Law in Contemporary Society
When Prof. Moglen was discussing the wide chasm separating between what we know about the penal system and what really transpires behind prison doors, it occurred to me that this divergence between reality and unreality certainly isn't unqiue to the criminal "justice" system, and that the failure to bridge that gap often leads to a distorted understanding of human behavior in other contexts as well. In the case of the penal system, we witness some alarming absurdities: the father who thinks jail time will "shape up" his son, the politician who pads his resume with convictions, the prosecutor whose political ties pervert her duties as a public servant, and a community which thinks itself safer despite rising rates of incarceration and crime. These symptoms are no doubt worrisome, but I believe the same social forces operate in other cases as well.

One example that jumps to mind is homelessness. As a student at UC Berkeley, much of my morning treks to campus consisted of walking past people living on the streets (or, as many of us would call them, "beggars, hobos, tramps, bums," etc). The views of my peers can be captured by any of the following:

- These are people who deliberately refuse to find jobs

- Panhandling is a conman's day-job; the homeless actually lead comfortable lives beneath the rags

- Their reluctance to find shelter is voluntary

- Giving them change will only further solidify their dependence on others

It takes only a few days on the streets to understand that these are nothing but mere myths. Homelessness is not a voluntary, instantaneous decision but a slow downward descent laced with drugs, behavioral health issues and sheer bad luck - any one of us could fall prey to it given the right circumstances. But like Robinson's example, there exists a massive disparity between what we believe about homeless people and what actually transpires in the life and mind of a homeless man.

One could argue that the root cause of this ignorance is simply an inability to empathize with an experience none of us have ever had. If lack of empathy were the issue, however, I see no reason why the disparity between reality and unreality would grow to such a point that our reaction to shivering old men would turn from sympathy to disgust. Human nature, I believe, is not so pitiless. There is certainly something else at work here.

My hypothesis is that we project onto homeless people qualities that accentuate (and justify) the difference between our opulence and their poverty. We choose to believe that homeless people made a conscious decision to fail (in addition to other myths) to bolster our own belief that we've achieved success through hard work and perseverance. Ignorance, I suppose, is the price we pay for self-determination.

I know this topic sounds like a far cry from what we read about in Robinson's Metamorphosis, but my intuition tells me that the same social forces are at work in both cases. I dunno, what do you guys think?

-- YoungKim - 18 Feb 2009

I actually wanted to comment on Young’s post. But, somehow, it didn’t let me do that… Can someone help me?

  • Hope I helped.

I used to volunteer at a small organization that serves food to the homeless in Los Angeles downtown. Once, the director of the organization asked me, “Do you know what the difference is between you and the homeless?” I don’t even remember how I answered. But, his answer was rather shocking to me at that time. He said, “The only difference between you and the homeless is the family/environment you grew up.” He went on to explain with the statistics that I don’t remember quite well… That a big percentage of homeless people were raised by parents who were alcoholic or abusive… Many were orphans or from broken homes… He gave me one example. He explained that people accuse homeless of being lazy and incompetent. He said that when you are raised with a total indifference by your parents, you actually get trained to become incompetent. According to his theory, if your parents are totally indifferent as to whether you do well or not in school, you lose an incentive to actually study hard. You are supposed to learn by observing, remembering, and then internalizing what behavior is rewarded or punished by your parents. For example, children raised by the indifferent parents might not even be able to learn that diligence is a good thing because they were never rewarded for it. (I don’t know if I explained his “indifference theory” well.) I accepted most of his statements, but secretly I thought in a dignified way that ‘The environment does not explain everything. There are people raised from the abusive parents and they don’t all become homeless.’ I think I was uncomfortable with the fact that I could also be homeless if I were born in that situation. I would’ve liked to think that I had a choice. I would’ve liked to think the homeless that I see when I serve food had a choice. I could not accept the fact that I have less choice than I think I have… I felt far more comfortable if I could just separate my world and the homeless’s world. I felt more at ease by not being fully aware of how privileged I am compared to others and that I didn’t earn the most of it. I think I was just not comfortable to see the injustice that was manifest right in front of me.

Well… yeah… Young’s post and our discussions in class reminded me of that experience. Now I understand more why I was rather uncomfortable with the statement that the only difference between the homeless and I is “where we were born”… I also wanted to say that I am really glad to be in this class. This class is the only class that makes me “think” about things…things that actually matter. When I come home after this class, I find myself just sitting and “thinking” about what we discussed in class. So, thank you, Professor Moglen and my class mates… =)

-- EstherKwak - 18 Feb 2009

I hope this doesn't seem like I'm talking past anyone here, but I wanted to add an observation from my own experiences. I spent a summer interning with the Public Defender Service in D.C. for the Mental Health division (I noticed in the old posts that someone in last year's class actually had the same position). My job involved helping people who had been involuntarily committed to a psychiatric hospital be released. Most people were committed for doing some act that a police officer felt made them "a danger to themselves or others" due to mental illness.

We had a significant number of cases involving people who did not seem to be mentally ill at all (and were eventually released for that reason). Their offense, as far as anyone in our office could tell, was that they were homeless. The police had to fill out a form explaining why they sent someone to the hospital, and some of them listed the only reason as homelessness or one of the symptoms (example: wearing a coat in July. The guy was homeless and didn't have any other way to carry around or store his winter coat).

It's interesting to think of these social institutions - prisons, psychiatric institutions - as a way of justifying or eliminating the discomfort that Esther mentions. If we can rationalize a person's circumstances and make them "worthy" of some kind of retributive institutionalization, then we don't have to deal with the larger questions.

-- MolissaFarber - 18 Feb 2009

At the risk of being criticized for being too politically correct, may I suggest that referring to people living rough as "homeless people" is preferable to "homeless" because it reminds both the speaker and the listener of the humanity of the subjects. I also appreciate that this class genuinely makes me think.

-- PetefromOz - 18 Feb 2009

It seems to me there is only one way to eradicate homelessness. Free Housing for everyone who needs it. If you want better housing, you can go pay for it. But if you don't have money, free housing for you, no question asked.

-- XinpingZhu - 18 Feb 2009

  • This is the same as establishing a right to housing. Declaring such a right seems fairly straightforward, but any step towards implementation of the right is fraught with difficulties. To pick only one, where do people have a right to be housed? Does everyone have a right to live on Manhattan, or are some people entitled to be housed in Vermilion, South Dakota only? Societies that subsidize housing often have a system of residency permission, which means that if one has a right to live somewhere, one has no right to live anywhere else. Such a system may appeal to those otherwise too poor to have decent housing anywhere, but will likely be objectionable to those with sufficient surplus over subsistence to be concerned about civil liberty. Problems of at least equal complexity lie in every other direction from the starting point.

  • A right to decent housing is also completely undiscussable because it would be socialism.

While I agree with much of what has been said, I think a little Devil's Advocate needs to be played.

1. If you give everyone free housing, how do you avoid free riders? I guess that is sort of the curse of socialism, despite all of its theoretical advantages.

2. As someone pointed out, we do have choices; there are people who rise 'above' their environments. Clearly the point made here is that you may have a much tougher start if you start with an abusive family life, and that is something that certainly is not as widely acknowledge as it should be.

I have to say that this is an interesting thread. My friend teaches in the Bronx (as I mentioned in another thread), and her kids truly have awful stories to tell about their home lives. Clearly they have some sort of choice about where they end up, but really, how much?

-- AaronShepard - 19 Feb 2009

Aaron, On your first point, I think there will be "free riders" but if society made the choice to allocate it's resources differently, maybe it wouldn't be such a problem. Think of our astronomical defense and prison budgets. I think that "free riders" are the least of the problems. Think of the costs of ignoring those in need: the un-nurtured talent and crimes of desperation and circumstance. I don't have anything empirical to back me up on this claim, but how much have we gained from our wars and by incarcerating our citizens? How much have we lost by allowing poverty to persist over generations? I don't think we've been allocating our eggs to the right baskets.

On your second point, sometimes roses do grow from concrete, all too often society kills them before they have a chance to grow, but I'm glad you do acknowledge that they can break the cycles of poverty. I think it’s good to strike a balance between acknowledging the circumstances that lead to undesirable behaviors but also to avoid throwing pity parties that are detrimental to an empowered mindset.

-- JamilaMcCoy - 19 Feb 2009

I agree that homelessness is not necessarily a result of "laziness" or "indifference" but I'd like to add that a large percentage of America's homeless people have psychiatric illnesses, such as schizophrenia (not to be confused with Multiple Personality Disorder), bipolar disorder, and a whole host of other psychotic illnesses. Many of these individuals have no idea that they are suffering from psychiatric disorders and certainly no idea that medication can vastly improve their lives. One way to solve the homelessness problem is by trying to fix the root of the problem by providing better health care and better homeless facilities that will allow patients to discuss their situations with a psychiatrist.

-- LaurenRosenberg - 19 Feb 2009

What everyone has written so far is interesting, but if we are talking about reality, I can't help but think that what is missing from this discussion is a further acknowledgment of the homeless families we don't see on campuses, streets and under bridges in the community. Those of the sheer bad luck sort are more prominent than many realize or care to discuss. It seems that one of the problems of drawing a line between the reality of the problem and the misconceptions we have about groups of people stems from the very fact that the average person draws conclusions based on what is seen: we see the beggar sitting with the sign and change cup, we see the individuals curled up on grates in the hope of staying warm. What we don't see is the family who faces hard times, loses the apartment and ends up bouncing from shelter to shelter while trying to get life back to the way it used to be. Many of you expressed unease and dissociation with the homeless community. There's no question the cycle of poverty is continuous and makes it difficult to pinpoint a root, but I wonder if the reality we seek and the cognitive framework in which we approach this discussion change once we realize that the one in search of shelter could be you or me someday.

-- UchechiAmadi - 19 Feb 2009

Lauren - I think you put too much faith in people if you don't believe there will be a free rider problem. If you give people something for free, they have no incentive to work for it. Clearly this wouldn't apply to everyone, but certainly the advantage to a capitalist system is that there is a tremendous incentive to work hard. I'm not saying socialism wouldn't have alternative benefits, but just that the innate issue of free riding cannot be allocated away.

How much have we gained by wars? Personally, I think we gained quite a bit in World War II. Incarceration? Well, I'm certainly glad the Ted Bundys of world are off the streets. These are extreme examples of course, but I think that goes to show that there is a moderation in everything. All wars are not just or useful, but there is a reason to have a significant military budget. There are many people in prison who, for whatever reason, don't belong there, but there is also a reason to fund the institution (although American prisons are tremendously underfunded).

I guess the main gist of the allocation idea is, coldly, how to maximize our resources. Furthermore, where do you draw the line between helping segments of society, and depriving personal responsibility? We seem to agree on the need to strike the balance. This was something that Obama tried to do throughout the campaign, and because of his unique position, I think it was very effective. There is unfortunately little political capital in helping many in need of aid, but perhaps this will change.

Uchechi - I lived in D.C. for a while, and there was a great program called Street Sense, where homeless citizens would sell newspapers written and edited by other homeless citizens. While I wish there were more things like this, to help give people a leg up, I still believe that the problems mentioned by others in this thread would be significant. Of course, I like everyone else in this thread, am just speculating.

-- AaronShepard - 19 Feb 2009

Aaron, I think you may be misunderstanding my point. You say, “If you give people something for free, they have no incentive to work for it.” Putting aside my personal opinions regarding whether we should give people certain basic necessities even if they will never be productive members of society, your statement regarding freeriding depends upon individuals having the capacity “to work for it.” My opinion is that individuals with severe psychiatric illnesses are often incapable of acting as productive members of society without medical treatment. If we provide these individuals with psychiatric therapy, we can help them from suffering from debilitating psychotic disorders (and treat them as human beings) and we can also attempt to treat the source of their homelessness, which may allow these individuals the capacity “to work for it.”

Maybe you believe instead that the “freeriding” problem will occur because normal, productive members of society may quit their jobs and lose their incentive to work due to the provision of psychiatric care to homeless individuals. If that is your opinion, then I think you greatly overestimate the appeal of psychiatric care. I highly doubt that individuals would prefer to live on the streets because they will be provided with a psychiatric analysis.

-- LaurenRosenberg - 19 Feb 2009

I'm not sure what in my post you were responding to, but I certainly wasn't saying in my post what you seem to think I was. You brought up the mental disability issue later on, and I agree with you about the need to treat people. Other than that, I'm at a loss for where you got certain things. I apologize if there was confusion.

-- AaronShepard - 19 Feb 2009

Aaron, this is Jamila, you were replying to my post. I guess my name wound up somewhere else on the page. On my resource allocation point, again, what I’m trying to say is that our current individualistic paradigm doesn’t allow us to see the positive externalities that free and decent housing could have. We subsidize vaccinations, and schools and I think that we can all agree that that leads to better outcomes for everyone. Maybe everyone doesn’t pay, but would you rather face the threat of disease or subsidize someone’s measles vaccination? We didn’t do this in the past, but over time we can came to see that it made us all better off.

A friend pointed out to me that in practice free riding isn’t a huge problem in our public housing. Unfortunately, much of it is in such a sorry state that many non-poor people aren’t looking to cheat their way into public housing, or get section 8 vouchers that they can barely use. Historically, residential segregation has made it so that many people can elect not to experience the effects of poverty in America, but I don’t think that will be the case forever. As Uchechi points out, the problem is more complex than just the visible homeless. With the current economic situation it’s growing as working people increasingly lose their homes. As poverty hits more closely to home, I think people might be more willing to change their points of view. Experience does a good job of incentivizing, my family lives in North East DC and I can speak from my own, I grew up on the East Side of Detroit, unfortunately the poverty has long since been a reality in both of those places is spreading.

Looking back to the Arnold, when people’s needs are not met, they are more open to change (maybe more drastic than Obama’s version). We’re watching our capitalist system fail and Arnold’s idea gives us a way to defeat the free rider problem. Social norms motivate people to do things differently, including choosing to allocate society’s resources toward public housing. If we create an ideology that tells people “I am because we are,” or that there’s more to be gained collectively from working together to elevate people from barely subsisting all than there is about worrying about who might not be paying, maybe it would work. As Prof. Moglen said in his comment, things like civil liberties often wind up being a concern for those living above a subsistence level. Wouldn’t it be better if we had more voices contributing to those debates? Putting the ideology into practice with a good government would be difficult, but perhaps with a collective mindset as a baseline, rather than an individualistic one, it’d be possible. The social norms of this ideology would incentivize people to contribute to the public good, since others’ perceptions can be a powerful motivator.

We might not feel the effects now, but the situation is worsening. The problem of persistent poverty will come back to bite us all in the form of social unrest sooner or later, if not in this downturn, then maybe in a subsequent one, and not just in the inner city. Just like over-securitization, it’s not sustainable.

-- JamilaMcCoy - 19 Feb 2009

Aaron, I apologize for my response if you were not intending to comment on the "freeriding" problem as associated with the mental illnesses point that I mentioned. Apparently there was some confusion regarding the separation between Jamila's comment and my own; my only comment on this thread was regarding the prevalence of psychiatric disorders in homeless individuals.

-- LaurenRosenberg - 20 Feb 2009

Jamilla, I would think the facial benefits 'free' public housing could have are apparent, but the problem is cost. Whereas vaccines provide a direct social benefit to everyone in the community in stopping the spread of disease, creating more public housing projects would have more tangential benefits, in addition to having a larger cost. Ideally, free public housing would be a nice thing to have, but I don't think the problems presented by it can be dealt with by merely shifting community values.

I don't disagree with what you propose, but I don't think there are pragmatic, or even reachable, systems of incentives that would make this outcome possible. Furthermore, I don't think that we are in a system-wide collapse, or that there will be an eventual overthrow of the current system. I think the public apathy that prevents some progress works here as well.

I think the current political climate is ripe to make some dramatic shifts in communal priorities, so perhaps progress on this issue will be made. But is this something that will be pursued?

-- AaronShepard - 21 Feb 2009

Jamilla, while I think that you make a good point about how social norms can be used as a means of motivating people to do things differently, I think the "I am because you are" mentality is implausible for American culture as a whole. Ontop of Aaron’s point about costs, I do not believe that the majority of Americans, even in the time of recession, would support a system like free public housing. The current “system-wide collapse” will not result in people wanting the government to engage in the free allocation of something like public housing.

My fear is that as a result of the recession, Americans will focus on the government effort to help them individually and then desire to protect their money. Though when we hear about the bailouts and stimulus packaging the conversation is geared towards generating more jobs and capitol, Americans are still concerned with how these moves will affect them directly. Herein lies the problem of trying to use financial hardship as a means of bringing people together. Poverty may bring a group together, yet each person in that group desires to escape poverty. One cannot loose sight of the fact that by losing their jobs and money, people become more closed off to the problems affecting others and more concerned about their personal lives and their own finance.

-- WilliamKing - 23 Feb 2009

Using Uchechi's post as a valuable springboard to bring up another reality that may be worth inserting into this conversation, I think it would be constructive to consider the role that race plays in all of this--even if this means deconstructing the optimism that lies behind visions of an unburdened system of public housing. I think it may be safe to say that a few of us find these visions difficult to train--whether because we doubt the promised benefits or because we doubt how such a system could be implemented. In addition to the complications that Professor Moglen envisions, the race-poverty complex, I think, is the wrench that should probably make us really reexamine the assumptions that we create to justify "well founded" ambitions about public housing.

I think it has now been well recognized that one of the biggest dilemmas with which public-housing proponents must come to terms is the conscience behind rescuing the communities of homeless people on campuses, streets, and under bridges by assigning them to segregated areas designated for public housing--or at least areas designated for public housing that inevitably become segregated as a function of the demographics of homeless people. In a way, cities that follow such procedures are simply organizing poor minorities into more visible sections of society. An extreme view might even be that this scheme makes communities' poor minorities more documentable, manageable, and leverageable. It would be irresponsible to ignore the benefits of giving homes to the most disadvantaged portions of society, but it would also be reckless to implement a public-housing system without first carefully anticipating problems and solutions concerning racial segregation.

And I think there are subtle complexities that would take even the most skilled administrators years to negotiate through experimentation, failure, and unending creativity. For example, even if the state manages to assimilate public housing into a medium-income residential neighborhood, history has shown us that demographics shift as a display that these newcomers are not welcome. "Mixed income" becomes "poor," "predominantly black," "predominantly Latino." Property values go down, and more of these others move in. Now these neighborhoods are "run-down," "just black," "just Latino."

What can states do to prevent this? Maybe some kind of creative investment? Maybe tax breaks for incoming businesses? But these "solutions" create a wholly different category of problems. What does our enthusiasm for such solutions reveal about our assumptions about race? Wouldn't such measures be paternalistic? Or are they in keeping with "reality"?

And for the sake of ending this post on a period, rather than a torturous question mark--

-- JosephLu - 23 Feb 2009

* A right to decent housing is also completely undiscussable because it would be socialism.

Huh? Such a right exists statutorily in France and I think in Germany too. I don't recall them being socialists... Socialism cannot just claim every idea created out of empathy.

-- TheodorBruening - 25 Feb 2009



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