The Common Law Alternative To The Law Enforcement Growth Industry

[The following article was written before the collapse of the Soviet Union. First, it compares the "legal systems" of America and the Soviet Union (specifically Poland). Second, the American "law enforcement growth industry" is described. (Note how the same things apply almost world-wide - not just to America!) Third, a common law solution is proposed.]

America vs. Soviet Union
In trying to appraise this issue of law enforcement, courts, prisons, punishment, crime, rehabilitation, the death penalty, incarceration, and cruel and unusual punishment, much has been written and much more will be written. One point that all seem to agree upon is that crime in America is out of control and something must be done about it.

We call this America, the land of the free, and refer to the Soviet Union as a police state, but the facts tell us another story. The facts show that this country holds more people per capita in jails than the Soviet Union.

The Russians have one-third the number of people incarcerated than we do in America. In realty, citizens of America are living in a police state and are completely unaware of it. There is little difference between our government and the one in Poland. For example do people in Poland:

  1. Have national identity cards?
  2. Drive without licenses?
  3. Work wherever they want to?
  4. Register their guns?
  5. Register their cars?
  6. Build on their land without government permits and/or approval?
  7. Have compulsory insurance laws?
  8. Have to show their picture (papers) upon demand?
  9. Have to take balloon tests without search warrants for alleged drunk driving?
  10. Take a portion of a worker's pay ["income taxes"] without trial or due process?
  11. Incarcerate citizens without trial in a summary processing?
  12. Have ports of entry that compel them to stop, clear, and pay duties?
  13. Subject to searches on their highways?
  14. Arbitrarily arrest citizens and forcibly take fingerprints?
  15. Trip permits to use their own roads?
  16. Permits to cut wood in a national forest?

It makes no difference how these questions are answered. Citizens of any country who are so constrained are not free, but living under tyranny. It matters not whether we have it better than the Poles. Both systems are tyrannical in nature - the only difference being the degree of tyranny being applied and the understanding of the system by the citizens. The Poles understand that they live in tyranny, while Americans have been convinced that it can't happen here, even though it has already come to pass. Americans recognize tyranny in other countries, but in their own refer to it as "law and order." However, a police state is a police state, is a police state...

The Law Enforcement Growth Industry
There must be a solution that is simple; one that will free us from this morass of crime and punishment. Any solution must quit punishing the innocent, and return to punishing the guilty. The current system does nothing more than spawn a system of recidivism, homosexual behavior, and prisons that are, in reality, schools for crime - not rehabilitation.

Currently victims lose their property; criminals never make restitution to the damaged party but are deprived of freedom; and the taxpayers who are fleeced out of their tax dollars to fund these human warehouses. The beneficiaries of this system are public defenders, lawyers, judges, jailers, prison guards, law enforcement agencies, and political administrations. They literally thrive off of this morass of crime and punishment.

Crime does pay, and it pays handsomely. What is worse is that not only does the victim lose by having his property stolen, but he loses even more through taxes to the "law enforcement growth industry" to warehouse the thief.

Solutions to the crime problem must provide restitution for the victim, punish the wrong-doer, decrease the prison population, cut out the over-crowding of those prisons that cannot be emptied, eliminate involuntary capital punishment, make the judicial system self-supporting, and make the entire taxing cost for today's criminal justice system pay for itself in productive accomplishment instead of the incredible waste of manpower currently taking place in our "human warehouses."

How many broken homes, welfare payments, divorces, fines, jail terms, and broken lives are inflicted upon the innocent, the poor, the defenseless, in the name of "law and order" for the benefit of the "law enforcement growth industry?" How many people derive their livelihood from the law enforcement growth industry? How many agencies are created by legislatures, city councils, and congress?

In the state of Idaho it would probably be conservative to estimate that over 2,500 persons are employed in the law enforcement growth industry. That sounds like a lot but consider the following:

  1. There must be over 100 policemen just in the city of Boise, Idaho. There must be some 50+ cities in the state which maintain a city police department and employ from 3 to 100+ persons.
  2. There are 44 counties, all employing a sheriff, deputies, and support personnel from 5 to 100+.
  3. The state police employ several hundred officers and support personnel. In addition, the state employs many varied special agents. Then we must consider the administrative agencies which bring actions against citizens, such as building, electrical, health, fire, welfare, and plumbing, departments and the like.
  4. There is no way to estimate the number of federal agents swarming over the state. There is OSHA, EPA, FCC, BLM, etc., etc., etc.
  5. Then there is the jail and prison staffs and their supporting personnel.
  6. Then we have the judicial system at the county, state, and federal levels, their marshals and support personnel.
  7. Finally there is the lawyer work-force.

It should become quite clear that we have no idea how many persons are employed by the law enforcement industry. Each and every one of these people are looking for lawbreakers to apprehend and punish in order to justify their employment.

It seems as though it is the purpose of government to build a system of "law and order" so big that everyone will either be employed by law enforcement agencies or warehoused in prisons. It would appear that the citizens are simply being used by government to further that end.

This law enforcement growth industry is nothing more than a business (law enforcement agencies) and customer (people of the state) relationship. Like any business, this industry needs more and more customers to continue to grow and prosper in order to justify its existence and size to the people, in order to obtain more funds to further said growth.

The Law Enforcement Growth Cycle
The growth cycle goes something like this:

  1. We ought to have more laws.
  2. The executive proposes new statutes to the legislature.
  3. The legislature passes said statutes and creates a criminal act where none existed before.
  4. The executive branch has more statutes to enforce and therefore needs more employees to enforce said statutes.
  5. The executive appeals to the legislature/commissioners/city councils for more funds due to the increasing crime rate caused by more legislated crimes.
  6. The funds are made available and more employees are hired.
  7. More employees have to justify their existence and therefore government must find or entrap more and more customers into committing so-called "crimes."
  8. Now we need another law.
  9. Etc.
  10. Etc.

If everyone in the state could obey all of the statutes passed by the legislature, over 2,500 government employees would have no reason to go to work in the morning.

In order for the sheriff or any administrator to justify their budget they must show expenses. So we see every year a steady rise in crime. We also see this industry exploit their self-generated growth problem through the media.

We constantly hear about all the crime being committed, and the answer to increasing crime is more laws, more police, more prosecutors, more judges, and more money. We never hear how they propose to eliminate crime, prisons, jails, and jailers. All we hear is that more and more money is needed to combat crime.

So we pass more laws, hire more police, investigators, prosecutors, judges, and spend more money, only to learn next year that crime has risen by 5% and what we need to combat it is more money, laws, police, prosecutors, and judges. It has been that way for years.

It could be argued that there was a year when, in one or two categories, crime declined in Boise or Pocatello or East Podunk, USA. That's either a foible in the charts or a goof up in the industry by falling down on the job and not selling enough product.

Headlines do not exist stating, "Idaho's prison population declines for the fifth consecutive year," or "Sheriff submits third successive budget with 5% reduction in requests." We've been spending more every year for law enforcement, and since we spend more on the crime industry, we get what we pay for - more crime!

For an example of the problem, let's look at city X. Lets assume City X has one hundred policemen. Today the crime rate is up 5% over last year, so the media is told that the reason one hundred policemen could not hold crime to the same level as the year before was that the police force was under-staffed, under-budgeted, and there were some defects in the existing statutes, so we need more money and some new laws.

City X gets five new policemen, 5% more money and another 7% to compensate for inflation (another government-created industry), and five plus new laws to enforce. The product this industry sells is crime, so our product line has been expanded by X number more laws and we have increased our sales staff by 5% to one hundred and five.

The operating budget has been expanded to cover the additional overhead. Our police chief, the sales manager, now has a larger sales staff and additional responsibility, and therefore needs a raise. Supervisors must have a like gain, and also obtain raises.

Now we have to prepare for the coming year's expansion. We must justify our expanded budget, size, and new products to the board of directors, the city counsel/legislators/commissioners, and our corporate chief, the mayor.

The sales staff is sent into the streets to ticket more violators, arrest more drunks, catch or entrap more prostitutes, drug pushers, etc. With proper management we increase our business by at least another 5%. Now we continue to make sure the media are aware of the growing crime rate. The media need to understand that there is more crime because we are under-staffed and under-budgeted to handle the increase in crime, and besides, there are several loopholes in the law that need filling. Yes, we need some more laws.

To illustrate the seriousness of the problem the chief of police will recount some of the more horrendous crimes of the past year. Just like insurance salesmen sell insurance by using fear of death to motivate the customer, the law enforcement growth industry uses fear of crime to sell their product.

So another year comes and goes, and now we have one hundred and ten police, more new laws, and at least a 10% increase over our budget of two years ago. The product line is up at least ten items over two years ago, making the customer subject to a larger product line (more statutes). Now our increased sales staff can get back out on the street to find and entrap more violators, and arrest them to provide an increase in business for the county sheriff, so he can likewise increase his staff and budget.

This increases the population of the jail and causes the sheriff to go to the commissioners for greater funding to care for, house, feed, and guard the increasing load of criminals. He then insures that his problem gets before the media so he can increase his empire by at least 5% per year.

A proportion of the new increase in sales (arrests and jailing) by the police, bleeds over into felonies, and these criminals must be housed in the state prison. The prison fills up with felons and the warden goes to the legislature to get his budget, staff, and salaries increased accordingly, and maybe even get authorization to build a new prison.

Of course, all of this business creates activity in numerous support areas. For example, the more crime, the more food is bought to feed them, more buildings are needed to house them, more judges are needed to handle the case loads, and more public defenders and lawyers are needed to defend the customers (citizens).

The cycle is basically complete, and now we need more lawyers from the law schools, who in turn become the legislators, who in turn pass new laws, which in turn expands the product line, which in turn raises sales (crimes), which in turn expands the budget, which increases the sales staff (police), which in turn increases sales, which in turn, which in turn, which in turn...

The customer of this industry is the average "Joe Citizen." It's the citizen who pays the bills. It's the citizen who is persecuted in the name of crime prevention. It's the citizen who is entrapped into committing violations of statutes by law enforcement personnel, who are simply justifying their existence by insuring that more crime occurs.

Sales people of the law enforcement growth industry need arrests and convictions to make their statistics look good, to make them appear productive, and to meet their sales quotas.

Who pays for all this "law and order?" The citizen, the taxpayer, the general public. We are buying all this so-called "law and order" and are being sold a lot of nothing for something.

The Real Thief
Joe is a college student, bright, extremely intelligent, and low on funds. The following is a typical conversation between Joe and another citizen:
Citizen: What happened to cause you to be put into prison?
Joe: I stole $350.00 (he replies matter of fact).
Citizen: So you're guilty of the crime and deserve to be punished.
Joe: Yes (he replies matter of fact).
Citizen: Tell me exactly what happened.
Joe: OK, I was in the school auditorium, broke and didn't know how to make ends meet, and I saw this lady's open purse on a chair. It had money in it, so I took the purse. Apparently someone saw me take the purse and called the police. They told the police who I was, and the police came to my apartment and arrested me. That's all there was to it. The law in Idaho is that any theft over $150.00 is grand larceny. I was convicted of grand larceny and sentenced to indeterminate five years. That means I can spend anywhere from eighteen months to five years in prison.
Citizen: Did you plead guilty to the charge?
Joe: No, I plead not guilty. My public defender advised me to take it to trial. [Maybe some public defenders are motivated to do whatever will bring them personally the most bucks!]
Citizen: How long was the trial?
Joe: One and one-half days.
Citizen: How much time have you served so far?
Joe: Eleven months.
Citizen: Did the lady get her purse and money back?
Joe: No, I spent the money to pay my bills and I threw the purse away.

This is an actual true conversation and can be repeated in a variety of ways, hundreds of times, by judges, police, prosecutors, defense lawyers, and public defenders. This shows how a real crime happens. There was a real criminal and a real victim. Now let's see how much this crime actually cost the taxpayers to apprehend, try, convict, incarcerate, and then parole this man back into productive society.

It cost at least $2,000.00 to try, defend, and incarcerate Joe. Joe is going to spend a minimum of eighteen months in prison. It costs $15,000.00 per year to store Joe, so the first bill to come in to the victim in this crime is $22,500.00 plus. Assuming Joe will be paroled for the remaining three and one-half years at $13.86 per day, his parole will cost another $27,771.50. In addition, the lady didn't get her $350.00 back, making a grand total cost for Joe's crime of $67,271.50.

Who's paying this bill? Why the victim and the rest of the community of course. In the name of "law and order," the victims of this theft will pay $67,271.50. But What about Joe? Well Joe plays cards, produces nothing, consumes food, needs shoes, clothes, and shelter, and in addition provides employment for guards, police, and all the others in the law enforcement growth industry.

Multiply this example by the hundreds and we can readily see billions of dollars wasted in the name of "law and order." The lady (society) who had her purse stolen would have been $67,271.50 ahead if she had not reported the theft of her purse and Joe had never gone to jail. The victim sentenced herself to a fine by taxation of $67,271.50 for her demand for law and order. The victim is a loser as she lost both her purse and money, and on top of that was taxed to support Joe and the law enforcement growth industry for the next five years. She would have been better off to have simply bought Joe an airplane ticket to California.

Joe is also a loser. The only winner is the law enforcement growth industry. Just how Joe is the loser is a story in itself. The law in Idaho declaring $150.00 as the amount for grand larceny was passed in 1949. Because of inflation, in 1949 dollars his crime should now be a misdemeanor, but he is branded a felon for life. Joe is a first timer. He has never been in trouble before. He will never be able to put this mistake behind him. It will follow him for the rest of his life. Now he is in a school of crime and is learning from his mistakes. When he comes out of prison he will have a degree in crime. Society will reject him because of this mistake, so in order for Joe to make a living he will have to resort to crime. Crime pays because most crimes are never reported. Of the crimes reported most are not solved. Joe will be caught once in a while, so he will be a regular customer of the law enforcement growth industry for the rest of his life. He will also be institutionalized, and forced to live in an unnatural animal-like zoo environment and may become a homosexual, or at least be exposed to a homosexual environment that will have a negative effect upon his morals, character, and rehabilitation.

Whether we like it or not, Joe is going to be out on the street again, and society is faced with another problem. At some point in time we will again have to deal with Joe. For the past forty plus years we've been dealing with all of these "Joes," and what we've been doing hasn't worked. It's about time to admit that what we've been doing has failed. We need to try something new, innovative, and different. Whatever we do, it can't be worse than what we're doing now.

The Biblical Common Law Tradition
We know there is a problem, but what do we do about it? There is another fact to examine before the disclosure of a solution. Where did prisons and dungeons as a form of punishment come from? The answer is lost in antiquity. In the Bible there are numerous accounts of individuals like Joseph, Daniel, Peter, and others being in a dungeon. The pagan nations used prisons and dungeons to punish their criminals and political prisoners.

The only exception is found in the time of Moses. When the Israelites crossed the Jordan River, they had a different kind of law - a common law (substantive law) based upon substance, land, and labor.

The common law (substantive law) and rights at law that the U.S. Constitution and the Bill of Rights guarantee to each and every one of us is based upon substance. The connection between the Ten Commandments, the Constitution and the Bill of Rights, and substantive law is bound up in this axiom of law, "If there is a remedy 'at law,' equity cannot prevail."

James Madison, the father of our Constitution, made reference to this when he said that the Constitution was tied to the principle that we assume every man will obey the Ten Commandments.

Our common law came from England, but its roots are from Mount Sinai. Moses brought the law down from the Mount, and it is recorded in Exodus 20. The next five chapters of Exodus contain the criminal codes. They are short and precise. There were no prisons, dungeons, or political prisoners. The Israelites borrowed the prison system from the Romans, Egyptians, and Babylonians. We have that system in use in America today, and it is unusually cruel to lock a man up like an animal.

The act of punishing a victim of a crime by taxing him to house, feed, and guard the wrongdoer is adding crime upon crime. Let's stop punishing the citizens, stop the useless waste of the criminals' life, and make him pay the cost of his wrongdoing. Let's stop the profit in the law enforced growth industry and use the manpower of the crime and the law enforcement growth industry to make our lives more fruitful.

Let's examine Joe's case. Joe stole $350 cash, but he also threw the woman's purse away. The victim has suffered a further loss of time, pictures, credit cards, etc. Let's set a value upon the crime. It's a common law crime (involves the loss of life, liberty, and/or property). The common law is designed to restore property and to remedy damages.

One obvious solution (for most cases) is that, to the extent that a value can be placed upon the crime, the criminal should be forced to pay the appropriate value to the victim (the value being proportional, i.e.: the worse the crime, the higher the fine); and where this can be accomplished (possibly through forced sale of the criminal's assets), then no more need be done. This also functions as a deterrent to crime.

Say, for discussion's sake, Joe's crime is valued at $10,000. However, Joe is poor, which was the reason for the theft - so he can't pay this amount to the victim. It's no good just locking him up for a year - as we'd end up having similar problems as we have now. So we need to have Joe work to pay this fine off. Joe could be put to work making products and/or providing services of value to his community (things which others will voluntarily pay for, so that the whole thing is self-funding). The money he earns for his labor should all go to the victim, except for the bare minimum needed to pay for his own living-expenses (food, water, clothing, electricity, lodging, etc.). The more Joe produces, the sooner he earns his freedom. Convict labor is not a new idea; it has been used before. California has used a work camp program in the past. In the case of dangerous criminals, a prison-like building may be needed to ensure that they can't escape, but there's no reason why they shouldn't be made productive and pay for their crimes in a constructive manner.

No one is hurt by setting convicts to work. Numerous prisoners have been interviewed and have stated that they would welcome an opportunity to have a chance to work off their sentences. However, unions and the law enforcement growth industry will resist any change, as they have done so in the past.

Let's look at the ancient example of common law damages paid for losses suffered:

"If men strive, and hurt a woman with child, so that her fruit depart from her, and yet no mischief follow; he shall be surely punished, according as the woman's husband will lay upon him; and he shall pay as the judge determine." - Exodus 21:22

Here is an example of common law damages from what we would call a crime today, and would want to imprison this man. Another example:

"If a man shall deliver unto his neighbor money or stuff to keep, and it be stolen out of the man's house; if the thief be found, let him pay double." - Exodus 27:7

Here the thief pays double. There are dozens of examples of the common law usage in Exodus 21-24. There are no Biblical examples of letting the victim suffer loss of goods, and then be taxed to support the thief in prison. This constitutes punishment of the victim, which is unjust because it causes a greater loss to the victim than the thief.

If scriptural examples are repulsive to you, then leave God out of the equation. Ignore God and only rely upon your own common-sense and self-interest. Simple logic tells us that it is in the best interest of all to change our prison system approach to crime and punishment. As a victim what would you prefer? Restitution for the loss, or taxation to pay for the incarceration of the thief?

[Some important additional points are detailed in the article: On Obedience (in particular, the part on punishment about half-way through).]

(This article was originally published by the Barristers' Inn, School of Common Law, PO Box 9411, Boise, ID 83707; (208) 375-3425. This version has been edited.)