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The punishment should fit the crime. Does it ever? Maybe in high-profile cases when the myth of equal justice must be perpetuated to dodge the bullet of calls for reform.
The nexus between offense and retribution is traceable when guilty parties lack the clout to have stern judgments against them reversed or fixed by the intervention of strategically-placed co-elitists with whom they have networked.
The scales of justice may be calibrated, but rarely in favor of the meek. When innocence triumphs, it may not be by sheer accident, but neither is it likely to be solely on its merits.
We are told that we are a society of laws. Under those laws we are all equal. But, as the prophet Orwell noted, some are more equal than others.
Can a balance be struck? Can proportions be equalized, so that punishments don't have disparate impact, depending on economic status?
Let's begin with baby steps. Make the rich pay for parking tickets commensurate with their total assets. This should be expanded to a panoply of other civil and eventually an array of criminal laws also.
Don't laugh: common sense can be codified into law. Democratic principles can be translated, albeit uneasily, into public policy.
Justin Brannan and Julie Won, two members of the City Council, have proposed a pilot project that would, in effect, make penalties more equal in impact by making them unequal in literal severity. “Why should the guy who double-parked his 1988 Toyota pay the same as the guy with the 2024 Bentley ... instead of bankrupting working people while winking at the rich by setting the same fines for everyone,” asks Brannan, who represents Bay Ridge.
Equal justice demands proportional justice. There should be retroactive indemnifications levied against the historically over-privileged. Let them pay back more than they've stolen. At least symbolically, let's take a bite out of their hides.
If symbolism resonates with the masses, it may graduate into the substance of statute.
Should the same New Yorker who owns New York's leading talk-radio station, major real estate holdings in multiple states, grocery chains, an oil refinery and fuel company that delivers to a couple thousand government and private buildings (including all New York City's public schools,) owns a fleet of an estimated thousand vehicles, a private plane and a baseball team, pay the same as a single parent on SNAP with a handicapped child?
That status quo has got to go!
Labor relations and union activism are predicated upon the pursuit of a “level-playing field.” But the rich play on an impeccably manicured lawn with round the clock grounds-keepers, and the rest of us swing our bats over a home-plate on quicksand and slide into bases of volcanic ash.
Some media pundits belittle this perspective as “class envy.” Marxism. Globalism. It would make our society a “cesspool,” they warn. That “cesspool” already includes countries like Germany, Austria, Switzerland, France, most of Scandinavia and a few U.S. cities.
The technology exists. It is being fine-tuned faster than our elected officials and policy wonks are being sensitized.
You don't need to be a progressive to believe in what in Scandinavia is called “progressive punishment.” Incremental penalties are imposed there for speeding and other breaches, based on tax receipts.
Around 20 years ago, a Nokia executive was fined the equivalent of $103,000 for going 15 miles per hour over the limit on his motorcycle. Finland applies the same system to some other violations too, such as security-exchange laws.
An explanation of how the method works appeared in The Atlantic: “It starts with an estimate of the amount of spending money a Finn has for one day, and then divides that by two — the resulting number is considered a reasonable amount of spending money to deprive the offender of. Then, based on the severity of the crime, the system has rules for how many days the offender must go without that money.”
This sliding scale arrangement is called Day Fines. This is the type proposed in the City Council.
"Cannot pecuniary penalties be proportionate to fortunes?” asked French philosopher Montesquieu, patron saint of American constitutional scholars, in 1748. The language may be dressed up, but the naked truth is universal, natural, native comprehensible.
The European Citizens' Initiative Forum, or ECIF, observes, “For wealthy corporations and individuals, a fine is not a moral threshold to stop criminal and harmful behavior, but also an obstacle.” Some people make up the cost of a speeding ticket in a few seconds while others must labor a month to offset it.
The ECIF (which does not represent the European Commission or Union) points out that the formula fits such cases as Facebook's monumental violations of consumers' privacy and drug companies who make out like bandits (and generally are), by calculating penalties for offenses they deliberately commit, often involving dangerous pharmaceuticals, into the cost of business.
The blog of Cambridge University Press sums it up admirably: “With traditional fines, the rich can simply ‘buy the right to commit an offense.”
Even the most absolute and transparent truth can be debated by intellectuals skilled in feigning counterpoints. One argument is that equal penalties should pertain to equal damages and therefore should be the same when caused by the well-heeled as by the heel-less.
Former President Clinton said “It depends on what the meaning of the word ‘is’ is.” And it also depends on what the meaning of the word “same” is.
A comment on the ECIF blog warns that government may use “a disproportionately high fine ... to control the masses of citizens who could not afford it, whilst the wealthy had the luxury of freedom of choice whether to consent to the measures or not by paying an affordable fine for themselves. The rest ... had no choice but to conform. This gives governments unethical superpowers to control masses of less affluent people.”
In short, comeuppance should be calibrated to pay-grade.
Casey Mulligan, a professor of economics at the University of Chicago, seems to believe that based on their productivity, prosperity and material contributions to society, an hour in the life of a rich person is more valuable than that of hoi polloi, and should be taken into account especially when an offender is held in custody.
If the City Council bill is enacted, it will be a promising gesture, but the larger issues of unearned privilege and economic and social elitism in our nation will remain unaddressed on a larger scale. Members of Congress will still be entitled to reap the profits from insider-trading which would put the rest of us behind bars. Legacy admissions programs at Ivy League universities will still allow the applicants who are the children of big donors to jump the queue.
Income-based penalties may be impracticable but they are still enforceable. It will take a massive bureaucracy to track income, in all its guises. The government is aware of the gargantuan off-the books, underground economy and the proliferation of fraudulent personal data and documents, but does nothing about it.
New bureaucracies will need to be created, and if the past is prologue, it will be inept, sleazy and amenable to graft.
Will we be carrying a laminated assets card? Will dividends and market swings of pulled-over motorists be stored on a cloud and downloaded on police cruise screens?
Extending the income-based penalty from civil infractions to criminal sentencing has not been seriously suggested, but should be. Indigent violent criminals should lose their freedom with no mitigation due to their life's hardships. But so should the politically-connected gentility, for the first time, serve the same sentences under the same conditions with no time-off because of their caste and utility to industrial output.
Mayor Eric Adams’ approval of the “day-fines” program is essential. So far he has neither embraced nor ruled it out. Councilman Brannan would like Adams to identify in the next month which agencies would be in charge. The goal is for the pilot's implementation to start within a year of the mayor's nod and for it to cover at least 10 local laws.
The City Council proposal was conceived in virtue and hopefully will cross the political placenta and become law. It has perfect pitch. But there will always be tone-deaf killjoys and naysayers.
And they've got connections.
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