True Justice Is Restitution, Not Punishment -- And If There's No Restitution To Be Made, Maybe No Crime's Been Committed
Randall G. Holcombe explains at FEE.org that "a legal system designed to protect individual rights will rest heavily on restitution for victims who have had their rights violated" -- with compensation by the perpetrator for the wrong done to them.
A system like this would not punish teens as "child pornographers" for sending their own naked selfies -- as this kid was in Washington. Austin Jenkins writes at KUOW:
The case involved a 17-year-old in Spokane County who took a picture of his private parts and then texted the photo to an adult woman acquaintance with a message that the photo was for her and her daughter, who was a minor. The mother viewed the text as a form of harassment and called police.The teen, who has Asperger's syndrome and was already a convicted juvenile sex offender, was charged and convicted of one count of second degree child pornography and required to register as a sex offender.
The teenager appealed his case on the grounds that he was being treated as both the victim and perpetrator of the crime and that he had a First Amendment right to photograph his own body.
Writing for the majority, Justice Susan Owens said Washington law is clear: creating or disseminating sexually explicit images of minors is illegal and not protected by the First Amendment, even if it's a selfie that would be legal for an adult to take.
...In a dissent, Justice Sheryl Gordon McCloud said the majority opinion "produces absurd results" including the potential for a more harsh punishment for a teen who sends an explicit selfie than for an adult who does "exactly the same thing."
McCloud noted that a teenager who sends a naked selfie could go to prison for up to 10 years.
Whom are we protecting here? Whom are we helping?
If you look at it on an individual rights level, you have to ask who is victimized?
Well, it appears the only person who's victimized is the kid who sent his own photo. There's no restitution to be made here.
The law is an ass. More from the KUOW piece:
In a 2016 op-ed in the New York Times, Amy Adele Hasinoff, a professor of communication at the University of Denver, argued against treating teens' sexting as child porn. She said state laws were not keeping up with technology and, as a result, teens were in danger of running afoul of child pornography laws."The laws that cover this situation, passed decades ago, were meant to apply to adults who exploited children," Hasinoff wrote. "A better solution would be to bring child pornography laws in line with statutory rape laws by exempting teenagers who are close in age and who consensually create, share or receive sexual images."
In her majority opinion, Owens acknowledged the concern over consenting teens being prosecuted for sending naked selfies to each other.
"We also understand the worry caused by a well-meaning law failing to adapt to changing technology," she wrote. "But our duty is to interpret the law as written and, if unambiguous, apply its plain meaning to the facts before us."
Explaining the danger of this, Ilya Somin writes -- also at FEE.org:
Lavrenti Beria, the infamous head of the Soviet secret police under Joseph Stalin, supposedly once said, "Show me the man and I'll show you the crime." In the Soviet Union, the regime could always find some crime to pin on anyone it chose to target.As a general rule, it would be silly to equate the modern United States with a mass-murdering totalitarian state. But in this one respect, the two regimes are more similar than we would like them to be.
Because of the vast scope of current law, in modern America the authorities can pin a crime on the overwhelming majority of people, if they really want to. Whether you get hauled into court or not depends more on the discretionary decisions of law enforcement officials than on any legal rule. And it is difficult or impossible for ordinary people to keep track of all the laws they are subject to and to live a normal life without running afoul of at least some of them.
I think the "who is harmed?" question is a way we should be looking at both whether something is criminal and what the response should be. More from Holcombe's piece:
Government legal systems are typically designed to punish those who violate the rights of others, not to provide restitution to their victims. If a person is assaulted, has a family member murdered, or is injured by a drunk driver, the legal system will punish the rights violator but provides no compensation for those whose rights are violated.Law Enforcement and the Ruling Class
The motivation for law enforcement for those in the ruling class is to produce an orderly society of compliant citizens. The ruling class needs a productive economy to produce tax revenues they can spend, and needs compliant citizens who will pay those taxes when asked, and who will obey government regulations when they are issued. They accomplish this by clearly displaying that when people violate the rules, they will be punished.
Compensation for victims provides no real benefit to the ruling class. The ruling class benefits from "law and order," and receives no benefit from justice. The ruling class wants citizens to believe that they will suffer if they violate the rules, but has nothing to gain if people believe that they will receive restitution if their rights are violated.
The guy who stole my pink 1960 Rambler was forced to pay me restitution (in a series of payments) for all the damage he did to it and the stuff he stole out of my trunk. I'm still sad to have lost the typewriter my dad gave me.
I do have to say, it was really satisfying to have repayment made, though I had to chase the guy down over and over to get the individual checks.
This was not hard. As Elmore Leonard used to say, criminals are pretty dumb. The guy would get a new job and then send a payment using their UPS or other shipping account. (Once a thief...!) This made him really easy to track down -- I just had to get chatty with some nice lady on the phone lines at UPS or DHL, and 10 minutes later, I was calling him at his new job and dunning him for money.
The law is an ass. But not as assy as it could have been in this case.
The adult woman can now be charged with having child pornography on her phone. And I wouldn't have been all that surprised if they had arrested her when she called the police on the 17-year-old who sent it to her.
Outraged? Yes. Surprised? No.
The sex-offender registry is simply too valuable a cash cow to worry about such trivialities as intent. It simply doesn't matter how it got on your phone. It's there, even if someone sent it to you without your consent. And that means you get to spend the rest of your life on the sex offender registry, making those monthly payments for the privilege of being on it and having your life ruined by being allowed to live only in certain areas, having your picture, name and address on a public website along with what you supposedly did, being restricted in your employment (if anyone will even hire you) and all the other bullshit the state cares to put you through.
Patrick at December 28, 2017 12:01 AM
The criminal code has always been about public order.
Restitution is the reason we have insurance, since the vast majoirty of property crimes are committed by people with no skin in the game.
Those with skin in the game have a lot of help protecting their assets.
Do you think OJ is broke?
My theory is that with the courts throwing out almost all laws having to do with sexual behavior, in order to have any controls at all, we have had to redefine childhood ever upward to protect people from the consequences of their own poor choices.
Whether it be excessive drinking or just plain poor judgment, you now is some cases need to at least 18 and in some places 21 to have any agency at all.
Yea, too bad this kid got caught up in the kiddie porn crusade. You got caught up in the criminal justice game by being a member of an unprotected class.
But this has nothing to do really with victimless crimes. Most of so called victimless crimes really arent.
I dont want a crack house next door to me, and for the same reasons, I dont want a marijuana dispensary, a gas station, a casino or a liquor store either.
Isab at December 28, 2017 9:51 AM
So the rich could commit crime with abandon and just write a check? How would the poor pay? Whats the restoration on a human life? Rape?
Momof4 at December 28, 2017 10:55 AM
I dont want a crack house next door to me, and for the same reasons, I dont want a marijuana dispensary, a gas station, a casino or a liquor store either.
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Doesn't the risk to you have more to do with what sort of neighborhood the legal business is located in?
There used to be at least three liquor stores in almost a straight line (about 1 mile) in my neighborhood. The middle one shut down (likely because the owners always wore unpleasant expressions and never seemed happy to see you). If any of them were robbed, I never heard of it - and word does get around. On the same road, there's also a gas station - and a cannabis accessories store (mostly bongs). That last one is the only business that isn't at least 20 years old. So far, things are quite peaceful. Then again, the high number of condos in the area may have something to do with that.
lenona at December 28, 2017 12:12 PM
This has been done before here, and I doubt anything new will appear.
Radwaste at December 28, 2017 3:56 PM
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