Arresting People Who Have Committed No Crimes

_{Image © Austin Cline
Click for full-sized Image}

One might assume that a person shouldn't be arrested unless they have actually committed a crime. After all, without a crime, what could one possibly be arrested for? There is, however, a tradition of arresting people who haven't committed any crimes on the assumption that they will, and that it's justified to protect others in advance.

This is one of the attitudes which lies behind all efforts to trade basic civil liberties for greater security — especially when it's others' civil liberties. It's natural to want to be protected from threats to our lives and it's not at all unreasonable to take some basic precautions. The problem is, though, that living in a free and open society entails some risks — you can't eliminate all risks without also eliminating freedom itself.

I don't think anyone seriously disputes this, but at the same time I also don't think that everyone cares. On the contrary, for authoritarians the reduction or even elimination of basic freedoms is precisely the goal they've had all along. If fear of a possible threat will make it easier to bring their agenda to fruition, they aren’t about to stint on taking advantage of it.

In Guantanamo: The War on Human Rights, David Rose quotes from the trial of Hermann Goering in Nuremberg in 1948:

Justice Jackson: Protective custody meant that you were taking people into custody who had not committed any crimes but who, you thought, might possibly commit a crime?

Hermann Goering: Yes. People were arrested and taken into protective custody who had not yet committed any crime, but who could be expected to do so if they remained free... the original reason for creating the concentration camps was to keep there such people whom we rightfully considered enemies of the state.

This sort of testimony should be chilling to most people — if you care about freedom, then you don’t want the state to have the power to arrest individuals who haven’t done anything wrong. Arresting such people did, however, grow logically out of the Nazis' concerns about protecting the state from hostile and subversive elements. Criminals weren’t imprisoned in order to be rehabilitated, they were imprisoned in order to punish them and protect others. Non-criminals were arrested for much the same reason: punish them for presenting a danger to the state and protect the community from whatever crimes they might be expected to commit in the future.

Unfortunately, similar attitudes continue to find support in America — and not simply in the context of the "War on Terrorism," which is what you probably thought I was talking about.

Convicted pedophiles or other sex criminals should be kept in prison, it is argued, even after their sentences have been served. Why? To protect the community — the same basic argument used about different sorts of criminals in Nazi Germany. Once people can be kept in jail even after their sentences have been served, it’s not such a huge step to begin putting people in “protective” custody before any crimes have been committed. The Nazis did it and David Rose quotes the above because Americans appear willing to do it as well — all in the name of fighting terrorism.

People should ask themselves if they would support preemptive, protective custody for certain types of people who represent (according to the government) a threat to the community. Would you trust the government to only use this power against “genuine” threats and against the “worst” of not-yet-criminals? Would your decision be affected if someone you knew and trusted were taken into custody?

The Economist reported recently about developments in New York where governor Eliot Spitzer — a liberal Democrat — has signed legislation authorizing "civil confinement" for certain categories of sex offenders whose prison terms are done but who are also still deemed a "threat" by the government. This makes New York the 20th state with such laws and it's an increasingly popular way to deal with certain types of criminals:

William Rehnquist, the previous chief justice, once asked, “What's the state supposed to do, just wait till he goes out and does it again?” President George Bush has earmarked funds to states that keep sex offenders locked up after their sentence ends. The Justice Department is considering civil confinement as well.

We might ask the same about murders, suspected terrorists, and rapists: what is the government supposed to do, just wait until they go out and do it again? Once that becomes a justification for imprisoning someone without trial, what possible reason is there for not asking the next question: what is the government supposed to do, just wait until they go out and do it the first time?

"But sex offenders have a high recidivism rate — how else do we prevent them from offending again?" This is a common rationalization for ignoring the traditional principles of justice and it doesn't work. If keeping them in prison without trial or conviction is just simply because the odds are good that they might offend again, then it would be just to put someone in prison simply because the odds are good that that person will offend for the first time. Moreover, where would we draw the line — at 70% odds? 50%? 30%? Once you establish a line, how do you justify letting loose those who fall just short — and how will you justify not lowering the bar further in response to the outcry from the crimes committed by someone who did fall short and was freed?

We should ask ourselves how much of the public's panic over sex offenders is tied to sex itself. Released murderers are not treated the same way. If I tortured (but didn't kill) a child in a completely non-sexual way, I wouldn't have the same problems upon my release from prison as someone convicted of fondling a child of the same age. Is that person really worse than me? Who would you be more concerned about living near: someone with a 40% chance of fondling a child again, or someone with a 30% of murdering again? How about someone with a 20% chance of torturing again? I don't think people are making sensible calculations and rational comparisons of the threats — they see "sex crime" and panic more because of the sex than the crime.

Eric Janus of William Mitchell College of Law, the author of “Failure to Protect: America's Sexual Predator Laws and the Rise of the Preventive State” (Cornell University Press), thinks civil confinement is “a mistake” and that funds could be better directed. Other critics say that confinement means poor surveillance and costly upkeep, with little evidence that the treatment even works.

Yet Mr Spitzer vows that New York's system will be a national model. Under the bill's provisions, a panel made up of mental-health experts will evaluate each case. The state attorney-general will then determine whether to go to court. A jury must unanimously agree that confinement is necessary, and finally a judge must rule on the matter. The presumptive offenders will stay in highly secure psychiatric facilities, segregated from other patients; Mr Spitzer has proposed converting a prison. An Office of Sex Offender Management will be set up to oversee it all. ...The cost of confinement will be about $80m a year—much more than prison.

One ironic aspect of this is that conservatives who are strong supporters of preventative custody are also frequently seen opposing laws designed to protect people in other contexts. Conservatives may condemn the "nanny state" with one hand whenever someone proposes regulating what corporations can do, but then praise the "preventative state" with the other hand when it means giving the government more power over individual citizens.

It's ironic, but it's not a contradiction. Regulating corporations means restricting the ability of powerful men and institutions, something not in line with the authoritarian mindset. Putting troublemakers in prison regardless of whether they have committed crimes or served their sentences is in line with the authoritarian agenda, though, because it increases the power of the state over the bodies of the citizens. As demonstrated by the actions of Eliot Spitzer, an inclination towards authoritarian thinking is not something that lies exclusively with conservatives, though.

I realize that sex offenders are not popular, but we all know very well that measures like this are never first instituted against anyone popular. They are always first used against the least popular because that ensures there will be little protest. Once the system is not only refined but also generally accepted as the way the "justice" system should work, it's not hard to start including more and more categories of people in the net. It's wrong to keep sex offenders in prison after they served their sentences for the same reason why it's wrong to do this with people who have committed any other crime — and with people who have committed no crime yet, but are deemed likely to.

We should oppose laws authorizing the state to incarcerate people who have served their sentences because it is unjust for the state to have that power over anyone — even sex offenders who disgust us. You don't truly support free speech unless you support it just as much for people whose messages disgust you as you do for those whose messages you endorse. Similarly, you don't truly support justice unless you support it just as much for those whose crimes that disgust you as you do for those who are innocent. A justice system isn't truly just unless it provides for even-handed justice to all, not merely for those we like.


This image was originally a publicity poster for a movie called "Girls in Chains."