The Abolition of Crime: New Principles in Criminology and Justice

The Cost of Crime

Those who follow the pithy aphorism, "crime doesn't pay" should also be more attentive to the costs of crime. The Australian government's Institute of Criminology estimated that on 2005 figures, that crime costs Australia nearly $36 billion per annum - about 4.1% of the GDP. Forty per cent of this is the result of fraud, followed by burglary at ten per cent, then drug offenses at nine per cent, arson at eight per cent, and and assault at 7 per cent). The Australian Productivity Commission determined that on 2009 figures the Australian governments spent more than $10.7 billion on criminal services; police accounting taking up 66.7 per cent of the total cost, followed by corrective services at 22.7 per cent, criminal court administration at 5.7 per cent, and civil court administration at 4.9 per cent.

Further afield in the United States, researchers from the University of Miami and the University of Colorado calculated from Department of Justice figures, more than 23 million criminal offences were committed in 2007, costing $15 billion USD in economic losses to the victims and $179 billion in government expenditures on police protection, judicial and legal activities, and correction services. As is well known, the United States also has controversial "three strikes" laws for habitual offenders, enacted in some twenty four states, and with private prisons holding some 8.4% of the overall U.S. prison population - a powerful lobby group for more imprisonable offenses and one which has engaged in bribery to ensure more imprisonable convictions. Crime, or rather the processing of it, is big business.

Apart from the costs to the victims and to the public, there is also the cost to the perpetrator, with the continuing use of capital punishment being the permanent punishment. Whilst over one hundred countries world-wide have abolished capital punishment, and almost fifty have it under moratorium or have not applied it in over ten years, there is still thirty seven that use it in law and practise - include China, the United States, Japan, India, and nearly all of the Middle-East and southern Asian countries. China is the world's leader in capital punishment, far exceeding any other country, although precise figures, estimated to be around a few thousand per annum, are impossible to acquire as they are a state secret. On 2012 figures they are, however, exceeded on a per capita basis by Gambia, Iran, Iraq, Gaza, and Saudi Arabia.

Crime as an Offense to the State

Given these costs it is perhaps surprising that there is no consistent definition of what constitutes a crime, even in contemporary times. What constitutes a crime is defined as a particular category of offense under law. Blasphemy, for example, carries the death penalty in Saudi Arabia, Iran, Afghanistan etc, a prison sentence in Russia or India, and is technically still covered by criminal law in most Australian states and territories - the last case being carried out in Victoria in 1919, when the socialist journalist Robert Samuel Ross, who had published a satirical piece in which Bolsheviks ransack heaven, was convicted and sentenced to six months of hard labour.

It is not just offensiveness to religion that receives criminal attention. All dictatorships and even some democracies are not fond of criticism either and apply criminal sanction. In March this year German satirist Jan Bohmermann wrote a profanity-laden poem that insulted Turkish president, Recep Erdogan, which has led to criminal charges under "abusive criticism" (Schmahkritik) of a foreign state leader. In China there are numerous criminal offenses for undermining national unification, insulting the national flag, and even "harmful" messages - in August last year the Ministry of Public Security announced that more than 15,000 people were arrested for crimes that "jeopardized Internet security".

An important distinction, arising out of the mixing of Roman and Teutonic law in Britain, is the difference between civil and criminal law. Whilst the former refers to complaints initiated by an individual or organisation, typically for the purpose of identifying a particular wrong and seeking some sort of compensation, in the latter, the prosecution must be instigated and prosecuted by the State. Whilst often actions considered wrong in terms of universal moral principles - murder, rape, theft etc - are incorporated as part of criminal law, the fact that it is determined by the State, serves as a reason why thinkers such as Michel Foucault in his famous study 'Discipline and Punish' (1975) argued that criminalization is a method of coercive state control, the body that claims a monopoly on violence.

Abolishing Victimless Crimes

The clash between a moral universalism which recognises the inherent rights and liberties of individuals, and socially constructed laws that criminalise and violently punish, becomes immediately apparent in the notion of victimless crimes. Dating back to the founding principles of modernity, it is famously expressed by John Stuart Mill in his 1859 text 'On Liberty', "The only purpose for which power can be rightfully exercised over any member of a civilized community, against their will, is to prevent harm to others. Their own good, either physical or moral, is not a sufficient warrant... Over themself, over their own body and mind, the individual is sovereign." This principle is distinct from causing offence; what is classified as wrong is inflicting harm towards others without, or contrary to, their informed consent. Thus informed self-regarding acts and consensual other regarding acts, are considered to have no victims, and the application of a legal punishment for such activities constitutes a victimless crime, and with significant social expense.

Commonly cited examples of victimless crimes include those resources that have been spent on persecution of various sexual acts between consenting adults (e.g., homosexuality, prostitution), or the recreational use of illicit drugs. There is, of course, additional costs associated with by making such activities criminal; for example whilst the production cost of a drug is extremely low, restricting its supply to a black market through criminalisation provides opportunities for criminal syndicates and drives addicts to commit additional crimes such as theft and robbery.

An interesting limited example of a direct activity against such laws has been in Portugal, which in 2001 decriminalised drug use and personal possession, and treated addiction as a medical problem rather than a crime. Since then regular drug use has actually declined, the number of drug-related deaths has fallen by three-quarters, as has the number of HIV infections among intravenous drug users. The growing campaign of sex workers across the globe to have their work decriminalised is another insightful example, where there is growing recognition that it is not the work itself that generates exploitative relationships, but rather the contextual circumstances that are in part borne from its illegality that generate the grim circumstances.

Abolishing Structural Crimes

The call to abolish victimless crimes is not new, and it is something that has been advocated by political liberals for many decades. Taking the matter a step further, social liberals, social democrats, and democratic socialists are also attentive to the problems of crimes which are structurally derived. By this what is meant are those where criminal propensity correlates with economic deprivation. It is insufficient in itself to argue for equality before the law for all, when a portion of the population cannot afford such equality. Anatole France expressed the problem brilliant in Le Lys Rouge (The Red Lily) in 1894: "In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread."

Structural causes have been presented with a high degree of empirical correlations with the 2009 publication, "The Handbook of Crime Correlates" which reviews over five thousand empirical studies on crime that have been published worldwide. It is not surprising to discover that there are strong correlations between crime and social class; the poor and the unemployed are certainly several times more likely to engage in petty theft and crimes against property. They are also, especially the men, equally likely to engage in violent crimes against others. According to a United Nations Office on Drugs on Crime report of 2012 which reviewed police data from fifteen countries, during periods of sudden economic stress, the incidence of robbery doubles and homicide also increases. In both absolute and relative terms, for both income and wealth, the association between crime and inequality is strong.

But these structural crimes are not just economic, but also environmental. Backing up numerous previous studies, a publication by Macquarie University researchers and published in the Environmental Health Journal earlier this year looked at criminal statistics and air samples from six New South Wales suburbs over a period of thirty years, which showed that exposure to lead was associated with subsequent aggressive criminal behaviour, as lead exposure causes a loss of emotional control and impulsive behaviour. This is in addition to studies which show that early exposure to lead is associated with a six-fold increase in reading disabilities and a seven-fold increase in failing high school; themselves factors associated with criminality. People with such afflictions are certainly not pleasant company; but to what degree are they morally responsible for their actions, when their capacity for self-censorship has been impaired without their knowledge?

Abolishing 'Crime' as a Category

Removing victimless crimes from the statute books and engaging in appropriate social intervention to remove structural effects are well known methods to reduce the level of criminality and the associated social costs. A new approach however relates to a radical change to the application of of justice. Specifically, there is a growing body of evidence that shows that various approaches to justice are not especially successful at deterrence, recidivism, rehabilitation, or generating satisfactory outcomes. Instead of an approach of retribution against an offender who has broken a law, American criminologist Howard Zehr's proposed in the 1990 publication "Changing Lenses - A New Focus for Crime and Justice", the concept of restorative justice, which concentrates on the harm and violation to people and social relationships, and the restitution required, with dialogue between both the victims and the offenders. To use a pithy quote from criminologist John Braithwaite, Distinguished Professor at the Australian National University, "With crime, restorative justice is about the idea that because crime hurts, justice should heal." In fact, in a very real sense because it concentrates on restitution and restoration it converts crimes against the State to breaches of civil behaviour. In theory, crime is abolished even as a category.

Historically, restorative justice systems have been expressed in terms of restitution by many early civilisations. A well-known example of this was the Teutonic weregild method or the Islamic Diyya, where a value was placed on person and property; if someone was injured or killed, the responsible persons would have to pay weregild as restitution to the victim's family. Apart from incorporating class notions of varying value of different people (for example in Diyaa non-Muslims compensation rates have varied between 1/16th to 1/2 that of a Muslim), these methods also suffered a structural problem that allowed the very wealthy to engage in criminal actions that generated little sense of restoration on the part of the offender, rather like medieval Indulgences to the level of blood-money. However in more contemporary times, an income proportional method, or a day-fine, is applied for a number of more minor crimes, primarily in Finland where they have been in use since 1921, but also in Sweden, Germany, Switzerland, and Croatia.

Apart from direct restitution, the importance of dialogue as a practice has been critical, as it provides an opportunity for the victim and offender to discuss their experience of the offence. The victim engages in active role in describing the effects, the offender takes an active role in repairing the damage. A review of this approach from the University of Pennsylvania in 2007 indicted that it had the highest rate of victim satisfaction and offender accountability. Restorative justice methods have also been used in prisons, to assist with rehabilitation and reintegration, and there is good evidence that it significantly reduces recidivism. As a practise it has been particularly implemented in the field of juvenile justice, especially in Brazil, New Zealand, Canada, and New South Wales. On a systemic level, the principles of restorative justice were heavily utilised in the South African Truth and Reconciliation Commission.

The End of Crime

Taking a quote from the Unitarian minister Theodore Parker, Martin Luther King Jnr famously observed, "the arc of the moral universe is long, but it bends toward justice" - and we can see this with a long view of history. We can see that over time the criminalisation of people who actions have no victim as a result of their actions is a cause of unnecessary shame, of persecution, and of great financial and emotional cost. We can overcome our own prejudices and even dislike of certain activities, as long as we have sufficient respect that people are entitled to live their lives as they they see fit. We can come to realise - through careful empirical measures - how circumstances and the environment can drive people to engage in terrible behaviour that they would otherwise not engage in, and how it is more beneficial to fix the circumstances to prevent the behaviour, rather than punish the individual. We can build an environment where victim and offender, with the motivation of reconciliation and healing through justice, can come to an agreement on harm, restitution, and responsibility. Unitarians and Universalists can follow in the footsteps of their predecessors - Dorothea Dix, Mary Carpenter, Charles Dickens, and Samuel June Barrow in the quest for prison reform and its final abolition.

Obviously these methods cannot succeed with all people all the time. There is a handful of individuals who are immune to social interventions or admitting errors of behaviour. In some of these cases, sadly the alternative is incarceration in a mental health facility for the pathologically insane. Sometimes the structure is not right, or the results are not satisfactory. A 1998 South African study found that the South African Truth and Reconciliation Commission had failed to achieve reconciliation, because justice was an overlooked and necessary prerequisite. For his part former South African President P.W. Botha defied a subpoena to appear before the commission for his refusal to testify in relation to human rights violations and the violence sanctioned by the State Security Council (SSC) which he directed. This resulted in a fine and suspended sentence, but was overturned on a technicality.

What method of justice will be applied to former British Prime Minister Tony Blair, following the Chilcot Inquiry released four days ago? Or for that matter, John Howard and George W. Bush? It has determined that the case for the invasion was deficient, the legal basis was unsatisfactory, that the UK overestimated its ability to influence the US, that war preparation and planning was wholly inadequate, and that military action did not achieve its goals. When it comes to representatives of states who have engaged in actions resulting in hundreds of thousands of deaths, matters of restitution and restoration are more difficult. Whilst the abolition of crime in a legal sense may be possible on an individual level, it is not so clear when referring to crimes against humanity. Indeed, it may be that these are the last actions that can be called a crime under the classical system of punitive justice, for no restoration is possible when the atrocity is so great.

It is only under such circumstances that, despite a lasting and deeply considered conviction against the death penalty, that one can think with sympathy like Hannah Arendt when she said of Adolf Eichmann; "just as you supported and carried out a policy of not wanting to share the earth with the Jewish people and the people of a number of other nations - as though you and your superiors had any right to determine who should and who should not inhabit the world - we find that no one, that is, no member of the human race, can be expected to want to share the earth with you. This is the reason, and the only reason, you must hang."

Address to the Melbourne Unitarian Church, July 10, 2016