the deceased equal to whatever they demand without judicial analysis — the driver is executed.

Any ransom discussions are held outside of, and not as a part of, the court process; nor is the judge involved.

Drunk & Disorderly

Essentially, everything proceeds as #1. If there has been a fight, then we look more like #2. If a death, #3.

Let’s assume there was a fight, with injuries, and both were under the influence. Then each pays the damages of the other.

Possession of Controlled Substances

We would have to start with some determination of what is a “for personal use” amount of each controlled substance. Having done so, all proceeds as #1, but the substance is destroyed (as opposed to just impounded). If there were some sort of altercation involved, that is handled as “under the influence” and has been covered above.

If the amount exceeds “personal use”, or the person is caught in the act of sale/distribution, the person is executed. In lieu of execution, for a first offense, there could be a ransom to the State idea, the sale being disruptive to the community. But there is no prison option.

I should add that within the last couple of years, a man was executed in Singapore for being found in possession of 4 kilos of either cocaine or heroin, for that was the law of Singapore.

Again, I can give scriptural authority for such an approach; that does not mean we should do this, but it does, to me, mean we should be discussing it.

Scenario #4

Let’s take the same question an apply it to a “higher level” crime.

When I was a judge, I presided over a case in which a man broke into a gas station at night. In the morning, he was still inside, having drunk two, 2 liter bottles of Coke, eaten several Twinkies, and smoked a pack of cigarettes from the shelves. He was still extremely drunk, and waited peaceably while the owner called the police and the police arrived. This was a felony, his second, and resulted in a mandatory two year prison sentence.

Soon after, I was visiting our exchange student and family in Iceland. They took me to meet a judge friend, and I brought up this case to the judge to see how it would be handled in Iceland. The man would have been taken to a detox center, and that would have been the end of the matter; it would not have been criminalized.

Scenario #5

One final example to get our brain cells moving in a different direction.
You have a house with a front porch and a swing on the porch. Behind the swing is a picture window and inside is your television set. You come home one evening to find a man laying through your broken window, clutching the TV, out cold. The crime is Breaking and Entering, the Dwelling of Another, with Intent to Commit a Crime Within. Immediately you can see the focus is on the intent of the man and absent an intent to steal the TV there is no crime.

The man says: “I was on my way home from the bar, dead drunk, and was afraid I was going to fall in the street and get run over. I saw the swing and thought I would lie down for a bit. That is the last I recall. I guess I missed the swing.” If the jury buys this story, the man is acquitted.

Here is my question: you are the homeowner; what do you want to see happen? The most common response is: pay for the window (and TV if it is damaged). For that we need no criminalization process. Many people add: why does this man drink so much, and is there something we can do to help him. That asks for involvement of the community and, again, for that we do not need criminalization.

Conclusion

I can well imagine these proposals will cause some significant consternation, particularly in light of suggesting a death penalty. But I am not the author of these proposals except in so far as they reflect an effort to adapt the original to these modern times. Rather, they are taken from the law code, including the philosophy of that code, of the Old Testament.

Part of the Old Testament philosophy was to remove intent as a factor in the determination of responsibility. Another part was to force victims and offenders to first deal with things between themselves. Another was to force the community to be involved in the process. Another was deterrence, but apart from the executed person, that deterrent effect was merely hoped for, not assumed or promised.

I hope that we might focus on the philosophy, and the portions prior to execution, and see what the discussions produce rather than focusing at once on the matter of the death penalty. Classical prison could always be substituted for death as banishment, which also appears to have been a biblical option.