Thursday, December 4, 2014

A Failure of Guardianship - Judicial Acquiescence in Police Brutality

The police beatings and killings which have ostentatiously thrust themselves into national consciousness demonstrate all too well that there is something rotten in America.  But the rot is not racism.   The rot is judicial.

I do not mean to suggest that racism does not perdure in both its personal and institutional manifestations.  But, in the context of police brutality, it is a correlation not a cause.

The press and the powers that be are almost too happy to make a Grand Racial Issue out of the whole thing.  Doing so makes it appear that we here in America at least face our problems squarely face to face, for all out faults...  In fact the real problem is avoided studiously.

In this brief discussion I propose that the police exist to suppress working class discontent and their real purpose is masked by false notions of protecting the public together wrapped in a cultural propaganda of ruff-n-tuff militarism

I propose as well that police brutality is not the product of racism but rather of conscious and hypocritical judicial acquiescence.   We begin with,

1.    Grammar

Several decades ago, police started to refer to their fellow citizens as “civilians.”  With their usual imperviousness to English, Americans utterly ignored the implications.  In fact, mind-massaged by entertainment propaganda, such as COPS and like programmes, Americans all but embraced the implications. 

If we (the citizens of the United States) are “civilians” what does that make cops if not a “military” and if the cops are military what does that do to the concept of civil society?

In a famous passage, the Greek historian Thucydides, noted that all “revolutions” begin with a corruption of language.  This is so because, as Aristotle pointed out, it is language which enables humans to make decisions about the the expedient and the inexpedient as well as the  just and the unjust.  If our decision-making tools (language) are bent and blunted we cannot make incisive decisions.

Police are in actual fact civilians just like the rest of society, albeit granted certain licenses and prerogatives suitable to their duties.  The distinction between military and civilians is a differentiation made under the conventional laws of war and was intended to protect civilians from the depredations of armed conflict.  While that distinction is useful in the international context it serves no beneficial purpose under domestic law.  On the contrary, it sets the stage for occupation and oppression by an alien force.  To make it clear:  the force is alien because a priori it has been defined as “other than”. 

By giving currency to a rhetorically false distinction between police and civilians, Americans allowed not only the growth of a “militarized police culture” but the ensuing reality of an occupation army. 

2.    Culture
A militarized society is not a civil society.  In modern times, the concept of civil society arose with the emergence of burgertum.  In the pretty picture painted by Thomas Jefferson, it was a society of yeomen and burgesses living side by side in rough equality. 

The picture was always a somewhat Romantic ideal — the Robinsonnade of capitalism — but it realized itself to a remarkable degree even up until the World War of 1939.  Until that time, and despite its massive industrialization, the United States remained a predominantly rural country comprised of small cities and communities.

Indeed, up until the war, the United States could be described as a continent of hamlets; and, within this continental localism, policing remained a local and civilian affair.  The concept of the hue and cry perdured and citizens were deemed responsible for their own security, not as individuals per se but as more or less ad hoc, self-appointed groups of watchmen or vigilantes.  In this sense, self-policing by watchful citizens or by paid volunteers  was a correlative of the Second Amendment. 

The watchman concept began its transformation into a constabulary with the influx of German and Irish immigrants into the East Coast cities in the 1840’s.  This influx disturbed the Calvinistic equilibrium of Anglo-Dutch society and the good burgers undertook measures to morally reform and socially control these needed undesirables.

Summarily stated, in the North, modern policing began as  an effort to keep the working class — or more accurately, the labour pool — under control.   In the South, policing began by way of keeping the slave class in their place on plantations. 

With the demise of the Confederacy, policing of the former slave population remained consigned to vigilantism whereas, in the industrialized North, policing “labour unrest” increasingly became a matter of official vigilantism.

Pinkerton Agents hired by Railroad Co.
 Throughout the last quarter of the 19th century, Industry routinely used Pinkerton guards as hired spies and thugs to undermine and repress labor agitation.  From time to time the Federal Government also resorted to Pinkerton’s services mostly in connection with political subversives.  Although it would be inaccurate to say that the Pinkerton guards evolved into modern urban police forces, it is correct to say that the Pinkerton agency provided much of the paradigm for modern police structure and work.   Modern police forces are essentially government mercenaries whose principal purpose is to keep order on the streets and tabs on disruptive elements.

It is mistaken, in my opinion, to view police brutality as a function of racism and in particular of white on black racism.  Racial prejudice exists throughout American society and certainly conflows into and with police brutality.  But police brutality has never been restricted to any one ethnicity or race.  It is applied with equal opportunity against anyone who is classed as a threat to the political-economic order whether that person is a middle class female college student, a Mexican illegal immigrant, a white trash meth-head or an ex-Marine Occupy Oakland protestor.

Brutality ensues because beating down is the primary function of the police.  They may rescue stranded cats and may help old ladies cross the street, but these services are basically trimmings which help sell the idea of a police force to kindergarden children and the public.  The main purpose of the police — anywhere — is to keep order and the people who most threaten the existing order are those who harbor grievances against it.

It is even incorrect, in my view, to say that blacks suffer a disproportionate amount of police brutality.  In fact they suffer brutality in proportion to their their low social status.  What is really disproportionate is the exclusion of Blacks as a whole from the general social and economic benefits of American society.

As these benefits become increasingly restricted across the board we will see increasing police brutality across the board.  Viewing the issue through the distorting lens of racism misses the fundamental point  both as to Blacks and as to society as a whole. 

3.    Myth

The primary justification trucked out in favor of police forces is that they serve to protect against and prevent crime.  One again, English.  To anyone who understands the plain meaning of words, this is nonsense.

To pro-tect means to raise a shield (tectus, barrier or roof) before something.  To pre-vent means to come (venire) between something beforehand.  Both these words suggest that the police can stop something from happening or can, at least, like an umbrella, keep us from getting wet. 

The only way the police could prevent and protect us from crime is if there were a constable on every corner and at our back at all times.  This indeed is what the national security state aims to achieve, although it does not aim to achieve it for any true benefit to us.

The police cannot prevent or protect us from crime.  They can only mop up the after-effects.  They will never be there to stop you from getting mugged in an alley or from being raped in the frat house or from being punched in the kitchen or from being run over by a drunk.  The times when police are, through total happenstance, present on the scene to prevent a crime falls into the man-bites-dog category.

So-called “police protection” can be justified only by an indirect and spurious rationalisation which argues that  the detection and punishment of crimes protects us from future crimes in that it has a deterrent effect on criminality.  Anyone who believes this bunk ought to be detected and committed to a lunatic asylum.   I shall explain.

It might be assumed, at least for the sake of argument, that just as all criminals flee the scene of a crime, they all make a “flash-calculation” as to the chances of getting caught before committing it. But it does not follow that the eventual arrest, conviction and punishment of one malefactor actually serve to deter another.

Most criminality arises from social and psychological deficits.  These causes exist and exert their impulsive force regardless of the response to that impulse — just the way an itch exists regardless of whether one scratches or not.  The notion that with “depraved and malignant” consciousness criminals resolve upon crime “aforethought” is simply a Calvinist hobby-horse.

To the limited extent that criminality is the result of true calculation beforehand, its mastermind is usually crafty and ruthless enough  both to avoid detection and to corrupt law enforcement.  Such was the case the with mafia in the 30’s and with the drug cartels now. 

In either case, other than scratching, law enforcement is incapable of doing much about either.  Twenty years ago, the U.S. Justice Department announced with much fanfare that it had killed the head of the Medellin Drug Cartel.  But even amidst all the whooping, the Department’s spokesperson warned that this did not mean the drug war was over.  No one in the press thought to ask, “why not?”

In the case of the cartels, because the demand for drugs, like the craving for food, is a constant.  Kill one farmer and another will take his place.  The root cause of the cartels is the demand for drugs and the demand for drugs is itself another name and manifestation for a dysfunctional civil-economy.

In medicine, it is possible to alleviate symptoms without treating the causes.  But policing alleviates only in the way a scratch alleviates.  It may remove one particular criminal for a period of time but that removal does nothing to deter others or to alleviate the conditions which spawned that criminal or the criminal enterprise in the first place.

In fact, just the opposite. A friend of ours, a down home Missouri boy who started his career as a deputy district attorney, has nothing but contempt for the police.  “Cops create crime,” he says. “Just look at the statistics.  As soon as cops arrive in a place, crime figures go up. The more cops, the more crime.”

What our friend meant was not that crime cannot take place without it being noticed but rather that the police make it a point to look for and instigate crime out of boredom and self-justification.

 A vast number of crimes fall into the category of petty, obnoxious behavior of the sort which can just as well be dealt with by being ignored or through some informal response.  It is the constable who is bored out of his mind that creates a crime statistic from the jaywalker who ambles out into an untravelled road. 

Far worse than bored constables are the over-zealous detectives who create crime in order to fight it. Our streets, saloons, club houses and meeting places are infested with undercover agents whose sole purpose is to entice people into committing crimes in order ferret out would be criminals and put these potential troublemakers away.

The paradigm of entrapment ought to give the game away; instead it further suckers Americans into accepting their own rectal animation. 

When one examines the way government justifies police work it will be seen that the justification always involves switching from concrete specifics to a general abstraction; i.e., from talking about apprehending and punishing a particular criminal to ferreting out or deterring “criminality” in general.  

Few would object to tackling the bicycle thief, making him return the bicycle and kicking him in the butt for good measure and (one hopes) to deter him from trying it again.  However, once one begins to talk about deterring others or detecting and preventing some potential criminality we enter into the world of speculative generalities — into what are in fact demonics

What has been conjured up — in modern guise — is some sort of float-about deebil  to justify the exercise of government power and the concomitant sacrifice of civil rights.

The argument is made that one less criminal on the streets means one degree less of criminality.  This is rather like saying that by killing one person infected with a common cold we at least decrease the incidence of the common cold by that amount. 

Moralists will retort that people don’t choose to get sick and those who choose to commit evil should have evil returned upon them.  To this I counter that very few people, if any, consciously choose to do something which they think and know is evil.  They make mistaken calculations as to what comprises the good or they suffer from psychological defects which, in one way or another, cripple their social sentiments and restraint.  This was known to Socrates (who said as much) and has been corroborated by neurological investigations.

The treatment of crime, both in general and in specific instances, presents a complex problem but in the hierarchy of likely solutions policing, in either its responsive or proactive aspects, is the least effective solution.  It presents a false hope which is at least as destructive as the (absence of) evil it seeks to abate.

There is, in actual fact, very little crime afoot.  The mudia overflows with harum-scarum of local criminality in order to booh! the public into accepting the dire necessity of police forces.

Think about it.  The United States is a country of 300 plus millions most of whom are crowded together in congested urban areas.  That amounts to a lot of people with a lot of opportunities to do nasty things to one another.  How much crime really takes place?  Very little and that which does takes place in areas afflicted with poverty and social neglect. 

A tremendous amount of crime in the United States revolves around drug usage which is less a sign of evil intent than it is of uselessness and despair.  “Idle hands are the devil's workshop” intones the Calvinist.   Indeed they are.  But “idle hands” are the spawn of unemployment, discrimination, insufficient education.   That part gets omitted.   If the forces of Decency want to fuss about generalities they ought to fuss over the ones that cause things, not the symptoms. 

The police to not prevent crime or even deter it. What they can do is intimidate and repress restless populations and that is their purpose.

4.    Acquiescence

It is unlikely that many people will be persuaded in the uselessness of police forces.  I myself will concede that in mass urban societies which are as alienated as they are crowded, the idea of communal, citizen policing is a Quixotic pipe dream. Modern urban societies need fire departments not volunteer bucket brigades and by the same token they need some trained and dedicated body of men who can at least can respond to accidents, control the confusion and clean up the mess. 

But accepting the premise that watchmen of some sort are needed only raises the well known ensuing question as to who will watch them.  It is here that the United States presents a total failure.   No one guards the guardians.    There are two reasons for this: idolization of the police and a failure of the judiciary.

The first reason has been already touched upon.  Police have been analogized to soldiers and, just as it is regarded as something treasonous to criticize soldiers at war, it is considered ungrateful and subversive to question the commitment, bravery and judgement of police who “daily put their lives on the line in the war against crime.”

It is this craven and supine mind-set which has induced Americans into accepting what is in fact a standing army which, by open admission, is “at war” with the rest of society.  It is at war with the rest of society because criminals do not wear uniforms. 

To explain.  One has to identify an opponent in order to fight him, which is why soldiers wear uniforms.  If they did not then, in the  melée of battle, one might end up killing one’s own team member.  But in the “war against crime” — the amorphous enemy exists unseen everywhere. As a result, anyone and everyone could possibly be a criminal or as they say a “potential suspect.”

Once again English.  The term “potential suspect” (like its twins, “potential danger” and “possible threat”) is a pleonasm; i.e.  a destructive redundancy which destroys critical thinking.   A “suspect” is a person who, with some degree of probability, might have committed a crime. A potential suspect is simply a possible possibility.  Not everyone in the world can reasonably be said to be a suspect; but  everyone in the world is, by definition, a  possible suspect.

The reason the police talk that way is because that is the way they in fact think; and they in fact think that way because that is fundamental flaw in the entire concept of policing.

This conceptual flaw — that the police are fighting a war against "crime" in society — generates its own sociological realities, including the militarization and hero-ization of the police which then militates against any suggestion of “civilian” supervision.

The clang and clamour against “civilian review” boards  is a blatant cry for unaccountability in what is assumed to be a state of war with the rest of society.  Police brutality should come as a surprise?

Nevertheless, civilian review boards do exist. They are called “courts” and it is here that the total failure of civil guardianship festers.

Let us go back to basics.  In the heap of misnomers that has become public discourse it is said that the courts exist to “punish crime.”  Not so.

Courts exist as a civilian review board to ascertain (1) if the State has the evidence to prove the asserted necessity of punishing a person by taking away his life, liberty or property and (2) if they have investigated and proved their case in a constitutional manner according to law.  What criminal courts were really designed to judge is the prosecution not the criminal.

Police and prosecutors do not complain about this because the judiciary is not doing its job.  It has rendered itself cravenly subservient to the police.  In all the blather about Ferguson and police brutality no one has focused on the real culprit:  the robed water boy on the bench.

Judicial acquiescence in police misconduct takes place   de facto and de jure.

De facto, judges routinely wink, nod at police lies and misconduct.  They do it so routinely that an impartial anthropologist might conclude that that was their function.   They do it so reliably that police openly joke about  testilying.  They brag about lying under oath and joke about taking courses in “creative report writing.”  This is nothing new; it has been going on for decades.

To be sure, “lying” is seldom simply a toggle between false and true.  It is more typically an artifice of insinuation and impressions.  In the best lie, the subject of a statement is left open and dangling, leaving the hearer to draw the seemingly logical (but false) conclusion himself.

The average juror might fall a sucker but the judges do not.  They know very well what is going on. They simply pretend to be credulous.  Their standing instruction to the police is “give us a tissue we can blow into.”

But if the role of the trial judge is to accept the lies in open court, it is the role of appellate judges to specify what the lie should be.  The general purpose here is to sucker the general public into thinking that there exists a justice system which is fair and impartial, instead of a massive exercise in sanctimonious falsehoods.

One of the reasons this sham and shame is seldom discussed is that to do so it would be necessary to write an immense compendium of law articles.  In a relatively short article only a soupçon can be given.  Let us take Miranda.

The public has been sold on the idea that Miranda advisements exist to protect suspects from being pressured into confessions.  The lunatic idea is that the advisement “restores” a balanced playing field. 

Why “lunactic”?  Because, as the Court in the Miranda case acknowledged, being taken into custody is — in its own words — “inherently coercive”.   This is logical.  You are not free if you are in custody; and, by the same token, if you are not free you cannot make a free and voluntary statement.  Duh.

But if that is the case, how does being advised by the burly brute who hovers you that you are free not to speak change anything?  It doesn’t.  One might as well tell the man on the rack: “You have a right not to scream.”  The empty interrogation room might not be as physically painful as the rack but since when is fear not an equal terror?  Centuries ago when the Court still had a scintilla of honesty it recognized that fear and shame could just as easily turn a man into the “deluded instrument of his own undoing.”

The real purpose of the Miranda decision was to provide some fair sounding blather which would "sanctify" the use of a confession in court when by all indications and analyses custodial confessions could never be deemed to be made freely and voluntarily. 

The case is even worse, because once a Miranda warning has been given — no matter how quickly run through or mumbled — then let the games begin!  The police are free to use whatever device, scheme, lie, trick, they want (short of leaving physical marks) in order to “elicit” a confession.  And the police take courses in this too.

So given that Miranda is window dressing for the public and a mere preliminary to open psychological warfare against the “subject,” how does this appellate concoction operate at the trial court level?

    Q:    Officer, did you Mirandize the defendant?
    A:    I believe I did...
    Q:    And after you advised him of his rights did he make a statement
    A:    Yes.
    Q:    And what was that?
    A:    May I refer to my notes?
    Q:    Yes.
    A:    He admitted to entering the store in order to steal the six pack of beer which he then placed in his vehicle before heading to the river. (I.e., he admitted each and every legal element of a burglary-theft, just like that!)

It will be noted that the testilying officer never said that he did advise the defendant of his Miranda rights.  He said he believed he did.  When officers say such smart-alecky things they know full well what they are not actually saying and what you will think they said.   They also know that the judge who will have to rule on the issue will understand the lie as it is intended and then pretend not to have noticed.  

Another example  of judicial acquiescence is the law of  entrapment.  The Supreme Court has upheld entrapment on the stated theory that merely “affording an opportunity” for those who are “predisposed” to commit crimes.   You know, like putting cheese out for the mouse.  The rationale is scrambled brains on a plate.

There is no need for the police to go about affording opportunities to commit crime because the whole of society — every last inch of it — is an already existing opportunity to commit crime.  The bicycle left leaning on the post, the woman walking down an alley, the intersection where supposedly no one is looking ...   ordinary life abounds in opportunities for those predisposed to commit crime.  The police do not need to do a damn thing.

What entrapment allows is for the police to instigate crime by suggesting and enabling its commission to some pre-selected target.  By practical necessity the enabling entails the first steps of the crime itself.  To avoid looking at what the police have done, the High Court switched the focus onto the subjective predisposition of the victim of the entrapment and the whole game then got reduced to a species of slander, the end result of which is that there was no entrapment because the defendant was a scum-bag anyways.
The law of entrapment is a heaving, stinking Calvinist mind puke.

In fact the entirety of criminal law and constitutional law, in its criminal aspect, is a malodorous pile of rot.  The temple of justice is a white-washed sepulchre and its judicial litanies a construct of sophistical excuses aimed at covering up police villany, prosecutorial malice and unjust judgements.  Ferguson and the daily roll of police beatings and killings are the inevitable product of a justice system which is rotten through and through.
Both the police and the justice system which aids and abets them are not designed to prevent crime or vindicate wrongdoing.  They exist as constructs of oppression aimed at keeping the working classes in line.  Part of the process is to keep them intimidated and distracted by daily beatings and --- just as much -- by daily prosecutions for stupid shit which stack up and boil down to nothing more than a form of judicial battery.

As usual, well meaning Americans (themselves inversely obsessed by race) allow themselves to be distracted by the bete noire of racism.   No one can doubt that the police are racist, sexist, as well as xeno- and homo- phobic. But those are accidents to the issue. 

The fundamental issue is that the police are tools of class repression.  Their existence has been rationalised with a  tissue of myths coupled to a culture of militarized machismo.  Their misconduct, brutality and routine violation of the Constitution is aided and abetted by a craven and prostituted judiciary.

Police brutality is the bastard spawn of judicially allowed impunity.

©Woodchip Gazette, 2014


As if the Supreme Sepulchre were eager to prove my point, it has this past week decided Heien v. North Carolina, in which a majority of eight justices held that it was constitutionally permissible for a cop to be totally wrong about the (non-existent) legal basis for your detention.   In other words, even if you in fact did nothing wrong, it is just fine and dandy if the cop thinks you did and on that basis tore your car  apart in a so-called "safety search."

Beware.  If cops can be "reasonably wrong" in detaining you and searching your car they can be just as reasonably wrong in blowing your head off.   The Supreme Court has just declared an open season against "civilians."

We vomit.

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