May 23, 2011

Posted in Constitutionality of Social Cost

Step 1: Release Prisoners. Step 2: Experience Increase In Crime. Step 3: Increase Gun Control To Reduce Crime

I think I’ve figured out how to reconcile the votes of Justices Ginsburg, Breyer, and Sotomayor in Brown v. Plata and McDonald v. Chicago.

In McDonald v. Chicago, and Nordyke v. King (recently decided in the 9th Circuit), one of the factors to consider in judging the constitutionality of a law restricting Second Amendment rights is social cost. In other words, if a society is dangerous, then Second Amendment rights can be restricted.

Let’s walk through this. The Court today orders 46,000 dangerous prisoners be released into society. Let’s assume this results in an increase in violent crimes, as Justice Alito suggests (I think his causation/correlation analysis is flawed, but let’s put that aside for now). Society becomes more danger, with all these violent criminals running amok. Prisons, unable to house new prisoners, decrease the feasible number of prosecutions. Statistics are generated that show a steep increase in crime. Based on these findings, the state enacts new restrictive gun control laws to reduce violence.

So, the next time a Second Amendment reaches a court in California, or elsewhere, the Court relies on these new statistics to show that society is dangerous, and the restriction on the right to keep and bear arms is upheld. Meanwhile, law abiding citizens who seek to defend themselves from this gaggle of convicts who are now free will not be able to. Irony much?

In this sense, Brown v. Plata creates an interesting liberty/statism feedback loop. Increasing liberty for the prisoners–they get out–may ultimately decrease the liberty of non-dangerous people–who will be denied Second Amendment rights. Favor “liberal” rights–prisoner rights–and punish classical “liberal” rights–the right to keep and bear arms.

Very crafty active liberty.

This is why I seek to bifurcate constitutional liberty jurisprudence based on the actor’s propensity for violence. Here we see, perhaps, that those who pose a danger to others receive a presumption of liberty, and those who pose no threat to others, receive a mere presumption of constitutionality.

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  • http://Website Alex Z

    Well in that case, why don’t we just pack all “dangerous” criminals. into a clown car and shoot them. After all, if we leave them alive or provide them with sanitary living conditions, there’s a chance that they’ll escape from prison and commit more crimes, which in turn will lead to more gun control. Armageddon is sure to follow.

    On a more serious note, you do realize that the only reason that the courts have ordered this extreme remedy is because California blew numerous chances to fix its prison systems that were provided by previous decisions in this case. If I remember right, courts have been giving California chances to fix its prison system without releasing prisoners for the last 10 years.

    • Josh Blackman

      Did you read my post? I’m not quite sure where you got “clown car and shoot them” from. Armageddon? Relax.

      First, I am not totally unsympathetic to the claims here. The facts, really, are tragic. I haven’t made up my mind entirely on whether I agree with the outcome from a policy perspective (whether the PLRA, or even the 8th Amendment demands this remedy, I am doubtful).

      Second, as I discuss in my article, dangerous doesn’t refer broadly to people who are convicted of drug offenses (I’m sure many of the 46,000 are in prison for some silly controlled substance offense). These non-violent offenses wouldn’t qualify as dangerous in my rubric.

      Third, and perhaps more importantly, this post was aimed at a broader jurisprudential point. All state action necessarily limited individual liberty–whether a gun control law, or deplorable conditions in a prison. I recognize that. The point I raise in my writings is whether people who have demonstrated a propensity for violence should be treated in the same manner as those who haven’t illustrated this propensity. Plata identifies this issue well, and the interplay between the two distinct groups.

      Not really in a mood today. Always loves Simpsons quotes though.

      • http://Website Alex Z

        Yeah, sorry about the sarcasm, was also in a mood. The clown car was a botched Simpson quote (I adopt by reference the Sideshow Bob quote below as far superior)

        I’ll answer your third point here since that’s where the rub appears to be. I agree with you that people who haven’t demonstrated a propensity for violence should have more rights than people who have demonstrated this propensity (that’s the basis for our whole penal system). Where I disagree with your reasoning in the above post is that the right deprivations you discuss are very mismatched. In this case, prisoners were grossly mistreated and denied very basic human rights. While we may disagree about the fundamental nature of the right to bear arms, we can probably agree that being denied a gun is a lesser deprivation than being locked up in a cage in a puddle of your own urine. Thus, my argument boils down to the point that, in this case, people who demonstrated a propensity for violence were, proportionally speaking, denied a far greater amount of rights than the gun owners whose gun rights may suffer as a result of the prisoners’ release.

  • http://Website ecurbCO

    Heh. I can see you’re in a mood today.
    Have to second Alex’s comment, though: I remember hearing about this issue when I was in middle-school!

    And, of course, this could make a great ad for my lot…
    “Mayor Quimby supports revolving door prisons. Mayor Quimby even released Sideshow Bob — a man twice convicted of attempted murder.
    Can you trust a man like Mayor Quimby? Vote Sideshow Bob for mayor.”

  • http://anthroblogogy.blogspot.com/ DirtCrashr

    And I’ve been hearing about this nearly since College, but CA didn’t do much to fix it in over twenty years that it’s been bubbling-up. Instead we spent (wasted) the money on handouts to illegal aliens (arguably trying to steer them away from a future in the Prison System), vapor-tech mandates, self-important CARB-laws, and feel-good “Green Initiatives” — and recently got a $9.5 billion bond passed for fuzzy-wuzzy High Speed Rail (in a state that refuses to produce enough of its own electricity) that would have covered a lot of the actual Prison repair and enhancement costs – the kinda stuff we need doing instead of relying on Unicorn farts and intense-dreaming…
    But (in deference to back-room developers and other eco-industry handouts) the MSM painted the Prison Guard Union as another Special Interest and recipients of the State’s largesse, an Enemy of the People. And that’s how Sacramento operates and why we are in such a mess.

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