No Straw MenEnlightened discourse proscribes arguments that are weak or imaginary, like straw, set up only to be confuted summarily.

Get Tough on Criminal Justice

Libertarians too often neglect critiques of criminal justice. Fortunately, Radley Balko, formerly of Cato, now of Reason, is a one-man encyclopedia of the system’s abuses.

Example: 17-year-old boy has consensual oral sex with a 15-year-old girl. Boy is convicted of molestation under a Georgia statute (since revised), and sentenced to 10 years in prison. Judge overturns sentence, but state attorney general appeals, out of duty to the laws “as they are written, not how some may wish they were written.”

This is a classic half-truth, for

Prosecutors have enormous discretion in when and how and against whom they bring charges. They can overcharge and pressure the defendant to plea bargain. They can undercharge if they feel there are mitigating circumstances associated with the crime. Or they can determine that despite the fact that a crime has been committed, in the interest of justice, charges ought not be brought at all.

What’s more, every prosecutor’s office battles with limited resources. A prosecutor can’t possibly enforce each law against each person who breaks it. So prosecutors set priorities. And in choosing which laws they will enforce vigorously and which laws they will let slide, they make public policy.

Yet the problems run deeper than runaway prosecutors. The problem is the institutionally entrenched notion that no one ever lost re-election for being “tough on crime.” In Radley’s words,

Many prosecutors and politicians have unfortunately come to measure success in our criminal justice system by the number of people they put in jail. Criminal laws—particularly those pertaining to drug and sex crimes—are increasingly written with extraordinary breadth and reach. Police officers typically are rewarded for arrests, not for preventing crimes. Prosecutors tend to be promoted or re-elected based on their ability to win convictions, not their fairness or sense of justice. Appeals courts, meanwhile, generally focus on constitutional and procedural issues. Only in extreme cases will an appellate court review the appropriateness of a verdict.

From the writing of laws to their enforcement and prosecution, our system has evolved to the point where justice, mercy and fairness often go overlooked. It’s no surprise that the U.S. leads the world in its rate of incarceration, and by a wide margin.