BroadSnark

Thoughts on politics, religion, violence, inequality, social control, change, and random other things from an autonomous, analytical, adopted, anarchist, atheist who likes the letter A
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Legality, Morality, and Dehumanization

January 25, 2013 By: Mel Category: Anarchism, Drugs, Inequality, Sex

According to Oliver Willis, some of us on the left are dumb because we aren’t ready to declare that a woman arrested for prostitution with her son present is an open and shut case of wrongness. He claims it isn’t about whether or not we think prostitution should be legal. It is illegal. She brought her kid. She involved “her child in what is very clearly illegal activity.” End of story.

But does Willis really think that people should never do anything illegal? Back in November, Willis claimed that Martin Luther King was one of the most important figures in black American history. And in this piece, he asked “Do people on the left think that Martin Luther King simply held one protest and those in power immediately rushed to pass the Civil Rights Act?”

I certainly don’t think that MLK held one protest. I know that he held many protests. I also know that he spent quite a bit of time in jail for breaking the law, as did a whole lot of other people in the civil rights movement. It was, after all, MLK who said “Never forget that everything Hitler did in Germany was legal.”

But perhaps Willis just meant that children should never be involved in illegal activity, even the illegal activity he might find moral. It so happens that I am currently reading Freedom’s Children, interviews of people who were children during the civil rights movement. Kids were actively recruited by MLK and others to participate in protests and nonviolent disobedience. They integrated movie theaters and restaurants. They went to jail. They got their asses kicked. Does Willis think that shouldn’t have happened? I doubt it.

What about immigration, Oliver. You said Romney lost because he “embraced in a bear hug the most fringe anti-immigrant position out there.” You seem to support immigration reform and scoff at Republicans who use the term “amnesty” to refer to legalizing those who crossed our borders without papers. Do you think immigrants who crossed the border illegally with their children should be strung up from the nearest lamppost?

No. I don’t believe that this is really about legal or illegal. I think Willis would agree that disobeying unjust, immoral laws is perfectly acceptable. If not, he has some explaining to do about his love of MLK. This is about Willis’s opinion of sex work and the people who do it. It is about his willingness to dismiss and dehumanize someone because they did something he finds icky.

Back when I took my first class on the drug war, I had this click moment in my head. Even though I had never been in favor of the drug laws, even though I knew many people who were caught up in the injustice system, I never really recognized the scheme for what it was. How I never saw the process of dehumanization is incredible to me. I mean, I had been reading about Nazi Germany’s laws against Jews since grade school. I knew how vagrancy laws were used during Jim Crow. I understood how laws were enacted to criminalize certain groups and justify their oppression. But somehow I never saw it clearly when it came to the drug laws.

And it wasn’t until relatively recently that I really gave a lot of thought to the laws against sex work. Who are they meant to control? Where did they come from? Who is getting their freedom taken away? What is the result of the War on Sex Workers?

But Willis doesn’t want to ask those questions. He doesn’t want to ask why a person might do sex work. He doesn’t want to ask why sex work is looked down upon more than working for Goldman Sachs. He doesn’t want to ask why someone might have to bring their kid to work with them. To ask those questions would mean seeing that woman as a human being and not a “criminal” – that classification which justifies taking someone’s freedom, taking their children, marking them for life.

When someone dared suggest that perhaps the woman’s choices were limited and that we should try to understand more about her circumstances before we judge, Willis chose to get butthurt that people had lower standards for the poor. Apparently, he thinks that following the rules and working hard will eventually pay off for everyone – despite all the evidence to the contrary.

No, Willis. Asking questions, refusing to completely dehumanize that woman, is not a “degrading” assumption that “a poor person must break the law to eat and that that’s somehow okay.” It is an understanding that some human beings have more limited choices than others. It is an understanding that laws are often made for the purpose of controlling certain groups of people. It is the unwillingness to dehumanize and degrade.

Willis believes in “absolutes, ” by which he means that laws are laws and should be followed by all. Nobody gets a break. The guy who stole millions in mortgage fraud schemes is exactly the same as the starving guy who stole bread.  For him, anything else means “no moral guidance, no right and wrong… anarchy.”

Except that “no moral guidance” is not what anarchy means. Anarchy means no rulers. It means no hierarchies that allow a few powerful people to make laws that oppress the rest. It means understanding that moral and legal are not the same.  It means freedom, mutual aid, and respect. It means trying to understand what your fellow human beings are experiencing and not assuming that your morals and choices are universal.

Laws against sodomy, laws against miscegenation, laws against drugs, and laws against sex work have all been used to target marginalized people. And even when some of the people who support those laws have good intentions – like those who know how destructive drug abuse can be – they cannot just close their eyes to how the laws are used. That is immoral.

The Road to Hell

April 29, 2011 By: Mel Category: Change

My mother has a platitude for every occasion. One favorite is “the road to hell is paved with good intentions.”

I thought about that saying as I read this piece on prostitution arrests in Honolulu. I have no doubt that some of the people pressuring the Honolulu PD to make prostitution a priority think they are doing a good thing. And I understand how someone hears about really awful trafficking stories and wants to do something about it. But the end result of their pressure is that a bunch of women are getting arrested, sometimes on multiple occasions. They even published some of their names in the paper. How the hell is that supposed to help the women that they are supposedly so concerned about?

The paper notes that, in nine months, the police have arrested only one pimp.  An associate dean at Northeastern’s School of Criminology and Criminal Justice, explains why:

A prostitution arrest is very easy. You can do that quickly. You can go out on the street or go on Craigslist and get the individuals involved. But to get the pimp, it is harder to make that case.

Let’s set aside the fact that a whole lot of prostitutes don’t have pimps. It is an absolute truism that the law goes after the easiest pickings. If a six month investigation will result in one arrest of someone with a good attorney (who will probably get them off), but one afternoon on the corner can result in multiple arrests of people who can’t afford an attorney, who do you think most police departments pursue?

Back in 2004, a report was prepared for the Racial Disparity Project in Seattle. Like in the rest of the country, blacks and Latinos in Seattle were being incarcerated at higher rates than whites. The researchers set out to determine why. They found that the Seattle PD focused on downtown areas where crack was sold, ignoring areas where white people were selling heroin. The researchers found no “racially neutral” explanation for the disparities. In other words, the police were targeting the black community. It is always going to be the people with the least status who are targeted by the laws. Always.

I know I have written about this before when I talked about Over Reliance on the Law and Why the Legal System Does Not Work For You, but I just keep coming up on the same mental block. People see something horrible and they feel like they would be a bad person if they did nothing. And the only thing they can think to do is pass a law or call an authority or violate a person’s rights in some way. If to save one person, you hurt ten (or ten thousand), what the hell good does that do?

I was recently contacted by one of my friends, we’ll call her Carrie. Carrie is worried about one of our mutual friends who is going through a really rough time right now. Bad stuff. Deaths and illnesses and breakups and generally more than anyone can really handle. Our friend, we’ll call her Sandy, is not necessarily utilizing the most healthy coping mechanisms. (Neither would I be, but that’s another tale.) Carrie wants to do something to save Sandy from herself. I get it. I love Sandy. She is family to me.

But trying to save people from themselves almost always goes horribly wrong. It is how you get prostitutes being jailed in the name of saving people from sex work. It is how you get minority drug addicts being jailed in the name of saving people from drug addiction. And it is how you get women being institutionalized against their will in the name of “helping” them.

I’m not suggesting that we all just think about ourselves and do nothing about suffering. If someone asks me for help, and I can give it, I will. If someone says that something I do hurts them, and I can stop it, I do. If I see injustice and I have the ability to call it out, I will. If I can be there for a friend, not judging them or telling them how to live their life, I’m there.

I realize that means that I will sometimes have to watch people that I love hurt themselves. And that sucks. But we can’t save anyone but ourselves. We can’t prevent one another from experiencing pain. We can be there to lean on. We can be kind to people. We can make people laugh. We can remind people about the parts of life that don’t suck. We can forgive people their imperfections.

We can respect that the road that they are on may be the one that they need to travel, even if it is long and ugly and dangerous. Because really, in the end, all those roads end in the same place.

Does the Supreme Court Lead or Follow?

April 12, 2010 By: Mel Category: Inequality, Politics

Everyone is talking about Supreme Court nominations again.  I agree with those people who think that the court is going to be more conservative with the loss of Stevens.  But I’m looking at that a different way these days.

I’ve always paid close attention to Supreme Court picks.  Partly that was because I believed that the courts had been leaders in social change.  Like a lot of people, I had the impression that the courts were defenders of social justice.  I thought cases like Brown v. Board of Education were exemplary.

In this really fascinating lecture, Michael Klarman challenges the idea of the Supreme Court as an agent of positive social change relating to racial discrimination.  He talks about how Brown v. The Board of Education (and a set of subsequent progressively decided cases in the 1960s) gave the impression of the court being an agent for racial justice.  Then he shows how, outside of those few cases, the court has far more often stood in opposition to progressive change in racial policy.

Looked at as a whole, those cases we admire now were only blips in the history of the court.  When you add to that the reality of our criminal justice system, it is actually shocking that anyone who is anti-racist would see the Supreme Court (or any court) as being a primary vehicle of change.  So why do we?

Klarman suspects part of the reason is that it is much easier to posit Brown v. Board as the spark of the civil rights movement.  It is much less complicated than an evaluation of the interlocking factors of internal migration, World War II service by blacks, and international embarrassment.  And Klarman sort of infers, but doesn’t quite get there, that there is some paternalism going on there.  These benevolent arbiters of justice are going to make it all o.k.

In other words, a handful of powerful elites are once again given credit for changes that actually occurred at the grass roots and worked its way up.

Once again, our attention is focused on elites.  It is focused on who gets one of those seats instead of on the hard work of organizing in our communities.  We are given the impression that the courts lead the way.  But they don’t lead, we do.

Or, as Thoreau put it in Slavery in Massachusetts:

The law will never make men free, it is men who have got to make the law free.

Why the Legal System Does Not Work For You

March 26, 2010 By: Mel Category: Misc

On Monday I wrote about how car contracts work and how people end up getting screwed.  The logical question, and the one that started this all, is why doesn’t the legal system work for you?  And the answer is…it isn’t meant to.

Who writes the laws?  Legislators.  Who are the legislators?  They are wealthier than you.  They have more powerful friends and relatives.  And, most importantly, they have a steady stream of lobbyists at their doorstep.  Ford Motor Credit Company, for example, spent $7,230,000 on lobbying in 2009.  What are the chances, do you think, that those lobbyists have no effect on what the law says?

Who interprets the laws?  You may think that it is the judge who interprets the law, but that is not exactly true.  Judges are incredibly conservative.  They would much rather be shown a pile of precedent so that they can just follow those that came before them.  Some judges would like to use more judicial discretion, to consider what is fair, but that has become near impossible in a climate where everyone screams about “activist judges.”

A judge who may want to allow someone to file bankruptcy, ignoring a technicality of the law, will feel compelled to go against their better judgment.  Criminal judges have been restricted by mandatory minimum sentencing requirements.  Over and over judges will tell you that their hands are tied by the law.

I don’t want to make judges out to be hapless victims in all of this.  One of the reasons that judicial discretion was challenged was because some judges were not being impartial.  The person who wrote the legislation that led to horrible mandatory minimum sentences was, he says, attempting to address racial discrimination related to who got out on bail and who didn’t.

Another problem with judges is that their positions have been politicized.  Many judges have to run for their office.  How knowledgeable about a judge’s history of rulings do you think the average voter is? And running for office means raising money.  Judges raise a lot of money from people who may later appear before them in court.  The other party may not even know about the relationship.  And even if they do know, it is not necessarily grounds for recusal.  (Justice at Stake is a good resource on judge related issues.)

And if you think you can avoid the perils of bad judges with a jury, think again.  The judge will determine what a jury gets to see and hear, if you get a jury at all.  Contrary to what you may believe from watching television.  You do not always have a right to a jury trial.  The right to a jury trial extends to criminal proceedings and civil cases in federal court.  Since many cases (all the car contract cases I was referring to in my previous post) are in state court, it will be governed by state rules.  What’s more, contracts typically contain language waiving your right to a jury trial.  They may even have language waiving your right to a trial period.  Check your credit card fine print.  Bet you have a provision requiring arbitration for disputes.

And you don’t have a right to an attorney either.  You have the right to hire an attorney.  If you cannot afford an attorney, and it is not a case that involves possible jail time, you have few options.  You can put your name on a list and hope that you will be one of the lucky few to get legal aid.  Otherwise, sucks for you.  (More on that issue at the website for Civil Right to Counsel.)  And even if you do get an attorney, what kind of attorney will you get.  A bad attorney might be worse than no attorney at all.

If you have a bad attorney, one who is having a mental breakdown, you might end up convicted of a felony when you didn’t actually commit one.  You might find yourself on death row, even though your attorney slept through the trial. If you have a good attorney, on the other hand, there is a very good chance things will settle out of court and with a result far more to your liking.  One of the trial attorneys I worked for had such a killer reputation that she almost never had to go to court.  Nobody wanted to go up against her.

The attorney ends up being key.  Because in a system that is focused on intricacies of overly complex laws and voluminous libraries of precedent, the person who best understands how to manipulate those laws and precedents to their advantage wins.  The law then becomes less about justice and more about wit.  And wit is expensive – Johnny Cochran made $500 an hour.  Joe Shmo probably pulls in $200.  Of course, their paralegal charges you an hourly rate and so does the associate attorney doing research.  And let’s not forget the office full of legal secretaries and other staff that are navigating the ins and outs of procedural rules – from when to file your pleadings to what color ink you need to use to sign.

It is not completely outside the realm of possibility that a lay person would be able to figure out the law and outsmart an attorney.  But they would have to have a hell of a lot of time on their hands.  And they would have to have some basic skills in reading and research.  22% of U.S. adults don’t even meet basic literacy levels.  And the poorer someone is, the more likely they are functionally illiterate.  Add to that the general financial illiteracy of the vast majority of adults.  What chance do they have?

One of the fundamental principles of the legal system is equality before the law.  It sounds good in theory, but in practice it doesn’t exist.  In those car contract cases, when you treat a lone defendant as equals with the plaintiff – a corporation which probably helped write the law, has the best lobbyists money can buy, employs hundreds of attorneys, and donates to the judges reelection fund -it’s a joke.  Treating them equal is actually anything but.

And now we arrive at personal responsibility.  I’ve managed to live without ever signing a car contract.  It is true that other people could too.  It’s true that some of the people who defaulted on their contracts just wanted a shiny new thing and didn’t really consider whether or not they could afford it.  But it is also true that many of those people just hit unexpected hard times and had the misfortune of living in a city with one of the worst public transportation systems.  And many of the people who get all high and mighty about personal responsibility don’t have any better understanding of financial instruments or the law.  They just have enough money not to suffer for their lack of knowledge.

More importantly, the real lack of personal responsibility is within the system itself.  The purchaser of a car is responsible for their actions on the day they sign that contract, but the salesman isn’t.  He’s protected by the magic of limited liability and faceless bureaucracy.  His neighbors will not shame him if he is irresponsible in his sales.  None of the people who work at the car company or the finance company or the courthouse are going to have to face the friends and neighbors of the person who gets steamrolled by the process.  None of them have any personal responsibility.

So what do I think?  I think, first and foremost, we have too many damn laws.  I think we should get rid of the vast majority of them.  As I’ve said before, we need to stop the knee jerk law passing every time something seems wrong.  Maybe something does need to be done, but it doesn’t have to mean passing a law.

I think a person should always have a right to a jury trial – something that is only practical if we don’t have so many damn laws.  Contracts should be verbal, as well as written, and video taped so that we can see exactly what the understanding of all parties was.  Precedent should be, if anything, a vague guideline and not a noose.  People who cry “judicial activism” should be made to suffer a Kafkaesque year of actually experiencing the legal system.

We need a massive grassroots effort to improve literacy (including financial literacy).  Conflict resolution should be the number one priority in education (yup, even before literacy).  People who screw people over by using their cleverness, whether in manipulating the law or inventing “creative” financial instruments, should be shunned for the anti-social deviants they are.  And we should all absolutely refuse to accept any more specialized language, specialized knowledge, and intentionally confusing bullshit from anyone.  Ever.

If it’s inaccessible, it should be unacceptable.

Finally, I tried to come up with a more widely palatable answer or short term solutions to the political/corporate clusterfuck where all these terrible laws come from.  But I just can’t.  The only solution is to take things into our own hands and stop giving our power away to those people.  So long as we keep thinking that the next politician will be better, we’ll keep having monstrous laws passed that nobody reads, much less understands.

Over-Reliance on the Law

February 08, 2010 By: Mel Category: Change

Over the weekend, a friend of mine posted a video (below) about a Fox news report that was squashed.

Several years ago, Fox reporters were working on a story about Monsanto and rBGH.  Monsanto, upon getting wind of the story, had their attorneys send Fox a letter threatening to sue.  Fox wanted to squash the story, but were afraid the reporters would tell the world.  So instead, Fox management beat the story into a form that Monsanto would like better.

The reporters were eventually fired for not being willing to lie in their news report.  The Fox station attorney sent them a letter confirming that is why they were fired.  The reporters understood this to be a retaliation claim.  They believed they would be protected under the whistleblower statute.  But the courts ruled that a news show lying on the air was not illegal and therefore there was no whistle to blow.  Ergo, no protection for the reporters.

All of us discussing the post agreed that it was appalling.  The poster suggested that we start a campaign to make lying by the news stations illegal.  It was an instinct I understood, but all I could think of were the potentially disastrous consequences.

If we want to see what happens when it is easier to sue a news organization, look no further than the United Kingdom.  Libel laws there are much different than in the United States.  And corporations are taking advantage of those laws to sue newspapers and bloggers.

News organizations afraid that they are going to be sued are likely to self censor.  In fact, this very Monsanto incident is the perfect example of the kind of self censorship that news organizations are practicing.  Monsanto threatened to sue them, presumably for libel.  And rather than risk the expense of a court battle, Fox’s response was to cave to the threat of a lawsuit.

While this Monsanto case is disgusting, how would yet more laws that people can be sued under help rather than cause even more self censorship?  And even if there was no danger from self censorship, how could we be sure that honest mistakes were not prosecuted?

This is not just an issue of a free press or of free speech.  It is about how we are handling all of our society’s problems.  Our first instinct is – We must do something!  We must pass a law!  It has gotten to the point where we can’t walk out of our house without breaking a law.

Every time we try to resolve a problem by passing a law, we give up that much more of our power.  And we tip the scales that much further in the direction of the wealthy and specially educated.

Access to the justice system, and results from the justice system, are dependent on how much money you have and how much understanding you have of legal codes, precedents, rules of procedure and a million other pieces of specialized knowledge that most of us do not have access to.

When we turn everything into a law, we turn everything into something that requires an attorney and a judge.  We empower those people at the expense of our own power.  If every solution proposed requires a law, then availing yourself of that solution requires an attorney.  Can you afford an attorney?  I can’t.

This post isn’t about bagging on attorneys.  I worked for attorneys for a decade.  And some of the attorneys I worked for were fighting the good fight.  They worked on civil rights cases and sexual harassment cases.  (I’m talking quid pro quo – you can keep your job if you suck my dick kind of cases, not ooh I don’t like the bikini calendar cases.)  I even did a millisecond internship with the ACLU.  But even the attorneys fighting the good fight cannot deny that the courts, for all the publicity that those few breakthrough civil rights cases get, are all too often on the wrong side of history.

There is no way to craft laws that can only be used for good, that cannot be exploited by those with the power and money to exploit.  The solution does not lie in empowering more attorneys and judges.  It lies in addressing those inequities of power and money directly.  It lies in taking back our own power.  It lies in coming up with solutions and problem solving mechanisms accessible to all of us.