Privatized Crime and Privatized Punishment

The American criminal justice system is beset with problems that jeopardize both our sense of fairness and the deterrent to criminal behavior. They are numerous -- and that in itself is an indictment of what has become a biased, ineffective amalgam of practices that we dare call a "system" only out of habit. Globe setting incarceration rates; disproportionate sentences for petty violations based on a trendy, now disproven theory of "zero tolerance;" the abuse of onerous bail and other procedural rules to jail the poor/people of color without conviction; internment of illegal immigrants in for-profit holding pens; massive exemption for financial swindlers of every stripe by arbitrary prosecutorial action or non-action; slap-on-the-wrist settlements for the well-healed and well-connected -- all of these phenomena reflect a deviation of the principle of 'equal protection of the law' and "due process" that are the bedrock of democratic law-enforcement are well documented. They also are widely tolerated as "the way things are" for which there is no serious remedy. Just 21st century America in characteristic feckless mode.

There is one related deformation of criminality that not only is tolerated but is largely ignored. It involves the transfer of responsibility for law enforcement from public authorities to private ones. Accounting firms are hired by businesses to monitor their compliance with federal law and rule as decried by federal regulatory agencies. Professional sports make or break athletes' careers through ad hoc arbitrary procedures. And, most egregiously, universities are permitted -- indeed, encouraged -- to adjudicate alleged felonies occurring on their campuses (or in locales under their jurisdiction) using whatever slap-dash arrangements they find convenient.

These phenomena represent a distressing deviation from the fundamental belief that it is the obligation of government to provide for public safety. That never has meant just some vague affirmation that it is ultimately responsible for civil order. It never implied -- much less actually entailed -- subcontracting, outsourcing, honor codes or self-enforcing mechanism. It meant police, prosecutors, courts, trials, and penalties where a judicial determination calls for them.

The most extreme deviation from these norms is found in the transfer of responsibility for handling rape cases to university administrators. The resulting neglect, injustices and tacit permissiveness for these violent criminal acts is a national scandal. Yet, this ugly situation has broken into public discourse only within the past few years. Remedial action -- legislative or executive, federal or state -- has been feeble and superficial. Lots of talk about more efficient adjudicatory processes; about better monitoring and reporting; about changing the student "culture" in regard to alcohol, frat parties, consensual or non-consensual sex; about balancing plaintiff and defendant rights. These items also are high on the lists of guidelines set down by the Department of Education in Washington and some boards of regents/trustees. The DoE traditionally has been very hesitant about entering this domain. Apprehension about treading too heavily on universities' institutional autonomy had led them to set strict limits on the acceptance of complaints and initiation of investigations. The fact that it now has agreed to look into alleged abuses at 100 plus universities is telling evidence of the problem's scope and seriousness.

Still, its administrative stipulations and recommendations are mainly of a hortatory nature. No university administrator need worry about the prospect of having the Feds moving in or exacting penalties. Nothing done or under consideration exceeds their inclination and ability just to tinker with the status quo.

That conforms nicely with their prior complacency, their adherence to the slow-motion ways of academic bureaucracy, and their dread of rocking the boat. Above all, they are prepared to subordinate justice to the all-powerful financial considerations that today govern most of what university administrators do. This holds for private and public schools alike. There exists an abiding fear that bad publicity will discourage students from out-of-state or foreign students from applying -- and that is where the money is. A close look at the percentage of income thereby derived is an eye-opener.

Internal pressures are almost non-existent. Faculty are cowed and self-absorbed. Students have been politically denatured to the point where whatever protest energy they have is quickly exhausted agitating for transgender rest rooms. Alumni have shown more concern. But they are fragmented, distant and poorly represented by those most prominent in their loosely organized associations.

Symbolic of this look-the-other-way attitude is the current craze for devising formal arrangements to ascertain permission to proceed with a sexual encounter. Some have gone so far as to require signed statements of agreement (supposedly by women). The University of Texas, among others, has students suggesting the wording that might be used by whomever is proposing a "serious" sexual act. Ideas number in the hundreds. They would make a fascinating collection which, if published, could fund some group's end-of-term blow-out. Unclassified reports indicate that they include such old-time favorites as: "hey, baby, how about a roll in the hay?" or its more trendy version "Hey, guy, how about our spending some quality time together in the organic arugula!").

There doubtless are some people who take this silliness seriously -- or, at least, pretend to. Administrators for sure will reach for any device that permits them to avoid hard choices or consequential actions. In truth, nearly every man (and probably female) knows exactly what rape is and what it isn't. There may be grey areas when both people are completely buzzed or stoned, but even in those instances none of the proposed procedures are likely to change anything. Where only one is in that impaired condition, they won't work either.

In truth, universities are institutionally and in terms of personnel ill-prepared to deal with sexual crimes. They are conservative institutions insofar as innovation takes place within departments and programs not at the top. Central administrators have relative little room to maneuver when it comes to missions and purposes. Their principal tasks are raising money and keeping the various pieces of the enterprise ticking over. Most these days are little different in temperament or ambition than the heads of any other big organization. Reform for them means cutting employees, regimenting teaching wherever possible and soft-soaping their funding sources - alumni or legislators. When prickly issues arise like rape, avoidance behavior kicks in. What they are good at on sensitive matters with a sharp edge is talk - not action. They blow bubbles. They discuss alternative methods for blowing bubbles. They empanel task forces to examine the variety of bubbles that might be blown. They promote "conversations" that are bubble blowing festivals. They pay consultants to tell them how to blow bigger and better bubbles, i.e. to confirm their prejudices as how best to give the impression of reform with minimal disturbance of the status quo. At all times, saving money is a constant.

The latest fashion is something called "restorative justice." RJ is the ultimate cop-out. It has university officials playing facilitator in extended encounter sessions between abuser and victim that seek to achieve mutual understanding as the basis for emotional "closure." It can include counseling, close monitoring, and community service as outcomes. The approach appears to be borrowed from methods applied in pre-school settings to settle disputes between four-year olds over who took whose crayons. Where "justice" fits into this is obscure.

To rely on the schools themselves to tackle the problem, therefore, is to accept the status quo since notable change will not occur at the initiative of university chiefs. The alternative is to return responsibility for alleged criminal acts to public authorities. That means, in the first instance, the police. There's the rub. The crass handling of rape cases by many (perhaps most) police departments and District Attorneys to discourage women from bringing complaints and seeking redress. So they opt for the supposedly caring university authorities. By the time they realize how uncaring in fact their university administration is, the police option is foreclosed. That pleases both the university and the police.

Too often, victims are subject to humiliating treatment if not actually viewed as the culprits. That is a major civil liberties and criminal justice problem in the United States. Nonetheless, if reforms are to be made they are more likely to register with practical effect in the public realm than within the universities' typical institutional maze. Mobilizing political pressure at the local or state level is difficult, but possible given the existence of potential allies and electoral sensitivities. By contrast, there is almost no accountability for university officials since faculty seek above all to be left alone, attention of boards is intermittent, and alumni unable to sustain attention. As for principled dedication to upholding standards of decent behavior and protecting the vulnerable, despite the costs, many see that as praiseworthy perhaps, but quaintly old-fashioned.

According to a 2013 survey of university presidents, 100% judged that they handle sexual assault cases "appropriately" ("The 2014 Inside Higher Ed Survey of College and University Presidents," a study by Gallup and Inside Higher Ed). Presented with such perfection, Allah himself is humbled.

So, if neither the university nor police recourse is available, there remain two alternatives: acquiescence in the perpetuation of present abusive conditions or private action. By private action, I am referring to vigilante responses. Vigilantism is a natural reaction to the break-down of law-and-order through the absence, incompetence or complicity in criminality on the part of public authorities. It was practiced in the boom towns of the Old West, albeit with less frequency than romantic accounts of life on the frontier suggest. Another, traditional form of vigilante behavior is retribution by tribe, family or friends. In "honor' societies, that is quite common. It is not part of American cultural practice, though.

That does raise an interesting question. Why are cases of such persons taking the law into their own hands almost non-existent? The immediate answer is that we are a law-abiding people, with faith in our institutions - and we are fully aware of the wider implications of individual "justice' becoming an acceptable norm. Still, given the level of violence in this country, it is odd that almost none of it (except in regard to intra-family feuds) is motivated by an impulse to right a wrong. It would be worthwhile for some foundation to look into that question.

Effectiveness is not the issue. Let's consider the situation wherein the relatives of a campus rape victim beat the living daylights out of the student rapist, ties his stripped body to the big oak in the quad with appropriate identification and distributes the photo via social media. Is there any doubt that the school would experience a dramatic drop in cases of sexual abuse for a few years? Only the psychopaths would dare risk quick punitive justice. This diagnosis is not meant as a prescription - the downsides are too great. The social-psychology, though, is worth considering. Everything has its costs - including civilization.

As to predictions, there are no signs that the privatization of criminality in the United States will lead to the privatization of punishment - except as might be sanctioned by the state (for-profit executioners). We have seen no evidence, or example, of even the mildest attempts at direct protest of the rampant criminality on Wall Street such as street demonstrations that singled out individuals. Similarly, ruthlessly exploited workers in fields like food service or agricultural stoop labor (including young children) are so passive that they make only the feeblest efforts to organize themselves.

Oddly, the most intoxicating passions swirling through American society come from those moved by dogmatic doctrinal causes. Hence, the venomous Tea Party agenda that focuses on abortion, unbridled gun 'rights,' gay marriage, alien immigrants, race (the hardy perennial) -- and free-floating paranoia about Washington conspiracies to enslave them. They are the ones attracted to vigilante-style direct action. They are the ones who exude violence, in word and occasionally in deed. For them and their combustible leaders, though, rape on campus is not a moral or religious issue worth bothering about. Indeed ,some male tea partiers make remarks suggesting their own discomfort at addressing women as equals.