The Problem of "Crime"

The Zeroeth Rule: If you want to debate anarchy, there are other threads for that in the Dissent Forum.

The First Rule: Before Objectivism, and without Objectivism, formal philosophy swings between the poles of false dichotomies. According to Objectivism, reality is to be understood by logic (non-contradictory thinking) applied to the evidence of your senses. In the history of criminal justice, we spent 2500 years with variations on retributionism before Bentham and Mill advanced a utilitarian theory of criminal justice. Unlike retributionist (collectivist; force-only; backward-viewing) models, utlitarianism attempted a capitalist (individualist; market-oriented; forward-viewing) definition and solution. Neither model is complete. Like the so-called "analytic-synthetic dichotomy" the "retribution-utilitarian dichotomy" exists not in reality but in the minds of philosophers.

1. The First Problem is the definition of "crime."

I offer this: A crime is committed when an individual has suffered a loss of value as a consequence of a violation of one or more rights. Rights are (first) naturally occuring attributes of individuals and (second) social conventions recognized by law.

Herbert Packer cites two problem cases from British experience. A woman tenders a 100-pound note to a clerk at the Bank of England, who puts it in his pocket. The clerk is found not guilty. His barrister argues successfully that the note was never the property of the Bank of England. It was never in their till or on their books, but went directly from the woman to the man. Parliament fixed that problem. A few years later, the same thing takes place, this time with an insurance agent. The insurance agent is found not guilty when his barrister points out that the law only applied to bank tellers, not to insurance agents.

Packer was not being trivial. His point was to question whether there can be a crime in the absence of law. In our day and age, if common sense violations of good manners are criminal offenses, then Anna Nicole Smith goes directly to jail without passing Go and collecting $200. The problem is two-fold: who has a right to what?; and what does the law say?

Corollary to the Zeroeth Rule: There are other threads for discussions of "rights." For instance, Robert Bidinotto has argued that his self-interest trumps your rights. That may be true -- certainly for him. His pursuit of his self-interest against the barrier of your rights is the kind of question that underpins the discussion of legalism in criminal law. Beyond that, though, like anarchy, the wider problem of "rights" is best explored in another Forum and Topic.

Post 1

Tuesday, May 2, 2006 - 6:52am

Michael, I don't get what the crime was. What is "tendering a 100-pound note" in terms of a crime? Was it a fake note or for some other purpose? Can you be more clear?

Post 2

Tuesday, May 2, 2006 - 9:29am

"Tender" simply means to present for acceptance. In other words, the woman gave the 100-pound note to the clerk who pocketed the money instead of depositing it in the bank as the woman intended. The crime is the clerk's pocketing the money, which was not intended for his personal use, as he was acting as the bank's agent.

- Bill

Post 3

Tuesday, May 2, 2006 - 7:13pm

William Dwyer correctly identified a fact of reality when he wrote: "The crime is the clerk's pocketing the money, which was not intended for his personal use, as he was acting as the bank's agent."

You would think so. However, as Packer points out, the court did not agree. That is especially significant because in the 18th and 19th century, much of British law was made from the bench. In other words (again from Packer), suppose that the police can arrest anyone for anything they disapprove of -- and a prosecutor can decide to make a case of it -- and they find a judge. We, today, would blanch at that as "justice" but that is how justice worked then and there and did work in much of the world for most of recorded history. So, for the court to reject the prosecution on the grounds that there was no specific, written law broken was especially formalistic for the time.

Even today, however, there are many (accepted) examples of "inchoate" or "preventive" law enforcement. We do not think twice about BURGLARY, but it is TWO separate offenses; the entering of the premises is not alone enough. That is merely trespass. Burglary depends on the commission of a felony (typically larceny) while on the premises. This is further abstracted when the police arrest someone for the mere possession of "burglar's tools" whether or not any burglary has taken place. Drunk driving -- whether or not any actual damage has occurred -- is another "inchoate" or "preventive" offense.

Another example is laws against "attempted" actions. Attempted murder is pretty well accepted. What is "attempted mopery"? By what standard does one measure attempt. Since attempt admits that the action did not take place, where is the crime?

Post 4

Wednesday, May 3, 2006 - 11:37pm

By what standard does one measure attempt. Since attempt admits that the action did not take place, where is the crime?

An attempt constitutes the choice to commit the act along with the failure to accomplish the intended result. As such, that choice deserves the same punishment as if the attempt were successful. What a person has volitional control over is only the choice to commit the crime, not its success or failure. Unanticipated factors may thwart the attempt; for example, the gun may jam or someone may stop him from committing the crime before he is able to pull it off. But that doesn't absolve him of responsibility for choosing the dastardly deed and trying to bring it about, even if his attempt fails. Therefore, any punishment must be geared to deterring the criminal's choice to commit the deed, not simply the success of that choice, which (once the choice is made) he has no control over.

- Bill

Post 5

Thursday, May 4, 2006 - 7:36am

If you didn't punish for an attempted crime you would advocate the means do not matter, but the end does.

Which is completely ridiculous, the means do matter. If someone attempted to kill me but failed, the only way government could intervene is when the killer eventually succeeded in killing me. What kind of perverse society would we have?

Reminds me of an incident at my business where we had problems of vandals constantly breaking into our vending machines. Finally we caught someone in the act of attempting to break into one, we got his license plate off his car as he fled, we called the police, and all those idiots could ask us was "well did he actually break into the vending machine?". He refused to do anything because he didn't finish the act of breaking in!! I felt like telling him does the phrase you have shit for brains mean anything? I live in a smaller town so you tend to get the bottom of the talent pool for police officers.

Post 6

Friday, May 5, 2006 - 1:22am

John, LOL! Amazing, isn't it?! This, of course, is the failure of philosophy - the failure to think in essentials.

Besides, I suspect that your local police may not be up on the law. Here is a definition of burglary from the law.com dictionary in which mere intent is sufficient.

burglary n. the crime of breaking and entering into a structure for the purpose of committing a crime. No great force is needed (pushing open a door or slipping through an open window is sufficient) if the entry is unauthorized. Contrary to common belief, a burglary is not necessarily for theft. It can apply to any crime, such as assault or sexual harassment, whether the intended criminal act is committed or not. (Emphasis added)

If the intended criminal act needn't be committed in order for the crime of burglary to apply -- if clear intent is all that is necessary -- then why does it need to be committed in order for the crime of vandalism to apply? Wouldn't clear intent be sufficient in that case as well?

- Bill

Post 7

Friday, May 5, 2006 - 12:07pm

Bill, the stories I could tell you about the follies of my local Police department would astound you. I won't name the police department for fear of any retribution. But you are totally correct. In fact we were victims of larceny, (someone broke into our offices and stole over 8000 dollars by taking our entire safe). So we had a detective assigned to the case, he was a lot better than the average patrolman of course. We told him of that incident with the vending machine and he took immediate action. He was astounded the patrolman at the time did nothing. So I guess there's some hope with the local police. But, he kept insisting on this bizarre theory of how the burglar broke in (we found broken ceiling tiles and we ascertained they broke in by going through the ceiling from another room, but he insisted it was a diversion to the real way he broke in yet offered no other explanation).

Another time we had a guest stay in our hotel. He got into a hit and run accident and fled the crime scene, and went to his hotel room. An hour after the incident, (since it was that long since the crime happened, they were not in hot pursuit of the criminal) the local police came, demanded that we tell them what room he was in so they could go arrest him. We demanded they show a warrant for an arrest or a search. (According to the law, you have the same right to privacy in a hotel room as you do your house). So once we said that, we were threatened with arrest, they demanded to see our liquor licence, made vague threats of contacting the liquor commission, and continued their threats they would slander our business and ruin us by saying we didn't cooperate with a criminal investigation. They even forced themselves to our back offices against our will. We were going to sue but we couldn't find a lawyer with a back bone to take a case like that and eventually the whole thing subsided.

Not even one year before, a similar incident happened in a neighboring town where someone actually robbed a convenience store, fled to his hotel room, hours later the police came to that hotel, got a room key from the front desk clerk, and arrested the perp without a warrant. So what happened? Not only were the robbery charges dropped because the police violated his 4th amendment rights, but the hotel was sued for violating his privacy rights, and the perp won a 300,000 settlement! This was one year before and was all over the local paper! And here were these boneheads demanding we break the law for them!

I have many more stories but I'll leave them for another day.

-John

Post 8

Friday, May 5, 2006 - 12:35pm

John, I don't envy your owning a business. The kind of draconian and unreasonable requirements placed on business owners these days by various laws and regulations is amazing. It's a wonder that any business owner is willing to put up with such nonsense. What the hell are these legal authorities and law enforcement agencies thinking??

Time to shrug! ;-)

- Bill
(Edited by William Dwyer
on 5/05, 12:36pm)

Post 9

Friday, May 5, 2006 - 1:23pm

The laws are very draconian for business owners. But I need to make a living and survive. The number of government agencies that make regular visits to our business is astounding. We have;

1) Fire marshall
2) Health Department (Restaurant, and pool)
3) Liquor Commission
4) State Elevator Commission
5) Homeland Security (to check on our personnel files)
6) OSHA

...and many more, honestly I can't even always keep track, they just show up wave a badge and demand inspection.

We have insurance up the wazoo for possible liability claims.

We have to pay the sales tax quarterly through electronic payment or risk having our business confiscated.

We get regular IRS audits every two to three years.

Before we could even build our business, we had to pay for a 30,000 dollar dam for water run-off issues before the town would let us build.

We're regulated as to how many trees we need to have in our parking lot, our sign size is regulated, the number of signs we can have on our property is regulated.

Our shuttle van for our customers requires a special vehicle licence.

The entire building must be handicap accessible.

I wanted to put in mini-bars in our rooms but the license fee would've been 28,000 dollars a year.

We were victims of a fraudelent sexual harrasment case (believe it or not, the employer is responsible when one of his employees sexually harasses another, me nor any of my business partners were even accused of the harrassment!!)

We pay compulsory state unemployment insurance and are penalized whenever we fire someone, despite documenting their incompetence or flagrant disregard for our business.

..phew, ok I don't need to be depressed anymore going to stop now....

-John
(Edited by John Armaos
on 5/05, 1:24pm)

(Edited by John Armaos
on 5/05, 1:25pm)

Post 10

Friday, May 5, 2006 - 10:24pm

Let us start from first principles. It is pretty easy to complain about the way things are: the present situation just evolved haphazardly by the application of non-objective law. What would an objective legal system be?

In an objective legal system, there would have to be at least a putative potential victim. Would drunk driving be illegal? Absent any actual accident, where is the "crime" so-called in driving under the influence of intoxicating liquors (DUIL)? It can be argued on the one hand that without a victim, there is no crime. On the other hand, why wait for an actual victim? (See the above complaints about the attempted larceny from a vending machine.) Given the statistical preponderance of evidence that driving while impaired creates a danger for others, is there not reason for DUIL to be a crime?

Now, we might say that in a perfectly capitalist society, all roads would be privately owned. The owners could set any rules they want. They could let you drive drunk or they could refuse to let you be on their roads if you are "too old" by any standard they choose -- or even by no standard, if they choose, as it is their road.

John Armaos wrote: Before we could even build our business, we had to pay for a 30,000 dollar dam for water run-off issues before the town would let us build.

Should we wait for your construction to negatively affect the property of others by flooding, or creating a flood likelihood? Again, in a perfectly capitalist society, there would be no "we" as there would be no public property -- and face it, no "public" at all. So the owners of the land you buy would be loathe to open themselves up to claims of loss by your construction and would therefore require the $30,000 dam. Alternatively, the owners of all the other potentially affected property could sue for protection against loss -- thus the insurance liability requirement Armaos complains of?

My question is: How do we parse these problems out against an objective standard of judgment?

I believe that in a completely capitalist society, might have more restrictions in these very areas of human action. Agreed that on the other hand, many other problems would not exist such as IRS audits, nonetheless, you cannot do whatever you want when you choose to benefit from associating with other people. When you choose to associate with other people, you accept the metaphysical fact that your freedoms end where their rights begin.

Post 11

Friday, May 5, 2006 - 10:51pm

"Jury: Cop coerced innocent man onto death row"
http://www.cnn.com/2006/LAW/05/05/inmate.award.ap/index.html

We Objectivists are between a rock and a hard place when it comes to law enforcement. On the one hand, Objectivism's intersection with conservatism creates and rewards a "law and order" prejudice. On the other, we distrust govern-mentality. Way back when (c.1965), Nathaniel Branden bragged about an FBI agent who used "Wesley Mouch" as an undercover pseudonym. In that same time frame, writing about "bootleg Romanticism" Ayn Rand claimed as a "plot theme" for James Bond stories, "Patriotism versus Foreign Agents." Even as a teenager in 1965, that was not satifactory to me: what if the "foreign agents" (so-callled) were working for Ragnar Danneskjold who sold his goods on the black market? True, James Bond was working against the Soviets, but there was this tension vis-a-vis the CIA. America had it faults even then, but we were way better than the welfare state, brainly drained Brits. So, what was it with James Bond? "Patriotism versus Foreign Agents" seemed (and was) foggy as a referent.

We want the police to go out and get the obviously guilty. Unfortunately, to err is human. Thus, we have a Bill of Rights appended to the Constitution.

Is there an application of objective standards that actually works? It is possible -- scary as it may be -- that this is the best of all possible worlds. We might in a future capitalist utopia have no IRS. On the other hand, you might wish to trade them for the actual world you live in.

A long time ago, I worked with a guy from Iraq who was here having emigrated from Syria. He wanted to go home to Syria to go into the software business. Why? "Your taxes are too high," he said. How can you say that? I demanded. "In Syria," he said, "the guy comes and tells you how much you owe the government and you give him half that much in cash and he goes away. You cannot do that with your IRS: they are paid too well."

Post 12

Friday, May 5, 2006 - 11:16pm

Michael perhaps I didn't make myself clear enough about the dam we bought. That dam served a purpose for a large number of businesses on the same road we are located. Essentially, we paid for a dam that all businesses or our road was contributing to the water run-off. Essentially it was extortion from our business neighbors. Why were we soley responsible for a $30,000 dam that a multitude of businesses were contributing to that water runoff? Because we were the new kids in town, we were given the bill. If not us, than someone else on a different property, perhaps across the street, would pay the bill. Basically it was a way for the town to get out of taxing the other businesses equally for contributing to that externality they were contributing to! We weren't even given proof such a dam was needed. For all we know, the state mandated long ago they needed to build a dam, and were the easy victims to extort the money out of.

Also, when I said "WE", I was refering to me and business partners who own the business. That is "we", 5 people. I don't solely own the business, most hoteliers down solely own a hotel, it's a huge investment. It was not some kind of collectivist ideal I was espousing. I literally meant "WE" the business owners of said hotel.

And also, you say "When you choose to associate with other people, you accept the metaphysical fact that your freedoms end where their rights begin."

It's my PROPERTY. Does anyone on this forum think the regulation of the number of trees I must have on my property constitutes "accepting the metaphysical fact that your freedoms end where their rights begin", what right does anyone have to tell me I must have 7 trees in my parking lot? I mean honestly, are you out of your mind?

That I must have handicap accessible ramps in every corner of my building is where my freedom ends and where their rights begin?

So if I'm not handicap accessible, then handicap people don't have to come to my business. It's not their right to dictate how I ought to build my property to make THEIR LIVES COMFORTABLE when it's accomodating less than 0.5 percent of my clientel yet costing me 10 percent of my building costs.

How is paying 28,000 dollars a year for minibar permits is "accepting the metaphysical fact that your freedoms end where their rights begin". This nothing but government EXTORTION.

How is sexual harrasment "accepting the metaphysical fact that your freedoms end where their rights begin" when we're held responsible for other people's actions? I want to make this clear, we settled not because we were guilty, but because it was economically more sensible to avoid extended legal costs. It was not infringing on someone's right, we were victims of a SHAKEDOWN.

I provide jobs for 60 people, none of these bureaucrats that come to my business has provided for anyone's livelyhood.

(deleted some comments I made that I feel were a little presumptuous. My apologies to everyone)

(Edited by John Armaos
on 5/05, 11:28pm)

(Edited by John Armaos
on 5/06, 1:09pm)

(Edited by John Armaos
on 5/06, 1:17pm)

Post 13

Friday, May 5, 2006 - 11:51pm

I also like to know how paying for someone to sit on their ass for 6 months, (compulsory unemployment insurance) is "accepting the metaphysical fact that your freedoms end where their rights begin"?

I fired someone for being routinely absent from work. She was absent 17 times in a 6 month period. I lost the unemployment hearing. Why? Because only the two out of three times I documented why she was absent constituted what they deemed as a "bad absent". The last absence she had they said constituted a "good absense". I literally, provided documentation she was absent 17 times from her shift, I provided time cards and schedules. She was given 3 written documented warnings before being fired, but I still had to pay up for her to sit on her fat lazy ass for 6 months? It's like I can't win. Because I had the deeper pockets, I had to pay.

Give me a break.

Post 14

Saturday, May 6, 2006 - 9:01am

John asked:

Seriously, am I the only one here that actually owns a business? ... Does anyone here write a payroll check for even one person? Checks that pay for these people's shelter, food, their LIVELYHOOD?

I don't, but I appreciate that fact that you do, and I resent the fact that you have to put up with so much government interference in running your business. Keep up the good work.

Michael said:

When you choose to associate with other people, you accept the metaphysical fact that your freedoms end where their rights begin.

One of your less astute comments, Michael.
Glenn

Post 15

Saturday, May 6, 2006 - 11:24am

Michael wrote,

Way back when (c.1965), Nathaniel Branden bragged about an FBI agent who used "Wesley Mouch" as an undercover pseudonym.

Really! I'm surprised he would do that in so public a manner, because those pseudonyms are there to protect the agent in case information about certain FBI-related activities is ever disclosed. The Freedom of Information Act allows interested parties access to sensitive information. So, it's important that the confidentiality of undercover agents be protected; hence, the pseudonyms.

- Bill

Post 16

Saturday, May 6, 2006 - 1:11pm

Glenn thank you for your kind remarks. I believe I was a little too emotional in those last two posts so I deleted some comments that I feel were presumptuous. My apologies and I hope I didn't offend anyone.

Post 17

Saturday, May 6, 2006 - 2:27pm

I think it is reasonable to punish someone for an attempted crime. I think the punishment should be less severe than actually committing the crime. I haven't been convinced that DUI is a crime. But some of the things that a person DUI does my very well be considered a crime.

John, thank you for your discussion.

Post 18

Saturday, May 6, 2006 - 3:03pm

I think it is reasonable to punish someone for an attempted crime. I think the punishment should be less severe than actually committing the crime.

On what grounds? If a person is responsible only for his choices, not for whether they succeed or fail, and what is open to his choice is only the attempt, not its success or failure, then on what grounds do you punish him less for a failed attempt than for a successful one? Isn't his transgression just as heinous in the one case as it is in the other?

I haven't been convinced that DUI is a crime. But some of the things that a person DUI does my very well be considered a crime.

Why don't you think that DUI should be a crime? Driving under the influence is an unwarranted hazard, just as driving with poor eyesight is. Should an elderly person with severe macular degeneration be allowed to drive? If he shouldn't because his vision is impaired and he is likely to cause an accident, then why should someone be allowed to drive who is accident prone because his reflexes and judgment are impaired?

- Bill

(Edited by William Dwyer
on 5/06, 3:50pm)

Post 19

Saturday, May 6, 2006 - 4:22pm