The Political, Contested Thing of Crime and Consequences

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Don Zeko

Don Zeko is the paper-thin pseudonym of a public defender living in North Carolina. Professional interests include criminal law, trial advocacy, and evidence, while unprofessional interests include overthinking pop culture, eagerly awaiting new fantasy novels, holding strong opinions about board games, and trying to convince the two sides of the barbeque wars to bury the hatchet. I also tweet at @Don_Zeko

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93 Responses

  1. Avatar Michael Drew
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    says:

    Why does the federal government and New York State get seemingly as much time as it would have taken to arrive at your preferred charging approach, but you give Mike Freeman maybe less than 24 hours to get (what need to be the correct) charges filed before you record for posterity your insinuation that chargers were filed only because protests commenced?

    It didn’t take a local’s awareness of the Minnesota news scene to know that charges were absolutely certain from the moment the video surfaced. The County Attorney’s Office *should* take the time needed to get the charges right. Meanwhile, there is absolutely no reason that protest over Chauvin’s act shouldn’t have commenced immediately. It was a heinous act. And it was right for them to demand charges immediately. But charges were immediately forthcoming. To suggest that the County Attorney filed charges at only because he was pressured to do so by protests

    The premise of your piece is also risible. You equate the criminal justice system’s treatment of these educated, privileged attorneys with the treatment it gives to the downtrodden masses, which in turn you *contrast* to other sets of elites you are less personally or politically sympathetic to. The fact that they were protesting on their behalf doesn’t make them of that class. When the system doesn’t treat elites harshly you, rightly, have a problem because of racial and class inequality. When it does treat elites harshly you also have a problem because it turns out you actually just pick and choose sympathetic and unsympathetic defendants from both classes and pursue partial justice. That’s apparently, like, your thing.Report

  2. Avatar InMD
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    says:

    I dunno man. I agree with much of your point to the extent it applies to the way in which criminal law is enforced. But there’s also a lot of conflating of malum in se and malum prohibitum going on here. They’re two separate issues.

    Now I don’t think 30 years or whatever the guidelines could get these lawyers is the right sentence. But crafting an illegal incendiary device and attempting to use it on someone else’s property, not to mention giving it to others for similar purposes, ain’t the same as getting caught with outlawed contraband, the illegality of which is much more arbitrary.Report

    • Avatar George Turner in reply to InMD
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      says:

      The street value on that 2/3rds kilo of “outlawed contraband” was, in current dollars, possibly somewhere around $125,000. Miami Vice had an episode with Willie Nelson where the MacGuffin of cocaine sought by the drug lord and his cartel hit men wasn’t much larger than that.Report

  3. Avatar Rufus F.
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    says:

    I was mostly struck by how naive their actions were. I don’t go to a lot of protests, but it seems clear by now that, if you come across a cop car “abandonned” in a protest zone, DO NOT TOUCH IT. Also don’t do interviews before the fact about the use of violence in fostering change. But, yeah, like you said, they might well have expected far lesser punishmentsReport

    • Avatar LeeEsq in reply to Rufus F.
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      says:

      A certain amount of naivety or belief that doing things that are obviously going to get you in trouble seems to be a requirement for protest activity in democracies. Otherwise, people would just be pragmatic and practical and never protest against anything because they might get into trouble.Report

      • Avatar Rufus F. in reply to LeeEsq
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        says:

        Right, but this reminds me of Orwell’s observation that revolutions will be led by the upper middle class because the working classes don’t feel they’re entitled to take charge of anything. I can imagine- and have!- going to marches and chanting and carrying signs. Burning a decoy cop car? I just would assume it was being filmed and I’d wind up in jail.Report

  4. Avatar Philip H
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    says:

    In North Carolina, where I practice, it is a felony for an employee to take any amount of money from their employer. But if an employer illegally withholds wages from an employee, that is a matter for a class-action settlement that includes no admission of wrongdoing. People are routinely charged with murder in the county where I work for selling heroin to someone who later overdosed, yet the Sackler family only faces civil lawsuits for actions that have undoubtably caused thousands of overdose deaths. That’s why Ronald Harmelin is still in prison for possessing cocaine, but the Coca Cola Corporation is a multi-billion dollar business.

    You should have just posted this as your TL:DR. That paragraph is all you really need to know about the inherent inequity in criminal “justice.”Report

  5. Avatar Jaybird
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    says:

    One of the things I didn’t know about Rahman and Mattis was that they didn’t only percussively protest the police car, they also created improvised first amendment bottles and handed them out to associates.

    I might agree that disagreeing with the police car deserves a very small charge… but giving other people the means to disagree incendiarily? That will have a larger charge attached to it.

    (As for Ronald Harmelin, somebody flipped on him. Those cops were *TOLD* to be there to bust him. Had he gone into a Wendy’s drive-thru, ordered a Frosty, and had that be the staging area from where he turned around, they would have found that he failed to use a turn signal or something.)Report

  6. Avatar Chip Daniels
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    says:

    Its like my comment the other day about how the entire machinery and architecture of the criminal justice system is designed specifically to handle the sorts of harms that only weak and powerless people do, while ignoring the harms that the rich and powerful do.
    911 responds to the thief who snatches a $20 bill from my hand, but won’t respond to the thief snatching $20 from a million people.

    And it’s more than that. When you are rich and powerful, you actually get to write the laws under which you operate, and choose your own system of justice.Report

    • Avatar Saul Degraw in reply to Chip Daniels
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      says:

      Steven Banon was arrested yesterday for snatching millions of dollars from marks. It might be rarer than it should be but it is not unheard of.Report

      • Avatar Oscar Gordon in reply to Saul Degraw
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        Yeah, but no one kneeled on his neck for almost 8 minutes.Report

      • Avatar DavidTC in reply to Saul Degraw
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        says:

        While we don’t entirely know the specifics yet, it is entirely possible that Bannon defrauded the wrong right-wing millionaire.

        Incidentally, if there ever was _actually_ someone who shouldn’t be given bond, it’s Steve Bannon, which not only has connections to money launderers, and is accused of making off with millions of dollars, and has connections to powerful people all over the world, but was _literally_ arrested from a fugitive billion’s yacht.

        Like, I don’t think a system of bond is a good idea at all, but if anyone in existence was likely to flee from justice, soshould be kept in jail until their court date, it’s people who live in realities like Steve Bannon, where autocrats in unextraditable countries are on his speed dial and his money is already entirely off-the-books both for tax evasion purposes and because half of it is stolen.

        He’s already out on 5m bond.

        Fun fact: He apparently didn’t even have to actually put up the $5m dollars…only $1.7m. I don’t know how that’s supposed to work…he’s promising he _will_ pay the rest if he doesn’t show up in court? Huh?Report

  7. Avatar Saul Degraw
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    says:

    I don’t think they should spend the rest of their lives in prison but their actions seem a bit naive and I bet the fact that both were lawyers is contributing to the heavy hand of prosecutors in the case.Report

  8. Avatar George Turner
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    says:

    Who wrote these crazy, harsh, and unfairly applied drug and crime laws? Oh, Joe Biden was the author? Well darn.

    Who didn’t write a single line of them? Donald Trump, who had been pardoning poor and minorities unfairly caught up in it and given unjustifiably harsh sentences.Report

  9. Avatar Aaron David
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    says:

    InMD gets to the heart of it. Is the act evil in itself? To others? To one’s self? Conflating the last two is a mistake and one that, in my eyes, is why we have mandatory minimums. In an overarching sense, people understand the difference between doing drugs (harm to self) and dealing drugs (harm to others) and while I might feel that both should be legal, many others feel that there is a continuum that needs to addressed.

    What is glossed over, and is a huge part of that continuum is the distribution of incendiary devices. This isn’t embezzling $5 nor an accounting error that shorts every employee $.0025 every paycheck. This is handing out and encouraging the means to burn people alive.

    To me, this piece makes me less sympathetic to the two lawyers’ cause.Report

  10. Avatar LTL FTC
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    says:

    Excellent article on how the Molotov-tossing lawyers are treated by sympathetic media as overexcited children and how the concept of an accused’s agency expands and contracts based on what we want the outcome to be:

    https://www.tabletmag.com/sections/news/articles/youth-social-justiceReport

    • Avatar Saul Degraw in reply to LTL FTC
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      Tablet is a very weird space which tries to go as far right as possible while not completely alienating the majority of American Jews who are liberal and vote Democratic. They are trying to be Jewish Quillete with occasional brushes of Jewish ONAN (Hi Liel Liebowitz) but then congratulate Joel Grey for coming out of the closet in his 80s.

      I think they should be punished. I think they should be disbarred. The fact that they are facing life in prison is clearly a political action and pressure from the cops who want to resist all reforms possible.Report

      • Avatar Jaybird in reply to Saul Degraw
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        says:

        When it comes to the whole “distribution of mostly peaceful bottles” thing, is that an exacerbator? Or is it just a distraction because the real issue is the burning the police car?Report

        • Avatar Saul Degraw in reply to Jaybird
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          says:

          That deserves additional sentencing. Not 30 to life. I think we over use life sentences or effective life sentences. Were those devices used? What is the evidence for their distribution?Report

          • Avatar Jaybird in reply to Saul Degraw
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            says:

            I’m one of the “maybe we should consider abolishing prison?” people on the board, Saul. I’m with you on life/effective life.

            As for whether the devices were used, well, the one that they made for themselves were.

            What is the evidence of their distribution? I don’t know whether we can trust the authorities on this but the evidence seems to come from the authorities. (The article mentions a picture of her doing so but a quick google didn’t find one of her obviously handing one out or accepting one back from someone that was giving it to her for safekeeping.)Report

            • Avatar Swami in reply to Jaybird
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              says:

              What would you replace prison with, Jaybird? What would you suggest we do with murderers, rapists, arsonists and fire bombers?Report

              • Avatar Jaybird in reply to Swami
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                says:

                The Death Penalty, Exile, or Flogging.Report

              • Avatar Stillwater in reply to Jaybird
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                says:

                All that, but after decriminalizing a bunch of stuff and instituting a restorative justice model for the rest.Report

              • Avatar Swami in reply to Stillwater
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                says:

                You guys are serious? I can get on board with decriminalizing a bunch of things, but I am assuming you guys are pulling my leg on the rest.Report

              • Avatar Stillwater in reply to Swami
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                says:

                OK.Report

              • Avatar Jaybird in reply to Swami
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                says:

                Swami, I just want to say that I really enjoyed the pivot from “oh, yeah? What do you softy pinkos want to do instead of prison?” to “Jesus Christ, you have got to be kidding.”

                You want to hear something crazy? I believe that Death Penalty for some stuff, Exile for others, and Flogging is *LESS* cruel than the current system. (And that’s *WITHOUT* bringing in Stillwater’s suggestion of a restorative justice model. With bringing it in, it seems somewhat obvious that it’s better than prison. Once you get past the “you’ve got to be kidding” thing, of course.)Report

              • Avatar Aaron David in reply to Jaybird
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                says:

                Ya know, Jaybird, prison is exile.Report

              • Avatar Jaybird in reply to Aaron David
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                says:

                No. It’s sequestration.

                (Exile is also sequestration. Free-range sequestration.)Report

              • Avatar Aaron David in reply to Jaybird
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                says:

                Potato – Potahto.

                The fundamental problem with Exile is that you are simply passing the buck. Moving the problem to someone else. Now, once upon a time that was cool, as the others that the exiled came into contact with would solve the problem quicker, and probably just kill the exiled out of hand (“not one of ours, no worries here!”) but in our interconnected world, that is much more of an issue.

                For an example of an intermediate version of this, the Boy Scouts of America used to keep an informal list of men who had become leaders in the group, but the actions of these men were “iffy” to say the least. Actions that the parents didn’t want their child associated with. So the Scouts exiled them. And often these men simply showed up somewhere else, in some other function. After school coach, youth minister, and such. So, what did it accomplish?

                No, our version of Exile, or banishment, sequestration whatever you want to call it, is prison/jail. And it comes with the bonus of redemption thru time (or it is supposed too in theory)

                None of this is to say that we don’t need massive prison reform. We do, and in some ways, it is more important than police reform. But, it is far, far lower on the list of progressive goals, and nowhere on any list of conservative goals that I have seen.Report

              • Avatar Aaron David in reply to Aaron David
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                says:

                P.S…

                Prison might actually be our version of Flogging also. It is just something that occurred to me, but that might be the reason we don’t see much action in the realm of prison reform. We subcontract out so much it just seems natural in western societies that someone else handles this, out of sight, but always in mind.Report

              • Avatar InMD in reply to Aaron David
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                says:

                Like policing, prisons and jails are primarily state and local, almost to the point that it’s hard to meaningfully talk about them as a singlular national issue even if everywhere is subject to certain trends. In my brief criminal defense days I ended up inside quite a few of them. They ran the gamut from (relatively) well run, minimum security federal facilities to high security state facilities to county lock ups that felt not too removed from dungeons.

                A lot of them are make-work programs for rural localities that end up deeply intertwined with local economies. They also tend to be managed by far away state administrative bureaucracies without a lot of oversight, in part because of incompetence but also because they’re dealing with complicated ‘no-win’ problems. It needs to be dealt with but it won’t be easy to untangle.Report

              • Avatar Aaron David in reply to InMD
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                says:

                Back when I was a kid, most states set their own drinking ages. But, with the creative use of federal highway funds, it was moved to 21 across the country. Now, I am of the opinion that was a stupid, illiberal waste of federal power, but to use such an action to help secure people’s civil rights and liberties?

                Now that is something I could get behind.Report

              • Avatar George Turner in reply to Aaron David
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                says:

                A Kentucky judge fairly recently banished a National Guardsmen who repeatedly violated a protective order against him. He’s no longer allowed anywhere in the state. The legal community laughed because it was possibly the first sentence of “banishment” in modern times. The judge’s reasoning was that his only problem was that he couldn’t seem to stay away from the one particular girl he was obsessed with, but he would be fine anywhere that couldn’t happen.

                There’s perhaps some parenting logic to it. If Bart won’t stop poking Maggie, Bart should ride in a different car.Report

              • Avatar Brandon Berg in reply to George Turner
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                says:

                Somewhere on his old personal blog, Will had a post about the informal use of state-level exile, where the state would have a warrant out for a person’s arrest, but wouldn’t expend any effort to extradite the offender from other states. Additionally, I’ve also overheard one instance of informal neighborhood-level exile, in which a cop told some guy that if he ever saw him in a particular area, he’d arrest him. I was just walking by, so I don’t have any context.

                The main logistical problem with national-level exile is that a criminal generally won’t have citizenship in any other country and, with a record containing an exile-class crime, probably wouldn’t be a good candidate for legal immigration into that country. You’d probably have to have an island dedicated to that purpose.Report

              • Avatar George Turner in reply to Brandon Berg
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                says:

                And that was just part of the genius of Trump’s idea of annexing Greenland! Let the stalkers and sexual predators get their jollies with a polar bear.Report

              • Avatar Jaybird in reply to Aaron David
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                says:

                Well, I’m not suggesting we exile sex abusers. But if someone is demanding a third option between the violent ones where a person is dead and a person is “merely” whipped? Hey, they can go elsewhere. Mexico is down there. Canada up there. China waaay yonder.

                “But what crimes would you use it for?”

                Well, try to imagine a crime that would deserve a prison sentence in The Current Year but wouldn’t be a death penalty one nor a flogging one that can’t also be addressed by restorative justice of some sort.

                And if you can’t imagine such a crime well… that’s what the other options are for.Report

              • Avatar Aaron David in reply to Jaybird
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                says:

                Honestly, Jay, I would put that proposal, getting rid of prisons/jails, in the same place that I would put getting rid of the police, a utopian ideal that allows us to stop thinking about real solutions to real issues. We saw this recently in Seattle, and it was worse than the action that predicated it.

                And while I agree wholeheartedly that we have way too many laws on the books that can lead to prison sentences, there are still actions, by both criminals and the state that are either too heinous for flogging, but too uncertain for execution. Think of every time a man who was locked up on a life sentence who is freed a la Hurrican Carter. Should he have been banished to Canada for rape? Mexico? Would we look into the case if he wasn’t somewhere in the system? I rather doubt that we would. And think of how that would play in Mexico and Canada? Hey, neighbor, let me dump my garbage in your yard.

                Prison sucks. Prison is awful. A friend of mine from high school did six on a nickel in Corcoran and it wasn’t fun for him in any way. But, he would take it in a heartbeat over exile, never to see his family or friends, and no chance of redemption.Report

              • Avatar George Turner in reply to Aaron David
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                says:

                “What we should do is just make crime illegal, and then the whole problem of prisons just goes away.” 🙂

                That kind of thinking is perhaps why we shouldn’t take advice from seven-year-olds seriously, or from current activists and politicians whose thinking is on that same level.Report

              • Avatar Dark Matter in reply to Jaybird
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                says:

                Once you get past the “you’ve got to be kidding” thing, of course.

                I don’t think we can get past that.

                A Ted Bundy or a Tony Soprano aren’t going to be acceptable anywhere so exile is out. They understand they’re predators and don’t care so restorative justice seems unlikely to help. Flogging them every week for the rest of their lives seems cruel.

                Fundamentally I don’t think this model works unless you’re able to get the death penalty to work. “Work” would mean “society is cool with the occasional innocent person being killed, the entire process taking a year and not 30, and using it for large numbers”.

                We have 200k people in prison for life. About 50k without any chance of parole. Only about 3k of that last group are for nonviolent crimes.Report

              • Avatar Jaybird in reply to Dark Matter
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                says:

                Fundamentally I don’t think this model works unless you’re able to get the death penalty to work. “Work” would mean “society is cool with the occasional innocent person being killed, the entire process taking a year and not 30, and using it for large numbers”.

                You’re right.

                But, I’d like to point out, we *WERE* okay with this at one point in our history. We were okay with hanging horse thieves!

                A Ted Bundy type is not going to be deterred by flogging, true. But a Tony Soprano would be (if my recollection of the show is correct).

                (And, remember, my goal is not “Utopia”. It’s “Better than what we got now.”)Report

              • Avatar Dark Matter in reply to Jaybird
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                says:

                A Ted Bundy type is not going to be deterred by flogging, true. But a Tony Soprano would be (if my recollection of the show is correct).

                He’s already cool with risking life in prison (how many years did he serve in the show?). Flogging would be something he bribes a Doctor for painkillers over and calls it a day.

                We were okay with hanging horse thieves!

                We were much poorer then. So poor that slavery was also used. The legal system and society in general has changed a lot.Report

              • Avatar Jaybird in reply to Dark Matter
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                My recollection of the Sopranos was that he didn’t go to jail? Paulie Walnuts did.

                That’s what we have google for. Oh, he did go to prison, but only for a month. It was the gun charge.

                Now, the last season had him looking at *SERIOUS* time, but the show ended before we saw what happened to him with that.Report

              • Avatar Dark Matter in reply to Jaybird
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                My recollection of the Sopranos was that he didn’t go to jail?

                Exactly. We go from threatening him with jail to threatening him with flogging. I don’t think he blinks at the treat, I even thing he doesn’t blink at carrying it out once or twice in his lifetime. He’s going to continue his thing until he’s either killed or imprisoned.

                Let’s envision what needs to happen for our society to live with widespread use of the death penalty.

                There needs to be unrealistically high trust of the police and the legal enforcement process. A lot of people put to death will be minorities. We’re going to need to look at that and not see that it’s racist.

                There needs to be unrealistically strong agreement on what the law is and what it should accomplish and how to evaluate it.

                There needs to be unrealistically high support for the death penalty. Four Supremes dislike it so much they’d claim in a heartbeat that it’s “unconstitutional”. They’re eager to find lots of ground where it can’t be used. That number has been hirer in the past and can be expected to be higher in the future. There’s an entire industry devoted to preventing the DP and insisting that every aspect of it be held to an unrealistically high bar.

                If your plan is to have wide spread use of the DP “because it will be better”, then you’re making evaluations based on what should happen rather than what will. If we’d had this set up 50 years ago then we’d currently be executing vast numbers of minority drug dealers.

                In order for there to be widespread use of the DP, one culture in our multi-cultural setup will need to win and dominate. IMHO we don’t get there without it being amazingly ugly both in getting there and in the reality.Report

              • Avatar Stillwater in reply to Dark Matter
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                This gets back to the question of what is prison for. Is it preventative, to keep the bad people from doing harm to good people? Is it a deterrent, to create a punishment sufficient to compel others to not engage in bad acts? Is it to balance the moral scales by imposing a level of suffering on perpetrators commensurate with the amount of suffering they’ve caused?

                In each case, it seems to me that the US prison system fails *except* in the last one. If the goal is to isolate bad actors who are beyond redemption, why not kill them? If the goal is to deter, then why do we have the highest prison rate in the world? If the goal is to take an eye for the eye, why not flogging?

                The premise justifying our current practices, one which people just reflexively assume without any thought, is the idea that locking people up – literally depriving them of their liberty by locking them in tiny rooms – is a “just” punishment for selling crack cocaine, or even for sexual assault or other capital crimes. People often argue that it’s more humane than now-rejected alternatives like public flogging. I find that argument monstrous, myself.

                And of course, none of these moral and practical considerations address the financial cost of imprisoning millions of people year after year.Report

              • Avatar InMD in reply to Stillwater
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                says:

                You’re answering your own question here I think. Prison is an attempt at a single, catch-all solution to what are really a multitude of distinct but at times overlapping problems.Report

              • Avatar Stillwater in reply to InMD
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                says:

                Sure. The topic, though, is whether there’s an alternative to prison which would satisfy those many purposes at least as well both practically and morally (and perhaps even financially!).Report

              • Avatar Stillwater in reply to InMD
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                says:

                Thinking about this a bit more, it seems to me that prisons (arguably!) fail to satisfy the best-case conditions which justify the practice, but there are worse-case arguments that can be made too, ones that are embedded in over-incarceration and the role prosecutors and financial incentives and so on play in our CJ system.Report

              • Avatar Swami in reply to Stillwater
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                says:

                I certainly agree that our prison system should be completely redesigned. I would try to do more with ankle bracelets, in-house detainment and most importantly, trying to do whatever is practical to keep prisoners away from each other. We seem to have created an apprenticeship system for felons.

                I am however a big fan of locking up career criminals. I would start compassionately and smarter but end hard.Report

              • Avatar InMD in reply to Stillwater
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                The (faulty) assertion in that second line of thinking is where IMO the case for prison reform needs to start. Prisons and the problems with them are the way they are because of arguments we bought when crime was rampant in the late 70s-early 90s. The idea was deterrence and retribution, stiff sentences in hell holes to severely punish those who had crossed the line and terrify those who would. What we weren’t thinking about was the law of diminishing returns on warehousing people for decades upon decades.

                If we want to change the status quo the most effective thing would be a dispassionate re-examining of sentencing. This is hard because it requires making the case that people who did legitimately bad things should be punished less severely. It’s true but it takes a fundamental shift from the way we look at things now, including on the reform side. Any conversation that starts with a question of who is most sympathetic based on today’s zeitgeist will come out the same as the one we had a generation ago.Report

              • Avatar Swami in reply to Jaybird
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                says:

                Well after reading your comments for over a decade, I certainly wouldn’t consider you a pinko. Libertarian or maybe Libertarian anarchist?

                I wanted to know how you would handle violent criminals. Actually I was assuming you guys had discussed the issue before.

                I still don’t think you are being serious. If you are please do elaborate in a separate OP your ideas on replacing our current justice system with flogging, banishment and Execution. Is there any place for castration or amputating limbs?Report

              • Avatar Jaybird in reply to Swami
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                says:

                Well, here’s us arguing it back in 2017.

                I could see castration being put on the table by the rapist himself in a last-ditch attempt to save himself from the death penalty.

                As for Amputation, nah.Report

              • Avatar Swami in reply to Jaybird
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                says:

                Thanks, but seems a bit unrealistic.Report

              • Avatar Jaybird in reply to Swami
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                If someone were to describe the prison system, as it exists, would you call it “unrealistic”?Report

              • Avatar Stillwater in reply to Swami
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                says:

                The question wasn’t whether abolishing prisons was realistic, but what they would be replaced with.Report

              • Avatar Jaybird in reply to Stillwater
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                Yes, of course. I wouldn’t dream of having this sort of thing while The Drug War is still going on, for example.Report

              • Avatar Dark Matter in reply to Jaybird
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                says:

                I wouldn’t dream of having this sort of thing while The Drug War is still going on, for example.

                You should. The WoD is hardly the first stupid thing our political class has done and it won’t be the last.

                We currently have three different sets of prohibition going on:
                The War on Drugs.
                The War on Illegal Aliens.
                The effort to stop breaking copyright (illegal copying of music/videos).

                If your argument holds any water then you need to be able to claim that the system would be better off with having executed the 100k people we currently have in life imprisonment.

                You probably also need to support executing or flogging illegal aliens and flogging those who break copyright.

                I don’t mean “support” as in “these laws are a good idea” I mean “support” as in “this type of punishment is better than the alternatives”.

                Because expecting our political class to do stupid things is a sure thing.Report

              • Avatar Jaybird in reply to Dark Matter
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                says:

                While that’s true, I can’t help but notice that prison is the system that we’re using for all of the above.

                Which seems equally, if not more, effed up.Report

              • Avatar Dark Matter in reply to Jaybird
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                says:

                Which seems equally, if not more, effed up.

                “Equally, if not more” seems rhetoric and not reality.

                The real-world examples (especially historical examples) of countries which enforce their laws with flogging and easy-execution, especially mass execution, are not places I’d choose to live.

                Even hanging horse thieves meant that every (white) horse owner who was trusted by the community had the ability to kill non-trusted people. That’s somewhat workable in the context of everyone knowing everyone else and there being few strangers (and society accepting slavery), but the modern equiv would be the police killing people they know are guilty on the spot.

                So Floyd being killed for resisting arrest would not only be acceptable but expected.Report

          • Avatar George Turner in reply to Saul Degraw
            Ignored
            says:

            They were distributed with intent to use. It’s actually worse than distributing firearms, which can be used (or not) purely for self protection. The only reason to distribute a Molotov cocktail is with the expectation that someone is going to use it during the current violent action. It’s not like anyone will take it home and stick it in the closet so they’ll have it “just in case.” There is no Molotov cocktail collectors market.

            And I’ll note that Molotov cocktails were introduced as anti-tank, anti-vehicle weapons. Would it be okay if right-wing people started distributing wire guided anti-tank missiles, the equivalent device for conservative, NRA types? I would hope not. Yet those are something a person might safely store, stockpile, or resell on the international arms market, so the law couldn’t assume that their distribution served the sole purpose of fomenting or escalating almost immediate violence.Report

      • Avatar LTL FTC in reply to Saul Degraw
        Ignored
        says:

        What does your impression of Tablet have to do with anything? Are they far enough afield that anything published there is unclean? I think the premise is interesting – we draw the line of where one can be expected to take on adult responsibility where we find it convenient. The NY Mag profile did go out of its way to paint these two adults with JDs as children in a particularly blunt way.

        But how can I argue with an argumentum ad quilletteum?

        They are overcharged. They will take a plea. Happens every day. Political bonus: if the sentence is long enough (and it probably won’t be), a small but vocal contingent of “Pardon The Brooklyn Two” awkwardly interrupting Biden administration events. I haven’t gone wrong betting on the darkest timeline in a while.Report

      • Avatar Brandon Berg in reply to Saul Degraw
        Ignored
        says:

        Tablet is a very weird space which tries to go as far right as possible while not completely alienating the majority of American Jews who are liberal and vote Democratic.

        So…moderately right of center?Report

  11. Avatar Jaybird
    Ignored
    says:

    Oh, here’s a great one from NPR:

    Alleged crimes like arson or vandalism are usually considered local crimes, charged and tried in local courts. But Rahman and Mattis are facing charges in federal court. To make that possible, prosecutors have to show a federal interest. It has to affect, for example, interstate commerce in some way. The way prosecutors in the Eastern District have done that in this case is by using the Commerce Clause.

    “The theory in this case is because the New York Police Department receives federal funding, that’s a federal interest,” said Rachel Barkow, vice dean at NYU School of Law. Mattis was in her criminal law class in 2014, though Barkow says she doesn’t remember him and had to look him up in records to be sure..

    “They are also arguing that the police car itself travels in the country, so that’s the other hook,” she said. “I believe it would pass constitutional muster. But if we’re asking, as a matter of discretion, is this the kind of thing that should be a federal crime? You know, no. This could have easily been handled by local prosecutors and it’s a bit odd that it’s been charged federally.”

    Wickard, baby, Wickard.Report

  12. Avatar Mike Schilling
    Ignored
    says:

    All of this was legal at the time, and a lot of people became quite rich off of it.

    Notably Ty Cobb.Report

  13. Avatar Mike Schilling
    Ignored
    says:

    the use of a firearm in the commission of a felony.

    Simply because he was legally carrying a gun when first stopped? I wonder why the NRA didn’t get involved here. (No, i don’t.)Report

  14. Avatar Michael Drew
    Ignored
    says:

    From the same NPR story Jaybird cites:

    …the use of explosives during a crime of violence. That last charge alone – something called 924(c) in the criminal code – carries a mandatory minimum sentence of 30 years in prison.

    NPR reviewed forty-seven recent federal cases filed against other protesters who threw Molotov cocktails or started fires damaging police property nationwide, and this case was the only instance in which 924(c) appears.NPR reviewed forty-seven recent federal cases filed against other protesters who threw Molotov cocktails or started fires damaging police property nationwide, and this case was the only instance in which 924(c) appears.

    Most protesters arrested for throwing Molotov cocktails are charged under 844(i) – malicious damage or destruction by fire or explosive.

    So it’s not like this case is unique among cases arising form this year’s protests (I take that to be the implication of “recent cases.” At least forty-seven cases molotov-cocktail-throwing or other rason directed at police property have been prosecuted federally “recently.” (And if “recently doesn’t mean associated with this year’s protests, then that only establishes more fully that federal charges for such acts is no rarity – and not what could be seen as a broadly political crackdown on the behavior related to its being part of these protests. Again, that’s if “recent” doesn’t mean what I suspect it means.

    So the question, then, is why is this one case treated differently from those other cases?

    Perhaps there are… reasons?

    When asked why the Rahman-Mattis case was charged differently, a spokesman for the U.S. Attorney’s office declined to comment. But two federal prosecutors who worked in the Eastern District and know the U.S. Attorney there well say the fact that the two were lawyers and knew better certainly played a role in the decision to level so many serious charges.

    People can differ on the appropriateness of treating these defendants differently because of their status as educated professionals, licensed attorneys, and officers of the court, but I don’t think it is correct to say that doing so is political – except insomuch as that treatment is political in combination with other aspects of the offense or offenders. This goes again to the point I make above, that the normal critique is that people of lower status are treated more harshly by the criminal justice system. Here is an example where attorneys and graduates of elite universities are treated somewhat more harshly because of their oaths to uphold the system through the legal process, and now we have a problem with that too (the day after the same Justice Department unsealed indictments against an elite ex-investment banker with close ties to the sitting president, a Justice Department that has sought and obtained felony convictions of an unprecedented number of other top associates of that president during his term in office. Meanwhile, the incident that sparked the protests where this incendiary violence occurred was also dealt with through the application of criminal accountability against a different kind of elite: not only the police officer who used unwarranted deadly force against George Floyd, but also every officer on the scene that day including two in the first few days of their service, in the form of various forms of charges of murder.)

    There is also, as you say, the fact that they did distribute explosive devices or the means to construct them to others with the knowledge that they intended to use them to commit (federal) crimes – again *as attorneys sworn to uphold the law rather than violently break it in an attempt to tear down the system*. It’s reasonable to question whether that may have also been the case in the at least forty-some other instances of arson against police property that have been charged federally recently. But let’s say that had been the case. The distinction apparently in question here is between two provisions in the law – this “924/844 distinction.

    Well guess what? Under the ostensibly more lenient penalties in “844” – used in around forty-five other instances for generally similar offenses – the maximum penalty for a person who “teach[es] or demonstrate[s] to any person the making or use of an explosive, a destructive device, or a weapon of mass destruction, or distribute[s] to any person, by any means, information pertaining to, in whole or in part, the manufacture or use of an explosive, destructive device, or weapon of mass destruction, knowing that such person intends to use the teaching, demonstration, or information for, or in furtherance of, an activity that constitutes a Federal crime of violence” is 20 years in federal prison. As opposed to 30 under 924.

    https://www.law.cornell.edu/uscode/text/18/842

    Under that provision they’re seeking 30 years for the elite-educated Brooklyn attorneys, whereas they presumably sought 20 years for many others. (They’re seeking more under other provisions, but that is presumably true across this sample of cases).

    So is this 50% difference in treatment political? Maybe so! The OP and the title of this post say that that is the nature of crime and punishment in society. That’s what the post *says* is true. There isn’t an argument that it shouldn’t be true. Treason is politically defined. Laws against terrorism are politically defined. The author doesn’t argue that none of that should be the case.

    As an attorney sworn precisely to uphold the legal system of this nation-state, the nation state being the entity that seeks to maintain a tight monopoly on the legitimate use of (political and other) violence in a defined territory, if you go out and state for public consumption that you are, in your view legitimately, adopting the means of violence precisely to tear down the legal and law-enforcement system that is meant to maintain peaceful relations among citizens, then yes, the attorneys (also sworn to uphold the law and the system) for the state who (rightly? are we not even granting that?) do exercise discretion over the harshness with which the law is enforced in various circumstances may take a particularly dim view of that conduct, when undertaken by individuals holding that position in society.

    If that is a political application of discretion, then it is only in keeping with the thesis of the article – that the definition of crime (law) and the process and execution of its consequences (state law enforcement authorities, the major decision makers of which are attorneys) are political things. And the closer conduct comes to implicating the state’s core constituting elements – the use of force within society and its legitimacy – the more unavoidably political the question and the reality of the state’s response will be.

    Report

  15. Avatar Swami
    Ignored
    says:

    Some questions…

    1) Isn’t there a big difference between selling cocaine back when it was legal and attempting to sell it when it is illegal? Why are these two even contrasted?

    2) Isn’t there a significant difference between stealing from an employer and withholding wages (which can occur for countless reasons including government requirement, disagreement on hours worked, etc, etc) The point is that I would expect any reasonable rule of law to treat them distinctly. Wouldn’t everyone?

    3) If someone exposes their @ss cheeks routinely to kids at a playground, don’t you think a cop should arrest them for potential child molestation? If so, what is your point about mooning?

    4) Did Chauvin clearly break any law to be charged “before the protests”? Is it illegal in Minneapolis to restrain a clearly delusional drugged-out nutcase who is resisting arrest in the way that occurred? (honestly, I am just asking, it certainly seems unsafe and abusive to me, but I do not know if it was or was not clearly a crime)

    5) Isn’t there a significant difference between a riot and a protest? As I understand it, when looting and violence start, the protest shifts to a riot and it shifts from being a civic virtue to a crime. If that is correct, then the cops are not hurting peaceful protesters, they are using force against potential rioters and looters. Obviously I am not an attorney, so I welcome correction, by my conventional wisdom on the issue is that when violence and looting starts even if your intent is peaceful protest, that you need to disperse immediately or you are at risk of participating in a felony. IOW, it is illegal to protest in the middle of a riot or curfew, is it not?

    6) Are you seriously asking us to forgive two attorneys for throwing incendiary devices during a riot? This piece reads like something you wrote on a dare or because you lost a bet. Am I right?Report

  16. Avatar Chip Daniels
    Ignored
    says:

    “Isn’t there a significant difference between stealing from an employer and withholding wages ”

    No. Absolutely, unequivocally no.

    What you describe- “government requirement, disagreement on hours worked” is not considered wage theft at all.

    Wage theft is the willful refusal to pay what is owed. It is exactly, precisely, the same as opening the till, grabbing a handful of bills and walking out the door of the store.

    But to illustrate the point of this essay:
    Can you use force to compel someone to give you the property they stole from you?

    Interesting because if we are talking about a theft that happens on the street, the law says yes.

    If a contractor acknowledges they owe you money, but refuses to pay, the law says no.

    Why is this? They are both clearly theft. There is no reasonable dispute over terms. The property clearly belongs to you and someone is taking it.
    Yet somehow the law treats them differently.
    Why is this?Report

    • Avatar Swami in reply to Chip Daniels
      Ignored
      says:

      The post mentioned withholding wages. My question was on withholding wages. Your comment shifts this to a new term “wage theft”. Didn’t you just completely shift the conversation?

      I can imagine countless reasons why an employer and an employee could have contractual disagreements on what is rightfully owed. And I imagine books of contract law apply to the situation. Stealing property or money is very different, with I would imagine completely different laws, precedents, and actions.

      The other obvious difference is that in one case we have an individual theft, in the other we have an organization. With extremely different ramifications and complexities. Completely different case laws must certainly apply.

      These are no more comparable than the comparison of turn of the century drug law to modern law.

      But, the most relevant question to all this is number 5. Aren’t people confusing protestors and rioters? Aren’t these very, very distinct actions with different expected ramifications and appropriate police actions?Report

      • Avatar Chip Daniels in reply to Swami
        Ignored
        says:

        “Illegally witholding wages” is not a contract dispute.
        It is, as the word “illegal” implies, a crime. It is the same as wage theft

        Another example-
        Its a common occurrence for day laborers to work a full day for a promised wage, then ride back with their employer. When the worker hops out, the employer drives off.

        Can the laborer use force to prevent the employer from driving off?

        What is interesting for me isn’t necessarily the law itself but how people customarily think of the law.

        There are plenty of people who, if the day laborer physically restrained the cheating employer and pulled his rightful wage out of the employer’s pocket, would view this as assault.

        Which is weird, because if a street thug snatched Chip’s wallet and ran off, if Chip were to physically tackle him it would be viewed by many as a heroic act.

        According to contract theory, the moment the laborer worked his day and fulfilled his contractual duty, the money in the employer’s pocket became his; They agreed to this, the laborer gave his labor, and the money was therefore his property, even before the employer pulled it out of his pocket.

        But this isn’t how many people think!

        Many people believe, or act like they believe, that the money belongs to the employer, right until the moment he chooses to give it.

        You see the difference here? The cheating employer is a thief no different than a purse snatcher or mugger, but not many people think of it this way.Report

        • Avatar Swami in reply to Chip Daniels
          Ignored
          says:

          Looking it up Your term in Legalmatch

          “What is Wage Theft?
          Wage theft is the unlawful practice of employers not paying their employees the full amount for the work they have performed. If this sounds fairly broad, that is because wage theft can be perpetrated in a number of different ways, both by breaking the law and by not adhering to a contractual relationship. Here is a short guide to wage theft, and what your legal recourse is if you think you are a victim of such practices.”

          It goes on to explain it includes improper payment of overtime, misclassification of employee type, improper withholding of taxes, and so on. This is very much a matter of contractual interpretation. Grabbing money out of the employers pocket when the two parties disagree is a recipe for chaos and violence.

          The two are absolutely nothing alike. And again, who is the guilty party when a corporation is involved, and why would anyone assume the best way to solve it is one worker at a time? They recommend getting a lawyer. So would I.Report

          • Avatar Swami in reply to Swami
            Ignored
            says:

            Employer: “OK, Charlie, I have you down for 26 hours last week. Here is your check”

            Charlie: “No way! I worked 32 hours! Give me your wallet, mother f…”

            Great idea.Report

            • Avatar Chip Daniels in reply to Swami
              Ignored
              says:

              Or, the reverse:

              “Charlie! You grabbed cash out of the till!”
              “No I didn’t.”
              “Yes you did! I’m calling the cops and having you arrested!”
              “Sorry you can’t do that. This is a contract dispute over whose cash this is. You can file a lawsuit if you wish.”

              Related news item:

              Acquitted Texas man who shot prostitute after she refused sex was just ‘protecting himself from theft’: court
              Attorneys for Gilbert say he paid the woman $150 to have sex — then she refused, balked at returning the money and said she had to give the cash to her driver. The defense said Gilbert’s actions were justified because he was trying to retrieve stolen property and the driver was part of the theft scheme.

              Imagine Gilbert was a homeowner, and the woman was the bank manager who refused to refund his money.Report

          • Avatar Chip Daniels in reply to Swami
            Ignored
            says:

            But you are just demonstrating exactly the thinking I described.

            The things you describe are fraud, the willful and bad faith taking of money, but you conceal it beneath a fig leaf of good faith dispute.

            Taking money that you know doesn’t belong to you is theft, not disputed terms.

            Yet the law you describe is carefully written such that, in my example the cheated laborer would be committing assault, whereas the mugging victim is legally exerting force.

            The law privileges the thieving employer over the street mugger.Report

            • Avatar Swami in reply to Chip Daniels
              Ignored
              says:

              I am willing to accept that there are people in this country who truly believe that employees stealing TVs out of the Target warehouse should be handled in the same way by our justice system as overtime pay disputes considering over-withholding of state taxes between Target and its nonexempt, non supervisory employees in the state of Wisconsin when they were on temporary assignment across state borders between 2007 and 2015.

              Can you accept that some of us believe these two are as different as an apple and an…..IPad? Both may be “apples” or “illegal”, but they are not really comparable or manageable in any other meaningful way. I would address one with a call to the police, and the other with a call to an attorney specializing in labor law. And I would not frame this as privilege. I would frame it as practical.Report

      • Avatar Stillwater in reply to Swami
        Ignored
        says:

        But, the most relevant question to all this is number 5. Aren’t people confusing protestors and rioters? Aren’t these very, very distinct actions with different expected ramifications and appropriate police actions?

        For a self-identified Classical Liberal you sure lean into the Power of the State a lot. 🙂

        Here’s how I’d answer your question, though: the concept of being a protestor includes being a rioter if the rioting is undertaken in the act of advancing the protest. But in my opinion, that’s not the question you’re actually interested in discussing. Instead, it seems to me your question is this: *even if* the rioters are viewed as protestors isn’t slinging molotov cocktails into cars or private property still illegal?

        And it is. The writer of the OP concedes as much. What he’s drawing attention to is the politics of crime and punishment, and how the balance always tips in the favor of the state. Here, I’ll paste it below:

        Upon learning these facts, federal prosecutors could have allowed New York state courts to handle the matter. Those state authorities could have charged Rahman and Mattis with misdemeanor injury to property, which would likely still have destroyed both of their careers. They could also have chosen to prosecute the hundreds of police officers who assaulted protesters on camera. Indeed, leaving the case to the state authorities or bringing less serious charges would have been the normal way for such a case to play out. This is the only case NPR could find arising from the George Floyd protests in which federal prosecutors brought charges that carried the 30-year mandatory minimum. Instead, they chose to ignore the crimes of the police and try to put Rahman and Mattis in prison for the rest of their lives.

        And honestly, I’m always surprised by how deeply you lean into the authority of the state to use violence against citizens, and especially so since you self-identify as a classical liberal.Report

        • Avatar Swami in reply to Stillwater
          Ignored
          says:

          Thanks for the response, SW

          My bad. I was not aware that Classical Liberals were pro rioting and looting. I will be sure to get on board with the required orthodoxy. Pass me another Molotov, please.

          Seriously though, I believe that protecting citizens from rioters and looters and arsonists and bomb throwers is exactly what the government is supposed to do. And that is exactly what they are not doing in many of these cities. And absent the government fulfilling this role, I reluctantly support citizens stepping in and doing it. But this is an absolutely last resort and is the path to chaos, hence why I think the gov should do it.

          Don’t you?

          The question I have is once a riot or curfew is declared are protestors still protestors? Or are they now complicit in the riot? I assume the latter.

          As for the two bomb throwers. I hope they do get thirty years. I wish all the (real ) violent looters and rioters would get thrown in the pokey until they learn to behave themselves (which would have been in a matter of hours not months).

          One more thing. This isn’t about the interests of the state. It is about the interests of law and order. It is about protecting our property and persons. I have zero empathy for anyone having any hand in a riot, a looting, an arson or in supporting or endorsing such actions.

          I am appalled by what is going on in these cities, and fully endorse the police to stomp it out before the other side decides they should take matters in their own hands.Report

          • Avatar Stillwater in reply to Swami
            Ignored
            says:

            I was not aware that Classical Liberals were pro rioting and looting. I will be sure to get on board with the required orthodoxy.

            It’s not the anti-rioting that gets me of course but the reflexive defense of cops and state violence that baffles me.

            This isn’t about the interests of the state. It is about the interests of law and order.

            When you refer to “this” you must not be talking about the OP, since cop violence and police riots as well as uses of state power as a response to protests of police abuse is what’s being discussed. All those things are observable. In fact, the OP addresses *all* of your stated concerns about the molotov cocktail thrower. You’ve just chosen to ignore what the writer wrote.Report

            • Avatar Swami in reply to Stillwater
              Ignored
              says:

              What baffles me is the reflexive belief that confrontations between cops and blacks is primarily explained by racism (rather than 10x levels of violent crime and higher rates of resisting arrest) and that this excuses rioting and the destruction of property.

              I have zero fundamental problem with the value of cops. I totally agree that there are too many bad apples that are allowed to abuse their power. I pretty much disagree completely with how BLM frames the issue and how they seek to address it. I am much more in line with this organization’s recommendations

              https://www.joincampaignzero.org/#vision

              And if lives really matter, we should be working with the police to get tougher, no, much tougher, on murderers, while holding cops accountable for being model authority figures.

              And I am still missing how the OP addressed any of my concerns. I applaud what they are doing to these scumbags. Too many of the cities are letting these criminals back on the streets.Report

            • Avatar Dark Matter in reply to Stillwater
              Ignored
              says:

              It is possible to think all of
              1) Police violence is a problem
              2) Rioters burning stuff down is a problem
              3) The later isn’t justified by the former.

              For all of the OP talking about inequality of application of law, criminal justice reform is Never going to give a pass to people burning stuff down. No One is calling for that.

              The author is sympathetic to the arsonists’ cause so he thinks the system should go easy on them. He seems to think that rioters are protesters from an ethical stand point.

              He’s wrong.

              Probably he doesn’t want to live with the local abortion clinic, or it’s doctors’ cars, constantly being burned down even if it’s timed to not hurt anyone.

              No matter where you want to draw the line, those lawyers are way over it… unless your line is “my tribe gets to use political violence for my causes but yours does not”.Report

              • Avatar Swami in reply to Dark Matter
                Ignored
                says:

                Yes, exactly. But it seems a significant share of people ARE giving a pass to people who burn and loot. Either this reverses quickly (perhaps with a Biden presidency?) or it blows up into civil anarchy. If it doesn’t reverse course and Trump isn’t in office, my fear is someone influential starts tweeting that conservatives need to take the streets back themselves. This doesn’t end well.Report

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