The Last Word
Flaherty, Francis J.
THE LAST WORD Francis J. Flaherty Justice by the Numbers Let's call her Mrs. Smith. She was a good teacher and a masterful tactician of student control. One fine spring day in the mid-1960s, she...
...This is a perilously slippery slope...
...Smith, you should have made certain that punishing him was not enough...
...Conditioning one's freedom on the assessments of others can also have class overtones...
...Preventive medicine is one thing...
...Naturally, there's no guarantee that less intrusive laws will do the job...
...If, in other words, our concern is sex crime, we ought to address our strategies to sex criminals...
...If dirty movies lead some to rape, we'll ban dirty movies...
...But other judgments are more difficult...
...Only after those fine-gauged solutions had failed should we consider less discriminating strategies which impinge not only upon rapists and child molesters but also upon law-abiding fans of Linda Lovelace...
...But outright bans on guns—whether or not effective in stanching the wounds of violence—have the defect of forbidding to the innocent the ownership of firearms for sport, self-defense, and peace of mind...
...In their minority report, the RON HAUGE Commission dissenters resisted repeal because they believed there was such a correlation...
...The American legal tradition demands individualized justice: Punish an offender for committing a crime, not for unlucky membership in a demographic subgroup which, statistics show, commits more than its share of a certain crime...
...Will we deny driver's licenses to Type A personalities who, the data may one day show, are disproportionately involved in highway crackups...
...But we have become glib and unthinking practitioners of by-the-numbers justice...
...whether effective or not, this method has the virtue of penalizing only those who commit the violent acts with which gun-control laws are ultimately concerned...
...Their laudable aim is to reduce violence...
...Sound and sensible though this advice may be, something is wrong when a major weapon in the fight against crime is the incarceration of law-abiding people in their homes...
...Hefty fines and long jail terms for drunken drivers may fail, for example, to put a dent in the alcohol-related carnage on the nation's highways...
...If there's a chance that blue movies increase sex crimes, those for whom such films have little value are more than willing to outlaw them: It's no skin off their noses...
...But our current attitudes violate that tradition...
...If some eighteen-year-olds get drunk and crash their cars, we'll raise the drinking age...
...She has gone to Washington and to all the states...
...Whatever your personal predilections, traipsing about Bear Mountain was of consuming significance to me in the mid-1960s...
...preventive law is another...
...Before punishing me for Jimmy MacNelly's transgressions, Mrs...
...But should anyone shout or fight or otherwise cut up, there will be no more class trips for the rest of the semester...
...Routine recourse to blunderbuss laws strains the meaning of liberty...
...No one disputes the goals of these laws...
...But before circumscribing the liberties of the law-abiding, we should make certain that laws closely drawn to penalize only the guilty do not suffice...
...Even in our meek parochial-school hearts, that threat ignited a spark of rebellion...
...How long will it be before something you do, or something you are, becomes statistically suspect—and, therefore, punishable...
...I lost track of Mrs...
...What do you say to the ghetto resident who has been mugged three times and believes, therefore, that she or he needs a gun for self-protection...
...How you feel about such laws usually reveals how important the regulated activity is to you...
...If guns lead some to violence, our first impulse is to take everyone's gun away...
...Francis J. Flaherty specializes in coverage of legal issues...
...Stiff penalties for the use of guns in the commission of crimes is one method...
...As it turned out, Jimmy MacNelly must have behaved, because I remember clambering up Bear Mountain that June...
...In their efforts to reduce crime, for example, police departments across the country advise citizens to stay inside at night, to travel in pairs, and to avoid certain sections of town...
...Sure, we thought, we're willing to face the music for what we do, but it's just not fair to hitch our fortunes to the behavior of others...
...In that case, we may have no choice but to raise the drinking age or to permit the police to make random car checks...
...The 1970 majority report of the Obscenity Commission favored the repeal of pornography laws because, in its view, there wasn't enough evidence to support a finding that "erotic material is a significant cause of sex crime...
...We seem to be losing sight of these ancillary injustices...
...In general, both sides ignored the proposition that, even if such a linkage were proven, the proper solution might not be the blanket prohibition of pornography but rather the more effective treatment or punishment of sex offenders...
...One fine spring day in the mid-1960s, she announced to my grammar-school class, "Tomorrow, children, we shall go to the museum...
...Consider gun-control statutes...
...The trouble comes in choosing a way to achieve that aim...
...Smith long ago, but her methods live on...
...Or consider the debate over pornography...
...Rather, it is their method—the casting of a wide regulatory net to catch a few bad fish—that raises the hackles of many civil libertarians...
...And what of statistical correlations that have not yet been detected...
...But my freedom is hollow if its exercise depends on how important a given activity is to .you...
...America's legal codes are now shot through with blunderbuss laws—statutes that are intended to control the depredations of a few but that also catch within their sights the activities of the law-abiding many...
...Why not impose a curfew on teen-age males, who are more likely than average citizens to break the law...
...You may judge as trivial a citizen's right to watch Behind the Green Door, and you are probably right...
...Inconveniencing the innocent to control the guilty has become part of the American way...
...We could see the injustice of it: Why should our trips to Bear Mountain or Palisades Park hinge on whether someone— probably Jimmy MacNelly—were to burst into laughter at the sight of a bare and bountiful Rubens nude...
...Gun bans may seem eminently sensible to those affluent enough to live in safe suburbs, but it may be a life-and-death matter for those bound by poverty to the inner city...
...Statistics leave us so starry-eyed that often we don't even consider less intrusive solutions...
...f more finely tuned measures fail, these draconian laws may, of course, become necessary...
Vol. 47 • April 1983 • No. 4
