American Exceptionalism And Political Violence

Adam Shatz offers some interesting thoughts on dreaming of political violence in the Age of Trump-Bannon:

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.

Mass Incarceration And The ‘Overfederalization’ Of Crime

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.

 

Angela Davis On Reparation, Reconciliation, And Prison Abolition

In Are Prisons Obsolete? (Seven Stories Press, New York, 2003, pp. 106) Angela Davis writes:

It is true that if we focus myopically on the existing system–and perhaps this is the problem that leads to the assumption that imprisonment is the only alternative to death–it is very hard to imagine a structurally similar system capable of handling such a vast population of lawbreakers. If, however, we shift our attention from the prison, perceived as an isolated institution, to the set of relationships that comprise the prison industrial complex, it may be easier to think about alternatives. In other words, a more complicated framework may yield more options than if we simply attempt to discover a single substitute for the prison system. The first step, then, would be to let go of the desire to discover one single alternative system of punishment that would occupy the same footprint as the prison system.

There are several, by now familiar, components to such reform then. Among others: decriminalizing some activities currently deemed illegal (ending the ‘War on Drugs’ would be an exceedingly good start); reviewing and revising sentencing guidelines (and investigating racial disparities in sentencing); increasing oversight and monitoring of penal facilities to diminish abuses like assault and rape within its confines; restoring the rehabilitative and reformatory capacities of prisons by facilitating the education of inmates; etc.

Yet others call for more radical reconceptualization in the direction of “a justice system based on reparation and reconciliation rather than retribution and vengeance.” In the reparative dimension Davis cites the work of the Dutch criminologist Herman Bianchi whose work on restorative justice includes suggestions that “crime needs to be defined in terms of tort” i.e., turning it into an offence against a person rather than the state, and thus replacing imprisonment with other impositions that would attempt to make good the harm done to the victim. In the dimension of reconciliation, Davis recounts the powerful and moving story of Amy Biehl, who was murdered by young South African men in Capetown in 1993. (Biehl’s killers apologized to her parents during the review of their amnesty petition to the Truth and Reconciliation Commission; later, her family reconciled with two of the killers–Easy Nofemela and Ntoboko Peni–and even employed them in administrative positions in their memorial Amy Biehl Foundation.)

Implicit in such discussion of reform are, of course, a set of questions pertaining to punishment, revisiting which is an essential step to this process: Why does a social group punish? How does it select those it punishes? What punishment is suitable and appropriate for a particular crime? It is in exploring the space of possible answers to these questions that a society’s most fundamental presumptions about punishment, morality, and justice will be made visible; and it is in exploring alternative answers to the ones currently given that more creative opportunities for reform will present themselves. These opportunities to explore and evaluate alternatives will only be possible, of course, if those who intend to reform heed Peter Biehl’s words, that “sometimes it pays to shut up and listen to what other people have to say, to ask: ‘Why do these terrible things happen? ‘ instead of simply reacting.”

Hating On The Phrase ‘All Lawyered Up’

You’ve heard it in police procedurals on the television and the big screen. I know I heard it in The Killing and The Wire. A couple of weary beat cops or detectives, battling crime on the streets, fighting the noble War on Drugs perhaps, keeping us law-abiding citizens safe from the depredations of the big, bad, mostly black criminals out there, grimly acknowledge that they cannot make a move against a suspect because he is ‘all lawyered up.’ (The Wire threw in the offensive stereotype of the sleazy Jewish lawyer defending criminals for good measure; as noted elsewhere briefly, that show overreaches at some points.)  He has legal counsel; he won’t talk; he won’t confess; he cannot be interrogated in the way the cops would like; he has withdrawn into a safe space, protected by a mere ‘technicality’ called ‘due process.’ A collective groan goes up from the audience: goddamn criminals and their lawyers, artful dodgers both, have slipped loose once again of the restraining strong arm of the law. If only those weasel lawyers would get out of the way, the police, prosecutors, and judges and juries could get on with the business of sending the most decidedly guilty to jail. The ends justify the means, right?

In a nation suffering from a mass incarceration crisis, which arrests twelve million of its citizens every year (defended by fifteen thousand public defenders), where police-induced false and coerced confessions are among the leading cases of wrongful convictions (including homicide cases), whose Supreme Court has systematically eviscerated the rights of criminal defendants in every domain of criminal procedure ranging from initial arrest to admissible evidence to jury instructions, where plea bargains result in innocents serving jail time for crimes they did not commit, the phrase ‘all lawyered up’ must rank as one of its most bizarre cultural productions.

It contributes to, and is part of, a cultural and political state of affairs whereby most Americans imagine that the law is too easy on crime and criminals; that the rich, powerful crook capable of hiring a $500-an-hour defense lawyer is the average arrestee; that the law’s protection of those detained or arrested by the police is a cumbersome obstacle to be bypassed or evaded. It contributes to the buildup of a groundswell of anger and frustration that all too often results in an urge to ‘throw the book’ at defendants, to harsher sentencing regimes, to a vindictive and retributive philosophy of punishment. Many folks possessed by such attitudes do not just serve on juries; they also serve as judges.

The American mass incarceration crisis has many components to it; it is enabled by many systems and agents. Among them is a cultural industry that specializes in keeping us scared and angry and hostile to the rights of our fellow citizens; the police are the thin blue line, restrained and helpless, unable to protect us because the forces of obfuscation and bureaucracy, law and lawyers, waving antiquated scrolls marked ‘Constitution’ and ‘Criminal Procedure’ will only hinder and obstruct the work of angels.

What a crock.

The FBI, Online Brokerages, And The Hiring Of ‘Potheads’

This almost-two-years-old story about the FBI’s claim that it could not find hackers–AKA ‘cybersecurity experts’–to hire because they smoke marijuana (and thus would fail their pre-employment drug tests) reminds me of a story from the days of the Internet gold rush, as demand for programmers, system administrators, and the like meant the instant hiring and satisfaction of salary requests with little regard for the background of the applicant other than their technical credentials.

The background to this story, as described in a previous post, is as follows:

As the summer of 1997 ended, I found myself, within the confines of New York City, a nomad. A break-up with my girlfriend meant I had to find new accommodations, and it had resulted in my moving thrice in three months. Finally I settled on the Lower East Side, renting a room in an apartment still under construction. I was broke; the moving had cost me; I had lost apartment deposits and spent too much money eating out, drinking beer, whiling away my time in bars playing pool. My meager summer employment hadn’t kept pace with my reckless expenditures and I found myself skimping, saving, borrowing money from friends, just to get by and pay rent. Even more problematically, my doctoral oral examinations awaited; I had an ambitious reading list–in philosophy of language, logic, and science–to get through.

As the fall semester began, I found myself caught, willy-nilly, in a form of monastic discipline. I had wasted enough time over the summer; I had to buckle down now. I had two section of Introductory Philosophy to teach, a long list of journal articles to get through, and very little money to spend. So I did what all abstainers do: I enforced a routine. I tried to wake up at the same time everyday, avoided my old haunts, and kept my nose to the wheel.

Well, it worked. I passed my oral exams (I was told I had earned ‘a distinction.’) But I was still broke. I needed work, and would have to take a semester–the coming spring of 1998–off from graduate school. So, I typed up a CV, detailed my previous experience as a C programmer and a UNIX system administrator, and faxed it to a dozen or so head-hunters in New York City. By the end of the day, I had received several call-backs. The next morning, I spoke to one of the agencies, and was directed to an interview with an online brokerage for the position of a UNIX system administrator (to take care of their battery of SUN servers that powered their website.) I interviewed, made my salary demands known, and waited for a call. It soon came, informing me I was hired. But I had to take a drug test first.

I had smoked pot several times over the past summer, but from September onward, I had abstained. You see, folks who smoke marijuana can make reasoned decisions about whether they think indulgence in it may interfere with personal and professional projects of importance. I wanted to concentrate on my teaching and exam preparation; simple abstinence seemed like a good way to facilitate that process.  And now, it seemed my abstinence would also help me pass the drug test my employer wanted me to undertake.

There was one problem though: the drug test was not the usual ‘piss-in-a-bottle’ test; instead it tested hair samples. I found this out on the day I went for the test. Surprised at not being handed a bottle, I dutifully raised my arms for clippings to be taken from my armpits. This did not bode well, for I had learned that traces of marijuana can be found in hair samples for months longer than in urine samples.  A day later, I received a phone call from the Human Resources Department. The conversation went as follows:

Administrative Lady: Mr. Chopra, we want to let you know that you tested positive for marijuana in your drug test.

Me: Oh, really?

Administrative Lady: We would like you to know that at XXX, we have a drug-free workplace.

Me: Uh-huh

Administrative Lady: Can you please come in as soon as possible to fill out your remaining forms?

Me: Sure.

And that was it. I had failed the drug test, but I was still hired. I was a UNIX system administrator; I ‘knew’ Solaris; I was in a possession of a ‘rare’ skill. What were they going to do? Go find another system administrator, back into the madness of trying to find someone qualified, in competition with other brokerages and Wall Street employers? Fat chance. I was in.

Six months later, I quit. I had saved enough money to float my graduate school boat for a while. And I continued to abstain from pot till the day I defended my doctoral thesis, on January 6, 2000. Then, I celebrated.

Cancer, Medical Marijuana, And A Personal Account

This page at the website of the National Cancer Institute, which describes some of the medicinal effects of cannabis and cannabinoids in cancer treatment regimes serves two salutary purposes for me today.

First, it confirms for me, yet again, that opposition to the War on Drugs and advocacy for the legalization of marijuana are A Good Thing[tm]. Indeed, knowing what we know about the War on Drugs and its implication in the mass incarceration monstrosity that stalks American life, opposition to the legalization of marijuana marks you as a, how you say, racist tool.

Second, in a kinder and gentler dimension, it reminds me of a great interaction with my mother three weeks before she passed away from a metastasized breast cancer (she had been in remission for four years before it returned.) On hearing from my brother that matters were not looking good for her as far as her treatment was concerned and that the ‘terminal stage’ was possibly around the corner, I had flown back from the US to the Indian Air Force station in Pune, India, where she was receiving treatment. (More precisely, she was being treated at the nearby Military  Hospital while staying with my brother on the air force base.) One day,  at home, between treatments, I was lying next to her on the bed she was resting on and chatting about sundry topics. At one point, as my mother described some of the pain and nausea that were now her lot, both before and after her chemotherapy treatments, I said to her, “You know mom, marijuana is supposed to be really helpful with that sort of thing. It reduces pain and helps combat nausea too.” My mother looked at me and said, “Have you tried it?” I replied, “Yeah mom, I’ve smoked it a few times.” She then leaned over, poked me in the ribs, and said, with a bit of a twinkle in her eyes, “Hey, we should go to that Osho Ashram [the central ‘offices’ of the organization affiliated with the Indian mystic and teacher Osho, which were located in Pune] and pick up some of that charas [hashish] they are always smoking.” We both collapsed in a fit of giggles. Honestly, if I had had the time, I would have scored some for her. In edible form, baked into fritters and consumed with tea, she would probably have been able to enjoy a great snack, and get some relief from her suffering too.

Meanwhile, medical marijuana has become legal in New York state, but unfortunately, it has been introduced with so many restrictions and bureaucratic hurdles that a) many sufferers from uncovered ailments will continue to not find relief and b) the state government will enable its own self-fulfilling prophecy that there is not enough demand for it. The folks in the New York state administration who have dreamed up this scheme stand indicted of the same charge I made above against those who oppose the legalization of marijuana with the additional knock of being indifferent to the sufferings of the sick.

Mass Incarceration And Teaching Philosophy Of Law

This coming spring semester, as in the just-concluded fall semester, I will be teaching Philosophy of Law. As I get down to thinking about my syllabus, one imperative seems overriding: I must ‘do more’ on mass incarceration (and related topics like the theory of punishment and the death penalty.) No topic seems more important, pressing, and urgent in today’s United States. In the face of the brutal particulars of mass incarceration (and the racism and War on Drugs that animate and sustain it), the highly theoretical particulars of the traditional debates in the philosophy of law–the nature of law according to natural law and positivist theories, legal reasoning, the interpretation of legal texts–seem curiously context-free, unanchored to empirical particulars pertaining to the lives of actual legal subjects. (To be sure, legal realist, critical legal studies, critical race, and feminist legal theories do animate and make concrete these discussions considerably; they also inject a much-needed dose of historical and political perspective.)

With these considerations in mind, a tentative outline for the upcoming semester’s syllabus suggests itself to me: begin with Lon Fuller‘s The Case of the Speluncean Explorers, using it to animate–or as my friend Cathy Kemp likes to say, ‘ignite’–discussions on natural law, positivism, and statutory interpretation; move on to Justice Oliver Wendell Holmes‘ classic The Path of the Law; follow this up with H. L. A. Hart‘s The Concept of Law (almost certainly not in its entirety), and then, switching gears, move to Michelle Alexander‘s The New Jim Crow and  Albert CamusReflections on the Guillotine. (As noted, this is an outline; I will supplement this basic structure with some selected case studies that will help illustrate the central issues at play in reasoning by analogy and precedent, and the dominant theories of constitutional interpretation.)

Needless to say, this is a pretty idiosyncratic syllabus, and I might be accused by many philosophers of law of leaving uncovered a host of topics that have traditionally been of interest to that demographic: rights, justice and equality, responsibility, legal procedure and evidence, torts, property, contracts etc. My syllabus shows a clear bias toward public law and ignores private law altogether; there is no critical legal studies; some traditional philosophers will be appalled to see Camus in this reading list; and so on. (The alert reader will have noticed however, that the first four topics on that laundry list cannot but occur, implicitly or explicitly, in a discussion of mass incarceration like the one undertaken in The New Jim Crow.)

I remain resolutely unapologetic about these omissions though. My syllabus will strike a reasonable balance between the ‘theoretical’ and the ‘applied’, and more to the point, it will bring into my classroom, that moral, political, and legal atrocity–mass incarceration–that is not only America’s greatest modern embarrassment but also, in some ways, the most relevant topic of all as far as my students’ lives are concerned.  I’d consider this the strongest reason of all in favor of its displacement of traditional material.