Category: Justice Page 3 of 4

Is ongoing. An American citizen who cannot fly has taken the US government to court.  The most amusing part, to me, is this, from the Judge:

I want to categorically reject one thing: If information is publicly available in some other way, the government does not have the right to retroactively clamp it down and remove it from the public record. Even if it could have been protected as SSI within the government, if the plaintiff obtains this information independently, the government can’t clamp that down.

But this is a rearguard cry, a last plaintive defense.  The principles of justice are simpler:

1. You have the right to see the evidence against you, and to face your accusers;
2. You can’t be punished without a trial.

The no-fly violates both these principles: you are punished without a trial, and you have no right to see the evidence against you.  Even if we assume that in extremis the government might have to forbid someone to fly because they pose a danger to the flight, one can’t make a case for a multiple-year ban, at best it should be a few days while the government puts together the case and takes you to court.

Administrative judgments which take away out liberty or punish us without a trial (including binding arbitration agreements) are an affront to justice and freedom both.  They are “trust us, we’re the government”.  No; the government must prove its case before damaging private citizens.

Any country that does not allow people to see the evidence against them, face their accusers and have a trial before punishment is de-facto an unjust, unfree country.

We make distinctions between crimes, even the same crimes.  Unintentional killing is ranked lower than intentional killing, and pre-meditated (planned) killing is ranked higher than crimes of passion (finding your husband in bed with another woman and killing him.)

We also make distinctions between people who kill one person, two people, three people and so on.  A person who has killed more people, gets a longer sentence.

This is known as proportionality. All murders are not the same, nor are all thefts, nor are all acts of fraud.  The amount of harm they cause varies, and the amount of punishment they are due varies by reason: we punish the woman who kills her cheating husband when she finds him in bed with another woman a lot less harshly than we do a cold calculating murder to get the life insurance reward.

Distinctions between crimes, between bad things are important.  They are important for policy reasons and for ethical reasons.

The inability to make these sort of ethical distinctions, to say ‘well Fred killed one man, a military man, and that’s just as bad as Stalin killing millions” is an ethical failure.  It is an abominable ethical failure.  Scale matters and crime and justice are not boolean.  More to the point, it is far more important to stop the mass murderers of this world, whether they are Stalin, Mao or lesser mass murderers (note the distinction!) like George Bush and Barack Obama.

This is the same brand of ethical failure that locks up non-violent drug offenders for life, that doesn’t jail bankers who commit fraud (because they didn’t do anything violent, even though people die as a result of what they do), and so on.  It is of a piece.  There is no justice without proportionality and anyone who is incapable of drawing distinctions between crimes is an ethical imbecile.

To use one of the phrases of the day “this is why we can’t have nice things.”  Specifically, this is why we cant have a justice system that works, a just foreign policy, politicians who aren’t monsters and citizens who aren’t complicit in mass murder. If you think what the Woolwich murderer did is anywhere close to as bad as what George Bush or Tony Blair did you are unable to make even gross ethical distinctions, and are unsuited to exercise the responsibilities of citizenship.

Tens of thousands of murders are worse than one murder.  Understand this.  If you can’t, recuse yourself from the public sphere, please.

A law is deserving of respect to the extent, and only to the extent, it is just.  A law which is not just deserves only the level of obedience one gives to any group or individual who says “do this, or I’ll hurt you.”  That is, to the extent that you believe their threat is credible, you may choose to obey to avoid the adverse effects of being caught disobeying.

The recent imbroglio over Aaron Swartz has seen a lot of people using the word “proportionality”. It does not matter if someone is guilty of a crime if the punishment is disproportionate.  In England the penalty for stealing a chicken, at one point, was death or being sent to a penal colony (Australia).  Juries started refusing to convict people even in the face of incontrovertible evidence of the accused’s guilt.  The sentencing had to be changed: stealing was not made legal, rather the penalty was reduced.

In the US at the current time, going to jail, for many people, means being raped.  Often repeatedly.  So I, personally, am not willing to send anyone but the worst criminals to jail, because I do not believe in judicial rape.  The punishment does not fit the crime.  Likewise it has come to be that if you are a felon you will never have a good job ever again.  Everyone does a background check.  Again, this is disproportionate to most crimes. It is also stupid, since people who cannot get a good job, or any job, are much more likely to turn to crime.

The US system provides for people having timely trials.  In most cases this is no longer true: you do not have a right to a timely trial.  People’s lives are destroyed in the pre-trial period, which can go on for years. This happens for the same reason that most cases never get to trial, but are plead out: the system could not afford to give a trial to everyone because there are too many people being shoved through the system.

From Wikipedia

The graph at the right tells that story well enough.

This is a social choice.  Americans chose to lock  up a lot more people by criminalizing drug possession, by removing judicial discretion, and by increased mandated sentences.  Laws such as “three strike” laws are the paradigm.

This happens, notice, exactly at the election of Reagan.  Something changed in America.

Pleading out is not fair.  It is not fair to society or to the felon.  Both deserve a trial, to find out the truth.  If society has laws which mandate X years, then those laws should be followed.  If they cannot be followed in a just way, with little pleading and speedy trials, if following them would take more resources than a country will commit, then the laws must be changed.  This is especially the case in a country where it is no longer always possible for the accused to face their accusers or to see the evidence against them, or even to know what the law is, since America now has secret laws and secret interpretations of laws.  (A secret law is, ipso facto, unjust.  If you do not understand that, I cannot explain it to you.)

Full trials, and the full protection of the law, such as it remains, now belongs only to those who are very wealthy, and sometimes not even to them.  Defending a trial can take hundreds of thousand or millions of dollars.  An ordinary person cannot afford it.  Public defenders are overworked, underfunded, and generally plead out.  This is on top of the fact that most rich criminals, such as the bankers who committed widespread fraud, are never charged with crimes, and if they are charged are allowed to settle with a token payment which immunizes them from further charges for their criminal acts, acts which demonstrably cost hundreds of thousands of people their houses, lost people their jobs, and even their lives.  Law which is enforced only against some classes of people, and not against others, is unjust.

And then there is civil forfeiture, in which people who have been convicted of nothing, have their assets taken away.  Even if you’re rich, you may find yourself using a public defender.

A social system only works if there are people willing to carry it out. The USSR collapsed when the people running it were unwilling to call out the army.  That same class of people, in the Prague Spring, did call the army out.  It collapsed because the factory workers weren’t working, the farmers weren’t farming, and so on.

The US legal system (it does not deserve to be called a justice system) works because people carry out its dictates.  The people who run the prisons put up with, or even encourage the rapes.  Private companies make money from prisoners, so need more prisons. The police make huge amounts of money by seizing the assets of “criminals” before they are even convicted.  The judges put up with the 3 strikes laws and mandated sentencing.  They allow trials to be put back and back rather than throwing them out due to lack of a speedy trial.  Everyone is onside with plea bargaining.  The rich are good with this because they either get a real trial, or they don’t get charged at all.  The middle class think that if they’re “good” they’ll be ok, till they find out otherwise, and the poor put up with it because of a boot in the face and much more.

The principles of fixing the system (never use the word reform, it means making things better for the rich and worse for everyone else) are simple enough.  No secret evidence.  No secret laws.  No secret interpretations of law. No tolerance of rape in prison.  Nobody gets plead out if the plead involves doing jail time or becoming a felon.  No criminal record checks for jobs which don’t really really need them, so that prisoners can  reintegrate into society.  End civil forfeiture.  Allow no private defense attorneys, everyone uses a public defender including the rich, and the defenders are drawn by lot (they will be very well funded very quickly, and they will be the best lawyers in the country.)   All this will make enforcing current laws impossible with the current budgets Fine. Give judges back discretion, remove three strike laws and overly harsh sentencing, repeal virtually all prohibition laws for most classes of drugs.  Stop sending people to jail for IP offenses, and create an economy which gives poor people real jobs.

Or spend the money necessary to keep laws as they are now, but also have them be enforced justly, even if they still aren’t just.  That will mean a LOT more money, but if it’s important to Americans to lock up people for non-violent drug crimes, they should put their money where their “values” are.

Otherwise, everyone who supports the current system, is part of a system which is unjust.  More crudely, if you don’t at least support fixing the prisons so people arent’ predictably raped, you are complicit in rape.  And by support I mean you are either willing to pay to imprison the current number of prisoners humanely, or you are willing to send less people to prison so the current amount of money will do the job.

There is no justice without proportionality, no justice in a land with secret laws, no justice in a country where the rich skate and the poor plead out.  There is only law, the same law the Stasi proclaimed: do what we say or else.

Swartz, if you hadn’t heard, was being hounded by Ortiz for downloading millions of JSTOR academic articles.  They claim he was going to publish them, and were seeking decades in jail, and a million dollars in fines.

Swartz committed suicide.

Lessig has a petition to fire Ortiz.  You should sign it.  Either Obama will fire Ortiz, which is good, or he won’t, which will make clearer how broken the official systems of protest and redress are.

Fire Ortiz.