Monday, December 08, 2008

CRIMINAL LAW FOR CRIMINALS ONLY

In a small Massachusetts town recently, an 8 year-old boy died when he was allowed to operate a powerful machine-gun at a gun-club shoot; his father, a doctor, had brought him to the fair for the express purpose of letting him ‘shoot’. The town police chief, who helped organize the affair and took a portion of the proceeds, has been charged with involuntary manslaughter. (The dead boy’s father, reflecting the tactical realities of ‘sensitivity’ nowadays, will not be charged since he “is already being punished and will be punished” in dealing with the loss “for the rest of his life”, quoth the District Attorney.) (See here.)

The Chief, a hale and beefy gent with a smile in his photograph, is wearing his uniform. On his shoulders he wears the three-star rank insignia of a Lieutenant-General, the rank Patton held when he led his Third Army into the heart of Europe. The Chief commands a department comprised – beside himself – of one full-time and one part-time officer. The full-time officer, in addition to his duties as the main component of the field force, is now also discharging the command responsibilities of Chief for the present.

There was a time when small-town police chiefs were distinguished simply by the word ‘Chief’ inscribed on their gold badge, and probably got the new car when one was ordered (although I seem to recall one Texas sheriff, an oil man by trade, who had 52 Cadillac patrol cars, one for each week of the year – but that was in another Texas and another America long ago and far away).

The militarization of local police has now entrenched itself in small-towns, where automatic weapons and Homeland Security-grant combat equipment and even armored vehicles are considered a badge of ‘professionalism’. Cops are now ‘troops’ and Chiefs are field-commanders, and walk a whole lot taller with some stars on their shoulders (available in silver or gold or black field-camo, coat or collar-sized, metal or hardened plastic, in sets of one-through-five stars, at police supply stores or websites, or – in case of emergency – the nearest army-surplus store, just down the aisle from old Wehrmacht or Soviet helmets). The military maxim, alas, is that the officer makes the uniform, and not the other way around – but then that’s not so often the case in the military any longer either.

It may seem odd that a job which requires a complex and deep skill-set administering law enforcement for a citizenry simultaneously reliant on civic order, imperfect to greater or lesser extent, and in all cases constitutionally-protected, gauges its professional success by how well it mimics an organization designed in essence for the successful application of massive lethal force quickly and efficiently.

But it’s a lot more exciting going the military route. And it’s very ‘American’ – as evidenced by recent national experience in Mesopotamia, presided over by the very top levels of the National Command Authority and cheer-led by both flavors of the national political Party.

And perhaps it will buy Us a little time – the control objectives of the National Security State will find room to fulfill themselves in foreign fields. But that can’t last. Sooner or later, and abetted by the equally controlling objectives of the National Nanny State, they shall recoil back upon Us here, a ricochet flood.

The Constitution was specifically and masterfully designed as something of a flood-control wall or series of gates to prevent all that from happening, but that system’s been so compromised after decades of assault from Left and Right that it may not hold, especially if The People aren’t up to maintaining it.

But there’s another and even more disturbing twist to this story. Commenting upon the situation, the general counsel for the state’s association of police chiefs – an attorney, it must be presumed – delivered himself of the following opinion: “The criminal statutes are for criminals who intend to hurt someone else … no one can believe the chief intended to hurt anybody …”.

In case you thought that the Scooter-Libby defense was an infection limited to inside the Beltway - no. In the Beltway version, if you do it for ‘national security’ or ‘for the children’, then even if the act is specifically listed as a crime in the criminal statutes … it ain’t. And of course, the late and former President Nixon put it out there without even the courtesy of a blush.

The local version is that if you do it for good clean fun, then even if the act is specifically listed as a crime in the criminal statutes, it ain’t.

Or, more fundamentally, the philosophy that is ‘the criminal law is only for criminals, not for non-criminals’. The idea that ‘criminal’ is defined precisely by someone breaking the criminal law … seems to have gotten lost, or is no longer ‘operative’. Instead, We can see here the tracings of the old European ‘class’ approach to things: ‘criminal law is for the criminal class, and if one is not a member of that class, then by definition one cannot be a criminal’ – and especially if one is a police agent.

How this ‘class’ approach insinuated itself into American law and thought in this regard is worth some thought. Surely, one avenue of corrosion is the ‘class’ approach to ‘crime’. There was a time when ‘class’ meant ‘wealth’, and engendered in this country a not un-healthy wariness on the part of the non-rich for the unsleeping self-indulgent machinations of the rich. It was quite an engine of a robust politics, and rather clearly and deeply grounded in the abiding reality that those who ‘have’ will not only try to keep things that way, but will always try to ‘have more’, usually at the expense of those who ‘have not’.

But then the class called ‘the rich’ (and all the power their money could buy, rent, command, or seduce) gave way to ‘men’ as a class, and ‘men’ then morphed into all manner of oppression – usually having to do with sex – and ‘men’ as a class (grudgingly modified later on to ‘abusers’ and ‘sex offenders’) became the focus of attention, while the class of ‘the rich’ was pretty much excluded from public scrutiny, an opportunity upon which the rich instantly capitalized, as is their way.

So now a spin-off of all that is that a criminal is no longer defined as somebody who breaks the criminal law and/or is convicted of same, but is rather a class of person … and how far does one have to ‘think’ down that road before dark and primitive woods be reached?

Apparently, just as an oppressed minority cannot itself ‘oppress’ – by definition – so too a police agent cannot be a ‘criminal’, even if s/he breaks the criminal law.

Oh, that doesn’t sound good.

It was probably not a good thing for the police to be ‘valorized’ as they were as early as the later Vietnam-war era (along with ‘hardhats’, the guys who counter-demonstrated against ‘hippies and war-protesters’ while on the clock for building stuff, and who – I am certain – would have taken to the streets with great rage and destruction had the government brought all the construction engineers back from Nam and put them to more useful work building roads and repairing bridges).

While the Republicans – and in this aspect of it I agree – raised police valorization to the level of iconic status as a ‘culture war’ tactic, there is a certain social-psychological logic to it: in the face of the non-order (if I may) espoused by the hippies and that second, ‘Northern’ phase of civil-rights agitation, and in a more fundamental but less clear way by the war-protesters, folks swung toward the up-holders of order. Funny how the repulsive red-neck ‘lawmen’ of the South seen in ‘50s newsreels, and the urban police who as late as the 1930s and even early-‘40s were seen as something between kept-goons and violent political hacks, were valorized – but many of them after WW2 and Korea were veterans and the suburban ethos allowed a certain ‘gemutlichkeit’ to policing.

And McGarrett and Kojak and so many of the large and small-screen seemed to be stand-up folks up against some real nasty characters. And then many of them became women, and of course they were good by Hollywood scriptural definition.

Anyhoo, ‘valorization’ – while it feels good in the short run – is probably not good for any group. Insulation from scrutiny and a certain skeptical eye tends to lead toward various unhealthy flora starting to bloom under the rocks and in the dark places. And they can spread like kudzu. It may well be required of a constitutional citizenry that they “call no one good” as a matter of course.

I say this not as a ‘political ‘statement but simply as a reflection of the fact of human weakness and of the human propensity to do less-than-ideal things; something once captured nicely in the Kathlik phrase ‘original sin’ (and the Catholic Church surely got a bit tangled in its own undergrowth as a consequence of being too-easily ‘valorized’ – though not the Church alone).

And ‘valorization’ itself has spread like kudzu now. All sorts of persons holding power or office, who should be respected but kept-an-eye-upon, were taken off the leash and allowed to pursue their inclinations. The results have not worked necessarily to Our advantage, in the gentle phrase of the late Hirohito, last Emperor of an aggressive, militarized Empire that invited upon itself a blowback nicely captured in the German “Gotterdammerung”. (Indeed, I am writing this, I notice, on Sunday, December 7th, when, once upon a time, the very act that buoyed up that Empire’s spirits as the most glorious mission it ever accomplished, actually set in train such events as would erase its pretensions utterly. Such is the way of things, for those who might think or unthinkingly assume that the deep ‘things’ of History are easily leashed and harnessed to convenience, enrichment, or pleasure.)

It is no disrespect when holding power or office in a constitutional republic, to be kept-an-eye-upon. It should actually be a consolation, knowing that one is working in the service of a citizenry worthy of the title People.

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