Archive for the ‘violence’ Category

The Face of Innocence?

July 7, 2011

I’ve been engaged in a four-day Continuing Legal Education marathon, so I haven’t paid much attention to the Casey Anthony trial (unlike the OJ trial, which I actually used as material for the college English classes I was teaching at the time.) But last night I got seriously overdosed with it on the news and Nightline and Frontline. And once I finished working today, while checking my email, I stumbled across the proposed text of “Caylee’s Law” (which would make it a felony for parents to fail to notify police within 24 hours of a child’s disappearance or within an hour of a child’s death.) For those of you who have been residing under foreign rocks for the past 20 years or so, it has become standard American practice to respond to any really outrageous crime, especially if the victim was a child, by passing new laws to keep that particular crime from recurring, and name the law after the victim in question. This raises Mother Jones’ maxim “Don’t mourn, organize” to a new level of literality.

Well, never mind that constitutional law expert Lawrence Tribe says “Caylee’s Law” would probably not pass constitutional muster, as it seems not to further any properly authorized federal purpose. The public’s problems with Caylee’s case are pretty much the same problems they had with the OJ trial, and the Susan Smith trial, and a whole bunch of others in between. Specifically:

1) The public saw a completely different narrative of the crime than the jury did. The trial narrative the jury saw was flattened out by the exclusion of all kinds of evidence that was fair game for the media outside the courtroom—stuff that one side or the other or the judge on his own motion excluded as irrelevant, prejudicial, or just plain boneheaded, but that the public absorbed in order to formulate its understanding of what really happened. Having formed that narrative, the public either can’t understand that the jury saw an entirely different set of facts, or is also outraged that the jury didn’t get to see and hear what the rest of us did.

2) The public, like Aristotle, believes that character is destiny. It is mere commonsense to believe that bad things are done by bad people. Proving that a defendant was a bad person is sufficient to convict her of a bad act. And, moreover, even if she didn’t exactly commit that particular bad act, we are better off if she gets locked up so she can’t commit her inevitable next bad act in our community.

3) The Anthony trial certainly did a good job of proving that Casey was, if not a bad person, at least a serious wack job. So, apparently, are most of the members of her family. (BTW, who was Caylee’s father? Apparently we don’t know. If we are to believe, as Casey’s attorney tells us, that Casey was a victim of incest, is that somehow connected to the paternity issue? And why was nobody else in the family speaking to Casey’s brother? Could he have been the child’s father?) The jury may have found the oddities of Casey and her family grounds for mitigation of responsibility. The public, however, seems to think they are, if anything, factors in aggravation. Crazy people scare us. Lawyers may think that proving a defendant too wacked-out to be responsible for his crime means he should be released. The rest of us think that a defendant who is that wacked-out is too dangerous to be out on the streets. A middle position, that such a person should be locked up for appropriate treatment, is hard to sell, because most of us know just how difficult it is to get somebody hospitalized for mental illness for long enough to treat it adequately. As a result, the two largest mental health facilities in the country now are the Cook County Jail and the Los Angeles County Jail.

4) It seems most likely that the jury simply found the evidence insufficient to convict Casey of anything but lying to the police. Ever since the OJ trial, we have been hearing jeremiads about how demanding juries are getting, demanding not merely absence of reasonable doubt, but an airtight case, in order to convict. The case against her was largely circumstantial, and just about every element of the prosecution’s evidence was susceptible to explanations other than Casey’s guilt.

5) It would be interesting to run a study, over the last 40 years or so, of how judges and juries treat mothers charged with killing their children, as opposed to fathers charged with the same offense. OJ, unfortunately, was not an infanticide case, so the gallows humor with which the public followed it doesn’t necessarily prove anything, as compared with their attitude toward Casey, or Susan Smith, or even Andrea Yates. But it is easy to suspect that the double standard cuts especially hard against women in these cases.

6) Which, for some reason, brings to my mind Sir Walter Scott’s novel, The Heart of Midlothian, which turns on a Scottish law against infanticide, passed in 1690: “Any woman who shall conceal her being with child during the whole time of her pregnancy, and shall not call for, or make use of, help in the birth, is to be reputed the murderer, if the child be found dead or missing.” Sir Walter, BTW, had training in the law, and bases the novel on an actual occurrence in his day (early 19th century.) His account admittedly stretches credulity, by demonstrating that a woman could be guilty of the conduct described in the Act and still bear no responsibility for the death of the child, and indeed, that the child might ultimately turn out not to have died at all. Which is pretty much the kind of argument Casey’s attorney made, and the jury accepted, though the public didn’t.

7) But I guess what I find most disturbing was the reaction of the crowd outside the Orlando courthouse when the verdict was announced. Two generations earlier, it would have been the makings of a lynch mob. The crowd was demanding “justice for Caylee,” as if that poor child were not far beyond whatever human justice could offer, and now in the hands of the Ultimate Mercy. The prosecution kept claiming to “represent the victim,” which I believe is a serious mistake in prosecution philosophy. The victim, or some family member, is free to file a civil case against the putative criminal who victimized her, and to receive whatever justice is available in monetary terms. In increasing numbers of criminal cases, civil justice is also being pursued, and that is all to the good. But the goal of a criminal case is not justice for the victim. It is justice, and safety, for the community, which is who the prosecution is really supposed to represent. The damage to the victim, and even to her family, can never be made to “unhappen.” No amount of punishment of the victimizer will accomplish that. If we cannot accept that in some way the Holy One will someday wipe away all tears from our eyes, we have to live with the injustice and hurt that the criminal has done to the victim and to all of us.

8) The footage of the actual trial raises a couple of interesting questions:

a) Illinois is one of the few states that still forbids televising most court proceedings, on the usual grounds that the camera will bring out the ham in all the participants. I find those arguments unpersuasive. In the first place, with or without cameras, trial lawyers are hams. It is part of their job description. In the second place, most people, whether professionals or merely parties and spectators, get used to the camera enough to mostly forget about it, very quickly. And the Founding Fathers believed very strongly in public trials (as public as the technology of the 18th century could make them, anyway) for very good reasons. We need to know what our justice system is doing in our name, for our presumed benefit, and on our money. Seeing it at work should not be a privilege reserved for professional spectators such as journalists, or dedicated amateurs such as retiree law buffs.

b) And finally, the law says that the jury is entitled, or even required, to take into account, as evidence side by side with smoking guns and weeping witnesses, the demeanor of the defendant. I watched Casey go from grave to stone-faced to laughing to crying and round about again, and I wondered what conclusion the jury was drawing from her demeanor. I have heard people say that a defendant “looks guilty” for smiling, or not smiling; for showing emotion, or not; for responding with visible anger to being bad-mouthed by the prosecution and its witnesses, or not. If you get a chance, watch Meryl Streep’s performance in “A Cry in the Night” (drawn from a true incident, also about a mother accused of killing her child) and how much dislike she draws from the public for her apparent lack of emotion. But hysterics can have the same result. The problem, so far as I can tell, is that we have no idea how an innocent person behaves. Maybe this is because we really don’t believe in innocence, at least in the context of a criminal court. If the defendant is charged with Aggravated Mopery, or whatever, that generally goes pretty far to convince us she is guilty. The fact that the Anthony jury managed to transcend this presumption speaks astoundingly well for them. Maybe there’s hope for us after all.



May 29, 2011

Recommended Reading

I have a client who now resides in a nursing home and is in the early-to-middle phases of dementia. She is also a sci-fi fan, so whenever I clean out my bookshelves, I take the proceeds to her. I am discovering that, while that improves the quality of my life, it doesn’t necessary change hers all that much. Because one of the few so-far-unheralded upsides of dementia, at least in its early phases, in that you get what I have always wanted—multiple opportunities to read the same book for the first time.

Among the books I have especially wanted multiple shots at in this way are John Brunner’s line of speculative novels: Stand on Zanzibar (1968), Jagged Orbit (1970), The Sheep Look Up (1972), and The Shockwave Rider (1975.) And I spent a fair amount of time wishing there was somebody around right now who writes that kind of stuff, preferably in batches rather than an occasional one-off like Orson Scott Card’s Empire and Hidden Empire (okay, that makes them a two-off, I guess.) I think I’ve found one—John Barnes, author of Mother of Storms, Directive 51, and The Man Who Pulled Down the Sky.. Unlike Brunner and Card, he does dabble in the Irwin Allen school of writing (one damn disaster after another), but in the process he takes a serious look at the trajectories of current social, technological, economic, and political phenomena. Consider this a recommendation.

The Unknowing God

For a period that lapped over into my college years, the existentialists told us that the human race is engaged in a frantic effort to become god. As I think about it these days, I am increasingly convinced that many of us already are god, and we are failing to notice it (and falling down on the job) to a dangerous extent. Me, for instance. Most of my days I spend working, on the phone, on the computer, at the office, in court, at home running around finding things (and of course losing things and not realizing it till later), shopping, and so on. If in the middle of all this, I sit down and call the Wired Cat, and she comes over to me, sits down at my feet, and reaches out her front paw to pat my leg, to which I respond by reaching down to rub her head between her ears and down to her neck, for her this is a religious experience. Her divinity has taken time out from managing the universe to communicate with, relate to, and pleasure her. Sometimes, like most divinities, I do things she really doesn’t like, such as taking her to the vet. She seems to accept this as good for her in some way that I understand and she doesn’t. She’s lucky enough to have a divinity who doesn’t do any of the awful things to her that one hears about on Animal Planet (Mr. Wired is an Animal Cops junkie and a hard-core groupie of Anne-Marie Lucas.) But if it did, she’d probably accept that too, as most domestic animals seem to. The ones who have been too utterly traumatized retreat into the animal counterpart of atheism—the feral life. (Atheism is not actually the right word—I am not the first to wonder if there is a word for somebody who believes in the Holy One but just doesn’t like H* very much.)

And of course, to our children, and to most of the children we come into extended contact with (as teachers, for instance, and maybe as pediatric health professionals), we are also god. (Note the lower-case initial, used—as Grace Slick explained when she named her kid “god”—so we won’t get stuck-up about it.) So far as the kids can tell, we (especially parents but adults in general to a considerable extent) run the universe, and occasionally take time out from doing that to interact with the kids, for better and for worse.

The Bible actually plays with this idea. For instance there are two or three references to judges as gods. (One suspects some of the human authors of these passages spent some time on the bench themselves—certainly ordinary human judges have always tended to see themselves as some kind of deity.) Moses is told that he is going to be “in the place of G-d” to Pharaoh, and that his smoother-talking brother Aaron will be his “prophet.”

And there is a story about a rabbi (Hasidic, I think) who, upon being told that somebody he knew was an atheist, said something like “Well, that’s good. It means that if he sees somebody who is poor or in trouble, he won’t just say ‘G-d will help him,’ he’ll get up and actually do something for the guy.” Even professionally religious people may have a kind thought for people who, not believing in a divinity, feel obliged to fill in for H*.

Which, if you accept the hard-core deterministic schema of the behavior of all non-human entities, means that human beings and their actions are the only preserve of free will in the universe, and thus also the only rational place for the divine to operate, by inspiration and impulse. Many rational religious people have trouble believing that the Holy One has ever made the sun stand still or water run uphill, but will accept a divine push toward extraordinarily decent human behavior—in other words, that we are not exactly in the hands of G-d, sometimes we are the hands of G-d.

Jane Grey
War is the End, part II

Does anybody else remember the study that told us we could have won the hearts and minds of the Vietnamese people by giving $10,000.00 to every man, woman, and child in that country, and still have spent less than the $686 billion we actually spent on the war? (Another sourcing problem, obviously.) Anyway, Cecil Adams, of “The Straight Dope” has heard from a history scholar who says the North could have bought and freed all the slaves in the then-US for something like $72 billion in present-day dollars, which was also considerably less than the overall cost of the Civil War, especially if you reckon costs and damages on both sides, which of course all ultimately came out of US GNP. This once more tells us that wars are almost never “about” their official causes and purposes, which could almost always be implemented a lot more cheaply, easily, and with less violence. War itself, or some so far unknown concomitant of war, makes it an irreplaceable element of human polity.

Red Emma

Life Among the Condonauts

I just opened a mysterious envelope from a fellow resident of our condominium building, to discover that, as a member of the condo association, the Wired Household is being sued by another member of the association and by our really heroically estimable janitor, for the alleged misconduct of the erstwhile chair of the association, our upstairs neighbor. This is a peculiarity of condo law-—in order to obtain a remedy for some misbehavior by condo association officers, you have to sue the association, even if you are a member of it. Which means that you are, in a sense, suing yourself. You are certainly costing yourself money. All the costs of defending the suit come out of the pockets of the residents. We could even wind up paying the costs of the other side. This damn thing has got to be mediated, ASAP.

I am the only attorney I know who lives in a condo (for 31 years now) and has never served on the board. I really want to keep it that way. Lawyers are easy marks for pleas of communal obligation. But condo boards are a time sink. I just sent a frantic email to the plaintiffs asking them to please consider mediation. Yikes!


War is the End; the State is the Means

April 27, 2011

Just finished reading Nicholson Baker’s piece on pacifism in the latest Harper’s. It dovetails nicely with some other thinking I’ve been doing lately. Specifically, I’m remembering the ten years of the Vietnam War, and what it felt like at the time, and trying to figure out why Americans, even those most opposed to the current ten-year wars in Iraq and Afghanistan, are so much less passionate in their opposition than we were to the Vietnam War. One of the major differences, of course, is that we have no military draft today.

I was very active in the struggle against the draft during the Vietnam War, and got the ultimate rush, 20 years later, when one of my students, in a discussion of relatively recent history, literally could not remember the words “draft” or “conscription.” By George, I thought. We really did it! Many of my more radical friends and colleagues, at the time, predicted that ending the draft would take a lot of the juice out of opposition to any future wars. I allowed that they were probably right, but that even so the unspeakably hard choice to kill or not kill ought not to be forced on any unwilling person. I still believe that. But it’s obvious that, without a draft, this war, or the next or the next after that, could conceivably go on forever. That’s how all those European wars—the Seven Years’ War, the Thirty Years’ War, the Hundred Years’ War—got to be so interminable. They were not fought with conscript armies. Neither were the conquests that built and maintained the Roman Empire over 400 years, or the British Empire for 200+ years..

Baker takes up the issue based on what most of us have seen as the ultimate hard case against pacifism, the Second World War/the Holocaust. If you assume, as most of us have after the fact, that the war was necessary to save what was left of the Jews in Europe, then how could one argue against it? What originally disabused me of that notion was reading Arthur Morse’s While Six Million Died, published in 1967. Subsequent research only strengthens the premise of that book—the Second World War may or may not have put an end to the slaughter of the Jews of Europe, but it clearly was not fought for that purpose. We need to disentangle the war from the Holocaust to make sense of either of them.

In point of fact, to be sure, the Holocaust and World War II went on at more or less the same time, and were instigated by a lot of the same people. But they were very different phenomena. They gave rise to very different responses (even from the same people.) And, while they were causally inextricably related to each other, that relationship was almost unimaginably complex. The war provided a pretext for the Holocaust, as war almost always provides a pretext for oppression (up to and including murder) of noncombatant minorities, viz. the Armenians. And the Holocaust, ultimately, obstructed the Nazi conduct of the war, probably fatally. Hitler wasted resources on killing Jews and other “inferior” races that he could have devoted to beating the Allies. (Which may partially account for the reluctance of the Allies to do anything that might have impeded the Holocaust.) He expelled from Germany the Jewish and anti-Nazi scientists who might have given Germany the nuclear bomb. The Six Million, arguably, were martyrs to the Allied victory. Without their deaths, that victory might never have happened.

Those who opposed the Nazis at the time, both in Germany and elsewhere, opposed them, not because of their treatment of Jews and other minorities, but for pretty much the same reasons the Allies had opposed Germany in World War I and the democratic forces in Germany had opposed the Kaiser. Hitler was well on the way to conquering the world. In the course of doing so, he had eliminated most of the hard-won democratic rights enshrined into law in the Weimar Republic. Which is what happens to the civil liberties of citizens in almost any war. Good enough reasons, to be sure, and by no means to be sneered at. But even the staunchest anti-Nazis, at home and abroad, at best had little concern for the Jews, and at worst viewed the racist Nuremberg Laws as one of Hitler’s few good moves. This was as true of anti-Nazi resistance in occupied countries as in Germany itself. Indeed, there were anti-Nazi partisan units in Eastern Europe that killed Jews in their spare time, when Nazi-fighting got slow.

The British found it inconvenient to notice the plight of the Jews, because they were being called on to respond by opening up Mandate Palestine to Jewish refugees, at the expense of British relations with the Arabs. The Americans stayed out of the war until Pearl Harbor was bombed, fortuitously, by the Japanese–because American public opinion tended to side with the Germans against the Jews, but could easily enough be swayed against non-whites who had had the nerve to bomb American territory. The French had no choice but to respond to the invasion of their territory–but their struggle against the Nazis stopped short of any serious effort to protect French citizens of Jewish ancestry, much less alien Jewish refugees from further east. Indeed, rounding up Jews was one of the few activities in which many of the French cooperated willingly or even enthusiastically with the Germans.

The allied War Crimes Trials in Nuremberg made clear what the Allies considered to be the real offenses of the Nazis: violation of treaties, making of aggressive warfare, and torture and murder of Allied prisoners of war. The Nuremberg trials had virtually nothing to say about Nazi treatment of enemy civilians, and nothing whatever about Nazi mistreatment and murder of German and Austrian citizens. It was left to the Israelis and the successor governments of the formerly occupied countries to prosecute those crimes. Obviously none of them were in any shape to do so until at least the 1950s. By then many of the major war criminals were safely hidden away on other continents.

The switching of gears came in the 1960s. It was partly precipitated by the capture and trial of Adolf Eichmann (and Hannah Arendt’s in-depth coverage of it) between 1961 and 1963, and partly by the intensification of the Vietnam War. At that point, hawks, especially liberal hawks like the Henry Jackson faction of the Democratic Party, were holding up World War II as a shining example of a just war fought to protect a helpless minority against a marauding dictator, and a model for U.S. participation in the Vietnam War. It was the American war machine which, in the words of Herman Wouk, “kept my grandmother from being turned into soap.” Draft boards and congressional hawks stated over and over again that opposition to the Vietnam War was equivalent to the America Firsters’ opposition to American participation in World War II, which in turn was tantamount to endorsing the Holocaust. The “war crimes” actually tried at Nuremberg were hardly ever mentioned–except occasionally by anti-war advocates. Pro-war forces gave up their use of the Holocaust analogy only after the My Lai massacre, when it became fairly obvious that the U.S. military was killing at least as many civilians as the Viet Cong.

In the Vietnam and post-Vietnam rationale, the reason the Nazis were Bad People was their murder of helpless civilians, especially Jews. American World War II movies made in the ’60s and after often portrayed German soldiers who weren’t in the SS as “good Germans”, tragically honorable men doing what any patriotic citizen would do (including, presumably, aiding and abetting all the crimes prosecuted at Nuremberg), as opposed to the “bad Germans” who ran concentration camps. It might be inhumane to put civilians into concentration camps and gas them, but strafing, shelling, or dropping bombs on them from overhead was just a normal exercise of warrior morality, i.e., the same sort of thing our warriors were doing.

Getting back to Baker, he goes into considerably more detail than Morse about pacifist opposition, and the reasoning behind it, to American participation in World War II. Many of the pacifists of that era, including important Jewish spokesmen, accepted well before our time the premise that the purpose of any such participation was to save the European Jews, and by extension the Jews in the rest of the world not yet directly threatened by Hitler. But why not find some way to save the Jews that did not involve widening the war? they asked. “The Jews needed immigration visas, not Flying Fortresses. And who was doing their best to get them visas, as well as food, money, and hiding places? Pacifists were,” Baker points out. Moreover, if the purpose of the war was to stop Hitler, war might be precisely contraindicated. “…what fighting Hitlerism meant in practice was…the five-year-long Churchillian experiment of undermining German ‘morale’ by dropping magnesium fire-bombs and 2,000-pound blockbusters on various city centers. The firebombing killed and displaced a great many innocent people—including Jews in hiding—and obliterated entire neighborhoods. It was supposed to cause an anti-Nazi revolution, but it didn’t….If you drop things on people’s heads, they get angry and unite behind their leader. This was, after all, just what happened during the Blitz in London.”

Baker takes a perspective on the Holocaust that I found startling: that it was “the biggest hostage crisis of all time.” Hitler’s threats against the Jews of Europe were largely unfulfilled before the US entered the war. Many anti-war activists proposed negotiating at that point, when the US still had something to offer in exchange for the lives of Europe’s Jews. Holocaust historians Saul Friedländer and Roderick Stackelberg suggest that, although Hitler had long planned the killing of all Jews under German control, “its full implementation may have been delayed until the US entered the war. Now the Jews under German control had lost their potential value as hostages.” The first extermination camp, Chelmno, began operations, coincidentally (?), on December 8, 1941. Pacifist and near-pacifist advocates continued to call for “peace without victory”, an end to military operations in Europe on condition that the Jews be allowed safe passage out of Europe. It was not a popular suggestion among Allied politicians. Among the excuses for not even considering this possibility were Churchill’s statement that “[e]ven were we to obtain permission to withdraw all Jews, transport alone presents a problem which will be difficult of solution.” Anthony Eden, his foreign secretary, told the American Secretary of State that “Hitler might well take us up on any such offer, and there simply are not enough ships and means of transportation in the world to handle them.” This from the engineers of the Dunkirk evacuation two years earlier, who had gotten nearly 340,000 men from the French beaches to England in a mere nine days!

Baker is either a nicer person than I, or just more cautious. These lame obfuscations make it obvious to most modern readers that the Brits—and the US State Department—would not have wanted a massive influx of Jewish refugees even if all of them had somehow grown wings to fly themselves out of Europe. The real point was that both countries had a lingering substrate of anti-semitism to deal with, both in the general population and among their diplomatic apparatchiks in particular. Many of their citizens were likely to be lukewarm in their support of the war if they thought its purpose had anything to do with saving Jews. The diplomatic establishments were nice enough to consider acknowledging this in official communications to be a breach of etiquette, but not decent enough to overcome it with an offer to save Jewish lives. If the Jews were to be saved, the Anglo-Saxon alliance was declaring, it would have to be as an incidental—or perhaps even accidental–by-product of a war being fought for utterly different reasons.

If even World War II, for which the most noble and humanitarian purposes have since been adduced, was not in fact fought for those purposes, what does that say about the rest of the wars which have bloodied the world since humans first aglommerated into groups large enough to have wars? What are the real reasons for war?

The first and most obvious one is They hit Us first. Beginning with the first blood feud, this becomes problematic, because each “first blow” from Them always turns out to be a response to a pre-first blow from Us, and so on. So let’s abandon that game, or at least recognize it for the fraud it is.

The next most popular reason is They might hit Us first, if We don’t hit Them first,which is vulnerable to the same realities.

Then there’s if We don’t hit Them, Those Other Guys Over There might think We’re weenies and start hitting Us. In this age of universal publicity, it should be fairly easy to deal with this proposition without actually hitting anybody.

The fact that both sides, in any war, can come up with some reason for their behavior makes it pretty clear that those reasons are really nothing but excuses.

So if there are no bona fide purposes for war, why do we do it?

I suspect that this hypothesis isn’t even original, but war is not a means to achieve an end. If it were, many of those ends might be achievable by other means. Somehow, that never happens. Because war isn’t a means, it’s an end. Clausewitz to the contrary notwithstanding, war is not the continuation of politics by other means. It is the purpose of politics. It is the purpose of the nation-state (and the street gang, and the clan, and arguably the religion, and maybe even the family.) Domestic politics, and government, and the arts of peace are merely things to do in the interval between wars, to give the crew time and resources to break down the set, get the audience out, build up the new sets, find a new script and get all the lines learned, and then get the new audience in. In the American political context, the Republican party is more honest about this. The Democrats are willing to help us fool ourselves that we don’t choose war. Like Michael Corleone in his declining years, we just get pulled into it against our will because we’re such nice guys. The post-Vietnam series of wars and incursions—Panama, the Balkans, Lebanon, Kuwait, Iraq, Afghanistan—aren’t an aberration. Vietnam was the blip. Vietnam was the play to which we reacted as if it involved real people dying real deaths. Abolishing the draft has revived the concept of the “theater of war.” Vesti la giubba.

Red Emma

Is Bullying a Childhood Disease?

January 18, 2011

Or: The Upside of the Gun Epidemic.

We are, suddenly, hearing a whole lot about bullying in schools. Schools are making regulations against it. Local governments are even passing laws against it. A generation ago, it was ignored the same way measles and mumps were ignored, as a stage most children had to get through, which most of them would survive more or less undamaged. These days, of course, we don’t ignore measles either. In both instances, it is mostly because we have finally noticed that bullying, and measles and mumps, can be deadly, or at least seriously disabling. I’m not quite sure what brought the grave consequences of “childhood diseases” to our attention, but I’m pretty sure what did the job for school bullying—guns. As long as the victims of bullying suffered in silence and the perpetrators were given the protective cover of “boys will be boys,” adults didn’t have to take notice. But when both bullies and victims turned up in school with guns, the jig was up, the cover was blown, and the cat was out of the bag.

We are all acquainted with the basic pattern. A kid will be targeted for being fat, or skinny, or dumb, or smart, or sensitive. His classmates will vandalize his property, beat him up, steal his lunch money, or stuff him into lockers on a regular basis. The kid will seek help from the teachers, who will generally tell him that “you will have to learn to solve your own problems,” or will tell all the students that “all of you will have to learn to resolve your own differences,” as if the problem were merely a disagreement about whether Eminem or Fifty Cent is the better performer. If the pattern continues, all the kids involved, both victims and perpetrators, may be punished, with majestic impartiality, for “fighting.” Sometimes the punishment will involve victim and perps being placed in detention in the same room.

At some point, some adult, either teacher, “counselor”, or parent, will tell the victim “if you just don’t react to what they’re doing, they’ll stop. They only do it because you show them how much it hurts.” This tells the victim two things: (1) that the bullies aren’t picking on him out of ignorance (no matter what Socrates says), they really want to hurt him; and (2) what they’re doing is normal and natural; he’s the one with the problem.

A more up-to-date approach currently being tried in some schools is the teaching of “victim empathy,” or “how would you feel if somebody did that to you?” This at least has the merit of recognizing that it is the bully who has, and is, the problem. But it ignores one of the more remarkable findings of social scientists who study bullying, which is that a large proportion of the victims also engage in bullying behavior themselves, and vice versa. So they already know exactly how it feels when somebody does it to them. In fact, that may be why they do it—revenge, or inoculation, or trying to get in with the perp crowd for their own safety.

But at some point in this pattern somebody—apparently it can be either the victim or the bully—will show up at school with a gun and blow away several teachers and classmates. Then we start to deplore violence in our schools.

Is bullying universal, among all children and adolescents? We don’t know. We do know it isn’t restricted to 20th- and 21st-century North America. It turned up in Victorian England, and is widespread in Japan.

The use of laws and regulations to deal with bullying seems excessive to most of us, accustomed as we are to regard anything done by or to children as insignificant. But, ultimately, we have been persuaded by the introduction of guns into the equation that this stuff is more serious than it looks. Reluctantly, we are willing to “criminalize” what is still viewed as more or less normal juvenile behavior. What we have not yet been willing to recognize is that most of it would already be criminal, if the victim were an adult. Beating him up? That’s assault and battery. So is stuffing him into a locker. Stealing his lunch money? Petty larceny. Vandalizing his property—that’s criminal damage to property. Even the less physical kind of bullying typically engaged in by girls is usually prosecutable as defamation, harassment, cyber-harassment, stalking, and invasion of privacy. And would have been, long since, if the victim were not a child.

We really have viewed bullying between children as a kind of childhood disease which can confer immunity against the same kind of problem among adults. “Let him learn how to handle it now, while the stakes are low,” we sometimes figure. “Then he’ll be able to handle the Boss from Hell, or the Drill Sergeant.” Unfortunately, like measles, bullying in childhood can kill or disable. And, like measles, bullying among adults can also be deadly. (See the literature on workplace bullying for more data.)

Are laws the best way to solve this problem? Probably not, especially in the US where we tend to ignore most of the laws against physical battery and assault, except those protecting specifically vulnerable populations like women, children, people with disabilities, police officers, and ethnic minorities. We really haven’t internalized the laws against beating up on “people in general,” which is why laws against domestic violence, child abuse, elder abuse, and so on, have had to be imposed in the first place. And probably why so many of us—especially those not protected by those particularized laws, like adult white males–feel it necessary to carry firearms.

I suspect, though I know of absolutely no data to support this, that the most effective way to teach our young physical self-restraint is something like the ethical codes imposed in classical Greece and Rome, the Samurai in Japan, and the knightly orders in the Middle Ages: a code that says “We are the _________________ (choose your preferred highly-regarded identity). So we don’t ______________________________(choose your preferred nasty behavior.)” Something like the West Point honor code, although that has obvious drawbacks. (Probably they all do. If we are going to invent one, we should be prepared to revise and tweak it continually.) Something that may even encourage the carrying of arms, so long as it also discourages using them. (I’m thinking here of my grandfather the Colonel, who taught all of his children to clean, load, and shoot a gun, and also taught them “you don’t pick up a gun unless you intend to shoot, and you don’t shoot unless you intend to kill.”)

But above all, it would require adults, including highly visible adults, to lead by example. We don’t want the kids to think that as soon as they’re grown up, they can beat up on people as much as they like. There are plenty of role models out there, even among our regularly armed citizens, such as police officers and soldiers. But the cops and soldiers who themselves regularly engage in bullying would need to be placed under better control. If we want to keep kids from shooting up their schools, we will need to start with the rest of us. And if we are serious about telling them “violence is not the answer,” we will probably need to come up with a better question than “How can I get what I want, when I want it?”


A Day Like All Other Days…

June 29, 2010

…filled with the events that alter and illuminate our time, but –you get the idea. Yesterday was fairly amazing. The Supreme Court says the Second Amendment applies to state and local governments. (And Justice Stevens has his last day on the court, and Justice Ginsburg’s husband dies.) John Burge is found guilty of perjury and obstruction. Alex is becoming a hurricane. Eleven Russians are busted for –what? Spying? Not exactly.

Burge is probably the least familiar item on this list, to most readers. He was for many years a police commander in Chicago, in one of the more crime-ridden districts. In that capacity, he was accused of torturing suspects to extract confessions, some true, some not. He was sued for many of these incidents, and cost the Chicago taxpayers a whopping chunk of change. But nobody got around to bringing criminal charges until after the statute of limitations had run out. So the feds ended up charging him with perjury and obstruction of justice in the various civil cases. Burge had the nerve to testify, not only that he had never committed any act of torture, but that he had never known of any such act while he was on the job. Apparently he expected the jury, which was after all composed of people too old to believe in Santa Claus and the Tooth Fairy, and therefore could not possibly have believed that Burge never even knew of the torture of suspects, to approve it by acquitting him with a wink-wink nudge-nudge, because after all, the victims were “rats” and “garbage.” It would have been a ringing endorsement of government by cop. And the jury, bless their hearts, refused to do it. Three cheers!!

Then there’s the Second Amendment. This one scares me. Admittedly, Chicago’s stringent gun laws have not prevented 80 shootings and 13 gun deaths in the last two weeks. But legalizing the guns already on the street can only make things worse. From a lawyer’s point of view, what this decision has probably set off is a stream of litigation similar to that spawned by Roe v. Wade. The Court spent the twenty years after Roe parsing out what state and local restrictions on abortion were an “undue burden” on the constitutionally established right to choose to terminate a pregnancy. Now we’re in for twenty years or so of working out what state and local restrictions on gun ownership are an “undue burden” on the Second Amendment right to bear arms. Will the automobile analogy hold up, so that it’s okay to require a license, and registration, and a test of competence, and even education? How about ballistic “fingerprinting” of every gun? Liability insurance? One can only hope.

Russian spies, after all these years? This one is plain mysterious. Apparently they’ve been under surveillance for ten years. And the charges have to do with “infiltrating” so as to be in a position to spy, rather than actually spying. They are charged, as nearly as I can tell, with behaving like ordinary middle-class American family men and women. O Levittown, where is thy sting?

Alex is on its way to becoming a Level 1 hurricane. It won’t directly interfere with the BP efforts at cleanup, but it won’t help any either. And speaking of the BP cleanup, every time I turn on the tv these days, I encounter a super-slick (you should pardon the expression), beautifully produced BP ad telling us how wonderful their cleanup work is and how well it’s progressing. Which they evidently expect the American public to accept at face value (not unlike the Burge defense expectations of the American jury.) Those ads obviously cost a mint to make. They were necessary mainly because BP is shutting the press out of the scene of the crime–oops–cleanup, so we don’t get any other information about it. If the press were allowed in, obviously, they’d tell us all about it on their own dime. And BP could use its ad budget to better fund the cleanup. We should be so lucky.

A bit further back in the news, a 5-inch turtle kept an AirTran flight on the ground in Atlanta until the jackbooted thugs of the TSA made its 10-year-old owner take it off the plane and throw it in the trash. (BTW, in looking up this incident I discovered that TSA also stands for “Turtle Survival Alliance.” Really.) But this story does have a happy ending—eventually the turtle, none the worse for its traumatic experience, was reunited with the owner’s father. OTOH, last week, when another plane landed unexpectedly in the middle of the night at a small “international” airport, the passengers were kept on the plane for three hours because no TSA or ICE staff was available to check on them. So, just in case any of them might be terrorists or illegals or whatever, they were not allowed to set foot on US soil. TSA, in short, is now replacing school administrators as the apostles of Zero Tolerance, which is Newspeak for Infinite Control, Zero Common Sense. (But no turtles were harmed in the earlier incident.)

Red Emma


April 1, 2010

or, Walter Mitty Meets the AntiChrist

This is maybe not a fair way to describe Hutaree, since apparently most of their members have some real combat experience. But they do sound more like re-enactors than real terrorists. Their alleged plot to kill a cop and then blow up his funeral procession is a nasty one (considerably more so than the Catonsville Nine’s alleged plot in the 1970s to kidnap Henry Kissinger.) But I’m not sure they were any more serious about it than the Merry Band of Berrigans. I’m also not sure that getting married with their guns at the ready is much different from getting married to their guns. And they’re just too upfront to be real, an FBI dream (and possibly an FBI setup, like the Catonsville Nine.) If I were a real terrorist, I would probably use a re-enactor cover for our group, and nobody would notice us until it was too late.

The legalities of prosecuting them may be complicated, too. The closest analogy would be the Jehovah’s Witnesses, to whom the Selective Service (during WWII, I think) denied conscientious objector status because the Witnesses believe they are not merely permitted but obligated to fight in the final battle between Good and Evil, and therefore are not opposed to “all war”, as required by law. The Supremes took the rather improbable position, not that this final battle is a metaphor, but that it is simply not going to happen, so that the Witnesses could, if they wanted to, qualify for CO status. [Most of them, BTW, demanded clergy status instead, got turned down, and ended up in prison. But I digress.] Since, presumably, that is also the battle Hutaree is training for, the case against them may not hold up any better than the case against the Witnesses, unless the Supremes in the meantime have decided Armageddon is a real war.

The “official” Michigan Militia has disowned Hutaree (rather like the “official” IRA disowning the “provisional” IRA) without necessarily denouncing the principles of that group. The spectrum of right-wing dissent seems to have become denser than it was 20 years ago. One hopes that the Southern Poverty Law Center, which is the most competent monitor of such groups, recognizes the possibility that government provocateurs are behind the whole thing. Your tax dollars at work.

Red Emma

International Politics As If People Mattered

March 11, 2010

There’s an old story about a town in the area of Eastern Europe that changed hands between Russia and Poland several times between 1850 and 1940. A couple of men met on the street there, and one of them told the other, “Ivan, I hear we’re about to become part of Poland again.” “Thank heaven, Boris,” said the other. “I don’t think I could have stood another one of those Russian winters.”

Which is a good starting point for any examination of how the nation-state, and the relations between nation-states, affect ordinary people who happen to live there. Another good starting-point was contributed by my former teacher Marshall Hodgson, who in discussing the wave of decolonization that swept the Muslim world after WWII, pointed out that freedom for a nation does not necessarily mean freedom for its people, at least not all of them.

The model we have been operating under since the end of feudalism is that a nation-state consists of a specific piece of territory and the people on it. The government of each state promulgates and enforces the laws by which the people live. Ideally (that is, in a democratic state), the government is chosen by the people (or at any rate, by a majority of the people.) But we accept any government as the legitimate sovereign head of a sovereign state, as long as it gets to be the government by a procedure consistent with the law in effect in that state at the time of its accession, whether that procedure involves majority vote by universal suffrage, lottery, single combat, or a hot game of spin the bottle.

“‘Sovereignty’,” as the science fiction writer Robert Heinlein points out, “lies between ‘sober’ and ‘sozzled’ in the dictionary.” Normally, it includes control of relations with other sovereign states, and complete control over “internal affairs” within the state’s territory.

Or does it? The Nuremberg trials and the various international conventions and treaties opposing genocide and supporting human rights have somewhat eroded the legitimate power of even a legitimate government over its subjects. Can a sovereign state simply place an entire class of its subjects in a state of outlawry, strip them of citizenship, the right of residence, property, liberty, and life, as long as it obeys its own laws in doing so?

It depends.

Such behavior is certainly violative of several different treaties and conventions. Many but not all of the nations whose governments engage in such behavior are signatories of some or all of these treaties. So, if there were some uniformly dependable enforcement mechanism for such treaties, it could be invoked at least against those signatories.

That’s a major ‘if.’ In a discussion of events in the Balkans in the 1990s, a friend of mine analogized the position of the United States to that of the biggest guy in a bar, in which a gang of bikers is beating up on some little guy. It is our job as the biggest guy in the bar, said my friend, to defend the poor helpless victim. My immediate response was “the biggest guy in a bar has exactly the same obligation as everybody else in that bar–to call the cops.” Which is what a uniformly dependable enforcement mechanism for human rights, with jurisdiction over all violations of international law, would be. At the moment, of course, in the forum of nations, there are no cops.

Before we start wishing for the establishment of such a police force, let us remind ourselves that the real police (even in societies where the police force is impeccably honest and efficient, and has the full support of the surrounding culture and most of the citizens) still have–and use–the discretion not to act. No police force is required, or willing, or (probably) able to act against every violation of every law. The best police forces exercise their discretion based on such criteria as: can we be spending our time and resources enforcing some more important law? Preventing more serious harm? Are other social mechanisms available to solve this problem as well as the police can, or better? The less admirable will ask such questions as: can we be protecting more important people (or their property)? Can we be arresting less important people? Can we protect the people most likely to vote us a raise? Any global police force would probably have to retain the same discretion not to act, perhaps subject to some more explicit criteria. So any proposal to set up such a police force ought to include the criteria by which they may choose to act or not to act, or the mechanism by which their involvement will be triggered.

Which brings us back to the present. The United Nations as presently constituted can’t function as the global police force, because it can act only through the Security Council, which can be immobilized by the veto of any one of its members. (Imagine your city council unable to mobilize the cops except by the consensus of every local ethnic and religious pressure group, plus the NRA, the local street gangs, and the Chamber of Commerce.) Aside from the obvious–no nation will cooperate in calling the cops on itself–there are also more complex relationships: no nation will call the cops on its historic allies. Which means the cops will be called, under current conditions, only on relatively weak and friendless nations. (Come to think of it, this is not too different from the way the real cops function in many localities.) So if you are a citizen of a Big Nation (or a Little Nation with a Big Ally), and your government is depriving you of liberty, property, or cultural autonomy, or even threatening your health and life, you are strictly out of luck if you expect any help from the UN or its various agencies.

That’s Problem Number One: while we now at least have international agreements forbidding genocide and other human rights violations, we have no uniform and reliable mechanisms for enforcing them.

What we do have, instead, (here comes Problem Number Two) are the various ways nation-states interact with each other, for better and for worse. At their most civilized, nations can make deals. Contracts. Leases, even. And can fulfill those deals peacefully. One of the more visible such arrangements reached its culmination in 1997, when the Territory of Hong Kong, leased by Queen Victoria from the then-emperor of China for 100 years, reverted to Chinese rule at the end of that period. The principals in the deal–the governments of China and Great Britain–behaved with scrupulous regard for each other’s rights. But the people who happened to live on the piece of real estate in question had virtually nothing to say about it. Many voted with their feet, to become citizens of more congenial countries. They had to do this using their own resources, after finding their own destinations and getting official acceptance there, an arrangement likely to be unattainable by Hong Kong’s least affluent citizens. Neither their previous nor their prospective landlord offered them any help in moving out. They had not been parties to the original lease (a contract between an absolute monarchy on one side and a constitutional monarchy on the other, neither of whom felt any obligation to the local residents) and they were not parties to its termination.

Yet another way sovereign nations can interact is by war and the threat of war. Consider the dispute, culminating in war, in the South Atlantic in the early ’80s. The subject was an inhospitable bunch of islands called the Falklands by the Brits (who had settled them) and the Malvinas by the Argentineans (who were geographically adjacent and claimed to own them.) The islands in questions are distinguished by some of the world’s worst weather, and a population of human residents greatly outnumbered by sheep and penguins. That human population, to a man/woman, wished to remain British. Their wishes were as irrelevant to the Argentineans and their allies as the wishes of the penguins and the sheep. The matter was decided, not by majority vote of the people most directly affected, but by the superior military force of the Brits–to whom, again, the wishes of the local residents were irrelevant, although in this instance they won out.

Of course, disagreements between nation-states can also be fought out by such relatively non-violent methods as trade sanctions and embargoes. The apartheid government of South Africa was undermined and ultimately overthrown with considerable help from 20 years of such sanctions. The Sandinista government of Nicaragua (a much smaller country with far fewer resources of its own) suffered the same fate after a much shorter period. The longest-lasting embargo–by the US against Castro’s Cuba–has crippled the latter country, but seems to have had little effect on the power of its government. The same could be said, until 2003 anyway, for the government of Saddam Hussein in Iraq. What is clear in all these cases is that the ordinary people on the street felt the impact of such sanctions before the government, and felt it more severely. You have to do a lot of damage to the people of a nation before its government will even notice. The less democratic a nation is, the more damage you have to do to the people to get rid of the government or change its behavior or even attract its attention. That, of course, is the whole point of being a member of the ruling class–relative immunity to the problems of the lower orders. If being Head Honcho doesn’t get you that, whatever else it does get you isn’t worth the trouble of showing up at the Oval Office every day.

Which is even truer of outright ongoing war. The only way to battle a country into submission is to break stuff and kill people. Most of the stuff, and the people, simply by the law of averages, will not belong to the ruling class. The odd American law specifically forbidding attempts to kill foreign heads of state as such is not even necessary to achieve this result (although it seems especially strange that dropping a bomb on Muammar Khaddafy’s limousine would be illegal, but wiping out the entire town in which he resides would be legitimate warfare, precisely because more people would be killed. Got that? It’s okay to aim at tens of thousands of people, but not at any particular one of them, especially not the one you actually want to get rid of.)

There have been instances in which the ordinary people most at risk from attack on the government nonetheless welcomed it. The ANC supported the trade sanctions against the apartheid government of South Africa from the beginning. Certainly Jews and other victims of the Nazis welcomed the victories of the Allies. Our information from Kosovo during the recent unpleasantness there indicates that the Albanians still residing there welcomed the NATO bombing. This is a heroic posture, analogous to calling in a bombing strike on one’s own position to wipe out the surrounding enemy. One cannot expect it, still less demand it, from ordinary people in every situation that might require it (any more than the police can expect the enthusiastic cooperation of local civilians in the “War on Drugs” in American cities.)

Problem Number Three: Aside from economic sanctions and military action, what else can be done to protect people from their own governments? Accepting and aiding refugees is the most directly useful response. People who are willing and able to leave their homes and their countries may be able to find sanctuary elsewhere. This is scarcely a universal solution, however. It not only does not prevent “ethnic cleansing” and similar human rights violations, it encourages them. A ruler who wants to get rid of a particular group of people can steal their property and throw them out without even having to worry much about his reputation in world opinion. Once the “untermenschen” are gone, their plight ceases to be an issue. People who insist on reviving old grudges from safe haven elsewhere–the Armenian nationalist groups, for instance–are viewed as irredentists, revanchists, and crazies. Even the Jewish demand for economic reparations from the beneficiaries of the Holocaust is viewed as greedy and irrelevant. If I take your wallet, I’m a thief and may go to jail. If I take all your property and throw you out of your house, I’m a home invader and will almost certainly go to jail. But if I take all the property of hundreds of thousands of people and throw them out of their country, I will probably never see the inside of a prison, and I may even die a respected head of state.

That, of course, assumes that safe haven exists for each group of refugees. There is at least some evidence that Hitler’s original intention was simply to evict the Jews from the German homeland, and that the more murderous side of the Holocaust developed only when it became apparent that most European Jews had nowhere else to go. Since then, the UN has made itself useful by establishing refugee camps and facilities wherever people fleeing from (or evicted by) the depredations of their own government can get to. Many of these camps have become permanent fixtures in other countries, with highly visible effects on local politics and economies. The residents of such long-term camps cannot reasonably be expected to forgive, forget, and get on with their lives. They don’t have to be crazy to go on carrying old grudges and demanding return to homes that no longer exist. And the countries that host such encampments cannot be blamed for being unhappy about it. The UN may subsidize the camps and their operation, but they can do little about the social and economic impact on the vicinity.

Permanent resettlement of refugees usually works well for the refugees themselves and most of the nations that receive them. But, as previously noted, it is also an ideal solution for the original oppressor, and can only encourage those who seek to emulate him.

Short-term resettlement of refugees in camps has historically tended either to return the refugees to the same murderous circumstances they left in the first place (as in several African genocides in the last 30 years) or to shade into long-term arrangements with all the drawbacks previously noted.

The real problem (Number Four, if you’ve been keeping track), of course, is: what do the nations of the world really want to do about governmental human rights violations? Protect the victims in their own homes? Get them out of harm’s way? Temporarily or permanently? Force the perpetrating government to behave decently? Or get rid of that government? And what can actually be done by the organizations available and willing to do anything?

What the UN does–when the Security Council will allow it do to anything–is (1) care for refugees, and (2) provide peacekeeping forces where a peace agreement of some sort has already been reached. What various individual nations and alliances (such as NATO and the ad hoc grouping that carried out the Gulf War) do is fight wars–break stuff and kill people. If all you have is a hammer, everything looks like a nail. So the Kosovo problem, like innumerable others before it, was “solved” by refugee camps and bombs. The people on the ground in Kosovo could protest as the bombs fell around them, or they could cheer. But their attitude toward NATO would not affect their chances of being hurt or killed by those bombs. A sword makes a lousy shield. Even the best offense is useless as a defense.

What, if anything, do the techniques of nonviolent action and resistance have to contribute to the situation? Gandhian activist Ibrahim Rugova, who was first detained by the Yugoslav government and then released to a gilded exile in Italy, was apparently thoroughly discredited among his compatriots back home, who view him as naïve at best and a Milosevic tool at worst. But Quaker and other peace groups are, as always, widely respected for their work with the refugees. Some such groups attempted to aid the people of Kosovo on their home ground with food and medical care. This is obviously work worth doing, but it does nothing to stop ethnic cleansing.

From other side, from the point of view of nations that tried to stop or punish Milosevic in the 1990s, the debate raises yet another set of questions. Did any nation outside Yugoslavia have any legitimate national interest in Kosovo? There is no oil or other valuable resource in Kosovo. The other nations in the area may have had a strong interest in preventing or reversing the flow of refugees from Yugoslavia to neighboring countries, where they could upset the fragile ethno-political balance in Macedonia, or the marginally functional economy of Albania. But nobody further away than Greece and Turkey would likely be affected by even the farthest ripple of repercussion (unless, of course, somebody dropped a bomb on their embassy.)

The debate in the US Congress is the same one we have heard over and over since the end of the Cold War: if the US has no “legitimate national interest” in Kosovo, or Somalia, or Haiti, or Cambodia, or any other part of the world where there is no oil and in which none of the warring parties is communist, is there any other valid reason for us to take any kind of action–military or otherwise–against local genocide or human rights violations? The Gulf War was a no-brainer. There is oil in Iraq, and Kuwait, and Saudi Arabia, all either directly involved or directly threatened. But the other places hit us squarely in our most ambivalent nerve. Does a government have the right to commit its resources to defend or assist the citizens of some other country merely because they are being attacked or threatened by a tyrant?

The negative answer we often reflexively give to this question comes from two different places. The first, of course, is the ghost of Vietnam, which in turn is the ghost of “plucky little Belgium” in World War I. After the end of World War I, citizens of countries on both sides became aware that many of the “atrocities” alleged to have been committed by Germany and its allies in Belgium and France had been either highly exaggerated or actually manufactured from whole cloth. Public opinion became understandably skeptical about “atrocity stories” after that. Which is one of the reasons the nature and extent of Nazi atrocities against the Jews and other “untermenschen” beginning in the 1930s received so little credence in the Allied nations even after the information was widely available.

By the 1960s, we had no trouble believing atrocity stories. But the transparent lie on which the Gulf of Tonkin Resolution was based, and the badly crafted communist atrocity stories were still hard to buy. The atrocity stories we were most likely to believe were the ones in which American and South Vietnamese troops were the villains. And we had the same bitter taste in our mouth from having been fooled into an expensive, stupid war by a deceptive government’s propaganda after Vietnam as most Europeans had had after World War I. When we said “never again”, we meant that we would never again allow ourselves to be made fools of.

The second source of our discomfort at committing American resources to rescuing foreign victims of tyranny is a more abstract one, which has an analog in our view of the responsibilities of business corporations. We used to expect corporations to be “good citizens” of wherever they were located–to support local charities and civic activities and the arts. Increasingly, corporate boards take the position that a corporation’s primary, or even sole, responsibility is to make money for its shareholders. If corporate “good citizenship” can be subsumed into the public relations budget as one more way to increase sales, the board will accept it. But only as one more way to make money for the stockholders. If the stockholders want to make charitable contributions, they can and should do so individually out of the dividends the corporation provides them.

Charity, our business philosophers increasingly believe, not only begins in the individual home, but should end there. Only the individual has the duty, or the right, to give away his own resources without recompense. Any aggregate of individuals can legitimately act only for its own–their own–selfish interest. If John or Jane Doe is concerned about the plight of the Albanians in Kosovo, s/he can contribute to the Red Cross or UNICEF or, presumably, the KLA. A country as large as the US, with citizens from so many different backgrounds, cannot (in this worldview) properly have a foreign policy at all, except for the purpose of making America safer or richer, a goal we can presumably all agree on. As a result, many of the debates in Congress seem almost perversely directed toward disguising altruistic motivation as some kind of more broadly defined self-interest.

But all too often, the alternative is to do the opposite–to disguise self-interest as altruism. We are always more willing to go to war for the protection of people who have large numbers of compatriots and relatives living–and voting–in this country, or for people who look like us, or live like us, than for the starving dark-skinned strangers in Somalia and Sierra Leone. Does that mean we should decline to fight for or contribute to the Kosovar Albanians or the Bosnian Muslims because our motives are insufficiently pure? Or does it mean that we should take the claims of the Somalis, the Sierra Leonians, and the Haitians more seriously? Should we demand consistency, insist on defending everybody or nobody? Or can we continue to make ad hoc judgments for the flimsiest of reasons, because defending somebody is still better than defending nobody?

That’s a relatively brief (honest!) statement of the problem. Is there a reasonable and feasible solution? Ultimately, I think the only possible solution is a real, impartial, effective global police force, whose members and commanders would give up their citizenship in any individual nation, presumably in exchange for some really good employee benefits. We have been edging closer to such an apparatus throughout this century. It took World War I to create the League of Nations and World War II to create the UN. Will it take another world war to create a law enforcement system with compulsory jurisdiction over all governments? How about an invasion from Mars, against which all the nations of the world could unite and really mean it? Could some home-grown threat do the same job (an epidemic, for instance)? How about an ecological crisis, like global warming?

And, once we have a global police force, what methods should it use to do its job? The tactics of local police are being seriously questioned in this country these days, largely because of some glaring incidents involving brutality and apparently unjustified shootings of unarmed civilians. If we cannot train our local police to do their jobs with a decent respect for the rights of the people who pay their salaries, what can we expect of a larger force with more powerful weaponry? There have already been incidents of assault and rape committed by “peacekeeping forces” in many parts of the world. The core of the problem is Acton’s old axiom: all power corrupts. If the only counterweight to the abuse of power within a nation by its government is more power applied from a supra-government, who is to keep that power from being abused?

Marx, of course, would be amused but unsurprised at this situation, in which every solution seems to generate a new problem. Gandhi would view the problems as purely short range; nonviolent techniques, properly applied, he would aver, will eventually prevail. Any deaths suffered in the meantime should be regarded as “acceptable casualties”, just as civilian and military casualties in a war would be, except that the casualties of nonviolent action are likely to be considerably fewer. And building a community among the conflicting parties after the end of the conflict is likely to be considerably easier.

I personally find the Gandhian approach attractive. But whatever the techniques the “community of nations” decides to apply to solve these problems, it is absolutely clear that the current ad hoc reactions now in use are at best a waste of resources and lives. A general conversation needs to begin, among nations and within nations and among and within ethnic and religious groups and other communal organizations, about how intercommunal violence and governmental abuses of human rights can best be controlled. Every candidate for political office or communal responsibility should be expected to take a serious part in this conversation, and to be answerable to those s/he represents for that participation. It is up to us as the represented parties to hold them responsible, beginning with the 2012 election in this country.

Red Emma

Hate Crimes, Special Victims, and the Rest of Us

October 28, 2009

The new Defense Appropriations Bill either has been or is about to be signed into law, with an amendment that places people under federal protection from those who object to their sexual orientation. I’m certainly in favor of whatever it takes to prevent atrocities like the murder of Matthew Shephard. But I’m getting uncomfortable with statutes that protect only certain groups from crimes that we should all be protected from. I just did a quick run-through of the criminal section of the Illinois Compiled Statutes, and found something like 34 categories of people who are specifically protected from homicide, battery, assault, or hate crimes.

Specifically, that’s:
peace officers
correctional officers
emergency medical technicians
persons over 60
disabled persons
teachers and school employees
unborn children
family or household members of the perpetrator
prison or jail inmates
park employees
bus or cab drivers
state or city employees on duty
sports officials and coaches
emergency management workers
utility workers
pregnant women
merchants detaining shoplifting suspects
child athletes, and
people being victimized because of their
actual or
sexual orientation
physical or mental disability, or
national origin.

Of course, I’m not including any of the specifications about: who the perpetrator is, or where or when the crime is committed. I just want to know whose life is worth more than that of the average person on the street. (And never mind, for now, that assaulting or battering anybody on the street is, by reason of that fact, aggravated.)

Most jurisdictions have similar catalogs, so far as I can tell. Certainly federal law does. I spent some years as a federal law enforcement official protected by a statute that, I think, imposed a possible death sentence on anybody who murdered me. At the time, I was handling a case in a small local jurisdiction where the mayor had recently hired the killing of the City Attorney with whom my predecessor had been negotiating, so I kind of liked having that protection. But my point, obviously, is that every such jurisdiction (except the feds, who have no generalized murder, assault, and battery statutes) supposedly bans assault and battery against anybody. So why should we need these extra protections?

As to homicide, we really don’t. Homicide statutes get enforced fairly uniformly, except for informal special considerations for Important, or at least Nice, People, as opposed to street people, prostitutes, and prison inmates, and perhaps illegal immigrants—people whom many of us believe we would all be better off without.

But as to assault and battery, we really don’t bother. Illinois apparently doesn’t have any anti-bullying statute yet, but some other jurisdictions do. Bullying mostly involves juvenile-on-juvenile conduct that also clearly constitutes assault and battery. But most of us object to “criminalizing normal youthful hijinks,” even if they would already be criminal if the victim were an adult. Adult-on-adult “simple” assault or battery, unless the victim is within one of these protected classes, or the locus of the crime is a protected place, also gets ignored.

So we have to invent 34+ protected classes of victims and roughly the same number of protected locations to notify our police and prosecutors that “we really mean it” as to those persons and localities. Then we get objections from conservatives and more sinister forces that we are granting “special rights” to some groups at the expense of others. And, unfortunately, they’re right. Some people have special rights to be protected from assault, battery, and other unpleasantries, and the rest of us don’t.

That’s not (conservatives to the contrary notwithstanding) because we value some people more than others. It’s because we cannot be bothered to recognize a general human right to be safe from assault, battery, and other usually petty crimes. We put it into our statute books, but we almost never enforce it.

And that, in turn, is because our law enforcement system doesn’t want to be hauled into every petty dispute between ordinary people. Our police and judges have been all too well trained by their mothers: “I don’t care which of you hit the other one first.
Both of you shut up and sit still, or you don’t get any TV tonight.” “Nobody likes a tattletale.” In school bullying situations, all parties are likely to get the same punishment. This discourages reporting, which is just fine with the teachers. With children, or with unimportant people in general, the point of a disciplinary system is not to do justice, or even to inculcate good habits of behavior. It is to relieve the authorities of all but the most necessary work.

For my sins, I have had to spend a great deal of time representing a couple of people who are trying to direct the attention of the law enforcement system to various infractions committed by people near and formerly dear to them. Both the police and prosecutors have told my clients repeatedly that they have unlimited official discretion not to arrest or prosecute, regardless of the enormity of the offense in question. Most of this discretion doesn’t even make its way into the statutes or the reporting of court cases, because exercise of this discretion means, by definition, that there will never be a court case. This is, we are told, essential if we are not to expend most of our gross domestic product on law enforcement. Choices have to be made. Designation of special victims and crime circumstances are the way we make those choices.

At the same time (see, we keep the simple assault and battery statutes, and all sorts of other statutes we have no intention of enforcing, on the books. Thus we maintain the appearance of being Nice People, while not having to pay undue attention to the ordinary behavior of ordinary people, and at the same time holding a weapon in reserve for when that behavior arouses serious public emotion. Creation of one more class of protected victim is now the standard response to any horrendous crime. Many of the laws embodying this approach memorialize the names of victims, to keep the crimes fresh in our memory, so we will continue to consider them important—Megan’s law, Amber Alerts, and so on. No doubt the most recent addition to the federal hate crimes catalog will become known, at least informally, as Matthew’s law. Which is a worthy memorial to a young man who deserved a lot better of his society. But wouldn’t it be better to take seriously the rights of all of us to be free of assault, battery, and homicide?

Jane Grey

Miscellaneous Meanderings

July 28, 2009

There is, somewhere in one of “Official Rules” books, a Law which states, “Any organization founded to unite a proliferation of splinter groups invariably becomes one more splinter group.”  By the same token, any attempt to sum up everybody’s wide-ranging opinions on a particularly controversial subject invariably becomes yet another wide-ranging opinion.  But whattheheck, I’m going to try anyway.

There seem to be two repeating themes in the Gates-gate discussion:

 the police are entitled to be treated with respect or even deference, and are also entitled to use their power to enforce that right; anybody who mouths off to a cop deserves what s/he gets.
 there is a persistent disparity in the way different racial groups are treated by the law enforcement system, which cannot be completely explained by the behavior of those groups and their members.

These two propositions are not mutually inconsistent. They could both be true.  My sister Red appears to think that the former proposition is just plain dead wrong and is responsible (perhaps as part of a larger pattern of the male sense of entitlement and willingness to enforce it by the most direct means available) for a lot of serious violence between police and people of color.  I haven’t talked to Jane about this yet, but, being something of a statistical wonk, she probably accepts the latter proposition without boggling, and would be willing to go along with the former just for the sake of everybody getting along.

Everybody getting along is, in fact, a laudable goal.  When the major cause of death among the 16 – to – 35-year-old males of a particular group is homicide, mostly committed within that group (let’s leave the cops out of this for a moment), maybe the male sense of entitlement is a particular problem within that group.  As Jane would say, this needs more thought.

But, on the perennial other hand, unlike such cultural subgroups, the police are not “them.” They are “us.” They are acting in our name, on our behalf, and on our money. We cannot dismiss their behavior as “men will be boys.”  We cannot merely advise them to talk amongst themselves to come up with a better method for achieving their goals. Their goals, after all, are our goals.  They are doing the job we have assigned them to. If that job gets innocent people killed, that blood is on our hands.  We need to decide, as a society, whether we want the police to be able to protect the authority they wield in our name by arresting people, or worse, merely for transgressing social boundaries.  Maybe we do.  If so, the Constitution and the legal system we live by require that we put it in writing, and set written limits to the power we confer.

And, by the way, our mother always told us that “you can catch more flies with honey than with vinegar.”  We have recently discovered that flies—at least the ones that frequent the Wired residence—like vinegar.  Haven’t tried them with honey yet, but this casts doubt on all the old verities.  As Jane would say, this needs more thought.


Nightline and the Devil

March 27, 2009

Last night, Nightline proclaimed that they would be airing a “great debate” over the existence of Satan. I really hope Ted Koppel was otherwise occupied, because what his successors broadcast bore no resemblance to Koppel’s various great debates and town meetings. If Koppel had done last night’s show, it would have featured Satan and God, or at the very least the Pope and Anton LaVey. Koppel would have advised the networks that the broadcast would be running over its usual time by at least an hour, and it would have actually included the entire debate.

Instead, we got slightly more than half an hour of mostly voice-over from the moderator summarizing whatever the participants said. And the participants were a bunch of second-stringers with not a serious theological brain among them.

Well, if you want to look up Rabbi Hirshfeld on Beliefnet, you can get a somewhat more literate treatment of the subject (though Hirshfeld attributes the bit about G-d fashioning good and forming evil to the Jewish liturgy of the good old days, rather than to the original source, Isaiah 45.)

Anyway, does Satan exist? For the earliest picture of his M.O., see the Book of Job, in which Satan is clearly one of G-d’s operatives. From the point of view of an occasional practicioner of criminal law, I find it easy to see the Satan of Job as an overzealous and sleazy prosecutor who is not above engaging in entrapment to keep up his win-lose stats. But I’m not sure I believe in this overblown Ken Starr wannabe. It was hard enough believing in the real one.

OTOH….yes there is evil in the world, and some of it really seems to have no rational explanation. Genocide, for instance, or child abuse. Or torture. It is easier to believe that such things are caused by diabolical possession than by elements that can be found in the nature of all human beings, from Mother Teresa to Adolf Eichman. If there is no devil, then all of us are capable of serious evil. Nightline not only missed that point, it trivialized the entire issue.

Jane Grey