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Pitchfork Republic

A little over six months ago, after a sniper in Dallas took down police officers, Corey Robin’s response could be summed up in three words. “It has begun.”

He was hardly the first the first to make the observation. After Minnesota and Baton Rouge, many people suggested that it’s remarkable such violence – that would shortly occur in Dallas – hadn’t actually happened yet. There was not a statement that such violence is justified, exactly, but that it was to be expected. Robin expresses a desire for it to stop, though he does not exactly condemn it, and he appears to place the burden of its cessation on the people (single person, it later turned out) not shooting police officers. We should fear their response, and among the many reasons we should act is for the fear of that response.

It’s a variation of an argument that we hear with inequality. We need to make sure that everyone from the least among us to the average joe and joan are taken care of, because if they’re not they will revolt. This is usually symbolized by the pitchfork. By extension, whatever you or me or Billy the Billionaire think, inequality is a problem because the masses believe it’s a problem. And if that problem is not addressed, they might-just-might start taking matters into their own hands. Some follow this with a nervous cough and explanation that they are not endorsing this but are merely stating it as a possibility. Something to keep in mind. For all of our benefit.

As a practical matter, though, if you’re discussing [X], and you are against [X], and you are pointing to a bad thing that [X] might bring about, most people will believe you are making an argument whether you mean to be or not.

I often flinch at these arguments. The amorality of these arguments can be difficult to stomach. It often feels like giving in to lawlessness or sometimes even terrorism. It sends a message that as long as the other side can get unruly enough, or violent enough, then we have to take their views into account. It goes beyond Heckler’s Veto all the way to Heckler’s Rule. But for a sense that the violence against persons or property is justified, it seems wrong to the core. And it can be used as an argument for anything. If the public’s dissatisfaction is itself a reason to take action or refuse to take action, one can use it in favor of segregation, slavery, and more.

In fact, it was used for exactly those causes.

At the same time, the argument is also entirely accurate. Which is to say, whether the government is morally in the right or in the wrong, if people’s desires cannot be satisfied through legitimate means they can and often will resort to illegitimate means. The more dissatisfied they are, the more dangerous they can become… regardless of the legitimacy of their grievance. So one really doesn’t have to agree with the complaint to take the ramifications of ignoring or overriding them seriously.

A government requires one of two things to operate: Overwhelming force, or the consent of the governed. It is simply unworkable otherwise. People come up with plans and believe that if the people don’t fall into line, well we’ll just make them. If you’re not worried about the consequences, you can do this, but the cure is often worse than the disease. We’ve seen this most particularly with the War on Drugs, where we have brought the law to bear as hard as we can imagine and the results are questionable at best. In other aspects of life, we’ve made do with random enforcement and a lot of non-compliance.

At a certain point, rioting works. If you make enough noise they have no choice but to listen. Things might be very difficult for you between here and there, but it’s hard to deny the fundamental truth.

Yet as it remains a point that exists independently of moral legitimacy, we have to be very cautious about lending the violent actions themselves any legitimacy. Likewise, we have to be careful about saying that any cause associated with such behavior is de facto illegitimate.

Where does that leave us? It mostly leaves us in a position where giving in to the pitchforks, whether the cause is good or evil and whether about inequality or segregation, is a form of surrender. Sometimes surrender is necessary. Outside of the pragmatic ledger, however, it is rarely virtuous in a system that has a rule of law and a republican form of government. Those are the things that are supposed to prevent the need to begin with. We should resist the notion of romanticizing it, or attempting to justify it. The more extreme the tactics, the more we should resist an impulse to even contextualize it. It is both a symptom of societal unhealth, and a contributor.

To ignore it completely and to bring down the hammer of god upon it, though, is to declare war on your own people.


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Will Truman is a former professional gearhead who is presently a stay-at-home father in the Mountain East. He has moved around frequently, having lived in six places since 2003, ranging from rural outposts to major metropolitan areas. He also writes fiction, when he finds the time. ...more →

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196 thoughts on “Pitchfork Republic

  1. The problem with BLM as an example is also that there are seemingly an infinite amount of Americans who give the police and DAs unlimited deference. I was in Sacramento over the weekend and saw the police be much more aggressive there than in SF.

    This is not to say that SF has perfect police. We don’t. We had shocking scandals as well. I have seen the police arrest people on the street in SF but only in teams of two. Sacramento seems to respond by sending out excessive numbers of police to deal with issues. I don’t think I was in a bad looking neighborhood either.

    Even when people try to reform issues, the Powers that Be put a stop on it. Oklahoma, is not anyone’s idea of a bleeding heart state. The voters tried to implement criminal justice reform and it was quickly swatted down by their politicians.

    There was some polling evidence from a few years ago that politicians see voters as more conservative than they actually are. There are also the ideologues who know their ideas are not popular but believe they should proceed ahead anyway. Bryan Caplan argued this with libertarians and anarcho Capitalists.

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    • The voters tried to implement criminal justice reform and it was quickly swatted down by their politicians.

      The question then is, what happened to the politicians? If the voters move to make a change, and politicians block it, then the voters have to remove the politicians. If the politicians don’t experience a culling at the next election, why should they give a rip if they walk all over the expressed will of the voter, since it’s obviously so fickle.

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        • Two recall elections, in both of which a gun-control-favoring Democrat was replaced by a Republican. In the next general election, both Republicans were replaced, by large margins, by… gun-control-favoring Democrats. A motivated minority can win special elections. Especially in this case, where a court ruled that voting must be done in person rather than by the usual mail-in ballots. All of the gun control laws remain on the books. Repeal efforts have focused on one of the laws — magazine size limit — because the other ones poll 70-80% favorable statewide. As a general rule, politicians in an initiative state do not waste their time taking on laws with that kind of favorable rating.

          More interesting is the case of Montana. Some years back, medical marijuana was legalized by citizen initiative. Over the years, the legislature whittled away at it until almost no one could get MM. This past November, again by citizen initiative, all of the legislature’s changes were tossed (58-42 margin) and the MM law was returned to its original form. I’m looking forward to seeing whether the legislature has learned its lesson.

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    • I’m not sure how much “Politicians think voters are more conservative than they are” applies to criminal justice, though. It seems to me that a lot of jurisdictions (including Republican ones) are often getting ahead of public opinion on this (ie making it more of a priority than most voters do). Even Oklahoma just put a batch of criminal justice reform stuff through.

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      • A lot are aimed more generally at “non-violent offenders” which some people translate to drugs but also includes theft and the like. Other aspects include job training for inmates. One article I cited recently was about letting ex-cons get (commercial?) drivers licenses.

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        • Yes, but, it depends upon how the state defines “non violent”. A recent example from Cali shows this. What the public considers “non violent” isn’t necessarily what the ‘crats / law defines it as.

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      • Question: is criminal justice reform synonymous with drug decriminalization? Are there proposed reforms on other fronts?

        Since we have the highest incarceration rate in the world, whatever topic a blindly thrown dart hits would be a good place to start.

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          • Sure. Our desire to convict, even when they’re innocent, seems to have outrun our desire to make sure that innocent people are never convicted.

            When I was in grad school one of my profs mentioned a shift in public sentiment on this issue over time. Back in the old days the sticky issue regarding CJ was how many guilty people would a reasonable person agree to releasing to insure that no innocent person was convicted. It was something like 20:1 (based on survey questions, I’d imagine). In recent times it’s flipped, where the question is how many innocent people a reasonable person is willing to convict to make sure no guilty person goes free.

            Unfortunately, the studies he cited are locked in his brain and not mine. So I can’t back that up. But the shift he described sounds right to me. (I’ll Google to see if he wasn’t talking outa hizazz.)

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              • I think your professor was using, let’s say creative license. The data suggests that people are much more likely, today, to say that it is more important that a guilty person be convicted than that an innocent person be acquitted, than in the past, it’s true, but majorities in every survey I can find still believe that it is more important that the innocent be acquitted. This appears to be true across a wide range of demographic categories.

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            • I know you’re kidding, but I’ve had some pretty interesting discussions with folks here at the OT, most prominently Jaybird, which have changed my mind about some forms of punishment. I don’t advocate lopping off ears (standard disclaimer B1) but Jaybird helped me realize that … oh, for example … a public whipping is quite likely a more humane as well as effective punishment than depriving a person of their liberty by locking them in a tiny concrete room for three years.

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                • Well, Jaybird and I agree on at least two issues. The first is that the Dem party is in some serious damn trouble nationally. The other is that locking people in tiny rooms (surrounded by other criminals!!) constitutes an inhumane form of “punishment”.

                  Either kill em, redeem em or rehabilitate em. But don’t lock em in tiny rooms. (Atleast after they’ve sobered up…)

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                  • Well i’m not judging or anything but public whipping is a terrible idea…not that i’m judging or being critical. But i’m all for rehabilitation and MH treatment and education.

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                    • greg,

                      The issue isn’t whether public whippings are a good idea, but if it’s a better idea than locking people up for years at a time. Cuz there’s something seriously f***ed up with the logic of locking people up for years at a time.

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                      • All punishments are hard. We are an overly punitive society so less would be better all around. We can agree on that i assume. But i think it’s weird we have congressional officers called Whips so i’m not inclined to agree.

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                          • Incapacitation works. That individual, at least, is not committing crimes against the public when he’s locked up.

                            Does the threat of extremely harsh physical punishment achieve any of our classic criminological goals? Does it “work”?

                            I dunno. But I suspect that you have to do a lot more analysis that simply comparing crime rates across different punishment schemes. You also have to establish that the differences in punishment schemes is causing the differences in crime rates.

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                            • But to repeat: we have the highest incarceration rate in the world, and we’re supposed to be this Shining Light on Hill. From the linky notme provided upthread the US has 666 inmates per 100,000 citizens while the Germans only have 76.

                              76!

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                              • I’ll repeat that we don’t have the highest incarceration rate in the world. Also, we aren’t a small homogeneous country like Germany, but if you want to compare apples and oranges go ahead.

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                              • “we have the highest incarceration rate in the world, and we’re supposed to be this Shining Light on Hill”

                                Could you flesh that thought out a little? It feels like a non sequitur to me. Shouldn’t a just country with more crime have more people punished for crime?

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                                • High incarceration rates speak toward one of two problems: Either the law is too far reaching and complex (3 felonies a day territory), or society is seriously failing to instill a respect for the law and the order it provides (which can be a result of a number of issues).

                                  High recidivism rates speak toward the failure of the “corrections” system to actually, you know, correct the flawed behavior.

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                                  • I agree that the law is too far-reaching, but how often do any of us get arrested for those three felonies per day? Now, that overextended law can create a problem with capricious prosecution. It can also generate an indifference to law, fostering that lack of respect that is your second point.

                                    Your first point speaks to my libertarian sympathies; your second point to my social conservatism. My recognition that each point aggravates the other is what makes me a classic or movement conservative. That’s one of the reasons I asked about reforms other than drug legalization, by the way. I don’t think that’s the way to go, and I’m not sure the cause is going to gain much more ground that it already has (although I’ve been wrong about that before). I don’t want the entirety of criminal justice reform to get stalled on this one issue.

                                    Now I want to broaden things a little, and address Stillwater’s comment about denying people freedom. To the extend that we’re incarcerating too many people, we’re being unjust. But we also have a higher percentage of people doing things that are universally recognized as crimes (theft, murder, et cetera). It’s right to incarcerate people who forfeit their freedom. And the higher rates suggest that we’ve got more of a problem than people failing to respect the letter of the law, or our system failing to rehabilitate the criminal.

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                                    • This is why looking at the why behind a crime is important. If you have a prison with 100 thieves, and 90 of them are in for petty theft that is closely tied to living in poverty or being addicted, then you don’t have a theft problem, you have a poverty and drug problem, and petty theft is a symptom. But if you treat all of them as if the theft was purely motivated by greed or power dynamics, you will fail to rehabilitate the majority of your thieves.

                                      You may also have a disparate enforcement and prosecution issue, because poor people and drug addicts are easy targets for police & DAs who have incentives to effect arrests[1] and secure convictions[2]; and who are not known for having access to well educated and funded legal counsel.

                                      In short, even if we assume the law is not too far-reaching (big assumption there), a high crime rate and a high incarceration rate is still a sign that you have a serious social problem, because socio/psychopaths are still kinda rare. Happy, content people are generally not inclined to cause harm to strangers[3]. Looking at the issue as just “we got a lot of law breakers” hand waves away any concern of structural motivations that encourage crime.

                                      [1] I know police don’t have official quotas, but I’ve heard enough stories to suggest that arrest numbers are still important during performance reviews, because arrest records are important during budget reviews.

                                      [2] This is where over-reaching is an issue, because DAs can (threaten to) pile on enough charges that it’s likely they’ll make one or more stick regardless of the guilt of the accused, or the harm s/he actually causes; Thus plea bargains are the norm, and if the accused does not have a good lawyer, they may accept a plea bargain, even if innocent, because they fear the system. So a person may never be arrested for their three felonies a day, but if they are arrested for something, and the DA is determined, chances are he’ll find a way to dig up something on those violations.

                                      [3] People are generally more inclined to cause harm to family or friends/acquaintances because relationships can be hard and emotional, or because familiarity makes one more comfortable. If you have a lot of crimes with no pre-existing relationship, that’s a good sign there is a problem on the societal side.

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                                      • “If you have a prison with 100 thieves, and 90 of them are in for petty theft that is closely tied to living in poverty or being addicted, then you don’t have a theft problem, you have a poverty and drug problem, and petty theft is a symptom.”

                                        You might have a judgment problem, and poverty and drugs are symptoms. Not that everyone who is poor has bad judgment, but poverty and drugs and crime are all indicative of a lack of impulse control. A just society should alleviate temporary poverty, reward (or allow rewards to) those who practice good judgment, and punish (or allow punishment to) those who don’t. Obviously this is a comment that could go on for pages, so I’ll stop myself now.

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                                      • If you have a prison with 100 thieves, and 90 of them are in for petty theft that is closely tied to living in poverty or being addicted, then you don’t have a theft problem, you have a poverty and drug problem, and petty theft is a symptom.

                                        True, but our stats, and thus our problems, are different.

                                        (From Google’s): “what percentage of prisoners are violent offenders”.

                                        41% percent of convicted and unconvicted jail inmates in 2002 had a current or prior violent offense; 46% were nonviolent recidivists. From 2000 to 2008, the state prison population increased by 159,200 prisoners, and violent offenders accounted for 60% of this increase.

                                        And this is after plea bargaining. We might be looking a poverty-as-a-cause, but we might also be looking at culture-as-a-cause and poverty-as-a-result.

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                                        • Chicken and egg problem. What came first, the poverty or the criminal culture?

                                          You’ll never get rid of criminals, but you can work to alleviate poverty. Or, at the very least, you can avoid setting up the system so that minor offenses force people into a life of poverty.

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                                          • Chicken and egg problem. What came first, the poverty or the criminal culture?

                                            I’m not sure poverty causes crime. But crime certainly causes poverty.

                                            …you can work to alleviate poverty.

                                            We are, big time. To the point where it drives behavior and has convinced various of my relatives to not get married when pregnant on four separate times over the years.

                                            And… this has created a line. Crime causes poverty, we have lots of programs to alleviate poverty.

                                            Government policy is clearly part of the problem, maybe in ways that are seriously unintuitive.

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                                            • I would say poverty causes crime in almost exactly the same way that rotten meat causes flies.

                                              As for alleviating, I’m specifically looking at preventing convicts from accessing work and assistance services. That goes hand in hand with the skewed incentives you are talking about.

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                                              • I’m specifically looking at preventing convicts from accessing work and assistance services.

                                                Ban the box? Probably worth a try.

                                                We’ll probably find a blanket rule won’t work and some crimes should be forgotten by society after time served and others should not.

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                                                • More than just ban the box. A misdemeanor drug conviction means no access to state or federal education financial aid. Ever (IIRC). Drug convictions? can make housing hard to get & housing assistance near to impossible.

                                                  Etc.

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                                            • I’m not sure poverty causes crime. But crime certainly causes poverty.

                                              Poverty certainly causes *some* crime, in that it’s nearly impossible to imagine certain sorts of crime existing if the criminals had more money than they did.

                                              No one is going to shoplift $20 of stuff from a gas station if $20 is a trivial amount of money for them to spend. (Unless they have some psychological problem, but that’s something else entirely.)

                                              Likewise, millionaires rarely rob banks via pulling a gun and demanding all the money. (They rob banks in other ways.;) )

                                              In people with *functioning* impulse control, people only commit crimes if the reward is greater than the risk…and the reward (The money they end up with) proportional *decreases* the more money they have.

                                              Granted, this assumes that criminals *do* weigh risk/reward, and if that’s not important, than it doesn’t matter…but the problem is, if they don’t weigh that, our *current* system of repeatedly trying to increase the *risk* of crime is even stupider. Because we know people are much better at understanding reward than risk. No one is misunderstanding what $50,000 from a bank heist will get them, everyone knows how money works and roughly what they could buy with $50,000! They’re just often misunderstanding the chances of getting away with.

                                              But, we spend a lot of time attempting to increase risk, and a lot of time to try to decrease reward in an *absolute* sense, (‘Safe is locked and night manager doesn’t have a key’, stuff like that.), but we almost never consider how that works *relatively*.

                                              The problem, of course, is that this discussion quickly turns into the fact I’m sorta proposing we give criminals money so they stop committing crimes. But, the thing is…that works, and we know it works, because it’s probably the reason most people *aren’t* criminals. And if we gave criminals money so they didn’t commit crime…they wouldn’t be criminals, now would they? ;)

                                              To get back to what this discussion sorta is about…most people go along with society *as long as* they can function within it. We’re not at the point of pitchforks and torches yet.

                                              Same with crime. People follow laws because they can live within the laws. People who do not follow the law are often not able to live at the level they want. Which, yes, is absurd when that level is ‘richer than everyone’, we can’t fix that…but when that level is ‘cannot afford my food’, or, even, yes, ‘cannot afford my drugs'(1), that is actually a solvable problem.

                                              Note this is, of course, entirely discussing property crime for the purpose of enriching the criminal. There are all sorts of other crimes, even property crime, that *is not* for that, and thus is nothing I said is relevant to that.

                                              1) Taking a substance that people cannot live without, or at least cannot live without without suffering horribly, and *pricing it out of their price range*, so *obviously* results in crime it’s a bit astonishing we’d think there would be any other outcome. It’s like being shocked when you grab someone and attempt to suffocate them and they claw at you to make you stop. Herp derp, I wonder why they did that? Maybe we need some stronger laws to stop air-breathers from assaulting you when you try to take their air away! Maybe that will solve the problem!

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                                              • it’s nearly impossible to imagine certain sorts of crime existing if the criminals had more money than they did.

                                                When we look at the blood soaked streets of Chicago, how many of these murders are about money (economics), and how many are about respect (culture)?

                                                The problem, of course, is that this discussion quickly turns into the fact I’m sorta proposing we give criminals money so they stop committing crimes.

                                                What would be the incentives here? One hopes that you don’t give them money for committing crimes. If you *stop* giving them money if/when they commit crimes… then that sounds a lot like what we’ve got now.

                                                but when that level is ‘cannot afford my food’, or, even, yes, ‘cannot afford my drugs'(1), that is actually a solvable problem.

                                                The number of people who starved last year is roughly zero.

                                                The opioid crisis is more or less free of crime because of gov support… maybe that’s the model going forward?

                                                Taking a substance that people cannot live without, or at least cannot live without without suffering horribly, and *pricing it our of their price range*, so *obviously* results in crime it’s a bit astonishing we’d think there would be any other outcome.

                                                Your tax dollars at work.

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                                                • Most serious crimes involve violence or the threat of violence. Even crimes against property most often involve threats of violence against an individual — car-jacking, home invasion robbery, drug theft.

                                                  Despite three-strikes laws, there are still a lot of violent people out there with very poor impulse control. [waves at K. Drum] And the things that they do to each other give even hardened public defenders nightmares.

                                                  Yes, violent crime rates are dropping dramatically. But they are still quite high when compared to other nations. A serious reduction in prison population means giving shorter sentences to violent people. You can incarcerate and incapacitate across the worst years, say up to 45 years old or so. But that means giving a 30 year old repeat offender a 15 year sentence, and no more, for manslaughter.

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                                                    • Well, one big factor is lead exposure during childhood. It’s pretty testable (countries phased out leaded paint and gasoline at different times, in America you even had neighboring states that phased out leaded gasoline years apart), has a well understood biological background (heavy metal buildup in the brain and what that leads to is pretty understood), and it stands up very well to the crime data.

                                                      I think estimates range from 25% to 50% of the drop in crime numbers since the 90s peak had to do with phasing out leaded gasoline alone.

                                                      The lot of the Middle East didn’t phase that stuff out until about 15 years ago though, so if that’s an actual, serious, causative factor they’ve probably got another decade or so before they start to see drops. (Peak criminality also correlates to age, so assuming a country phased it out in 2000 you’d see violent crime rates peak around 20 to 25 years later).

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                                                • When we look at the blood soaked streets of Chicago, how many of these murders are about money (economics), and how many are about respect (culture)?

                                                  That is almost a nonsensical question. ‘Respect’ is something that mostly exists *within the criminal universe*.

                                                  You provide an alternative path that gets people as much as or more money as *crimes*, no one gets into that universe, and cares about ‘respect’.

                                                  Additionally, I have no idea why what I said should have to fix *Chicago*. I pointed out that I was talking about crimes of *profit*. If you want to assert that Chicago crimes are *not* being committed for profit, than what I said isn’t *supposed* to fix them. I personally think you’re confused about that, but it’s hardly relevant.

                                                  It’s probably not a coincidence that crime spiked *after* half the city left, reducing other job opportunities. And after the city randomly decided to destroy a lot of public housing. (Which did slightly lower crime in those areas, but resulted in people then having to find other, more expensive housing, and resulted in more of them turning to crime to pay for it.)

                                                  What would be the incentives here? One hopes that you don’t give them money for committing crimes. If you *stop* giving them money if/when they commit crimes… then that sounds a lot like what we’ve got now.

                                                  No, no, I’m not literally talking about giving them money as a reward for anything.

                                                  I’m pointing out that if everyone had $1000 in the bank, no one would shoplift $20 worth of food. I’m basically arguing that a universal basic income would reduce low-level crime. Likewise, for example, giving free drugs to addicts at least stop them from *stealing*.

                                                  Although, hilariously, if we actually *could* be sure criminals would honor their agreement, paying off repeat offenders would be a hell of a lot cheaper for society. If someone steals a car a month, for example, they might make maybe $20,000 a year from that…and if at any point they get arrested and put in jail, they’re going to cost society *hundreds of thousands* of dollars in court and prison costs, and if they *don’t* get caught they’re going to cost people (both directly via stolen cars, and indirectly via insurance) a hundred thousand a year in cars.

                                                  It might literally just be cheaper to pay them $30,000 a year if they’d actually stop stealing cars. ;)

                                                  Or we could make them go through the motions of stealing the car. ;) They have to get in, move the car two feet, document that, and leave, at which point we pay them the fair market value (Or lower…after all, this has no risk at all) of said stolen car. It saves on almost all the costs to society…we don’t have to investigate the crime, no one has to replace their car, no one has to pay to imprison them if we catch them, etc, etc.

                                                  As I said…there is no way we’d actually *do* that, but it’s kinda weird to realize, as society, we’d objectively be better off if we *did*.

                                                  The number of people who starved last year is roughly zero.

                                                  We’ve already had this conversation. People do not starve in America. People do not starve *anywhere* except lost at sea or locked in boxcars. People can always get food that will allow them to keep functioning in the short term. People can eat cardboard and grass and bugs.

                                                  What happens is that people who do not get enough food die of *malnutrition*, because that ‘food’ they were eating were missing important nutrients, and their body got more and more damaged and eventually stopped working. You can *live* without essential nutrients for quite some time…and then, suddenly, you can’t, and you fall over dead. Perhaps even while eating.

                                                  The US has a malnutrition rate, about 0.6 per 100,000 people, which would be about 2000 people in 2016. The rate isn’t very high, but it’s higher than a lot of European countries.

                                                  OTOH, as we discussed last time, the amount is so low that differences in death classification could easily be masking things, especially as things seem to follow no discernible pattern. For example, Norway death rate: 1.07, Sweden death rate: 0.19, Finland death rate: 0.04. Huh? Can people in Norway, which *literally borders Finland* and has better social services, really be dying of malnutrition 26 times more than in Finland? Probably not.

                                                  The opioid crisis is more or less free of crime because of gov support… maybe that’s the model going forward?

                                                  While I hate to suggest our handling of the opioid crisis is a good model for *anything*, it is an interesting fact that we’re getting a lot less addict crime because the drugs are *cheap*.

                                                  We might want to remember that for the future.

                                                  Your tax dollars at work.

                                                  Are you implying we should only do nonsensical things that harm people if they *don’t* cost a lot of tax money? ;)

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                                                  • As I said…there is no way we’d actually *do* that, but it’s kinda weird to realize, as society, we’d objectively be better off if we *did*.

                                                    This assumes criminals will follow the law. That assumption means it works much better on paper than any grubby reality where they don’t. And you’re not serious about this path so I’m dropping it.

                                                    That is almost a nonsensical question. ‘Respect’ is something that mostly exists *within the criminal universe*.

                                                    Claiming someone else’s culture doesn’t exist is a far cry from it being true. “Honor killings” are a problem even if the family has money. Japan historically went so deep into the whole “respect” thing that they had rituals for suicide at it’s loss. It’s not a big stretch to think the bulk of our own hot spot’s problems are a cultural thing, and those hot spots are the bulk of the problem.

                                                    Now maybe ubi changes the culture… but culture is the hardest thing to change and I don’t intuitively see why this would happen. IMHO it’s unclear if ubi will reduce crime. Our “poor” have access to amazing levels of resources by 3rd world standards.

                                                    To use your example, right now, people who have $1000 in the bank wouldn’t shoplift $20 worth of food… but is that because of the money, or is that because in order to have $1000 in the bank you have to be pretty functional?

                                                    And note the concept that someone needs to steal food in the US (an example picked for absolving the poor criminals of moral responsibility) is basically nonsense and an insult to every law abiding poor person.

                                                    What real people would do with ubi in the real world is unclear. We might be clearing away hoops the poor need to jump through and letting them progress. We might also be enabling dysfunctional people to be even more dysfunctional. We might be doing both.

                                                    I’d really like to see ubi run in a few localities and gather data on what people do. One of the attractions of ubi is, in theory, it’d get rid of a lot of gov micro-management of the poor.

                                                    The flip side is I remember Black community leaders clustered around Bill Clinton nodding approvingly as he signed the expansion of the war on drugs. What’s good in theory can be terrible in practice, especially when one of the planks of that theory is people are going to obey the law.

                                                    The US has a malnutrition rate, about 0.6 per 100,000 people, which would be about 2000 people in 2016. The rate isn’t very high, but it’s higher than a lot of European countries.

                                                    It seems likely that malnutrition is not a “food” issue or even a “money” issue in the first world. It’s a mental illness and/or physical infirmity and/or end-of-life issue. Treating it as a “food” issue is unlikely to solve anything.

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                                  • Please, if you rob someone you could easily commit 3 felonies in a day. A previous felon with a gun robs a store with an accomplice and during the robbery the accomplice kills a clerk. That’s 3 felonies easy. Are you saying that society should stop counting after one felony, so the others are freebies?

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                                    • Think smaller, . A traffic stop for, well, anything, can result in a drug dog search of the car, which, if the dog ‘hits’, will result in an arrest, even if no drugs are found on the scene, so the car can be impounded for a more thorough search. Now the officer contact has evolved into an arrest and an impounded car (and all the associated expenses), and the accused is out hundreds of dollars, potentially missing work, &/or having to arrange for child care, all on what is so far at best a misdemeanor traffic violation, and some officer suspicion.

                                      Also, consider that there is no law preventing a a DA from threatening to pile on charges s/he knows they can’t support in court, just to force a plea bargain. So the police/DA lie and say they found drugs in the car, and threaten to charge felony intent to distribute unless they plead down to possession. Sure, a decent lawyer would know how to counter that, but not everyone has access to decent lawyers in a timely fashion, if at all. The accused is more worried about getting fired, or their kids, or how they are gonna get the car out of impound, than they are the ability of the DA to sustain charges, so they make the plea to avoid sitting in jail awaiting trial.

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                                      • If the cops lie then were are all in trouble and frankly your example jumped the shark at that point. Not that cops don’t lie but for sake of discussion lets stick with better examples.

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                                        • Cops & DAs lie all the time to suspects. They have the express permission of the Supreme Court to do just that.

                                          They can’t lie to the court, but suspects and accused are fair game, and if you think they only do that when everything else has failed and they know the suspect is guilty, you are painfully naive. This is why you should never talk to the police without an attorney, because they are more likely to call them on their BS.

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                                            • I think lying to the courts is probably still pretty uncommon, although probably not as rare as I’d like, given how willing the courts are to accept the narrative that an officer or DA wasn’t intentionally deceiving the court when caught in a lie (i.e. the incentive to be unfailingly honest is heavily dependant upon professional ethics, which I find to be a weak incentive when other incentives are at play).

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                                      • This is an abuse of power. This is certainly possible, it certainly happens. But to what degree is this typical?

                                        We have a lot of people (even as a percentage) in prison for violent crimes. We have a lot of people (even as a percentage) in prison for recidivism. Subtract both of those and I’m not sure how much room is left for civilians whose crime is being poor.

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                                        • I would start with how many people are in jail or have convictions where there is no victim other than the state. I bet most of those are going to be your drug possession or intent to distribute. Once a person has a drug conviction, even a misdemeanor one, a lot of employment options and social services are denied to them. This sets them up to be a near permanent underclass. Also, that conviction, regardless of the merits, means police will be more likely to initiate contact and arrest if they are aware of the conviction, likewise DAs are more likely to charge rather than dismiss or offer lesser charges.

                                          Now we have an underclass that has a hard time (admittedly not impossible, but still much more difficult) rising above their past to become productive citizens. And they still haven’t been convicted of actually hurting anyone. But having their opportunities for improvement so limited means recidivism is more likely because those are the options left to them.

                                          There is nothing strange going on here, it’s basic human behavior. If you want a person to succeed, you give them the tools to succeed. If after their first failure, you strip away a large number of those tools, can you really be surprised when they fail to succeed?

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                                • Pinky,

                                  Co-signing Oscar’s response, I’d only add that an integral part of the Shining Light mythology is that individuals should look to America as a bastion of capital F Freedom. Yet we imprison people (ie., deny them their freedom) at a rate which ought to embarass repressive totalitarian regimes. (Or us.)

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                                  • Simple answer is don’t commit a crime, it really lessens your chances of going to jail quite dramatically. People keep saying we imprison too many people, yet can’t offer a standard of how many is an acceptable number. All I hear is less, less.

                                    I would also add that I think you are conflating the idea of big F Freedom with incarceration rates. I think with have the most big F Freedom in the world even with our incarceration rates.

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                                    • I think with have the most big F Freedom in the world even with our incarceration rates.

                                      But certainly not based on incarceration rates.

                                      Simple answer is don’t commit a crime, it really lessens your chances of going to jail quite dramatically.

                                      Ahh. OK, I get it. People in America are free just so long as they don’t commit incarcerable offenses. And for all the folks who can manage to do that, we’re the most big F Free country in the world.

                                      This sorta logic defines “freedom” as whatever’s left after legal restrictions are imposed on individual behavior. Which is a strange way to define “freedom”, seems to me.

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                              • we have the highest incarceration rate in the world

                                Actually we’re 2nd. Some micro-country is #1. Weirdly we measure these things in people-jailed-per-100k, and they have less than 100k people so their actual number is less than their rate.

                                However it’s not clear how much of our rate is an abuse of law and how much is other cultural failures. I’d like to think that we get rid of the war on drugs and everything calms down… but maybe it doesn’t.

                                Culture is one of the hardest things to change.

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        • There are probably a lot of things that should be done – any big system can use an occasional overhaul. I’m wondering about what specific plans are floating around. In my experience, the big push in some circles is for drug legalization, and that might be blocking other items on the agenda.

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          • Two things:

            One – reduce the number of non-violent felonies on the books. Especially in cases where the violation is more of an administrative violation than a case of actual harm.

            Two – refocus prison efforts toward rehabilitation rather than simply punitive. Especially for non-violent crimes. Back in the (IIRC 80’s?) convicted felons were denied access to educational funds and a lot of prisons stopped allowing prisoners access to educational resources aside from books.

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            • The biggest thing that needs to change and the hardest to swallow politically is reforming sentencing guidelines. They’re no longer mandatory but most judges still largely adhere to them. This blows up the population of incarcerated people in two ways.

              First it makes more people accept plea bargains because the enhanced sentencing mechanisms allow for absurdly long sentences that defendants will not risk if they can avoid it, so you’ve got more people going in to begin with. Second they mandate irrationally lengthy sentences. We keep people in there for decades and decades, often due to conduct committed at a very young age. The cost outweighs any measurable benefit, unless we see being as severe as is constitutionally permissible as some sort of social good.

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              • The cost outweighs any measurable benefit, unless we see being as severe as is constitutionally permissible as some sort of social good.

                Exactly this.

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        • Since we have the highest incarceration rate in the world, whatever topic a blindly thrown dart hits would be a good place to start.

          My ideal criminal justice reform that will never happen in a million years: Stop letting people use their own lawyers and make them use court-appointed one.

          Sure, they can *hire* their own lawyers, but the courts will only interact with court-appointed lawyers for criminal cases.

          And I want everyone who reflexively thinks that’s ‘unfair’ to think about that for a few minutes to actually try to explain their thought process, because it’s literally the exact *opposite* of unfair.

          Right now, our public defense system is basically where our public education system would be if, for 100s of years, wealth people had paid for their own education, and no one else got any. Then, in the past half century we had a court decision saying that if you *couldn’t* afford that, an education would be provided for you, so we half-assedly slapped some sort of legal minimum court-appointed educational system for poor people. (You think our *current* education system is bad…)

          I kinda wish people understood that basically any problem with a governmental system can be fixed merely by having wealthy people forced to use it. That’s it. That’s the entirety of the solution. If wealthy people have to use something, we as society will fix it, or at least *try* to fix it. (Some problems, obviously, can’t be fixed.) If they don’t use it, or can fix it just for them, we will not fix it.

          I mean, there’s a reason that we keep throwing more and more money at roads, and a reason we’d stop investing in roads *immediately* if we invented teleporters, even if they cost $100 a teleport and were out of the price range of most people. But currently, wealthy people, no matter how much they invest in helicopters to avoid the roads and limos to ride around in comfort, still need roads. So we build roads. We *overbuild* roads. We build giant locality-bankrupting road construction projects.

          Because the wealthy still use roads.

          You want to fix the criminal justice system, make the wealthy get the same outcome as everyone else (Or at least *try* to do that.) by making them use public defenders in court. Oh, and make all the accused wear a specific uniform. (Not prison outfits, it can be something nice and neutral, but it can’t be a $30,000 suit.) Actually try to make justice blind.

          And *suddenly* drug laws will be changed where people get sent to rehab. (Where rich people always bargain themselves to.) And *suddenly* public defenders will have enough time and money to actually defend people. And suddenly a whole bunch of mysterious things will appear out of nowhere.

          Problem. Solved. And we can all pretend that we, as society, just decided to fund all this stuff for no reason.

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          • The number of wealthy defendants in the cj system is minute. If you want to make a major change in the system, fund it at a level where every single defendant has an attorney with the time and resources necessary to defend the case fully and fairly and the opportunity to take it to trial. (Super WAG — at least 10x current funding, between the need for more judges, courthouses, defense experts and defense counsel.)

            Also, no crime lab reports to the prosecutor or the sheriff. All labs are expressly neutral agencies reporting to an independent county administrative officer.

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            • But isn’t that what is saying? Sure, the number of wealthy in the CJ is small, but if those wealthy people were forced to use public defenders regardless of how much legal help they could afford, then they would exercise the power their money grants them and fully fund the public defenders office such that, should they find themselves at the wrong end of an indictment, the public defender assigned to their case would at least be as well resourced as the prosecutor.

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              • My problem with DTC’s argument is that it is utterly fanciful.

                He is contemplating a series of state laws that, among other things, would impair the formation of a voluntary contract, impair the formation of a voluntary attorney-client relationship, deny private attorneys the right to practice criminal law, deny individuals the right to be represented by an attorney of their choosing, and force people to accept an unwanted representative when their liberty is at its greatest peril.

                That’s not only nuts but grossly unconstitutional. It’s not even a close issue. And even if I’m wrong and the laws could pass muster, who would vote for this mess?

                His best pitch is: the current system is so grossly unfair that we are going to force everyone to suffer it as to generate the votes to change the system. To which a sane person responds: instead of creating an even more insane set of laws that will get litigated for a decade, let’s jump straight to the end game and fix the system.

                I never thought I would align DTC and Trump, but this is precisely what Trump is proposing about health care. Let’s make everyone so miserable we fix the system.

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                • He is contemplating a series of state laws that, among other things, would impair the formation of a voluntary contract, impair the formation of a voluntary attorney-client relationship, deny private attorneys the right to practice criminal law, deny individuals the right to be represented by an attorney of their choosing,

                  We *literally already do all that*. Every one of those! Word for word!

                  Go ahead. Try to hire me to defend you in court. Just try it. Try to have me sit down next to you as your attorney.

                  Oh, look, you can’t, because I haven’t passed the bar in this state. (Or any state, because I am not, in fact, a lawyer.)

                  and force people to accept an unwanted representative when their liberty is at its greatest peril.

                  I didn’t say anything about forcing them to accept anything. If people want to get rid of their lawyer, they would still have the same right to defend themselves as they already have, or switch to another court appointed lawyer.

                  But if you think that people not getting the representative they want when their liberty is at peril is *unconstitutional*, than *you cannot possibly defend the current system*.

                  Everyone should get a good lawyer, and there are only two options. Either public defender *are* good and useful as lawyers, and thus everyone should be happy with them, or they *are not*, and it is *unconstitutional* to submit people to court under them.

                  His best pitch is: the current system is so grossly unfair that we are going to force everyone to suffer it as to generate the votes to change the system. To which a sane person responds: instead of creating an even more insane set of laws that will get litigated for a decade, let’s jump straight to the end game and fix the system.

                  The Green Lantern theory of reform: Why not just *fix* things!

                  I never thought I would align DTC and Trump, but this is precisely what Trump is proposing about health care. Let’s make everyone so miserable we fix the system.

                  I have not, at any point, heard Trump propose that everyone should be subject to anything in health care.

                  In fact, what I’m proposing is basically the *exact opposite* of how Republicans work….when *they* see broken governmental systems, their idea is always give people a way to buy out of them, leaving the existing government broken system for the poor, and everyone else gets to pay for their own.

                  It’s just, in this case, the public system was *never* correctly funded, ever, and only invented about 50 years ago.

                  I am, basically, proposing we get rid of the ability to send people to private schools, because taxes are basically just paying for a one guy on a street corner handing out photocopies of blurry outdated information to anyone that looks under 18, and that’s all schools have ever been.

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                  • This is so silly that I can’t let it stand without response. You have a true premise — only attorneys can represent individuals in court. You have a conclusion — the State may deprive people of the opportunity of being represented by their attorney of choice — that simply does not follow.

                    Also, you have utterly failed to address the major constitutional issues arising from impairment of contracts and the right to counsel of one’s choice. You have also utterly failed to address the constitutional issues arising from the idea that the State is empowered to force you to accept counsel from a pre-selected list. And finally, you utterly failed to address the political reality — there isn’t a legislator anywhere in the US who would vote for this utter mess.

                    Your last line is particularly telling. You want to ban private criminal attorneys in the same way that you want to ban private schools. That kind of left-authoritarianism should have no place in this country.

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                    • Also, you have utterly failed to address the major constitutional issues arising from impairment of contracts

                      Because asserting it has anything to do with contracts is so nonsensically stupid there is nowhere to start.

                      You can’t just assert ‘That can’t be forbidden by law, it would impair contracts that do that’. That is not any sort of sane constitutional objection to *any* law at all. Contracts that could exist do not magically make it impressible for the government to do anything.

                      There would be, perhaps, some sort of claim of *redress* if a law interfered with an *existing* agreement…except obviously this would be phrased in some manner, with future notice, and it seems unlikely that currently contracted lawyers would ever just find themselves barred from court *randomly*. It would be more like ‘I cannot represent you after a specific date, I am working with your public defender to transfer the case to to him’.

                      and the right to counsel of one’s choice

                      Again, I point to the ‘We already forbid non-lawyers from representing clients in court’ fact, which renders that nonsense.

                      People can, of course, take *counsel* from whoever they want. They just can’t have those people *represent them in court* or anywhere else in the criminal justice system.

                      You have also utterly failed to address the constitutional issues arising from the idea that the State is empowered to force you to accept counsel from a pre-selected list.

                      The state *is* empowered to do that. It literally does that, *currently*. The list is ‘People who have passed the bar in the state’.

                      You just keep sliding right past that fact, don’t you? The state *clearly* can constitutionally determine who can represent people in court, because RIGHT NOW IT IS DOING THAT.

                      That fact is not up for debate, and thus the constitutionality of what I suggested is not up for debate.

                      Hell, if anything, my plan is *more* constitutional…the state *obviously* has the right to restrict certain things being done only by state employees. All other parts of the criminal justice system *already are*. Do people have the right to hire their own jury of their peers? Or their own judge?

                      Whereas allowing an *outside entity* like the state bar control what private entity can be contracted with *is* something that could, possibly, be argued about on constitutional grounds. And I suspect has.

                      People have a right to ‘assistance of counsel’. They do not have the right to be represented by anyone they want in a legal proceeding. Those are not the same thing.

                      And finally, you utterly failed to address the political reality — there isn’t a legislator anywhere in the US who would vote for this utter mess.

                      In *literally the first line* of this premise, I said it wouldn’t happen in a million years.

                      You want to ban private criminal attorneys in the same way that you want to ban private schools.

                      No I don’t.

                      I said I would want to force people to use public schools if public schools were utterly dysfunctional pieces of shit that we threw together in the law fifty years because the courts said we had to, and then ignored because no one with money has to use them.

                      You know, like the public defender’s offices are.

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                      • I disagree with virtually everything written here, but I don’t believe that a further exchange of views serves any purpose. Your starting position on what is and isn’t constitutional is so utterly foreign to me that I don’t think it’s possible to communicate effectively.

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                        • Your starting position on what is and isn’t constitutional is so utterly foreign to me that I don’t think it’s possible to communicate effectively.

                          This is probably because when *I* assert certain things are unconstitutional, I don’t make up random gibberish that includes things that aren’t mentioned in the constitution at all, like some hypothetical ability to form contracts (A constitutional right to contract? Able to override laws? Are you serious? Have you considered what this would do to, for example, murder-for-hire?) or practice criminal law.

                          And if the government is doing something *almost identical* to said behavior I say is unconstitutional, like the fact they currently bar non-lawyers from representing people in court, I at least *try* to come up with some hypothetical reason the current behavior is different from the proposed behavior, instead of just ignoring it. (Or I claim that current behavior is *also* unconstitutional even if the government is doing it.)

                          The constitution is, oddly enough, an *actual piece of text* you can read, and when you assert things are unconstitutional, it helps when you *actually cite pieces of it* instead of just *handwave* right to contracts *handwave* right to practice criminal law *handwave* surely those are constitutional rights somehow.

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                          • OK, let’s get into it.

                            You proposed: “Stop letting people use their own lawyers and make them use court-appointed one.”

                            I assert that this proposal cannot pass constitutional muster. Your response, as best I can tell, is that since the State can impose licensing requirements it can deprive defendants of their choice of counsel.

                            1. Licensing laws are perfectly constitutional. The State can require lawyers, doctors, engineers, beauticians and cab drivers to demonstrate that they are qualified to practice their profession before offering their services to the general public.

                            2. Once a person is qualified to perform a service, States are reluctant to interfere with the ability of that person to offer his services to the general public. The relevant citations are the Contracts Clause of the US Constitution, Art I, Sec. 10, clause 1; in California, the California Constitution Contracts Clause, Art I, sec 9; and the US and California Due Process clauses (US Const., Amend V, incorporated against the States via Amend XIV; Cal. Const., Art. I, sec. 7.)

                            Since you admit that you are not an attorney, I advise you to engage in legal research regarding the scope and power of the Contracts Clauses and Due Process Clauses. The State cannot easily impair all the existing private contracts for the provision of criminal law services nor can it easily deprive every single lawyer in the State of the liberty to offer that lawful service.

                            3. The right to counsel of one’s choice is deeply embedded in criminal law. Just listen to the words of the Miranda warning: “You have the right to an attorney. If you cannot afford an attorney, one will be appointed for you.”

                            The Miranda warning does not state: “You have the right to an attorney appointed by the State.”

                            The Miranda right is one of the very few positive constitutional rights under which the State is required to expend public funds. It is, at the very least, bizarre to think that this limited right can be so broadly expanded as to force people to accept only a State-funded attorney.

                            Because the right to counsel of one’s choice is so deeply embedded in the American legal canon, courts will take a very hard look at the State’s justification for stripping people of that historic right.

                            At this point it’s worth noting that your proposal is not a minor restriction on the choice of counsel. It is a complete ban. To quote you: “make them use court-appointed one”.

                            I cannot think of a single facet of American society where a State imposes such a mandate on its citizens. I invite my fellow commenters to think of anything comparable to this proposal.

                            Your justification is that public defenders suck. As a threshold matter, since I’m married to one and she’s a far better lawyer and person than I am, I take grave personal offense at your blanket condemnation and I strongly encourage you to extend a personal apology.

                            Going beyond my personal life, your justification is both factually wrong in many jurisdictions, including Los Angeles County, and not on point.

                            The alleged harm, which admittedly exists in many places around the country, is not redressed by your proposed remedy. The remedy for underfunded criminal defense is more funding. If the State funding is so egregiously low as to deprive defendants of their constitutionally mandated defense, then the appropriate course of action is to sue the state and get the State Supreme Court to force additional appropriations. (That’s a whole other constitutional issue that you need to read up on.)

                            In closing, I will simply say that American constitutional law is a complex topic or rather series of topics. I admit my ignorance on any number of interesting areas of constitutional law. I hope that the non-lawyers here feel free to comment on constitutional issues because these issues are so important to our lives and this country. But the discussions will be more fruitful if people do not go proclaiming that they understand what is constitutional when they clearly don’t.

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                            • Once a person is qualified to perform a service, States are reluctant to interfere with the ability of that person to offer his services to the general public. The relevant citations are the Contracts Clause of the US Constitution, Art I, Sec. 10, clause 1; in California, the California Constitution Contracts Clause, Art I, sec 9; and the US and California Due Process clauses (US Const., Amend V, incorporated against the States via Amend XIV; Cal. Const., Art. I, sec. 7.)

                              I have no idea why you think this is some sort of logical argument.

                              Firstly, *no one is forbidding anyone from offering their services*. (Well, I suspect the state *bar* would forbid it under ethics rules, but that’s the bar’s thing.)

                              You seem to be totally ignorant of the fact that *the government provides services*, many of which *only it* is allowed to do. It does not let random people do them, and only allows its own employees do them.

                              Since you admit that you are not an attorney, I advise you to engage in legal research regarding the scope and power of the Contracts Clauses and Due Process Clauses. The State cannot easily impair all the existing private contracts for the provision of criminal law services

                              Again, I point out that you are *speaking gibberish*. With regard to *existing contracts*, there would be absolutely no constitutional barrier for a state to pass a law that would take effect after some *reasonable interval* of a couple of months. Or even grandfather in *existing* court cases.

                              You’re acting like people have *defenses attorneys* on retainer just in case they get arrested for crimes, and, for some reason, these retainers have a large value that the state cannot interfere with without damaging. Like, I paid $10,000 last year to get a defense attorney to represent me for the next decade.

                              That’s…total nonsense. That is not how it works 99.999% of the time, and even the remaining few cases where lawyers are on retainer…the lawyer, or their client, can cancel that contract at almost any (Barring some ethics issue with timing and proper representation) time *without any penalties*.

                              Additionally, this is an *extremely weak* argument anyway. People do not have the right to demand something remain lawful solely because that assumption has been written into a contract they signed! They have maybe some grounds for a civil lawsuit over lost income or damages.

                              But that can’t void the law! It doesn’t make a law *unconstitutional*!

                              nor can it easily deprive every single lawyer in the State of the liberty to offer that lawful service.

                              And that is most the textbook example of circular logic I have ever seen. Of course the state cannot deprive everyone of the right to offer a lawful service. However, it can *make providing that service unlawful*. Duh.

                              I find it extremely interesting you keep trying to argue what I suggested is a violation of *lawyer’s* constitutional rights, which is, frankly, the mostly absurdly silly argument I have ever heard.

                              People arguable have a constitutional right to have other specific people represent them in court. Sorta kinda. That is the argument I expected.

                              I didn’t expect the surreal argument that lawyers have the *inverse* of that right, that lawyers have the right *to* a job of representing others in court. That literally cannot be justified constitutionally at all. You seem to be trying to justify it via some ‘lawyers have a right to a profession’ argument.

                              The courts *laugh in the face* of claimed ‘right to a profession’ infringement. That is simply not a thing at all.

                              I also find it extremely odd you seem to think this will put all private defense attorneys out of a job, instead of what it would *actually* do: End up with them working for the public defender’s office.

                              The Miranda right is one of the very few positive constitutional rights under which the State is required to expend public funds. It is, at the very least, bizarre to think that this limited right can be so broadly expanded as to force people to accept only a State-funded attorney.

                              I may not be an attorney, but even I know that that the Miranda warning is not a constitutional right. It it is a court-determined way to *inform* people of a right.

                              Because the right to counsel of one’s choice is so deeply embedded in the American legal canon, courts will take a very hard look at the State’s justification for stripping people of that historic right.

                              Hey, look, you’ve wandered near an actual argument.

                              Here’s what the courts have actually said about the right to choose your own attorney:

                              We have further recognized that the purpose of providing assistance of counsel “is simply to ensure that criminal defendants receive a fair trial,” Strickland v. Washington, 466 U. S. 668, 466 U. S. 689 (1984), and that, in evaluating Sixth Amendment claims, “the appropriate inquiry focuses on the adversarial process, not on the accused’s relationship with his lawyer as such.” United States v. Cronic, 466 U. S. 648, 466 U. S. 657, n. 21 (1984). Thus, while the right to select and be represented by one’s preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant, rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers. See Morris v. Slappy, 461 U. S. 1, 461 U. S. 13-14 (1983); Jones v. Barnes, 463 U. S. 745 (1983).

                              The Sixth Amendment right to choose one’s own counsel is circumscribed in several important respects. Regardless of his persuasive powers, an advocate who is not a member of the bar may not represent clients (other than himself) in court. [Footnote 3] Similarly, a defendant may not insist on representation by an attorney he cannot afford, or who for other reasons declines to represent the defendant. Nor may a defendant insist on the counsel of an attorney who has a previous or ongoing relationship with an opposing party, even when the opposing party is the Government.

                              -Wheat v. United States

                              I.e, there are already restrictions on what counsel you can choose, even if there is a ‘presumption’ you can choose any you want. That presumption *can currently be overridden* if needed to fulfill the ‘guarantee [of] an effective advocate for each criminal defendant’. Right now. That’s already decided.

                              And for the longest time, there was a presumption that separate but equal made sense, also, but the courts eventually said there ‘Yeah, it turns out that *in reality*, black schools are never as well funded as white schools, so we’re getting rid of that dumbass idea.’.

                              I can see, in the future, an argument made in court that public defender offices are never, *in actual reality*, as well funded as private defense lawyers, and they are much more busy.

                              Which means that people who can afford an attorney are, indisputably, getting better representation…and poor people systematically getting lesser representation in legal proceeding is *very clearly* a violation of the constitutional right to equal protection. (That second part is already decided under Gideon v. Wainwright, the thing that actually started requiring poor people *get* assigned attorneys in the first place.)

                              Or, to put it another way, letting people *pay* for better representation is a constitutional violation. Representation in court *has to be equal*, period, full stop. You should no more be able to pay for better counsel than you should be able to pay for a better due process or a better right to vote.

                              I don’t know if the courts will buy that. Maybe they will, maybe they won’t. But it is not an *impossible* court decision.

                              “make them use court-appointed one”.

                              You do understand that, under my proposal, that *all criminal defense attorneys would be working for the government*, right?

                              It’s not like there are going to be people advertising themselves as private criminal defense attorneys…who cannot represent people in court. (Pretty certain that’s an ethic violation.)

                              So, they’d have basically the same set of defense attorneys that they could use as before…it’s just everyone is working for the public defender’s office. (Except, perhaps, the attorneys who do both civil *and* criminal law, who might need to pick one of those?)

                              Is your argument they’d be assigned a public defender, instead of picking one? I have no objecting to letting people pick their own public defender. My objection is some people allowed to *pay* for a specific attorney, vs. other people having to take whatever overworked person is handed to them. As long as everyone gets to pick their own equally, without regard to payment…whatever.

                              Your justification is that public defenders suck.

                              I have said *absolutely* nothing of the sort.

                              I said that public defenders *offices* suck because we do not spend any money on them and do not treat them seriously in the least.

                              The people working in the public defender’s offices, I am sure, vary in general competency as much as any set of lawyers. They tend to *represent their clients* somewhat poorly, but so would any lawyer operating under their constraints of time and caseload. (It doesn’t matter how good a piano player you are, you cannot play three pianos at once.)

                              I, at least, am proposing a thing that would change that. You appear to just be *wishing* we did it better. No, wait, you had a solution:

                              If the State funding is so egregiously low as to deprive defendants of their constitutionally mandated defense, then the appropriate course of action is to sue the state and get the State Supreme Court to force additional appropriations.

                              The courts will only put up with *systematic* under-funding in *almost every single* jurisdiction for so long before they decide the problem is not solvable by having individuals repeatedly sue to fix things, and they will issue new rules. (Especially since those people are, by definition, so poor they cannot afford a lawyer, and thus have a lot of problems suing.)

                              And, again, I point out that this is actually a *pretty new* problem. Public defenders offices *basically have only existed* for 54 years. (You could get assigned a defender for certain crimes slightly before that, but there was no general right, so there weren’t really ‘offices’ as I understand it. The state just picked some random defense lawyer and paid him.)

                              In other words, the courts *fundamentally reinterpreted the right to counsel* fifty years ago, inventing the idea that everyone has a right to a lawyer *even if they couldn’t afford one*. And it was even more recently that statistics starting showing up demonstrating how crappy these offices were, at exactly the same time budgets started getting cut.

                              Do not assume all this was worked out hundreds of years ago and it can never change. Something *will* happen to fix this, because the courts will not keep putting up with this.

                              What *I* have proposed is pretty far out, and unlikely. Odds are that they will change it in some other way, perhaps they will start demanding that criminal defense lawyers start doing large amounts of pro bono defense work to retain the right to appear before them in court. Perhaps they will demand jurisdictions that do not provide timely enough representation pay for whoever people hire. (And suddenly everyone is hiring extremely expensive lawyers.)

                              Who knows how this will play out?

                              But what I said isn’t *impossible*, nor is it unconstitutional. It does violates a presumption of a right people have, so it would need a *good* justification…but I think it has one.

                              Or, hell, instead, perhaps they will start *summoning* lawyers to court and *ordering* them to defend people. If the courts can order citizens to serve on a jury, they can order lawyers to serve as counsel! (In fact, that already has been decided in court. Lawyers can, in fact, be forced to participate in trials and defend people over their own objections.)

                              Be kinda funny if I was wrong in exactly the opposite direction: Defense attorneys do not end up all working for the public defender’s office, and keep working in private practice, but they don’t really have time for much of that because all of them keep getting *conscripted* into defending random people and only paid a stipend for it.

                              Going beyond my personal life, your justification is both factually wrong in many jurisdictions, including Los Angeles County, and not on point.

                              LOL. I literally was looking at the LACPD being given *as an example of an overloaded public defender system* when I got the notification of your post.

                              http://scholarlycommons.law.cwsl.edu/cgi/viewcontent.cgi?article=1078&context=cwlr

                              Relevant quotes: ‘less than 200 arrestees a year are assisted by the Public Defender before the initial appearance.’, ‘Five of the thirty-eight branch offices of the LACPD replied to the survey conducted by the California Criminal Defense Study in 2006-2007. Four of the five replied that excessive attorney workloads in the office were a significant or serious problem.’, ‘At the first court appearance, a Deputy Public Defender promised to investigate his case. Thereafter, the LACPD lost his file. He was obliged to return to court repeatedly, about a dozen times over the course of a year, because the public defenders were unable to locate his file. Each time, a different lawyer appeared on his behalf, and his case was never investigated. ‘

                              I dunno, maybe they’ve changed since 2008. But that seems like a bad example of a functioning public defender office…or maybe, comparatively speaking, it *is* a good one. Which rather proves my point.

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                  • I don’t know what you’re trying to say with in-Constitional, but people do *not* actually have ‘a right to their own counsel if they can afford it’.

                    The accused have a right ‘to have the Assistance of Counsel for his defence’ in criminal cases.That is what the constitution says. Full stop.

                    It is incredibly vague.

                    As I keep pointing out, if the courts have the ability to bar specific people from being said counsel (Like non-lawyers), they have the ability to bar *other* people from being said counsel.

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            • The number of wealthy defendants in the cj system is minute.

              In addition to what Oscar pointed out, the reason the number is wealthy defendants in the cj system is minute is *that their lawyers immediately get them out*.

              A goodly fraction of the people in jail, right now, are not there for any real reason at all. The warrant was for another person, or was cancelled, or the charges *should* be dismissed at the very first hearing, or the search was *obviously* invalid, etc, etc.

              People who can afford good lawyers *not only* often don’t convicted for things they didn’t do, they almost never get misconvicted of things they didn’t do, and they don’t just get forced to waste time in jail.

              Everyone thinks the entire problem with letting people hire lawyers is that those people do not get punished for crimes they actually committed. Yes, that’s *huge* problem, but the fact that they don’t get punished for stuff they *didn’t* do is also a problem…because everyone else does. Everyone else is spending a few days in jail until they can get in front of a judge and prove they aren’t the person in the warrant.

              They also get *actually negotiated* deals, good ones, because their lawyers know things.

              So, the solution, in my mind, is simple: Stop letting any outside lawyer interact with the criminal court system at all. Their lawyer cannot call up a judge buddy and get someone released over the weekend(1), their lawyer cannot go into a police station and threaten to sue them for false imprisonment, their lawyer *cannot even pay to have independent testing done*, their lawyer *cannot even speak to them in prison*. (I mean, if they have access to outside visitors, obviously they can talk to their lawyer, but not *as* their lawyer.)

              Because the criminal justice system will not recognize that person as their lawyer. They are in the criminal justice system, they, and the criminal justice system, will *only* interact with a *court-appointed* lawyer.

              The rich will *shit bricks* the first time this happens, the first time they’re forced to sit in a jail cell over a weekend because they ignored some traffic summons or something… and immediately change a fuckton of laws and procedures. The things that, right now, allow the police and criminal justice system to walk all over people. Things that, right now, they’re entirely able to avoid by throwing money at expensive lawyers. Nooope. Not any more.

              Oh, and then next on my list: No bail. We either trust people will not run, or we do not, or maybe we put them on ankle monitors and/or house arrest. The bail system, as it currently stands, is merely a way for bail bondsmen to make money off poor people, and serves no purpose at all.

              1) Well, they *can*, but I would like that to be an ethics breach. That is not that lawyer’s case. It *cannot legally be* his case. He cannot go around trying to get other people to interfere in it.

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  2. Here’s that joke that I no longer find funny.

    How do you know if It’s Time?
    Grab your gun and go out into the street. Are you the only one in the street with your gun? Then it’s not time yet.

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  3. Will, I read your piece as saying that you don’t like the implied threat of violence as the counter to inequality. I more or less endorse this. Being a 95% adherent to non-violence, I don’t like arguments along the line of “do X or you will get killed”.

    My argument against inequality is that societies tend to stop functioning if there’s too much inequality. A very small number of people become able to marshall a very large share of a nation/societies resources means that those resources will be used in an increasingly bad way. They will be used to please themselves, and this will result in things like the Great Recession. Or worse.

    I do not think it is controversial to state that human beings are really bad at figuring out what’s good for them, and the insulating power of a large bank balance makes that tendency worse, not better.

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    • Pointing out the general instability that inequality causes is a very important argument.

      And, I mean, so is pointing out the potential for violence. I just think we have to be very careful about how it’s deployed.

      This piece is more about sharing thoughts than making a particular argument. And an acknowledgement that we have to be really careful how we consider such things.

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      • I agree with you and Doctor Jay re inequality but there is a big issue in debating inequality.

        Lee points this out very well when he states that the big divide between liberals and libertarians on income/wealth inequality is about the best way to increase wealth. The libertarian argument is that you end inequality by merely increasing absolute wealth. It doesn’t matter if almost all the wealth goes to the 1 percent or .1 percent, enough trickles down through innovation and cool toys to the masses that it doesn’t matter. The liberal argument is that you need some form of wealth redistribution along with an increase in absolute wealth to decrease inequality.

        One of the reasons the AHCA was such a disaster is that it was blatantly cutting health care for the masses in favor of upper-class tax cuts. The ACA is not perfect but it does redistribute wealth.

        Even when libertarians can agree that the police state is bad and disproportionate police brutality towards minorities, they have trouble embracing stuff that liberals also feel is necessary for decreasing inequality like civil rights protections because that goes against their priors for state action being the only bad action.

        The situation is complex. Sometimes the government is the good guy. Sometimes it is not. There isn’t a clear cut solution here.

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        • My argument against the “just grow more” is empirical. We’ve been doing that since 1980, and pretty much all the gains from that growth have gone to the top 10%, and none to the rest. You can see this in the usual charts about inequality. Median income, adjusted for inflation, hasn’t grown really at all since 1980.

          So why should the other 90% endorse “just grow more”? The fact that roughly 50% do endorse it sometimes boggles my mind.

          I think that the concern is that once you’ve decided it’s ok to redistribute, then you will attempt to completely flatten things out. So it might be good to try to articulate a different goal.

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          • “We’ve been doing that since 1980, and pretty much all the gains from that growth have gone to the top 10%, and none to the rest…Median income, adjusted for inflation, hasn’t grown really at all since 1980.”

            And yet I can buy a smartphone with that median income, which not even the richest person in the universe could have done in 1980.

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            • Smart phones didn’t exist in 1980 so I find this argument silently unconvincing. I think that if your trying to figure out whether somebody is doing better now than they would have in an earlier period is to compare goods and services that existed at both times. Is housing more affordable in 2016 than it was in 1980? If so, why?

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              • “Smart phones didn’t exist in 1980”

                THAT (handclap) IS (handclap) MY (handclap) ENTIRE (handclap) GODDAMN (handclap) POINT

                “if your trying to figure out whether somebody is doing better now than they would have in an earlier period is to compare goods and services that existed at both times.”

                lol. “Apart from better sanitation and medicine and education and irrigation and public health and roads and a freshwater system and baths and public order…what have the Romans ever done for us?

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            • You are engaging in cherry-picking data.

              The price of some things has gone up a lot – a college education, for instance. The price of some other things has gone down a lot. Inflation indices are an aggregate of all those things. There are quite a lot of ways to take the aggregate, and they don’t all give the same exact answer, but in every case they give the same approximate answer, which is that median incomes haven’t budged.

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              • “You are engaging in cherry-picking data.”

                By ignoring the massive increase in access to information technology that has occurred since 1980, you’re doing the same. Pretending that the Internet didn’t happen is foolish.

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                  • The contention is that “Median income, adjusted for inflation, hasn’t grown really at all since 1980”

                    and my reply is that this statement actually has nothing to do with income at all, because it focuses on the inflation-adjusted cost of a specific basket of items and ignores the actual growth in the things money can be spent on (and the quality you receive for your spending) since 1980.

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          • It is the cellphone argument that Density Duck makes below. There is some truth to the claim but not as much as the libertarians would want us to believe.

            I also suspect that liberals and libertarians have vastly different notions of what access to healthcare means.

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    • “[S]ocieties tend to stop functioning if there’s too much inequality.”

      Although I’d be amused to see a society undergo a paroxysm of violence directed at high-wealth individuals as a result of insufficient self-actualization. Like, what would a revolution based on the top level of Maslow’s Heirarchy look like? “Workers of the world, unite! You have nothing to lose but your ennui!”

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  4. Doctor Jay: My argument against inequality is that societies tend to stop functioning if there’s too much inequality.

    Research making this claim tends to hinge on conflating societies that have high income inequality because of corruption with those that have high income inequality because they don’t have European levels of redistribution.

    I’ll see if I can dig it up, but there was a recent paper that examined this issue and concluded that only the former kind of inequality was the kind associated with societal breakdown; an obvious implication of this is that high income inequality ca may be a symptom, rather than a cause, of these problems.

    It’s worth keeping in mind that Singapore is arguably one of the best-functioning societies in the world, and also has the highest post-tax income inequality of any wealthy nation.

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      • Specifically by Northwestern European standards. Southern (including France) and especially Eastern Europe have a fair degree of corruption. Anyway, this is tangential to my point, which is that the evidence for income inequality being a cause of societal breakdown is weak.

        Also, note that pre-tax income inequality in the US is on par with most other European countries. It’s just that the US isn’t quite so aggressive in its war on incentives.

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  5. America is comprised of two groups, who now barely tolerate each other, each living in their own bubble. The civil war is in it’s infancy. Be assured though, we’ll get there soon enough.

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  6. What if people are revolting in the name of democratic governance? It’s possible that by 2024, the US will have gone through six election cycles in a row where Dems win the majority of votes but still lose the elections.
    The GOP will just shrug, but at a certain point people lose patience. The UK faced a comparable situation in the early 19th century. A series of riots and political tulment eventually led to the Reform Acts.
    Maybe my dark scenario won’t come to pass, but in the meanwhile I’m sharpening my pitchfork.

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      • There’s a continuum between civil disobedience on the one hand, and violent revolution on the other. For example, political turbulence and rioting fall between those extremes… and without them the UK wouldn’t have the Reform Acts and the US wouldn’t have the Civil Rights Acts.
        Hopefully, these past two elections have been anomalies. But if D/democratic majorities win election after election but never gain power, then the argument at the heart of the OP falls apart: “it is rarely virtuous in a system that has a rule of law and a republican form of government.” If our republic is no longer able to express the democratic will of the people, then the people will seek extra-legal recourse, even if short of revolution.

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        • The major rioting in the 1960s did not start until after the Civil Rights Act was passed. The Civil Rights Act was passed in 1964. Watts did not occur until 1965. The other rioting occurred later.

          The Civil Rights Act was passed because of a combination of mourning for Kennedy (Johnson vowed that we needed to pass Kennedy’s civil rights legislation to honor his assassination), the nation being shocked by violence being used against peaceful protestors especially during MLK’s March (the violence was so bad that a Texan Senator, Yarborough, felt the need to chastise Alabama on national Television), and LBJ/Humphrey’s parliamentary magic/bullying. Even then it faced massive resistance from Southerners.

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        • Where it falls depends on whether you are a first world or third world country. If you are a first world country you treat it as just little bourgeoisie kids getting u to a little hijinks while if it happens in Egypt or Thailand, it is on the brink of political collapse and is in a constitutional crisis

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    • The GOP has less incentive to agree to reforming the system. They are both more advantages by the current system than the Torys were and are less ideological. Reform for the Republicans means not only losing power but a failure of their ideological vision.

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  7. Great article, delightfully circular (I’m not saying that sarcastically). Yes, “if the masses are sufficiently immiserated they’ll lynch you and take your stuff.” isn’t a moral argument but it is extremely true anyhow.

    Historically the elites dealt with this practical problem a number of ways:
    -You hire a portion of the masses to cow the rest. That works pushes up the amount of immiseration the masses need to lynch you but it cannot prevent it.
    -They try and run away from them. Doesn’t work, the masses are also where the wealth is. Without the masses wealth is just a useless heap of paper, electrons, metals or minerals. Anywhere where being rich is worth the time of day has masses.
    -They use non-authoritarian legal structures to govern society thus creating non-lynching means of responding to immiseration. Very useful and has large stability benefits that redounds to wealth creation but also makes it easier for the masses to take your stuff. You’d have an electoral route against the rich party long at a much lower level of mass misery than you would before those people would pick up arms and start stringing up the elite from lamp posts.
    -You make the masses less miserable, from noblesse oblige to safety nets they suck it up and contribute to general welfare. Probably the most effective and has huge side benefits.

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    • What you’re talking about is the logic of the Stationary Bandit (Mancur Olson). The S(o)B’s desire to extort the proles for everything it can get runs right up against the power of the proles to disrupt the S(o)B’s long term interests. So over time, purely pragmatic concerns are realized as expressions of moral/value concerns: the proles get more stuff including rights protections, the franchise, mechanisms for redress of grievances, even minimal subsidies to keep them fat and happy (… just a figure of speech…).

      I’ve mentioned this theory before and got Buelered every time. But it’s a good theory.

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        • Here’s a bit you might find interesting:

          “Thus government for groups larger than tribes normally arises, not because of social contracts or voluntary transactions of any kind, but rather because of rational self-interest among those who can organize the greatest capacity for violence. These violent entrepreneurs naturally do not call themselves bandits but, on the contrary, give themselves and their descendants exalted titles. They sometimes even claim to rule by divine right. Since history is written by the winners, the origins of ruling dynasties are, of course, conventionally explained in terms of lofty motives rather than by self-interest…”

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          • Now, with that bit in mind, I re-read the Declaration of Independence.

            Reads completely differently.
            You notice a lot more of the “we’re splitting off from you because you won’t let us tell people how to live!” parts.

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            • Indeed. People misunderstand the Declaration of Independence pretty badly, assuming it wants ‘freedom’. It doesn’t want freedom for people, it wants *independence*. By which they mean the government of the US, the thing they are in control of, should be *independent* of England…so they can actually pass their own laws.

              The first three grievances are literally ‘We need laws here and the government refuses to pass them!’:

              He has refused his Assent to Laws, the most wholesome and necessary for the public good.

              He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

              He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

              The *next three* grievances are ‘He has made it hard for legislation to meet, and keeps dissolving them and not electing new one so we can’t even *try* to pass laws.’

              He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.

              He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

              He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

              That is the *first six* complaints. Other random complaints under the category of ‘We can’t make our own laws’:

              He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.

              He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

              For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies:

              For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:

              For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

              That is *11* complaints about ‘not able to make laws’. Eleven. And there are others that are borderline but I choose not to include, like I think the line about judges is something to do with that.

              Number of complaints about raising taxes without their consent? One. Quartering troops? One. Fair trials? Three, one complaint Americans not getting them, one complaint about transporting Americans back to England for trials, and one complaint about English soldiers not being subject to trials.

              There is only *one* general topic of complaint that comes close to the *11* complaints about not being able to make laws, and that is, ‘Running around with troops murdering people…’ And under the *most liberal interpretation* of complaints falling under that topic, there are only *nine* instances of those!

              Yes, people writing the Declaration of Independence were slightly more pissed about their inability to make and enforce *their own laws* than about *English troops wandering around murdering people and burning down towns*.

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              • For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies:

                This one is my favourite, because its actually about granting concessions to the recently conquered population of Quebec and removing the post-conquest system that was grossly to the benefit of the handful American English people that moved there rather than the conquered inhabitants used to a different system.

                They’re dressing up the compliant to make it sound better, but it basically amounts to taking issue with the Crown not oppressing other people to their benefit.

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                • I knew that had to be talking about Canada, but I couldn’t figure out what, exactly, their problem with Canada’s government was…especially considering they invited it to join the US shortly thereafter in the Articles of Confederation.(1)
                  This one is also pretty ball-ish, for two reasons:
                  He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

                  Sure, the *English* are the only reasons the natives might be a bit pissed at you guys. Spoiler alert: Native Americans will continue to pissed at the ‘colonies’ long after the English are gone. You guys are in for a long cycle of constantly having pissed native populations at your borders, because, uh, you keep making treaties and then ignoring them.

                  But, almost unnoticed in that, is the first part, where a domestic insurrection literally in the process of throwing off a government…blames that government for inciting domestic insurrections!

                  I can just imagine how that conversation went: You are right! The English are inciting insurrections against *our* state governments! Citizens attempting to replace their government is totally unacceptable, and we need to remember to tell the English that. But first, let me get down the begin bit. What was it? Ah, yes, ‘When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another…’

                  1) Which people know if they’ve ever heard the obscure ‘Canada can join the US without the consent of Congress if they sign the Articles of Confederation and then can sign the US Constitution just like the original 13 states’ theory I occasionally semi-seriously bring up.

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              • Yes, people writing the Declaration of Independence were slightly more pissed about their inability to make and enforce *their own laws* than about *English troops wandering around murdering people and burning down towns*.

                Burning down towns was a rarity and perhaps only a problem in theory. Being abused by foreign laws was a constant.

                A husband and wife can talk about, and fight about, small things with great frequency. That doesn’t mean rarer, more important, things are unimportant. If one of them cheats then it’s war even if it’s not mentioned in the 50 previous fights.

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                • My point is that everyone seems to have a weird misunderstanding of the problems the ‘Americans’ were having with the English.

                  It was not high taxes and it was not unjust laws. And it wasn’t ‘English troops keep killing people’, because that obvious was an *result* of the colonists continuing to rebel, and not the original reason for the rebellion.

                  The actual, original dispute was ‘We, as Englishmen, have the right to operate our colonies as we see fit as laid out in our charters and our rights under English law.’

                  And it’s the reason I put ‘Americans’ in quotes above. Americans did not rebel from England…*Englishmen* did. I don’t mean that in some weird technical sense, I mean that was entirely what they considered themselves to be, and most of their grievances was borne out of the fact they weren’t being treated as how they thought Englishmen should be treated!

                  We have built this giant mythos out of *freedom*, and completely ignored the fact the entire premise for the split from the English is clearly spelled out in the Declaration of Independence, where the word ‘freedom’ is not mentioned.

                  And the word ‘free’ is, hilariously, mentioned exactly once…in regard to a ‘free System of *English* laws’ that used to exist in a neighboring providence and was taken away there, and they are worried *might be taken away from them*. (I.e, they implicitly state they are currently living under something they would describe as a ‘free English system of laws’)

                  They wanted *separation* from England, and the ability to operate *their own* government. (Or, really, their own *governments*.) They don’t want ‘freedom’…or, if they do, it is for their governments to be free of England.

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                  • The actual, original dispute was ‘We, as Englishmen, have the right to operate our colonies as we see fit as laid out in our charters and our rights under English law.’

                    True, but this only became a problem because the English decided that the colonies would be run for the economic benefit of the English.

                    Look at the laws the English were passing (the Stamp act, the Tea act), and they always come back to taxes (lots of them) for England without any political representation by the colonies so they could oppose the passing of those laws.

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                    • True, but this only became a problem because the English decided that the colonies would be run for the economic benefit of the English.

                      That’s sorta buying into one side of a reasonable political debate.

                      The colonies had, for decades, been a drain on England. Then England fought a war, and was in huge debt. During the war, Americans had ‘paid taxes’ in the form of raising militias and sending them to fight, which everyone accepted because it kept England from having to pay more soldiers.

                      Then the war ended, and no one needed those militias.

                      Asking the colonies to contribute to the funding of themselves was not totally irrational, and in fact the Townsend act was specifically designed to *directly* go to paying for things in *America*, in hopes that would be more acceptable.

                      The problem wasn’t the taxes per se, it was how they were raised.

                      Look at the laws the English were passing (the Stamp act, the Tea act), and they always come back to taxes (lots of them) for England without any political representation by the colonies so they could oppose the passing of those laws.

                      Sorta. Kinda.

                      The Tea act, for the record, didn’t actually impose any new taxes on Americans. The tea was already taxed, in fact, it was one of the few things still taxed. (Under the Townstead act, passed in the wake of the Stamp act a decade earlier, as you mentioned.) The Tea act was just a thing that resulted in a lot of tea being sold in America.

                      Americans were actually serious about the political representation thing, which is something England Parliament never seemed to understand. As the debates about the Stamp act quickly proved, it turned out that Americans mostly regarded their own colony’s government *as* their version of Parliament.

                      But the thing is that Americans, and the English, never objected to the Crown demanding Parliament raise various monies. If the crown had shown up (Or, rather, the colony’s governors, who represented the crown) and told the colonial legislature ‘this colony must raise X dollars’, well, there obviously would be some objection (No one likes taxes), but nowhere near as much. That’s how the English government worked.

                      In fact, that was basically how everyone in America thought the system already did work, until Parliament passed a law otherwise, and then *continued* to keep passing those sorts of laws over everyone’s objections because they wanted to establish the exact opposite principle.

                      This was all done for really no reason at all except one guy, Townsend, thought it was a good plan to generally expand tax revenue. And he didn’t understand the American objection wasn’t ‘a tax on people’ and thought they could safely tax *imports*…despite the fact Americans kept trying to make it clear that American objections were *Parliament setting the form of taxes*, period.

                      If England had shown up saying ‘We are no longer subsiding certain things, please fund them yourself’, the legislatures would have been ‘Well, that seems fair. Now to figure out what should we tax for this…’ If the English had just *treated legislatures as governments*, the taxes would have been completely fine.

                      Instead of understanding this, or backing off, Parliament then proceeded to try to dissolve American legislatures when those legislatures complained. Which was really, really stupid.

                      Anyway, my point is that a lot of people have walked away with vague knowledge that the American Revolution was about ‘taxes’ and ‘freedom’. It’s not. Not really.

                      It wasn’t even really about taxation without representation, or at least not how people are parsing that. The English never had any sort of right to chose their *level* of taxation, and no one in the colonies was complaining the taxes were *too much*…the taxes were actually pretty damn low.

                      The debate in America was literally about what level of ‘government’ had the right to collect these taxes, and then the fact that the English government not only completely ignored the colony legislatures, but then ignore petitions from them and tried to dissolve them…mostly not out of political malice, but because it had no idea what the hell it was doing or why or how anyone America would react or *had already been reacting for months*.

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                      • A lot of your post I agree with.

                        That’s sorta buying into one side of a reasonable political debate…

                        One of the problems was there was no “reasonable political debate”. England decided on how to raise the money, and how much money to raise, and if it was politically painful for the colonies then that was just tough.

                        Calling it dispute of which level of government was increasing the taxes is correct but minimizes the problem(s). England was set on informing the colonies they were far, far less than “real” citizens. They don’t get a parliament or anything like it, they got orders like you’d give your slaves orders.

                        In politics optics are often reality, and the optics of repeatedly grinding home that people are serfs was pretty ugly.

                        So yes, it becomes about “freedom”, and it also about “taxes” because that was how the crown kept driving the point home. It’s possible there were less politically painful ways to raise the money, it’s possible there wasn’t, but none of that mattered because the crown figured the colonies not only didn’t but shouldn’t have a voice.

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    • Another option: You come up with dividing issues from preventing the masses/working classes from banding together.

      I think Erik Loomis is essentially right here. You can’t view Labor History in the United States without dealing with race. This goes beyond Jay Gould’s boost that he could put one half the working class against the other. LBJ’s famous quote that the lowest white man would basically let you rob him, nay he would empty his pockets for you, if you let him look down upon people of color is right here as well.

      Unionization has done worse in the South than any other part of the United States. Unionization did best in areas where working class jobs were controlled by what used to be called “white ethnics” (who weren’t considered white back in the day) and minorities. Some unions were more minority friendly than others. Walter Reuther was committed to making the UAW an integrated union. The building trade unions are still dodged by horrible and exclusionary racism. Other successful unions were almost exclusively minority like the Brotherhood of Sleeping Car Porters and the United Farm Workers.

      So there does seem to be a racial angle.

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      • North addresses this with point one. “You hire a portion of the masses to cow the rest.” What your describing is a variant of the above strategy. I also do not necessarily believe in a top down origin for racism as a means to divide the working class. Xenophobia is as old as human history. Racism is a variety of xenophobia.

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      • Ehhh… that kind of division is good for marginal stuff but you can’t fool the masses whe misery gets bad enough. It may be unpopular to observe it but modern American politics are probably so divisive and rancorous because the stakes are so low (historically speaking).

        As to racism, that bane is as old as the genes in our bodies; maybe older. It predates econonomic elitism by millions of years.

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              • Really, you know that for a fact?

                Heh. This is funny, notme. Do you know what a counterfactual is? Your response certainly doesn’t make you sound clever.

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              • The primary, really only fig leaf of a justification, the GOP (and you) has ever offered for their stonewalling of Merrick Garland was that the Dems would have done the same were their rolls reversed (and to cite a powerless comment Joe Biden made that the Dems never acted on to try and back it up) so for you to be complaining about counterfactuals is enormously amusing.

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                  • Biden commented on that conversationally, sure, but it’s no defense for the GOP since it was never the official or acted upon position of Biden’s party.

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                • (and to cite a powerless comment Joe Biden made that the Dems never acted on to try and back it up)

                  Powerless comment? Biden was *the* guy who could act on that comment given the opportunity. He wasn’t talking about what *should* be done, he was talking about what he, *himself*, was going to do with the full support of the rest of the party.

                  The Dems would have claimed (correctly) that his words were the “fair warning” of a policy shift.

                  And what’s more Joe was pointing out obvious political realities. No Senator wants to face the voters with a vote to help an unpopular opposition President (that he was elected to stop) tilt the court against the will of the people who elected that Senator.

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            • If Gore had won, the entire GOP would have instantly clamored for his impeachment.

              I’m not sure which part of history you’re trying to rewrite. A President Gore, with a legit victory, would have been President. My expectation is that a President Gore would have declared war after 911 and we would have gone into Afghanistan. My expectation is that Congress would have backed him.

              There were people who actually thought Bush stole the election (ignoring that Bush won every Florida count and by the time the Supremes stepped in, Gore literally had no path to victory).

              And all that went away after 911.

              Similarly if North Korea nukes California, my expectation is that the Dems instantly forget and forgive everything Trump did or said to get elected.

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          • Well no, but if things get bad enough we would be. And being as this is a democratic republic things don’t have to get very bad at all before every politician will be facing the electoral equivalent.

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  8. he appears to place the burden of its cessation on the people (single person, it later turned out) not shooting police officers.

    I’ve never shot a police officer, so that must have been me. It’s a big responsibility.

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  9. We should resist the notion of romanticizing it, or attempting to justify it.

    We probably should.

    We really, really, really don’t.

    The Declaration of Independence was written to justify unlawful political violence, and it’s taught as a secular creed to kindergartners. It’s almost–almost–weird that we don’t see more of this on a day to day basis. Instead we’re a nation where self-described members of the “Tea Party” will expound on the illegitimacy of breaking Starbucks’ windows, and punching a Nazi in the face for being a Nazi is viewed as a minor crisis, worthy, at least, of a thousand think pieces and ten million navel-gazing Tweets.

    All of the above may be kind of silly and hypocritical, but it’s (usually) much better than the alternative.

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    • “The Declaration of Independence was written to justify unlawful political violence,”

      Justify unlawful? I take it ‘lawful’ as in the crown’s law because I wouldn’t agree that it holds in rule of law.

      Lil, we was raised on rebellion:

      1676 Bacon’s Rebellion
      1776 American Revolution
      1786 Shays’ Rebellion
      1791 Whiskey Rebellion
      1861 American Civil War

      Who teaches to fear and love the Leviathan?

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      • Justify unlawful? I take it ‘lawful’ as in the crown’s law because I wouldn’t agree that it holds in rule of law.

        A lot of people wouldn’t. But that’s my point–we were raised on rebellion, and as such still tend to revere it.

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            • Injustice is a individual construct, and who makes the assumptions on how patient a patient man should be? Who owns social objectivity to pin it to a particular standard?

              Is a society that tolerates subjective injustice worthy of peace?

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              • Injustice is a individual construct, and who makes the assumptions on how patient a patient man should be?

                I think everybody makes their own set of assumptions about that, and it’s very common for people to make a set of assumptions that clash with their profession of, and reverence for, the revolutionary creed this nation was founded on. I think on balance this is probably a good thing—better than many obvious alternatives—but it sure is a thing.

                If unanimous agreement about justice is required for peace, peace may be a virtual impossibility. Then again, our standards for peace are pretty low, as shown by the subthread about incarceration, so maybe it’s not that important after all.

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      • 1676 Bacon’s Rebellion (snip)

        You’re covering 350 years. Do that in any country in the world and I’ve a feeling it will look pretty bloody and “revolutionary”.

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          • Why is this repeating theme happening?

            This “repeating theme” is happening because a nasty war (internal or external) every few decades is Normal. The idea that it’s Not supposed to happen is a modern invention.

            Take this long a view of history and it happens everywhere in the world. The wiki page for France’s wars over the same time period is too large to quote.

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  10. The best data I have seen on the issue shows that crime has dropped significantly in the US and gone up dramatically in many of the most developed parts of Europe. Violent crime is now higher across the Atlantic.

    https://www.researchgate.net/profile/Paolo_Buonanno/publication/227353803_Crime_in_Europe_and_the_United_States_Dissecting_the_%27reversal_of_misfortunes%27/links/576fe64908ae6219474878aa/Crime-in-Europe-and-the-United-States-Dissecting-the-reversal-of-misfortunes.pdf?origin=publication_detail

    Here is a summary:

    “In 1970 the aggregate crime rate in the seven European countries we consider was 63% of the corresponding US figure, but by 2007 it was 85% higher than in the US. This striking reversal results from a steady increase in the total crime rate in Europe during the last 40 years, and the decline in the US rate after 1990. The reversal of misfortunes is also observed for property and violent crimes.

    These pictures reveal a substantial divergence between crime trends in Europe and the US. Apparently, the American experience is a story of success in crime control when compared to what happened on the other side of the Atlantic. This makes a cross-country investigation of the determinants of crime rates an interesting research question: although the US and Europe have different social and economic structures, it is natural to ask whether the different dynamics of the crime rates in the two areas can be explained by the different dynamics of the factors emphasized by the economics of crime.”

    I agree with the above commentors that most people in our prisons belong in prisons, and will add that putting them in prisons is in general a good thing, and that in places such as the south side of Chicago (my metro area) that significantly more criminals should be in jail than currently are. Violence and crime are not excusable.

    I am all for prisons which focus more on education and value reformation than on punishment per se. But murderers and thieves should not be allowed to poison communities.

    Poverty and crime are certainly correlated, but the former isn’t so much causing the latter as much as bad culture and dysfunctional world views leads to both. The US has some extremely dysfunctional sub cultures along side some extremely creative and productive sub cultures. The best and worst.

    Here is a profile from a local magazine on one of the worst…

    http://www.chicagomag.com/Chicago-Magazine/October-2016/Chicago-Gangs/

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