In response to my post ‘Punching Nazis in the Face and Anti-Antifa Critiques‘ a friend of mine offered some critical responses on Facebook; these responses have offered me an opportunity to try to express my original claims more clearly. My responses are below. (Excerpts from my original post are indented in plain text; my friend’s responses are italicized.)
A week or so ago, shortly after the murder of Heather Heyer in Charlottesville, I asked on my Facebook page: “Is it OK to punch a Nazi in the face? Asking for a Virginian friend.” As might have been expected this semi-serious query sparked an interesting discussion in the course of which one of my friends asked me to clarify on when I thought the use of violence was justified–against the kinds of folks who marched in Charlottesville or against folks like Richard Spencer, who did indeed, get punched in the face. My reply went as follows:
I do think that Nazis create a greater threat than other instance of ideology on two legs, and will amplify and make that threat more manifest in a manner that will prompt violence directed at them – I’m OK with that violence. If I see a Nazi rally in my street, and a couple of goons screaming in my daughter’s face, I will fucking punch them. It it possible then that I will suffer Clanton’s fate, but I will plead in my defense, that I was protecting my daughter from ‘assault.’ And I will have a good legal case for doing so – Nazis, too often, behave in ways that constitute ‘assault’ – technically. They’re asking for punches.
My reply clarifies something about the nature of the so-called ‘violence’ directed at Nazis by Antifa, and responds to the various critiques directed at those who have ‘clashed’ with the various brands of white supremacists who have started to emerge, in increasing numbers, from the woodwork. The following points, I think, are salient, and build on it:
- Violence takes many forms; current critiques of Antifa fetishize physical violence, the actual meeting of flesh vs. flesh; they fail to address the violence present in a relentless pattern of intimidation and abuse and overt exertions of power. These critiques are blind in a crucial dimension; they take their eyes off the content and the history of Nazi/white supremacist speech and action; they do not examine their impact of those that bear the brunt of these. The legal definition of ‘assault’ is more catholic: it admits of more forms of violence, and allows for a greater range of actions in response.
- For many folks, the sight of Nazis marching in the streets, calling them sub-human, demanding they leave their homes and ‘go back’ to where ‘they came from,’ is already assault. Nazis don’t offer political critique: they reduce my humanity. (Read the Daily Stormer if you doubt this.) If they attempt to do that to my daughter, I will not wait for them to start swinging. I’ll start swinging first; there is, no, I repeat, no, talking with Nazis. I will not allow my daughter to be ‘assaulted’ by Nazis; more to the point, I will not rely on the goodwill of the police or the state to protect me. They have already made clear they will not defend my family or me. The daily news assures me of their non-cooperation in this matter. Indeed, I expect that they will stand by and let violence be done to me.
- Unsurprisingly most objections to the Antifa originate in ‘moderate whites’–the same folks that Dr. Martin Luther King Jr. described as being the greatest barrier to the civil rights movement–these folks do not feel physically threatened in the same way that people of color are when Nazis and white supremacists march through their neighborhoods; they have not been subjected to the daily rituals of aggression that people of color are. They do not have their accent remarked on, they are not asked to repeat themselves, they are not subjected to relentless, ignorant queries that betray a lack of cultural sensitivity and an overwhelming ignorance that is anything but benign. Sexism, racism, misogyny, transphobia, Islamophobia; these all exert a daily toll that most ‘moderate whites’ do not experience or understand. As James Baldwin pointed out a long time ago, thanks to segregation, which continues today, most whites know nothing about their fellow black citizens; they do not know what they feel, how they feel, what they think or how they think. Offering political advice on how to conduct protests to this community is an act of political hubris. So is offering political advice to those who, by their actions, act to reduce the daily intimidation experienced by people of color.
- Every single call to denounce the Antifa and their tactics abdicates political agency: if the Antifa do X, then our political opponents will do Y, and we can do nothing about it. There the discussion stops; there is no talk of whether there are any substantive countermoves to Y. The propaganda countermeasures that say that violence on ‘both sides’ will be condemned cannot be combated; the state’s crackdown–now justified because of Antifa’s violence–cannot be resisted. Our only option is acquiescence in the face of precisely those some propaganda countermeasures and the same state crackdown that are already visible today. Here, the moderate white’s imagination breaks down. He cannot imagine a political move in response; all is lost. The ‘other’ will act, and ‘we’ will simply be subject to their actions. We, through our actions and speech, can do nothing in response. This is not political critique; this is surrender.
- This is a country in the grip of an ongoing large-scale human rights violation and moral atrocity called ‘mass incarceration’; in this country, police can arrest, assault, harass, imprison, and kill people of color at whim with no accountability; this is the world in which ‘moderate whites’ want the antifa to be treated as morally equivalent to the marching Nazis and for those who seek to combat their violence. In this country, white supremacists control the government and its other branches; here, the moderate white would like the Antifa to keep on marching, keep on checking to see if the ‘moderate white’ approves of their tactics–the moderate white will continue to wait for the non-existent perfect protest, made at the right time, in the right place, in the right way.
- Here is a thought experiment concerning 1930s Germany: What would have happened if German Antifa had indeed come out swinging against the Nazis? What if every time the Nazis had held a rally, they had been greeted, not just with overwhelming numbers, but with a swift punch to the face every time one of them opened their mouths to pronounce their murderous ideology? What if that ‘violence’ had indeed overwhelmed the Nazis in Germany? Perhaps the problem with the violence directed against the Nazis in 1930s Germany was that there simply was not enough of it. Twelve years later, German cities had to be reduced to ashes.
It’s notable how easily violent thoughts have come to those of us who have known only a single, and much contested, month of the Trump-Bannon era. American exceptionalism may be dead, but it lives on as a habit of mind…in the unprecedented horror we imagine ourselves to be experiencing….It might be useful to think about these fantasies in wider terms, as a way of trying to understand the citizens of other countries, particularly those whom Americans have for the most part refused to sympathise with. We might try, for example, to understand why Palestinians have carried out violent attacks against the people who have occupied them for…half a century. They have been under military rule, without recourse to elections or a fair legal system, much less citizenship, for roughly 600 times as long as we have been under Trump.
Indeed. And we would do well too, to look inwards and closer as well, at the state of communities that have already, for ages now, suffered the kind of political and legal regime we imagine the Trump-Bannon era to resemble. The crisis of mass incarceration and the systematic evisceration of the US Constitution that it has both relied upon and facilitated provides the grimmest reminder that arbitrary search and seizure, detention, arrest, show trials, and cruel prison sentences are already the norm for some American citizens. Innocents make plea deals that send them to jail for years; families are torn asunder; no one reading the formidable corpus of literature on America’s prison and penal system, or the manifestos issued by Black Lives Matter, would imagine that much worse could happen to a black American in the Trump-Bannon era. The heavy-handed knock on the door in the middle of the night at the end of which a young man goes missing, and sometimes ends up dead in police custody? Been there, done that. The road-stop followed by the gunshot, which leaves an unarmed man dead? Been there, done that too. The ACLU received $24 million in donations in the weekend following the issuing of the disastrous ‘Muslim ban’ Trump executive order; it certainly could have used some of those dollars in holding the tide against the assault on the Constitution that drug warriors have been mounting for close to over three decades now.
Why, again, would such an openly declared war not provoke fantasies of violence? America is lucky, very lucky, that the millions of guns floating around in its cities and suburbs have not yet been turned against the armed constabularies who, on the pretext of conducting a War on Drugs, have felt free to promiscuously wage war against entire demographics instead.
The Trump-Bannon era calls for resistance, and resisted it will be. But let us not imagine that this era is exceptional, that the political and legal crisis it showcases is. To do so would be to lapse all too easily to facile self-congratulation, and to let the real work remain undone.
A quick quiz: When you think of phrases like ‘all lawyers are liars,’ ‘the law is an ass,’ ‘first thing we do, let’s kill all the lawyers,’ what vision of miscarriages of justice come to mind? Do you think of the innocent being deemed guilty, or do you think of the guilty getting off scot-free? Let me venture a guess: it’s the latter. Moreover, I would also surmise that the kind of lawyer you have in mind when these images of law present themselves is a very particular one: the defense lawyer. A sneaky, unethical, slimy, conniving, opportunist who represents the reprehensible, who puts his morals on hold and sallies forth to defend the indefensible, looking for loopholes in the law through which his client may wriggle, away from the grasp of the law and the virtuous society which seeks to prosecute him. Isn’t that really the worst kind of lawyer? The defense lawyers? You know, the ones who defend the ‘guilty’?
We have plenty of cultural representations to thank for this image of the defense lawyer. (I was reminded of this all over again as I sat through the second season of Broadchurch; in the last episode, the assistant prosecutor makes sure to tell the eager assistant defense attorney that she is a ‘horrible person;’ the series makers have done their best till then to drive us to the same conclusion; she is, after all, shown to be the master of the dirty trick, anything to get her client, a murdering pedophile, off the hook.) Remember the phrase ‘all lawyered up’ made so popular by one police and homicide procedural after another? Apparently, policemen and judges and detectives just want to do their work, but those pesky defense attorneys get in the way.
These are strange representations to deal with in a country engaged in the process of a gigantic human rights violation called ‘mass incarceration.’ Here, prosecutors engage all too often in gross misconduct, piling up charge after charge on their initial indictments, which they will then drop down to force accused into plea deals for lesser sentences, thus often forcing the innocent to choose jail time. They strike us as even stranger when we consider that the hardest working species of lawyer is the public defense attorney: overworked and underpaid, staggering under a caseload that would bring the most ardent workaholic to his knees.
This state of affairs is entirely unsurprising. We are a very self-righteous species, blessed with a sense of our own rectitude and of the guilt of others; our insecurity in the former dimension makes us lash out in the latter; our theories of punishment are infected with petty, vicious, vindictiveness. We suspect legal protections for the accused because we do not imagine ourselves ever needing them; they are there merely as smokescreens and obfuscations of the legal process. So those who employ them must be suspect too; they must be sophists and liars, manipulators employing deceitful sleight of hand maneuvers to pull the wool over our collective eyes.
Perhaps we should be more tolerant of the defense lawyer; perhaps we should not rush to judge them too quickly. Prudence bids us do so; we might need one someday.
The Intercept notes–in an essay by Alice Speri–that ‘deadly heat’ is killing prisoners in US prisons, that state governments would much rather spend money on legal fees than on installing air conditioning. In one egregious instance, Louisiana spent one million on legal fees to avoid spending $225,000 on AC. As the secretary of the Louisiana Department of Public Safety and Corrections Jimmy LeBlanc put it to the Associated Press in June, installing air conditioning at Angola would open a “Pandora’s box.” and that his “biggest concern is the impact on the whole system and the cost.” As George Gale noted in response (in a comment on my Facebook page), “I suspect what he actually means is “The public would crucify us if we air conditioned prisoners!”
Not too long ago. I made the mistake of reading the comments section in an online article about Orange is the New Black. There, many commentators expressed anger and dismay over the treatment of prisoners that was depicted in the show. Unfortunately, their anger and dismay was directed at the coddling that the inmates seemed to receive behind bars: They watch television! They walk around in the prison yard! They get their hair done! They had a store where they could buy stuff! One commentator finally went right ahead and said it “These women have a better life than I do.” There was something pathetic about that claim, something that spoke to just how onerous she imagined her life to be if it could be compared to that of a prisoner locked up behind bars. (This is not to say that many living outside of prison do not have qualitatively worse lives than they would have inside but I do not think this person, with an internet connection and the time to read and comment on an article about a television show, was one of them.)
Somewhere in the retributivist argument that many folks employ, the following premise is smuggled in:
If you commit a crime, and are convicted of doing so, you thereby lose all and claims to any civil, constitutional, and human rights. Indeed, you cease being a human deserving of any sort of considerate treatment. You are, after all, a convicted criminal.
It will be noticed that in this case ‘convicted criminal’ has come to mean ‘degenerate sub-human lacking those vital features which make him or her a worthy subject of moral concern.’ It’s not an eye for a eye but rather body and soul for an eye. (It should be remembered that the ‘eye for an eye’ formulation includes proportionality in its claim.) As a result, it is not enough that prisoners are denied their freedom and choice, restricted to particular spaces, told when to wake up, go to sleep, put the lights out, exercise, served particular food items and not other (with some concessions made for dietary constraints), and subjected to–among many arbitrary exercises of power–violence and sexual assault from guards and other inmates. No matter. They deserve it, they asked for it, they got what was coming, if you can’t do the time don’t do the crime, they should have thought about this before they committed the crime: the list of stern platitudes directed at convicts is never-ending, a grand testimonial to the smugness and complacency and small-mindedness of those of us on the ‘outside’ who have lost our capacity for empathy, who imagine that the strong arm of the law will never be lowered on them, who imagine that when they make a mistake, the benevolence and forgiving that has been so carefully hidden away by the world so that it can better deal with its convicts will suddenly be directed at them. It won’t; to encourage vindictive and cruel retribution directed at others is to set up a store for oneself too.
Orange is The New Black has attracted–not unjustifiedly–some flak for its powerful and painful fourth season: it has been accused of being ‘trauma porn for white people,’ and of having ‘failed the Dominican community.’ Still, the show has provided some powerful drama in those thirteen episodes, largely by throwing off any pretensions that were hoisted on it of being a ‘funny’ or ‘comedic’ look at what happens behind the walls of a modern prison, and by concentrating on those issues that are too often the stuff of contemporary headlines pertaining to mass incarceration: the privatized prison-industrial complex, the brutality of poorly trained prison guards and correctional officers, racism, violence, sexual abuse and assault, criminal activity behind bars, drug abuse, the complicated social dynamics of prisoner groups, prison protests, deaths in custody, and so on. (Orange is the New Black is set in a women’s prison, so these issues receive an interestingly different treatment because of its inclusion–even if incompletely, and often crudely–of the perspectives of lesbians and women of color. Despite its increasingly serious tone. the show retains its witty edge because of its sharp writing and because of the comedic talent of many of its actors.)
In the many indictments the show levels at our society, one stands out pretty clearly: the privatization of prisons, the transformation of incarceration into industrial endeavor. The show’s narrative and rhetorical arc in the third season was radically altered by its choice to concentrate on the privatization of Litchfield, and not coincidentally, that is precisely when the show took on its darker tone. The predominance of the economic bottom line, and the casual cruelty and indifference to human interests it brought in its wake ensured that change pretty quickly. Interestingly enough insofar as any sort of alliance between the various warring factions among the inmates ever emerges, it is in reaction to the lowering of the corporate boom on their heads: if prison administration was uncaring and callous before, then the new dollars-and-cents mentality is even more grim, ever more removed from the realities of their lives, one that demands, finally, even if only temporarily, the putting aside of differences.
As Orange is the New Black makes quite clear in its treatment of the death of Poussey–the show’s most traumatic moment thus far, the one that finally pushed it over the edge, and made clear the it was not in Kansas anymore–an innocent human being died as a result of the decisions made by those, and there were many, who chose to imprison her and her fellow inmates in the way they did. The overcrowding at Litchfield, the use of untrained guards, the tolerance of their brutality, the systematic, cruel, ignorance and indifference of corporate managers; they all applied that fatal pressure to Poussey’s windpipe; she died because a system’s weaknesses became too much for her to bear. As they have for all too many in real life. If Orange is the New Black can help us pay more attention to their fates, and to the actions that are required to ensure they are not repeated, it will have, despite some well-deserved criticism, done its part.
America’s mass incarceration is the bastard child of many. Among them: racism, the War on Drugs (itself a racist business), the evisceration of the Constitution through ideological interpretive strategies, prosecutorial misconduct, police brutality, and so on. Yet other culprits may be found elsewhere, in other precincts of the legal and political infrastructure of the nation.
In ‘The Balance of Power Between The Federal Government and the States’ (in: Alan Brinkley, Nelson W. Polsby, Kathleen M. Sullivan eds., New Federalist Papers: Essays in Defense of the Constitution, , WW. Norton, New York, 1997), Kathleen M. Sullivan writes:
[T]here may be reason for the courts to draw outer limits to federal power when the structural, political, and cultural safeguards of federalism break down and the federal government encroaches needlessly upon areas traditionally and sensibly regulated by the states. The worst example in our recent politics is the overfederalization of crime. The Constitution names only three crimes: counterfeiting coins or securities, piracy on the high seas, and treason. But Congress has created more than three thousand federal crimes under the power to regulate interstate commerce. There are many crimes that should be federal, such as bombing federal buildings or sending explosives through the mail. But should it also be a federal crime to grow marijuana at home or to hijack a car around the corner? Federal crimes have proliferated not because it is good crime policy but because it is good politics: as Chief Justice Rehnquist has observed, “the political combination of creating a federal offense and attaching a mandatory minimum sentence has become a veritable siren song for Congress,” loud enough to drown out any careful consideration of the comparative advantages of state and federal crime control.
Shifting crime control from the states to the federal government in purely local cases diverts the work of federal investigators, prosecutors, and judges from areas of greater federal need. It also fills federal prisons with non-violent and first-time offenders who occupy space that could better be used for violent, career criminals whose operations cross state lines. There is no reason why the new federal crimes may not be handled by the states, as they have been traditionally, unless they involve multistate enterprises or intrastate enterprises so vast as to overwhelm the resources of state authorities.
The federalization of a particular crime acts as a ‘promotion’ of sorts: it elevates the perceived undesirability and dangerousness of the crime; it thus clears the way for harsher sentencing. As Rehnquist’s remark above suggests, the legal system’s response to a particular crime may be viewed as qualitatively and quantitatively inferior till the time it federalizes it and adds a harsh minimum sentence; only such a combination will assuage the retributivist impulse that so seems to animate the punishment policies of our penal system. Moreover, the current state of affairs lends itself to a situation where a conservatively inclined Supreme Court could, under the guise of tilting this balance of power back to the states, strike down progressive legislation. As Martin Garbus noted in Courting Disaster: The Supreme Court and the Unmaking of American Law (Henry Holt, New York, 2002, pp. 128-130) the Supreme Court struck down, precisely as part of an ideological anti-federalist strategy, in United States vs. Lopez, “the first United States Supreme Court case since the New Deal to set limits to Congress’s power under the Commerce Clause of the United States Constitution“, an act of Congress criminalizing possession of a handgun at school.
The Supreme Court’s Commerce clause rulings helped unite the nation, but as the history of mass incarceration shows, it has helped create a nation within a nation too, one locked up and discriminated against for life.