Legal Intern, Manhattan Institute's Center for Legal Policy
Broadly speaking, our justice system tends to utilize two main frameworks of punishment: Deterrence and Proportionality. While individual states make individual choices as to which framework best represents the wishes of their citizenry, extreme application of either of these two theories will ultimately serve to cast aspersions on the effectiveness of the other. Two recent cases demonstrate this concept in the context of extreme applications of deterrence.
Evan Bernick of the Heritage Foundation's The Foundry website has recently written about a case out of Alaska in which a man is being charged with the misdemeanor of illegally feeding moose that wandered onto his property. The penalty for the charge is up to $10,000 in fines and a year in jail. Based on the severity of the penalties, it seems reasonable to presume that they are so harsh because they are meant to make it so personally detrimental to feed animals who wander onto someone's property that people would refrain from ever engaging in such activity. Therefore, it seems fair to categorize the theory being utilized as extreme deterrence. From a normative standpoint, the idea of potentially incarcerating someone for a year because they feed animals that wander on their property seems to destroy any sense of proportionality in the law. While there is a place for deterrence as a preventative measure, the extreme application of it serves to render proportionality defunct, and therefore skews the underlying fairness aspect of our justice system.
As another example of this injustice, Brian Doherty of Reason.com's Hit and Run blog has written about how cops are conducting undercover sting operations to catch unlicensed rickshaw drivers who are conducting "illegal tours" in the city of Charleston, South Carolina. The penalty can be more than $1,000 for such an "egregious" act. Besides the potential entrapment issues, the crime of giving tours of the city without a license does not really seem to warrant such a high penalty. If we assume fairness is an important metric by which we judge justice, then this law seems fundamentally unjust. Once again, the deterrence aspect of the law is undercutting the proportional fairness of it.
In order to stem this sort of routine overreaction to seemingly minor infractions, states should strive to reassess the place of fairness in their justice systems.