Tuesday, November 5, 2013

Using the Good, Old Criminal Justice System: Worth a Try?

Alphonse Gabriel Capone
I live a few blocks from the site of the (in)famous St. Valentine's Day Massacre. The garage in which the gangland ambush took place is no longer standing; it's now a grassy hillock in a building complex. ("Nothing to see here ... move along!")

And, the last time I paid attention to such things, Chicago was still identified in the minds of people around the world first and foremost with its criminal history. Predictably, when I used to tell people I met in China that I was from Chicago, they would smile, form their two hands into a "tommy gun" gesture, say "Chicago! Al Capone!" and spray me with "bullets."

Ancient history, yes, but still, there are lessons to be learned. Is there really any difference between the crimes of "gangsters" -- the way the criminal justice system counters them -- and the actions of "terrorists"?

Criminal law . . . military justice . . . and "in-between"

The story of the past decade-plus has been the story of the assertion by some that the conception of law that our society has is not sufficient.  Simply put, there are those who say that there is a third, "in-between" category of behavior -- and legal status -- that is not civilian (subject to criminal law) and not military (subject to military law and the laws of war).

What this has meant that a whole range of behaviors -- ranging from acteually killing someone to simply being in the wrong place at the wrong time, or being related to the wrong person, or engaging in loose talk -- have been labeled as "terrorism" or worse and been punished by summary execution.

Most notably, this has been enshrined in the "unlawful enemy combatant" status used to justify Guantanamo detention and the surreal Obama administration definition of "due process" used to justify extrajudicial execution by drone.

Supposedly there are characteristics of behavior that justify the application of this new, "in-between" status -- a status which, unfortunately for all of us, is a legal no-man's-land.

But doesn't the history of the prosecution of organized crime in the United States prove that the law works? Even when dealing with very violent people?

The role of technology

Technology in the Capone era
There's an interesting argument that the difference today is technology: the "bad guys"can make use of technology that is advancing so quickly that conventional law enforcement can't compete. Easy communications, travel, and banking make it too easy to be a threat to society.

Ironically, the complaints about "technology" only started to come after the the new weapons that the West was so thrilled to supply to fighters in Afghanistan -- like Stinger missiles -- got pointed back at us.

. .. which is a reminder the real technology we feel most threatened by are not cellphones, plane tickets, and bank transfers, but military weapons and state-generated threats like biological, chemical, and nuclear weapons.

And, after all, wasn't the story of the Capone era also the story of the organized use of new technologies like cars, phones, and tommy guns? (And creative accounting?)

(Umm . . . does social context have anything to do with it?)

I recently saw Bonnie and Clyde. I was struck by the way in which Clyde Barrow could say "We rob banks!" with such confidence: he knew that, as likely as not, people would feel no love lost for the banks.

The Prohibition Era that empowered Capone was similarly an era that made people cynical about "law and order."  Corruption breeds corruption. (That may have been the origin of the unofficial motto of the City of Chicago: "Where's mine?")

One of the characteristics of the "in-between enemies" that the U.S. finds opposing it in so many parts of the world is that they have sympathizers. To be blunt: a lot of people around the world think the U.S. means them ill.  The U.S. would do well to supplement its sophisticated and expensive law enforcement efforts with some good old-fashioned soul-searching: we need to get honest with ourselves into the root causes of these attitudes.

In love with being at war

Cartoon courtesy John Jonik
The biggest thing holding our government back from reverting to a straight "criminal justice" approach to people who commit crimes against us is that it might mean it would have to abandon the war trope: the "global war on terror" . . . the "war on drugs" . . . .

At the end of the day, the most salient feature of the "in-between" status we have bestowed on our enemies is that it allows for maximum war-making and maximum war-talk with a minimum of war governance. What we've ended up with is a state of permanent war united with a zero accountability government.

Where's Eliot Ness when you need him?

Related posts

I think the U.S. is in the midst of a big shift.  I think that for over a decade following 9/11 people have been so enmeshed in fear that their instincts weren't working properly. I think that we are in the midst of a slow process of awakening: people are emerging from the shadow of fear to a wider range of sensibility -- and they are realizing there are some things that are out of joint.

(See Too Much State Power? (Asymmetric Warfare and Asymmetric Policing))

If the public will join us in asking the question "Who decides?" about drone executions, I believe they will rapidly come to realize that they are utterly dissatisfied with what the government is saying.

(See Who Decides? (When Drones are Judge, Jury, and Executioner) )

A September 5, 2013, U.S. drone strike in Pakistan killed six people - including Sangeen Zadran -- a "senior militant commander" who was "implicated in a long-running kidnapping drama involving an American soldier."

(See September 5 in Pakistan: Another Day, Another Drone Killing)

Attorney General Eric Holder stepped down last week. Mainstream media commentaries on his legacy are all over the map.  Perhaps it would be fruitful for one or more law school to avail itself of this stock-taking moment. What happened? Why?

(See Detention USA: EVERYBODY is Starting to Ask Questions! )

I'm awed by the apparent way in which the framers stepped up to the plate to write rules that bring about a new way of governing, in contrast to the one they had just stepped away from.

(See An Evening's Entertainment in D.C.: U.S. Constitution 101 )

The U.S. Constitution has become a second class citizen in 2010 America; at least while there are more important things like health care reform to accomplish.

(See Rahm to Constitution: Drop Dead )

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