Essay:Drafting specific reform proposals

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Anarcho-capitalists' solution for political problems is pretty simple: "Abolish government and the private sector will organize everything that needs to be organized in the way in which it needs to be organized." Or at least, the private sector will do a better job than the public sector. There's at least some truth to that, but in the meantime, perhaps there are some incremental reforms we can propose. After all, as Murray Rothbard wrote, "while libertarians have too often been opportunists who lose sight of or undercut their ultimate goal, some have erred in the opposite direction: fearing and condemning any advances toward the idea as necessarily selling out the goal itself. The tragedy is that these sectarians, in condemning all advances that fall short of the goal, serve to render vain and futile the cherished goal itself. For much as all of us would be overjoyed to arrive at total liberty at a single bound, the realistic prospects for such a mighty leap are limited. If social change is not always tiny and gradual, neither does it usually occur in a single leap. In rejecting any transitional approaches to the goal, then, these sectarian libertarians make it impossible for the goal itself ever to be reached."[1]

Therefore, it might be good to come up with a comprehensive vision for reform of the justice system within the framework of the existing state's continued existence. My question is, If you had unlimited power to change the laws concerning crime, criminal procedure, punishment, restitution, courts, and so on, with the exception of not being allowed to abolish the state's supremacy entirely, what changes would you make?

The present reform movement is not proposing a sufficiently concrete and specific set of changes to start a very productive debate. People say, "End the prison state", for instance, but don't say exactly what needs to be changed. Ending the drug war is a pretty straightforward idea, but what should the restitution system for other offenses look like? There are, after all, a lot of options available for how restorative justice systems can be organized. What kinds of correction, punishment, restoration, rehabilitation, etc. should be used, and how (and based on what criteria) should the decisions be made as to what measures to apply to particular offenders?

A lot of reforms can't be achieved in the current political climate, but I think it can be useful to at least put them out there. Ron Paul made a habit of introducing legislation that didn't have a chance of passing, but at least set forth a clear vision of what exactly he thought should be done and how. Likewise, the Cato Institute published a Handbook.[2] It provided a starting place for dialog. Sometimes, just in the course of drafting such ideas, it becomes evident what ideas aren't actually all that workable. Or, even if a plan is mostly rejected, a few aspects of it may appeal to others and end up being implemented.

Once such a plan is written, one can always keep it on file and reuse it for audiences other than the one for which it was written, so the effort can yield dividends for a long time. One can draft a proposed bill to ask members of Congress or a state legislature to introduce. The lobbying effort can be educational to lawmakers and help build a movement, even if it doesn't produce changes to the law in the short term.

A specific plan can be a powerful tool for engaging others in dialog. Douglas R. Hughes gained notoriety for coming up with an idea for "Pedophile Island", to which certain sex offenders would be exiled. The idea didn't gain traction, but at least was a sufficiently detailed proposal to stimulate people's imaginations and get them thinking.[3] The Pickens Plan was an energy proposal that likewise didn't get much anywhere (and also wasn't particularly practical), but did attract attention and consideration because it was the only detailed energy plan out there.

Unwillingness to draft a detailed plan

Sometimes I think people aren't even very serious about their reform ideas. For instance, some people will say, "We should kill all the child molesters." The question then arises, How do you define who counts as a child molester who should be killed? After all, there is a wide variety of sex offenses involving children; e.g. there are some people who expose themselves to children, or write them sexual emails, or kiss them sexually (see Code of Virginia ยง 18.2-370.6) or the like; are they all to be killed? In order for a proposal to actually be enacted, it has to first be put down on paper in a specific form, stating what exactly is to be done under what circumstances.

And if these people are serious about seeing that proposal enacted, why aren't they lobbying for it? After all, it can't happen without people going to bat for it by talking to their legislators, writing to newspapers, etc. I can only conclude that they're not all that serious about it. Apparently, they're not afraid of what people will think of their idea, because they always post those sentiments on Facebook and so on, but they don't actually organize to achieve their stated goal. Even if a constitutional amendment were to be required (as it might, given the many restrictions the U.S. Supreme Court has imposed on capital punishment), it's conceivably doable in the long term if one begins organizing political support.

The truth is that those proponents of execution actually are merely evading uncomfortable realities by not making the effort required to crystallize their amorphous ideas into specific proposals that could then be exposed to specific criticisms, including one's own criticisms. There is also, perhaps, an element of apathy; if they really cared much about that particular topic, they would take action. On the other hand, people tend to focus their efforts where they think they can do the most good, or where it's most evident how to proceed. Small, easy tasks tend to take priority over big, difficult tasks, ceteris paribus. Coming up with a detailed plan can be a big, difficult task.

Execution might not be such a bad idea, compared to some alternatives. Life imprisonment in particular seems mostly pointless, unless, say, the prisoner is a brilliant artist or novelist producing great works behind bars. I have never heard of such a prisoner, though. It is hard to create much of great value without access to the resources available on the outside. Even Ludwig von Mises did not produce any books while he was serving in the military, another prison-like system. Certain classes of released prisoners are increasingly being subject to such onerous restrictions of release that it is hard for them to accomplish much without breaking the rules, which of course risks a return to prison on a technical violation. It is unsurprising that many find themselves asking, "What useful purpose is there to this kind of existence?"

Probably the reason people are uncomfortable with the idea of mass executions of felons is that they irrevocable actions tend to be psychologically unsettling. People have a tendency to want to keep options open. As long as a prisoner is alive, there is theoretically the possibility of reforming and releasing him, if some new, innovative means of doing so were to be found. On the other hand, every day of incarceration is an irrevocable loss, since there is no way to reclaim the resources consumed during that day of incarceration. It is like buying an SUV; those extra seats give you the option to carry more people, but each day you drive with those seats empty represents an irrevocably lost opportunity. All matters to which one delays attending until finally death forecloses the possibility one had kept open, ultimately have the same effect as if one had irrevocably abandoned the option at the outset. Especially now that parole has been abolished, the vast majority of prisoners will serve their entire sentences.

Prison reform is a rather important subject. Prison, as currently organized, makes the conditions of every incarceration a civil rights violation waiting to happen. The prisoners lack the right to vote and therefore have no representation in Congress. Therefore, any legislative help they would seek requires the intervention of friends or family on the outside. Some prisoners lack such resources, since it's the tendency of people on the outside to shy away from providing help, for many reasons. There is an attitude that prisoners are there to be punished, not to continue to receive various forms of support.

There is also a belief (with some truth to it) that prisoners do not have much to offer people in the outside of the world until they are released. This social isolation, coupled with prisoners' lack of consumer choice and accompanying total dependence on the government for all needs of life, including the channels of communication with the outside world, lends itself to cruel neglect and oppression. For all the needless misery inflicted by that system, the U.S. has little to show for having an incarceration much higher than that of other countries and significantly worse prison conditions than, say, the Scandinavian countries.