I’ve noticed that many online discussions of sex offender registries go something like this.
Person 1: All sex offenders should be killed! There should be no registry, because anybody who rapes a child deserves to die!
Person 2: Most people on the registry aren’t child rapists. Many are on for statutory crimes, and some just peed in public.
Person 1: Well, if they didn’t want to be on the registry, they shouldn’t have broken the law!
Person 1 represents, as far as I can tell, the view of most Americans about most issues relating to crime and punishment: there is no punishment too harsh for any crime, because if a person didn’t want the punishment, they shouldn’t have committed the crime.
We’re going to leave aside what I said yesterday, about how many men committing sex offenses, especially internet-based ones, honestly don’t have any idea of the penalties their crime will carry. We will also leave aside, until tomorrow, the irony of the fact that everybody seems to think the registry is punitive, including those who support it, despite the fact that it’s supposedly not being punitive is the only reason it’s allowed to exist.
Let’s say somebody did know that peeing in public (or, in Michigan, peeing in public on more than one occasion) could land them on the registry. Let’s say they did know that having sex with their 15 year old girlfriend when they are 20 could. Let’s say they were fully aware that downloading one free torrent containing images of naked underage girls could land them in prison for life.
Would that somehow make those penalties just? Of course not. This idea that nobody can ever argue that a penalty is overly harsh or unjust because they could have avoided being penalized at all by not committing the crime is just wrong, and I’d say it represents a morally-stunted view of justice, as well as being a sign of totalitarian thinking.
We could argue, I suppose, that a woman in Saudi Arabia who doesn’t want to get stoned to death just shouldn’t commit adultery. That a person in China who doesn’t want to get thrown in prison just shouldn’t own a Bible. That a young man in Somalia who doesn’t want his hand cut off just shouldn’t steal. That, in the 1950s in America, a gay man who didn’t want to be arrested just shouldn’t have engaged in sodomy.
We could argue those things, but we’d be wrong. We’d be demonstrating a limited, immature form of ethical thinking. We’d be acquiescing our sense of right and wrong to the state.
By this line of thinking, anything can be justified as right and just. Driving is very, very dangerous for children. In the U.S., about 6 children die in car accidents every day, and hundreds are injured. Less than 50 children are abducted and murdered by strangers each year. So, in the name of protecting children, we could decide that traffic crimes should be taken extremely seriously. Speeding becomes a felony resulting in 10 years in prison and three decades on a registry of dangerous drives; running a red light will get you 20 years and a lifetime on the registry. Drunk drivers can be sentenced to life in prison, or consecutive life sentences, or held indefinitely until they are deemed to no longer pose a threat. And, these traffic offenders are, even after their formal sentence is completed, barred from driving within a half mile of a school or playground, must take a driving test twice a year, and have to adhere to any other regulations the state might come up with in the future or else face arrest and prison time for violating the registry.
It’s to protect the children.
Clearly, that would be insane and unjust. But, by the thinking of those who say, “If you don’t want the penalty, don’t do the crime,” it would all be fine. After all, a person could avoid any of those penalties by simply driving at the speed limit, when sober, obeying all traffic signs.
What, in this view, is there to stop us from punishing every crime with death? I mean, if people don’t want to die, they can just obey the law!
This should not be the way we understand justice. As long as we keep the mindset that there is no such thing as a too-severe consequence because the consequence can be avoided simply by obeying the law, we are handing our own powers of moral reasoning over to the government. We have succumbed to totalitarianism. And, as soon as we do that, we have set the stage for even greater injustices in the future.