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.

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.”

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.

So the next few bits of the Declaration are ultimately a rehash of Humanist philosophy from Locke’s Rights of Man to Rousseau’s Social Contract.

That to secure these rights, Governments are instituted among Men, deriving their powers from the consent of the governed.

In that one sentence, the Signers completely disavowed any concept of divine government. There was to be no Noblesse Oblige, no Divine Right. The existence of government relies entirely on the People’s need to secure the rights that are native to the human spirit, and may exist only as long as the People, who created it, allow it to exist.

That whenever any Form of Government becomes destructive to these ends, it is the Right of the People to alter or abolish it, and to institute new Government, laying its foundation on such principles and organizing its Powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Humans have two attributes that propelled a plainsland ape from being lion kibble to becoming the single most successful species in the 4 billion year history of the world. We like to associate with other humans, and we can think—and communicate—in abstract symbols. We engage both of these attributes when we create a government, because we have created a small, abstract group that has authority over the individuals of a larger group.

But the abstract group is owned and controlled by the larger group, and all of the individuals therein, have the right and the responsibility of ensuring that government obeys the laws and ethics of the larger group. This is a basic foundation of American life; it’s something that we are taught in subtle, iconic ways from the cradle to the grave.

It is the single key to the American mindset, because we make no distinction between a government and its people. Why? Because the government is the tool and the responsibility of the people. If a government is evil or destructive, then it is the responsibility of every man, woman and child in that nation to change it.

The saddest, most aggravating part of that is the surprising number of Americans who seem to forget this one basic truth. Every person who refuses to vote, every person who closes their mind and ears to political discussion and debate, everyone who doesn’t scream in outrage when a person in power commits an outrage, is complicit in the creation of a dictatorship.

Look at America as a farm. Everyone needs to help pull the weeds; it doesn’t matter if those weeds are dandelions or daisies, they’re choking out the life of the crops and that means they’re destroying the farm. That means your destroying the farm. Enjoying the way the parachute-seeds from dandelion puffballs fly is no excuse; neither is loving the simple beauty of a field of daisies. Every puffball is about a hundred new dandelions, and every field of daisies is a field that’s not feeding the farm.

Anything wrong in government, especially those things that come close to what we want, has to be inspected and discussed, objectively, dispassionately, and with an open mind. The USAPatriot Act addressed fears that a lot of Americans had, but it opened unbelievable and nearly overpowering doors to government power that should never even exist. The ACA addressed the growing crisis of medical treatment in the country, but it did so by handing out corporate favors and intruding on personal rights in ways never before seen. Both laws have their proponents and detractors. Both laws are broken and need to be fixed or repealed. Turning a blind eye to that fact just lets the weeds grow.

When someone complains about NSA phone-tapping or unlimited interment in Club Gitmo, it is everyone’s responsibility to ask the hard questions. “Can we do the same thing without such extreme measures? If not, is our safety worth our liberty? Is a nation where boarding an airplane is like a border crossing in Occupied Europe, and having a common name can relegate you to the bus station even really free?”

Same thing with the ACA. It’s not a matter of how many people were driven to bankruptcy before its passage. You have to ask the questions that trouble you, even if you support the overall idea of the act. “Why has nothing been done to regulate hospital billing, or the cost of medications and supplies? Why are prescription drugs advertised on national TV? It’s one thing to say that everyone should have access to health insurance but why does that mean everyone must be insured? Does a Right to Life presuppose a Right not to Die? Should it? Ever?” Ask and keep asking until the answers are the ones you like.

Because governments are instituted among men to protect those rights, but it is the right of the people to alter or abolish it. The rights are all of ours.

So is the responsibility.

I’m going to indulge my arrogance and pretend I know better than others. It’s a thing I do, sometimes, because my head is full of thoughts and I have to shove them out like a hoarder needs to shove the debris out of his home, if only to make room for more. So, what I’m going to do is, I’m going to parse the Declaration of Independence. Saturday is Independence Day, so it’s a good time to remind people why we felt we needed to be our own country, and some of the ideals we hoped the new one would espouse.

A lot of people forget that, while the Declaration is definitely one of the founding documents of our nation, nothing in it, except the Declaration of Independence from the British Empire has the force of law. All of the lofty phrases and brilliant ideas are statements of philosophy only. Ways for the drafters to lay down, on paper, the driving principles they hoped the new nation would embrace and embody. So, let’s get started:

When in the Course of human events it becomes necessary for one people to dissolve the political bonds which have connected them with another, and to assume among the Powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

In these days of no-fault divorces and lifelong relations dissolved over Facebook comments, it’s hard to remember that, once upon a time, it was considered unthinkably rude to close the door on a relationship without explaining why it had to end. The Signers of the Declaration were mindful of this, and drew up this outline of grievances to show the world that they were not merely petulant children using the threat of independence to get special treatment for their colony.

This was the Second Continental Congress, and both this one and its predecessor had sent letters of redress to the Crown and to Parliament. Shots had already been fired in anger before this Congress met, and, even though they agreed to organize a defensive force under George Washington, they still hoped, at first, that there might be some sort of reparation.

This was a Dear John letter. “Dear England, We’re sorry. We tried, we really did, but it’s just not working out. This is why we have to leave. If the reasons sound familiar, it’s because they’re the same things we’ve been saying for five years.”

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights,

Let’s take a moment, here to snuff out a stupid debate I’ve heard from time to time. All of these men, with the possible—possible—exception of Benjamin Franklin, were Christians. They were not modern evangelicals, but they did believe in, and at least give lip service to, the Christian God. Most of them held a Deist version of the faith, that is they believed that God was out there, somewhere, probably, but didn’t consider God to be concerned with individual lives, or even the current state of the world.

There were a few reasons for this. The Calvinists among them believed that God had set everything in motion on an imperturbable path and every choice, every decision was already written down and accounted for. For the most part, others believed that, in order to be worthy of God’s Great Kingdom, they had to show that they could handle man’s little kingdom well enough. They all thought about God, but in an abstract, the way people who live in Eastern Colorado think of the mountains that loom ever on the western horizon.

And they were from a number of different denominations. Most were Anglican (or Episcopal, if you prefer), some were Methodist, Baptist, Lutheran, or Presbyterian. A few were Catholic. Franklin was raised a Friend (Quaker), but his writings at the time suggest that he was agnostic, at best.

Excepting the Anglicans, most of them (or their ancestors) came—or were sent—to the Colonies because they were either persecuted or disenfranchised at home. That is why God is mentioned exactly twice in the entire document, and in vague, general terms.

Each man had his own belief, but however deeply he felt it, he felt that his needs, and the needs of his neighbors and country, were better served by his allowing that others might see the world differently. Even if he thought they were wrong in their faith.

that among these are Life, Liberty and the Pursuit of Happiness.

Earlier drafts replace “pursuit of happiness” with “security of property.” It’s open for debate whether Jefferson changed it on his own, or whether the other drafters thought mentioning property so directly was crass. In any case, the vague, but lofty, phrase is the one we have.

The first two seem simple enough by comparison. Human life is marked as sacrosanct from the first book of the Bible. The first Sin may have been Disobedience, but the first Crime was Murder. These men firmly and deeply believed that it was morally and religiously wrong for one man to kill another, without cause, And even more so for a government to do the same.

But these men weren’t naïve, either. They knew they were entangled in a bloody war with potentially disastrous consequences. Several battles had already been fought, most notably at Breed’s Hill and at Lexington and Concorde. Even as they argued over the placement of commas, Washington was beginning preparations to meet a massive landing at Manhattan. They knew that all men die. They also knew that sometimes, men’s lives had to be taken.

What they meant by a right to Life was that no government had the right to round up “instigators” and hang them without a trial, that assassination of political or philosophical enemies—whether with a sniper’s bullet or an explosive-laden drone—didn’t hold water no matter how many times you shouted “clear and present danger.”

You have the Right to Life. Every person has the right to expect that, as long as they obey the rules that allow humans to live together, they will not have their life taken from them by their government or their countrymen.

By the same token, Liberty is also not as easy as it seems. The Feudal system was not that far gone in England, and it thrived, in one form or another, in Ireland, France, and Central and Eastern Europe. Liberty, for these men didn’t mean Licentiousness. It didn’t even mean the amazing array of rights and privileges we modern westerners take for granted every day.

For them, Liberty was a simple thing. It was the right to move about and establish a family, or a business. It was the right to speak your mind about the state of things, and to meet with others who agreed or disagreed with you. It was the right to know you couldn’t be imprisoned for your faith, or your family’s name, or because you fell on hard luck. Liberty, for the drafters of the Declaration, was freedom from literal, unbending chains.

“But what about slavery?” you ask. That’s a tough and troubling question, and it was one many members of the Congress wrestled with at the time and for years to come, most notably Jefferson. He was caught between the mill and the millstone. He hated slavery, had written against it many times, but he owned slaves, because his wealth and livelihood, and that of his children, depended on a system where slavery was not only widespread, but necessary for success.

Others, especially those delegates who were Friends, had similar morally and ethically shattering concerns. How could they speak so blithely about the “unalienable right to liberty” when thousands of men were deprived of that very liberty every day.

Sadly, sometimes morality has to bow to reality. Jefferson never freed his slaves in his lifetime for the same reason that the parts of the Declaration that mention slavery were excised. All of the money, and most of the population, at the time of the Signing, was in the South. New York was staunchly Loyalist, and no one believed that setting the seat of government there was going to change more than a few, easily swayed, minds. They needed the South if they were going to succeed in their rebellion, and the South came with baggage. Baggage that would eventually nearly destroy us.

Finally, we have “the pursuit of happiness”. It’s a phrase, not a word. As I mentioned, above, the original phrase was “security of property.” Like the other two unalienable rights, the original term is reinforced in the Bill of Rights, and given the force of Law, but the final term?

And it’s the pursuit of happiness. Odd that the drafters don’t say that everyone has a right to be happy, only the right to pursue happiness. Like Liberty, this one needs to looked at with a sideways eye.

It may just be that they knew that some people aren’t going to be happy, and raising the idea of universal happiness to the status of unalienable right was a little too hippy trippy even for avid students of the Enlightenment. Maybe it comes down to the fact that bad luck is going to happen, but you have the right to take your chances.

Maybe it was code. Speaking of property as a desirable thing is crass, but all of these men were either self-made or only one or two generations from those who were. Maybe “pursuit of happiness” means the right to invest, to own property and know it is secure, to pass your wealth on to your progeny. Maybe “pursuit of happiness” really means freedom from imposed misery.

More tomorrow.