People v. State

So in the past week I’ve spent as much time “blogging” on Twitter as I ever have in a week “really” blogging here. That’s not necessarily a good thing, and Twitter has obvious limitations. This post is intended as a fuller response to some tweeters whom some of my tweets riled up.

Anarchy simply means “without rulers.” A society can have rules without rulers (and I suppose can have laws without lawyers). In fact, rulers are anathema to the Rule of Law. Anarchy also arguably means “without leaders,” and therefore I think favors, all others things being equal, the balancing and distribution and decentralization of political and economic power. (Ideally, no one “leads” others in political or economic power. Such “leadership” is a historically evident threat to the freedom of the led.)

There is no law other than natural law. There is no law other than Justice. There is no law other than the moral law of Right and Wrong, which applies equally to all, whether they purport to represent the People or the State or not, whether they join with a thousand or a million others to do some act or act alone. Anarchism is the rejection of the Divine Right of Kings. Even those who think we should obey the “laws” dictated by the U.S. government think we should do so because it is Right to do so. (Those who think this are of course Wrong, but this is what they think.)

Justice is the absence of crime. What is crime? Crime is aggression. It is the use of force and/or fraud to violate another’s rights. Now, force (e.g., imprisonment) and even fraud (e.g., income tax evasion) may be justly used to defend against or remedy past or imminent violations of rights. But it is important to remember that such uses of force or fraud only become arguably necessary because of force or fraud. It is fighting fire with fire. Force and fraud are inherently suspect. I would almost say they are “intrinsically evil,” except the Catholic Church uses that phrase to describe acts which are never justified. A perfectly Just world is a world without force or fraud of any kind. Therefore, the use of force (I will henceforth use “force” to stand for both force and fraud) should be reduced to the absolutely necessary. If “government” is a “necessary evil,” it should be limited to the truly necessary. A strong presumption of innocence and in favor of liberty should be its singular guiding principle. Even justified force has much of the ugliness of crime. Liberty is the absence of force.

One obvious way in which a “government” (which I define as simply a group of people who join forces to enforce rules) should limit itself to the truly necessary is to not fraudulently pretend to represent or speak for anyone other than the individuals who actually and explicitly and voluntarily make it up in the here and now. Among other things, this promotes transparency, accountability, and responsibility. Such a “government,” composed entirely of those who unanimously unite in support of the enforcement of this, that, or the other, will necessarily be quite small (probably no more than township-sized), although in the normal course of things it would be likely to confederate with other such “governments.”

An important thing to note about such a “government” is that, while it presupposes the consent of the governing, it doesn’t necessarily suppose the consent of the governed. In fact, if one “consents,” one isn’t “governed.” The very purpose of a government is to exert necessary force and compulsion, to secure rights. One can imagine a member of a community who unites with his neighbors in support of building a road and who the next day is discovered to have stolen money, and who will reap whatever consequences the rest of the community imposes whether he consents or not. As a practical matter, of course, such a government is likely to be more institutional and less ad hoc than this example suggests. But even if such a “government” adopts by-laws or customs whereby a vote of 51% or 90% in favor will decide the matter, it always remains for the minority to decide whether to “secede” and for the majority to decide whether to nevertheless attempt to impose their will on any who secede.

Do those who constitute such a “government,” no matter how small and how ad hoc, thus set themselves up as “rulers,” and thereby disturb Anarchy? After all, a lynch mob is a voluntary and unanimous association. A lynch mob indeed sets themselves up as rulers, as judge, jury, and executioner, and is therefore not Anarchic. The anarchic principle which led to the dissolution of government into small, unanimous “governments” — the presumption against force and violence, and against impressing the unwilling into a government — is diametrically opposed to the spirit animating a lynch mob. That is the fundamental Rule of a free, i.e. just, society. It is, again, a Rule which stands apart, and in fact in opposition to, would-be Rulers. It needs no Rulers to enact it. This Rule must pervade society. It will be the cause of the dissolution of governments into voluntary associations and at the same time the surest safeguard against lynch mobs. The fact that two or three or a hundred or a million are united in a common purpose does not of course justify their actions. The fifty who would join themselves in a lynch mob will find a thousand to stand united against them. The requirement of unanimity stands as a brake against violence, as the procedural embodiment of the presumption of innocence.

Finally, I should acknowledge that part of the reason I find it important to emphasize that governments do not derive their just powers from the consent of the governed, but rather from the consent of the governing and from Justice, is that I think that the most natural and just way for governments in Anarchy to secure land rights would be to enact and enforce the Single Tax on the unimproved value of land.

I wrote my first tweet way back on December 31, 2008, but only lately have I really gotten the point and into it. It’s pretty “fun,” and frankly pretty easy, relative to blogging anyway. I’ve added a button on the side bar inviting you to “follow me” @johnkindley on Twitter. So that’s where I’ve been the last couple weeks. Another thing I’ve added to the side bar is a bitcoin donation box. Bitcoins are another thing I’ve gotten mildly interested in here lately, even going so far as to obtain my very own handful of bitcoins. Now, I understand that you probably don’t have any bitcoins, and probably don’t even know what they are. The donation box therefore is conceived of as more of a curiosity and an advertisement. (But seriously, if you’ve got an extra one lying around, send it my way.) Here are a couple things you can do with bitcoins:

Silk Road

Seals with Clubs

Check out these two posts by Wendy McElroy, a well-known anarchist with whom I usually agree, and especially the comments, among which are some by me, and especially the comments by Dan Sullivan:

What is Georgism? Followed by a Refutation. PART I

The Single Tax, A Refutation

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Thanks for your email. As you may have guessed from my blog, if I had it to do over again I don’t think I would have gone to law school. Even now I am actively looking at alternatives that would allow me to chuck the practice of law entirely. I was not nearly as libertarian as I am now when I began my legal career. My firsthand experience of the legal system and the legal profession as it actually exists made me the anarchist I am. So my best advice is for you to really make sure you want to be a lawyer before you go to law school. Or if you start law school and change your mind after the first semester or the first year don’t be afraid to quit. Frankly I can confirm what it appears you already suspect: I doubt that the goals you speak of are achievable, and if anything are less achievable from inside the system, and the desire to achieve them isn’t a very good reason to go to law school. As Albert Jay Nock said, it is enough to know and speak the truth, and as Thoreau said to minimize one’s cooperation with evil, and you don’t have to be a lawyer to do that. In fact, it’s difficult to be a practicing lawyer without feeling like you are cooperating with evil and participating in an evil system. Look at Lysander Spooner. He is in my opinion the greatest lawyer who ever lived, and yet he really never practiced much law. I try to do my best to defend and help people within the confines of the system. It’s nothing glamorous, and often heartbreaking.

Sent from my iPhone

H/T Steve Martin

In my last post I noted that after a lifetime of calling himself an anarchist Murray Bookchin a few years before his death rejected the label in favor of what he called “Communalism,” in part because he understood anarchism to insist on “consensus” rather than majority rule as the only legitimate basis for governance, and he believed such an insistence if carried out in practice would lead to the destruction of society itself. I also noted, however, that in an earlier essay Bookchin expressed his belief that consensus was achievable in small groups of people who were familiar with each other, and that consensus if achievable was obviously preferable to majority rule as a basis of governance.

A few observations: It always remains true that natural justice is necessarily the only law. All the black robes and star-spangled banners sewed by all the seamstresses in the world can’t change that. Put John Brown in a Hundred with 99 slave-owners and John Brown will still be right and all the slave-owners wrong. The only value of democracy, whether based on consensus or based on majority rule, is in its relative likelihood of enacting justice.

Contra the later Bookchin, consensus doesn’t put in the hands of any one individual in a society a veto power over whatever the rest of the society might want to do. If 80 want to take some course of action and 20 don’t, the 80 may of course still do what they like so long as they don’t try to compel the 20 to do likewise. And indeed, there is the heart of the matter, for the proper business of government is compulsion, by force if necessary. And therefore government necessarily precludes complete unanimity as a prerequisite for the exercise of its proper function. Government by “consensus” can’t require so much. Certainly the man caught in a crime, for example, will not ordinarily “consent” to the punishment the rest of society might visit upon him. Consensus therefore doesn’t entail universal consent.

It requires something close, however. There is no reason in the world that the vote of 51% should be deemed sufficient to justify forcibly compelling the other 49%. The ancient forms listed in the title of this post point the way to a government by consensus. A tithing was ten men, generally neighbors if not kin. A hundred was 10 tithings, or 100 men. (Incidentally, a hide was land sufficient for one family, and provided a basis for land value taxation.) Certainly a group of 10 would have been small enough to make consensus regularly achievable. One imagines that, given that the very nature and purpose of government is to compel when necessary, 9 out of 10 would have counted for all practical purposes as a consensus, as would by extension 90 out of a 100 in the Hundred.

However these tithings and Hundreds might choose to operate, even if they adopted as part of their constitution and by laws some form of majority rule, their real value would be in providing a forum for what Bookchin called “face-to-face democracy,” bottom-up confederal governance, and relative ease of exit (i.e. voting with one’s feet).

in a 2002 essay he called The Communalist Project:

By the same token, anarchism—which, I believe, represents in its authentic form a highly individualistic outlook that fosters a radically unfettered lifestyle, often as a substitute for mass action—is far better suited to articulate a Proudhonian single-family peasant and craft world than a modern urban and industrial environment. I myself once used this political label, but further thought has obliged me to conclude that, its often-refreshing aphorisms and insights notwithstanding, it is simply not a social theory. Its foremost theorists celebrate its seeming openness to eclecticism and the liberatory effects of “paradox” or even “contradiction,” to use Proudhonian hyperbole. Accordingly, and without prejudice to the earnestness of many anarchistic practices, a case can made that many of the ideas of social and economic reconstruction that in the past have been advanced in the name of “anarchy” were often drawn from Marxism (including my own concept of “post-scarcity,” which understandably infuriated many anarchists who read my essays on the subject). Regrettably, the use of socialistic terms has often prevented anarchists from telling us or even understanding clearly what they are: individualists whose concepts of autonomy originate in a strong commitment to personal liberty rather than to social freedom, or socialists committed to a structured, institutionalized, and responsible form of social organization. Anarchism’s idea of self-regulation (auto nomos) led to a radical celebration of Nietzsche’s all-absorbing will. Indeed the history of this “ideology” is peppered with idiosyncratic acts of defiance that verge on the eccentric, which not surprisingly have attracted many young people and aesthetes.

. . .

As for anarchism, Bakunin expressed the typical view of its adherents in 1871 when he wrote that the new social order could be created “only through the development and organization of the nonpolitical or antipolitical social power of the working class in city and country,” thereby rejecting with characteristic inconsistency the very municipal politics which he sanctioned in Italy around the same year. Accordingly, anarchists have long regarded every government as a state and condemned it accordingly—a view that is a recipe for the elimination of any organized social life whatever. While the state is the instrument by which an oppressive and exploitative class regulates and coercively controls the behavior of an exploited class by a ruling class, a government—or better still, a polity—is an ensemble of institutions designed to deal with the problems of consociational life in an orderly and hopefully fair manner. Every institutionalized association that constitutes a system for handling public affairs—with or without the presence of a state—is necessarily a government. By contrast, every state, although necessarily a form of government, is a force for class repression and control. Annoying as it must seem to Marxists and anarchist alike, the cry for a constitution, for a responsible and a responsive government, and even for law or nomos has been clearly articulated—and committed to print!—by the oppressed for centuries against the capricious rule exercised by monarchs, nobles, and bureaucrats. The libertarian opposition to law, not to speak of government as such, has been as silly as the image of a snake swallowing its tail. What remains in the end is nothing but a retinal afterimage that has no existential reality.

. . .

The choice of the term Communalism to encompass the philosophical, historical, political, and organizational components of a socialism for the twenty-first century has not been a flippant one. The word originated in the Paris Commune of 1871, when the armed people of the French capital raised barricades not only to defend the city council of Paris and its administrative substructures but also to create a nationwide confederation of cities and towns to replace the republican nation-state. Communalism as an ideology is not sullied by the individualism and the often explicit antirationalism of anarchism; nor does it carry the historical burden of Marxism’s authoritarianism as embodied in Bolshevism. It does not focus on the factory as its principal social arena or on the industrial proletariat as its main historical agent; and it does not reduce the free community of the future to a fanciful medieval village. Its most important goal is clearly spelled out in a conventional dictionary definition: Communalism, according to The American Heritage Dictionary of the English Language, is ”a theory or system of government in which virtually autonomous local communities are loosely bound in a federation.”

. . .

Finally, Communalism, in contrast to anarchism, decidedly calls for decision-making by majority voting as the only equitable way for a large number of people to make decisions. Authentic anarchists claim that this principle—the “rule” of the minority by the majority—is authoritarian and propose instead to make decisions by consensus. Consensus, in which single individuals can veto majority decisions, threatens to abolish society as such. A free society is not one in which its members, like Homer’s lotus-eaters, live in a state of bliss without memory, temptation, or knowledge. Like it or not, humanity has eaten of the fruit of knowledge, and its memories are laden with history and experience. In a lived mode of freedom—contrary to mere café chatter—the rights of minorities to express their dissenting views will always be protected as fully as the rights of majorities. Any abridgements of those rights would be instantly corrected by the community—hopefully gently, but if unavoidable, forcefully—lest social life collapse into sheer chaos. Indeed, the views of a minority would be treasured as potential source of new insights and nascent truths that, if abridged, would deny society the sources of creativity and developmental advances—for new ideas generally emerge from inspired minorities that gradually gain the centrality they deserve at a given time and place—until, again, they too are challenged as the conventional wisdom of a period that is beginning to pass away and requires new (minority) views to replace frozen orthodoxies.

But compare Bookchin’s earlier essay titled What is Communalism? The Democratic Dimension of Anarchism, written when he still called himself an anarchist:

How, then, would society make dynamic collective decisions about public affairs, aside from mere individual contracts? The only collective alternative to majority voting as a means of decision-making that is commonly presented is the practice of consensus. Indeed, consensus has even been mystified by avowed "anarcho-primitivists," who consider Ice Age and contemporary "primitive" or "primal" peoples to constitute the apogee of human social and psychic attainment. I do not deny that consensus may be an appropriate form of decision-making in small groups of people who are thoroughly familiar with one another. But to examine consensus in practical terms, my own experience has shown me that when larger groups try to make decisions by consensus, it usually obliges them to arrive at the lowest common intellectual denominator in their decision-making: the least controversial or even the most mediocre decision that a sizable assembly of people can attain is adopted -- precisely because everyone must agree with it or else withdraw from voting on that issue. More disturbingly, I have found that it permits an insidious authoritarianism and gross manipulations -- even when used in the name of autonomy or freedom.

. . .

If consensus could be achieved without compulsion of dissenters, a process that is feasible in small groups, who could possibly oppose it as a decision-making process? But to reduce a libertarian ideal to the unconditional right of a minority -- let alone a "minority of one" -- to abort a decision by a "collection of individuals" is to stifle the dialectic of ideas that thrives on opposition, confrontation and, yes, decisions with which everyone need not agree and should not agree, lest society become an ideological cemetery. Which is not to deny dissenters every opportunity to reverse majority decisions by unimpaired discussion and advocacy.

. . .

One of the most remarkable things about the collection of short stories by Ferdinand Schirach entitled Crime is that the legal system he describes (i.e. Germany’s) is far more humane and just than the system we’re familiar with here in America. His abrupt claim therefore in the very last sentence of the Afterword that the differences between the two systems are “insignificant,” after everything that’s gone before, strikes the reader — or at least the informed American reader — as intentionally and enigmatically untrue.

Two significant differences: In Germany, the prosecutor is supposed to remain “neutral” and is apparently not even supposed to take a position at trial on the defendant’s guilt or innocence, leaving that determination to the judges and jurors. Another significant difference is that in Germany there is no such thing as “plea bargaining,” which we here in America imagine is indispensable.

Two of my favorite stories were “Summertime” and “Self-Defense.” I remain befuddled by the last paragraph of the former story, which suggests that the criminal defense attorney pulled a fast one on the prosecutor and the court and by that legerdemain got his more-than-likely guilty client acquitted of murder. I still fail to see the flaw in the argument that persuaded the prosecutor and the court, and would be grateful to any reader who would be so kind as to cure my blindness.

“Self-Defense” begins with a heart-warming account of two neo-Nazi thugs looking to have a little ultra-violent fun at the expense of a mild mannered bespectacled middle-aged man on a subway platform getting their comeuppance when the man goes all Jason Bourne on their asses and fatally dispatches them to the netherworld with uncommon skill. Turns out the middle aged man is very likely a professional hit man for very wealthy and connected people. The criminal defense attorney of course gets this man acquitted of all charges and released back into society. The story ends with the criminal defense attorney giving rare expression to feelings of disgust (feelings which weren’t expressed at the conclusion of “Summertime,” for example), although it’s not clear whether that disgust was solely in reference to the man himself or whether it was directed to the attorney’s own role in securing his release. If the latter, it might conceivably be explained by the observation that there is dangerous and there is dangerous. A man who has committed a murder and has thereby demonstrated that he is capable of murder is undoubtedly more dangerous than your average man, but a man whose very profession is murder will undoubtedly commit more murders. This cannot sit well with a man whose profession is to defend people, even if his job may call upon him to try to set a professional murderer free.

One little gripe with the book: The author in his Preface makes it sound like these stories are true crime stories drawn from his own criminal defense practice, and this impression has found its way into more than one review. While I don’t doubt Schirach found inspiration in real life cases, his stories are obviously fiction.

Here is a pivotal scene from The Proposition.

Here is the chapter from George Borrow’s Lavengro that the two doomed men in that scene quote. The title of this post likewise comes from that chapter.

I have a few further thoughts on The Proposition. In an earlier post I implied that I approved of Captain Stanley’s “proposition,” but that’s not quite right. For one, Stanley himself tells Charlie Burns not only that his older brother Arthur must be “stopped” but that the reason he wants Charlie to kill Arthur, rather than let bounty hunters “stop” him, is to “hurt” Arthur, to show him that he is a “man like other men.” For another, there is an interesting and surely intentional juxtaposition between two scenes in which two very different men remind Stanley that he is not the “judge and jury.” The first man to tell him this is Charlie, after Stanley tells him he intends to have his younger brother Mikey hanged on Christmas Day, unless Charlie kills Arthur. The second man to tell him this is Stanley’s superior, after Stanley tells him that he doesn’t believe Mikey is responsible for the monstrous crimes of his brother Arthur. For a third, Stanley is determined to defend Mikey by any means necessary from the townspeople who intend to flog him, until his own wife joins the townspeople and asks him what if the pregnant woman Arthur had raped and murdered had been her. Then he caves, and permits the fatal flogging to go forward. (Notably, the brief “argument” against the flogging he makes to his wife is not based on Mikey’s innocence but on his prescient apprehension that the flogging will be their “death sentence.”)

There is no room in a just society for “rewarding” a defendant for “accepting responsibility” for his “crimes” at the point of a gun, whether that “acceptance of responsibility” manifests itself by an expression of remorse / coerced “confession” at a guilty plea hearing or by snitching on / betraying one’s partners in “crime.”

Obviously, we do not live in a just society.

The scene from The Proposition I’ve linked to above suggests Charlie should have “stopped” Arthur long before the events portrayed in the movie began. If he had done so, Mikey wouldn’t have been flogged to death. At the end of the movie, Charlie accepts responsibility.

He evidently wouldn’t be a lawyer, as suggested by the fact that he wasn’t one, although he did dabble successfully in pro bono capital defense. Rather, despite family connections that presumably would have allowed him to be anything he wanted to be, and despite his profound grasp of the law, he chose to earn his daily bread by carpentry.

Tucker Max wouldn’t have been a lawyer either.

Nor would Tony Serra.

The Center for a Stateless Society announced yesterday that it has cut all ties with a former staff member who turned informant for the State to save her own skin from drug charges.

I hope and believe that if I ever found myself in a similar situation I would have the courage to die like a lion rather than live like a dog, as Tony Serra so passionately put it. But it’s important to remember that the State, which tortures people into betraying their friends, is the real monster here.

I’m cognizant of the apparent dissonance between this view and my implied approval of the fictional “proposition” I reviewed in my last post. I’m confident those who’ve seen that movie will appreciate the distinction.

I’m reminded of a post Jeff Gamso wrote a while ago in which he condemned as the lowest of the low a criminal defense lawyer who, by wearing a wire, had betrayed a client who was involved in a drug ring. I wholeheartedly seconded the condemnation in a comment, but noted, contrarian that I am, that a criminal defense lawyer might have a real ethical dilemma on his hands if he learns that his client is actively involved not in a drug ring but in a sex slavery ring. Another commenter suggested that if that’s what I thought I had no business representing people accused of crimes. But I think the actual Rules of Professional Conduct support me on that.

A comment yesterday from an Australian who describes himself as “something a philosophical anarchist who practices criminal law (defence)” prompted me to reply:

I happened to watch last night The Proposition, which some critics have called the Australian Unforgiven. It’s now one of my favorite movies. Both of the main characters, one a law man, the other a criminal, are highly admirable in their own way. The movie speaks to the purpose of the criminal justice system being about prevention rather than vengeance. Have you seen it?

You can thank me after you’ve seen the movie, which speaks to a lot more than the purpose of the criminal justice system, which is currently available for free on Xfinity-On-Demand, and which IMHO is even better than Unforgiven.

After writing the above, I came across Roger Ebert’s review. He gives the movie 4 out of 4 stars and makes a comparison I’d thought of myself, although it seems to me Ebert gets some of the details wrong:

Have you read Blood Meridian, the novel by Cormac McCarthy? This movie comes close to realizing the vision of that dread and despairing story. The critic Harold Bloom believes no other living American novelist has written a book as strong and compares it with Faulkner and Melville, but confesses his first two attempts to read it failed, “because I flinched from the overwhelming carnage.”

SPOILER ALERT! (Don’t read until you’ve seen the movie.) At the end of the movie, Charlie’s brother Mikey is dead, from the wounds inflicted on him by a vicious flogging. Charlie thus has every reason to believe Captain Stanley had horribly welched on their “deal.” (Although Charlie too had welched on their deal, by enlisting his monstrous brother Arthur to bust Mikey out of jail, which resulted in the horrible deaths of Mikey’s jailors.) In fact, although Charlie would have no way of knowing this, Stanley had tried to prevent the flogging. On the other hand, the flogging went forward because of the intercession of Stanley’s wife, although it’s clearly apparent she has a major “change of heart” as she watches the flogging proceed. Mikey’s culpability, and for that matter Charlie’s, for the awful crimes of their older brother Arthur is not clear, although one gathers they were complicit in those crimes and that the hanging Stanley had promised Charlie that Mikey would incur if Charlie didn’t kill Arthur wouldn’t have been “unjust.” At the end of the movie, both Stanley and his wife are at the “mercy” of Arthur. She is about to be raped and both are about to be killed. When Stanley had made his “proposition” to Charlie at the beginning of the movie, and struck Mikey to prove his earnestness, Charlie promised Stanley that if he struck Mikey again Charlie would kill Stanley, a threat that seemed empty and ridiculous at the time. But at the end of the movie, Charlie kills his brother Arthur, telling him “No more,” thereby saving both Stanley and his wife, and thereby keeping up his end of the “deal,” even though Mikey was dead, and even though he had every reason to believe Stanley had killed Mikey (and even though Stanley’s wife was in fact the cause of Mikey’s death).

Although Ebert’s comparison to Blood Meridian is apt, this movie, to my mind, is not quite the “dread and despairing story” that one is.

AFTERTHOUGHT: Rereading the above impresses upon me that I have no future as a movie reviewer. I followed my spoiler alert with a mere statement of facts that someone who’d seen the movie would already be familiar with. Although reducing this movie to a moral doesn’t do it justice, the moral I find in these fictional facts is that vengeance destroys the vengeful, and that if we must stop a man bent on evil we must nevertheless acknowledge him as our brother.

May they run over a cliff and drown.

IOZ is right again, as usual.

“Indiana’s newest Supreme Court justice says the court and its justices are ‘fallible’ and that public institutions should acknowledge that they won’t always get things right. . . . The 50-year-old Massa was appointed to the court by Gov. Mitch Daniels . . . . Massa is a former chief counsel to Gov. Mitch Daniels . . . .”

For an example of the newest justice’s “fallibility,” see here: “Massa, J., votes to grant the Petition to Transfer, concluding Appellant’s invocation of his right to counsel was ambiguous and thus his convictions on all counts should be upheld.”

From the unanimous Court of Appeals opinion that Massa would have overturned if he’d had his way:

Here, Anderson neither posed a question regarding needing an attorney as in Powell, nor expressed doubt as to whether he needed an attorney as in Davis and Taylor. To the contrary, he clearly stated, “I really want to talk to an attorney or something.” The State argues, or at the very least implies, that in order to make an unequivocal invocation of the right to counsel a defendant must “start and end” with “I want to talk to an attorney” and say nothing else. Appellee‟s Br. at 18. That would be clear and nice wouldn’t it? However, the State ignores the reality of an interrogation room, the naïveté of a defendant, and what often may be the diminished mental capacity of a defendant. Anderson was a twenty-two-year-old diagnosed schizophrenic, not a constitutional scholar. We are getting to the point in the interpretation of our constitutional law where the exceptions are swallowing the rules. We should not go further down the slippery slope the State urges and further eviscerate Miranda and an accused’s right to counsel. Anderson’s request for counsel in this case was unambiguous. . . .

AFTERTHOUGHT: I wonder if Massa’s remark about the courts’ “fallibility” might have had anything to do with this incident involving his old boss.

Fear and Loathing: Manipulation of the Liberty Movement, by Bruce Jay at the Daily Anarchist:

Is there any reason to believe the end is coming soon?

In our lifetimes, the answer is no. It’s all about time. The greatest of all empires, the Roman Empire, collapsed over many centuries, not in a few days, years, or even decades.  Most living in Rome were not aware of the decline in real-time.  How could they?

Twenty years ago, my roommate commented that we were living in the decline of the American Empire.  She was most likely right, but twenty years later the change has been practically imperceptible. In terms of economic and political freedom, nothing has really changed. The most glaring exception is the TSA. In market driven areas (e.g., technology, communication, and medicine), things have vastly improved.

Furthermore, the passing of generations adds to the loss of perspective. If you’re four years old today, going to the airport and being molested by the TSA is nothing new to your life experience and hence, you have nothing to compare. God knows how many things I have taken for granted in my lifetime (e.g., income taxes) because I’ve never known any different. Funny, we often laugh at the elderly for their ideas and experiences, yet they are true witnesses of change. Sadly, most have passed on before any of us are old enough to know the right questions to ask.

The point is you can’t plan for doomsday because the process is slow and it takes place in the form of erosion, not catastrophe.  When the demise finally occurs, it has taken so many years to complete that those who might notice have died; others are acclimated from birth and have made the necessary economic and psychological adjustments. Of course, you can leave all your gold, guns, and gas masks to your great grandchildren.

The Policeman’s Your Friend — As Long As He Can Afford to Be, by Kevin Carson at the Center for a Stateless Society:

What we’re witnessing is the reality behind that Officer Friendly mask. This is what happens when the state perceives the general population as a threat, and drops the pretense that The Policeman is Your Friend.

People in predominantly black and Hispanic inner city neighborhoods — where police hardly bother to hide the fact that they see the local population as an occupied enemy that must be cowed by superior force — have seen this ugly face for decades. But in recent months, the radical upsurge in police violence at Occupy demonstrations, combined with ubiquitous cell phone video, have introduced the naked face of power to many in the white middle class public for the first time.

Lt. Pike of the UC Davis police force, methodically directing pepper spray into the upturned faces of peaceful (and predominantly white) college students, was a revelation to many in the burbs. But while it was the first sight for many, it won’t be the last. Because this is what the state looks like when it can no longer afford to maintain the facade of democracy. All that nasty stuff that used to happen to “those other people” beyond that Thin Blue Line — “It’s Giuliani time!” — is coming soon to “people like us.”

The American state has operated in a manner, if not lawful at least “regular,” toward most white middle-class folks most of the time, because it could afford to. It showed its nasty side to racial minorities and radicals, because they were less successfully socialized into consensus reality — and nobody “who counted” would listen to them anyway. But most of the public absorbed its conditioning in a more-or-less satisfactory manner. They believed this was a “free enterprise society” in which people with great wealth mostly earned it, giant corporations got that way through superior performance, the state represented all of us rather than some “ruling class,” and if you didn’t like the law you should work for change within the system — all that Pleasantville stuff. Constitutionalism and legality’s comparatively no-muss no-fuss — but only so long as the cultural reproduction apparatus successfully manufactures consent.

Now the conditioning’s starting to wear off. A dangerously increasing number of people understand that the system’s rigged in the interest of the 1%, and folks like us are playing in a crooked game. The state and the corporate ruling class that controls it have been stunned as measures that ten years ago would have gone through without a hitch, like SOPA and ACTA, suffered unexpected losses to networked movements. The system can’t work when too many people notice the man behind the curtain.

The state’s functionaries are beginning to realize how high the stakes really are. In response, its shock troops are dropping the Officer Friendly masks. So get ready: The state, before it’s over, will be as nasty as it has to be.

A scientific revolution has generated new interest.

I’m sure this explains the lyrical change between the 1994 and the 1998 performances evident in my last post:

As I Develop The Awakening Mind I Praise The Buddha As They Shine
I Bow Before You As I Travel My Path To Join Your Ranks,
I Make My Full Time Task
For The Sake Of All Beings I Seek
The Enlighted Mind That I Know I’ll Reap
Respect To Shantideva And All The Others
Who Brought Down The Darma For Sisters And Brothers
I Give Thanks For This World As A Place To Learn
And For This Human Body That I’m Glad To Have Earned
And My Deepest Thanks To All Sentient Beings
For Without Them There Would Be No Place To Learn What I’m Seeing
There’s Nothing Here That’s Not Been Said Before
But I Put It Down Now So I’ll Be Sure
To Solidify My Own Views And I’ll Be Glad If It Helps
Anyone Else Out Too
If Others Disrespect Me Or Give Me Flack
I’ll Stop And Think Before I React =
Knowing That They’re Going Through Insecure Stages
I’ll Take The Opportunity To Exercise Patience
I’ll See It As A Chance To Help The Other Person
Nip It In The Bud Before It Can Worsen
A Change For Me To Be Strong And Sure
As I Think On The Buddhas Who Have Come Before
As I Praise And Respect The Good They’ve Done
Knowing Only Love Can Conquer In Every Situation
We Need Other People In Order To Create
The Circumstances For The Learning That We’re Here To Generate
Situations That Bring Up Our Deepest Fears
So We Can Work To Release Them Until They’re Cleared
Therefore, It Only Makes Sense
To Thank Our Enemies Despite Their Intent
The Bodhisattva Path Is One Of Power And Strength
A Strength From Within To Go The Length
Seeing Others Are As Important As Myself
I Strive For A Happiness Of Mental Wealth
With The Interconnectedness That We Share As One
Every Action That We Take Affects Everyone
So In Deciding For What A Situation Calls
There Is A Path For The Good For All
I Try To Make My Every Action For That Highest Good
With The Altruistic Wish To Achive Buddhahood
So I Pledge Here Before Everyone Who’s Listening
To Try To Make My Every Action For The Good Of All Beings
For The Rest Of My Lifetimes And Even Beyond
I Vow To Do My Best To Do No Harm
And In Times Of Doubt I Can Think On The Dharma
And The Enlightened Ones Who’ve Graduated Samsara

Eminem on the death of Adam Yauch aka MCA: “I think it’s obvious to anyone how big an influence the Beastie Boys were on me and so many others.” I suppose it’s fair to question, relative to Eminem, the authenticity and the seriousness of the three Jewish friends from NYC with rather privileged upbringings who recorded the first ever rap album to reach #1 on the Billboard pop charts. But see here, and say a prayer for Ad-Rock and Mike D too. It sounds to me like they all grew up together, and kept it real.

See also [H/T Glenn Greenwald and Charles Davis]:

ADDED: What a difference four years make. The video above is from 1998. The video below is from 1994.

ADDED: According to Wikipedia, B.E.A.S.T.I.E. is a backronym for “Beings Entering Anarchistic States Towards Internal Excellence.”

In fact, why not make it 3000 hours, and get rid of the last two years of law school, leaving in the one year of coursework that’s left more than enough of the Socratic Method to teach aspiring lawyers how to “think like lawyers”?

Of course, unlicensed “lawyers” are not currently permitted to provide legal services except under the supervision of a licensed lawyer, so we would probably need to also impose on licensed lawyers, as a price for their monopoly, a pro bono requirement to provide such supervision.

Now, throwing that amount of pro bono hours into the market for legal services would not only completely solve the problem of access to justice for the poor, it might more than solve it, and seriously distort the market, so in this connection it’s important to note that “pro bono” has traditionally included not only working for free but also working for a significantly reduced fee.

Of course, the ideal towards which this solution would be a step in the right direction is a completely free market in legal services.

“It” being Florida’s “stand your ground” law. Take one look at the questioner, Marissa Alexander, whom a jury convicted in 12 minutes, and who now faces 20 years in prison, and you may have your answer:

The local NAACP believes race may have played a role.

“There’s a double standard with stand your ground,” said Isaiah Rumlin, president of the Jacksonville Chapter of the NAACP. “The law is applied differently between African-Americans and whites who are involved in these types of cases,” he added.

Rumlin cited two shooting cases in Florida with white shooters: One had a successful stand your ground defense and the other has yet to be charged with a crime. . . .

I wonder whether Alexander was judged by a jury of her peers?

[H/T Jacob Sullum at Reason]

. . . I had meant to highlight this post by John Regan at Lawyers on Strike from a couple weeks ago:

Ineffective Lawyers And Double Standards

I have nothing to add. Great post.

Karl Hess wrote in Dear America:

On the far right, law and order means the law of the ruler and the order that serves the interest of that ruler, usually the orderliness of drone workers, submissive students, elders either totally cowed into loyalty or totally indoctrinated and trained into that loyalty.

Yesterday the ruler of America decreed:

NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, do hereby proclaim May 1, 2012, as Loyalty Day. This Loyalty Day, I call upon all the people of the United States to join in support of this national observance, whether by displaying the flag of the United States or pledging allegiance to the Republic for which it stands.

For the real history of May Day, see here.

I had really wanted to weigh in on last week’s Bleeding Heart Libertarians symposium on “Libertarianism and Land,” but believe it or not I’m still practicing law, and this past Thursday I finally sent off to a faraway court (well, a few hours away, anyhow) a major project that I’m hoping will do a client (and maybe even some other lawyers’ clients) some good, and on Friday I had a family law case set for a potentially very ugly evidentiary hearing settle at the very last minute.

But I have to say, a lot of what was written in the Symposium was either too deep or too pedantic for me, and reminded me of why I changed my mind about pursuing a doctorate in philosophy way back when. I had been looking forward in particular to the submissions of Hillel Steiner and Fred Foldvary, two leading “neo” Georgists, on the one hand, and of Kevin Carson, the genius-in-residence at the Center for a Stateless Society, on the other. I was all set to favor Steiner over Carson on the “Land Question,” but both of these two surprised me.

Steiner wrote, among other things, this:

So, cutting another long story short, the inference seems to be that, under the general rule for rights to natural resources, we should tax parents on the value of their children’s genetic endowments. Or more precisely, we should tax them on the value of the germ-line genetic information they jointly appropriate in conceiving an offspring. And this tax, like taxes on people holding rights to other natural resources, goes into the global fund, on which everyone has an equal claim. What this tax does is to effect a net transfer from those who have genetically well-endowed children to those who don’t. And those with poorly-endowed children are thereby supplied with extra resources to develop their children’s abilities and, thus, to offset their genetically-predisposed disabilities.

No thanks.

Carson, on the other hand, in his submission wrote:

Although I still favor the occupancy-and-use standard, I do so much less stridently than I once did. I believe that what the principled land rights theories have in common is more important than what separates us.

. . .

Since no particular set of land property rules can be deduced from fundamental moral axioms, they must be evaluated on utilitarian or practical grounds: i.e., the extent to which they maximize other, fundamental moral principles.

The chief normative values I believe a property rights regime should optimize are to guarantee to the greatest extent possible the ability of the owner to recoup her labor input (in the form of buildings and improvements) from the land, and to minimize the amount of overall privilege and rent extraction.

. . .

Foldvary acquitted himself quite well, and after everybody had said their piece posted this trenchant summation, thereby winning the Symposium:

Finer points aside, nobody has offered a specific and coherent and realistic more efficient and equitable alternative for public revenue than land rent or land value.

In other words, IMHO, even in a Stateless Society it would still be necessary to join with one’s neighbors to provide for, at a minimum, the common defense of land rights from barbarian hordes et al., and land rent or land value would be the most only natural and equitable source of revenue for funding this common defense of said land rights.

From the Electronic Frontier Foundation (H/T Crystal Cox):

[C]ourts occasionally identify a reluctance to extend journalistic protections to non-traditional “media” sources such as bloggers because of a perceived lack of a limiting principle. How can everyone potentially be a journalist? courts seemingly ask. This sentiment is frequently echoed by mainstream journalists who, rightly or wrongly, balk at the perceived threat of dilution of legal protections for traditional journalists posed when (as here) self-proclaimed journalists might go too far and risk protections for established media. As EFF and many others have pointed out, the proper approach to this question is to focus on what amounts to journalism, not who is a journalist. Journalism is not limited to a particular medium; instead, it focuses on whether someone is engaged in gathering information and disseminating it to the public.

From a recent article by Eugene Volokh (H/T Crystal Cox):

Both sides in the debate often appeal at least partly to the constitutional text and its presumed original meaning. The words “the press” in the First Amendment must mean the institutional press, says one side. The words must mean press-as-technology, says the other. Citizens United is unlikely to settle the question, given how sharply the four dissenters and many outside commentators have disagreed with the majority. So who is right? What light does the “history” referred to by the Citizens United dissent shed on the “text” and the Framers’ “purpose”?

The answer, it turns out, is that people during the Framing era likely understood the text as fitting the press-as-technology model—as securing the right of every person to use communications technology, and not just securing a right belonging exclusively to members of the publishing industry. The text was likely not understood as treating the press-as-industry differently from other people who wanted to rent or borrow the press-as-technology on an occasional basis.

If you only read this through an RSS feed, check out the veritable library I’ve added to the sidebar. Your time will probably be better spent following those links than reading anything I’ve ever written, but I’ve also added links to 10 of my favorite posts here, my 10 most commented upon posts, and my 10 most viewed posts. I’ve also added to the Blogroll a link to the now-defunct blog I wrote before this one. I’ve also, in order to offend the blawgospheric purists amongst us, decided to finally cash in on this blog by adding Amazon links to 3 of my favorite books. So the way I understand it, I get a cut if you buy through those links Lust for Justice: The Radical Life and Law of J. Tony Serra by Paulette Frankl, Taking Back the Courts by Norm Pattis, and/or And the Sea Will Tell by Vincent Bugliosi. I’m counting on you, readers. I can’t wait to quit my day job.

Jeff Gamso writes:

Our job is to defend.

It is emphatically not to seek justice unless justice is defined as “trying to get even guilty clients off,” which is a weirdly unlikely definition of the term.

Oh, I don’t know how weird and unlikely it is. Blackstone wrote:

As to the end, or final cause of human punishments. This is not by way of atonement or expiation for the crime committed; for that must be left to the just determination of the supreme being: but as a precaution against future offenses of the same kind.

If the prosecutor’s job is to “seek justice,” it is to seek punishment of the offender as a precaution against future offenses of the same kind. The criminal defense lawyer qua criminal defense lawyer, on the other hand, reasonably doubts that punishing his client will prevent future offenses, regardless of whether or not his client is “guilty.” Indeed, the job of the criminal defense lawyer is to prevent the very specific and definite “offense” which the prosecutor intends to inflict on his client in the immediate future. The job of the criminal defense lawyer is in this respect quite similar to, albeit more direct than, the job of the prosecutor: It is to prevent offenses, or, in other words, to seek justice.

Only if “justice” is equated with “atonement or expiation” does it become weird to say that the criminal defense lawyer seeks justice.

Coincidentally, I happened to watch an episode of Law & Order the other day titled “Justice,” in which former prosecutor Jamie Ross reported herself to the attorney Disciplinary Committee because, while representing a man whom she learned through her representation to be guilty of a murder that another man was on trial for, she gave an anonymous tip on the eve of trial to the deputy who was prosecuting the other man that, if followed through on, would have demonstrated his innocence. (The tip didn’t directly implicate Ross’ client, though it was likely to indirectly implicate him.) The deputy ignored the tip, and was made a judge shortly after the innocent man was sent to death row. Jack McCoy tried to prosecute the judge for attempted murder, but the case was dismissed. Ross was eventually exonerated by the Disciplinary Committee.

See Rule 1.6 of the Indiana Rules of Professional Conduct:

(a)    A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

(b)    A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(1)    to prevent reasonably certain death or substantial bodily harm;

. . .

Said by federal Magistrate John Moulds in court to tax resister Cindy Sheehan. (H/T David Gross at The Picket Line)

I note that, while its Wars of Aggression are undoubtedly the most barbaric acts of which the American Empire is guilty, the Empire uses the tax dollars it extorts from We its Subjects to commit a million other crimes besides these, daily and from sea to shining sea.

By the way, I had meant on “Tax Day” to promote again, as I have before, The Picket Line blog by David Gross, whose “Don’t Owe Nothin’” method of tax resistance has long struck me as the most practical and principled way to live honestly as an American in these United States. I have nothing but respect for those who, like “high-powered” (in more ways than one) criminal defense lawyer J. Tony Serra, have risked or incurred prison by “failing” to pay “their” taxes. But I think it’s best not to let ourselves become fodder for the Prison-Industrial Complex if we can avoid it.

Eric the Unwashed Advocate this week thanked Norm Pattis for an “extremely insightful,” and mind-boggling, post Norm wrote a couple weeks ago about the sentencing of one of his clients. Eric’s post itself provides insight into one way in which the military justice system is more rational and just than its civilian counterpart. According to Eric, the following jury instruction is the norm in military courts:

In adjudging a sentence, you are restricted to the kinds of punishment which I will now describe or you may adjudge no punishment. There are several matters which you should consider in determining an appropriate sentence. You should bear in mind that our society recognizes five principle reasons for the sentence of those who violate the law. They are rehabilitation of the wrongdoer, punishment of the wrongdoer, protection of society from the wrongdoer, preservation of good order and discipline in the military, and deterrence of the wrongdoer and those who know of his crimes and his sentence from committing the same or similar offenses. The weight to be given any or all of these reasons, along with all other sentencing matters in this case, rests solely within your discretion.

So apparently the very same people who determine guilt in the first place, the jurors, also determine the sentence appropriate to that guilt. This way of proceeding is in fact the only way for jurors to make sense out of that other familiar and indispensable instruction, presumably also given to military jurors, which admonishes them that they must be convinced beyond a “reasonable” doubt of the defendant’s guilt in order to find him guilty.

I had meant to comment on Norm’s post too, and specifically this paragraph:

We sent him to an expert on disorders of desire. Explain if you can this errant episode in the hero’s life? The doctor reports it was mere curiosity: No libidinal clock strikes twelve at the thought of a child. For a very brief period the young man looked at pictures. Now he is in prison, a felon, required to register as a sex offender, and a member of the ostracized community of those we abhor in a schizophrenic variety of purity.

I have a confession to make. I watched one of those infamous “beheading” videos several years ago, when its awful existence on the internet was publicized all across the mainstream media. Morbid curiosity got the better of me. I shouldn’t have done it. I was horrified, if not terrorized. Wasn’t that precisely why the terrorists who’d created the video created it, and indeed committed the awful crime depicted in it? Was I contributing to the incentives for the production of more such videos by watching that one? Isn’t that the very argument used to justify punishing so rigorously and mindlessly those who’ve looked at child pornography?

“In cases with no blacks in the jury pool, blacks were convicted 81 percent of the time, and whites were convicted 66 percent of the time.” — Duke-led study on “The Impact of Jury Race in Criminal Trials.”

See the John McNeil case from Georgia and the Tyrus Coleman case from Indiana. In both cases, the defendants were black, claimed self-defense, and were convicted for shootings that occurred on their own property. I don’t know about the McNeil case, but there were no blacks in the jury pool in the Coleman case.