Social Defense And The Abolition Of Guilt

[Parts of this post were originally written for Jacobin, but they ghosted me so it wound up never getting published.]

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The Left designates a considerable amount of its efforts to resisting the prison industrial complex and the racism and violence of the police. What often gets left out of their analysis is the actual exploitation within the criminal law itself. When this exploitation is not addressed, it leaves out the fundamental basis for why the state has such an antagonistic relationship with the people it is supposedly serving. That lack of discourse has given capitalists a monopoly in dealing with, and defining, social violence.

At the end of the day, the Koch brothers could care less if their profits are coming from a prison or a re-entry program. They could care less if the law is being enforced at gunpoint or by a nonlethal weapon filmed with a body cam. What matters to the capitalists and their politicians allies is that disrupting or undermining capitalism is punished with the full panoply of state power and that the criminal law can squeeze out what little money is held by the working class in order to fund their own criminalization. While it is important to rally against the police and prisons of the state, the anarchist vision of a New Abolitionism falls short of what is needed. We must overthrow the very ideas of what is criminal, and to do that requires not only the end of capitalism but a socialist state.

The modern criminal law is fundamentally shaped by the capitalist economy. But this relationship is not quite as clear as other realms of the law: contracts, property, and various other realms of law employ no subtlety in how they are made to protect the power and privileges of the upper classes. Criminal law functions as a separate personality. Like many other functions of feudal states (as I wrote about previously with landlord/tenant law), pre-capitalist criminal law was subsumed and repurposed by capital to meet the ends of a new economic system and the class that dominated it. Modern criminal law originates from Christian systems of certainty in punishment as handed down by an authority.

Authority and certainty are the two key elements of any legal system. Certainty simply refers to a public understanding in the society that if, for example, someone steals from another person, they will face a specific punishment based on their actions. Without certainty, it is difficult to distinguish what is “the law” and what is a ruler consolidating power based on arbitrary decisions. Authority is what anarchists refer to as the state’s monopoly on violence and what Lenin called “a power which arose from society but places itself above it and alienates itself more and more from it.”

Both of these elements are dialectical. Certainty must be contradicted to preserve state power, most infamously in the impunity of police officers. But not all its contradictions are so intentional: some arise simply from human error in crafting the law and others are opened up strategically by Leftist lawyers. And the law, to preserve itself, will assimilate those contradictions: as such the dialectic is legal prescription by case law and statute (thesis) and legal contradiction (antithesis), resolved by synthesis to restore certainty (though never for long).

Similarly authority is created by the resolution of its own contradictions. Authority only exists when it is recognized, a basic principle that everyone from Hobbes to Foucault has recognized. But to “deserve” that recognition, authority must be “above” society: we trust a doctor to diagnose our illness because she is “above” us in her knowledge of the subject. This authority though is often not “deserved,” whether by fraud or human error. As such, those under the authority may rebel, and such rebellion is generally dealt with violence, or as Lenin called it “the special bodies of armed men having prisons, etc., at their command.”

Under the Christian system, certainty was dictated by the religious doctrines imposed by the Catholic Church in Europe and later by the various European colonizers who brought their various sects of Christianity to the places they occupied. It is a cruel irony when activists in Europe or the United States criticize the homophobic laws of other countries, because nearly all of those laws can be traced back to the very same European nations imposing them by force in the name of Christianity.

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The Napoleonic Code, for example, was implemented in Egypt and is the original source of the country’s laws against sodomy.

The rise of industrial capitalism also saw the rise of the modern ideas of criminal law, along with the standing municipal police forces to enforce them and the prisons to provide the means to enact the punishments. An early example of replacing the Christian conception of divine morality with market dynamics, the Criminal Ordinance of 1670 in France, was famously illustrated in Foucault’s Discipline and Punish. It is no coincidence that the rise of Jean-Baptiste Colbert’s state capitalism in France was accompanied by what Foucault called an “economy of punishment.” A crime and its punishment are variables in an economic function. Their exchange values are determined based on their ability to subdue disruptive or dysfunctional class elements. How the criminal law accomplishes this task can be divided into two intersecting categories.

First, it coerces subjects to participate in state-sanctioned markets. This method is most appallingly demonstrated in the United States’ War on Drugs. If capital’s army of surplus labor, the unemployed, suddenly finds a means to survive or even thrive outside the state-sanctioned economy, it seriously jeopardizes the ability of capitalists to control the working class, especially those in unskilled sectors like fast food. That is not to say that the judges, police, and prison wardens have any illusions that the state will ever succeed in using the criminal law to stamp out black markets. It is not the annihilation of the black markets that capitalism requires: only to sufficiently control its participation by making the risk to enter the black market high, even lethal. Every shipment seized, every dealer incarcerated, and every sex worker forced into a sweatshop gives the state enough control to prevent a dangerous abandonment of state-sanctioned markets by the working class.

Some of these crimes, like child pornography, are unquestionably anti-social and violent, while others are simply means to target certain populations that cause problems for the ruling order. The criminal laws around drugs were ramped up in conjunction with Black resistance movements. The same month that Assata Shakur was arrested in New Jersey saw the passage of the Rockefeller Drug Laws in New York. The same month that Richard Nixon declared a “War on Drugs” saw the emergence of the Black Liberation Army. Essentially, the capitalist politicians developed the criminal statutes on drugs to be able to destroy or weaken Black alternatives to state-sanctioned capitalism, regardless of whether those were resistance movements like the Black Panther Party or black markets controlled by gangs.

The criminal law also is built to preserve the social order necessary for the circuit of capital. While a capitalist legal system creates a great deal of immunity for the upper class and the police, lines can be crossed that threaten to incite public discontent against the market. When police officers actually do get convicted, they are bittersweet victories. The criminal law is not being reconfigured to recognize that Black lives matter: it is that the District Attorney and judge are concerned about disruptions of social order seen in Ferguson and Baltimore, as well as the more concerted disruptions Black Lives Matter activists have organized on highways, political rallies, and trendy brunch spots. Essentially, the criminal law system will sacrifice its own enforcers in order to preserve itself and capitalism. It instills the totality of the system’s racism into a “bad apple” individual separated out from capitalism, and far too many are more than willing to believe this hegemonic narrative.

The punishment of crimes are designed to vary little in anything except quantity: a fine of x dollars, a prison sentence of x days. This was a major change from the pre-capitalist legal systems that employed sadistic creativity in their punishments, ranging from the public shaming of the stockades to the gruesome dismemberment of draw and quartering. They were based on the whim and power of the punisher. Punishments in criminal law have narrowed in variance to allow it to function like currency. It is no coincidence that criminal punishments are talked about as “paying for their crimes” or “they owe a debt to society.” A criminal trial is essentially litigating a breach of the “social contract” the person holds with the state. The state evaluates the cost of the criminal act and the defendant attempts to either argue that they did not breach or bargain for lower damages.

Like any contract negotiation, the money and power held by each side and how much the crime costs determine how it proceeds more than any of the stipulations of the contract itself. And much like currency, criminal punishments have little to no social use outside of their exchange value. A jarring example of this is the state’s response to sexual violence: a man who commits rape, seriously damaging a woman’s life far more than any function of the market, can be sent to prison for several years but in most places no reparations or assistance will be given to the survivor of the rape. And even where there are, such as in California, the state’s overall priority remains capitalistic rather than social. Reparations are at most an after-thought to the central punishments of a fine and incarceration.

So if criminal punishments are the currency of criminal law, why aren’t they entirely monetary rather than the mix of fines and incarceration? Because deprivation of freedom forms the rate of exchange in the criminal law system. It is the ultimate punitive measure since the worker’s only individual economic power rests in their capacity to exchange their labor power. The 13th Amendment of the U.S. Constitution speaks strongly to this aim:

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States…

If the state is going to expend large amounts of resources to preserve capitalism through the criminal law, it must recuperate at least some of these costs through hyper-exploitative prison labor. But there lies a common misconception: U.S. prison labor, even as it has begun to go beyond a million workers, is not making the state a profit. While it certainly makes private corporations a profit, in New York state alone the corrections system costs the state $3.1 billion. It costs about $60,000 per year to incarcerate someone in New York. It is simple economic reality to know that the state is not incarcerating people to make a profit off their near-free labor because on average their labor just will not generate more than that cost of $60,000 per year. Carceral peonage through the 13th Amendment is not about making money for the state. It is about segregating dissident workers: their enslaved labor just mitigates the costs of this segregation.

The U.S. Constitution is the country’s supreme law, and its Bill of Rights is often cited to prove that equality of opportunity and human rights are protected by the state. But while the Bill of Rights does have influence, it is ultimately the criminal law that determines the rights of individuals. The rights allowed by criminal law are thus also variables in an economic function. Due process, for example, is not the preservation of the right to liberty or privacy as claimed but rather a function of preserving the right for an authority (the judge and jury) to arbitrate the contract between two parties (the criminal and the state). Freedom of assembly or speech transforms into disorderly conduct, trespassing, or unlawful assembly when done at a protest, and even when the charges do not stand up in court, the state extracts payment through the arrest and pre-trial detention and bail. And as Chelsea Manning is an unfortunate witness to, freedom of speech can transform into treason if the state feels sufficiently threatened. At the edge of every constitutional right is a criminal statute enforcing capitalism.

Once this dialectical relationship between crime and rights is understood, it becomes clear that abolishing mass incarceration in itself will not end the exploitative nature of the criminal law. Whether the punishment is a diversion program, weekend prison, house arrest, or even mandated drug tests, it will still be a deprivation of the liberty of the individual for failing to economically fall in line with what the state wants. Prison abolition will only alter the payment method, it will not change the fact that lower classes will still have to pay for dissent and that lower class people affected by social violence will be at most a secondary concern to the state.

Evgeny Pashukanis, a legal scholar in the Soviet Union, was one of the first to analyze criminal law through Marxism. Coming to similar conclusions, he realized that freedom from the violence of criminal law would only be possible in a world without capitalism. This raised the question: if criminal law cannot be abolished in a capitalist world, how should socialists address this criminal law? Pashukanis suggested that socialists must look at a completely different motivation, means, and methodology for dealing with intra-social violence outside of the market. The foundation of this socialist alternative was the concept of “social defense.”

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A Soviet poster telling citizens they have a duty to help detain criminals.

Social defense is not the protection of atomized individuals from each other, but rather the protection of social coherence and harmony for as many people and as intersectionally as possible. The idea of crime and its prescriptions must be replaced with the idea of social violence and its conditions. The logical conclusion of this change is the abolition of guilt itself, a step Pashukanis felt was paramount to move away from the exploitation of the modern criminal system. In the modern criminal system, guilt is determined by proving beyond a reasonable doubt that the defendant fulfilled the requisite mens rea (intentionally, knowingly, recklessly, or negligently) and actus reus (the conduct, i.e. the actus reus of murder is killing someone).

A common misconception is that mens rea is motive. While motive is important for evidentiary reasons too complicated to get into here, it ultimately is not necessary to establish guilt. If, for example, the prosecutor has an email from me saying “I am going to kill Donald Raygun” and video footage of me killing Donald Raygun, the reason why I killed Donald Raygun is irrelevant. Whether I killed him as a jealous ex-lover, a political statement, or a sadistic pleasure, I’m guilty all the same and the punishment will likely not be altered.

Mens rea must be replaced with “method of influence.” This change replaces the proportionality of a subject’s responsibility for an action economically with the correspondence of a subject’s relation to an act socially. A man is at a football game, and his team is wiping the floor with the opposing team. After yet another touchdown, he begins to scream about how the players on the field are “pussies” and playing like “little girls.” A fan of the opposing team hears him, and in addition to being angry about her team being insulted she is offended by the misogynist character of the insults. She yells back at the man, who is in turn angered and eventually the situation escalates into a fist fight. The man gets knocked down, and although he does not get up the woman is not satisfied and so pours a beer on him while he is still on the floor. The current criminal law system would likely arrest one or both participants, and charge them with crimes like assault or disorderly conduct. They would not be held accountable for the violence they committed against each other and other people, but rather held accountable for disrupting the economic order. In a social defense model, this event would not be seen as one or more criminal acts but rather a holistic collection of violent acts. Examining the evidence and witnesses, a social defense system could ascertain that the conditions of the violence were factors such as the misogyny of the male fan, the level of alcohol consumption at the event, and the lack of policy on how the football stadium deals with rude fans. The woman’s method of influence might be determined to go beyond ending the misogynist remarks of the man since she poured the beer on him in a punitive final act.

But this would not be used to ascertain her “guilt,” but rather determine if and how she must be held accountable for her actions, such as going to anger management, working through the issue with the man she humiliated, etc. All of these steps would be decided by both parties, their lawyers, an arbitrator, and if needed, some democratic community process like a jury. Procedural guidelines established by democratic law would steer the process away from an adversarial one where one party wins or is guilty in the eyes of the state.

So how do we get to this admittedly utopian sounding legal system? The criminal law, especially in the United States, is one of the strongest systems of power in the world, and is incredibly detrimental to revolutionary change. But unlike liberal progressive legal theorists who promote reforms to alter but also affirm the criminal law system, Pashukanis and other Marxist interpretations of the law demonstrate that even something as radical as the abolition of prison will not lift the capitalists’ boot of criminal law off the necks of the working people. Only through the conscious action to shift how the state treats intra-social violence from capitalist exploitation to social defense will there ever be a forms of communal accountability and justice that people can truly be equal before.

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MASK out on patrol in the Englewood neighborhood of Chicago.

A socialist programme must seek to abolish the arbitrary ways that the criminal law targets poor people; regardless of the immediate goal, nothing less than the abolition of mechanisms like bail, parole, and the criminalization of non-violent acts such as drug use or engaging in prostitution. A socialist programme must also show that there are alternatives to the capitalist state’s adversarial method of dealing with violence, such as community-based programs like Mothers Against Senseless Killings that with one hand use crisis management and de-escalation to prevent violence and with the other protect the community from violent police interventions.

And finally, a socialist programme to abolish the concept of criminal guilt must begin at home: in every organization, party, and workplace we belong to, we must advocate that social violence (as opposed to war crimes and other abuses of power which represent a whole other issue) should be dealt with only in ways that promote social defense rather than fulfilling an individual or even group desire for punishment. None of these aims means that we will be able to always forego detaining people, always prevent violence, or always succeed at getting someone to take accountability without coercion. But in return, none of those realities make the goal of social defense any less desirable or any less attainable.

An advantage socialists have always had over the capitalists is we can fight for what may seem at the time to be impossible. The capitalists may make all sorts of claims about innovation in competition, but socialism is the opportunity to create, imagine, and reconfigure a better world without the restraint of a profit motive. A world where no one is a criminal is a fantastical notion for capitalists; a world where no one is a criminal is a necessary part of the socialist dream of a world where we are all free.

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Keep The Seat Empty: 5 Reasons To Block Neil Gorsuch

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“I’m Mr. White Christmas, I’m Mr. Snow…”

The moment my colleagues and I have been dreading has finally arrived. Tonight, President Trump announced the appointment of Judge Neil Gorsuch of the 10th Circuit Court of Appeals to fill the seat of the Supreme Court opened by the death of Justice Scalia. But Judge Gorsuch must still be confirmed by the Senate to become Justice Gorsuch, and per Supreme Court appointment rules the Democrats could block his appointment by filibuster. But this post is not about whether the Republicans “deserve it” after the treatment of Judge Garland or some such punditry: instead I want to focus on what the legal consequences of a Justice Gorsuch would be as distilled from court dynamics and his record. After all, at 49 years old, Judge Gorsuch has the potential to be on the Court for decades upon decades.

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The Careful Massacre of the Legalese: Dissecting the Law in Mr. Robot

mr-robotIf you couldn’t tell from this lead-in picture, this post and the next few posts are going to be chock-full of spoilers about the TV show Mr. Robot. Yes you should watch it before you read this, and no don’t just read the episode synopsis on wikipedia because it is a really good show.

Mr. Robot is a great show because it has that kind of surreal world creation that feels all too real, especially for those of us dealing with cyber security, law enforcement, mental illness, and multinational corporations. It is not afraid to portray just how far people will go ethically to accomplish their aims, whether it is escaping prison or taking over a country’s entire financial system. And along the way are thousands of allusions to the careful watcher about everything from hacker culture to Leftist politics.

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The Legal Fight To Bash Back

We Will Shoot Back pic

Alfred “Skip” Robinson was part of the United League in Mississippi, one of the organizations of armed Black resistance to white supremacy detailed vividly in the book We Will Shoot Back. Others have already made important connections between the anti-fascist (antifa) struggle against Donald Trump and a newly mobilized far right with the historic struggles against white supremacy. I leave that agitation to the organizers who are doing a fantastic job at it.

One of United League’s important partners in their struggles against racism in Mississippi was the Northern Mississippi Rural Legal Services (NMRLS). Lawyers from NMRLS were known for both defending United League members from the sort of criminal proceedings that can arise from armed clashes with white supremacists as well as injunctions against government attempts to shut down their marches and rallies. As we approach the Republican National Convention starting July 18th, the National Lawyers Guild is mobilizing to provide those same kinds of services for the inevitable clashes between the white supremacists, protesters, and the police. You can find out how to get involved here.

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#FreeJasmine: How A Black Woman Was Charged With “Lynching”

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“A Terrible Blot on American Civilization,” NAACP Papers

We must all speak out against the political prosecution of Black Lives Matter leader Jasmine Richards. As a white person on the outside and without a criminal record, I plan to lift up the voices and words of Black organizers and writers, especially those who have been through experiences like Jasmine’s (I will update once I find good pieces to share).

UPDATES (06/02/2016): Check out Richards’ amazing lawyer, Nana Gyamfi, and Black Lives Matter organizer Melina Abdullah talking about the case on Democracy Now.

(06/07/2016): Jasmine Richards has been sentenced to either  90 days (18 served) in county jail. Likely Judge Lu reasoned this as a compromise, far less than the maximum but still enough to keep the police on her side and try to terrorize young Black people into not defending themselves from police violence. But every day she spends in jail will be a disgrace to the idea of justice. More updates as they come.

But I have access to legal research engines and training so I thought I could help this conversation by explaining a little about the history of CA Penal Code § 405a. Jasmine is the first Black person to be convicted under the statute after a 2015 amendment attempted to hide the depraved irony California’s criminal law is perpetuating:

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Prison Abolition Part 2: Bye Bye Broken Windows?

Part 1 of the Prison Abolition series.

Little_Shop_Of_Horrors_PicA recent event has led me to make a major change to the series, replacing the section on alternatives to incarceration with a discussion on broken windows. That event is the decision by Manhattan District Attorney Cyrus Vance declaring that his office would no longer prosecute so-called “quality of life” crimes. His office is downplaying how this does or does not fit into the standing NYPD policy of the past two decades (begun by Bill Bratton during his first tenure as Chief). But Ed Mullins, president of the Sergeants’ Benevolent Association, is a bit more upfront: “They are now sending a message that minor offenses are no longer important to address as quality of life issues in New York City. This must be the new version of Bratton 2.0. This totally contradicts everything he has preached, philosophized and lectured about across the nation. Now, these offenses are no different than parking tickets.” Bratton himself remains fairly silent and minimally supportive on the issue. Now to be clear, as noted by Mullins, these offenses are not going away completely, but are merely being reduced to violations where you get a ticket.

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Prison Abolition Part 1: The Serial Killer Question

This is Part 1 of my series on prison abolition.

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As I have addressed previously, despite what TV shows and movies might try to show you, serial killers are generally not at risk of “getting off” on an insanity defense. They usually wind up in prison, and get sentences that are expressly or by nature life sentences.

Serial killers scare and fascinate us. There are not only shows about serial killers like Dexter and, my personal favorite, Deadly Women, serial killers often pop up as a plot in crime shows or even as a plot twist in shows not about crime at all. But if you’ve ever watched a documentary or psychological analysis of serial killers, you know that our actual knowledge of why serial killers are serial killers is pretty sparse. And even among experts the conclusions reached are often tainted when bias begins at the very methodology of study. It is of course difficult to not have feelings about serial killers. Many of them target the most marginalized people in our society – sex workers, queer youth, Indigenous women, Black women, the mentally ill, etc. Killings are often paired with grotesque acts of sexual violence, cannibalism, and torture. The killings can be so brutal as to leave experienced police officers shaken.

While we do not understand serial killers, they represent the ultimate imbalance between prioritizing punishment over rehabilitation. We are told sociopaths do not change. They were either naturally this way or so constantly barraged by trauma in childhood as to be beyond “saving.” They either need to be locked away forever or murdered themselves by the State.

My argument is two-pronged: (1) is the evidence on serial killers being irredeemable accurate? (2) even if it is accurate, is incarceration still the best solution?

A quick scan of the literature on sociopathy turns up a lot of pop-science articles that are really more about asshole boyfriends than actual sociopaths. What is a sociopath? Well, perhaps non-existent. After all, the Diagnostic and Statistical Manual V, the Bible of psychiatry, does not have clinical definitions of psychopathy or sociopathy. Rather, their classifications are of personality disorders, particularly antisocial personality disorder, avoidant personality disorder, borderline personality disorder, narcissistic personality disorder, obsessive-compulsive personality disorder, and schizotypal personality disorder.

While these differ in various ways, the DSM V also specifies the following as general personality disorder traits: (1) Significant impairments in self (identity or self-direction) and interpersonal (empathy or intimacy) functioning. (2) One or more pathological personality trait domains or trait facets. (3) The impairments in personality functioning and the individual‟s personality trait expression are relatively stable across time and consistent across situations. (4) The impairments in personality functioning and the individual‟s personality trait expression are not better understood as normative for the individual‟s developmental stage or sociocultural environment. (5) The impairments in personality functioning and the individual‟s personality trait expression are not solely due to the direct physiological effects of a substance (e.g., a drug of abuse, medication) or a general medical condition (e.g., severe head trauma).

I know I probably have readers who are not keen on the DSM V, but it is important to understand the psychiatric definition of personality disorder because it is, at its best, a perspective outside of the criminal justice system focused on care rather punishment and, at its worst, a reminder that mental health treatment, such as involuntary commitment, mirrors incarceration. Personality disorders can be treated both medically and non-medically. Medically, people with personality disorders are often prescribed with antipsychotic agents or mood stabilizers. Non-medically, people with personality disorders are given incentives to shape their behavior to social expectations rather than their own. A key recognition here is that people with personality disorders do not respond to punishment as an agent of personal change. But of course, the purpose of incarcerating serial killers is not to rehabilitate but to punish and to protect society. It is precisely that dynamic that is out of line with both medical and non-medical treatments of personality disorders. 1 in 25 people have a personality disorder, and we know that 1 in 25 people are not serial killers. Further, we know that personality disorders have been on the rise, meaning that it is not statically coded into our genetics but at the very least an epigenetic, if not sociological, phenomenon.

Serial killers do not kill purely by having a personality disorder, and to say so stigmatizes people with personality disorders and glosses over the fact that people with mental disorders or illnesses are far more likely to be a victim of violence than to commit violence themselves. There isn’t an easy answer for what it is that pushes someone with a personality disorder into the realm of serial killer. And arguably, many of the worst killers of the world did not even have personality disorders if we include every military general, every company that stoked conflict to make profits, and other socially sanctioned forms of mass murder. I believe that no one should be given up on to have a meaningful life in their community, and much of the real scientific literature backs me up.

And even if there are these mythical people with personality disorders who are just predestined to try to mass murder and can never be changed or steered away from that purpose, we still do not benefit as a society from incarcerating them. Incarceration is a reactionary, punitive strategy – to at best prevent further problems. Incarceration does not prevent violence effectively, whether violence from a domestic dispute or from a serial killer. Rather, what will prevent killings by serial killers is substantive and objective research into how to pinpoint people at risk and intervene. There are some programs for this purpose, but they are poorly funded and usually within institutions with agendas outside of helping those with personality disorders (i.e. schools want to maintain order and conformity, the military wants to maintain its strength, etc.). And speaking of the military, we must end institutions that by their nature provide serial killers to be with the access to training and weaponry. Gerard John Schaefer, Jr. is the most obvious example of this, a police officer who used his impunity to kill ~30 girls and women. But the largest by far is the weapons industry. The constitutional focus of Second Amendment rights on the individual often leaves out of the conversation that the weapons industry literally profits off of murder. Particularly the lack of restrictions on ammo production, rather than ammo ownership, ensures that access to ammo is never a problem for someone who wants to commit a mass shooting.

This post is a bit different than most of mine: little legal analysis, mostly socio-political and psychological analysis. But it is no less topics of legal concern. The current laws of the United States are woefully out of touch with current empirical and scientific thought, and the focus on incarcerating people with personality disorders is just one example of this. We must stop accepting that the law is a system unto itself not bound to rationale’s outside of stare decisis. And with Justice Scalia in the grave, now might be the time to begin to push for such changes broadly.

Part 2: Bye Bye Broken Windows?

Prison Abolition: A Six Part Series On Legal Questions And Possibilities

12646963_930840916963435_8458962607186396439_nThis week, 02/29 – 03/04, is the National Lawyers Guild’s Week to End Mass Incarceration. It is part of a shift for the Guild, since NLG passed a resolution last year supporting prison abolition.

First, this series is not going to be completely inline with this resolution. Particularly my own vision of prison abolition, while aiming for an ideal world without cages, I differentiate incarceration and detention. Incarceration is punitive or allegedly rehabilitative deprivation of freedom. Even in the case of the picturesque prisons of Norway, which look nicer than any apartment I’ve lived in these past years in New York City, the wardens are very clear that the relative freedom they have is still very much limited, and that they believe withholding freedom is rehabilitative. I do not agree, and my prison abolition views are centered in this disagreement which I will outline at length.

But while I do not think deprivation of freedom is beneficial to the person, I do think that it is sometimes necessary as an intermediary measure with the current material conditions of the world. While the hysteria of safety used in carceral propaganda is obviously blown well out of proportion, it would be disastrous to open every holding facility in the world right now and let everyone go without the infrastructure to handle it. Further, in a multitude of situations, detention is immediately necessary to prevent violence. I do not believe that people should have to so drastically give up their safety to fight for prison abolition. I did not always think this way: a couple of years ago, I would have called these views limited, reformist, and violent for essentially making a “trade” of the value of life a person detained versus those lives preserved by their detention. However, that was before I had worked for years and been friends for years with people currently or formerly incarcerated. While most of them thought the current system was sadistic and unproductive, the thought of absolute prison abolition was almost as bad. It would be one thing if they were telling me that other people they knew needed to be in there – that could be written off as a product of the Hunger Games mindset that incarceration instills. Rather, it was the number of people who described how incarceration had not so much benefited them as prevented their downward spiral from hurting others. While incarceration is hardly beneficial for communities overall, detention can stop the escalation of violence when done so with that goal in mind.

And that is my major differentiation between incarceration and detention. Incarceration is meant to be violent for the sake of its violence, even in its Scandinavian hippy forms. While I echo Lenin’s sentiment that state action will always be, to a certain degree, violent and coercive, I also share his view that it is necessary for the exploited and oppressed people of the world to seize this state power in the transition between the current capitalist power structure and a future world of real communal democracy. I see detention as the last resort, a final tool to be triggered when anti-violence and prevention methods have failed. It really would be no different than the de-escalation I have done at community gatherings: isolating the person on the verge of or engaging in violence from the people or situation that is facilitating the rise in tension, and if necessary have them leave (I am against permanent bans, but sometimes a person should just take a break).

I think the biggest flaw with “community policing” is that it is an add-on: they police, and on the side they engage with the community. As soon as you’re profiled as a criminal, which can be for as little as being young and Black on the wrong street at the wrong time, the community engagement stops and the policing begins. In a society transitioning to prison abolition, laws are enforced for the good of all people rather than for those who are complacent and conforming. We would try to stop people from committing violence not only for the harm it will cause to others, but the harm it will cause to themselves: damaging their psyche and relationships with others. Detention unfortunately would probably have to be a part of that.

Part 1 of this series will be on the snarky question that many prison abolitionists have gotten – but what about serial killers? Part 2 will highlight alternatives to incarceration: which ones are changing the game and which ones are wielding the very same principles as the prisons they replace.EDIT: because of DA Vance’s recent decision, I decided to write a post on Broken Windows instead. Part 3 of this series will explore how sexual violence would be dealt with in a prison abolition framework, and whether victim-centered responses to sexual violence are compatible with abolition. Part 4 will talk about the Thirteenth Amendment and immediate, constitutional strategies for chipping away at its prison provision. Part 5 will be on those we would actually probably enjoy seeing go to prison, like neo-Nazis or ultra-wealthy bankers, and how we must temper the fury of our quest for justice with radical forgiveness. Part 6 will be on a Marxist conception of prison abolition, and how guilt is a market force even when imposed by the state.

Are Grand Juries In The Way Of Justice?

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Photo by Tim Pierce.

I want to start with a few hard, fundamental truths. Tamir Rice was a child, and not the first Black child to be murdered in the way he was. It is a systemic part of the United States policing and criminal justice systems. Also, prosecutors are not tasked with creating justice, whatever ostensible rules of conduct might say otherwise. They are tasked with representing the interests of the state. When the executive branch of that state is systemically wired to kill Black children, justice for those Black children will never be an objective of prosecutors. This post will be about the third piece of this puzzle: grand juries.

First, I will provide a little background on what grand juries actually do and why, a subject even a number of lawyers fundamentally misunderstand. I will analyze the recent California legislation that prohibits grand jury inquiries into any incident involving a shooting by a police officer. Then I will conclude with an argument against going after grand juries, and instead how expanding and strengthening grand juries is the most feasible way to circumvent the exceptionalism afforded to the police and others by prosecutors.

A grand jury is summoned to decide whether criminal charges should be brought against a person being investigated by the state. How exactly grand juries function depends on whether it is a federal or state criminal charge: because the Fifth Amendment has only been selectively incorporated (see Adamson v. California, 332 U.S. 46 (1947)) into the Fourteenth Amendment’s Due Process Clause, there is no right to a grand jury for state criminal charges. However, all states have some form of grand jury system, but only twenty-two of those states require a grand jury.

I am going to use Ohio as an example, not only because it is the grand jury system in question but because it has many important elements for consideration. Ohio has denied the government the power to abolish the grand jury, but whether a grand jury is necessary for a particular proceeding is up to the discretion of the presiding judge (Baldwin’s Oh. Prac. Crim. L. § 39:3 (3d ed.)). The grand jury is essentially an arm of the court of common pleas, and the judge has the standard powers afforded to judges for trial juries such as dismissing individual jurors, placing a juror in contempt, etc. (id. § 39:10 (3d ed.)). However, the only party allowed to present evidence to the grand jury is the prosecutor (id. § 39:11 (3d ed.)). Even the Ohio Supreme Court has state that this power creates abuses:

In federal and state jurisdictions the grand jury serves as a shield against official tyranny, malicious prosecution, and ill-advised, expensive trials. However, a potential for abuse still exists within the grand jury system. Examples of abuse are: selective prosecution, vindictive prosecution, the use of perjured testimony, excessive use of hearsay, and prosecutorial appeal to the passions of the jurors.
These abuses stem from the degree of control a prosecutor wields in grand jury deliberations. 
State v. Grewell, 45 Ohio St.3d 4 (1989) [internal citations removed].

Despite the purported role of grand juries as “a shield against official tyranny,” most experts recognize that the nonadversarial nature of the proceeding makes them simply a tool of law enforcement and prosecutors to investigate and charge respectively (Baldwin’s Oh. Prac. Crim. L. § 39:2 (3d ed.)). In Ohio, 5,565 individuals were indicted for drug offenses in 2014. While I was not able to find an official number, it appears that 10 police officers were indicted in 2014, 6 for manslaughter in an excessive force case, one for illicit sexual contact with a minor, and one for office theft (please feel free to correct me if these numbers are wrong). Several officers were not indicted by grand jury investigations, including in the shooting of John Crawford III at a Wal-Mart. The grand jury is not governed by any technical rules of evidence, and do not even have to be there for every witness testimony or other evidence introduced (Turk v. State, 7 Ohio 240, PT. II (1836)). But the accused do retain privileges against self-incrimination by questioning during the grand jury, though evidence can be introduced of self-incrimination earlier, such as by police officers (State v. Baker, 137 Ohio App.3d 628 (2000), cf. State v. Mackey 2005 WL 1415419 (2005)). A grand jury’s ruling can be challenged, but only when it is an indictment (Baldwin’s Oh. Prac. Crim. L. § 40:10 (3d ed.)).

So now that we have a basic understanding of grand juries, but keeping in mind that they vary from state-to-state, let’s look at the new California legislation. The new bill prohibits the use of grand juries, and vests the power solely in prosecutors. The thinking behind this is that, because prosecutors are elected in California, the change will make indictments accountable to the public. However, this thought is logically flawed for a simple reason: the power is already mostly in the hands of prosecutors. If anything, prosecutors are far more likely to be sympathetic to police officers than a grand jury: they depend on those officers for every criminal conviction, from the arrest to testimony at trial. Whether they are elected or not is immaterial: it is not a policy preference, it is an intrinsic part of their work. While not all prosecutors are popular among police, all prosecutors walk a fine line and most certainly cannot be objective in how they carry out indictments of police officers. The California law’s likely effect is to simply change the arena, and I doubt that in 2016 we will see significant differences in police being indicted or convicted.

And this is why the recent call by some activists to abolish grand juries in these situations concern me. It makes me fear that the mainstream media and prosecutors have succeeded in the most common tactic of white supremacy: convincing us that individual racists, rather than a racist system, is the problem. That “peers” are responsible rather than prosecutors. And this is not to deny the evil side of jury nullfication, and that there are situations in which the individual racism significantly contributes or is even the main source of the problem. But that level of contribution is rarely the deciding factor. Regardless of our feelings about individual racists (and I have plenty as someone from a Southern small town), individual racism is not what prevents grand juries from indictments against police officers.

I also worry that prohibition of grand juries for police killings could be a slippery slope: after all, the decision for whether a grand jury will be called is usually up to the judge, and if the judge sees that one cannot be called for police officers, depending on their politics they may see this as ample reason to restrict the privilege from others. And while the current grand jury system is in no way “a shield against official tyranny,” any removal takes away opportunities for indictments to not happen as frequently, which is certainly a goal for any of us who recognize how punitively inane and racist our criminal justice system is.

What if instead of abolishing the grand jury system we made the burdens of carrying it out as due process heavier? The very same rules of evidence that can be subverted to not bring an indictment against a police officer can be subverted to bring an indictment against a young Black person for smoking marijuana. Making the proceeding more adversarial could pressure prosecutors into carrying out more substantive investigations of police officers. And making grand juries mandatory for a criminal indictment could actually help to prevent all the police misconduct that does not even get to the level of a grand jury.

However, the process itself, the way that prosecutors have transformed it over the years, should bring us to a broader conclusion: that much more change is needed to actually start holding the government and individual police officers accountable for the violence they commit. One of my favorite things to cite to those who have faith in the criminal law is how many criminal laws prior to Model Penal Code had explicit statements that their purpose was to identify and segregate a class of undesirable individuals. While such transparency no longer exists in the mission statements of these laws, almost all of the laws have retained most of their substance (vagrancy became loitering and disorderly conduct, sodomy became criminal sexual act or crime against nature, etc.). Perhaps it is time to seek measures of accountability outside of a capitalist state built at the very foundations to avoid that accountability.

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Why Is Arkham So Full?: The Truth About Insanity Defense in Criminal Law

I’ve been watching a show called Gotham recently. I’m a comic book nerd, like seeing strong women of color characters, and have a soft spot for any Law & Order type shows. One thing that makes the show quite unbearable at times is their portrayal of mental illness. They trick you by having protagonist Jim Gordon question the mass incarceration of the mentally ill at Arkham, but once he’s there as a security guard he’s more than happy to demean and manipulate the mentally ill as much as all the other neuro-normative, as in those without mental illnesses, characters. The mentally ill people incarcerated there are a collection of stereotypes, from the manchild to the flamboyant gay man. And of course one strange thing about the show, and about the Batman universe in general, is just how full Arkham is. Arkham pretty much has served as the de facto prison for most of Batman’s villains, even for those are supposedly “sane” like the Penguin or Black Mask.

In the real world, insanity defense are fairly rare, as demonstrated by the high rate of mentally ill persons in US prisons. Only 1 in 100 defendants even raise an insanity defense and the chance of the defense being successful is less than one percent. The misconception that it is more prominent stems from both the general fear and stigma around mentally ill people and the use of insanity defenses in highly publicized serial killer cases like Jeffrey Dahmer (thinking I might do a whole post about serial killers at some point if there’s any interest). Of course the state, and the capitalists it represents, have a very vested interest in incarcerating people with mental illness rather than having them treated at an in-patient facility (though in-patient facilities have their own problems, often associated with a general lack of funding by the state and a focus on diagnostic treatment rather than working with patients cooperatively). People with mental illnesses range from being disruptive to completely incompatible with a capitalist economy. 80% of mentally ill people are unemployed. The alienation and need for sublimination with in a capitalist economy is something that many of the mentally ill people simply cannot do or tolerate. But unlike their neuro-normative fellows, they are poor candidates to make up what Engels refers to as “an unemployed reserve army of workers.” Most of this “reserve army” is sustained by what Engels refers to as huckstering but what we now call hustling. Such hustling, whether in drug, piracy, or sex work, is incredibly mentally strenuous work. Which is not to say that mentally ill people do not engage in such work, but rather that it is not nearly as feasible for them to sustain themselves on it, and as Engels wrote, it reduces their options to begging.

Getting back to the insanity defense. Fun fact: most insanity defenses (decided by the states and one federal form) are based on a test from the 1500’s called the M’Naghten Test. This test is pretty simple: did the offender, with a defect of reason or disease of the mind, understand the difference between right and wrong? It would be laughable if it weren’t so blithely out of touch with both modern science and organizing done by mentally ill people for their rights. But wait, it gets much worse. Because this test could have gone the way of other 16th century institutions like serfdom.

The Chief Justice of the Supreme Court of New Hampshire, Charles Cogswell Doe, had a problem. Defendant was being charged with murder in the commission of a robbery (note that this was before felony murder rules had been established in many places like NH). Defendant had what at the time was called dipsomania, what we would now call alcoholism. The judge established a new test: that insanity defenses could be applied in cases where the crime was a product of mental defect or disease. Whether or not that was the case would be left up to the jury in their role as the triers of fact. Despite the problematic language, this was a huge step forward from the ludicrously high standard of the M’Naghten Test. And it was in 1870. It is generally referred to as the Durham/Product Test.

Having an insanity defense that could actually work was troublesome to capitalist lawmakers for another reason than the desire of warehousing an untenable population of unemployment. Guilt is a crucial aspect of the criminal legal system. Insanity defenses are “excuse defenses,” defenses that find a person normally guilty of the crime not guilty. Their existence has a basis in the representation-reinforcement school of thought: if you do not excuse certain defendants who are extremely sympathetic to the working class, it could both cause dissent to the government and reveal that the purpose of the criminal law is not as moral or socially responsible as it purports. Writes Evgeny Pashukanis:
Guilt… is the basis for the gradation of punishment – a new, if you wish, ideal or psychological element, which is combined with the material element (the injury) and the objective element (the act) – in order to provide a joint basis for determining the ratio of punishment…bourgeois jurisprudence ensures that the transaction with the criminal is in accordance with all rules of the art, i.e. that each may be convinced, and may verify that the payment is justly set (public judicial proceedings), that the criminal may bargain freely (adversary process), and that in so doing he may use the services of an experienced judicial expert (admission of the defence) etc. Briefly, the state conducts its relationship to the criminal within the framework of a bona fide commercial transaction in which there are, ostensibly, guarantees of criminal procedure.

So critiques were put forth against the Durham/Product Test that it puts too much emphasis on mental health experts. We have in this critique an interesting contradiction: on the one hand, it is legitimate to wish to avoid too much emphasis on the ambiguity that is witness experts (a topic for a later date I’m sure), but on the other hand, who else has the credentials to inform a juror’s choice on an issue explicitly about mental illness? With the publishing of the Model Penal Code in 1962, the American Law Institute sought to reinforce the certainty necessary for capitalist law, and insanity defenses were no exception. Model Penal Code section 4.01(1) adopts a version of the Irresistible Impulse test: that the defendant lacks substantial capacity to know criminality or conform their conduct to requirements of the law. Other criminal codes go further, such as the New York Penal Law which essentially revives the M’Naghten Test.

An actionable insanity defense that is not fatal in fact could be a means of questioning the purported morality and purpose of the criminal law. Remember that not all defenses are created by statute: the use of the “battered woman syndrome” defense, which faced major opposition when first used by defense lawyers who had gone outside of the defenses outlined by statute, is now practiced across the country. Similarly we need new defenses for people with mental illnesses that are not restricted by the prejudiced and exploitative definitions of capitalist law.

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