Jul
31

Mass Incarceration, Legitimacy and the DMV

Did you know that the state of California imprisons more people than do the nations of France, Great Britain, Germany, Japan, Singapore and the Netherlands combined? We have 2.3 million people behind bars in this country. That is 25 percent of the total number of persons imprisoned worldwide. By contrast, the population of the United States constitutes five percent of the world's population.

There is something seriously wrong with these numbers. We call our selves the land of the free, and then we imprison more people per capita than any other nation. Nowhere does the rhetoric and reality of American life collide quite so violently as it does in the criminal justice system.

I was thinking about that this week as I stood on line at the Department of Motor Vehicle to renew my expired car registration. Three white, middle-aged and prosperous looking folks were standing within ear shot. The woman had just purchased a used Mercedes Benz convertible. It was a dream to drive and ride in, she told the admiring listeners.

Talk then turned to how much she paid for it. It was a bargain, she reported: She paid $10,000. She wondered how much she would have to pay in taxes on the car as she thought the car was more likely worth close to $20,000.

"For cars of that age, the DMV simply accepts your estimate of value," one man said. "You don't need to report the actual amount you paid and pay all that tax on the sale."

This struck the woman as a revelation. Her reaction surprised me. Here were three apparently prosperous Americans openly discussing tax fraud in a public place, conceivably within earshot of regulatory personnel manning the counters of the DMV. They assumed that cheating on taxes was all right, so long as you don't get caught, of course. In other words, there is nothing intrinsically wrong with tax fraud, so long as you can avoid the consequences: the found it morally acceptable to cheat but pragmatically undesirable to get caught cheating.

A sense of legitimacy is the glue that holds a civil society together.  Without legitimacy, a sense of fairness among free and equal people, there is really no meaningful social cooperation. Does the high incarceration rate in the United States reflect a legitimation crisis?

I think it may well. There are simply too many criminal laws. No one knows just how many criminal laws circumscribe the conduct of any of us at the state and federal levels. Prosecutors have broad discretion to charge or not on a bewildering range of offenses: I read recently that two lobstermen are now serving lengthy federal sentences for importing shell fish in Central America in plastic bags rather than boxes. We put people in prison for that?

Our penal code fails miserable when it comes to race, drugs and sex offenses. A young black man in the United States has a one in three chance of imprisonment during the course of his lifetime, as opposed to a six percent chance for a white male. We incarcerate folks sometimes for life for selling narcotics, but permit alcohol and nicotine to be pedaled without consequence. We make it a crime for young people to fall in love. For far too many Americans the criminal law is a foreign curse, a plague that falls upon them much like cancer and must be endured as a state-sanctioned illness. Over criminalization breeds a crisis in legitimacy.

What is amazing is that we are doing this to ourselves. Rather than fighting back and asking questions, jurors far too often make decisions about people without demanding answers about what the consequences of their verdicts will be. We've gone mad, really. We incarcerate more and more Americans for more and more prohibited acts, and we don't even ask why. Perhaps that's why folks chat freely about cheating on their taxes in public places. If government is simply a curse, a necessary illness much like a fall cold, then doesn't it make sense to swap remedies whenever possible with fellow sufferers?
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

Disclaimer:

Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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