Recent news of the West Memphis Three — freed on the condition that they confess their guilt, thus sparing sociopathic prosecutors any public embarrassment — raises an old question.
The state’s defenders commonly argue that, no matter how fallible or corrupt individual public officials may be, they’ll be restrained by checks and balances built into the system.
But what happens when the system’s institutional culture is corrupt to the core? What if it’s not just “a few bad apples” among cops and prosecutors, but their whole professional culture?
And what happens when a number of institutions, with their corrupt cultures, coalesce into a mutually-reinforcing system: Not only cops and prosecutors, the correctional system, federal law enforcement, and Drug Warrior politicians, but also narco traffickers, the banks that launder drug money, and the intelligence agencies that use the drug trade to fund death squads and terrorists?
But for now let’s just narrow it down to prosecutors. What happens when, under the prevailing institutional culture of prosecuting attorneys, once a person is convicted prosecutors simply don’t care whether they’re actually guilty or not? What if they’d knowingly suppress evidence that would prevent an innocent person they knew to be innocent from being killed, preferring to commit cold-blooded murder than to sully their precious conviction record?
I’m beginning to suspect that finding an honest prosecutor would be beyond the power even of Diogenes.
Now, if prosecutors really believed any of the high-sounding rhetoric about “justice” they throw around, the average prosecutor would sincerely want to know if a convicted person turned out to be innocent. If her honest motive was to punish the guilty and protect society, she would actually care — care deeply — whether the person being punished was actually guilty. If evidence came out that the prosecutor had been wrong, and the defendant had been wrongfully convicted, the prosecutor would breathe a sigh of relief. “Thank heavens that came out in time! Otherwise, I’d have been complicit in the death of an innocent person!”
When did you ever hear of a prosecutor, out of genuine love for justice, welcoming evidence that cleared an innocent person? On the contrary, the prosecutorial culture is obsessed with rigging procedural rules to guarantee such evidence can never surface to embarrass them. In a discussion panel of Texas prosecutors in 2007, one member solicited advice on how to structure a plea agreement so as to bar any subsequent DNA testing. Williamson County DA John Bradley responded — to his chagrin, apparently — that “innocence … has proven to trump most anything.” The best way to forestall this, he continued, was to destroy all evidence immediately after conviction. “Then, there is nothing to test or retest.”
And Bradley walks the walk. In the case of Michael Morton, convicted of murder in 1987, Bradley not only withheld crucial evidence from the defense — a practice in which would-be Joan of Arc Nancy Grace also engaged. To make sure the convicted man damn well stayed convicted, guilty or not, he made every effort to prevent subsequent DNA testing. Morton was recently freed on the basis of just such testing, no thanks to Bradley.
Now enter Governor Rick Perry. Back when the Texas Forensic Science Commission was digging into the conviction of Cameron Willingham, who was almost certainly innocent, Perry replaced three commissioners with more prosecutor-friendly stooges — one of whom was Bradley. All to make sure that Willingham died — freeing an innocent man might have made Perry look “soft on crime,” see.
The really scary part is that, to a certain segment of the American Right, it really is more important that somebody — anybody — be punished than to make sure you’re punishing the right person. In the words of an admirer in a Rick Perry focus group, “it takes balls to execute an innocent man.”
It’s interesting that, among a segment of the population that claims to live in fear that government will abuse its powers and act tyrannically, the part of the state that actually makes it a state, rather than a debating society — the part that enforces the commands of the state and punishes disobedience — actually comes in for admiration for behaving tyrannically and abusing its powers. Civil libertarians, who genuinely want to restrain the state’s power to do evil, are held in contempt as “soft on crime.”
As Radley Balko explained: “A state government has no more awesome, complete, or solemn power than the power to execute its own citizens. If you’re going to claim to loathe big government, this is one area where you ought to be more skeptical of government than any other.”
If someone worships the power of uniformed, armed thugs, and celebrates the lawless abuse of power by such thugs, there’s nothing “small government” about them.
Citations to this article:
- Kevin Carson, Fascists in small government, Batesville, Arkansas Daily Guard, 08/26/11
- Kevin Carson, Small Government Fascists, Counterpunch, 08/26/11
the part of the state that actually makes it a state, rather than a debating society — the part that enforces the commands of the state and punishes disobedience
I love that sentiment. It goes right along with something I've long held that the enforcement apparatus is the state; without enforcement government is nothing but words on paper.
"When did you ever hear of a prosecutor, out of genuine love for justice, welcoming evidence that cleared an innocent person?" I think this is probably too strong. In any event we have at least one clear case: Craig Watkins of Dallas County, TX. Here is his website: http://craigwatkins.org/2010/
Strictly speaking, Todd, enforcement isn't what makes a government. Many governments have existed that required no enforcement at all (e.g. tribal law) because the group being 'governed' acted as a group instead of as individuals. Enforcement is required because, sadly, most humans eventually act out of personal greed than out of any desire of doing what's good for the group. The situation described here falls into that category as well: prosecutors want to look tough on crime so they can justify their budgets and increase their personal power. Few prosecutors today are actually looking to perform their civic duty; they may have started that way, but after a few years they come to love the feeling of power more than they like doing the 'right' thing. Any politician that has served more than one term do so for that reason as well, even if they started with higher ideals.
And in a "state" of anarchy, no one would even lynch another person in the heat of passion due to suspicion of wrongdoing? Heck, if enforcement powers were in the hands of everybody, rapists and pedophiles may very well be executed along with murderers! By all means, oppose corrupt prosecutors but if you want to go beyond that, please explain why an anarchic system would do better than a statist system in handling wrongdoers.
One feature of the adversarial legal system is an attitude on the part of trial lawyers of "my client right or wrong." This is part of the professional culture of lawyers in general, judging by the prominence of win/lose ratio in much of the advertising of lawyers in private practice, but of course with prosecutors at the state and local level there is the added crassness of electioneering. Capitalist-oriented libertarians, including minarchists and the Libertarian Party platform, call for abolition of the criminal justice system, regarding all legal disputes as civil, not criminal. Their explanation for this stance is grounded in "individualism." The idea is that the "people" as in "people vs. so-and-so" who is the complainant in all criminal trials, is a "collective" entity, and of course "collective" is a dirty word amongst the Libertarians and Birchers and the like.
cmWright wrote:-
While the first sentence is accurate, the second isn’t. On closer inspection, such tribal arrangements generally prove to have a coercive element too. For instance, when the Camerons came out in the ’45 they followed the usual clan pattern: as well as the young men waiting to be allocated land, for whom that was the carrot, most of those who already had land came out under the stick of forfeiting their land (a small proportion were told off to remain behind to look after all the holdings); that would have been done to non-compliers with the help of those waiting for land. The Cameron did not constitute a government over his clan for other reasons, though, notably that he himself was constrained by custom he did not control and that there was a larger scale government structure – one he was rebelling against, or, in the alternative, a competing one that he was supporting (the Stuarts). So it’s not that there are governments with no enforcement but that there are non-governments with enforcement.
Hidden Author wrote:-
You should distinguish between “power” and “authority” – something that statists blur. On the one hand, nobody would have the authority for lynching whatever their physical power, so that would itself be the subject of the emergent system under anarchism. On the other hand, the only justifiable thing beyond self defence and the guilty compounding with their accusers would be the ultimate sanction of exclusion, i.e. exile, which inherently isn’t retributive punishment as such but taking them off the board; they would only suffer to the extent that they used up all their alternative options. (Of course, this leaves open the question of whether there could be such an emergent system on an enduring basis – if not, anarchism is non-viable.)
n8chz wrote:-
Wrong. The “people” is not the complainant in all criminal trials, just in those countries that have already bought into that collective thinking; it is a poor substitute into the role of the – non-collective – Crown or similar, in unadulterated systems. That this is no fiction you can see in what was possible until recently in Scotland, which politicians “reformed” as an “abuse”: if the Crown prosecution decided not to proceed, private individuals could still prosecute; the Crown was the default and a placeholder, an individual entity that did what any individual entity could as a convenience and not merely a legal fiction.