Shades Of Reality

Chapter Ten

Because Realistic legal issues require more accurate specifications than simply "one" or "zero" (guilty or not guilty, legal or not legal, etc.), I have coined a new term, Legimetry, to define the field of study that deals with the quantitative aspects of all legal issues.

After a trial has ended you often hear reports like, "the defendant was found guilty of three counts of burglery." By the term "count," they mean the number of separate crimes for which the defendant was found guilty. But if all guilt is a matter of degree, then how does one "count" fractions of guilt?

The concepts of "counting" and "measuring" are very closely related. Both involve the determination of exactly "how much" of something exists. For example, if we have a bag full of identical marbles, and we want to know "how much" marbles we have, we simply count the number of marbles. But if we have a piece of string and we want to know "how much" string we have, we can't simply count the number of string. (If we do, we'll always end up with one, regardless of the length of the string.) So instead, we mark off identical units of length (such as inches), and we then count these to determine "how much" string we have. Therefore, the concept of "measuring" is merely the concept of "counting" applied to continua. Measuring could be referred to as "fuzzy counting."

Let's say that you have been on a cross-country driving trip and you want to know what kind of gas mileage you got with your car. Would you simply count the total number of times that you stopped to buy gas? While this might give you a crude estimate of your gas mileage, it would have been more meaningful to have kept track of the total number of gallons that you purchased on the trip. And this total amount of gasoline is independent of how many times you choose to stop and buy it. You could just as easily have stopped for gas twice as often. But then you would have bought only half as much at each stop.

Perhaps you've heard the joke about the fellow who went into an Italian restaurant and ordered a pizza. "How would you like your pizza sliced?" asked the cook, "into eight pieces, or twelve pieces?" After thinking for a moment the customer replied, "You'd better slice it into eight pieces. I don't think I'm hungry enough to eat twelve pieces."

Obviously the net amount of an entity is independent of how you choose to divide it. I recently saw a TV commercial by a loan company that did try to give the impression that it wasn't. According to the commercial, a person could easily solve all her financial problems by simply applying for one of their loans and using the money to pay off all her bills. Then, instead of having to make many payments each month, the person would only have to make one monthly payment!

If you had a pile of gold nuggets (each of a different size) and you wanted to determine the total amount of gold in the pile, you wouldn't simply count the number of nuggets. Instead you would more realistically measure the weights of' all the nuggets, since "amount of gold" is a concept that forms a continuum.

Since guilt and levels of crime also exist on continua, we cannot simply "count" them either (not if we expect to arrive at any kind of meaningful interpretation). For example if we try to implement a "three-strikes-and-you're-out" type of law, we immediately get bogged down in the question of deciding which crimes should be "counted" as strikes and which ones shouldn't. (If you have "three coins," do you have sufficient funds to purchase a 50-cent candy bar? The answer depends on what three coins you have!) Time after time, judges are finding criminals guilty of a third strike. But then appeals are filed attempting to discard one of the previous crimes as not being "bad enough" to warrant the full Three Strikes penalty. They claim that the "strike" was merely a "foul ball." (It is somewhat revealing that such baseball-type terminology should be used in these matters, because it helps to underscore the realization that our contemporary legal system is nothing more than a foolish game!)

The problem with Three Strikes laws is that they quantify crimes incorrectly. Crimes need to be measured, not simply counted. All crimes are not equally bad. While there is probably no such thing as a "good crime," some are certainly better than others. For example, murder is worse than robbery, and robbery is worse than jaywalking. Each one represents a different level of crime, and that amount needs to be quantified.

Notice that I used the singular form of the word, "crime" (not crimes), even if multiple thefts are involved. Traditional all-or-nothing law declares that each separate theft is a totally new separate crime. But if you adopt such a traditional viewpoint, then where do you "draw the line" between one theft and another separate theft? Suppose the man picked up the $100, one $1 bill at a time. Should this be considered to be 100 individual thefts? Suppose he even separately carried each $1 bill out to his car parked in front of the bank. Now should it be considered to be 100 separate thefts? How long must the man wait before going back inside the bank to get the next dollar bill in order for its theft to be considered a completely new theft? Legimetry doesn't have to deal with these kinds of questions because it measures crime instead of counting it.

In order to quantify crimes, we need to define a way of numerically specifying their amounts of "badness." This numerical value would then define the Level of Crime (in terms of crime units) for that particular crime.

For thefts, the level of crime is simply defined to be the total
dollar amount (of money or merchandise) that was stolen.

Therefore, in our above example, the level of crime for the bank theft(s) would be 100 crime units.

As we have already discussed, we cannot (in general) "count" the number of individual thefts that were committed. And so the penalty imposed on a criminal for the commission of a theft(s) should be simply proportional to the level of crime corresponding to the theft(s). (I'm aware that this isn't the way it's currently done.)

For example, if the above bank robber gets caught, his prison sentence should be only half as long as another "identical" robber who commits 200 crime units by stealing $200. However, since all robbers are not "identical," all thefts of a given dollar amount need not necessarily have identical penalties. In other words, if two different robbers each steal $100, they might not both receive identical prison sentences. I will discuss this further later in this chapter.

Perhaps you feel that the actual dollar amount of a theft is not what's important. Instead, maybe you feel that the mere fact that any amount was stolen is sufficient to call it "a crime," regardless of how much money is actually involved. In other words, the fact that a person has "committed" (i.e., made a commitment to) a theft is all that matters. (It's kind of a mind thing.)

Then consider a person who enters a bank with every intention of stealing as much money as he can. (In his mind there is absolutely no doubt about what he intends to do -- he has made the commitment to rob the bank when nobody's looking.) But try as he may, he just can't seem to find a way to get into the vault without being seen. So he eventually leaves the bank after having stolen a total of zero dollars. Would you say that he was "guilty" of commiting a theft crime? (As the old saying goes, you can't go to jail for what you're thinking.) But if the dollar amount of a theft crime is unimportant, then, according to you, a person is "guilty" of theft regardless of whether he steals one hundred dollars, one dollar, or zero dollars!

Failure to acknowledge the concept of level of crime forces you into the awkward Aristotelian position of having to "draw the line at zero" by unrealistically declaring that the only distinction between the "category" called non-crime and the "category" called crime is whether the amount stolen is either zero dollars or more than zero dollars.

When a law is broken, a crime is established that must be accounted for. When the person (or persons) responsible for the crime is (are) finally convicted, their guilts must exactly balance the crime that was committed. There cannot have been more crime committed than there are guilts (unless some of the criminals have still not yet been apprehended). Nor can there be more guilts than there was crime (unless some of the criminals are guilty of "nothing").

To illustrate, let's look at three slightly different burglery cases, all involving the theft of television sets:

Case 1:

A burgler breaks into somebody's home and steals a television set. The crime is therefore "the theft of one television set." Soon after the theft, the burgler is apprehended, brought to trial, and convicted. He is found guilty of stealing one television set. One theft of a TV is exactly balanced by one guilt. Case closed.

A burgler breaks into someone's house and steals a TV set, and another burgler down the street breaks into sombody else's home and also steals a television set. The crime is therefore "the theft of two television sets." Both burglers are caught and convicted. Each burgler is found guilty of stealing one television set. Two thefts of TVs are exactly balanced by two guilts. Case closed.

Two burglers working together break into a home and jointly steal one television set. The crime is therefore "the theft of one television set." Both burglers are caught and convicted. Is each burgler guilty of stealing the TV set?

The total guilts must match the total crime that was committed. In Case 2, the two guilts (each of stealing one TV) exactly match the crime (the theft of two television sets). But in Case 3, if both burglers were to be found guilty of stealing the one TV, then this verdict would represent exactly the same verdict as in Case 2 where the crime was different (the theft of two television sets). There would be a mismatch.

A court of law cannot create crime and guilt "out of thin air." (Only a criminal can do that!) A court of law cannot just "pretend" that the crime was "the theft of two television sets" when in actuality only one was stolen. Therefore, both burglers cannot each be 100 percent guilty of stealing the one TV.

One realistic verdict for Case 3 would be that the two burglers were each 50 percent guilty of stealing the television set (assuming that they were both equally involved in the planning and commission of the crime). Another equally valid verdict would be that each burgler was 100 percent guilty of stealing only half of the TV. Either way,

n = the number of criminals.

I refer to the above principle as the Conservation of Crime and Guilt. In essence it simply says that the level of crime (for any specific crime) is a fixed amount. And the person(s) who commits that crime cannot be "guiltier" than the total level of guilt that must be accounted for.

I realize that these concepts are completely foreign to the American legal system's all-or-nothing approach to law. So perhaps another example or two will help to clarify the concepts.

Suppose three men equally participate in a bank robbery. They steal a total of $750,000 in cash from the bank. If caught, what charges should be brought against each man?

Answer 2: Each man could be charged with separately stealing $250,000. If convicted, each would then be 100 percent guilty of stealing his separate $250,000.

It is not a requirement that each participant in the crime must have equal involvement in the crime. For example, consider the following scenario:

Two burglers break into a house together. One burgler goes upstairs to see what he can find while his partner remains downstairs. The upstairs burgler finds a $20 bill on a small table in the bedroom. Seeing that his partner isn't around, the burgler secretly hides the money in his pocket to keep for himself.

Meanwhile the downstairs burgler has just found a $50 bill hidden away in a drawer in the downstairs den. Being just as honorable as his partner, he too slips the cash away in a secret pocket in his coat.

Not being able to find anything else of value, the two men finally decide to leave the house. But just to keep their night's escapade from being a total failure, they decide to steal the living room sofa. However, before they can make a clean getaway, they are caught. What charges should be brought against each man?

Answer 1: The upstairs burgler should be charged with stealing $20. The downstairs burgler should be charged with stealing $50. Each burgler could be charged with 1/2 of the entire crime of stealing the sofa. If convicted, the upstairs burgler would be 100 percent guilty of stealing $20, and 50 percent guilty of stealing the the entire sofa. The downstairs burgler would be 100 percent guilty of stealing $50, and 50 percent guilty of stealing the entire sofa.

Answer 2: Just as in Answer 1, each burgler would be 100 percent guilty of his own private monetary theft. In addition, each burgler would be 100 percent guilty of stealing half of the sofa.

Actually there could be an infinite number of answers to these kinds of questions. For example, the upstairs burgler in the last scenario could be charged with stealing $100, but he would only be 20 percent guilty of that accusation. Or he might even be considered 200 percent guilty of stealing $10, or 400 percent guilty of stealing $5, etc. Legimetrically, it makes no difference how you choose to slice the pie, just as long as you remember to adhere to the Conservation of Crime and Guilt.

Up until now we have considered only crimes that have involved thefts of money or merchandise. In these cases it is fairly trivial to establish numerical values for the levels of crime. (They are simply equal to the dollar amounts that were stolen, or the fair market values of the merchandise which was taken.) But what about crimes like murder, rape, or kidnapping? How can we assign numerical values to the levels of crime for these types of non-theft crimes?

At first thought it might seem that attempting to compare a crime like theft to a crime like rape (or murder, kidnapping, etc.) might be like trying to compare apples with oranges. But apples and oranges can be compared, at least in terms of their costs. For example, if apples sell for 39 cents apiece and oranges sell for 59 cents apiece, then three apples are approximately equal to two oranges, at least in terms of their consequences to your pocketbook.

Similarly, we can quantify crimes in terms of how much it "costs" to commit them. Since (in an ideal system) the penalty for committing any crime should be directly proportional to the level of crime, we can work backwards and use this penalty information to deduce the level of crime that would have warranted the given penalty.

The following table (compiled from the 1996 edition of the California Penal Codes) lists some representative crimes and their corresponding penalties as defined by our present legal system:

*("Petty theft" is Aristotelianly defined as a theft of less than $400. So if you ever plan to steal $400 and you want to avoid the complications associated with having committed a "major" crime, you'd better be sure to leave a penny behind so that the total theft becomes only $399.99!)

The precise specifications of levels of crime for the items in the above table will be one of the tasks for future legimetricians. But we can make at least a crude attempt at trying to determine the values, based on how our legal system currently asesses the consequences of committing those crimes (as shown in column two of the above table).

First we will need to determine an approximate value for the ratio: number of stolen dollars per month of prison term. We will use the items, "Grand theft" and "Petty theft" to estimate this ratio. (Of course the Penal Code does not spell out specific dollar amounts for thefts. It merely lumps all thefts into pseudocategories of "less than $400" vs. "greater than $400." So our analysis will only yield a "ballpark" estimate.)

An "average" automobile on the street today is probably worth about a few thousand dollars (give or take). And the penalty for stealing an automobile (Grand theft) is a few years in prison (16 months to 3 years). So, to a first approximation, the penalty for stealing each $1,000 is the equivalent of about one year in prison (or about one month for every $100), based on the penalty for Grand theft.

Similarly, if someone steals only a few hundred dollars (less than $400) they will be guilty of Petty theft, and they will be incarcerated for a few months (less than half a year). Once again, the result comes out to about one month for every $100 that was stolen.

Therefore, we have now determined (to a crude approximation) that the ratio of stolen dollars to months in prison is roughly 100 to 1. We might use this ratio to specify the legimetric guideline that:

The penalty for theft should be about one
year in prison for every $1,000 that is stolen
(or equivalently, about one day for every $3)

We are now in a position to determine, for any specified crime, the numerical value of its level of crime. Simply:

The resulting dollar amount will be numerically equal to the number of crime units constituting the level of crime.

For example, how much money would a person have to steal in order to commit a crime that was "just as bad" as rape? The answer: $3,000 - $8,000. (Because the penalty for rape is 3 - 8 years in prison, and each year in prison is equivalent to the penalty of stealing about $1,000.) Therefore, the level of crime for a rape would be somewhere between 3,000 and 8,000 crime units.

A quick rule of thumb for our previous table of crimes would be to simply interpret the right-hand column as indicating "thousands of crime units" instead of "years." (But just remember -- the ratio of 1000 to 1 is only a crude approximation.)

As was pointed out at the beginning of this chapter, crimes need to be measured, not simply counted. So one simple improvement in a "Three Strikes" law might be to merely keep a running sum of the total crime units that a criminal has accumulated on his record. When this amount exceeds some specified maximum, the criminal will have "struck out."

For example, legimetricians might set a value like 5,000 as the maximum allowable crime units that any criminal is allowed to accumulate. If the criminal has previously been convicted of Arson (2,000 crime units), a $700 Theft (700 crime units), and Assault (2,000 crime units), he would still have 300 crime units to go before he "strikes out."

Even doing no more than this would be a substantial improvement over our current "Three Strikes" laws. There would no longer be any debate about which crimes should or shouldn't "count" as a strike. They would all "count," but to different degrees, depending on the level of each crime.

But this new way of "striking out" (just like the present way) would still violate the Prime Directive of Equality. Criminals would still be presented with a hard Aristotelian boundary line separating "striking out" from "not striking out." A criminal with 5,001 crime units on his record would be put away, while one with 4,999 would still be free.

The best solution to the problem is not to let criminals "strike out," but to let them "fade out." Instead of striking out all-or-nothing, they could strike out "a little bit at a time." All this would mean is that, instead of assigning fixed penalties for crimes (such as our guideline of one day in prison for every 3 crime units committed), we let the penalty (per crime unit) be determined by the criminal's past record. So a first offender might receive the standard penalty (one prison day per 3 crime units). But as he continues to accumulate crime units in the future, the penalty per crime unit would gradually increase and increase, until he finally ends up finding himself in prison all the time. And there would have been no single crime unit which put him "over the line." He would have just "faded out of society," and "faded into prison," for life.

"Fading out" would have the advantage that the more hardened criminals would be treated more severely than first-time offenders. Proven law-breakers would therefore not be getting off so lightly. But fading out would also have the additional benefit in that it would adhere to the Prime Directive of Equality. Any two criminals with nearly identical criminal records would always receive nearly equal prison terms for committing nearly equal crimes.

As we have seen, Realistic laws are often expressed as curves (or tables of numbers) indicating the degrees of legality of specific issues. For example, the law governing the consumption of alcoholic beverages was a set of curves (see Figure 9.6) expressing the legality of consuming a specified amount of alcohol by a person of any given age. (These curves would therefore define the "level of crime" that would be committed whenever a person of any particular age were to consume the specified amount of alcohol.) The precise specification of these kinds of curves (or tables) would be the task of legimetricians.

However, legimetry is not limited to merely the measurement of crime. Legimetry deals with the quantitative aspects of all legal issues. Therefore, the specification of curves, such as the "degree of maturity" curve (which we saw in Figure 9.2 in conjunction with our discussion about voting rights), would also fall under the domain of Legimetry.

To be sure, Realistic laws and Legimetry are a little more complicated than the simpleminded "yes or no" laws that we currently use. (By the same token, mathematics would have been easier if the value of pi could have been simply 3 instead of an irrational number!) But then reality has to be whatever it is, even if that reality "sucks" (to quote from a poster that I once saw).

Of course we can always just go on pretending anything we want and hope that reality doesn't get in the way. But that approach doesn't always work, as we will see in the next chapter.