"Whenever I go into a restaurant, I order both a chicken and an egg to see which comes first"

Wednesday, May 23, 2012

Are You An Asbo–Guilty of Anti-Social Behavior?

An Anti-Social Behaviour Order or ASBO is a civil order made against a person who has been shown, on the balance of evidence, to have engaged in anti-social behaviour in the United Kingdom and the Republic of Ireland.

OK, a person can’t be an Asbo – it’s a civil order that attempts to regulate antisocial behavior – but the article in the Manchester Guardian http://www.guardian.co.uk/commentisfree/2012/may/22/asbo-facelift-vulnerable-antisocial-behaviour  refers to “the guest who arrives late, hogs the conversation, becomes drunk and obnoxious, makes a pass at his hostess and punches his host”, and an assortment of other boorish louts who just don’t get it when it comes to acceptable behavior. The British call them ‘yobs’, and since they exist in America too, I will call them Asbos.

The article states that legal attempts to curb antisocial behavior, such as the ASBO, were never a good idea in the first place, and have gone badly wrong since.

'Antisocial behaviour" – was ever a phrase so pervasive? Umpteen home secretaries pledged to solve this terrible blight – to protect the "decent" and punish the "yobs". From begging, barking dogs and noisy neighbours to drug dealing, vandalism and violence, this euphemism posing as law covered everything from the irritating to the fatal. Section 1 of the Crime and Disorder Act 1998 encompasses behaviour "likely to cause harassment, alarm and distress". In our everyday dealings, we have long been used to broad and evolving concepts of what is socially welcome, acceptable, inept and unpleasant. But does such vague breadth make just or strong law?

Of course it’s a bad law, although if it were in force here, I know hundreds of workers who would haul their bosses before a magistrate for causing ‘harassment, alarm, and distress’.  I had a boss once who so intimidated her underlings that they became cowed, trembling, stuttering, and stumbling wrecks whenever they were called in to her office.  There was no really appropriate word for her.  Succubus, harridan, vixen were only incomplete descriptions.  She was almost ghoulish in her delight in seeing these beaten and mute employees grovel before her, leave the room with head bowed and shoulders stooped, humiliated, savaged, and destroyed.

But, we don’t have such a law, and just use social opprobrium, good old fashioned issues lobbyists, and a Mommy Culture intent on expunging anything noxious, potentially harmful to body and soul from the environment. Everything from kitchen microbes to playground bullies are fair game.  Forget about age old rules such as ‘you’ll get sick and die of something, so get used to it’, or ‘there’re more bullies around than nice people so the sooner you learn how to deal with them the better’.  This is America: identify the problem and fix it.

In [Britain] in 2010 a man appeared in court for breaching an order prohibiting him from laughing, staring or slow-clapping. In 2005 a repeatedly suicidal woman was given an asbo banning her from going near railway lines, bridges and rivers.

The British soon figured out that the ASBO wasn’t working.  In fact the number of people who had disregarded the civil orders placed on them skyrocketed.  Rather than jettison a bad idea, however, the authorities gave it new life:

It's true that the system will be "streamlined" – 19 measures will be replaced by just six powers. The new criminal behaviour order will be used to ban individuals from particular activities or places and crime prevention injunctions (CPIs) will give agencies an immediate power to "stop bad behaviour before it escalates" – the lower standard of proof for civil orders, meaning CPIs, can be put in place in hours. This means that the authority would have to demonstrate only "on the balance of probabilities" and not "beyond reasonable doubt" that the individual was engaging, had engaged or was likely to engage in antisocial behaviour.

As bad as this is as a whole, the final injunction – that you can be locked up if you are deemed ‘likely to engage in antisocial behavior’ – is absurd, although a great movie, The Minority Report was made about ‘pre-crime’.  Tom Cruise using psychic mediums as his foresight, caught criminals before they committed a crime. 

We all have probably thought about pre-crime sometime or other.  Why not corral suspicious-looking people, shake them down to see if they really were up to no good; and if not, let them go, no harm done.  What about that middle-aged white guy in a raincoat leaning over the playground fence at the neighborhood school? Haul him in, pervert for sure, probably wearing nothing under the Burberry.  Or the black teenager walking in a white neighborhood at night?  Pre-crime activities, while still under intense scrutiny in the real world, are de rigeur in Customs halls.  Before a suspicious foreigner can enter America, he can be interrogated, frisked, body-searched, and harassed as long as the Border Patrol cares to.  We are tempted to apply that to civil society in the name of stopping (preventing) crime.

The British law, however, has little to do with crime.  It is about antisocial behavior, and an attempt to rid society of boors, louts, insensitive macho-men, pigs, gluttons, and pushy, never-a-sorry-or-a-please luddites.  What were they thinking?

But the reality is little but a facelift for old thinking. Criminal behaviour orders, crime prevention injunctions, community triggers – a brace of souped-up new jargon won't protect the vulnerable. The problem was never about bad manners at the dinner table. It remains about threats, harassment, violence and inequality before the law.

Disingenuous to say the least.  The way the law was written, and given the social mores of the times, it is indeed about bad manners.  Although I am sure that the spirit of the law was good – to protect the vulnerable by deciphering real threats and preventing individual and family abuse – the law itself only invites trouble.

In an attempted shortcut to policing and justice, Asbos dangerously blurred moral and legal distinctions between serious criminal activity and nuisance. They created "personalised penal codes" that set the young, vulnerable or mentally ill up to fail – fast-tracking offenders into, rather than away from, custody. Asbos were doled out preventing people begging, swearing, speaking sarcastically, wearing certain types of clothing or not enough of it.

Once you go down the path of anticipating bad behavior, it becomes ever wider and longer.  Anything you – or society – doesn’t like becomes a crime, and a perverted PC police state emerges.

The old rules should always apply – deal with it, get over it, move on.  We do not want to live in a Mommy State where government decides what behavior is good and bad and then intervenes to stop it.  This is worse than dirigiste central planning.  A well-timed barb can unman the most insistent office pest.  Male egos are notoriously fragile.  A kick in the cojones of the playground bully may not stop him this time, but he will think twice next recess.  Ethnic taunts and slurs were part of every kid’s life in earlier multi-cultural neighborhoods in the United States.  We gave as good as we got.

There is a big difference between surveillance and pre-crime lock-ups.  When you are under surveillance because of suspicious criminal activity, or if you fit the profile of a ne’er-do-well, you still have the full protection of the law.  If you are under surveillance for suspected anti-social behavior, the surveillance itself is a crime.

Once again, it is time to rein in our reformer instincts – society will always have its boorish miscreants.  Identify, follow, and arrest real criminals.

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