It's About Justice Not Process

During the height of the Occupy demonstrations, I took to using a slogan that I derived from the Egyptian Revolutionary movement and other social efforts going on prior to, during and after the Arab Spring
  DIGNITY, JUSTICE, COMMUNITY, PEACE.   
Such simple, indeed obvious, concepts but so far from realization in the modern world, even after the Revolution comes, as it did to North Africa. The reasons why are topics for many other days, but for now, let the topic be JUSTICE. For that is what the Dorner Thing and many other seemingly spontaneous or random acts of vengeance and violence are all about.

JUSTICE.

Dorner's central claim as stated in his purported manifesto is that he was wrongly accused of making false statements and unjustly fired from the LAPD in 2009, and that he attributes that injustice to institutional racism, the Blue Line of Silence, corruption, and the dishonesty of a long list of LAPD personnel.

His claim resonates strongly with practically anyone who knows anything about the LAPD.

Whether his case was as described in the manifesto is impossible for those of us not involved to know, but most of the relevant court documents are available online, and they paint an unpretty picture that is ambivalent about the facts of Dorner's claims but deny him any and all recourse from being terminated from the force.

The internal investigation of the incident in question -- in which Dorner asserted that his superior and trainer kicked a mentally ill suspect several times during the course of a messy arrest -- found that it could not establish with certainty that the kicks occurred. Witness and victim testimony was inconsistent, the officer who was accused of kicking the suspect denied it, and there was no written report (or video evidence) that indicated that the suspect had been kicked by the officer taken at the time of the arrest.

From the evidence of the documents so far, Dorner had ample due process -- during the internal investigations, the LAPD's Board of Rights hearings, and during a number of court actions and appeals. The process could hardly have been more complete. But process is not Justice, something lawyers and devotees of process are widely unable to understand or accept. And Dorner's claim is that despite all the process he received, he did not receive Justice.

He put it very simply and poignantly: "I never lied." From the evidence in the documents and what has been said about Dorner's character by those who know him, that's probably true, he didn't lie about what he witnessed and reported.

But the Board of Rights determined that they could not establish with certainty that he told the truth.

And thus, he was fired.

Think about that. Someone within a police department can witness and report abuse such as kicking a mentally ill suspect, but unless there is sufficient visual and/or written evidence at the time of the incident to establish with certainty that it took place as described, the police witness to abuse will be (not may be, will be) subject to disciplinary action, up to and including termination, for "making a false report."

What sort of Justice is possible under such conditions? Naturally, most incidents of abuse will not be reported at all under the circumstances. And isn't that the point of threatening with termination anyone who does report abuse without also having airtight evidence?

Process can go merrily along, regardless. Process usually produces results, but those results are not in and of themselves Justice. And when injustice is the frequent or typical result of process, rebellion and revolution are almost inevitable.

Lawyers, particularly prosecutors, for their part seem incapable of even imagining such a thing. To many of them, the process itself results in justice; there is no other way to find justice except through established legal process (for example, through our adversarial courts, or the intricate and arcane investigative rules surrounding police misconduct) and whatever results from that process is by definition Justice. Even when the result is self-evidently unjust. Which more and more frequently in our corrupt and dysfunctional system of "justice" is the result.

Charlie Beck claims he will reopen the process to make sure it was done right.  Not to make sure that the result was just. This is related to the infamous Scalia observation that there is no legal reason why someone who is factually innocent shouldn't be put to death if all of the legal process was done correctly.

In other words, actual Justice doesn't matter so long as process and procedures are followed correctly. If the process and procedures produce arbitrary and/or unjust results, oh well!

I've wrestled with this issue many times online, challenging some assumptions about process and justice along the way. My father was an attorney and a JAG officer during WWII and Korea, and while the common snark is that "military justice is to justice what military music is to music," he said that actually, as imperfect as the military system was, it was intended to and designed to produce justice, and from his experience, that's what happened more often and more dependably than in the civilian court system. I know from the experience of other family members that it doesn't always do so, however, and that the military system can be abused and manipulated to accomplish patently unjust ends. Whether that potential for abuse outweighs its ability to produce justice I'll leave to others to decide.

I brought the reality of military justice up when there was so much controversy over military commissions at Guantanamo charged with meting out justice to terrorist suspects. The commissions were deeply flawed, there was no doubt about that, and some of the officers assigned to them said so in no uncertain terms. A few even refused to participate in them and many observers called them farces and charades, kangaroo courts and worse.

But something surprising happened in the few cases that actually went through the commissions: though they lacked many of the rules and attributes that we would commonly associate with fair trials, oddly enough they produced something much closer to Justice in the few cases they adjudicated than the civilian courts did in many cases of terrorist suspects they handled. Indeed, the commissions, though hardly even a shadow of a fair trial as commonly understood, tried to get to the bottom of the accusations against suspects held at Guantanamo and quite surprisingly ordered their release or imposed very light sentences when they discovered that the accusations were undersourced and overblown.

In civilian courts, on the other hand, false accusations and entrapment were routinely used to convict and sentence suspected terrorists in case after case, in embarrassingly unjust show trials, over and over again, and that system was being held up as the one that should be utilized for the Guantanamo detainees, because it's process was the proper one -- regardless of how unjust the results.

I wrote about the case of Sir (later, Saint) Thomas More as an illustration of how far from Justice a devotion to process can be.

It seems clear that a failure of Justice was the catalyzing element in Christopher Dorner's rage against the LAPD. Enormous numbers of people appear to be very sympathetic with his cause because they know just how far from justice the culture and behavior of the LAPD has been for generations. They know how corrupt the institution is, how venal, how brutal, how unaccountable. Yet Dorner was apparently afforded ample due process, numerous hearings, court appeals and so on. Never, so far as we know, throughout this ordeal was Justice more than an abstract consideration. It was all about process. Following rules of procedure. With an apparently unjust result. And an attitude of "Oh well! Bye bye!"

This isn't a "madman," this is a man who has suffered a gross injustice from a system that he had put his faith in. There are almost too many Americans to count who have suffered something similar, not to mention the millions around the world who have suffered or been exterminated by American "justice." Dorner's cause resonates because there have been so many victims of much the same thing as he went through, not because they approve of his radical tactics in getting revenge.

The defenders of that system, however, seem to be incapable of appreciating how inhumane and unjust it often is, and how ultimately unreformable it is. Instead, they will focus on some individual or attribute or mechanical device -- Dorner or police misconduct or drones or whatever -- asserting that if only Dorner were taken out or police were better trained or drones were eliminated, or something-something something-something, then things would get back to normal and be OK.

No. In my view the systemic and institutional failures are too severe to stay focused on the superficial and never probe the rotting foundations of it all.

The Catholic Church would rather lose its head than probe its own rotting foundations, so it's easy to imagine how difficult it is for LAPD or many other failed secular institutions to do the right thing.

Another Christopher was laid to rest yesterday -- Chris Kyle, the American Sniper -- and so many thousands turned out that they had to conduct the service in a football stadium. Think about what he did to gain his notoriety. He saw it as "justice."

Was it?

And think about what Chris Dorner is accused of doing. He apparently said he saw that as Justice.

Was it?

(In the case of Dorner, what he has actually done -- as opposed to what he is accused of doing -- is difficult to know. Evidence linking him to the killings he is accused of is slight to none, his supposed appearances have not proved out, and there is a whole body of conspiracy theory claiming his "manifesto" is either entirely fraudulent or has been severely tampered with. On the other hand, what there is actual visual evidence of is Dorner's burnt out truck said to hold destroyed weapons inside, and Dorner seen on video disposing of weapons in a dumpster.)

"Chris, All The Best, Chief Bill Bratton"

[One of the best summations I've so far read about the LAPD Thing: "LAPD Chickens Come Home to Roost" by Ruth Fowler. ]

In Which Ché Pasa Channels Scott Horton

As should be clear by now, I consider denouncing and struggling against puerile "Libertarian" punks like Rand Paul to be just fine and dandy, whereas, more often than not, I will defend someone like Elena Kagan -- or even Arch She Demon Hillary Clinton -- when others are denouncing and struggling against them.

And the difference is....?

Bystander suggested I might be channeling TBogg. I'm sure TBogg would not be channeling my own self!

Meanwhile, there are far more important and fundamental issues before us than this or that individual getting wrung through the Wringer of Scrutiny on a blog post or on national teevee.

For some time I have been making the point that our so-called Justice system is grossly corrupt and politicized to the point of being merely the simulacrum of Justice, not the real thing at all, not even remotely so. And that the Federal system lost all credibility when the Supreme Court sacrificed its integrity to lawlessly decide the election of 2000.

It's been downhill ever since. And yes, I know there were many faults in the system prior to 2000. I know.

Well, Scott Horton has a post up at No Comment "Montesquieu—Tyranny in the Shadow of the Law" which I think encapsulates our overall dilemma when it comes to the very conception of Justice in this country today. It wears the mask of the Law, but it is under the control of certain powerful men and interests. It is, forthrightly, a tyranny, in service to tyranny.

Il n’y a point de plus cruelle tyrannie que celle que l’on exerce à l’ombre des lois et avec les couleurs de la justice...

Indeed.

Let us go now and ponder.
(h/t for the phrase -- which I haven't heard since high school -- to coram nobis over at Glenn's Place.)

Puritan Utopia

Utopia was written by Sir Thomas More (whose tribulations have been the subject of several of the posts on this blog) in 1516. Utopia, in turn, was built on Plato's Republic from 4th Century BC Greece.

At the time Sir Thomas wrote, English Puritans were on not yet on the horizon as their fundamentalist sect hadn't jelled sufficiently to be either a political or religious force to be reckoned with. The Puritan sect arose, essentially fully formed, during the reign of Elizabeth I as a reactionary and purifying element in the (and eventually separate from) the Church of England, which itself had recently gone rogue from the Catholic Church as a consequence of Henry VIII's overweaning self-love and his erotic/dynastic desires.

The concepts of the ideal republic that were the touchstone of both Plato's Republic and Sir Thomas's Utopia would become central to radicals and reformists alike throughout the English speaking world and beyond. Some of that influence came to America with the Puritans of New England, and it spread from there. While Puritanism and Utopianism are not the foundation of the American move to Independence, there can be no doubt of their strong influence.

And today, Puritanism and Utopianism are once again arising as answers to what ails the faltering (or in some views, my own included, the extinct) American Republic. We see it in the widespread Fundamentalist Religious movements, and we're seeing it in the Libertarian/Propertarian public figures of Ron and Rand Paul and their ilk which have been so highly "scrutinized" since the Younger Paul's Republican Senate primary victory in Kentucky.

Libertarianism and its narrow-focused brother Propertarianism are Utopian and they are Puritan. They propose a narrowly defined ideal civil society based on theoretical constructs of human nature and what should be, ignoring what is or what has been experienced along Libertarian and Propertarian lines, in favor of constant adherence to and promotion of what the ideal would be and should be if only everyone applied it purely enough. That no one does apply the theoretical concepts of Libertarianism/Propertarianism -- at least not sufficiently for Ultimate Proof of the theories -- is a failing of ruling elites and ignorant masses, not -- at all -- a failing of the political, social, and economic concepts involved, and certainly not a failing of Utopian and Puritan vision. Which, by definition, cannot fail, they can only be failed by cowardly humans who deserve their own misery. So there.

They are Unredeemed. Perhaps Unredeemable. Oh well.

Ron Paul has long been the Voice of Libertarianism in the US Congress, where he has had the seat from Galveston, TX, off and on for many a long year. He claims to be a Constitutionalist, but like many such self-proclaimed Puritans, he is nothing of the kind. It is impossible for someone like Paul, who disputes essentially the entire history of self-government under the Constitution, warts and all, to be a Constitutionalist in any rational sense.

What I've said is that he is a Confederate. And so is his son.

The Constitution of the Confederate States of America (ie: Dixie, the Rebel South as it were) is similar to that of the United States of America, but for that fact that property (specifically and especially property in Negro slaves) has a much more important role in the purpose of Government. It is close to a Propertarian's dream, and because it is otherwise similar to the United States Constitution, so similar as to be identical word for word in many cases (somewhat like the US Bill of Rights is sometimes word for word similar to the English Bill of Rights of 1689, though the two had very different purposes), there might be something of a Constitutional Confusion in the minds of so-called Constitutionalists like the Pauls. Just what Constitution are they referring to? Hm?

Property is so central to the Libertarian/Propertarian Puritan Utopia that Ron and Rand Paul, in defending their "concerns" about the Civil Rights Act, the Fair Housing Act, the Americans With Disabilities Act, and so on, essentially declared them "unconstitutional" insofar as they interfere with or regulate the use of private property by their private owners. An argument can be made -- and certainly was made by the property-obsessed Owners of the South (and elsewhere) back in the day -- that legal prohibitions on segregated public accommodations violate some sacred notion of private property. It is difficult, nay impossible, to find that sacredness in the US Constitution as amended, because it isn't there. It is, however, in the Confederate Constitution, and it is implied in the Articles of Confederation that preceded the adoption of the Constitution of the United States.

The struggle with the South -- and parts of the West -- has been over the primacy of private property rights ever since. Libertarians/Propertarians are as focused on the primacy of private property as any Georgia Cracker ever was.

And their claims of adoration of the Constitution of the United States ring hopelessly hollow. Securing, protecting and defending private property rights is not the prime objective of the United States Constitution; in fact, property rights barely enter into it at all.

However, those protections and defenses missing from the US Constitution are in the Confederate Constitution, and they are implied (through the primacy of States Rights) in the Articles of Confederation.

The Private Property Utopia was neither the intention nor the outcome of the adoption of the United States Constitution, but there have been many opportunities for individuals and groups to form Utopias within the United States -- based on pretty much anything they want. They haven't succeeded. There are and have been extraordinary opportunities within the United States to acquire, develop and prosper from private property, but always under some form of lawful taxation and restrictions. The absolutist notion of rights in property that are so fundamental to the the Libertarian/Propertarian world view (and achieving their Utopia) are simply not part of the framework of American law and governance.

Consequently the Puritan Utopia of Private Property -- which is fundamentally what Libertarianism and Propertarianism are all about -- is not American, as in the United States of America. It is, however, a principle of the Confederation and the Confederate States.


The Perfesser Chomsky explains it all for you:

Private Tyranny - the Libertarian Wet Dream and Utopia

Formalism and Legalism versus Justice and Sir Thomas More

I ended yesterday's post on this note:

[Note: I would ask those who use the "Giving the Devil the Benefit of the Law" scene in "A Man for All Seasons" as justification for putting terrorism suspects in Federal Court whether they believe Justice was done in the trial of Sir Thomas More. If so, how? And if not, why not? It is the fundamental issue here. And it is, perhaps, what the theme of this whole blog has been.]

The point being, of course, that Sir (later Saint) Thomas More had all the advantages of Law and extensive Due Process as it was conceived at the time, and many, many, many opportunities to recant, confess, sign, -- to do his liege lord's bidding, in other words. And he refused. Adamantly. He refused on the basis of Law, he refused on the basis of Custom, he refused on the basis of Honor, he refused on the basis of Process, he refused on the basis of Conscience and Higher Law, he refused on the basis of the Rights and Privileges of an Englishman, a Gentleman, and on and on.

Yet all the forms of the Court were followed, perhaps too exactly, and all the legal niceties were observed, and Sir Thomas was beheaded at the Tower for his trouble, and the trouble he had given the King. The charge was High Treason; the crime was Sir Thomas's failure to obey.

And I asked, "Was Justice done?"

Perhaps the answer is another question: "For whom?"

The King had a desire, and under the circumstances, a necessity to assert his power and authority over his subjects especially with regard to marriage (his own) and the succession to the Crown. In doing so, he broke with the long-held British royal custom of submission to Papal authority in matters spiritual as well as temporal. In doing that, he violated both custom and law; by his command, law was brought into conformity with his desire. Sir Thomas's refusal to submit to this King's law was the source of the charge of High Treason, which ultimately resulted in his trial and execution. This rid the realm of one dissenter from the rule and authority of the King to assert his power over God's Law -- as it was understood at the time -- but there would be more, oh so many more, and in due time, there would come a Civil War in Britain over such matters as the authority of the Crown over the lives and religion of its subjects, among other things.

Was Justice done in Sir Thomas's case?

If you believe that following the forms and the due processes of the Law is the definition of Justice, then Justice was done. Even if the outcome was wrong in some higher sense, Sir Thomas was not subjected to the arbitrary authority of a lawless monarch.

If you believe that Justice is to be found in the actions taken to fulfill the requirements of the Rules of the Game, in other words, then you cannot but agree that Justice was indeed done in the case of Sir Thomas More.

That was certainly King Henry's belief, sorry as he was about the outcome and all that.

But Sir Thomas was arrested, held and tried on trumped up charges and he was convicted on false witness. Surely that cannot be Justice even to a formalist and legalist for whom all things boil down to following correct procedure and applying the law as it is written and received. But if the charges are trumped up and the witness is false, how is the Law to know that? How is a follower of Legalism and Formalism to know that? And if there is no such knowledge, how can there be injustice when the forms of the law and the rules of procedure are followed?

We know now that the charges were trumped up and the witness was false, and so we can say now that perhaps there was some injustice done in the case of Sir Thomas More, but was it known at the time? And if it was, who knew? Did the Court know? If the Court did not know, then wasn't the judgment of the Court correct according to both Law and Procedure, and wasn't the sentence just under the law at the time?

And yes, Sir Thomas lost his head, but there is nothing to be done about that now, and besides, the Church later canonized him, so he got a kind of comeuppance -- if not exactly Justice -- in the end anyway, didn't he?

Sir Thomas wrote about Justice in his Utopia, and as we consider the differences between formalism and legalism on the one hand, and Justice on the other, we might do well to consider Sir Thomas's own thoughts on the matter.

From Utopia: [A long excerpt]

They have but few laws, and such is their constitution that they need not many. They very much condemn other nations, whose laws, together with the commentaries on them, swell up to so many volumes; for they think it an unreasonable thing to oblige men to obey a body of laws that are both of such a bulk and so dark as not to be read and understood by every one of the subjects.


They have no lawyers among them, for they consider them as a sort of people whose profession it is to disguise matters and to wrest the laws; and therefore they think it is much better that every man should plead his own cause, and trust it to the judge, as in other places the client trusts it to a counsellor. By this means they both cut off many delays, and find out truth more certainly: for after the parties have laid open the merits of the cause, without those artifices which lawyers are apt to suggest, the judge examines the whole matter, and supports the simplicity of such well-meaning persons, whom otherwise crafty men would be sure to run down: and thus they avoid those evils which appear very remarkably among all those nations that labor under a vast load of laws. Every one of them is skilled in their law, for as it is a very short study, so the plainest meaning of which words are capable is always the sense of their laws. And they argue thus: all laws are promulgated for this end, that every man may know his duty; and therefore the plainest and most obvious sense of the words is that which ought to be put upon them; since a more refined exposition cannot be easily comprehended, and would only serve to make the laws become useless to the greater part of mankind, and especially to those who need most the direction of them: for it is all one, not to make a law at all, or to couch it in such terms that without a quick apprehension, and much study, a man cannot find out the true meaning of it; since the generality of mankind are both so dull and so much employed in their several trades that they have neither the leisure nor the capacity requisite for such an inquiry.


Some of their neighbors, who are masters of their own liberties, having long ago, by the assistance of the Utopians, shaken off the yoke of tyranny, and being much taken with those virtues which they observe among them, have come to desire that they would send magistrates to govern them; some changing them every year, and others every five years. At the end of their government they bring them back to Utopia, with great expressions of honor and esteem, and carry away others to govern in their stead. In this they seem to have fallen upon a very good expedient for their own happiness and safety; for since the good or ill condition of a nation depends so much upon their magistrates, they could not have made a better choice than by pitching on men whom no advantages can bias; for wealth is of no use to them, since they must so soon go back to their own country; and they being strangers among them, are not engaged in any of their heats or animosities; and it is certain that when public judicatories are swayed, either by avarice or partial affections, there must follow a dissolution of justice, the chief sinew of society.


The Utopians call those nations that come and ask magistrates from them, neighbors; but those to whom they have been of more particular service, friends. And as all other nations are perpetually either making leagues or breaking them, they never enter into an alliance with any State. They think leagues are useless things, and believe that if the common ties of humanity do not knit men together, the faith of promises will have no great effect; and they are the more confirmed in this by what they see among the nations round about them, who are no strict observers of leagues and treaties. We know how religiously they are observed in Europe, more particularly where the Christian doctrine is received, among whom they are sacred and inviolable; which is partly owing to the justice and goodness of the princes themselves, and partly to the reverence they pay to the popes; who as they are most religious observers of their own promises, so they exhort all other princes to perform theirs; and when fainter methods do not prevail, they compel them to it by the severity of the pastoral censure, and think that it would be the most indecent thing possible if men who are particularly distinguished by the title of the "faithful" should not religiously keep the faith of their treaties. But in that newfound world, which is not more distant from us in situation than the people are in their manners and course of life, there is no trusting to leagues, even though they were made with all the pomp of the most sacred ceremonies; on the contrary, they are on this account the sooner broken, some slight pretence being found in the words of the treaties, which are purposely couched in such ambiguous terms that they can never be so strictly bound but they will always find some loophole to escape at; and thus they break both their leagues and their faith. And this is done with such impudence, that those very men who value themselves on having suggested these expedients to their princes, would with a haughty scorn declaim against such craft, or, to speak plainer, such fraud and deceit, if they found private men make use of it in their bargains, and would readily say that they deserved to be hanged.


By this means it is, that all sorts of justice passes in the world for a low-spirited and vulgar virtue, far below the dignity of royal greatness. Or at least, there are set up two sorts of justice; the one is mean, and creeps on the ground, and therefore becomes none but the lower part of mankind, and so must be kept in severely by many restraints that it may not break out beyond the bounds that are set to it. The other is the peculiar virtue of princes, which as it is more majestic than that which becomes the rabble, so takes a freer compass; and thus lawful and unlawful are only measured by pleasure and interest. These practices of the princes that lie about Utopia, who make so little account of their faith, seem to be the reasons that determine them to engage in no confederacies; perhaps they would change their mind if they lived among us; but yet though treaties were more religiously observed, they would still dislike the custom of making them; since the world has taken up a false maxim upon it, as if there were no tie of nature uniting one nation to another, only separated perhaps by a mountain or a river, and that all were born in a state of hostility, and so might lawfully do all that mischief to their neighbors against which there is no provision made by treaties; and that when treaties are made, they do not cut off the enmity, or restrain the license of preying upon each other, if by the unskilfulness of wording them there are not effectual provisos made against them. They, on the other hand, judge that no man is to be esteemed our enemy that has never injured us; and that the partnership of the human nature is instead of a league. And that kindness and good-nature unite men more effectually and with greater strength than any agreements whatsoever; since thereby the engagements of men's hearts become stronger than the bond and obligation of words.

One cannot read Sir Thomas's considerations of Justice in his Utopia without recognizing that he is condemning both Legalism and Formalism as means to achieve Justice, and that our own Founders were more than a little influenced by Sir Thomas's vision of what the Law -- and what Justice -- should be in an ideal state and society.

But still the question remains, was Justice done in the trial and execution of Sir Thomas More? If so, how? If not, why not?