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Category: Justice Page 1 of 4

Police Abolition Principles

This piece is by Jonathan Korman and Reprinted With His Permission


With Twitter imploding, it is long past time to name something about my long thread there featuring a recurring refrain:

Fire every cop.

Raze every police station. Salt the earth where they stood.

Start over. No guns. No one who was a cop before.

We cannot reform institutions which do this. We can only replace them.

The legitimacy of liberal democracy is at stake.

The thread captures hundreds of examples of horrors perpetrated by police in the US. I refined my refrain over time.

Fire every cop.

People protest that there are good cops who should not be punished.

But I am not talking about punishment. I am talking about remedies. However many “good cops” there may be, sifting them out would be difficult … and I have cause to doubt it is worth doing …

Raze every police station. Salt the earth where they stood.

Policing in the US demonstrates profound institutional failure, baked into all of its systems. We must reject every part of that inheritance, both pragmatically and symbolically.

Start over.

What should we try to achieve? What institutions and practices suit our purposes?

I imagine that we need some rough equivalents to things we have in existing policing; I think something like homicide detectives are a good idea, for example. But for most of what we ask from policing — addressing “crime” — we need social welfare delivered by entirely different means. Police abolition asks what society we would need in order to make it possible to do without police.

We must avoid legacy assumptions. We must think and work from a clean slate.

No guns.

Guns in the hands of police create a host of harms. Their mere presence deforms our systems and processes for the worse. We must simply eliminate them from whatever new institutions we devise.

No one who was a cop before.

I take institutional knowledge seriously. I hesitate to sacrifice it, but dread even more carrying it over from a monstrous system. Even the best people are bent by their adaptations to the old system.

Moses could not enter the Promised Land.

We cannot reform institutions which do this. We can only replace them.

My original Twitter thread shared countless examples of horrifying policing. I shared them not to indict the examples but to indict the systems which produced them. We need a clean break.

The legitimacy of liberal democracy is at stake.

Hobbes calls for a state monopoly on use of force. The liberal democratic ethos — that is, not “liberal” as in not-conservative or not-leftist, but as in Locke and Mill and Jefferson and Berlin — legitimizes the state’s power with democratic accountability and a driving purpose of securing universal rights. If agents of the state directly contradict those libdem principles, as they do in the US, it indicts not just policing but the state itself and the state’s animating principles.

I desperately want to rescue the libdem ethos because I have no better alternative. Radicalism about police abolition is necessary to preserve the institutions and ideas we have which are worth saving.

The Necessary Legal Changes To Deal With Deep Fakes

A deep fake is a picture or video of someone doing or saying something they didn’t. In the old days pictures and video were considered “proof”, it was easy to tell if they had been altered, as with the laughable removal of out-of-favour leaders from Soviet pictures.

With the advent of useful “AI’ making deepfakes has become easy, and it is destroying one of the ways we know the truth. In addition it is putting people into positions they never took, having them say things they did not say and so forth. The common general use is for pornography, but putting words into someone’s mouth is potentially just as bad.

The law will need to be changed to deal with this.

  1. Making a deep fake of someone without their legal authorization must be both a criminal and civil offense, with jail time, not just fines, since in fines don’t work if someone expects to make more money than the cost of the fine.
  2. Consent must be active. No contracts of adhesion, never in a EULA, always requiring an individual specific contract which is compensated.
  3. No long term contracts. Five years at most; nothing which is open-ended or forever.
  4. If required for employment, this cannot last longer than the employment without a separate contract signed after the person is no longer employed. Some exceptions may be put in place for actors and whatnot.
  5. All deep fakes must prominently say, in a way that cannot be missed (no fine print or credits) that they are deep fakes, probably a banner at the top or bottom of every part of the video where they appear, except in movies and tv shows, but even then they must start with a prominent announcement and end with one.
  6. Ideally, though unlikely in the current environment, a person should receive a payment every time the deep fake is shown, there should not just be a one time fee. This should be done similarly to the residuals or radio play laws of the late 20th century. There are some technological hurdles to this, but they are not insurmountable.
  7. This must apply to dead people as well. Either the estate’s approval must be given and a contract signed, or people must have been dead a long time, perhaps fifty years and the requirement for a prominent disclosure that what is being seen is a deep fake.
  8. Anyone who uses a deep fake must keep the disclosure that it is a fake.

We have been very bad about law keeping up with technology, and when we have not (as with the DMCA) we have mostly created very bad law. It would be nice, for once, to get on something in a timely and fair manner.

If you think there are any other ways the law should be formatted, or if you disagree, says so in comments, with your reasoning.

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Justice, Law and Norms

Last week I wrote an article on the indictment of Trump in New York. I argued that charging trump had broken an elite norm: there is no question Trump broke the law, but ex-Presidents don’t get charged with crimes and senior politicians rarely do, though as a couple commenters pointed out, there’s already been some erosion of that norm.

It’s important to understand that a norm is a cultural rule. It’s not a law, usually, it’s something you just do or don’t do because your social group requires it or forbids it. For elites, a norm is that elites don’t get charged with most crimes, especially non-violent ones, unless that crime harms other elites in large numbers. Every senior executive at a bank or brokerage broke fraud laws and the Rico statute (they conspired) in the run up to the 2008 election, for example, but who was charged? Bernie Madoff. Why? Because Madoff targeted other elites.

Likewise senior politicians regularly get away with breaking election fundraising rules and various other white collar crimes (like bribery). They don’t charge each other, because almost all of them do it. What they do is against the law, but it isn’t against elite norms.

We all know what laws are, but justice is different from law. A law can be unjust. Everything the Nazis did was legal by German law, as a friend of mine loves to point out.

Another principle of justice is that laws are applied equally. The same crimes that elites commit without being charged for are laws that are usually enforced against non-elites. This is not justice. Likewise fines that are fixed rather than relative to income or wealth or a combination of both are unjust—they hurt people with less money more than those with more money.

Bringing this back to Trump, he is being charged for crimes that while illegal do not violate the elite norm of elite impunity for crimes that are normal among elites. If elites wanted to maintain their norms, he should instead have been charged with treason or sedition, for the Jan 6th attempted insurrection, because that violates an elite norm.

Justice, norms and laws are three different thing and understanding the difference matters.

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The Espionage Act Is Bad Law Even When It Is Used Against People I Despise Like Trump

Back in June 2019, the New Yorker wrote an article lambasting the Espionage Act.

The George W. Bush Administration pursued several government insiders for leaking classified information, but it was the Obama Administration that normalized the use of the Espionage Act against journalists’ sources. Among its targets were Jeffrey Sterling, a former C.I.A. officer, who was sentenced to three and a half years for supplying the Times with classified information about U.S. efforts to disrupt Iran’s nuclear program; Donald Sachtleben, a former F.B.I. agent who was sentenced to three and a half years for providing the Associated Press with information about a foiled terrorist plot in Yemen; and Chelsea Manning, a former military-intelligence analyst who was sentenced to thirty-five years for providing Assange’s WikiLeaks with hundreds of thousands of pages of classified government documents…

…(about the Trump admin) Later that year, Sessions told Congress that the Justice Department was engaged in twenty-seven investigations into classified leaks — a dramatic escalation over previous years. In the two and a half years since Trump complained to Comey, the Justice Department has indicted three people under the Espionage Act for providing information of public concern to the press.

Now, the New Yorker is concentrating on people who were prosecuted for supplying information to the press, or in the case of Assange, for publishing information (acting as the press himself.) And one can easily say “This isn’t the same thing — Trump isn’t a whistleblower.”

And I agree. If Trump has taken information and given it to a foreign power, then it’s one of the few semi-legitimate uses of the Espionage Act to go after him.

But if it’s just sat in some boxes, well, the truth is that for senior people, like Clinton (yes, a junior person would have had their career destroyed and likely gone to prison for using their own private server the way she did) and General Petraeus (who avoided indictment under the act), the law is usually an empty letter.

One might then say, well, but these are nuclear secrets and much more serious.

But all of this caviling and caveats brings out the essential point: The Espionage Act is so widely written that it’s a prosecutor’s cudgel, and the choice of whether to use it or not is a political decision, not a matter of whether someone violated the letter of the law. For most of the 20th century, after the original proscriptions (used against communists and people who opposed the draft), it was rarely used, and the choice to use it was clearly a political choice.

It’s a bad law. It shouldn’t be on the books. If it is on the books, it should be applied evenly, and in all cases, for the simple reason that using it against people with power is how it would be repealed and replaced with something much less prone to abuse. If it had actually been used against Clinton, there would have been massive pressure to repeal it.

And that’s the good thing, here. If it’s used against Trump, well, perhaps the Republicans, next time they’re in a position to do so (which could be as early as 2024), will repeal it.

Or, instead, maybe they’ll go tit-for-tat and continue with its weaponization, going after Democrats and left-wingers.

That would be bad, but it would also have the potential for good. You get rules of war and politics when both or all sides have been monsters, and they finally realize that mutual monstrosity is bad.

As for Trump, I have little sympathy. He used the law badly, and for him to be hoist on it amuses. It’s a pity that Obama, who really weaponized it, is smart enough to have not laid himself open. But if I were Clinton, I’d be concerned after 2025.


What Is Right for Those You Love Is Right for All


Trial of Titus Manlius’s Son

The Roman Consul Titus Manlius Imperiosus Torquatus was at war with the Latins. He instructed that anyone who disobeyed orders would be executed. His own son, and some companions left their sentry posts to skirmish with some enemies, defeated them, and returned to his father with the spoils. Seeing that his son had left his post (leaving a sentry post is particularly bad), he had him executed for disobeying orders.

Now, if you think Manlius did the wrong thing, we disagree.

“If you would do it to your son, daughter, spouse, or parent, you should do it to anyone.”

This is a fundamental rule. If someone random does something, and you would punish or reward them, then if you don’t act the same to those you care about, you are unsuited to have any authority, private or public.

Everyone has a father and mother. If you’d kill someone else’s child, or imprison them, or otherwise hurt them, then you must do the same to your child in identical circumstances. The same is true of reward: If you’d reward your child, and someone else is under your authority, they must be rewarded the same.

This is true beyond immediate authority, though: If you believe that people should be killed if they murder, you must support that for those you care about. If three crimes, no matter how petty, means 20 years in prison, then if someone you care about commits three crimes, they, too, must serve those 20 years.

Anything you would not do to someone you love in terms of punishment or reward, you cannot do or support doing to anyone else. If Manlius would have executed anyone else for disobeying orders, he had to execute his son.

The application of this to larger issues, like those who vote for war not sending their children, and those who will never be affected by a law voting for it are left, for the moment, to readers to work through.


Three Simple Policy Heuristics

A number of people (and most of those who run our societies) don’t understand the policy default: “Be kind.”

There is a widespread belief that life is shit, “hard choices” have to be made, and those hard choices usually involve someone else suffering and dying.

Life may well be lousy, but most “hard choices” don’t have to be made, and those hard choices are one of the main reasons why life is lousy for so many people.

The most important thing to understand is this: Harm ripples, kindness ripples. People you hurt go on to hurt other people. People who are treated with kindness become better people, or more prosperous people, and go on to help others. Yes, there are exceptions (we’ll deal with those people), but they are exceptions.

First: Do no harm.

Again, people who are abused, go on to abuse others. Rapists were often raped before they raped others. People who have no money can’t buy other people’s goods. People who are crippled physically, mentally, emotionally, or socially cannot contribute fully to society and tend not to make those around them happier or more prosperous. Rather the reverse.

While it is necessary to imprison some people for committing crimes (though far fewer than most societies imprison), it is not necessary to make having been convicted an economic death sentence. People who can’t get living wage jobs (or any job at all) when they get out of prison gravitate back to crime.

We don’t want people raped in jails, because many become rapists themselves and virtually all are damaged by it. When they get out of jail, we have to deal with that damage. We don’t want them stuck in solitary confinement for long periods of time because brain scans show this inflicts traumatic brain damage, and, yeah, we wind up having to deal with those people when they get out.

If someone runs out of money, we don’t want them to lose their primary residence. Even if you are soulless, you shouldn’t want a society that creates homeless people; it takes far more money to support someone on the street than it does to pay for almost anyone’s mortgage or rent. We don’t want people who are sick to be denied health care because they become pools for disease. We’re treating these people eventually anyway (when they turn 65 or become so poor they qualify for Medicaid), which is far more expensive than dealing with their illnesses when they first present themselves.

We don’t want to destroy other countries (Iraq, Afghanistan, Syria, Libya, etc.) because their people become refugees with whom we must then contend; this produces scads of angry people, some of who may wind up killing us, and it further ruins their economies, rendering them unable to buy our goods (except our weapons).

Damage to others who live on the same planet as you can comes back to haunt you. Damage to others in your own society will come back to haunt you.

So, first, do no harm. Yes, there are exceptions, but they are radically rare. Almost every bit of harm we do to others through government policy is a bad idea. The only common class of exception is covered in rule three.

Second: Be kind.

As the harm you do others comes back to you (insofar as you are “society”), so the good you do comes back to you. I almost don’t know what to say about this, as it is so brutally obvious. Happy people are better to be around. Prosperous people are better to be around. Healthy people are better to be around.

Only when goods are legitimately scarce is there reason not to help make other people better off, and, in those cases, it is only applicable to the scarce goods, and only until you can make the goods no longer scarce. Short on food? Ration and plant more crops.

But in today’s society, all the significant shortages of the goods which matter most are artificial; we have more than enough food to feed everyone. The US has five empty homes for every homeless person. Europe has two empty homes for every homeless person. Clothing is cheap as hell. Access to the internet is vastly overpriced. Our main sink is just carbon: We need to spew less of that, and we can do that. Our second main limitation is the destruction we are imposing on biodiversity, but we could produce our food with far less impact on the environment if we wanted to, and, even in the short term, we’d be better off for it.

People need stuff: food, housing, safety, education. None of these things should be in shortage anywhere in the world, including safety. They are in shortage because we choose to act greedy, violent, and selfish when we do not need to.

Third: Remove the ability or reason for people to do harm.

Humanity is not a race of saints. It does not need to be. Most people are neither good nor bad, they are weak. They do what the social and physical environment disposes them to do, with the social environment being far more important in the modern era.

Still, some people are bad. The hard core is probably around five percent of the population. And many other people are damaged, because our society has damaged them. They take that damage out on others.

The most dangerous class of malefactors are incentivized to do evil. Think bankers, corporate CEOs, billionaires (almost all of whom do evil as routine). These people do evil because they profit greatly from it, BUT (and most of you will not believe this) what makes a profit in the modern world is overwhelmingly a social choice. The government chooses who can create money, what counts as profit, who is taxed how much, who is subsidized how much, what is property, how much it costs to ship by rail vs. road, etc., etc.

There are independent technological and environmental variables, but they are overwhelmed by social variables. Change the variables and you change the incentives.

The policy is simple: Take away incentives for people to do evil. Take away their ability to do evil (a.k.a., their excessive access to money.)

Those who continue to do evil, lock them up. Do it completely humanely, no rape, no violence, no solitary confinement. But make it so they can’t do evil. While they are in prison, try to rehabilitate them. Norway has half the recidivism rate of the US for a reason: Rehabilitation does work for some people.

When they get out, bring them back into society. Make sure they have housing, food, clothing, and so on. If they do evil again, lock them up again.

None of this is complicated, in principle. This is simple. This is straightforward. It is work, mind you, we must stay on top of incentives and ability, and not allow anyone to become so rich or so powerful that they are able to buy the rule-makers or be above the law.

None of this should be controversial, though it is. None of this is new, these strands of thought go back to Confucius, Ancient Greece, and beyond. They are only controversial because it is in the interest of many for these ideas to be painted as such. And many people, having done evil, develop a taste for it.

Running a society well is hard, in the details it is complicated, but in principle, it is simple. Do the right thing. Make it so that people do well by doing the right thing. Make it so people who do things that are harmful to others stop doing them.

When you want a good society to live in, inculcate these principles. Until then, know that you will only live in a good society briefly and by chance.

Originally Published September 3, 2015. Back to the top for a new generation of readers.

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The Simple Way to Fix Law Enforcement in British-style Systems (Like the US)

As with most problems, the solution is simple.

  1. Everyone has to use a public defender for all cases, civil and criminal.
  2. The public defender is chosen by lot, using simple mechanical dice, which citizens can inspect and which are inspected by the equivalent of the Las Vegas Gaming Commission.
  3. Any case of tampering is an automatic life sentence without parole.
  4. Everyone has the right to a jury trial if they choose and juries are told about jury nullification.
  5. No pleading, all cases get a trial.
  6. End cash bail and all monetary penalties for criminal cases, since they make some crimes not crimes for the rich.

The US system currently gives justice only to the rich because only they can afford proper representation. The US has the highest incarceration rate in the world, because most crimes are never tried, they are plead out. As a result, US prisons are full of people who are probably innocent, because it’s not worth going to trial and risking far harsher sentences.

A system which requires assembly line trials is putting too many people in prison. Most crimes are victimless, and no one should be in jail for them. If you can’t run the system fairly, with actual trials, the system needs to be changed.

BUT the most important part is simple: It is a specific case of the general rule that no one should be able to use power or money to buy a better version of anything which matters — health care, education, security theater, justice, etc.

The second elites have to use the same lawyers as you do, pay the same, and are subject to the same rules, and can’t game it, the system starts working.

Elites must never be allowed to avoid any part of the common experience that matters. They can fly first class, but not on their own jets. They must go through the same security lines as everyone else. They can buy a private room at the hospital, but not jump the queue for care or get better care in any way that matters medically. They cannot send their children to private schools or over-funded local schools (because of local property taxes).

When elites are subject to the same roulette as ordinary people, things become both fair and good by default. When they can opt out, everything they’ve opted out of goes to hell.

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The Supreme Court Replacement of Justice Kennedy

So, Kennedy is standing down, and Trump will get to choose his replacement. A few points.

  1. Of course Democrats should not allow a vote until after the next election, since that’s what the Republicans did with Scalia’s replacement, which should have been Obama’s to make.
  2. This is not about the principle of people getting to vote (they did.) Republicans did not stop Obama replacing Scalia out of principle “the American people should have their say”, they did it because they had the power to do it and were willing to use that power.
  3. Democrats have the power, but will not use it, even though they should because they don’t really mind a conservative justice on the court: they agree with such a person on more important issues than they disagree with them on, and they value civility more than ethics.
  4. And yes, this is the Roe v. Wade loss point. That’s what Senate Dems will not sincerely fight for.

I hope I am wrong on 3 and 4, but Democrats do not have a record of fighting against the right, only against the left.

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