I have been thinking, lately, of crime and punishment. Maybe it’s because I’ve been watching Blue Bloods on Netflix, maybe it’s just because the media have been soaked in an unending stream of stories about police officers, criminals, and the innocents trapped between them. Maybe it doesn’t matter.

I think we’ve been going at this whole crime and punishment thing all wrong. We act like people are something we can standardize, like traffic lights. The thing is, laws aren’t there to keep us all the same, they exist to set boundaries so we can be different in ways that don’t harm others. Societies, even small ones like families, cannot exist without rules of behavior, and without societies, we’re all just monkeys waiting for the next hungry leopard.

So I’ve been thinking. The first thing that occurred to me is that we keep looking at all felony crimes as if they were the same thing. The truth is, a lot of felonies should be misdemeanors—some shouldn’t be crimes at all—and punishing them all with hard time (and a lifelong social albatross) serves no one. I think our justice system should be scaled to reflect how a different crime directly affects society and the people that make it up.

Moral Crimes

What I’m calling moral crimes, is any crime that offends someone else’s idea of what’s right, but has no other direct effect on other individuals and society as a whole. Recreational drug use, gambling, sexual activities involving only consenting adults, these are all things that, when they are illegal, are not illegal because of any actual harm they do, but as an effort to enforce some arbitrary standard of virtuous behavior.

In my mind, none of these should be crimes at all. The guy who undertips (or downright refuses to tip) a waiter is doing far more harm than the one who cools down after work with a joint, but only one of them is going down to Huntsville if he tries to limit his trips to the Fifth Ward to just one a month.

That’s basically my thoughts on moral crime. If you’re reason that something should be illegal is, “I don’t do it, so you shouldn’t either.” It shouldn’t be a crime. You should just learn to get past the differences expressed by others. That our jails are full of people whose only crime is needing an easy means to avoid the harshness of their day is an embarrassment to our nation.

Procedural Crime

A procedural crime is one where the law sets a minimum standard in order to protect the rest of us from your negligence. Most traffic, consumer protection, and building and safety codes are procedural laws. Essentially, if you break a procedural law, you may not have hurt anyone, yet, but you’re going to.

Often, a procedural crime informs the understanding of a greater crime. A family dies because one man was driving while intoxicated. Twenty men and women are hospitalized because someone cheaped out on building supplies. Negligence at a food processing plant results in hundreds of casualties, some fatal, from a preventable contaminant. In my mind, these are all violent crimes (more on those, later), but they are informed by the existence of a procedural crime.

Procedural crimes should carry fines if, and only if, there is no evidence of other crime resulting from the violation. Of course these fines should vary with (a) the potential severity of the violation, (b) the financial situation of the accused, and (c) how many times the accused has been found guilty of committing similar offenses.

In cases where such crimes are the result of company culture, the fines should go right up the hierarchy until the offending company can show that the supervisor had no reasonable means of expecting the violation. Companies that have a stated safety or quality policy would need to show that they didn’t set sales or production standards that made adhering to that policy impossible.

The lion’s share of money from procedural fines should go into a fund to compensate any potential victims. Failure to pay those fines, elevates the crime from a mere procedural, to a

Property Crime

Any time you deny someone the use or enjoyment of something that is theirs by right, you commit a property crime. Theft and vandalism are obviously property crimes, but so are fraud, profiteering, and predatory lending practices. Non-payment of taxes and fines are also property crimes (against the government).

This is where jail time should begin to rear its ugly head. The primary aim here should be restitution. It does the victim no good for the accused to go to jail. The victim has still suffered a loss (and don’t say “blahblah insurance blah” you know as well as I do that getting full value out of an insurance policy is like getting milk from a cat—it’s possible, but one of you probably won’t survive the experience).

Anyway, the punishments here should run on a sliding scale from simply paying the victim back (plus a punitive fine) through probationary labor or wage garnishing, up to incarceration on a work farm or prison factory. The length of any labor or incarceration would be wholly defined by the value of the lost property and additional fines for recidivism.

Violent Crime

If you knowingly bring harm to another person, you have committed a violent crime. As I said, above, committing a procedural crime informs the charge, here. If you were speeding through a school zone, and hit a child, in my mind, you are guilty of battery against that child (assuming he lives) just as much as if you had taken the tire iron out of your trunk and used it on him.

I should point out that I don’t consider simple assault (a threat of violence combined with the means to carry out that violence) to be a violent crime–it’s procedural. Assault raises theft to robbery; by removing the option of consent, assault turns sex into rape. On it’s own, however, assault should not be treated as a matter on par with violent crimes. There’s a wide gulf between, “I’m gonna kick your ass!” and someone getting their meals through a straw while they wait for their jaw to heal.

Violent felons should be removed from society, because they pose a clear and present danger to that society. First time offenders should be offered therapy and training to (hopefully) give them the tools to avoid committing their crime again. Repeat offenders should receive longer stays and more severe punishments depending on the severity of their offense and how many times they’ve committed it.

Violence should be looked at as partially a property crime. Hospital bills, lost wages, physical and psychological therapy are all expenses the victim would not have to shoulder if not for the actions of the convicted. So part of a violent felon’s sentence should be working for restitution for his victims. As a society, we should re-acquaint ourselves with the idea of weregild, because human lives have value, and that value should be paid by those who willfully destroy them.

Capital Crime

Some people commit crimes so heinous they can never be allowed to interact with society. Those people need to be removed. Lacking a secure habitat to exile them, I believe the only real solution is to put them down.

We must, however, ensure that we have the right person. Rules of evidence and debate in capital cases must be orders of magnitude greater than those in regular trials. Prosecutors must be prevented from using theatrics of any kind or any sort of visceral appeal during the trial phase. Juries must be allowed to determine guilt or innocence based entirely on the facts. It’s hard to say, “Not guilty” when you have ten crime-scene photos of bloody victims in front of you, and an officer of the court telling you, “This guy did it, are you going to let him get away?”

But that’s what we expect juries to do in capital trials. We shouldn’t, and we shouldn’t allow prosecutors to put juries in that position.

Obviously, there are holes in my plan, and much would need to be discussed, but I think it’s a good starting point.

Now we’re into the actual reasons the colonists felt they needed to “sever the bonds” with England. It’s a pretty big list, and while it’s not rare for a document of this type (like a request for divorce) to list some frivolous or minor complaints, it’s important to note that most of the specific complaints were addressed in the Constitution, either in the body or the first ten amendments.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

So, by the time of the Intolerable Acts, the process of passing laws in the colonies had become somewhat ponderous. The colonial legislatures would pass a law they considered very reasonable, say, “Orphans may not be used as fuel.” Then they would send it up to the colonial governor, usually a position appointed by the King. He would pass it with his signature—sort of—then he would send it across the Atlantic for approval. There it would go through Parliament (or at least the Foreign Office) to decide if the law was even worthy of being presented to the King. If it was worthy, it would go, along with any Parliamentary amendments or notes (“Orphans may not be used as fuel. Unless it is very cold.*  *This law does not apply to gingers or the Irish.”) The king would then use the law to line his birdcage, because Lord Chirpy-chirp wouldn’t go on common newspaper.

I’ve seen things, man…

Originally, the Founding fathers fixed this by making the individual states supreme in the new nation, with a national government so laughably weak that the Marvel Cinematic Universe panel at SDCC has more legislative power than Congress under the Articles did. The President under the Articles was such a meaningless figurehead that more people remember Millard Fillmore’s Vice President.

That worked out as well as you’d expect, so they made a Federal government with slightly more teeth, but they still addressed the root causes above. Under the Constitution, states have the right to make their own laws without asking the Fed’s permission, to begin with. More so, the President can’t just sit on a law forever—he has to sign or veto it within a certain time period. If he does veto the law, Congress can overturn that veto (by getting 387 lawyers and hacks to agree on something that may not directly line their pockets). Further, the ninth and tenth amendments clearly state that the Federal Government only has those powers specifically granted by the Constitution, reserving any other powers and rights to the states or the people.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole Purpose of fatiguing them into compliance with his measures.

He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the People.

He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative Powers incapable of Annihilation, have returned to the People at large for their exercise, the State remaining in the mean time exposed to all the dangers of invasion from without and convulsions within.

This sounds a little nitpicky, on the face of it. “Whah, Whah, the King won’t let State representatives earn a stipend for helping to decide if the state bird should be the Blue Jay or the Prothonotary Warbler.”

Yes, that’s my real name. I wanted Asskick McAwesomebird, but no one listens to a five ounce bird.

Except that’s not the whole thing. Believe it or not, almost every meaningful law that regulates your life is a state law, and federal laws are usually meaningless to everyday living. Also, it helps to remember that, before the rise of the automobile, any trip over thirty miles was at least an over-nighter. I also gather that this meeting-place resetting would happen without notice, so representatives would go to the colonial capital only to learn that they needed to be in West Stinkville, twenty miles up the road.

Of course, moving the legislature was generally less the action of the King himself, and more a thing the appointed colonial governors did, mostly for the reasons stated.

That last paragraph is the kicker, however. Laws are how we humans prevent the worst of us from making hay from the best of us, and they need to be periodically adjusted as they become pointless, or as truly inventive douchebags develop a workaround. Without a recognized government passing and enforcing laws, large-scale societies tend to fall into chaos, and, contrary to what the activities in Boston might lead one to believe, chaos is what they were trying to avoid.