Zombies and Muslims Part 2:
Crime-less Victims and Victim-less Crimes

by The Shadow

Something wicked still prowls our legislatures and courthouses.

In the Shadow’s last missive (Zombies and Muslims) it was observed that the current political environment threatens to disinter monsters known as “zombie jurisprudence,” creatures that could stalk American Muslims as readily as those which have historically pursued other classes of innocent people.

Korematsu v. United States, Dred Scott v. Sandford, and Cherokee Nation v. Georgia were Supreme Court cases that failed to erect constitutional protections against abuses of governmental power. Such zombie jurisprudence, according to modern sensibilities, should remain dead and buried in a cemetery of legal anachronisms – never to be disturbed or disinterred.

But another, similarly pernicious, legal creature of the night still stalks undisturbed.

’Tis the monster known as the Victimless Crime. This is a concept that Wikipedia defines as a law that criminalizes conduct lacking “any identifiable evidence of an individual that has suffered damage in the infraction.” Personal use or possession of drugs, prostitution, gambling and similar morality-based mala prohibita represent some of these sorts of conduct.

What underscores the tragedy of victimless crimes are observations made in a recent Atlantic Magazine article (“Prison Without Walls,” September 2010) about the high cost of incarcerating the 2.3 million Americans who remain behind prison bars today. The annual cost of incarcerating inmates in California (approaching $50,000 per inmate) is roughly the same as the annual cost of an Ivy League education. Indeed, Americans are spending more than $68.7 billion per year for prisons.

But, tragically, American society has little to show for this high cost. Even though national crime rates have dropped since 1983, the number of incarcerated people has tripled. Those who are released from prison are generally hardened, not reformed. Thus, recidivism rates remain discouraging.

Even more tragic is that there are cutting-edge technological methods by which to reduce incarceration rates. But these methods are not being prioritized the way they should. GPS ankle monitors allow for easy tracking of the location of a probationer/parolee. Alarm bells and whistles go off if the probationer/parolee deviates from his designated commute or gets too close to a school, a bar, or other forbidden zone. Technology exists that permits remote monitoring of blood chemistry of probationers and parolees. In some jurisdictions this sort of technology has proven a very cost-effective alternative to incarceration and has lowered recidivism. And, of course, the unincarcerated probationer/parolee is more likely to be a productive and tax-paying member of society.

What is possibly most disconcerting is that unless a particular crime calls for the death penalty our courts will find no substantive constitutional or statutory protection from unreasonable punishment – i.e., no guarantee that a sentence be proportional to the crime. This even though the Eighth Amendment to the Constitution flat out prohibits the infliction of “cruel and unusual punishments.”

The Georgia Supreme Court explained that the reach of the Eighth Amendment is constrained: “[s]o long as [the legislature] do[es] not provide cruel and unusual punishments, such as disgraced the civilization of former ages, and make one shudder with horror to read of them as drawing, quartering, burning, etc., the Constitution does not put any limit upon legislative discretion.” Evans v. State, 228 Ga. 867, 872 (1972).

But what is the ultimate basis for courts’ reluctance to apply the Eighth Amendment to anything but capital cases?

In a more recent U.S. Supreme Court decision, a divided Supreme Court applied a strict textual interpretation of the federal constitution to justify this reluctance to apply a proportionality analysis to non-capital and victim-less offenses – in that case possession of 672 grams of cocaine, which drew a life sentence without the possibility of parole. Harmelin v. Michigan, 501 U.S. 957 (1991). Justice Scalia, writing for the majority, concluded that because the concept of proportionality wasn’t explicitly mentioned in the Eighth Amendment, then it could not be read into it: the framers of the federal constitution “chose, for whatever reason, not to include with it the guarantee against disproportionate sentences that some State Constitutions contained.” Harmelin at 985.

In sum, it strains credulity to think that possession of drugs for personal use can result in a decades-long prison sentence which can evade Eighth Amendment scrutiny simply because the defendant has not been drawn and quartered, or burned at the stake.

When the drafters of the Bill of Rights contemplated what was “cruel and unusual,” they had no inkling about alternatives to incarceration, hanging, the firing squad, or the stockade. Our failure to apply modern technology as an alternative to prison should make us reconsider whether those who commit victimless crimes need to be punished so severely. At both the gut level and as a matter of logical deduction isn’t it cruel and unusual for the legislature to reject a less draconian sentencing scheme that will accomplish the same societal goals of crime deterrence, and individual rehabilitation, at much less cost to the tax payer and with unnecessary deprivation of one’s liberty?

In the broad scheme of things, to be a victim of a victim-less crime, i.e., one who receives a punishment that is disproportionate to his crime, is no less a tragedy than to be a crime-less victim like the descendants of African slaves, Cherokee Indians, and Japanese internees who were deprived of constitutional protections to which they were entitled.

In sum, zombie jurisprudence might remain dead and buried for now. But we are in need of modern legal “Van Helsings” – politicians and judges with the guts to expose to sunshine those wicked creatures of our legal system that still haunt our halls of justice.

One of the scariest of those creatures is the courts’ failure to apply a proportionality analysis to non-capital offenses under the Eighth Amendment: a creature that should be resting in peace next to zombie jurisprudence like Korematsu, Dred Scott, and Cherokee Nation.