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How much civil rights should people have? This question has been much debated as civil rights have extended. The traditional way civil rights have been extended is to pretend that the rights have always existed and that a violation is being detected. This obscures the truth of the matter. Namely, individuals in a society should have all the civil rights society can afford, and these rights should be extended as time goes on. Here are some proposals: The arrest of a person accused of a crime should be very rare even for murder. As the world becomes more settled and the technology improves, the feasibility of running away declines. Therefore, the accused can be counted on in most cases to be available for his trial. Exceptions might be: the defendant is accused of attempting to injure someone and might still do it if he were free; he is accused of failing to appear for trial. The present practical objection is that delays in trial are so great and so easy for a defendant to extend that many dangerous activities such as dope peddling or systematic extortion would continue without interruption if arrest always resulted in immediate release on recognizance. Promptness of trial would fix this, but perhaps the state could ask for a court order of temporary exile from a city for someone whom they can show is probably dangerous. They must pay this person compensation while he is away and pay damages if he is not convicted.
Jails for holding arrested persons should be separate from prisons holding convicted persons. A jail should be a hotel with good services including entertainment in keeping with the idea that the person is presumed innocent until convicted. The custodial agency should be independent of the police or the prosecutor, and these agencies should have no access to the prisoner if he doesn't want to see them. The prisoner should have full rights of private communication with anyone including the right to use ciphers. Any exception should be based on a court order. It is not clear that our society can afford this reform yet since the police depend on control of prisoners for much of their evidence. On balance, I think we can afford it (certainly once the technologies proposed in this chapter become available), and in any case it should be a goal to be implemented as soon as alternate means of evidence collection become available so that confessions and plea bargaining can be dispensed with.
Every institution including a prison develops a tradition. In the case of a prison, this tradition is usually one of cynicism, despair, individual selfishness and gang rule. Attempts by reformers to make other attitudes dominant sometimes have success in new institutions with selected inmates and young, enthusiastic personnel, but eventually cynicism among the inmates and personnel reestablishes itself and is almost impossible to overcome. This effect can be mitigated by running prisons as batch processing rather than continuous institutions. The idea is that a group of prisoners who will be released at about the same time should be kept together and isolated from others. The staff will attempt to establish a good tradition in this group. No prisoners whose terms overlap the release date of the group will be put in it. When the group is released, the facility becomes available for a new batch. This calls form numerous small prisons rather than a few large ones. Perhaps a number of states could share facilities in order to put the prisoners into homogeneous groupings. Any prisoner should have an absolute right of isolation from other prisoners whom he fears. This could prevent prison gangs from intimidating other prisoners.
A counterpart of making crime more difficult is making going straight easier. Once the country can afford to give each person a base income independently of his working, people who cannot bring themselves to work will have an alternative to crime. Under present circumstances, it might pay to pension released criminals at a rate of pay less than it costs to keep them in prison. If this were done only for those who have spent five years in prison, there would be little temptation to commit a crime in order to get a pension.
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Criminal law, Bail, Prison, Defendant, Criminal procedure, Criminal procedure in South Africa, Remand
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