On Crime and Punishment

By G. Patrick Callahan, Prisoner of the Drug War

I would present that the drug war has erased over 250 years of hard won rationality. We of the Coalition have repeatedly made the inevitable drug war comparisons to the American prohibition of alcohol, but even that example was dissected many years before by eminent Italian Jurist Cesare Beccaria (1738-1794), who literally wrote the book "On Crimes and Punishment."

This work revamped much of European law which, until then, had been quixotic: you might be hanged by the neck, then drawn and quartered for stealing a chicken, while dukes and princes raped and killed with impunity. Bread thieves and petty smugglers received the same cruel sentences as murderers and rapists. If this has a familiar ring to it, read on.

"On Crimes and Punishment" was a masterwork of thought on causes and the very definition of crime and what enlightened society should do about it. Let me stress the word enlightened and the era in which "On Crimes and Punishment" was written, the middle 1700s. Compare this era to American dogma in the l990s.

"Smuggling is truly a crime that offends the sovereign and the nation, but its punishment should not entail disgrace, since public opinion does not deem this act disgraceful. Anyone who assigns shameful punishments to crimes that are not reputed to be shameful among men destroys the feeling of infamy for crimes that really are infamous. Whoever sees the same death penalty applied, for example, to someone who kills a pheasant and to someone who assassinates a man or who forges an important document, will not make any distinction among these crimes. This destroys moral sentiments, which are the work of many centuries and of much bloodshed and which have been produced in the human spirit very slowly and with much difficulty..."

What Beccaria says in the above is that it is a grave mistake to equate shameful crimes such as murder and rape with activity which is consensual. When such disparate activities are accorded the same punishment, it destroys the difference between them, a dangerous thing indeed.

"This crime arises from the law itself, since its advantages always grow with the tariff and hence the temptation to smuggle and the ease of doing so increase with the boundaries to be guarded and with the reduction in the volume of the merchandise itself. The penalty of losing both the contraband merchandise and the goods that accompany it is quite just, but it will be more effective to the degree that the customs duty is smaller, since men take risks only in proportion to the success that their uncertain enterprise might yield."

Here Beccaria tells us that smuggling is a creature of the law itself, an invented statute as opposed to the natural law against, for instance, assault upon a person or theft. He ironically describes the American dilemma with its multi-thousand miles of three dimensional land, sea, and air borders and the basic problem with prohibition: merchandise, goods and contraband and the inter-changeability of those terms.

"But why does this crime not bring disgrace upon its perpetrators, since it is a theft committed against the prince and, consequently, against the nation itself? My answer is that offenses men do not believe could be done to them do not interest them enough to arouse public indignation against the perpetrators. Men, upon whom remote consequences make very weak impression, do not see the harm smuggling can do them. Indeed, they very often enjoy its immediate advantages. They see only the harm it does to the prince, and therefore they do not see as much reason to disapprove of a smuggler as they do to detest someone who robs a private person, forges a document, or commits some other crime that might harm them personally. It is an obvious principle that every sentient being is concerned only with those evils with which he is acquainted."

This is the reason that government must always (at least periodically) bang the publicity gong over the drug war, to demonize those who engage in the trade. It shows the world how effectively the problem is being dealt with, lest, for lack of publicity, the problem will disappear. This tends to verify the old slogan that the problem with problems is usually the solutions used to solve them. Unlike former times, the United States can beat this gong with the mass media at will and whim, but this is proving a double-edged sword, and propaganda is just as readily countered with information. The Internet has arrived in the nick of time.

Beccaria ends his treatise on smuggling with the admonishment that smuggling is indeed a crime, but that the punishment for it should fit the crime. In this country, at this junction in time, punishment over what is, in the final analysis, consensual activity, is grossly disproportionate. People in the United States often get less time for murder than for marijuana. But what really interests you personally: marijuana or murder?... LSD or the IRS?