Forward

Kathy and I watch a lot of true crime shows, and their ratings confirm widespread fascination.  Some of that appeal is no doubt due to settings and lifestyles we find strange and exotic, as well as “who done it” curiosity, and we generally find closure when they “get the bad guy”.

When we dig a bit deeper and see that repeat offenses are very high, our prisons are filled, citizens seem unequal before the law, justice seems unjust, and punishments often seem disproportionate to the crime, especially for drug related crimes, we ask “Why is this so and what can be done about it?”

With that in mind, I thought a review of the why we have a justice system, what we’re trying to do, and the problems we’re encountering might foster thoughts that could lead to improvement, towards which ends this post is written.

By way of organization, we’ll start with what we learn from ancient sources, move onwards to the basics of criminality and justice, and then discuss problems concluding with notions towards the furtherance of our societal ends.

Philosophical Considerations (by estimated date of completion)

Torah (ca. 900 BCE to 400 BCE depending on book and source)

The Torah (also known as the Pentateuch or first five books of the Bible) provides one of our first insights into detailed legal codes and how they are applied to a relatively large population.  While the codes of Lipit Ishtar (ca 1870-1860 BCE) and Hammurabi (ca 1792-1750 BCE) provide helpful evidence regarding the evolution of laws and punishments, those codes presume a feudal arrangement where the powerful are not directly punished whereas with the Torah, all are equal before the law – if prosecuted that is. 

Here we also see the division of performance requirements (shalls) and prohibitions (shall nots) with 613 commandments in all, 365 being prohibitions, and 248 being performance requirements, such as you shall love your neighbor as yourself.  Generally speaking, the performance requirements guide us on what is “right”, on morality, inasmuch as breaking the law is a sin, but failing to the right thing is also a sin.  In our society, we illegalize bad acts, not failure to do the “right thing”, and prosecution of many of the performance requirements in the bible must have been very difficult.  It is primarily something to be taught, and the Torah requires (by law) that it be taught to the children.    

We also see, in Leviticus, a difference in sin and other offerings based on means (wealth), showing equity in some measure.  Lesser burden is placed on those who have less.

Monograph after monograph is written on these matters, but in the context of this post, we’ll limit our take aways to (a) All should be equal before the law.  (b) Law and Morality should be taught to all people subject to the law. (c) Equity should be shown in punishments for infractions.

Plato (b. ca. 428 BCE, d. ca. 348 BCE; Republic, etc.)

Plato’s definition of the best way to build a government involves telling a few, as he puts it, lies.  He stratifies civilization into high/medium/low (he uses Gold/Silver/Bronze) levels of performance and trust, and presumes that literature will be edited to present what the philosopher king and servants have determined to be healthy views on what is good.

His notions are that children would be monitored or otherwise evaluated as they grow and if a gold child was born to a bronze family, then that child would be moved and vice versa.  While this sounds almost like Marx (from each according to his ability), Marx seeks a classless society, and Plato has not even mentioned the proletariat (working class) at all, an omission that is easy to miss when we read Plato. 

Other than requirements for a good education, Plato has not helped us much yet, however, the Allegory of the Cave helps enormously.  Here we find people imprisoned in a dark cave lit by a fire behind them, since childhood, seeing only shadows and puppet shadows cast by their captors; they are almost completely ignorant of the real world except perhaps for memories when they were very young. 

When one of them is freed, he resists going into the light yet is forced to do so initially being blinded yet eventually being able to see the sun and the world as it is.  When he returns, and is blinded by the darkness of the cave, the others want to kill him or anyone else who comes from the light as potential doers of harm (blindness).  Perhaps a paradox is created – light temporarily blinds those living in darkness and darkness temporarily blinds those living in light.  How can the best outcome, living in the light, occur for all?

The answer is that trust must be established, just as trust was required for the Gold/Silver/Bronze ruse above, and for this post, that’s our take-away from Plato.  Societies cannot exist and improve if trust is not established and rightly maintained.

Aristotle (b. 384 BCE, d. 322 BCE; Nicomachean Ethics, etc.)

Aristotle is careful in discussing politics and criminal justice, likely because Socrates showed some support for the 30 tyrants of Athens and openly spoke against populism thinking that there should be certain required qualifications to rule and the people might elect someone who simply played them like fools with false promises and rhetoric, and of course Socrates was sentenced to death.  In other words, it didn’t seem necessary or good to Aristotle to put his life in harm’s way by being over critical of the government.

Firstly, he tells us that all laws imposed by the government are good, a statement with which he likely disagrees but can still make because, in large measure, if the government passes laws towards the end of fostering a free, fair, and safe society they at least think the laws are good.  But then he modifies this for ethical reasons by saying that the lawmakers cannot possibly understand or legislate every impact and practical implication of the laws, and it is up to the courts to ensure that justice is equitable.  Thus, every law as enforced mutatis mutandis (with necessary changes) as determined and applied by the court.

The take-away here is important and was frankly a watershed for me personally: Laws without equitable enforcement are unjust.

New Testament (ca. 50-110 CE depending on the book)

Paul of Tarsus, our earliest source, tells us that the power of sin is the law, which is important for us to understand, that the law itself creates lawlessness by defining it.  In the Gospel Accounts, Jesus tells us that it is legal to do good on the sabbath, even if that good is defined by the authorities as “work” making the good deed illegal on that day, and throughout his ministry he poses challenges to the law as it then existed, asking us to consider how we love God, or our neighbors as ourselves, through the imposition of rigid laws and merciless sentences.  His solution is to sacrifice for the benefit of others, to forgive the unforgivable, and to trust the untrustworthy.

What should we take away from the New Testament regarding criminality and justice?  We all fail to do the right thing, we all stand in need of forgiveness, our laws must not conflict with doing the right thing and must not pose unjust or unfair burdens on anyone, and we have a moral imperative to show mercy.

Stoicism of Marcus Aurelius (b. 121 CE, D. 180 CE; Marcus Aurelius’ Meditations)

Stoic philosophers taught that people do what seems good to them, and that we should realize and cope with this by, on the one hand, explaining why one person’s views and ours differ to convince them that what they think is “good” lacks information and perspective, and on the other hand learning from others where they prove their case and change our own view of what is “good”.  This is the ideal case; Marcus was emperor of Rome, fought wars, and at times used extreme punishments.

Stoicism has lots of pitfalls with which I and many would disagree, but this one basic tenet is sound and echoed in literature from the dawn of time, continuing today.  The question we face, and often cannot answer, is why someone thought “x” was a good thing to do, especially when horrific violent crimes result.  Even when we can understand why it seemed good, we often cannot understand why the person was unable to control themselves given the impact on others and the penalties.

The stoic resolution is to understand that the only person we control is ourselves and we must make that attempt, we must do what we can to mentor and be merciful for people’s incorrect definitions of what is good, and we should otherwise rely on fate and predestination.  Of course, Marcus, as emperor, had people banished, imprisoned, executed and the like because the stoic attitude is not practical towards the end of keeping people safe, especially not the emperor of Rome.

For this post, we take as fact that people do what seems good to them, but we must accept that the term Good is nebulous, hopelessly subjective, and a person can think that something is “good” at the time knowing full well it’s the wrong thing to do.  Still, to satisfy some desire, to avenge oneself, to make someone “pay” for betrayal, to express hate through violence, to rape, to kill, these things and many more can seem “good”.

The take-away here is that people do what seems good to them at the time.

Philosophical Considerations Summation

People must be provided with education as they grow up to understand what society views as good and right, as well as what the law demands, in order to be fully franchised in that society.  Armed with that education, we must approach law creation and our judicial system with the intent of holding all equal before the law, establishing laws that do not conflict with morals or over constrain personal freedom, establishing equity in measures taken by courts for each case under the law, and creating and maintaining a trustworthy and trusted system of justice weighted towards doubt and mercy.

Teaching of critical thinking, empathetic “impact on the other” assessment, and broad-based understanding of example societal impacts is, at some level, a necessity to fully enfranchise the population. 

In using the words franchise and enfranchise, I mean that the people control the law through their votes and representatives, therefore, to fully exercise that power they must have the education to do so.  While we learn this from our Philosophical sources, it is also a step necessary to answer the concerns of Socrates that whose whom we choose to lead also have some expertise.

Criminality and Justice

The Law

With the beginning of human communities came the institution of communal rules and punishments for breaking those rules.  From that time forward, certainly 4,500 years from archeological findings and likely well over 100,000 years, communities have struggled with the concept of rules, transgressions, punishments, and the balance between what restrictions are necessary and how many are sufficient to create and maintain a safe, generally happy, and productive society.  These intangible and abstract concepts are the ends, the purpose, of laws and education.

Humans seem to naturally progress from a modicum of laws through the creation of new laws intended to address some particular issue that has arisen or to clarify ambiguous details in the law, accumulating and agglomerating an enormous legal corpus.   This tends to have the form of basic rules, like not stealing, surrounded by a series of walls broadening the controls to protect against approaching the breach of the base rule. 

For instance, several moving vehicle requirements, “reckless driving”, such as prohibition of impaired driving, are put in place to keep the negligence of the one from causing harm to the other, making that negligent act a crime even when no harm is done by it; it prohibits behavior that could cause harm in order to prevent harm which is a brick in the wall around the base requirement.  Another ancient and classic example is the Biblical prohibition “thou shalt not boil a kid in its mother’s milk.”  (Deuteronomy 14:21)  At the end of the day, all walls being built, this specific requirement and not knowing the source of kid (or meat from a milk producing mammal) and milk leads to the dietary prohibition of mixing meat and dairy products, even to using separate cookware, dishes, flatware, and utensils.  Adherents are thereby sentenced to life without the possibility of a cheeseburger to prevent violation of this requirement.

Every law defines a breach of that law thereby creating lawlessness by defining it.  What was legal yesterday may be illegal tomorrow; the same act becomes unlawful and the transformation from legal to illegal (such as Prohibition – 18th amendment) advances much faster than reform (such as the repeal of the Prohibition – 21st amendment).  Some societies create retroactive laws so one cannot know at any given time if they commit a crime or not.  In these United States, the creation of retroactive laws (also known as Ex Post Facto laws) is prohibited by the Federal Constitution (Federal Legislation: Article 1, section 9, Legislation of the several states: Article 1, section 10).

Morality

People generally separate the law from morals, often stating that one cannot legislate morality.  However, people will not create and pass laws if they do not find them good or at least politically useful.  Therefore, the law and morality are inextricably intertwined as legislation creates a picture of the legislators and their scruples (and the will and political winds of the population).  However, laws are usually a definition of a wrong act, not a definition of what is right, and what is right is not the absence of wrong.

In other words, while not doing the wrong thing is legal, failing to do the right thing lacks morality or perhaps ethics.  This wrong thing, defined by the law, is a negative command (thou shalt not), the right thing is a performance requirement, a positive command (thou shalt).  In a free society, performance requirements are minimal, for instance paying taxes and registering for the selective service, or for that matter, going to school through a certain grade level.  One should note that great objections occur with performance requirements such as the insurance mandate of the affordable care act, Covid Vaccination mandates, and requirements to wear disease spread reducing masks.

Regulations and Codes, still enforced through the courts, are used widely for performance requirements, but these generally depend on some optional undertaking such as exporting goods or erecting a building or doing business with a government entity. 

So, we can see that the main reasons people are incarcerated is for violating negative commands, not for failure to do the right thing.  Doing the right thing is something that children are taught by everyone involved in their upbringing.  Being polite, not being violent and throwing tantrums, being helpful, telling the truth about serious matters, being respectful of others, their privacy, and their wellbeing, these are all positive commands.

The law begins regulation when demonstrable harm is done by a behavior, and failing morality and a moral or ethical compass, the law must and will expand ad infinitum because failure to do the right thing results in harm, the prevention of which is the purpose of our justice system.  This is an unintended consequence but is both historically and currently accurate.  “There ought to be a law” is a perpetually common phrase; the walls are built around each harm to illegalize behaviors that might lead to harm.

Justice and Punishment

Our concepts of justice and punishment exist in two stages:  Justice is the process by which all persons, being equal before the law and under the presumption of innocence, are charged with violations and either convicted of having violated a rule or are acquitted of the offense based on the evidence presented in a court and weighed by a jury of peers.

Punishment is the process whereby a person, having been convicted of an offense, is levied with penalties for having broken the rule.   

There are several purposes or ends to be achieved by punishment.  Firstly, where possible, the balance between the aggrieved and the perpetrator is to be restored through restitution and additional compensation for the loss and trouble.  This is most often seen in civil or “tort” cases.  Secondly, a period of extirpation or banishment (as in prison) is used as compensation for financially intangible losses and to temporarily prevent a recurrence of such activity.  Perpetual extirpation (life sentence) is used to remove malefactors from society permanently.  I realize that death sentences are also in use, however, I believe that necessitating one citizen (the executioner or nurses administering lethal injections) to commit a state required legal murder in order to punish another citizen for a heinous crime is both unethical and immoral however reasonable taking a life may seem.

Problems

There are now, and always have been, problems in any system of Justice and Punishment and that’s really what we’re here to review in this post.  I have no data to support the impact of the issues that I discuss, so the order should not be viewed as in any way impact ranked.

Losing the Ends in the Sea of Problems

Systems of laws, justice, and punishments are established to achieve certain ends.  In these United States, those ends are to protect society from acts that cause demonstrable harm in order to facilitate life, liberty, and the pursuit of happiness in a society governed by the people and representatives whom those people elect.  As part of that protection, our system also makes every attempt to mitigate damages done by harmful acts through restitution and the prevention of future harmful acts by convicted lawbreakers through fines, extirpation, and other means (e.g., public service).

When we demote justice to “Crime and Punishment” or “Criminal Justice”, we sometimes lose the impact of the ends we seek.  We neither seek the creation of criminality by overmuch legality nor the punishment of individuals.  No, we really seek prevention of harm, the rebalancing the scales after harm has been done, if possible, and the improvement of the behaviors of those who were convicted of having done harm.

Here we have developed tactics throughout the system, specific methods that are used, but the overall strategy seems to be failing as evidenced by our per capita prison population being the highest on earth and our very high rate of repeat offenders.  We tend to approach this by being “tough”, by escalating tactics and punishments, but this has met with little success.  In truth, the overall strategy must also rely on education.  If people do not fully understand what the law is, what the penalties are, and what their rights are, the deterrent effect of punishment is far less effective.

For instance, based on the shows we’ve watched, I’ve been surprised to learn of penalty escalations made available to the district attorney by the law.  For example, one who drives a person to a crime scene can be charged with the crime itself up to and including murder should the robber kill and, in an ingenious twist, that same driver can be charged for murder of the robber if the store-keeper or the police end up using justified deadly force.  I had no idea that such escalations were part of the law in several states.  If more people understood that, it might well have a chilling effect on someone being a driver.  Whether or not we agree that this is just, it is what it is, and people should be aware of the possible consequences for their actions.

Our other systemic failure here is the societal notion that ignorance of the law is not an excuse for breaking the law.  When the body of laws becomes so enormous and complex that lawyers specialize and lawmakers themselves do not fully understand legislation, the proposition that “ignorance is no excuse” fails and full education becomes impossible. 

Equality and Equity

Equality and equity are not the same concept.  Equality holds that the person is not considered, only facts and evidence of what they have or have not done are weighed by the scales.  For criminal affairs, the standard is beyond reasonable doubt and for civil affairs the standard is more likely than not, and the court case balances against those standards on the scale.  Therefore, justice is depicted as being blind, and our constitution provides equal protection under the law; we are all the same before the law in determining guilt or innocence, or we should be. 

Equity differs in that the scales of justice here seek to restore balance.  Fair and equitable solutions are not the same from party to party because they do consider the person and the impact or damages on the one compared to the impact and damages of reparations on the other, or they should.

We lose sight of our ends here more frequently than in other areas, as have societies through history.  Aristotle discusses this in Nicomachean Ethics with the notion being that the law givers write good laws but the courts must reach equitable solutions, and I agree with him leading me to also believe that imposition of fixed sentences with no judicial discretion is a problem.

We tend to think of a stent in the slammer as an interruption in life but, in reality and for those without means, even a short time in jail has wide ranging impacts on housing due to non-payment of rent, utilities, cars the person may be paying for, jobs they cannot return to, and so forth.  And we must duly note that a person need not be convicted for these consequences to occur, only put in jail pending trial (which is one reason for the sixth amendment “right to a speedy and public trial”, however “speed” does not attach until charges are formal).  For justice to be equitable, indeed “just”, this must needs be taken into consideration in assessing punitive measures, even setting bail.

Again, we verge on morality because we’re discussing what we should do rather than what we’ve done.  That said, consider the case of fixed fines.  When most of us face such a fine, it is irritating and inconvenient.  When the poor face such a fine, having no ability to pay, they may be put in jail resulting in loss of job, of car, of housing, loss of lots of things.  This is certainly not a fair or equitable punishment.  The Bible recognizes the different ability to pay (cf. Leviticus 5:7, 5:11, 14:21), in offerings, but somehow, we’re more focused on punishment than what is fair and reasonable, we’ve lost sight of our ends.  Should we really be less equitable than a society from before 500 BCE?  Surely not; this is a problem.

Correction and Return

Accepting that some people will never be willing, or even able, to live under the laws of our society, our system seems overfocused on extirpation (removal from society through shunning, exile, banishment, imprisonment).  Furthermore, societal shunning remains after the person has completed “payment”, with their record following them for the reminder of their lives impacting housing, credit, employability, and lots of things.  The opening chapters of Victor Hugo’s Les Misérables give voice to this, and our situation is not unlike France in Hugo’s day.  Conviction of an offense, especially a Felony, has lifelong consequences.

It is here that I think we have both our biggest opportunity for improvement and our biggest failing.  Let’s explore that.

If the setting to which a person is returned after confinement represents a decrease in standard of living (housing security, food security, health care, personal safety, etc., any or all) compared to imprisonment, then the deterrent to repeated offenses is greatly decreased because liberty coupled with the differential in other basic elements is the gain by release.  Over the ages, people have argued for and tried harsher treatment in prisons, perhaps to make the gain in release greater, perhaps in part leading to our eighth amendment prohibiting cruel or unusual punishment.

We seem to have normalized criminal activity by phrases like “do the crime, pay the time” as though this is transactional when it is a clear societal and cost benefit so reduce recidivism and return people to society in a productive role, mutatis mutandis for people who will not be helped, are psychopathic, or have some other untreatable problem leading to bad acts.

This then points to some version of a root cause and corrective action effort to be made for at least every first time offender, and for state sponsored in-prison activities pre-release normalization activities  to ensure that we don’t simply put people out of prison with a bus ticket and the clothes they arrived with.  That is to say that state controlled extirpation has rendered these individuals wards of the state, and has deprived them of means of livelihood for just cause, creating a quantum of responsibility for the state to see that punishments result in re-integration in order to achieve the desired ends, and that the punishment is not lifelong unless the sentence envisions this.  In theory, all this is the purpose of parole and probation however, the rate of recidivism speaks poorly of the system’s efficacy.

Criminality and Justice Summation

In order to maintain a more perfect, fair, and just society maximizing liberty and the ability to pursue our wishes and our happiness, boundaries must be set and proportionate measures taken to restore balance when boundaries are crossed.  What boundaries may exist, and what tactics may be employed are controlled by Federal and State constitutions and the Supreme Courts of the United States and the Several States, ensuring that the rights of individuals are not violated in the implementation of laws deemed good by the majority.  These laws create “Liberty” which is freedom constrained within the boundaries of the law.

As the law builds new walls, guard-bands, around each basic boundary, liberty becomes increasingly constrained, and while the basic laws are few the guard-bands are seemingly infinite, and few if any understand them.    Overmuch focus on prevention through deterrence of specific bad acts that may produce harm has historically resulted in enormous legal codes, choking out the space for liberty and creating an impossibility of compliance, especially for the poor.  This, in turn, makes almost everyone a law breaker and makes law enforcement a selection of the population (any of whom could be selected) rather than a list of offenders, leading to much corruption, favoritism, and thereby creating tyranny and oppression because justice cannot exist if all are law breakers.  This has historically led to revolutions of one sort or another.

None our problems are new or particularly worse in these United States than they are in other countries if fully reviewed.  Our issues, equality before the law (including a basic understanding of the law itself), equity in sentencing, community morality and ethics, police agency tactics, and how to re-integrate citizens who have crossed boundaries are not new but are in need of constant refinement and review.  That review must include our philosophy and the ends we seek in order to assess our performance.

Ends and their furtherance

The utopian goal that we seek to approach is a society where people control themselves and do what is good and right for themselves and others. 

Thus, our ends are to create a society of people that control themselves within reasonable boundaries set by our laws, to act in ways that both persuade and motivate people to comply with the law, and to remove people who pose an existential threat to others.   When a claim is raised that the law has been broken, we desire a system of justice that holds all citizens equally accountable in determining guilt, that shows mercy and equity in sentencing and return to the populace as the courts determine, and that does what is possible to restore the balance prior to the offense.

Furtherance towards these ends requires an engaged population, not enraged but engaged, seeking to improve strategies, laws, tactics, assessments of equality and equity, and accountability through the power of the vote, of the protest, and of other appropriate means.

Stumbling Blocks

Trust

Trust is badly broken within our culture, and Justice can never exist when society does not trust the process, its agents, or the outcomes.  As we’ve said, education is paramount in establishing trust because people doing what you expect them to do buildings and maintains trust, meaning that having expectations based on a good education and knowing what goes afoul of proper practice is necessary. 

For someone or a system to be deserving of trust, its intentions must be known, and it must be accountable to those intentions.  Our intention in investigations is to seek the truth and gather evidence.  A system claiming to seek truth cannot be trustworthy if it uses lies and prolonged interrogations to psychologically and physiologically degrade the intellectual capability of the person interviewed.   

Trust also depends on some level of transparency.  When our investigators mislead people by stating that the person being interrogated will get only that interview to make their case, when they claim to ability to make prosecutorial deals with people rather than telling them that the suspect should request legal advice from an attorney if this is their desire, when they imply or state that the burden of proof is on the suspect and not the state, they create a fog rather than transparency, and that which is obscured by fog is not trustworthy.  Reforms are desperately needed.

This is especially true when we need to hold ourselves to account, and when bias exists, as we will now discuss.

Bias

Affinity

All humans are biased when they view the other, and the sooner we admit this simple fact, the sooner we’ll be able to work through the issues this important human quality brings.  Obviously, survival depends on bias developed through trust and the ability to rapidly react to danger and to choose a mate, so bias is a necessity not something to be discarded is inherently bad.  Neither is this an American issue.  All humans are biased.

That said, one problematic fact is that we are biased towards people like us and away from people unlike us.  This tendency, known as affinity bias, undermines trust and justice because bias prevents fair, equal, and equitable treatment and, because it’s not in view, it becomes a fog that lessens the credibility of our systems and their enforcement.  And, yes, the fog has covered up a lot of bad things.

On the other hand, those affinities create cultures, the arts, worldviews, and incredible diversity making our overall society a beautiful Kaleidoscope with diverse shapes, colors, luminescence, and so forth.  Indeed, our affinity bias if we know ourselves, leads to our careers, choice of life partners, and all sorts of positive things.  But for justice, it is demonstrably pejorative.

One thinks of recusal when a person is biased, and this is undertaken when there are certain tangible biases towards family, financial interests, and so forth.  However, affinity bias is ubiquitous, inescapable, and endemic; each must learn to identify and compensate for that bias.  Our Stoic friends would suggest that we fail in classification of what we find because we take things that should be bad-good neutral and ascribe badness or goodness to them due to the level of affinity we share, not due to what is inherent in the difference, and here is where morality and culturally normative behaviors may conflict with our ends by classification of certain things as “bad” whereas they should be neutral thereby creating “validated bias” in all associated with those cultural norms.

In order to avoid the trap this sets for us, we must constantly be reminded of our ends which are to prevent harm from one to the other and to restore balance where it occurs.  Therefore, things that do no harm should be neutral except where we build the wall of guard-bands such as drunk driving.  On the contrary, by not declaring things neutral, things such as gender, race, ethnicity, religion, sexual orientation, and on and on we validate biases based on those very things.  And where those validated biases have done harm, justice cannot exist until the harm ceases and balance is restored.

Our American culture has at least put biases and stigmas on the table as causes of harm.  Companies train employees in affinity bias in hiring and employee treatment, at least I am trained, which is a good first step.  However, overcompensation creates a new bias and new harm, and the notion of some one time “fix all” by financial compensation does not restore the balance created by so many years of poor education, lack of opportunity, biased court rulings, and all of the negative consequences and harm done by bias, even laws constructed with intended bias in behaviors made illegal.

All that being said, we must accept that there will always be biases in the system and in each of us.  The question is one of extent and impact not of existence, and making compensation for bias and improvement of the treatment of all before the law a perpetual task to perfect and approach true justice in accordance with the ends we seek.

Socio-Economic

Most of our laws and cultures have evolved from feudal or honor-based foundations whereby the wealthy “people of means” received different, most often preferential, treatment before the courts.  In our ancient past, quite often this preference was in the person’s ability to convince or hire other skilled rhetoricians to convince, which relied on means to do so.   Our system attempts to restore balance by the presumption of innocence and the requirement that the state make its case through presentation of facts, rather than requiring the defendant to prove innocence.

However, the ability of people with means to use counsel prior to the court proceedings, asserting rights and making sure that rules surrounding evidence gathering and questioning are followed, makes the ability to build a case inherently inequal between people of means and people of little means.  In some cases (see The Ferguson Report), it seems clear that systematic and systemic bias against those with the least ability to resist exists and is used for state financial gains as well as a better conviction metric.  Educational disparity between societal classes exacerbates this problem, as does the difference in impact of investigations and punishments on the poor.

The system itself, through inequitable punishments and the necessity of legal representation long before trial, is rigged against the poor. 

Fear

Fear of imminent danger demands rapid response and the determination of whether to fight or flee.  Imminent danger provides no time for logic, philosophy, contemplation, or rational thought; what we do is instinctive or, in some cases, well-practiced to the point of being tantamount to instinct.

Fear creates and amplifies bias especially regarding the use of force and what level of force is necessary and appropriate.  Real threats are posed to the lives of first responders by the population, and through use of force, real threats are posed to the lives of the population by the first responders.  The primary consideration in such circumstances and how we respond by instinct and training is the level of trust that is appropriate and, of course, where crimes are involved, that ability to avoid capture and if captured perhaps the ability to decrease the penalty by cooperation.

Our society has not dealt with fear and using fear well, knowing that fear and respect are coupled.  We see this in the loss of prudence, meaning that what is prudent is some level of caution in decisions guided by wisdom.  For instance, while robbery is always a crime, it not prudent to stroll into a high crime area or ride public transportation in a high crime area sporting all sorts of expensive jewelry and having money dangling from one’s pocket.  This increases the likelihood that a specific person will become a target of opportunity, but most likely does not increase the likelihood that someone was going to be robbed in the first place.  So, while we have every right to do something, we must also understand that prudence and prudent caution is advisable in all things to avoid being that target of opportunity.  Unhappily, if it’s not you, it will indeed be someone else; I’d disagree with the notion that temptation creates crime, it simply increases the chance of being the victim given that someone is probably going to be robbed, raped, and so forth.

My favorite real-life example is the busy parking lot.  Observe pedestrians, including parents with their children even infant children, walking from their cars to the store and back.  You will note that the majority do not look either or both ways when crossing the intersecting road because you are supposed to yield.  It is true, they have the right of way, and should something happen, you are at fault and can be sued or even held criminally liable.  The better course, however, is prudent caution, is looking both ways even making eye contact with drivers, is establishing some level of trust.  All the court cases in the world cannot restore permanent damage done by a car hitting a human, or a loss of life.  So, too, with robbery, rape, and countless other things where avoidance is paramount, not our rights and who is in the right. 

To be clear, this not a matter of fault, and I’m not suggesting we should be afraid to cross the street.  I am suggesting that drivers get distracted, that they are not necessarily aware of your rights, and that it is prudent to exercise caution when crossing the street.  So, too, with opulent jewelry – both the kind you buy and the kind your body is.  Prudence.  We cannot live our lives in fear that someone will attack us or hit us, but we can take wisdom seriously and not depend on intangible rights and courts to protect us because damage that has been done can rarely be fully restored. 

Much the same can be said for our engagement with police.  While I disagree with our tactics and the reasons we think valid for the use of force, the existential reality is that force, even deadly force, will be used by the police if someone poses a perceived threat, lacks cooperation, or attempts to flee.  In that moment, the prudent course is to cooperate within one’s fifth amendment and Maranda rights – that is, not incriminating one’s self and not making statements without a lawyer.  Failure to do so, even within one’s rights, may result in grievous harm, even death, and it’s a far better thing to be in court yourself addressing these breaches than to have your mourning family cry for justice.  Until we get the situation fixed, and we must tend to that, this is reality.  Be concerned with your safety, be wise, be prudent.

Summation

Our society has reached a point of educational attainment that has opened our eyes to injustice, inequity, and biases yet has not resulted in an increase in trust, a decrease in crime, or any of the tangible improvements see seek in furtherance of our ends.   We are bewildered by what we find, often asking if it was always this way or if we just have more news and communications in the 24 hour news cycle.

What we fail to grasp is that the problems we face are not new, but the uncovering of and freedom to address and fix these problems is still dawning.  This is an inherent feature of the American Experiment – strong and open self-criticism, arguments, protests, even violence, and constant change.  It is an evolution towards the shining city on the hill, not a shining city that has been left for us to maintain and that fact seems illusive as we ponder former greatness without probing the depths of then extant injustice, racism, sexism, homophobia, and other vestigial elements of our selves.  To be great, in the American Experiment, is to innovate, to identify and solve problems, to maximize liberty, to maximize equity, to maximize hope for a better tomorrow and work hard to make those hopes a reality.

What is past is past, and what we think it was is not what it was, because worldviews have changed and the lens is clouded.  We must learn from the past, and from each other, to drive towards equality, equity in punishments, restoration of the offended and return of offender, and the removal of bias through self-awareness throughout our society.  This is our primary task: to restore trust.

This begins with education in rational thought and critical thinking, especially including the impact we have on others.  Yes, morality “the right thing” must be taught at some level, and we should all be able to agree to that level if we’d be rational.  But love, self-sacrifice, and hope, even trust, are often irrational.  That’s why the American Experiment is a little crazy, because we rely on love, self-sacrifice, trust, and hope.  We must never be so sane and rational as to lose the basic je ne sais quoi, the basic soul of our republic. 

Wash yourselves; make yourselves clean; remove the evil of your doings from before my eyes; cease to do evil, learn to do good; seek justice, rescue the oppressed, defend the orphan, plead for the widow.

Come now, let us argue it out, says the LORD: though your sins are like scarlet, they shall be like snow; though they are red like crimson, they shall become like wool.   (Isaiah 1:16-18 NRS)

These words are over 2,700 years old, when will we ever learn?  Let us argue it out, seek justice, rescue the oppressed, defend the defenseless, protect the poor.  Let’s re-learn what it is to be American.

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