From Community to Legalism

The United States has become a legalistic society. It has always been more legalistic than some countries, for various reasons, but it’s become even more legalistic over time. Earlier last century, most problems weren’t dealt with through the legal system.

This is why it’s hard to compare present data to past data. A lot of criminal behavior never led people to the court system, much less prison. And even when people ended up in court, judges used to have more legal freedom to be lenient, unlike our present mandatory sentencing. This meant that there wasn’t much in the way of mass incarceration in the US until this past half century or so.

Take juvenile delinquents as a key example, far from a new problem. As urbanization took hold in the late 1800s and into the early Cold War, there was moral panic about teenagers being out of control, turning into criminals, and joining gangs. But most kids with problems didn’t end up facing a judge.

There were community institutions that figured out ways to deal with problems without recourse to legal punishment. Kids might get sent to family members who lived elsewhere, to a group home for delinquents, to reform school, etc. Or they might simply be made to do community service or pay restitution. But none of it would end up as a criminal record, likely not even getting reported in the local newspaper. It would have been dealt with quietly, informally, and privately.

There were cultural reasons at the time. It was assumed that kids weren’t fully responsible for their own behavior, as kids were treated as dependents of adults. The problems of kids was seen as the failure of parenting or social conditions. There was little tolerance for bad behavior in many ways at that time, but also society was much more forgiving. A kid would have to commit many major crimes before he would end up in a court and in jail.

The downside of this is that individuals had less rights, as people were seen more in social terms. It was easier to institutionalize people back then. Or if a girl got pregnant, her family would make sure she was sent somewhere else and not bring shame on the family. Juveniles were considered dependents until well into young adulthood. A 21 year old woman who was accused of prostitution, even if false, could find herself sent off to a group home for girls. Early 20th century childhood was highly protected and extended, although far different from present helicopter parenting.

Parents were considered legally and morally responsible for their kids, in a way that is not seen these days. Individual rights were still rather limited in the early 20th century. But there was also a sense of community responsibility for members of the community. It was accepted that social conditions shaped and influenced individuals. So, to change individual behavior, it was understood that social conditions needed to be changed for the individual.

In present American society, we see the past as socially oppressive and it was. We now put the individual before the community. We think it’s wrong to send juvenile delinquents off to reform schools, to separate the low IQ kids from other students, and to institutionalize the mentally ill. But this typically means we simply ignore problems.

The kid with severe autism in a normal classroom is not getting a good education or being prepared for adult life in any kind of way, although there is merit to his being socialized with his neurotypical peers. The mentally ill being homeless instead of in institutions is not exactly an improvement, even considering the problems of psychiatric institutions in the past. And the world is not a better place for our warehousing problematic people in prisons.

Our society has been pushed to an extreme. It would be nice to see more balance between rights of individuals and the responsibility of communities. But that isn’t possible if our main options are to either ignore problems or turn to the legal system. This is a difficult challenge, as increasing urbanization and industrialization have led to the breakdown of communities. There was a much stronger social fabric a century ago. It’s harder for us to turn to community solutions now since communities no longer function as they once did. And growing inequality has undermined the culture of trust that is necessary for well-functioning community.

Yet it’s obvious, according to polls, that most Americans realize that social problems require social solutions. But our political system hasn’t caught up with this social reality. Or rather the ruling class would rather not admit to it.

A New Rule On Immigration

I have a new rule. *

We can only deny immigration to citizens of countries where the US government and military has never meddled in their society. We will demand any immigrants to go away and leave us alone, if and only if we have done the same to them.

We should make the Golden Rule a law. Also, self-righteous ignorant hypocrisy should be made illegal.

* * *

Why do those on the right love to complain about government but then demand that government is the final arbiter of reality?

Immigrants are illegal because they’ve broken the law. Others have noted there are so many laws on the book that every American regularly breaks laws every day. Are we illegal citizens? Unemployment is so high that a large part of Americans work on the black market. Are these Americans illegal workers?

Why do some people argue that people should serve the legal system instead of the legal system serving people? Is the legal system simply a system for defending power? Why, for example, have we allowed the War On Drugs which is a war against the American people?

When law and governance is used for oppressive social control, why should we allow that power structure determine our reality? Maybe we should make our own reality through self-governance.

* * *

* I was ‘inspired’ by an discussion about President Obama’s Immigration Actions on C-SPAN’s Washington Journal. It was hosted by John McArdle. The guests were Jon Feere (Legal Policy Analyst of Center for Immigration Studies) and Crystal Williams (Executive Director of American Immigration Lawyers Association), the former from the right and the latter from the left. It is one of those mainstream media debates where both sides frustrated me.

A Divide in Justice, a Divide in the Mind

I got sidetracked into reading some of Matt Taibbi’s just released new book, The Divide. A review of it in the Wall Street Journal of all places caught my attention. It was a surprisingly good, although short, review by Matt Welch. The reviewer ended with this damning conclusion:

“Though Mr. Taibbi doesn’t couch it in these terms, his warning is all about moral hazard, in two senses of the phrase. When swindlers know that their risks will be subsidized, and their potential crimes will be punishable only through negotiated corporate settlements, they will surely commit more crimes. And when most of the population either does not know or does not care that the lowest socioeconomic classes live in something akin to a police state, we should be greatly concerned for the moral health of our society.”

If that conclusion is correct and the Wall Street Journal was doing its job, that should have been front page news. Instead, I found it printed in a small corner of a back page of the newspaper. I guess one should be thankful that a review like this gets published at all in the mainstream media, however hidden away it remains.

This hiding in plain sight demonstrates a point made by Taibbi, maybe the central point of the entire book. His conclusion is that wealth disparities are causing unequal and unfair end results in the US justice system. But that is more just the ‘what’ of his argument, the evidence in support of a more probing insight. It is the ‘how’ and the ‘why’ that is the real issue of concern.

Taibbi speaks of implicit knowledge, that anyone who is paying attention knows all of this and yet it remains in the background. This is the key to understanding his argument. He introduces and emphasizes this perspective of implicit knowledge in his introduction. It appears he offers it as the foundation for building his analysis throughout the rest of the book. It is the sad fact that this knowledge is implicit, rather than explicit, that allows and encourages the growth of this divide.

Near the beginning of the introduction, he presents his case and puts it into context (Kindle Locations 67-75):

“The other thing here is an idea that being that poor means you should naturally give up any ideas you might have about privacy or dignity. The welfare applicant is less of a person for being financially dependent (and a generally unwelcome immigrant from a poor country to boot), so she naturally has fewer rights.

“No matter how offensive the image is, it has a weird logic that’s irresistible to many if not most Americans . Even if we don’t agree with it, we all get it.

“And that’s the interesting part, the part where we all get it. More and more often, we all make silent calculations about who is entitled to what rights, and who is not. It’s not as simple as saying everyone is the same under the law anymore. We all know there’s another layer to it now.”

Taibbi doesn’t pull his punches. He goes straight to the tender weak point in American pride by making a comparison to Soviet Russia (Kindle Locations 76-86):

“As a very young man, I studied the Russian language in Leningrad, in the waning days of the Soviet empire. One of the first things I noticed about that dysfunctional wreck of a lunatic country was that it had two sets of laws, one written and one unwritten. The written laws were meaningless, unless you violated one of the unwritten laws, at which point they became all-important.

“So, for instance, possessing dollars or any kind of hard currency was technically forbidden , yet I never met a Soviet citizen who didn’t have them. The state just happened to be very selective about enforcing its anticommerce laws. So the teenage farsovshik (black market trader) who sold rabbit hats in exchange for blue jeans outside my dorm could be arrested for having three dollars in his pocket, but a city official could openly walk down Nevsky Avenue with a brand-new Savile Row suit on his back, and nothing would happen.

“Everyone understood this hypocrisy implicitly, almost at a cellular level, far beneath thought. For a Russian in Soviet times, navigating every moment of citizenship involved countless silent calculations of this type. But the instant people were permitted to think about all this and question the unwritten rules out loud, it was like the whole country woke up from a dream , and the system fell apart in a matter of months . That happened before my eyes in 1990 and 1991, and I never forgot it.

“Now I feel like I’m living that process in reverse, watching my own country fall into a delusion in the same way the Soviets once woke up from one. People are beginning to become disturbingly comfortable with a kind of official hypocrisy. Bizarrely, for instance, we’ve become numb to the idea that rights aren’t absolute but are enjoyed on a kind of sliding scale.”

The example of Russia is an apt comparison. Like the Soviet Russia, the United States is in a precarious situation. We have immense power (or rather our government does) while at the same time having a population that is immensely deluded. Many American citizens have become disconnected from certain realities. Most Americans simply aren’t paying attention to what matters or not paying attention at all. But some Americans do notice, as the author acknowledges (Kindle Locations 95-101):

“This is obviously an outrage, and the few Americans who paid close attention to news stories like the deferred prosecution of HSBC for laundering drug money, or the nonprosecution of the Swiss bank UBS for fixing interest rates, were beside themselves with anger over the unfairness of it all.

“But the truly dark thing about those stories is that somewhere far beneath the intellect, on a gut level, those who were paying attention understood why those stories panned out the way they did. Just as we very quickly learned to accept the idea that America now tortures and assassinates certain foreigners (and perhaps the odd American or three) as a matter of routine, and have stopped marching on Washington to protest the fact that these things are done in our names, we’ve also learned to accept the implicit idea that some people have simply more rights than others. Some people go to jail, and others just don’t. And we all get it.”

This systemic and institutionalized injustice has become normal to us. We rarely think to even question it. Even when we do give it more than a passing thought, we typically accept it as the way the world operates, maybe inevitably. There are just those on the bottom of society as there are those at the top.

We see these problems and yet we don’t really see them. We never look at them head on. We never think about them carefully and talk about them openly. We live in social isolation and our minds are trapped within media bubbles. We don’t see the larger view (Kindle Locations 154-160):

“Most people understand this on some level, but they don’t really know how bad it has gotten, because they live entirely on one side of the equation. If you grew up well off, you probably don’t know how easy it is for poor people to end up in jail, often for the same dumb things you yourself did as a kid.

“And if you’re broke and have limited experience in the world, you probably have no idea of the sheer scale of the awesome criminal capers that the powerful and politically connected can get away with, right under the noses of the rich-people police.

“This is a story that doesn’t need to be argued . You just need to see it, and it speaks for itself. Only we’ve arranged things so that the problem is basically invisible to most people, unless you go looking for it.”

In our society, there is an implicit knowledge that is rarely ever overtly discussed publicly. I came across this same idea of implicit knowledge in a number of other books (and have written about this previously). The phrasing I kept coming across was to “know and don’t know”, a truth so dangerous that even to acknowledge it is frightening. What are we to do with such information? It makes us uncomfortable because it puts the lie to so many of our shared beliefs and assumptions, our collective self-image.

To know and not know. It is, at a fundamental level, a psychological dissociation, a splitting of the self based on a splintering of awareness. What we know in one context is separate from what we know in another context. We know and yet the full knowledge never gets our full attention, the different truths never quite connecting to help us see a greater truth that threatens our contentment and certainty.

There is a direct link between a disconnection of awareness and the social disparity of justice and wealth. The class and racial divide is part of the divide of ideological rhetoric, of political narrative, of media reporting, of public debate. There is a disconnection between what so many of us know on some level and what gets spoken in public forums and what gets implemented in public policy.

Reading a book like The Divide can be depressing. That was my initial response. The author, however, ends on a note of optimism. The divide was created and so can be changed. Going by the last examples in the book, it appears that changes are happening. “As this book goes to press,” Taibbi writes at the end of his concluding chapter (Kindle Locations 6405-6422),

“the Justice Department is sending signals that it’s beginning to realize its mistakes. Eric Holder is reportedly thinking of nominating a tough prosecutor, Leslie Caldwell, to permanently fill Lanny Breuer’s vacated post. Holder also talked about raising the statute of limitations on Wall Street cases, to give themselves another shot at all the crimes they ignored in the last five years, warning that those who committed crimes are “not out of the woods yet.” Hedge fund villain Stevie Cohen is being put out of business. As this book goes to press, criminal cases are reportedly coming against the megabank Chase for the “London Whale” episode and perhaps other misdeeds, including some related to its status as Bernie Madoff’s banker.

“At the very least, on the federal level, officials seem to recognize the political necessity of saying these things out loud, and this has to be in very large part due to the public outrage over the lack of Wall Street prosecutions. Decisions like the HSBC settlement were blunt bureaucratic calculations , where the risk of losing and/ or disrupting the economy was weighed against the benefit of receiving $ 1.9 billion in settlement money. But these new moves by Holder & Co. show that public outrage sometimes can change the calculus.

Exactly! Public outrage can make a difference. But public outrage requires public awareness. We are at an interesting moment in history that resonates with that moment when Russian society was awakening. With the rise of alternative media, Americans are becoming better informed in a way not seen before in my life.

Also, a large part of this shift comes from books like this written by Taibbi. It isn’t just the general public that is starting to question and doubt. More importantly, comfortably well-off mainstream media types such as Taibbi are beginning to look to new information and perspectives. And Taibbi isn’t alone. Many books like this one have been coming out recently and they are being read by all Americans, all across the economic spectrum:

“At the same time that Eric Holder was experimenting with a public change of mind, a federal judge named Shira Scheindlin handed down a ruling against New York’s stop-and-frisk policies. This was late in the summer of 2013. Scheindlin , among other things, cited a popular new book, The New Jim Crow, in her ruling and noted that since 2004 more blacks and Latinos have been accosted by police than actually live in the city. The ruling came at the end of a long and well-coordinated campaign by groups like the Center for Constitutional Rights and the NAACP.”

I liked the mention of Michelle Alexander’s The New Jim Crow. That is another important book. It is surprising that Taibbi only mentions it right at the end and doesn’t even include the author’s name.  Alexander’s book goes into great detail about the data of inequality and injustice. The case made in The Divide could have been strengthened by Alexander’s analysis of data.

In his very last thoughts, Taibbi makes clear the power of public pressure and the necessity of more of it:

“Of course, a federal judge striking down stop-and-frisk as unconstitutional doesn’t mean the practice will end anytime soon. “You’re not going to see any change in tactics overnight,” promised Mayor Mike Bloomberg. But the fact that Bloomberg was put in the position of having to fight back— and that his successor, Bill de Blasio, won in part by running against those tactics— shows that public pressure can work . Just trying to do the right thing legitimizes the entire system. We don’t do it often enough.”

That is where the author leaves us.

A book is just a book. A writer can’t cause change merely through the act of being published. The only influence a book has is through those who read it and by what they choose to do with what a book offers. This may just be yet another book or it may be the start of a public discussion that we’ve needed for far too long.

We are on the edge of a historical shift. No one knows where this shift might take us or how it will happen. No one knows precisely when it will happen. But, one way or another, it will happen. We are close to the tipping point. Almost anything might push our society over the edge.

Neuroscience, Neurolaw?

One of the panelists made a great distinction between factual knowledge and collective beliefs. He pointed out that people used to believe in phlogiston and thought it was a factual description of reality, but scientific discovery presented a better theory about chemical structure and interaction. Similarly, people once believed in souls, but psychology presented a better theory with the idea of the will. We modern people look back at the naivette and ignornace of those from centuries ago. However, isn’t the will just a modernized version of the soul? The will in some sense may be no more real than phlogiston.

Why not base our justice system on science, on real world knowledge of how people actually behave?

Of course, retribution may feel good and maybe there is something in human nature that wants retribution. But what is effective in preventing criminal behavior? Is it possible to rehabilitate people? Just imagine a society that was based on actual knowledge and understanding rather than mere ideology. Retribution has proven to be a failure and yet we continue to do it. I think it would be nice if we as a society matured to the point where we actually wanted to bring the greatest good to the greatest number.

So, are our cultural biases and our collective beliefs more important than making the world a better place?