Jack William Bell

There is this thing that has always bothered me about criminals – the real bad ones who get sent to prison for long periods of time for doing real bad things. What bothers me is the fact doing what they do isn’t just morally bad, it is stupid. Really, really stupid.

I’m not talking about the kind of ‘stupid criminal stories‘ Jay Leno snarks about. No, I’m talking about an inability to assess risk/reward ratios so entire and complete that I can only assume these people are brain damaged in some severe way.

Think about it, the risks of being a felon are considerable. There are the risks you take when committing the act, whether it be burglary or armed robbery or dealing drugs. Then there are the risks associated with the criminal justice system, from interactions with cops to time in prison; along with all that entails. Finally there are the risks of association; criminals often perform their criminal acts in conjunction with other criminals; surrounding themselves with others unable to properly assess all that accumulated risk against a relatively minor reward. (How much do burglars make, anyway? I’m guessing I make more per hour than most of them.)

And the risks I’m talking about go beyond the potential for jail time. No these risks often constitute grave, even mortal, danger to the criminal. And these elevated risks appear at every stage of the process; from committing the act, to getting aprehended, to the actual time behind bars–trapped there with the other criminals.

Studies indicate that criminals may not be stupid per se, but they may have exactly the kind of brain damage I mentioned earlier. In fact ADHD drugs, which reduce impulsivity, may reduce criminal behavior.

But there is more to it than that. Being impulsive does not a criminal make. By the same token, having ADHD does not make you a likely criminal. Nor does thrill seeking or any of the other kinds of behaviors exhibiting a different way of calculating risk against reward than the average.

Clearly the problem is a deeper one. I expect that, like everything else about human beings, criminal behavior is a soup of genetics and environment and no two people arrive at their destination exactly the same way. One can be wildly impulsive and not become a forger or a mob enforcer. In fact, for those latter two pursuits, I’m thinking impulsivivity is counter-indicated. Those people may have skewed math, but it isn’t because they don’t stop to think about what they are doing.

But what about those in-between? Those who commit criminal acts on impulse and learn their lesson? This might well be just about all of us. I know a few people who never drive too fast or cross the street against the light, but most of us don’t follow the laws exactly. And, for that great majority of us, if we get caught we pay the price. We deal with the consequences. We change our ways.

And there is the problem. For every drunk driver who kills someone’s family there are hundreds who never got caught or did get caught and never did it again. Drunk drivers who harmed no one, but most certainly had the potential. Are they equally bad people as the one with blood on his hands?

Well, yeah. There is that potential, right? Killing someone is bad, even when it is an accident. Same with injuring. Same with only harming property. These are bad things. And yet… And yet…

We can go back and forth all day, but it really comes down to a general rule in the USA that doing something bad once doesn’t make you a bad person, so long as you make up for it. So long as you accept the consequences. Whereas continuing to do bad things indicates something entirely different.

Which brings me to Facebook. Yeah, this whole essay (the bulk of which is seemingly entirely off subject) is really about kids doing stupid stuff and saying stupid stuff and then finding they are paying the consequences years later because it was all frozen in digital amber. They acted impulsively, as children do, and the adult them might be facing a lack of job prospects as a result.

So, Facebook. But not just Facebook; take all the existing social media and add in the constant recording of everything you do that is coming. Everything. Everything we say. Every move we make. All of it is going to be in a database. Now add in Google Glass, security video, and the coming age of spy drones everywhere; seasoning that database with video proof.

Then accept the fact it will be possible to forge or modify that proof in ways which might be undetectable.

And I’m not just talking about kids here, but everyone. The panopticon future is really going to happen. We stand no chance at all of stopping it. We are basically fucked because we are all liable for the stupid things we did on impulse. Those things that we will never repeat, but which will dog us anyway. All of it available for data mining. Any of it possible to fake.

Having said that, let me add this: I think there is a way out.

That way is simple: we become more forgiving. We modify the rule slightly. We say, ‘everyone is stupid sometimes, so we insist they pay the consequences only if they get unlucky and hurt someone or they keep doing it.’ In other words we keep the current status quo of letting people get away with things because they don’t get caught, but we do it in a world where they will get caught. Where everyone will get caught.

And the way we do this? In the USA we need a constitutional amendment that, effectively, extends the Fifth Amendment to the digital realm. In other places you need to add need similar protections to your legal systems. I don’t know how it would read, but I would put it this way:

Digital data at any kind can not be used in a court of law to prove guilt unless the collection of that digital data was approved by the court before the data is collected and where the order to collect specifies each source of data to be collected in detail and where a judge signs off on each source separately and where extensive and audit-able records are kept of the data as it is collected. However, digital data proving innocence may always be introduced in any court proceeding.