Should the Criminal Justice System Be Abolished?

Much of jurisprudence is based on logic founded on faulty premises of regurgitated theological concepts shrouded in naturalistic theory and pseudoscience. This is not about the defund the police social trend of 2020. This is to say that the justice system is smoke and mirrors writ large. It’s ostensibly built on anachronistic concepts such as volition, evil, soul, blame, and forgiveness that should be tossed into the dustbin of history along with phrenology, humours, and will.

The titleof this post is taken from Robert Spapolsky’s proposed chapter concept for Behave, published in 2017, where until now, it’s languished on my Want to Read list, having entered via the vector of my interest in behavioural economics. Chapter 16 was eventually published with the title of Biology, the Criminal Justice System, and (Oh, Why Not?) Free Will.

I’ve been writing for years about the nonesensical attachment to these notions, so it gives me comfort in solidarity to discover others who share, at least to some degree my perspective, knowing, of course, that this doesn’t make this perspective any more correct.

To be fair, I’ve held a low opinion of so-called justice (and government) systems pretty much since I was taught about them almost 50 years ago. In the US, much teaching is really propagandising about how fair these systems are and how peers and reasonable persons concepts make is superior. In my mind, those were the being failings. Later, when I hopped onto my language insufficiency bandwagon, it only fell apart more. Kafka’s The Trial represents the internal workings of most justice systems than the logic and reason of propogated but proponants.

Stopping here. Much to do. I recommend reading Behave. If you’ve read it, I’d love to see what you thought about it.

In the name of the law…

A brief change of pace…

We’re all familiar with the scenario: a representative from law enforcement appears at a door and flashes a badge or an ID. It’s in most of the police movies. A gaggle of people in official-looking uniforms. One of them pulls out a warrant, and they make their way into the residence. You still with me?

Here’s the rub? How does one know with any degree of certainty higher than blind faith?

Do you know what an ‘official’ badge or ID looks like? How do you know it’s not counterfeit? 

Do you even know what a search warrant looks like? It’s signed, do you know the person it’s signed by? Perhaps it’s a judge. Is the warrant real or fake? What about the uniforms or official-looking vehicles? 

Indoctrination and cognitive dissonance are key factors

The answer is most people would have no idea. Indoctrination and cognitive dissonance are key factors. In movies, apart from the documentation, there’s the intimidation factor. And maybe guns for full effect.

To be sure, people have performed variations of this script, and they’ve been punked. So, the question remains: How can one tell? And when does when get to call bullshit?

And what are the down sides?  If these cats are legit, and after the bullying and indignity, you’ll probably be facing accusations of obstruction or resisting. Of course, you’ll be justified, but justification is asymmetrical and out of your favour. The house holds the advantage, and you aren’t the house.

But let’s pretend that justice is symmetrical and does have meaning beyond its application as a power tool, how far would one need to go to be sure?

Take the case of the warrant signed by a judge. S/he shows up in person and says, ‘Yup. I signed that warrant’. Has that gotten you anywhere? Probably not. You don’t know this person, and you have no way of evaluating the authenticity of the claim. Does it take the governor? The president? The head of the UN? 

And even if you trust the entire process thus far, what say do you have in justifying the merit of issuance of the warrant? 

Well, that was something…

Police State

Bad police dramas on TV have gotten me in the mood to rail. First, there was the topic of lying, and then there was the Unabomber. This post is broader.

We laugh of the notions of Barney Fife, Chief Wiggum, and Paul Blart, but in my estimation these are closer to the norm than the stereotype of the bad-ass cop.

My armchair pop-psychology assessment is that people who are drawn to police work are underachievers with power and control issues and conformity and morality fetishes.

Advantage goes to the house

Law enforcement and jurisprudence systems wouldn’t work if they didn’t stack the decks in their favour. They give themselves get out of jail free cards and rely on lies and deception to create an advantage. Watching these TV shows, they have permission to lie, withhold, misrepresent, coerce, and entrap without repercussion. They make ‘deals’ in domains where they have no authority. They are even allowed to engage in criminal activity if it serves the better interests of a case. They can buy drugs and property, engage with prostitutes, and any number of otherwise illegal activities.

I won’t even spend more digital ink commenting on the lack of due process judges commit in the courtroom—personal fiefdoms.

Domestic abuse

Over 40% of active police officers have domestic abuse histories.

Over 40% of active police officers have domestic abuse histories. These people have records of abusing the wives, children, domestic partners, and pets. And these are only the ones who have been caught. Statistically, the percentage is very likely to be over 50%. This is not shining endorsement. Sadly, domestic abuse is inversely correlated with IQ, so this doesn’t fair well with the next topic.

Low IQs

The average IQ of a police officer in the United States is about 104. In and of itself, this might not seem strange. This seems to imply that these IQs are in line with average, but there’s a problem. The courts have ruled that is not discriminatory to exclude people with high IQs from being police officers because they are more likely to be independent thinkers and not conformant.

Conformity

Because cops are usually and expectedly conformant, it should come as no surprise that they feel the urge to prescribe this conformity on others. Given the opportunity, I’d argue that in many instances this conformity is superficial and performative, but that’s a topic for another day.

Lying in the name of…

Among other things, my girlfriend likes cop and crime movies and TV series. I don’t see the reason, but I watch some with her. Most recently, my post on the Unabomber interrupted this one. Philosophically, I key into two things in particular: deception and conformity.

I recall Jung saying that cops and criminals are two sides of the same coin. The best criminals understand the mind of the police, and the best cops have criminal minds. But for the grace of God, we go…

lying to serve the greater good is OK

Cops and law enforcement live by deception. The philosophy here is consequentialist, lying to serve the greater good is OK. This feels somewhat akin to the ‘God works in mysterious ways’ line. The end is more important than the means.

Afterall, lying is not illegal, and it is only immoral if taken out of this ‘greater good’ context.

Biblically, the only lying off limits is ‘bearing false witness’, so I suppose no one is going to hell for this transgression.

It seems that lying by law enforcement might fall into the same category of a ‘Do these jeans make me look fat?’ response.

In fact, people in positions of power routinely justify their own lying for the better good, which I’ll translate as self-preservation, which for the uninitiated further translates to ‘my/our system is the best system, and we must maintain it’.

I’ve been in several situations where police officers lied blatantly.

no mechanism exists to call lying police officers to task

In one, I was on a jury in Beverly Hills. The police accused a Mexican man of armed robbery. The thing is that the lie was so poorly constructed, it wasn’t even close to consistent with the events they said happened. And this wasn’t one bad police officer. It was a conspiracy of at least two, as they shared corroborating accounts. The problem was that the lie superimposed on the physical layout and timeline couldn’t have possibly happened—Schrödinger’s criminal notwithstanding. I won’t restate the evidence beyond this. The jury proclaimed his to be innocent, Sadly, no mechanism exists to call lying police officers to task. Perjury is not an option in these cases. In my opinion, they should at the very least be fined. I’d rather see them fired and jailed.

I was once stopped for running an amber light. I protested and received a citation for running a red light. I immediately brought this the attention of the issuing officer, with whom I had just had a dialogue about running amber lights, and he said ‘tell it to the judge. He was quite willing to lie about something as trivial as a traffic citation. This was before the days of dash cams.

To be fair, I was once stopped for making a turn at stop sign without stopping. I thought I stopped, so when the cop pulled me over, I protested that I had stopped. He offered to review the dash cam on the spot. He rewound it, and sure enough I barely slowed down. I apologised, commended him for the ‘customer experience’, and accepted the citation without further incident. I’ll admit when I am wrong.

Conformity is the other dimension, but I’ll defer this to another post…

Why Sexual Morality Doesn’t Exist

His words, not mine.

Whilst I agree that all morality is contrived, Alan H. Goldman, Kenan Professor Emeritus of Philosophy at the College of William and Mary, presents his position that sexual morality is not divorced from any morality. It’s not particularly a special case. I agree in principle, but his argument is lacking.


Sexual desire aims directly at the pleasure derived from physical contact

Alan H. Goldman

He states that ‘As other philosophers point out, pleasure is normally a byproduct of successfully doing things not aimed at pleasure directly, but this is not the case with sex. Sexual desire aims directly at the pleasure derived from physical contact. [The] desire for physical contact in other contexts, for example, contact sports, is not sexual because it has other motives (winning, exhibiting dominance, etc.), but sexual desire in itself has no other motive. It is not a desire to reproduce or to express love or other emotions, although sexual activity, like other activities, can express various emotions including love.’

Pleasure is normally a byproduct. 

Sure.

This is not the case with sex.

OK. Elaborate.

Sexual desire aims directly at … pleasure.

I'm still following.

Sexual desire in itself has no other motive, which is pleasure.

Damn. You lost me.

I might agree that pleasure (let’s ignore the fact that this is another weasel word) may be the motivation behind sexual desire, but we don’t really have means to determine motivation or intent, and we certainly can’t assess one attribute over another.

Power is everywhere because it comes from everywhere — Michel Foucault

Foucault may have argued that the motivation is power—perhaps each side is making their own power calculus. Given the state of current knowledge, this is not ascertainable. Prof Goldman may feel that pleasure is the motive; one may even argue that power yields pleasure. I’ll not traverse that rabbit hole.

Later, he asserts that ‘More controversial is whether any consensual sex between willing partners is wrong’. I won’t debate this position, but there is no good way to full assess consent.

I’ll outline a fairly stereotypical scenario—excuse me for opting for a heterosexual situation, but the pronouns are easier to track. Say a man and a woman have met in a social setting—perhaps they’ve been dating for some period—, and they ‘mutually’ decide to engage in sex. We’d call this exercising agency, two consenting adults.

But what of ulterior motives? Following the stereotype, perhaps he feels that he is conquering her, and she feels she is securing a stable mate; or perhaps they don’t feel this at all. What is the actual intent? Not to go full-on Freud, but are they playing out some latent urge? Is this just some deterministic eventuality. There’s really no way to tell. Any story I tell is as speculative as the next.

So, to end on a tangent, a significant problem underlying philosophy, psychology, and jurisprudence is the issue of intent. The term is bandied about on most cop shows and legal dramas, but it is another just another vapid notion that we accept as valid. Of course, if we dispense of the notion, our legal systems would just unravel.

Yet again we’ve reached a point where the only truth is rhetoric.

…and Justice for All

I’ve been out of sorts as of late, too busy to be contributing to this blog. Abstract philosophy, as Geuss notes, is a field for the comfortably idle. I’ve been in the midst of a divorce, and it’s not that I don’t think about the abstract, but my focus is pulled toward the mundane. The US court system comes to mind. I’ve already served on several juries, so I understand how pathetically that side is structured; I’ve been of the claimant/petitioner side and the defence side, and now I am a respondent. I’ve never been an attorney or barrister, nor have I been a judge, but I’ve known some of each, and it’s really a blind faith they have in the system—as well as a paycheque (let’s be honest here)—that keeps them going. As Upton Sinclair once noted, ‘It is difficult to get a man to understand something when his salary depends upon his not understanding it’. Between this and escalating commitment, this poor excuse for a system is going nowhere fast.

“It is difficult to get a man to understand something when his salary depends upon his not understanding it.” — Upton Sinclair

I don’t even believe there is such thing as Justice, let alone some ability to systematise it. As I mentioned in my last post, the system is constructed to prioritise consistency over outcome and favour deontology over consequentialism with just a smidgen of virtue ethics for good measure, but it’s all still just smoke…… and mirrors. It’s theatre—procedure for procedure’s sake. I guess that Foucault may have been right about the Power bit, but there’s more nuance than that.

Meantime, I am trapped in this flawed system trying to navigate between Scylla and Charybdis. If I’m not out by the end of the month, come in to rescue me.

—Decidedly not a fan.

Deposition Despotism

Well, ya. Sure the title has little to do with this post, but I had to sit for a deposition this past week, and like they do on TV, I had to raise my right hand and swear to tell “the whole truth, nothing but the truth, so help you, God.”

Do you swear to tell the whole truth, nothing but the truth, so help you God?

So, as a moral subjectivist, who is also a pragmatist, I thought that it would not be in my best interest to raise the point that I don’t ascribe to their notion of truth, certainly not a God-given truth, and does raising my right hand act like an antenna, perhaps like rabbit ears on the old TVs from the 1960s? And does this ritual work without a bible?

Of course, I understand the notion of this ritual, and so I agreed, but it really drove home to me how the jurisprudence system in the US (and I am sure elsewhere) is just a smoke & mirrors act—some futile deontological exercise.

At some time during the proceedings, an attorney felt obligated to query as to whether I understood what perjury is before reading the statute. I am guessing that this was more of a psychological endeavour meant either to throw off my balance or was in line with the studies where observed students were less apt to cheat on an exam when they had recently signed a statement acknowledging the (fake) anti-cheating clause. Some people are so easily manipulated through indoctrination.

At one point, I was asked if I was taking the process seriously. I acknowledged that I didn’t really, but that he could continue. I am not sure how much was theatrics attempting to throw me off balance, but I think I passed the audition.

Justice or nonsense?

Why should justice be the foundation of a society, and why not something else, say, honour or valour or wealth? What do we mean when we say justice? Do you mean the same thing as me? Dating myself to be sure, but would a Klingon from the Star Trek universe share your definition? So what is justice anyway?

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‘Justice is the constant and perpetual will to render to every man his due. Jurisprudence is the knowledge of divine and human affairs and knowledge of what is just and what is unjust’, or so writes Justinian in Institutes 1.1 in 533 CE.

“Iustitia est constans et perpetua voluntas ius suum cuique tribuens.  Iuris prudentia est divinarum atque humanarum rerum notitia, iusti atque iniusti scientia.”

This is Justinian’s answer to the question: What is justice? In his Philosophy and Real Politics, Geuss relates that ‘justice is the constant and unflagging will to render to each person what is due to him’ (or perhaps ‘what he’s entitled to’), and therein lies the rub: what exactly is one entitled to?

Geuss goes on to point out that entitlement was contingent to one’s place in society. Citizens were entitled to some things, resident aliens another, and slaves, pretty much nothing at all. In fact, giving a slave more than s/he was entitled to would be considered unjust, as it would be considered to be undeserved. As Geuss writes, ‘that to treat a slave as if he or she had any entitlements would be a gross violation of the basic principles of justice’. Of course, you are thinking, post-Enlightenment ‘all men are created equal’, or so the saying goes.

US-Camp_x-ray_detainees-Guantanamo-Bay-Jan-11-2002-Phot-Shane-T-McCoy-US-Navy-Creative-Commons-513x239[1]In practice, it’s been easy to sidestep the application of justice by redefining a certain group to be outside of some protected group. During the illegal aggression by the United States against Middle Eastern countries that resulted in extraordinary rendition of civilians spirited off to Guantánamo Bay, Cuba, off the coast of the United States and outside of their jurisdiction, their acting regime declared that the detainees were not people, strictly speaking, and as such were not subject to the protections afforded to people, therefore they had no access to justice.

“Justice is the first virtue of social institutions, as truth is of systems of thought.”
— John Rawls, A Theory of Justice

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Hermione’s Time Turner

The ancient Greeks had a different idea of justice, so perhaps we just need to break out our trusty time turner to see what Aristotle had to say about it.

Here Aristotle rather equates the notion of justice to that of equality, but that begs the question: what equality? as we understand that equality comes in a variety of colours, so I won’t belabour the point any further here.

Instead of asking about justice, why don’t we focus on the root of the word, just? This yields the following definition:

Just: (adj) based on or behaving according to what is morally right and fair

This brings us into the normative domain of morality, fairness, and reason, so it’s not much to work with—basically, we are in the realm of opinion defended by rhetoric.

For ‘all’ intents and purposes, we’ve got four forms of justice. We’ve been focused on the distributive type, but there are also procedural, restorative, and retributive varieties. In many cases, not just one form of justice is satisfying and so multiple varieties are deemed, well, just.

  • Distributive or economic justice is about fairness in how things are distributed, about getting a fair share.
  • Procedural justice is also about fairness, but it’s more about fair play, an even playing field.
  • Restorative justice is about compensating for an injustice, about restoring some perceived balance.
  • Retributive justice is about punishment—retribution.

A problem arises when we try to quantify and measure justice. Consider distributive justice: If two people work in a field and each cultivates 50% of the crop, are each entitled to 50% of the yield? If the cultivated land was the ‘property’ of some other landowner, what portion would s/he be entitled to? All of it? Some of it? None of it?

What about the court system? Procedural justice comes into play here. Should a wealthy person have access to better attorneys than a poor person? Is this just? The poor person may argue no, but the wealthy person may argue that s/he earned the ability to pay for a better lawyer, so s/he is entitled to this benefit.

Restorative justice sounds simple at the surface. If I steal a loaf of bread, wouldn’t returning the loaf (or, at least, a similar loaf) be restorative—no harm, no foul? Many people will argue that this is not good enough. Balance has not been restored.

This is where retributive justice comes into play. Retributive justice is a poorly veiled euphemism for vengeance. This is where Hammurabi‘s code (or Leviticus‘)  eye for an eye—but not Matthew‘s turn the other cheek rendition—comes in. Let’s not get into Nietzsche’s take on forgiveness as being unjust and part of slave morality.

Keep in mind that in Hammurabi’s code, as with Roman law, justice was relative: Given eyes, (Nº 196) ‘If a man put out the eye of a nobleman (amelu), his eye shall be put out’, yet (Nº 198) ‘If he puts out the eye of a freedman or breaks the bone of a freedman, he shall pay one gold mina’.

Through all of this, we are still left wondering: just what is justice besides some vague notion constructed solely to preserve the status quo.

Sources:

  1. http://legalhistorysources.com/LisbonRights/JusticeDefinitions.htm
  2. http://changingminds.org/explanations/trust/four_justice.htm

Neoclassical Morality

 

Episode 8 of The Moral Foundations of Politics with Ian Shapiro was another difficult lesson to watch—rather to listen to—the student responses. Evident is the degree of indoctrination or brainwashing these students have been through. I want to document some pieces I feel are relevant to my position.

  1. The fact that morality is perniciously imposed and infused on the unsuspecting
  2. The fact that property rights change over time
  3. The fact that legal interpretation changes over time

The responses were primarily knee-jerk responses anchored on institutional indoctrination. Whilst it makes sense to indoctrinate a group, I am opposed to imposing an obvious relative morality but passing it off as absolute.

Asking how prostitution could be illegal when sex and commerce are both legal, the responses—to be fair, only a couple people responded—were about how it might somehow ‘harms’ women or society as a sort of negative externality, be violent, have been coercive or a form of slavery, have involved a married or otherwise committed spouse, or have involved an under-aged person. These were poor man’s strawman arguments at best, each potentially with merit, but each a separate issue from the question.

In fact, we can likely find evidence of each of these in a ‘typical’ employment situation: coercion, under-age, a threat of violence, implied or expressed; the spousal issue doesn’t fit these situations, but even if we want to legislate keeping people safe from their own actions, it is as illegal for unmarried persons, so the rationale is insufficient.

The point I hold is that prostitution in and of itself is no more exploitative than any other source of employment, a source income. Given that Western society imposes income as the primary means to support one’s self, the wrong here is that artificial barrier. Were income not a veritable necessity, prostitution to earn money (or use as a barter) would also be unnecessary. This is not to say that the other aforementioned objections would be resolved; this because, as I mentioned, they are different issues.

Next, we are told that marital rape originally not considered a crime because a woman was considered to be chattel property transferred patriarchally from her father to her husband. As I’ve written previously, I do not subscribe to the notion of property in the first place, but taken that as given, it is obvious that property is determined through whimsy. Property rights change over time, whether receding as just noted or expanding to include intellectual property and the expanse of patentable ideas. It’s disconcerting that application of the law can be so arbitrary and, though perhaps not capricious, frivolous. And given it is all open to interpretation, the pendulum can swing in the other direction, as the women of Iran and other fundamentalist theocracies has experienced.

Apparently, I’m done ranting. Basic income has been mentioned as a solution to some prostitution, as some women participate out of desperation. Though I feel that this might kerb some prostitution, some women would still seek to supplement this base income, if only to advance their personal standard of living.