Today's criminal justice system shares a big problem with the internet mob that went after an American dentist for killing Cecil the lion.
The problem with mob justice, Vox's Max Fisher wrote, is that it's random and severe. That's why the dentist who killed Cecil was punished by an internet mob, while other killers of rare wild animals were not. Mob justice "treats justice as a sort of random lightning bolt from the sky; one is reminded of the vengeful but arbitrary gods of Greek or Roman lore," he wrote.
Fisher contrasted this with the ideal criminal justice system: "One of the reasons we have a justice system is to punish criminals for wrongdoing, both to serve the abstract ideal of justice and to deter future criminal acts. The idea is that if you are considering committing a crime, you will understand that the justice system has a high probability of catching you and enacting a certain punishment."
Fisher is right that the randomness and severity of mob justice is a huge problem with internet culture today, and that the criminal justice system is supposed to act in the opposite way.
But that's not how the criminal justice system works in reality. The system tends to work much closer to how Fisher describes mob justice than the ideal he envisions: People aren't consistently punished for breaking the law; instead, a few are severely punished for something millions more get away with.
A lot of people do drugs, but only a few are punished for it
Roughly 4.5 million people admit to selling illegal drugs in 2003, according to national surveys. Yet nowhere close to a majority of those people ended up in prison for 55 years, like first-time, nonviolent drug offender Weldon Angelos did the year before.
In 2002, police caught Angelos selling marijuana while allegedly possessing a firearm in three separate stings. Federal prosecutors stacked each of these stings into three offenses, with all the charges adding up to a 55-year set of mandatory minimum sentences with no chance of parole. It's a sentence so outrageous that the judge, who had to hand it down under federal law, has spoken out against it.
Angelos's case, while an extreme example, represents the big problem with the justice system: Millions of people break the law, but only a few are punished — and they can be punished very severely.
Beau Kilmer, a senior policy researcher at the RAND Corporation, in July described how the criminal justice system works with a comparison to parenting: "You tell a kid to not take cookies from the cookie jar. You don't give them a slap on the wrist, a slap on the wrist, a slap on the wrist, and then give them a time-out for six weeks. But that's kind of what we do in our criminal justice system with respect to substance abuse — we say don't do this, don't do that, don't do that, and then all of a sudden after maybe the eighth failed test, we revoke their probation or parole and throw them in prison for years."
It would be one thing if these severe punishments deterred crime. But people don't tend to look at severe stories like Angelos's as a warning for using or selling drugs; they see them as outrageous aberrations. And there's a good reason for that: If you were born in 1991, the chances of you going to federal or state prison were roughly 5.2 percent, according to the Bureau of Justice Statistics. Those are low odds for a population of which roughly 4 in 10 have told Gallup that they used marijuana, breaking the law, at some point in their lives.
So people tend to enjoy their joints and bong rips without much worry that they'll ever go to prison. There's no deterrent effect because there's simply too much uncertainty in who will get caught — it seems unlikely that it could happen to you.
In fact, it's concerns over the system's randomness and uncertainty that helped lead to strict mandatory minimum sentences and other tough-on-crime policies during the 1970s through the '90s. Policymakers wanted to make prison sentences so harsh that any thought of getting caught using a drug would seem so terrifying — even if it was unlikely — that no one would risk it.
The concept failed. Drug use has trended up since 2002, according to national surveys. Crime is down, but experts generally agree higher prison sentences played a small role. Yet the harsh sentences inflicted on a few people remain, making the criminal justice system often seem like a random lightning bolt from the sky.
Some experts want to reform the system for swiftness and certainty
Some criminal justice experts advocate for a different system — one of swift, certain, and fair justice. As a potential model, they point to programs that enforce constant sobriety for problematic drug users. In these programs, people who break their sobriety are always sent to jail, usually for a couple days. The idea is to establish a credible, reliable deterrent that isn't too severe — essentially, the opposite of the current criminal justice system.
Mark Kleiman, a criminal justice expert at New York University's Marron Institute, explained the philosophy behind swift, certain, and fair justice in 2013:
Way back in the eighteenth century, Cesare Beccaria — the Italian criminologist from whom Jeremy Bentham [founder of modern utilitarianism] borrowed not only the term "utility" but many of his ideas for criminal-justice reform — identified three characteristics that determine the deterrent efficacy of a threatened punishment: its swiftness, its certainty, and its severity. Of the three, severity is least important. If punishment is swift and certain, it need not be severe to be efficacious. If punishment is uncertain and delayed, it will not be efficacious even if it is severe.
States have deployed the swift, certain, and fair method over the past decade to deal with drug abuse. Hawaii's HOPE Probation program requires illicit drug users with a criminal history to take regular drug tests, and South Dakota's 24/7 Sobriety Program requires twice-a-day tests for alcohol users whose drinking has repeatedly gotten them in trouble with the law. In both programs, if participants fail a drug test or miss a check-in they're always sent to jail for a night or two or more.
The early research on these programs is promising. A 2013 study of South Dakota's 24/7 Sobriety Program attributed a 12 percent reduction in repeat DUI arrests and a 9 percent reduction in domestic violence arrests at the county level to the program. And a 2009 paper of Hawaii's HOPE Probation program found participants had large reductions in positive drug tests and were significantly less likely to be arrested during follow-ups at three months, six months, and 12 months.
Right now, these programs are largely untested in heterogeneous places like cities. But Kilmer, author of the 2013 study, argues the results from the current research should be promising enough to test the concept in more places.
If the alternative is keeping a system that shares a troubling similarity with mob justice, it's definitely worth a shot.