Every prison that men build
Is built with bricks of shame
And bound with bars lest Christ should see
How men their brothers maim
- Oscar Wilde
In criminal law, there are two kinds of offenses.
One type of offense is called “mala in se.” The action is bad in and of itself. These are offenses that involve obvious moral turpitude, usually against another: Murder. Rape. Theft. These crimes would be seen as wrong whether there was a law against them or not.
The other type of offense is called “mala prohibita.” There is nothing inherently bad about the offense. These are seen as wrong not because they involve moral failure. They are wrongs only because we have prohibited them: Driving uninsured. Failure to pay taxes. Betting.
Plaxico Burress has been jailed since 2009 for actions that were mala prohibita. There is nothing inherently wrong with owning or carrying a gun, particularly in a nation with a constitutionalized right of gun ownership. Shooting himself in the leg was an act of stupidity at worst and negligence at best, and since the harm was only to himself there was no act of moral malfeasance by Plaxico.
None of the various reasons for incarceration satisfied the need to jail the man. Punishment? A stripping of freedom is too severe for offenses mala prohibita. Rehabilitation? He needed none, and if there is an argument that he did, he could be rehabilitated outside of jail since he posed no threat to anyone. Deter others? If we are going to use that as a justification for offenses mala prohibita, then start locking people up for illegally parking their cars. A car blocking the view of an intersection can kill just like a gun can kill.
Plaxico should never have been jailed, and were he not in a leftist, anti-second amendment place like New York City, he would not have been jailed.
America’s history is fraught with freedom. The fight to end the 10,000 year old human act of slavery started the moment America was born, and after we crushed it here, we turned our attention to freeing people from oppression in Europe, Asia and the Middle East.
Yet today America seems to strip the freedom of her own with alarming frequency. There are about 2.2 million people in American prisons, and if you count the people on parole and probation, the number is 7.2 million people. The number of people arrested in America is a larger population than more than half the countries on earth.
It is understandable to be tough on crimes mala in se. An overreaching by the criminal justice system on matters mala prohibita is antithetical to America’s promise of a government that concedes our freedom comes from an unalienable endowment by God, not the laws of other men.
Welcome home, Plaxico.
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May '10
Re: Plaxico Burress Out Of Jail, But Why Was He In? A Reflection On American Over-Incarceration
Law was not always the only means by which communities encourage moral behavior and punish abuse. Freedom requires responsibility. Too many Americans have abandoned freedom by failing to take responsibility for the actions around them. Uncivil behavior is frequently allowed to go unpunished due to a combination of apathy and dependency. These days, one can't even comment on another's misdeeds or propose an objective good without being accused of self-righteousness.
A moral vacuum is quickly filled by legislation. At this point, our legislators should be focused almost entirely on stripping away laws, rather than creating them. Government has wrongly usurped the role of moral conditioning.
Re: Plaxico Burress Out Of Jail, But Why Was He In? A Reflection On American Over-Incarceration
Terrific point, Aaron.
Re: Plaxico Burress Out Of Jail, But Why Was He In? A Reflection On American Over-Incarceration
A year or so back, the Heritage Foundation published Overcriminalization: One Nation Under Arrest (i'm typing on my iPad so no link) --chilling stuff. Former AG Ed Meese is leading an ongoing effort to fix the trend towards criminalizing seemingly everything.
Nov '10
Re: Plaxico Burress Out Of Jail, But Why Was He In? A Reflection On American Over-Incarceration
The great part about this is how the left love to point out how we incarcerate more people per capita than so many other places, meaning many things to them at various times. But the most important thing it means is how terrible the United States is.
Jan '11
Re: Plaxico Burress Out Of Jail, But Why Was He In? A Reflection On American Over-Incarceration
The deeper philosophical problem is that incarceration is frequently the only arrow in the quiver. How does society respond to violations of our common standards?
We'd probably agree that prison should be reserved for people who represent an actual danger to the community. A marijuana peddler, by and large, only harms people who come to him seeking the harm in the first place. Pressed for prison space, we'd probably not want to waste it on a marijuana peddler.
But then, how do we respond to the peddler? Do we just let it go?
We could fine him. OK, stop laughing ...
What else have we got? Forced menial work? Twenty lashes? I'm open to alternatives.
Jun '10
Re: Plaxico Burress Out Of Jail, But Why Was He In? A Reflection On American Over-Incarceration
This is a small but illustrative example. Coquitlam, B.C., just recently banned smoking near doorways. Dutifully Starbucks posted their outdoor tables with stick-on no smoking signs. The day the stickers went on they were ripped off as their customers happily smoked while drinking their coffee. Taking the no smoking imperative seriously, Starbucks invested in plastic no smoking labels that the company riveted to their tables. Over the last four of five months the plastic signs have been burned, scratched, or otherwise vandalized into illegibility as the Starbucks customers happily and persistently keep smoking while drinking their coffee. I'm a non-smoker, so I don't particularly care one way or another about this outcome, but I laugh every time I see these silly scarred no-smoking signs because they are a constant reminder of legislated stupidity in response to anti-tobacco hysteria. If only legislators knew how they bring the law into disrepute, they wouldn't show up for work as often as they do. Mala Prohibita, indeed.
May '11
Re: Plaxico Burress Out Of Jail, But Why Was He In? A Reflection On American Over-Incarceration
I don't think you can suggest that all "mala prohibita" (my crim law professor used malum prohibitium) offenses should not carry jail time. Tax evasion is mala prohibita, yet without the fear of jail the tax system would break down.
In this particular case, however, I agree with your conclusion. Jailing Mr. Burress probably did society no benefit. Given his wealth, I do hope he was forced to pay the cost of his incarceration.
Dec '10
Re: Plaxico Burress Out Of Jail, But Why Was He In? A Reflection On American Over-Incarceration
Criminalizing everything is a tool for soft despotism. If it is impossible to go through a week without doing something illegal, than our freedoms are held at the whim of inconsistent legal administration.
This is part and parcel of the Jefferson Memorial brouhaha. Of COURSE those people are, to paraphrase the Texas formulation, "people that just need jailin'." But we should not design our legal code to achieve this, no matter how good it feels. It jeopardizes the rights of the rest of us.
Unless, of course, you prefer the composition of our jails be determined by unelected bureaucrat lawyers appointed by partisan politicians...
Edited on Jun 6, 2011 at 8:15amAug '10
Re: Plaxico Burress Out Of Jail, But Why Was He In? A Reflection On American Over-Incarceration
This has been the 'progressive' agenda and mantra in America for 110 years; i.e., use the power of government for social engineering. It was 'progressives' who pushed through Prohibition, but they always wanted a whole lot more in the way of social justice. They had to wait for FDR and the ultimate crisis that gave them the excuse for radical social engineering.
It's massively ironic that the party that pretends to embrace freedom and equality ends up being the most oppressive and vengeful, dedicated to taking away choice.
May '10
Re: Plaxico Burress Out Of Jail, But Why Was He In? A Reflection On American Over-Incarceration
I agree that's another core problem.
As I've argued before, moderate forms of corporal punishment are far more merciful than locking someone in a concrete cage for years on end. These days, we have the capability to inflict pain without lasting injury (though, in severe cases, scars could be useful reminders).
Re: Plaxico Burress Out Of Jail, But Why Was He In? A Reflection On American Over-Incarceration
KC Mulville: The deeper philosophical problem is that incarceration is frequently the only arrow in the quiver. How does society respond to violations of our common standards?
We'd probably agree that prison should be reserved for people who represent an actual danger to the community. A marijuana peddler, by and large, only harms people who come to him seeking the harm in the first place. Pressed for prison space, we'd probably not want to waste it on a marijuana peddler.
But then, how do we respond to the peddler? Do we just let it go?
We could fine him. OK, stop laughing ...
What else have we got? Forced menial work? Twenty lashes? I'm open to alternatives. · Jun 6 at 7:59am
What about the old Civilian Conservation Corps? Although not formally part of the program, I understand judges often gave folks the opportunity to serve in it rather than waste away in prison.
Re: Plaxico Burress Out Of Jail, But Why Was He In? A Reflection On American Over-Incarceration
I do not doubt that we jail people who need not and should not be jailed. But we should be careful in this matter. One of the main reasons why violent crime and crimes against propertyholders have gone way down in recent years is that a great many of those inclined to commit such crimes are now kept behind bars for longer periods than in the past. I remember what it was like in the 1960s and 1970s when the liberals let the criminals run rampant, and I do not want to return to those days.
Jan '11
Re: Plaxico Burress Out Of Jail, But Why Was He In? A Reflection On American Over-Incarceration
As I say, I'm open to ideas.
I'd prefer that any ideas should be presented for public approval first, rather than having a panel try to impose it bureaucratically. I also agree with Professor Rahe, that we have to be careful. But all things considered, I suspect that we could develop some workable alternatives to prison.
Re: Plaxico Burress Out Of Jail, But Why Was He In? A Reflection On American Over-Incarceration
I agree some caution is needed so as not to ruin the rule of law and consequences for bad behavior.
Perhaps a review of just mala prohibita offenses is in order (which will create a debate about which offenses are such, and which are mala in se).
It's a worthwhile effort to try. I just don't understand why my local bookie goes to jail while my governor receives receipts based upon Casino bets, horse racing and the lottery. I'd rather tax the fellow than send him to jail.
Edited on Jun 6, 2011 at 10:15amMar '11
Re: Plaxico Burress Out Of Jail, But Why Was He In? A Reflection On American Over-Incarceration
I have always found insider trading laws absurd. As it is someone who knows upper management who works in a publicly traded company is going to have a large advantage over the average investor. The fact that I am not allowed to know specific information that is not classified is insane.
Most Statutory Rap laws are also crazy, and this is upheld by mostly “Conservatisms”. I am not saying it is moral right but especially in cases were the parties get married. Being on a sex offered list for the rest of your life due to having pre-martial sex with your wife, this is an absolute perversion of the rule of law. I am someone who is actually for capital punishment in some rap cases. To me if one party is going to be punished for statutory rap both should be. The fact they are so selectively enforced adds to the outrage.
Aug '10
Re: Plaxico Burress Out Of Jail, But Why Was He In? A Reflection On American Over-Incarceration
Very good point.
Aug '10
Re: Plaxico Burress Out Of Jail, But Why Was He In? A Reflection On American Over-Incarceration
Wow, you really must not like rap music.
But seriously, my guess would be than in the "olden days", they probably thought the shame a girl would endure because of statutory rape was enough of a deterrent. Now it's not.
Where the power difference is large (because of large age difference, or for some other reasons), a charge of statutory rape still make sense to me (young adolescents -- especially in our society -- are not adults, and can't be expected to be able to accept or reject sexual advances like an adult). So I favor "Romeo and Juliet" laws.
Aug '10
Re: Plaxico Burress Out Of Jail, But Why Was He In? A Reflection On American Over-Incarceration
Aaron Miller
I agree that's another core problem.
As I've argued before, moderate forms of corporal punishment are far more merciful than locking someone in a concrete cage for years on end.
Also agreed. For that matter, if I were guilty of a heinous crime, I would rather face execution than a life in prison (and if I weren't guilty, and had exhausted my chances for appeal, I think I'd rather die than spend my life locked up, knowing I was innocent).
KC Mulville:
We could fine him. OK, stop laughing ...
What else have we got? Forced menial work?
There's community service, isn't there? That's forced menial work... sort of.
Though if even the innocent (as even some conservatives desire) face compulsory community service, it's not really distinctive as a punishment.
Re: Plaxico Burress Out Of Jail, But Why Was He In? A Reflection On American Over-Incarceration
Tommy De Seno It's a worthwhile effort to try. I just don't understand why my local bookie goes to jail while my governor receives receipts based upon Casino bets, horse racing and the lottery. I'd rather tax the fellow than send him to jail. · Jun 6 at 10:13am
Edited on Jun 06 at 10:15 am
Tommy, the main problem isn't the local bookie--presumably the guy running numbers in town knows that his business activity is prohibited. The Heritage book I cite earlier details chilling examples of regulatory rules, unknown to the "perpetrator" and inconsistently enforced, leading to honest citizens being jailed as convicted felons simply for participating in business.
For example, the founder of one small seafood importation company went to prison because an exporter in a Central American country shipped him lobsters in clear plastic bags, ostensibly violating local (not US!) rules requiring shipment in cardboard boxes. During trial, the foreign government in question testified for the defense, submitting evidence that the regulation being enforced in the US was not properly enacted and was therefore not being enforced. Our victim went to prison just the same.
Start a business, go to jail?
Nov '10
Re: Plaxico Burress Out Of Jail, But Why Was He In? A Reflection On American Over-Incarceration
I have to agree with Paul, here. This is not just a case of some guy carrying a gun and getting smacked down by overzealous regulators. This is a case of someone being reckless with said gun in a public place; the fact that no one was harmed other than him is pure luck, and not something that should be seen as exculpatory.