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Justice is not Law, Law is Not Justice

2013 January 16
by Ian Welsh

A law is deserving of respect to the extent, and only to the extent, it is just.  A law which is not just deserves only the level of obedience one gives to any group or individual who says “do this, or I’ll hurt you.”  That is, to the extent that you believe their threat is credible, you may choose to obey to avoid the adverse effects of being caught disobeying.

The recent imbroglio over Aaron Swartz has seen a lot of people using the word “proportionality”. It does not matter if someone is guilty of a crime if the punishment is disproportionate.  In England the penalty for stealing a chicken, at one point, was death or being sent to a penal colony (Australia).  Juries started refusing to convict people even in the face of incontrovertible evidence of the accused’s guilt.  The sentencing had to be changed: stealing was not made legal, rather the penalty was reduced.

In the US at the current time, going to jail, for many people, means being raped.  Often repeatedly.  So I, personally, am not willing to send anyone but the worst criminals to jail, because I do not believe in judicial rape.  The punishment does not fit the crime.  Likewise it has come to be that if you are a felon you will never have a good job ever again.  Everyone does a background check.  Again, this is disproportionate to most crimes. It is also stupid, since people who cannot get a good job, or any job, are much more likely to turn to crime.

The US system provides for people having timely trials.  In most cases this is no longer true: you do not have a right to a timely trial.  People’s lives are destroyed in the pre-trial period, which can go on for years. This happens for the same reason that most cases never get to trial, but are plead out: the system could not afford to give a trial to everyone because there are too many people being shoved through the system.

Graph of incarceration in the US over time

From Wikipedia

The graph at the right tells that story well enough.

This is a social choice.  Americans chose to lock  up a lot more people by criminalizing drug possession, by removing judicial discretion, and by increased mandated sentences.  Laws such as “three strike” laws are the paradigm.

This happens, notice, exactly at the election of Reagan.  Something changed in America.

Pleading out is not fair.  It is not fair to society or to the felon.  Both deserve a trial, to find out the truth.  If society has laws which mandate X years, then those laws should be followed.  If they cannot be followed in a just way, with little pleading and speedy trials, if following them would take more resources than a country will commit, then the laws must be changed.  This is especially the case in a country where it is no longer always possible for the accused to face their accusers or to see the evidence against them, or even to know what the law is, since America now has secret laws and secret interpretations of laws.  (A secret law is, ipso facto, unjust.  If you do not understand that, I cannot explain it to you.)

Full trials, and the full protection of the law, such as it remains, now belongs only to those who are very wealthy, and sometimes not even to them.  Defending a trial can take hundreds of thousand or millions of dollars.  An ordinary person cannot afford it.  Public defenders are overworked, underfunded, and generally plead out.  This is on top of the fact that most rich criminals, such as the bankers who committed widespread fraud, are never charged with crimes, and if they are charged are allowed to settle with a token payment which immunizes them from further charges for their criminal acts, acts which demonstrably cost hundreds of thousands of people their houses, lost people their jobs, and even their lives.  Law which is enforced only against some classes of people, and not against others, is unjust.

And then there is civil forfeiture, in which people who have been convicted of nothing, have their assets taken away.  Even if you’re rich, you may find yourself using a public defender.

A social system only works if there are people willing to carry it out. The USSR collapsed when the people running it were unwilling to call out the army.  That same class of people, in the Prague Spring, did call the army out.  It collapsed because the factory workers weren’t working, the farmers weren’t farming, and so on.

The US legal system (it does not deserve to be called a justice system) works because people carry out its dictates.  The people who run the prisons put up with, or even encourage the rapes.  Private companies make money from prisoners, so need more prisons. The police make huge amounts of money by seizing the assets of “criminals” before they are even convicted.  The judges put up with the 3 strikes laws and mandated sentencing.  They allow trials to be put back and back rather than throwing them out due to lack of a speedy trial.  Everyone is onside with plea bargaining.  The rich are good with this because they either get a real trial, or they don’t get charged at all.  The middle class think that if they’re “good” they’ll be ok, till they find out otherwise, and the poor put up with it because of a boot in the face and much more.

The principles of fixing the system (never use the word reform, it means making things better for the rich and worse for everyone else) are simple enough.  No secret evidence.  No secret laws.  No secret interpretations of law. No tolerance of rape in prison.  Nobody gets plead out if the plead involves doing jail time or becoming a felon.  No criminal record checks for jobs which don’t really really need them, so that prisoners can  reintegrate into society.  End civil forfeiture.  Allow no private defense attorneys, everyone uses a public defender including the rich, and the defenders are drawn by lot (they will be very well funded very quickly, and they will be the best lawyers in the country.)   All this will make enforcing current laws impossible with the current budgets Fine. Give judges back discretion, remove three strike laws and overly harsh sentencing, repeal virtually all prohibition laws for most classes of drugs.  Stop sending people to jail for IP offenses, and create an economy which gives poor people real jobs.

Or spend the money necessary to keep laws as they are now, but also have them be enforced justly, even if they still aren’t just.  That will mean a LOT more money, but if it’s important to Americans to lock up people for non-violent drug crimes, they should put their money where their “values” are.

Otherwise, everyone who supports the current system, is part of a system which is unjust.  More crudely, if you don’t at least support fixing the prisons so people arent’ predictably raped, you are complicit in rape.  And by support I mean you are either willing to pay to imprison the current number of prisoners humanely, or you are willing to send less people to prison so the current amount of money will do the job.

There is no justice without proportionality, no justice in a land with secret laws, no justice in a country where the rich skate and the poor plead out.  There is only law, the same law the Stasi proclaimed: do what we say or else.

19 Responses
  1. Formerly T-Bear permalink
    January 16, 2013

    This happens, notice, exactly at the election of Reagan. Something changed in America.

    Yes, something changed in America, exactly at the election of Reagan –

    It was the advent of THE MORAL MAJORITY:

    > Morals supplanted ethics

    > Beliefs usurped facts

    > Emotions dominated reason

    > Ideology displaced Law

    > And lowest common denominator ascended to rule

  2. January 16, 2013

    Watched “Les Miserables” last night. Hugo described his novel as “a progress between good and evil, from injustice to justice…. Even after bad reviews when it first opened, the musical went on to become the 4th longest running Broadway musical. I’ve never been much of a musical buff and when I was a NY talent agent had to go to “Les Mis” several times to see clients. So I grudgingly sat down to watch it. But like every time, half way through I get sucked into the revolutionary fervor. The whole idea at the start of the musical of Valjean being imprisoned for stealing a loaf of bread for his starving family is unjust. Stealing by the nasty innkeeper is juxtaposed against stealing for someone else’s good. The film resonates also because of this fantasy of revolution and how the young and gorgeous take to the barricades to fight for justice.

    But this particular “revolution” was largely forgotten until Hugo used it for his novel. When people talk on the blogs of “taking to the streets”, they have a vision of Liberty carrying the red flag amongst beautiful blondes. But in reality most revolutions are much more mundane. But an image is important and I now have a image of a brave young man, Aaron Swartz taking on the Bourbons and their Javerts of today. Right now there is an empty chair in the cafe where Aaron should be. But with people like Ian still at the table in the corner of that cafe talking about ways to right the wrongs, the mundane and ordinary work of revolution goes on.

  3. Cloud permalink
    January 16, 2013

    Ah, the classical dream … as old Ben said, “pax et ius in republica antiqua.”

    (Not, note, that I’m snickering at your idealism; I share it deeply; but one also reads history and tends to feel stoically resigned …)

  4. Everythings Jake permalink
    January 16, 2013

    I’d like to read this (or something similar I fashioned) at voir-dire. But I never make it. Probably get me locked up as well, though I tend to think this line of thinking makes for a better juror.

  5. Bolo permalink
    January 16, 2013

    I just finished reading “Taming Democracy” by Terry Bouton. Lots of examples of juries in the post-Revolutionary era (1780s, 90s) refusing to convict despite overwhelming evidence. They found the laws unjust. Wish we had that spirit today.

  6. Donna Kay permalink
    January 16, 2013

    When my daughter serves 8 months and is branded for life due to counterfeit drugs? Tobacco totally legal except for NC law, that woke me up. We are so screwed in this country. Thank you Rich people and your bought legislation.

  7. Celsius 233 permalink
    January 16, 2013

    I live in a country where justice is MIA; three policemen; convicted of murder and sentenced to death, recently got out on bail. No, your reading this correctly.
    I can imagine how the witnesses are feeling; one left the country.
    I see America devolving into something similar…

    Kudos to T-Bear’s post above; nailed it.

  8. David permalink
    January 17, 2013

    Curiously enough, I just read this
    http://shameproject.com/profile/charles-murray/
    whose career took off during the Reagan presidency.

  9. Celsius 233 permalink
    January 17, 2013

    David
    January 17, 2013
    Curiously enough, I just read this
    http://shameproject.com/profile/charles-murray/
    whose career took off during the Reagan presidency.
    ~~~~~~~~~~~~~~~
    That was/is a very interesting/disturbing link; answers to a lot of what’s going on here.
    I live in Thailand; have for 10+ years and while I’m not naive to the relationship with the U.S., I thought it mostly ended with the end of the Vietnam War. Silly me, no?

  10. Formerly T-Bear permalink
    January 17, 2013

    Addendum:

    To my prior comment, insert before the final line:

    > An unhindered national discourse devolved into an exclusive partisan monologue

    That should complete that list but by no means is it comprehensive. Thanks.

  11. alyosha permalink
    January 18, 2013

    Good argument and an interesting graph. I’m actually interested in the part before Reagan, the cusp of change, where incarcerations modestly uptick. I remember that era : Nixon was the Law ‘n Order candidate (in ’68 but especially in 1972), and there was a vague but widespread sense during the 70s that crime was worsening, or at least social order was breaking down. Enter the conservatives.

    Of course, I don’t see the radical increase in incarceration that came in with Reagan as mirroring a commensurately radical increase in crime. It’s just that more people and activities were deemed criminal. I have a friend who works in mental health who says it more directly: Reagan explicitly created the homeless in this country. They didn’t exist before him.

  12. Formerly T-Bear permalink
    January 18, 2013

    @ alyosha

    Your observation re rise in incarceration of the Nixon administration was the result of Nixon’s political “Law and Order” which saw the criminalization of dissent and drugs on a national scale, is correct. The use of FBI and DEA as purveyors of a terror policy to quell dissent worked and eventually broke the spirit of that era (plus a number of notable assassinations). While this policy was taking place, a surreptitious agenda was being installed in requiring judges to face retention elections to remain in office. This policy was spread nationwide. In quick order, judges found themselves getting ‘permission’ from the Fraternal Order of Police as acceptable for holding their office. For higher judicial positions, the recommendations of the traditional American Bar Association were replaced under Reagan’s ideological imprimatur by the privately funded American Heritage Foundation and the wholesale replacement of judges took place at state and federal levels. Obama’s failure to fill the nation’s positions for Attorney Generals is a look into the stranglehold on the judiciary the Heritage Foundation has on the political policy of the Republic. This is the foundation of the steep rise in incarcerations you have noted.

  13. January 18, 2013

    @aloysha & @T-Bear – Good observations that needed to be made!

  14. Chaz permalink
    January 19, 2013

    The blatant and brazen politicization of the judiciary is deeply disturbing. How can the scales of lady justice be held in perfect fair and unbiased balance when judiciary are brought into office by political parties and or voted for by people whom if their own doctor or surgeon knew as little about medicine as they do about politics, they would never allow them to touch them let alone operate. There must be another way out there, and if not surely we have the collective brains to come up with something fairer and better and more accountable.

  15. January 21, 2013

    That Charles Murray “Shame Project” link is quite disturbing. Just one excerpt:

    The American Institutes for Research’s own description of its counter-insurgency program included: “assassinating key spokesmen, strengthening retaliatory mechanisms and similar preventative measures” and efforts to “neutralize the political successes already achieved by groups committed to the ‘wrong’ side. This typically involves direct military confrontation.” The AIR program also tested crop destruction and artificially induced starvation in order to pacify restive populations, described as a “behavior control plan enhanced by crop destruction.” Referring to its staffers like Charles Murray, the AIR proposal promised: “The social scientist can make significant contributions to the design of all [these] operations.”

    The religious undertones that have risen to be overtones since the Reagan era are apparent in Murray’s thinking and in the so-called justice system in this country. David Simon, Ed Burns, Bill Zorzi, and other writers from “The Wire” are all in favor of jury nullification to bollux up the works:

    http://www.time.com/time/magazine/article/0,9171,1720240,00.html

    I did some volunteer work in prison when I was in college. Having a lifelong interest in penal reform, I considered studying to become a criminologist. Then I realized it would be a lifetime of banging my head against a wall. There was no political will in this country to create a system of justice and to treat prisoners humanely. And that was back in the late ’70s. God knows it’s worse now.

  16. Andy Lewis permalink
    January 22, 2013

    So long as Jon Corzine (just one example) remains un-indicted, we have neither law nor justice, nor even the pretense of either. Our elites, not satisfied with system-based oppression, are personally rubbing our faces in shit.

  17. January 27, 2013

    I’d also point out that the incarceration rates skyrocketed at about the same time the american public (i.e. its politicians) discovered the crack cocaine explosion centered in SC LA. Crack hit LA at the same time the USG started closing mental health facilities and neoliberal economics really caught on with the associated crash in manufacturing, which compounded all sorts of social issues.

    Almost all that cocaine that became crack and was the big push for a hugely increased drug war, mandatory sentencing, and platitudes from Nancy went through Freeway Rick Ross. Ross got all his coke (literally tons and tons of it) through one man and at rock bottom prices. A dealer could buy a kilo of cocaine from Rick for about $13,000 dollars that, without any cutting or processing, could be sold in most other American cities for more than $20,000. I wish i knew what Rick’s price was, we can assume less than the $13K and with a limitless supply.

    Rick’s supplier was a Nicaraguan being handled at times by either/both the CIA and the DEA. The former was of course running the Contras in Nicaragua and Congress refused to fund it. CIA docs released pretty explicitly say that drug running would be part of the funding. And really, what are the chances of getting that much cocaine into the US with such regularity and low prices without the USG looking the other way, especially considering it was all through a single channel – an uncommon structure for the drug trade? And then came the guns. Rick’s associates talk about getting rocket launchers. Of course, we all know the story of gang/drug violence in LA and the local armories containing military grade weaponry (AKs, Uzis, etc.)

    Eventually, Rick went to jail. His first conviction was lowered by turning evidence on the LAPD task force assigned to him as it was full of crooked cops. When he went away again, it was because he was set up by his Nicaraguan supplier. Standard procedure in drug policing is to use smaller players to move up the chain, but in this case, the guy responsible for bringing the tons of cocaine into the US set up the guy directly under him in the distribution network and did so as an agent of the DEA. So Rick went to jail for life (later reduced) and the LAPD/politicians could say, “the crack scourge of SCLA has been caught!” But the USG operative above him was free.

    Funny how justice in the US works. I bet the Reagan administration players who were deeply involved in running drugs and guns into the US, breaking all sorts of laws, that were never punished don’t feel an ounce of regret. And none of them served the kind of time Rick Ross did.

    Or maybe two, three birds with one stone there.

  18. January 27, 2013

    Yes, @Les… and let’s not forget the crack babies, who are very much of age now and crowding our institutions and/or terrorizing the streets of America as predicted. Oh, wait… violent crime is down?

  19. January 27, 2013

    *@Lex (sorry.)

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