This injustice primarily impacts the poor. The key ways to being released from pretrial detention are hiring an attorney, paying bail, or bribing officials. Naturally, the poor have the least access to these options. There are also racist impacts from pretrial detention. As Schoenteich notes, “Ethnic minorities are also disproportionately represented in pretrial detainee populations around the world — Dalits in India, African Americans in the United States, Aboriginal people in Australia.” The report also notes that individuals with mental illnesses and cognitive disabilities are more likely to be detained awaiting trial.

The Open Society report examines the problem globally. But when I think about pretrial detention, two specific cases come to mind: Chelsea Manning and Matthew Stewart.

Chelsea Manning is the heroic whistleblower who released classified evidence of war crimes and other US government misconduct to the journalistic organization WikiLeaks. Manning’s disclosures shed light on what McClatchy Newspapers called “evidence that U.S. troops executed at least 10 Iraqi civilians, including a woman in her 70s and a 5-month-old infant, then called in an airstrike to destroy the evidence.” The outrage caused by exposure of this brutal war crime helped end the U.S. occupation of Iraq. Manning’s disclosures revealed that Hillary Clinton ordered diplomats to spy on and commit identity theft against UN officials. Her disclosures also uncovered evidence related to child sexual abuse by US military contractors in Afghanistan. 

Were any of the criminals Manning exposed held accountable? Of course not. Instead, Chelsea Manning was held in pretrial detention for years before being convicted and sentenced to 35 years in prison, simply for releasing information. She was held in solitary confinement, a cruel form of psychological torture, throughout her detention. UN Special Rapporteur on Torture Juan Mendez investigated the conditions under which Manning was held and concluded “that the 11 months under conditions of solitary confinement… constitutes at a minimum cruel, inhuman and degrading treatment in violation of article 16 of the convention against torture. If the effects in regards to pain and suffering inflicted on Manning were more severe, they could constitute torture.” Moreover, there is some evidence that the torture was a bigoted response to Manning’s gender identity and expression. As Joanne McNeil reported in Jacobin,

Manning was tortured in part because he [sic] signed a few letters from the brig as “Breanna Elizabeth.” Marine Corps Master Sgt. Craig Blenis defended his cruelty in a December pre-trial hearing. Coombs asked why the marine thought Manning’s gender dysphoria should factor into his “prevention of Injury” status. Blenis answered because “that’s not normal, sir.”

In a sense, the pretrial torture of Chelsea Manning was not just a crime, it was a hate crime.

Matthew Stewart did not survive pretrial detention long enough to be convicted or acquitted. Late at night on January 4th, 2012, armed men broke into his home with guns blazing. Matthew, a startled gun owner and Iraq war veteran, fired back on the home invaders, killing one and wounding several others. But because they were police officers carrying out a drug raid, Matthew was not treated as a homeowner engaged in legitimate self-defense. Instead, he was locked up in the Weber County Jail and charged with murder. He was subjected to social isolation and other abuses for a year and a half before he eventually committed suicide. He was found in his cell hanging from a bedsheet. After his death, the degradation still didn’t end. Police officers trespassed in his home again even after he was dead and the state’s case against him was closed. Officer Jason Vanderwarf harassed Matthew’s grieving family members on Facebook, writing “now you all can feel our pain.” Vanderwarf was one of the initial aggressors, having lied on the initial search warrant and participated in the home invasion.

Pretrial detention is an appalling human rights abuse. Obviously, it undermines the right to due process and the presumption of innocence. It can be used to torture and brutalize detainees, especially political prisoners who have offended state functionaries, as Matthew Stewart and Chelsea Manning did. And pretrial detention is most often used to cage and abuse the most vulnerable in our society: the poor, ethnic minorities, and people with psychiatric and cognitive disabilities. Let’s end this injustice.

Questa è una storia vera. Katiele sta combattendo per poter trattare gli attacchi di epilessia di sua figlia con il CBD (cannabidiolo), una sostanza estratta dalla marijuana e proibita in Brasile. Prendendo a pretesto la lotta alla droga, i burocrati dell’Anvisa (l’ente brasiliano che controlla la salute) hanno deciso che la marijuana non si può usare per usi medici.

Come spiega Katiele nel suo video (giustamente intitolato Illegale), nessun’altra medicina disponibile in Brasile può curare la malattia di sua figlia. Nessuna. Tranne il CBD. Ostacolo: Il governo brasiliano proibisce la marijuana tanto per svago quanto per uso medico. Cosa fare? “La disperazione nel vedere che tua figlia ha crisi giornaliere, ad ogni ora, è così grande che abbiamo deciso di affrontare la questione comunque, anche a costo di importare la medicina illegalmente, che è quello che abbiamo fatto,” dice.

Secondo lo stato, questa madre ha agito da criminale. Secondo chi ha un minimo di senso della giustizia, ha fatto la cosa giusta. Ci sono casi in cui le persone per bene sono costrette ad andare contro la legge, fino alla disobbedienza civile imprenditoriale. Se, andando contro la legge, non fai male a nessuno o addirittura porti benefici, generando valore, questo di per sé dimostra che la legge in questione impedisce il benessere della società generato attraverso la libera produzione, lo scambio e l’associazione. Questo è ancora più significativo quando il valore generato è la salute di una bambina epilettica.

Il cinque aprile, Katiele e sua figlia hanno conseguito una vittoria giudiziaria. Con una decisione storica, la corte costituzionale di Brasilia ha stabilito che l’Anvisa deve fornire alla famiglia il CBD necessario al trattamento della malattia.

Purtroppo non finisce qui. L’ente può ancora ricorrere in appello. Il divieto all’uso medico della marijuana in Brasile continua, e la guerra alla droga, con tutte le sue conseguenze sciagurate, va avanti. A quanto pare, in questo paese bisogna fare ricorso contro lo stato se si vuole avere la possibilità di curare un male perfettamente evitabile e curabile. E tutto perché qualche burocrate ha deciso che la marijuana è un male.

Posso immaginare la sofferenza di questa madre. Mia sorella soffriva di epilessia dalla nascita. Sarebbe stato triste vederla soffrire senza cure, con crisi frequenti, solo perché c’era qualcuno che le impediva l’accesso ai farmaci.

Nota: La questione non è l’assenza di cure. Non è che la madre non ha i soldi e i mezzi per procurarsi le medicine. E anche se non avesse avuto soldi, avrebbe potuto sperare ancora: con le donazioni da parte di istituzioni filantropiche, ad esempio. Il problema è che lo stato si mette in mezzo tra lei e l’accesso legale alla cura.

In un articolo scritto per Center for a Stateless Society, Marja Erwin ha sollevato la questione di come una società libera, anche una anarchica, potrebbe affrontare il problema dei disabili, e se lo “scambio, di per sé, include pienamente le persone disabili”. Le società basate sullo stato negano sistematicamente l’accesso a medicinali e cure con pretesti paternalistici, talvolta diventando l’ostacolo principale, imponendo barriere poste all’innovazione medica e incrementando i costi delle cure.

Cercare di ridurre la sofferenza di qualcuno non dovrebbe essere un atto illegale. Al contrario, illegale dovrebbe essere lo stato che condanna la figlia di Katiele alla sofferenza perpetua. Illegale dovrebbe essere l’esistenza stessa dello stato, i cui atti ricordano l’iscrizione sulla porta dell’inferno dantesco: “Lasciate ogni speranza, voi ch’entrate.”

Traduzione di Enrico Sanna.

That is a true story. Katiele struggles to treat her daughter’s epilepsy with CBD (Cannabidiol), a substance derived from marijuana and forbidden in Brazil. As part of the Brazilian war on drugs, Anvisa (National Health Surveillance Agency) bureaucrats have decided that the medical use of marijuana is impermissible inside the country.

As Katiele explains in her video (fittingly titled Illegal), no other medicine available in Brazil can control her daughter’s disease. None. Nevertheless, she found out that CBD is an effective alternative. The obstacle: The Brazilian government forbids the recreational as well as medicinal use of marijuana. What should she do, then? “The despair of having your daughter seizing every day, every time, is so huge that we decided to deal with it no matter what it took, even if we had to bring the medicine in illegally, and that’s what we did,” she said.

According to the state, this mother acted as a criminal. For anyone with a minimal sense of justice, she did the right thing. There are times when the only alternative for decent people is to break the law, including through entrepreneurial civil disobedience. If you, in breaking the law, do not hurt anyone and even benefits people, generating value, that by itself shows that the law in question obstructs society’s well-being generated through free production, exchange and association. That is even more salient when the value generated is the health of a epileptic kid.

On April 5, Katiele and her daughter had a judicial victory. In an historic decision, the federal justice in Brasilia determined that Anvisa should provide the family with CBD for the administration of treatment.

This is not the end, however. The agency can still appeal, the ban on medical marijuana continues in Brazil and the war on drugs, with all its dire consequences, goes on. Apparently, in this country, you have to sue the state to be able to get a permit to prevent such a very avoidable and treatable condition, just because some bureaucrat decided at some point that marijuana is evil.

I can imagine how this mother has suffered. My own sister had a birth condition and suffered from epilepsy. It would have been sad to see her going untreated and having constant seizures because there is someone blocking access to medicine.

Note: The point is not that there is no treatment. It is not that the mother does not have the money and the means to get hold of the medicine. If she did not have money, there would still be hope: Donations or philanthropic institutions, for example. The problem is that the state stands between the mother and legal access to treatment.

In an article for the Center for a Stateless Society, Marja Erwin brought up the question of how a free society, even an anarchist one, would deal with disability, and whether “exchange, on its own, fully includes those of us with disabilities.” Statist societies  have systematically denied the access to medicine or treatments on paternalistic grounds and are at times the largest hindrance to health care, either due to hurdles to medical innovations or due to the increased costs of treatment.

Trying to minimize someone’s agony should not be against the law. What should be against the law, however, is the nanny state’s condemnation of Katiele’s daughter to perpetual suffering. What should be against the law is the existence of such an institution as the state, whose acts within its borders remind us of the inscription on the door of Dante Alighieri’s hell: “Abandon all hope, ye who enter here.”

Translated from Portuguese into English by Erick Vasconcelos.

Translations for this article:

• Spanish, Una madre contra una niñera abusiva.
• Portuguese, A mãe contra a babá abusiva.
• Italian, Una Madre Contro una Balia Oltraggiosa.

Throughout western culture, there’s the tension between the idea that our value is innate in our humanity, and the idea that our value is dependent on our utility to others. But utility doesn’t exist in itself, it exists in its time and place and for people, and it exists in this whole complex social system. Someone who holds a key bottleneck in the social system [such as a key patent, or a telecom monopoly], can open it, can close it, can extract payment for it [even if it is only force that creates the bottleneck or keeps others from creating alternatives and working around the bottleneck]. In fact, they may contribute utility from a neoliberal perspective, for opening the bottleneck when paid, and disutility from an anarchist perspective, for creating the damn bottleneck and demanding payment. Someone who holds no such position in the social system cannot. Someone who society has enabled is more able to do good or ill. Someone who society has disabled is less able to.

It is important to understand that disability is not purely medical, it is also social. Our societies systematically enable certain people, with certain conditions, and disable other people, with other conditions. I think some disabilities are almost entirely medical problems, for example, my having asthma poses medical problems, and secondarily social problems such as how to avoid allergies; by way of contrast, my being autistic poses social problems, such as how to avoid strobing lights, eye contact, and high-pitched beeps, without posing medical problems.

If our society normalizes demands for eye contact, normalizes the use of stairs instead of ramps, and so on, it has the effect of enabling some people while disabling others. It allows some people to create more utility and allows other people to create less, and then uses the difference to justify favoring some people while marginalizing others. If our society demands bright lighting everywhere, that helps people with certain visual conditions, and hurts people with other visual conditions, if it demands flashing lights as safety features, it allows some people to avoid the lights and incapacitates other people with these lights.

For all these reasons, I cannot trust any economic system which embodies ‘to each according to their work,’ because we are not given the same opportunity to usefully work. But at the same time, I cannot trust any economic system which embodies ‘from each according to their ability, to each according to their needs,’ because I cannot trust anyone else to understand my abilities and disabilities or to understand my needs. I am ultimately the expert on my own experience, even if others may be better experts on my medical issues. And if an anarcho-communist community were to allow me to take whatever I needed from communal services, I have no guarantee that the services would be accessible or my needs would be available there. In fact there might be political objections to my treatment for my endocrine conditions, as well as practical problems finding ear protectors, a quiet computer, or other unusual specialized requirements. I would need to obtain these things through mutual exchange.

It would seem that neither communism on its own, nor exchange, on its own, fully includes those of us with disabilities. I have to ask anarchists and other leftists and other libertarians how they propose to solve this problem.

I believe that society as a whole has an obligation to include everyone, and certain community institutions will have an obligation to include everyone. I suppose a basic income might be a first answer, both as a means of including everyone, and as a means of compensation for excluding anyone. In effect, just as geoism proposes to compensate those excluded from land, this would compensate those excluded from social institutions, and also help counter exclusion. But this would pose its own problems. Who would administer it? Why would they be any more responsible to those society has disabled than all the other institutions have? Or any less corruptible by those society has most enabled? I do not think it is the best answer.

Further Credit: [I think] I first encountered the social model of disability, referred to and extensively used above, at a workshop by AndreaA Newman Mascis [my notes are mixed up, and I initially confused this with another workshop]. I suggest that people interested in sensory sensitivities look at the work of Sharon Heller and/or Olga Bogdashina.

Previously posted on Tumblr and on Livejournal.

Translations for this article:

• Portuguese, Alguns pensamentos sobre as deficiências e o anarquismo.