I've always thought that most people wouldn't be so afraid of an
anarchist version of the future if they knew what exactly that meant
about how we might "maintain order". We're so used to how things are
now, in this kind of society, that we have a hard time wrapping our
brain around other possibilities, which makes people even afraid to
question the wisdom of what we've practiced for the past few decades -
like mass incarceration and building more for-profit prisons.
There is room at the end of this article to talk more about the
concept of transformative justice (which maybe I should pickup on soon),
but I thought it was a really well-articulated analysis of anarchist
principles re: the prison industrial complex, and extremely
well-sourced. It's much better than anything I've tried to compose
myself in the past 3 1/2 years of doing this blog. I usually identify
myself as a "sympathizer", rather than a full-fledged anarchist - it's
nothing against my brothers and sisters in black. Other people can just
explain anarchist theory (which I've read shockingly little of) and the
ways it plays out in the real world better than I do.
Thanks to the author and this site Dissident Voice "a radical newsletter in the struggle for peace and social justice" for putting this out there...
Phoenix, AZ (September 2012)
-------------------------
Dissident Voice
by Coy McKinney / May 14th, 2012
This paper is a critique of how the state, the legal system, and
the criminal justice system function in American society, and calls for
an anarchist approach to how society should be organized that will
remove the oppressive frameworks we currently live under.
To support my arguments, I will first provide an overview of how the
criminal justice system works. From there I will offer an analysis on
why the criminal justice system is flawed, and the racially
discriminatory effect it has had on society. I will then discuss why the
disproportionate number of minorities found in prison and impoverished
in this country is directly tied to the contemporary ruling interests
that were preserved by the U.S. Constitution. Showing that the system is
inherently discriminatory, I propose an alternative method for viewing
society through anarchism. I will spend time debunking myths regarding
anarchism and explaining why it is a viable ideology. In the end, I will
propose a restorative justice approach to criminal justice that
requires neither the state nor the legal system.
Overview of criminal justice system
In theory, the function of the legal system, and the state is to
provide a structure that creates an environment for society that
protects individual and collective freedom. The intention of the legal
system then, is to provide an objective set of rules for governing
conduct and maintaining order in society. In order to cover all
potential conflicts, the law is divided into two forms: (1) civil law,
which are rules and regulations that decide transactions and grievances
between individuals; and (2) criminal law, which are rules concerned
with actions deemed dangerous or harmful to society as a whole, and are
prosecuted by the state.
Relevant to this paper, the criminal justice system is the method by
which society deals with individuals who violate criminal laws. It is
the means for society to “enforce the standards of conduct necessary to
protect individuals and the community.”
This system is composed of three parts: (1) police enforcement of the
law; (2) adjudication of potential violations; and (3)
punishment/rehabilitation for criminal acts.
The state authorizes police officers to enforce the law and maintain
order. This permission allows the police to arrest individuals, and use
deadly force when the circumstances permit. Since police officers are
allowed to use their discretion in determining when there has been a
violation of the law, and when to use deadly force, they are trained to
be capable of assessing the situations they find themselves in, and
acting accordingly.
As a check on the power given to police officers, state prosecutors
are responsible for determining whether the charges have substance, and
if the individual’s case should go to trial. In the words of Michelle
Alexander, the prosecutor has the most power of any other criminal
justice official, and is the person that “holds the key to the jailhouse
door.”
This adds a special responsibility for prosecutors, according to Chief Judge, Isaac Christiancy:
The prosecuting officer represents the public interest, which can
never be promoted by the conviction of the innocent. His object like
that of the court should be simply justice; and he has no right to
sacrifice this to any pride of professional success. And however strong
may be his belief of the prisoner’s guilt, he must remember that though
unfair means may happen to result in doing justice to the prisoner in
the particular case yet justice so attained is unjust and dangerous to
the whole community.
If a prosecutor determines there is enough evidence for trial, the individual will be charged with committing a crime.
At trial, the adversarial system is used. This means the prosecutor
will present evidence, in addition to arguments, explaining why the
defendant is guilty of the alleged crime(s), and the defendant’s
attorney, who is either appointed by the state or chosen independently,
will do the same, except explaining why the defendant is not guilty. All
this is presented before a judge, and sometimes a jury, who are
regarded as objective third parties, and are responsible for determining
the guilt of the defendant.
If an individual is convicted of a crime, they enter into the custody
of the correctional authorities. An example of the stated role
correctional authorities and prisons play in the criminal justice system
is exemplified by the Federal Bureau of Prisons, which “protects
society by confining offenders in the controlled environments of prisons
and community-based facilities that are safe, humane, cost-efficient,
and appropriately secure, and that provide work and other
self-improvement opportunities to assist offenders in becoming
law-abiding citizens.”
Prisoners can receive medical, educational, religious, and career
assistance to achieve the stated edification goals. Prisoners can be
released before fulfilling their required time in prison by being placed
on parole, which means they are released back into society with certain
restrictions on their freedom. Ultimately, the objective of the
correctional authorities and prisons is to protect society from
criminals, while also providing rehabilitation to them so that they
leave prison better than when they entered.
In its entirety, the criminal justice system is structured to deliver
justice in a fair manner that upholds the ideals America holds for
itself.
The problem — the illusion
Despite the stated intent of the criminal justice system,
there are clear, systemic problems with how it functions that not only
call its existence into question, but also the legal system that
produced it as well. At the core of the problem is the fact that
“justice” is determined by the state, and not the individuals involved.
Worsening this is the fact that the origin of the state was built on
discriminatory ideals. This has resulted in a criminal justice system
that does not serve the people, but works to maintain oppressive and
discriminatory, governmental authority.
The victims and alleged offenders have little, to no, say in the
determination of justice throughout the criminal process. The state
replaces the actual victim as the injured party for trial, and seeks
justice based on its own standards. Defendants are advised to remain
silent, and to allow their attorney to do most of the speaking for them.
In describing this phenomenon, Alexandra Natapoff, writes:
The United States’s criminal justice system is shaped by a
fundamental absence: Criminal defendants rarely speak. From the first
Miranda warnings through trial until sentencing, defendants are
constantly encouraged to be quiet and to let their lawyers do the
talking. And most do. Over ninety-five percent never go to trial, only
half of those who do testify, and some defendants do not even speak at
their own sentencings. As a result, in millions of criminal cases often
involving hours of verbal negotiations and dozens of pages of
transcripts, the typical defendant may say almost nothing to anyone but
his or her own attorney. [...]
Defendant silence also has systemic implications for the integrity of
the justice process. In our democracy, individual speech has
historically been seen as an antidote to governmental overreaching.
Criminal defendant speech is perhaps the quintessential example of the
individual defending his or her life and liberty against the state. Yet
silent defendants rarely express themselves directly to the government
official deciding their fate, be it judge or prosecutor, and are often
punished more harshly when they do. The justice system assumes that
conversations between counsel and clients, and counsel’s own speech on
behalf of clients, fulfill the personal needs of defendants as well as
systemic requirements that defendants be “heard.” Yet most defense
counsel are overworked, appointed counsel with insufficient time to
spend communicating with their clients or fully exploring their clients’
personal stories.
Together, the practice of “representation” does not form an honest
quest for justice, since it silences the only individuals that are truly
capable of determining it.
Although America’s legal system has determined that justice is most
effectively administered through the adversarial system, the reality of
the process shows that this is a contrived conclusion. The adversarial
system relies on prosecutors to “do justice,” and for defense attorneys
to be “zealous advocates” for their clients, relying on both sides to
present their strongest arguments, so that a third-party trier of fact
can make the best decision.
This system relies on justice being equated with victory, which
encourages both sides to be as uncooperative as possible with each
other.
In living up to their roles as zealous advocates for their clients,
and encouraged by the adversarial system, defense attorneys can employ a
number of tactics to win cases, that do not help the trier of fact make
an informed decision. In his essay outlining the problems with these
tactics, labeled “aggressive defense,” William H. Simon, provides a few
troublesome examples:
Defense lawyers sometimes have opportunities to draw out
and delay cases, for instance, by deliberately arranging their schedules
to require repeated continuances. This can have the advantage of
exhausting prosecution witnesses and eroding their memories.
Defense lawyers are sometimes asked to present perjured testimony by
defendants. They sometimes find they can benefit their clients by
impeaching the testimony of prosecution witnesses they know to be
truthful. And they sometimes can gain advantage by arguing to the jury
that the evidence supports factual inferences they know to be untrue.
[...]
Lawyers occasionally find it advantageous to disclose or threaten to
disclose information that they know does not contribute to informed
determination on the merits because such disclosure injures the
prosecution or witnesses.
While these tactics are permissible, each exemplifies how the
adversarial system promotes the goals of the individual defendant over
that of overall justice.
Prosecutors are also encouraged by the adversarial system to give
precedence to winning rather than obtaining actual justice. As a
representative of the state, prosecutors must be conscious of how the
public perceives their decisions. To ensure this, almost everywhere in
America, (except Alaska, Connecticut, New Jersey, and the District of
Columbia) the job of chief prosecutor is determined by an election.
To secure election, or reelection, prosecutors often campaign on how
“tough” they are on crime, something that is usually demonstrated by the
number of convictions a prosecutor has made. This equates convictions
with justice, which consequently, creates an imbalance in the pursuit of
justice, as it implies justice lies on the side of the prosecutor, by
default, and not the defendant. In arguing that judges should not be
elected, Justice John Paul Stevens said, “A campaign promise to ‘be
tough on crime,’ or to ‘enforce the death penalty,’ is evidence of bias
that should disqualify a [judicial] candidate from sitting in criminal
cases.”
The same argument can be made for prosecutors as well. Thus, in order
to show proficiency, prosecutors are often encouraged to convict
individuals. However, the argument that convictions equal justice is a
fallacy. If this were true, the rate of recidivism would be decreasing,
yet it is increasing. According to a 2006 report released by the
bipartisan Commission on Safety and Abuse in America’s Prisons, within
three years of their release, 67% of former prisoners are rearrested and
52% are re-incarcerated.
Assisting the “convictions = justice” belief are economic incentives
that permit individuals and corporations to profit from the number of
prisoners a jail has. This is commonly referred to as the “private
prison-industrial complex.” Between 1999 and 2010, the use of private
prisons increased by 40% at the state level, and by 784% in the federal
prison system.
This rise correlates with an increase in revenues as well: Corrections
Corporation of America and the GEO Group, the two largest private
prison companies, made over $2.9 billion combined in 2010.
Explaining how these profits have been spent, the Justice Policy
Institute states, “[a]s revenues of private prison companies have grown
over the past decade, the companies have had more resources with which
to build political power, and they have used this power to promote
policies that lead to higher rates of incarceration.”
Thus, a cycle exists where private prison facilities influence the
criminal justice system through political and economic means,
encouraging the flawed belief that convictions equal justice.
The confluence of economic and political motives for obtaining more
convictions has had tremendously negative effects on society, and has
helped usher in a period of “mass incarceration.” According to the
International Centre for Prison Studies, the United States has the
highest incarceration rate per 100,000 people of the national
population, than any other country in the world.
A New York Times article described the situation succinctly, “[t]he
United States has less than 5 percent of the world’s population. But it
has almost a quarter of the world’s prisoners.”
Furthermore, this period of mass incarceration has illuminated the
racist character of America’s legal system. According to the Bureau of
Justice Statistics, as of December 31, 2010, state and federal
correctional authorities had jurisdiction over 1,612,395 prisoners,
while a total of 7.1 million people were under the supervision of adult
correctional authorities.
Of the 1.6 million prisoners, 588,000 identified as Black, and 345,900
identified as Hispanic, representing 36% and 21%, respectively, of the
prison population.
This is alarming since, according to the 2010 U.S. Census, Blacks make
up 12.6% of the American population, and Hispanics constitute another
16.3% of the population.
Making the imbalance clearer, the estimated number of inmates held in
custody in local, state, or federal prisons per 100,000 U.S. citizens,
for Blacks, Hispanics, and Whites, respectively, is the following:
4,607; 1,908; and 769.
This means Blacks are nearly 6 times as likely as Whites to be in prison. Paul Butler writes:
Imagine a country in which more than half of the young
male citizens [referring to Blacks] are under the supervision of the
criminal justice system, either awaiting trial, in prison, or on
probation or parole. Imagine a country in which two-thirds of the men
can anticipate being arrested before they reach age thirty. Imagine a
country in which there are more young men in prison than in college.
The racial disparity is also present in death penalty cases.
According to the Equal Justice Initiative, “[m]ore than half of the over
3300 people on death row nationwide are people of color; nearly 42% are
African American. Prominent researchers have demonstrated that a
defendant is more likely to get the death penalty if the victim is white
than if the victim is black.”
And according to Amnesty International, a 1990 report by the
non-partisan U.S. General Accounting Office found, “a pattern of
evidence indicating racial disparities in the charging, sentencing, and
imposition of the death penalty.”
As a result, the effect of criminal laws, their enforcement and
prosecution, has disproportionately placed more Blacks and Hispanics in
jail than in the nation’s history.
Causes for the discriminatory effects of the criminal justice system
The disproportionate number of racial minorities involved
in America’s criminal justice system is not by chance, but intent, as
it is a consequence of the racist and classist interests the U.S.
constitution was designed to protect. Starting in the mid-15th century,
after the violent acquisition of land belonging to long-established
indigenous communities, Americans and Europeans engaged in the cruel
transportation of over 11 million Africans for over 450 years.
The African slave trade helped build America into one of the most
powerful countries in the world, but also created a patriarchal society
that reified racial discrimination by the creation of racial identities.
These racial identities were used by the rich, White elites to create
artificial divisions amongst the masses to pit them against each other,
and not their rulers. The Populist leader from Georgia, Tom Watson, in
calling for racial unity, said:
You are kept apart that you may be separately fleeced of
your earnings. You are made to hate each other because upon that hatred
is rested the keystone of the arch of financial despotism which enslaves
you both. You are deceived and blinded that you may not see how this
race antagonism perpetuates a monetary system which beggars both.
The rich, white men that had obtained economic and political power
throughout the colonies utilized the opportunity the Constitutional
Convention provided to ensure their power was maintained with the
formation of the new country. Writing about the findings of fellow
historian Charles A. Beard, Howard Zinn writes:
Beard applied this general idea [that the rich must
either control the government directly, or control the laws by which the
government operates] to the Constitution, by studying the economic
backgrounds and political ideas of the fifty-five men who gathered in
Philadelphia in 1787 to draw up the Constitution. He found that a
majority of them were lawyers by profession, that most of them were men
of wealth, in land, slaves, manufacturing, or shipping, that half of
them had money loaned out at interest, and that 40 of the 55 held
government bonds, according to the records of the Treasury Department.
Thus Beard found that most of the makers of the Constitution had some
direct economic interest in establishing a strong federal government:
the manufacturing needed protective tariffs; the moneylenders wanted to
stop the use of paper money to pay off debts, the land speculators
wanted protection as they invaded Indian lands; slaveowners needed
federal security against slave revolts and runaways; bondholders wanted a
government able to raise money by nationwide taxation, to pay off those
bonds.
Four groups, Beard noted, were not represented in the Constitutional
Convention: slaves, indentured servants, women, men without property.
Summarizing the constitution then, Zinn writes:
The Constitution, then, illustrates the complexity of the
American system: that it serves the interests of a wealthy elite, but
also does enough for small property owners, for middle-income mechanics
and farmers, to build a broad base of support. The slightly prosperous
people who make up this base of support are buffers against the blacks,
the Indians, the very poor whites. They enable the elite to keep control
with a minimum of coercion, a maximum of law–all made palatable by the
fanfare of patriotism and unity.
Those with power and influence, who had benefited from the use of
slaves as a means of achieving economic and political power, helped
ingrain slavery into their respective legal systems and cultures. Thus,
representatives, especially from Southern states, had a strong interest
in preserving slavery, and would not have agreed to join the union
without a constitutional protection for it. This protection is exhibited
by the original sections of the Constitution located at: Article 1,
Section 2, Clause 3 (recognizing the “three-fifths compromise”); Article
1, Section 9, Clause 1 (permitting the continuance of the slave trade
until 1808); and Article 4, Section 2, Clause 3 (protection for the
Fugitive Slave Act).
While legislation to abolish the slave trade became law in 1808, some
state governments enacted Black Codes, or laws to regulate the
institution of slavery and to place further restrictions on the liberty
of Blacks. The Supreme Court did nothing to abolish slavery, or the
racist laws, in fact, it thwarted an attempt by some Northern states to
limit slavery, through the Missouri Compromise, by nationalizing the
practice with its decision in
Dred Scott v. Sanford.
The issue of slavery ultimately contributed to the outbreak of the
Civil War, and the eventual passage of the 13th, 14th, and 15th
Amendments in 1865, 1868, and 1870, respectively (prohibiting slavery
except as punishment for committing a crime, guaranteeing equal
protection for all citizens, and prohibiting the denial of the right to
vote based on race, respectively). However, the intent in maintaining a
racially divided society persisted, as state governments implemented
“Jim Crow” laws that segregated Blacks to a separate, and second-class
citizenship. The Supreme Court again did nothing to repeal these laws
until its decision in
Brown v. Board of Education of Topeka over 80 years later in 1954.
The Civil Rights Movement followed in the 1960s and 1970s and helped
remove many of the overt forms of racial discrimination the legal system
and federal government had maintained, but regardless of these changes,
legally sanctioned racial discrimination has endured.
Now, it operates
in covert and institutionalized ways that can be shown through the
impact of governmental policy. The government’s “War on Drugs” has
become the most recent, post-Civil Rights Movement policy to continue
the racial discrimination and exploitation of minorities in America.
While the term “War on Drugs” was initially used by President Richard
Nixon, it was under the Presidency of Ronald Reagan when it became
heavily enforced. The purported purpose of the “war” was to reduce the
illegal drug trade, by implementing policies that discouraged the
production, distribution, and consumption of illegal drugs. This
included imposing restrictive penalties on an individual’s liberties for
committing drug-related crimes (i.e., losing the right to vote, denial
of public benefits), and harsher sentencing guidelines (i.e., “three
strikes laws,” mandatory minimums).
Although the appearance of the effort appears racially neutral, its
enforcement has had a clear racial bias. Terming the initiative the “New
Jim Crow,” Michelle Alexander explains that, “[a]s of 2004, more
African American men were disenfranchised (due to felon
disenfranchisement laws) than in 1870, the year the Fifteenth Amendment
was ratified …”
Illustrating the racial bias of this, Alexander continues:
This war has been waged almost exclusively in poor
communities of color, even though studies consistently show that people
of all colors use and sell illegal drugs at remarkably similar rates. In
fact, some studies indicate that white youth are significantly more
likely to engage in illegal drug dealing than black youth. Any notion
that drug use among African Americans is more severe or dangerous is
belied by the data. White youth, for example, have about three times the
number of drug-related visits to the emergency room as their African
American counterparts.
Another indicator of the racial bias within the initiative can be
shown through the difference in sentencing guidelines. In 1986, the U.S.
Congress passed laws that created a 100:1 sentencing disparity for the
possession or trafficking of crack, in comparison to the penalties for
trafficking powder cocaine, which exhibits discrimination since Blacks
are more likely to use crack than powder cocaine, a substance that is
predominantly used by Whites.
Compounding this further are the revelations journalist Gary Webb
uncovered on how the Nicaraguan rebel group, the Contras, who were known
for drug trafficking, were assisted by the U.S. government in
distributing crack cocaine in Los Angeles, California to fund weapons
purchases.
Thus, the undisguised racist laws and policies that targeted Blacks
after the formation of the Constitution have continued, just in a less
overt fashion.
The history of the plight of other minorities under oppressive laws
and governmental policies should not go unmentioned. Latinos have been
targeted through anti-immigrant laws, termed “Juan Crow,” that have had
similar, but different effects on Latinos as Jim Crow did on Blacks.
Native Americans are also disproportionately represented in the
criminal justice system since they are incarcerated at a rate 38% higher
than the national per capita rate.
Muslims, especially after the September 11th events, have been
subjected to racial profiling and surveillance by local and federal
authorities, similar to how the Japanese, and Asians generally, were
persecuted before and during World War II. Furthermore, the government’s
practice of discriminating against groups based on racial identities is
exemplified by its use of data obtained by the U.S. Census and the
policies it has created.
Encapsulating the history of America’s legal system with the impact
it has had on society, the conclusion can be drawn that it has
successfully achieved the objectives its creators intended: a
patriarchal, plutocracy ruled by Whites. The gap in equality on wealth,
health, education, and employment between Blacks and Whites has
continued to expand, further demonstrating the bias inherent in the
construction of American society.
Thus, a new approach to how we live and interact with each other is
desperately needed. One where our interconnectedness is valued, and
where society nurtures everyone’s existence. This requires a culture
that focuses on anti-oppressive structures, and has the goal of
collectively liberating all people. Luckily, such a vision exists, and
it is called anarchism.
Introduction to anarchism
The word “anarchism,” derived from the Greek root “anarchos,” means
“without authority,” and according to the Encyclopedia Brittanica, its
central ideals are freedom, equality, and mutual aid.
Despite this, in modern popular society, anarchism is surrounded by
stigma and taboo, and invokes images of social chaos, in which terrorism
is the prevailing means of establishing law and order, making anarchism
seem both impractical and undesirable. However, through the fog of
misperception and obscurity, lies a sociopolitical doctrine that
challenges some of our deeply held assumptions on what the relationship
between the individual and society can be, and calls us to work towards
creating a truly free and cooperative society.
Behind some of the constructions of anarchism as a violent ideology
are events that transpired between the years of 1890 and 1901. During
this time period, individuals that identified as anarchists killed
several ruling figures, including U.S. President William McKinley, King
Umberto I of Italy, and Sadi Carnot, the President of France.
These are certainly extreme acts, but it is unfair, and too simple to
ascribe these actions to all anarchists without an investigation into
the circumstances surrounding each event, or consideration for the
diversity of thought and tactics within anarchism itself. Such an
investigation is beyond the scope of this paper, but suffice it to say,
the use of violence, as a means to justify the ends anarchism seeks, is
not a universally accepted tactic.
Another argument used to discredit anarchism is its perceived
impracticality and lack of application outside of “non-primitive”
societies. Generally, “primitive” societies are distinguished from
modern societies because of an absence of an institutionalized
government-like authority. Due to this distinction, “primitive”
societies are considered irrelevant to discussions surrounding
present-day social issues.
Anarchist anthropologist, David Graeber, provides an alternative lens to view this dichotomy through his book,
Fragments of An Anarchist Anthropology.
Graeber writes that the popular American understanding of how human
society has developed is that it has followed a linear path, beginning
primitive and becoming more advanced and complex over time. Graeber
explains that the anthropological record does not support this
conclusion, using three egalitarian cultures, the Piaroa, Tiv, and
Malagasy, as examples.
Graeber writes:
… we [anthropologists] have been trying for decades now
to convince the public that there’s no such thing as a ‘primitive,’ that
‘simple societies’ are not really all that simple, that no one ever
existed in timeless isolation, that it makes no sense to speak of some
social systems as more or less evolved.
Author Walter Cruttenden also takes time to dispel this myth, writing:
The leap was made: If Darwin had evidence that physical
organisms adapt to fit their environment (evolve), then society, even
over short periods, must evolve in the same linear fashion. In other
words, if evolution existed in physical development, it must also play a
role in societal and cultural development within humanity. This was
very appealing to the intellectuals of post-Renaissance Europe as it
justified a superior attitude toward less complex societies.
Everywhere in the world, it seems, archaeological digs are reshaping
our view of the distant past. Not only are these findings revealing that
civilizations were older than once thought, but they are showing that
man was smarter and more progressive.
Based on this, Graber asks that we engage in a “thought experiment”:
What if, as a recent title put it, ‘we have never been
modern’? What if there never was any fundamental break, and therefore,
we are not living in a fundamentally different moral, social, or
political universe than the Piaroa or Tiv or rural Malagasy? […]
Let us imagine, then, that the West, however defined, was nothing
special, and further, that there has been no one fundamental break in
human history. No one can deny there have been massive quantitative
changes: the amount of energy consumed, the speed at which humans can
travel, the number of books produced and read, all these numbers have
been rising exponentially … The West might have introduced some new
possibilities, but it hasn’t canceled any of the old ones out.
Without a basis for disregarding the social organization of
“primitive” societies, anarchism remains a relevant sociopolitical
doctrine.
While anarchism’s critics may concede that it is conceivable, they
may still argue it is not the best way of structuring society. This
position is exemplified by the thoughts of French Revolution thinker,
Jacques-Pierre Brissot. Brissot, in denouncing his political rivals, the
Enragés, accused them of advocating anarchy, warning that without the
rule of law and government, there could be no way of delivering justice
within society.
This sentiment is exemplified modernly in Paul Butler’s bold essay,
“Racially Based Jury Nullification: Black Power In The Criminal Justice
System.”
In Butler’s essay, he calls for Blacks to exercise jury nullification
in particular circumstances as a way of protesting the unfair practices
of the criminal justice system. Although Butler calls for the
undermining of the legal system, he ensures that readers do not confuse
his ideas as “encouraging anarchy” by explicitly stating so (“I am not
encouraging anarchy.”
). A logical assumption of Butler’s reasoning is that anarchy would be more problematic than reform.
Anarchism’s absence from mainstream America’s discussions should not
reflect poorly on the ideals it promotes. In the opinion of anarchist
author, John Zerzan, anarchism is about, “eradicating all forms of
domination. This includes not only such obvious forms as the
nation-state, … and the corporation, … but also such internalized forms
as patriarchy, racism, and homophobia.”
“Domination” occurs in relationships where there is an unequal
distribution of power, allowing the dominator(s) to exert their will
over others. Being subject to domination causes mental and physical
oppression, both of which obstruct human growth. For this reason,
hierarchy is viewed negatively by anarchists, and instead, horizontal
structures, dependent upon collaboration are encouraged. According to
Anarchist writer, David Wieck, anarchism represents:
… a kind of intransigent effort to conceive of and to
seek means to realize a human liberation from every power structure,
every form of domination and hierarchy. Correlative with this negation
is the positive faith that through the breakdown of mutually supportive
institutions of power, possibilities can arise for noncoercive social
cooperation, social unity, specifically a social unity in which
individuality is fully realizable and in which freedom is defined not by
rights and liberties but by the functioning of society as a network of
voluntary cooperation. [...]
We are premising a society in which people have stopped living in
fear of one another, in which gross violence, hatred, and contempt for
life have become uncommon, in which alienation of person from person
seldom reaches the malignant extremes to which we are accustomed.
Thus, anarchism does not advocate violence or mayhem, but rather
calls for the liberation of everyone by removing oppressive social
structures and practices from within our communities.
The vision anarchism has for society directly challenges a number of
the core assumptions and principles held by mainstream America. For one,
anarchists believe the current legal system and the authorization it
provides for governmental and state power is both harmful and
unnecessary.
In theory, the government is supposed to be of, for, and by the
people, but the reality of its function has only ensured the existence
of a ruling class, whose power and interests are perpetually preserved
by the system of governance. David Graeber describes the state as having
a dual character, where it is viewed as an institutionalized form of
extortion by communities that seek to retain some degree of autonomy,
while also appearing as a “utopian project in the written record.”
Despite its idealistic aura, Peter Kropotkin writes that, “…
Anarchists have often enough pointed out in their perpetual criticism of
the various forms of government, that the mission of all governments,
monarchical, constitutional, or republican, is to protect and maintain
by force the privileges of the classes in possession …”
Essentially, the power a community naturally has to rule itself, is
given to a higher authority, the state, to govern on the community’s
behalf. This opens the community to the abuses of power that result from
hierarchical relationships. Additionally, the community’s reliance on
the state to govern its affairs diminishes the community’s own power,
making it, and its members, subservient to the state. This reliance on
the state and the legal system creates an indirect way of resolving
conflict. Rather than individuals settling disputes amongst themselves,
they rely on impersonal laws to find a solution. To this point,
Kropotkin writes:
[Quoting French jurist Dalloy] “… legislation is expected
to do everything, and each fresh law being a fresh miscalculation, men
are continually led to demand from it what can proceed only from
themselves, from their own education and their own morality.” In
existing States a fresh law is looked upon as a remedy for evil. Instead
of themselves [the populace] altering what is bad, people begin by
demanding a law to alter it.
Allowing officials of the state to fill positions of power and
determine policy for the community is problematic for the following
reason:
The notion of “policy” presumes a state or governing
apparatus which imposes its will on others. “Policy” is the negation of
politics; policy is by definition something concocted by some form of
elite, which presumes it knows better than others how their affairs are
to be conducted. By participating in policy debates the very best one
can achieve is to limit the damage, since the very premise is inimical
to the idea of people managing their own affairs.
As a result, communities that concede their power to the state,
reduce their independence and freedom to determine the type of society
they want to live in.
The relinquishing of community power to a state government is
unnecessary because there is no reason to believe the state can perform
better than the community could. Anarchists believe we are capable of
practicing a natural form of justice amongst ourselves, based on our
conscience and innate ability to reason with one another, without
trusting the process to a hierarchical ruling class of professionals.
Kropotkin explains the manipulative justification for law by saying:
Its origin is the desire of the ruling class to give
permanence to customs imposed by themselves for their own advantage. Its
character is the skilful commingling of customs useful to society,
customs which have no need of law to insure respect, with other customs
useful only to rulers, injurious to the mass of the people, and
maintained only by the fear of punishment.
The anarchist belief equates “law” with ethics, and reasons that
since we learn ethics from our families, friends, and other members of
our community, our current governmental legal system is not required.
The permanence of a state authority comes under further questioning when its actual existence is probed. Graeber writes:
In fact, the world is under no obligation to live up to
our expectations, and insofar as “reality” refers to anything, it refers
to precisely that which can never be entirely encompassed by our
imaginative constructions. Totalities, in particular, are always
creatures of the imagination. Nations, societies, ideologies, closed
systems… none of these really exist. [...]
This is not an appeal for a flat-out rejection of such imaginary
totalities … It is an appeal to always bear in mind that they are just
that: tools of thought.
Thus, part of the state’s existence and legitimacy is due to the
mental recognition we assign to it. If everyone were to shift their
thinking to a worldview in which the state was undesired, and instead,
looked to live without its authority, the state’s power and existence
would be critically undermined.
The primary reason we acknowledge the authority of the
state is its ability to use force as a means of enforcing compliance.
This means anyone who breaks the law can have their liberty taken from
them, or be killed by state officials. Sociologist Max Weber, describes
the state as, “ a human community that (successfully) claims the
monopoly of the legitimate use of physical force within a given
territory.”
On the issue of force and violence, Graeber writes:
… violence, particularly structural violence, where all
the power is on one side, creates ignorance. If you have the power to
hit people over the head whenever you want, you don’t have to trouble
yourself too much figuring out what they think is going on, and
therefore, generally speaking, you don’t. Hence the sure-fire way to
simplify social arrangements, to ignore the incredibly complex play of
perspectives, passions, insights, desires, and mutual understandings
that human life is really made of, is to make a rule and threaten to
attack anyone who breaks it. This is why violence has always been the
favored recourse of the stupid: it is the one form of stupidity to which
it is almost impossible to come up with an intelligent response. It is
also of course the basis of the state.
Consequently, the manner in which we allow the state to enforce
compliance to the law is comparable to the rhetoric the American
government uses to demonize “terrorist” groups and the countries labeled
as their supporters. If terrorism is something we collectively
admonish, our next step is to be honest in our introspection, and
overcome the glaring contradiction that surrounds us.
Despite the state’s monopoly on the use of legitimate force, it
still only exists because we acknowledge it to. To live in a truly
cooperative and free society, we must be willing to let go of our
reliance on the external state and legal system, and begin to engage
each other on a local basis, and take full responsibility for the
structure of our communities and neighborhoods.
A new way forward — a restorative approach to justice
The current legal system’s fundamental purpose is to resolve
conflict. However, the power to determine resolutions is given to
individuals that do not have an interest in the matter, and prevent the
individuals involved to determine their own form of justice.
Additionally, obedience to this system is enforced under duress. Rather
than using force to achieve compliance, the anarchist approach to
resolving conflict is voluntary, and believes justice can only be
determined by the involved parties through dialogue. A justice system
based on these principles exists, and is called restorative justice.
Restorative justice is a form of conflict resolution, used by
different indigenous groups throughout the world, to settle disputes
between individuals. According to a restorative justice co-director of
facilitation, Matthew Johnson, “[r]eliance on the state to achieve
justice or security goes against the idea that people are fully equipped
to deal with their own conflicts — an idea that is at the core of
restorative justice principles.”
In contrast to the current criminal justice system, where the state is
viewed as the primary victim in criminal acts, and victims, offenders,
and the community are given passive roles, restorative justice views
crime as being directed against individual people.
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This means conflicts and disputes are settled entirely by members of
the community. The framework restorative justice uses, allows it to be
applied in any circumstance in which a conflict is deemed to exist. At
its core, it is a form of community justice that recognizes the
interconnectedness of communal living, and that harm and conflicts are
symptoms of communal inadequacies. Therefore, if everyone’s needs are
being met, then consequently the causes for conflict are prevented.
Howard Zehr, a leading advocate and visionary for restorative
justice, says that it has three primary pillars: harms and needs,
obligations, and engagement.
In regards to harm, Zehr writes, “[w]hile our first concern must be
the harm experienced by victims, the focus on harm implies that we also
need to be concerned about the harm experienced by offenders and
communities.”
The restorative approach tries to uncover the causes of conflicts in a
manner that respects the perspectives of the people involved. Behind
this is the belief that conflicts are created by misunderstandings and
needs not being met for individuals. This method prevents individuals
that have caused harm from being vilified, which encourages others to
participate, and also reveals any inadequacies within the individual’s
community.
The second pillar is that restorative justice “emphasizes offender accountability and responsibility.”
This means, rather than sending offenders to jail, they confront the
people that have been harmed by their actions, and take responsibility
for rectifying the situation. Offenders are permitted to tell their side
of the story, but must also listen to how and why their actions led to
the harm. Then together, the individuals work towards an agreeable
solution. All this fits within the third pillar of engagement, which
suggests that the primary parties affected by crime be given significant
roles in the justice process.
An example of how the process works is as follows:
We [an organization that coordinates restorative justice
conferences] would get a referral, call each principal actor in the
conflict, interview them carefully and empathetically…making sure they
are aware of the process as well as their own feelings…and get their
consent to participate in the process. We would then repeat the process
with everyone else involved and schedule a time that worked for everyone
and an appropriate, neutral location. If it were a Victim-Offender
Dialogue, it would likely take place at the correctional institution.
The preparation process, where a trained facilitator would talk to each
person individually, is generally the most important part and will
determine the success of the conference. At the end of the conference,
dialogue, etc., the facilitator(s) would help the participants generate a
consensus agreement, that might include restitution, an apology,
community service, etc., and follow up with participants after an
established amount of time to ensure that they were satisfied with the
agreement and that it was being followed as agreed.
Thus, the restorative justice process function of compassionately helping individuals learn from their mistakes.
Restorative justice practices are gaining traction and
being applied throughout the country in a variety of contexts, but its
success and continued use is dependent upon a continuing shift in
societal values, and the strengthening of communal ties.
In some instances, forms of restorative justice are being used in
conjunction with the criminal justice system for misdemeanor crimes.
Defendants are given the choice of pleading guilty and going through a
process in which they admit guilt, and discuss what caused them to
commit the crime, and are then required to perform community service.
While this is a step in the right direction, the process still operates
under the power of the state. Additionally, it creates a problematic
incentive for defendants to plead guilty to crimes just to escape
accountability. Accountability is important in ensuring justice through
the restorative method, however, without the force of the state to
ensure this, the question becomes, how can society hold people
accountable for their actions? Matthew Johnson believes:
… that accountability comes naturally with community and
interdependent relationships. We tend to not view ourselves as connected
in Western culture; we see ourselves primarily as individuals. In this
context, accountability is not as important as escaping blame or harm.
However, if I value my relationship with you more than my own
willingness to avoid pain/consequences, I will tell you that I broke
your favorite possession, etc., because I would want the same done for
me, and we are interconnected. Also, accountability comes much easier
when there is no expectation of punishment. If I knew you weren’t going
to sue me, hit me, or shun me for admitting my wrongdoing, I would have
much more of an incentive to tell the truth and be accountable. The
current criminal justice system, along with the capitalist economic
system, assumes that we act within our own self-interests, and this is
just the way of things. Therefore, we incentive behavior that maximizes
self-interest. Yet we turn around and criticize people for being
selfish, etc. The principles of restorative justice go against this
paradigm. Its practitioners have a much less cynical view of humanity,
but nonetheless it’s quite possible that RJ (restorative justice) won’t
reach its full potential without a radical re-evaluation of societal
values.
Thus, in order for restorative justice to operate in the anarchist
fashion it is intended to, and be successful, there needs to be an
evolution in the way we live our lives, and the way we view one another.
Conclusion
In conclusion, the racist, classist, hierarchical interests
represented in the formation of the Constitution have created a legal
system, and subsequently, a criminal justice system, that has
consistently failed to administer true justice. Thus, a new approach
must be taken, which will require us to stop relying on the current
criminal justice system, and its oppressive laws to solve our
interpersonal issues. The criminal justice system will continue to work
the way it has, as long as we continue to consent and participate in it.
If we collectively take a stand and withdraw our consent from the
system, and instead redirect how we deal with conflict to a restorative
approach, the criminal justice system will become irrelevant. In
explaining “revolutionary exodus,” David Graeber writes:
The theory of exodus proposes that the most effective way of opposing
capitalism and the liberal state is not through direct confrontation
but by means of what Paolo Virno has called “engaged withdrawal,” mass
defection by those wishing to create new forms of community. One need
only glance at the historical record to confirm that most successful
forms of popular resistance have taken precisely this form. They have
not involved challenging power head on (this usually leads to being
slaughtered, or if not, turning into some—often even uglier—variant of
the very thing one first challenged) but from one or another strategy of
slipping away from its grasp, from flight, desertion, the founding of
new communities.
Critical for creating this new society is a belief that it is possible and that we have the power to do it.
It is time to reaffirm what is already ours and reclaim our
individual sovereignty. It is time for our self ownership to be
reaffirmed and lived out in life. It is a metaphysical fact that we own
our bodies and minds. All other ownerships can be challenged and are
transitory at best, but self ownership is undeniable and permanent as
long as we are living beings. Therefore it is ultimately, indeed must be
our decision as to how we will conduct our lives the only law that we
must accept is to do no harm to others and to recognize and respect the
personal sovereignty of the other as they must ours. Recognition and
respect of every person’s individual sovereignty is the only way in
which systems of mutual cooperation can be successfully developed and
maintained. And indeed is the only law required for peaceful coexistence
with the greater society. But it is not a law of compulsion like most
laws, but is rather the natural state of things such as the laws of
physics.
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