Law in Contemporary Society

By the Time I Graduate, the Government Will Have Spent More Money Keeping My Brother Locked Up Than They Will Have Leant to Me to Pay for Law School

-- By PatrickOConnor - 17 Feb 2012 * EDIT Forthcoming pending recovery of documents*

The Profit Motive

Cohen describes a hypothetical Blackstone-Cobb conception of the law: “is a rule of civil conduct prescribed by the supreme power in a State commanding what is right and prohibiting what is wrong.”

No. Cohen quotes Blackstone, who thus defines municipal law in section 2 of the Introduction to his Commentaries. Cohen claims—falsely—that this definition contradictorily conflates Thomas Hobbes and Edward Coke. I have no idea who you mean by Cobb.

I found myself fixating on this statement. I could easily recognize the logical inconsistency of the notion.

What inconsistency? You can't be referring to the one claimed by Cohen, because you didn't know who or what he was talking about. Blackstone, having discussed natural law, revealed law, and the law of nations, in a descending hierarchy, comes to the municipal law, the law of a single state. Within a state, he says, the sovereign power in the state makes civil rules (not moral ones) that affirmatively give people power to do what the State considers right (we would call this, in our American libertarian framework, which Blackstone detested, protecting peoples' rights), and prohibiting what the State considers wrong. Murder is a violation of the moral law, regardless of the condition of municipal law. Parking on the wrong side of the street or putting a tannery next to a school is a civil wrong.

This isn't an argument, it's taxonomy. If there is a logical inconsistency, it could hardly have escaped Bentham, whose passion for showing up Blackstone knows few bounds. But even he lets it pass unchallenged.

I was troubled by inability to reconcile my desire to believe that the capitalistic order by which wealth is distributed is in some way objectively just, with my certain belief that the criminal justice system is entirely divorced from justice.

I find the notion that law commands what is “right,” rather than the other way around, very challenging. Intellectually, I understand that a given law incentivizes certain behaviors by rewarding them, and that this has as much to do with “goodness” as illegality does with “badness.” Emotionally, I cannot fully accept this, however, because my own sense of self-worth is tied, to some extent, to the notion that society rewards “goodness.” It is essential to me that, when (or if) I achieve success after law school, it will be because I “deserve” it.

I don't understand what one point has to do with the other.

Arthur writes: “We believe in the capitalistic system, as we used to believe in democracy, not as a tool, but as a set of abstract principles to be followed.”

I think you mean that Thurman Arnold wrote this. How did this happen a second time? Don't you check your quotations?

According to this belief system, capitalism, if left untouched, is a realization of the ideal of democracy without the intrusion of demagoguery. It accomplishes the public good but preserves the free will of the individual. Personal achievement within the system is a reflection of hard work and ingenuity. This belief system is essential to us, but also fragile, threatened by the insinuation that the system is imperfect.

Who is "us"? I wasn't brought up to believe in it, I've never believed in it, and so far as I can tell it neither harmed me not to believe in it nor impeded my ability to communicate with thoughtful people in my own society, none of whom—so far as I can tell—ever really believed in it either.

The Costs of the Criminal Class

Robinson described criminal law as the pathology of our society. The alarming rate at which we incarcerate our citizens, the highest in the world, reflects both our prison-enforced prohibition of drugs and a system of “Corrections” that guarantees a high rate of recidivism. These are symptoms, I believe, of a deeper pathology. As a society, this does not seem to bother us. After all, we only incarcerate individuals convicted of criminal offenses in a fair trial. They are not our fellow citizens anymore.

I felt the same sort of ambivalence until my brother was convicted of drug related offenses and incarcerated in federal prison. Throughout his sentence, he was denied access to appropriate psychiatric care and addiction counseling, but managed to get his fix thanks to the healthy narcotics market run by the prison population. When he was released, he was mentally unstable, still addicted to drugs, and unable to find employment due to his conviction. Within a year, he was back. Why does this system persist?

I feel I may be too close to the situation to understand the purported justification of our criminal justice system. It is no secret that the financial costs are astronomical. Incarceration in state and federal prisons cost more than $60 billion last year. It costs the state of California $47,000 per year to incarcerate one prisoner. If the governor pardoned every state inmate and then enrolled them in a four year California public university, the state would have nearly $7 billion dollars. One might expect some modicum of debate as to the value of perpetuating this system. This issue is not effect as rallying cry to raise the enthusiasms of a party.

Spell-checking is not proofreading. "Effect" is not the word you meant. There is at least one other missing word you didn't find. This, like the failure to check quotations, is mere sloppiness. You need to discipline yourself never to let writing out of your hands you haven't checked.

Thus, as Arthur would expect, it is not fodder for politics.

If Arthur is Arnold, of course he would have expected it to be fodder for politics, and of course it is. I don't understand what you're saying here. The resistance to the practice of widespread incarceration isn't politically effective? That's because prison makes such good politics.

Capitalism at Work

The simple solution to this conundrum is to persist in my belief that the system of criminal law I find so incredibly unjust is some perversion, perhaps the product of racism. There is a litany of unsatisfying explanations for the current state of affairs. I cannot help but return to the mind-boggling fact that my brother’s incarceration will be more expensive than my law school education. I could not believe that fear and stigmatization alone were strong enough to sustain such a system.

Then I came across Corrections Corporation of America’s annual stockholder newsletter. CCA is the largest provider of private incarceration services in the United States. According to the letter, the company will experience another year of growth: “historically, the U.S. inmate population has also accelerated in post-recession years, particularly at the state level. Demand for new prison beds from the federal sector remains strong.” Evidence suggests that CCA and other similar companies are stimulating this demand with a robust lobbying effort and public affairs campaign at the state and federal levels. Crucially, as members of the American Legislative Exchange Council, these companies have played a significant role passing stricter sentencing laws for non-violent offenders and mandatory sentencing laws for third time offenders.

I am left with the sickening feeling that we are simply both being socialized for the next stage of life. More likely than not, he will be back in prison within three years, spending more time away form desperately needed medical assistance. I will graduate with a degree that may be convertible to a very comfortable living doing something I perceive as without value. Presumably, I’ve come to the right place to gain the skills needed to affect change. But can I afford to?

I'm very sorry about your brother.

I don't understand how the last sentence got into this draft. Of course you can afford to do the work you want to do. That's what law school is for. Put your fine mind to the problem "How will I cover my nut with a book that includes the work I want to do," and you'll solve it. Chase that away and replace it with "Can I stand the soul-destruction of making a comfortable living doing something I perceive as without value," and you'll solve that problem instead.

I don't understand why you think the problem is a problem of capitalism: incarceration in America produces some benefit to American capitalism, but far more benefit to American socialism. It's the public agencies and their officials, the unionized workers in public "corrections," and the communities that benefit from hosting prisons that derive the most social value from penning up their fellows.

Nor do I understand the point about rationality. We are not primarily rational beings, only secondarily. Power, politics and law, works by appealing to our unconscious needs. Massive incarceration of troubled young men meets needs you could understand better if you stopped trying to make them "rational" or "just." Then you could decide how to seek justice in the context of human inhumanity. Maybe you might actually find yourself motivated to pursue parts of Robinson's path.

So far as improving this draft is concerned, I don't know why you need to Cohen and the Blackstone. The heart of your draft is in the story of your brother, as it concentrates your outrage at the harmfulness and stupidity of the system. Start there and work your way outward. Don't be sloppy. You'll be fine.


Webs Webs

r4 - 22 Jan 2013 - 20:10:46 - IanSullivan
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