When they say: “I am just,” it always soundeth like: “I am just—revenged!” With their virtues they want to scratch out the eyes of their enemies; and they elevate themselves only that they may lower others. –Friedrich Wilhelm Nietzsche, Thus Spake Zarathrustra
As I was judging high school students debating over Resolved: Rehabilitation ought to be valued above retribution in the United States criminal justice system yesterday, my Twitter feed was filling up with reminders of how dangerous the state can be when it is allowed to pursue retribution.
On January 11 of this year, Aaron Swartz committed suicide at age 26. You may not have heard of him. He was one of the guys who wrote the RSS computer standard for publishing and subscribing to content on the Internet. He was one of the original developers of Reddit. He was fundamental to establishing the Creative Commons licensing for sharing work on the Internet, and instrumental in blocking the Copyright Cartel’s attempt to lock down the Internet with the SOPA and PIPA legislation by directly working with people like Oregon’s own Senator Wyden.
Cory Doctorow, co-editor of BoingBoing, recalls Aaron’s dedication to our liberties:
At one point, he singlehandedly liberated 20 percent of US law. PACER, the system that gives Americans access to their own (public domain) case-law, charged a fee for each such access. After activists built RECAP (which allowed its users to put any caselaw they paid for into a free/public repository), Aaron spent a small fortune fetching a titanic amount of data and putting it into the public domain. The feds hated this. They smeared him, the FBI investigated him, and for a while, it looked like he’d be on the pointy end of some bad legal stuff, but he escaped it all, and emerged triumphant.
But then he annoyed some people by downloading academic articles — which he had the right to download — too voraciously over MIT’s powerful Internet connection. And even though the corporation holding the articles, JSTOR, dropped charges, and even though MIT wasn’t actively pressing charges, the prosecutor in the case decided that they had enough to continue pursuing the case to exact retribution from Aaron in the form of a 30-50 year prison sentence.
This morning, a lot of people are speculating that Aaron killed himself because he was worried about doing time. That might be so. Imprisonment is one of my most visceral terrors, and it’s at least credible that fear of losing his liberty, of being subjected to violence (and perhaps sexual violence) in prison, was what drove Aaron to take this step.
But even without the actuality of prison, Kafka-esque state sponsored harassment is a horrible thing.
Aaron’s death is not simply a personal tragedy. It is the product of a criminal justice system rife with intimidation and prosecutorial overreach. Decisions made by officials in the Massachusetts U.S. Attorney’s office and at MIT contributed to his death. The US Attorney’s office pursued an exceptionally harsh array of charges, carrying potentially over 30 years in prison, to punish an alleged crime that had no victims.
What made me so overwhelmingly angry yesterday was the same thing that has been boiling in my gut for the last two years. When the federal government went after him – and MIT sheepishly played along – they weren’t treating him as a person who may or may not have done something stupid… It… had nothing to do with justice and everything to do with a broader battle over systemic power… They used their power to silence him and publicly condemn him even before the trial even began.
Lawrence Lessig, lawyer and Harvard professor summarizes the shamefulness of the situation thusly:
A kid genius. A soul, a conscience … gone today, driven to the edge by what a decent society would only call bullying.
How did we find ourselves here? With countless people being advised to plead guilty rather than face a jury who’s been watching variations of the Law & Order franchise consistently arrest the correct people for over a decade, I think we’ve lost our Presumption Of Innocence. But that presumption of innocence, that humility that the police or the prosecutor might be missing one or two very important facts when they’re pursuing a case, is the only thing that stands between people like us and the unleashed power of the state demanding retribution for crimes we’re not even sure we committed. When the prosecution is allowed to value retribution as a ready-or-preferable alternative to rehabilitation of a human, then people — not yet proven guilty of anything in a court of law — become dehumanized targets for the extraction of recompense, as Aaron Swartz tragically was. So that’s why I value the presumption of innocence, and want our police and prosecutors and other such public servants to value the presumption of innocence as well.
Overall, I’d suggest weighing this debate in terms of Due Process of Law — which is relevant to our overall criminal justice system that is also supposed to start with a presumption of innocence. If the negative can get to retribution within our due process of law, then God bless ’em, but deviating outside of the due process of law means that they’re also deviating outside of our criminal justice system.
But our criminal justice system has become deviant. It’s not just Aaron being driven to suicide. You see, we’ve also got this creative legal policy of Asset Forfeiture and
Asset Forfeiture values retribution and assumes guilt. One of the stranger sounding things that our criminal justice system does is to arrest stuff for being involved in a crime. This may seem sensible when impounding cars and assault weapons involved in drug trafficking, but when police impound your iPhone for pausing to take a video of their questionable behavior — more on that in a moment — you’ll feel a bit differently about it.
“Even if you’re a law-abiding citizen who’s never been convicted of a crime, local police are allowed to confiscate your property and money and keep up to 80 percent of it for themselves, with the legal stipulation that this windfall be spent only on programs likely to result in additional confiscations where the police can keep up to 80 percent of the booty for themselves,” wrote Jennifer Abel in an October, 2007, article published by the Hartford Advocate. [More information available at http://www.fear.org/]
Put another way, the focus on retribution and recompense to ensure law and order has done away with the presumption of innocence, short circuiting our 4th amendment rights out of existence and violating due process of law.
But I’m more concerned about the human costs. Because while I could talk about the hundreds of articles Google turns up when searching for “police video phone confiscate” — indicating that police were shooting people in Texas, California, Connecticut, Massachusetts, Washington DC, et cetera, and then destroying the digital witnesses, I’d prefer to make the larger point that
Belief in retribution justifies excessive force and police brutality. After all, police wouldn’t be seizing and destroying the photos and videos if they didn’t feel justified in their actions by their line of duty, but let’s look at a more recent onerous example: the pepper-spraying of sit-in demonstrators at UC Davis in November 2011. (See also report. See also pepper spray info.)
Visual Aids (from KnowYourMeme):
Here again we see not a presumption of innocence, but rather a cause-and-effect attitude: if you make the police feel antagonized, then they will exact retribution from you by making you feel antagonized. There is a fundamental belief here, grounded in the valuing of retribution, that Those People must be guilty of something for the policeman to have been provoked into using chemical weapons against them. But this is the antithesis of the presumption of innocence: instead of viewing these people as intransigents that need to be dispersed, an institutional value of rehabilitation fosters the presumption of innocence allowing us to look at the very human concerns which have lead them to their course of action involving belligerently sitting on the sidewalk, the criminality of which was TBD. And it’s not just students in California: police are tasering grandmas in Texas and Oklahoma, and students in New Mexico and Florida, as documented by Stephen Coleman [it’s at 14:15 – 15:52] who also notes that when pepper spray was first introduced to Australian police, the number of police-involved shooting deaths — 6 — did not decline year-over-year, but there were quite suddenly 2226 uses of pepper spray.
Rather than pursuing a goal of rehabilitating these people, police are pursuing an agenda of forcefully disabling these offenders — exacting retribution for the difficulties they caused. And when the police brutality lawsuits follow, it’s the taxpaying citizens who have the tab passed on to them.
I will be unsurprised to hear when a wrongful death lawsuit is filed against the prosecutor in the Aaron Swartz case. But that’s not really the point. The point is that “We need” — in Dr. Lessig’s words — “to get beyond the “I’m right so I’m right to nuke you” ethics that dominates our time.” And that starts by having the front lines in our criminal justice system remembering that they’re supposed to presume people to be innocent until proven guilty in a court of law, a stance that cannot be taken without strictly valuing the rehabilitation of the person above the potential for some dubiously felt retribution against a convicted criminal.