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Crime & Punishment
What has happened in our society that crime is so rampant and respect for the law so wanting? Even on this problem, Jefferson raises some points that may be helpful. There are many areas, some recognized and some not, where we have undermined the system of justice in this country. One that has been identified is the unequal justice afforded the black and the poor. As Jefferson wrote,
"The most sacred of the duties of a government is to do equal and impartial justice to all its citizens." --Thomas Jefferson: Note in Tracy, "Political Economy," 1816.
When the system of justice is perceived to be unfair, it loses its moral force and becomes viewed as a system of tyranny.
But there are other aspects of the Justice System that have weakened respect for the law itself. These administrative procedures may seem necessary for practicable reasons, but how practical is a provision if it destroys respect for the legal system itself? Such things as Plea Bargaining, Parole, the Exclusionary Rule, and pleading guilty to a lesser charge in return for testimony against other defendants, all help in the administration of justice, but they lessen respect for the law and in the end cause crime to flourish. Each one says to the criminal that the law does not mean what it says, that punishment for crime is a sometime thing, and that the criminal can, through one form of manipulation or another, often escape punishment for crime. And anyone who has ever raised a child knows that once it is perceived that you don't mean what you say, your admonishments are worthless. Jefferson wrote:
"Punishments I know are necessary, and I would provide them strict and inflexible, but proportioned to the crime... Laws thus proportionate and mild should never be dispensed with. Let mercy be the character of the lawgiver, but let the judge be a mere machine. The mercies of the law will be dispensed equally and impartially to every description of men; those of the judge or of the executive power will be the eccentric impulses of whimsical, capricious designing man." --Thomas Jefferson to E. Pendleton, 1776.
The judges have ceased being "mere machines," meting out justice impartially. Under plea bargaining, they are empowered to accept a guilty plea to a lesser charge in order to save prosecutors the trouble and expense of doing their job. When is punishment not punishment? When a person can be let out on parole after serving only a fraction of his sentence. The parole system makes punishment indefinite and frustrating for criminals as well as for the victims and families of victims. The trauma of trial and adjudication is renewed every year the violator is eligible for parole. Parole boards are compelled to decide the case anew at every hearing, and the whole process lends an indefiniteness to criminal punishment that contributes to the public sensibilities a sense of laxity and of criminals getting off without serving their time. When acknowledged criminals are given lighter sentences for testimony against other criminals, they are often encouraged to produce lying evidence to convict the others in order to receive the lighter sentence themselves. And the most egregious of all judicial madness, the Exclusionary Rule, allows judges to "punish" the police for their errors by releasing altogether persons who unquestionably and undeniably have committed serious crimes. All of these tactics allow the administrators of the law to be more "efficient," but they tell the criminal that the law is a hollow, almost meaningless shell.
Adding to this judicial mismanagement of the Justice System is the way prisons have been turned into country clubs, with amenities required by judicial order that most of the inmates never enjoy when outside the prison. And the cost of keeping a person incarcerated now exceeds the yearly income of the average working person.
Judicial Independence
Part of the problem is the fact that judges are too independent. Too much judicial discretion combined with appointment for life means that the nation lacks the power to rein-in a judiciary that gets out of line. And as Jefferson said, referring to the judiciary:
"It is a misnomer to call a government republican in which a branch of the supreme power is independent of the nation." --Thomas Jefferson to J. Pleasants, 1821.
Of course, the independence of the Judges should always be protected from the whims of the executive. But this independence should not be extended to a total independence of the nation itself.
"A judiciary independent of a king or executive alone is a good thing; but independence of the will of the nation is a solecism, at least in a republican government." --Thomas Jefferson to T. Ritchie, 1820.
Making judicial power independent of account only encourages corruption.
"Our judges are effectually independent of the nation. But this ought not to be. I would not indeed make them dependent on the Executive authority, as they formerly were in England; but I deem it indispensable to the continuance of this government that they should be submitted to some practical and impartial control." --Thomas Jefferson: Autobiography, 1821.
Being subject to "some practical and impartial control" never happened. The provision for impeachment of judges was early-on found to be inadequate for exerting sufficient control. Rather, Jefferson felt the appointment of judges should be for limited terms.
"Let the future appointments of judges be for four or six years and removable by the President and Senate. This will bring their conduct at regular periods under revision and probation, and may keep them in equipoise between the general and special governments. We have erred in this point by copying England, where certainly it is a good thing to have the judges independent of the King. But we have omitted to copy their caution also, which makes a judge removable on the address of both legislative houses." --Thomas Jefferson to W. Barry, 1822.
In a government of the people, no arm of government should be entirely independent of the people for life. Judicial independence has gotten out of hand, and combined with an inept legislature has led to an undermining of our laws and our government.
"Independence can be trusted nowhere but with the people in mass. They are inherently independent of all but moral law." --Thomas Jefferson to S. Roane, 1819.
"It should be remembered as an axiom of eternal truth in politics, that whatever power in any government is independent, is absolute also; in theory only at first while the spirit of the people is up, but in practice as fast as that relaxes." --Thomas Jefferson to S. Roane, 1819.
Swift Justice
Another source of disrespect for the law is the way law violators are often allowed to escape apprehension for long periods after a crime is committed. A. M. Rosenthal in a recent column pointed out how the Montana Freemen were permitted to violate the law, refuse to pay taxes and repudiate the authority of government for months. This allowed them to create a well-stocked fortress, making their apprehension a major problem, whereas if action had been taken swiftly at the first manifestation of lawlessness, the matter probably would not have made the news.
Here again, careless administration of justice breeds contempt for the law and increases lawlessness and rampant crime. Law enforcement officials, thinking more of their busy schedules than of the purpose of their office, actually encourage rather than discourage crime. Defiance of the law ignored is defiance of the law multiplied.
Any actions in the administration of justice that for whatever reasons increase the chances of avoiding punishment decreases respect for the law and reduces our security against crime. As Jefferson wrote,
"The punishment of all real crimes is certainly desirable as a security to society; the security is greater in proportion as the chances of avoiding punishment are less." --Thomas Jefferson: Report on Spanish Convention, 1792.
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