Criminal Justice

By Kaminer, Wendy | Free Inquiry, Summer 2000 | Go to article overview
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Criminal Justice


Kaminer, Wendy, Free Inquiry


In a secular state, laws are supposed to reflect common or, at least, majoritarian moral values. Civil laws prohibit race and sex discrimination primarily because civil rights activists and feminists succeeded in framing discrimination as a moral wrong. Criminal laws punish behaviors widely acknowledged as immoral--murder, rape, and other violent assaults and burglary and fraud. As a general rule laws function most effectively when the moral judgments they reflect are widely shared: prohibitions of abortion, marijuana use, or pornography are quite difficult to enforce because many people consider the legal prohibitions themselves more immoral than the behaviors they proscribe.

I'm not lamenting the moralism inherent in law, as some secularists do, shortsightedly. (People generally complain about "moralistic" laws only when they don't share the particular moral values the laws are intended to enforce.) Legal moralism is inevitable and not inherently inappropriate. I defend freedom of speech and religion, for example, because I consider censorship and religious persecution essentially immoral, not simply impractical. Of course not everyone shares my values; of course I don't pretend to speak for any higher authorities. But I do speak for myself (and sometimes for others who agree with me), and one of my jobs as a citizen in a participatory democracy is advocacy, or moral suasion.

So it is a great mistake for secularists to leave moral crusades to religious groups, right or left, and, fortunately, many do not. The feminist movement, for example, has been a moral crusade involving generations of religious and irreligious women, driven by outrage and a sense of justice. Social policy requires both reason and idealism, or moral fervor, and there is an important policy crusade waiting for skeptics and rationalists today--the fight to reform the criminal justice system.

Racism, meanness, venality, and stupidity reign in the criminal justice system, which manages to be both repressive and ineffective. The idiocies and cruelties of the war on drugs exemplify the failures of current policies. What has the drug war accomplished? It has greatly reduced the civil liberties of all Americans, as courts have expanded the power of police to search us for illicit drugs. It has created a lucrative black market in drugs that, in turn, has helped sustain a black market in guns. It has transformed ordinary people into criminals, imprisoning them in droves, because they prefer illegal drugs like marijuana over legal drugs like alcohol (which is associated with more violent crime than either marijuana, heroin, or cocaine). What the war on drugs has failed to accomplish is its purpose-eradicating or greatly diminishing drug use. Deaths from illicit drugs have reached record levels in America; In 1997, some 16,000 people died from drug-related causes (almost 44 people a day). But while the go vernment continues to spend billions of dollars on the criminalization of selected drugs and anti-drug propaganda aimed at young people, drug treatment is available to less than half of the people who need it. According to a White House report released in March of this year, of the estimated 5 million drug users who need immediate treatment, some 2.1 million receive it.

What is the government's response to the failures of its expensive, authoritarian war on drugs? The Clinton Administration has been lobbying Congress for $41.6 billion in military aid to Colombia in a probably futile attempt to eradicate coca production and assist the Colombian government in its civil war against guerrillas. Aid to Colombia is the first funding priority of the Administration's anti-drug efforts. A "youth anti-drug" media campaign is the second priority. Treatment programs come in third.

This penchant for imprisoning drug users instead of treating them has greatly expanded our prison population. Some two million Americans are in prison today; a majority have been convicted of nonviolent offenses, many involving drugs.

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