I saw on twitter someone retweeted into my timeline the contact information (prisoner number, phone number, etc.) of the inmate who assaulted Dylann Roof. The idea was that we should call the phone number provided and ask to put money on the commissary account of the inmate who had assaulted Roof. The point being that the inmate had done something good and deserved to be rewarded. I was not profoundly disturbed by the idea—it satisfying some unfortunately human set of instincts that includes retributive justice; that same set of instincts that provides the logical foundation, breadth and scope of the Republican Party’s platform—but I was certainly put off by it.
Allow me firstly to dispense with the idea that Roof somehow deserves our pity or sympathy. Nothing could be further from the truth, of course. The judge who arraigned and practically fellated Roof deserves ample scorn for declaring Roof, somehow, a victim. He is not anything of the sort.
The idea of prison justice somehow makes us (or, at least, me) feel a little bit better. But for anyone truly serious about seeing justice done to truly terrible people, prison justice is abhorrent. The idea, then, of rewarding the agent of prison justice is equally abhorrent and we must, against our own instincts to the opposite, condemn it.
The Monopoly on Legitimate Violence
One of the distinguishing features of the state, (although by no means its sole distinguishing feature) as opposed to private citizens, is its monopoly on the “legitimate” use of violence. Hobbes stated as much, whatever you think of him. Max Weber thought a monopoly on “legitimate” violence a necessary condition of statehood. I certainly do not disagree.
I use scare quotes for the reason that I do not believe that the statement is self-proving. That is, the state does not have a monopoly on violence simply because it is the state (other than certain forms). Something must legitimize the use of violence. Otherwise mealy-mouthed liberals will tweet about how the violence is bad, buy a t-shirt that says the violence is bad and then get back in their Volvos and go back to working as foreclosure attorneys.
In America, at least, it is the will of the people that the state have a monopoly on violence (consider this the stupid person’s social contract theory; I am dumb). The people who get to decide how this violence is used are duly elected by their constituents and it is this democratic exercise that imbues them with the right to command the violence of the state. While some people are not elected who are allowed to use violence legitimately (the police, civil servants of most varieties), they are appointed or approved by elected officials and accordingly their legitimacy is transferred. This is, essentially, my paraphrasing of David Graeber on the legitimacy of the state in America. I think. Maybe. I kind of forget exactly what he said but it’s basically that. Alright.
Due Process, or, the Illusion Thereof
In America we have another legitimizing force on the use of violence by the state: the Due Process clauses of the 5th and 14th Amendments.
The text of both clauses reads basically the same: “[N]or shall any person . . . be deprived of life, liberty, or property, without due process of law.” The 14th Amendment is altered slightly to read that no state shall deprive any person of their due process rights. In conjunction the 5th and 14th Amendments provide due process to citizens for deprivations of life, liberty, or property by either the Federal or State governments. The deprivation of life, liberty, or property is an excellent (although perhaps incomplete) definition of the types of violence the state is allowed to inflict on its citizens. And, according to the Constitution, it may not do so at the State or Federal level without first giving those citizens due process.
What is “due process?” An excellent question! I had a law professor who stated that it was what you were to scream when you just knew that something wrong was being done but you couldn’t fit it into the category of Equal Protection, the First Amendment, Fourth Amendment, 5th or 6th Amendment, or some other protective measure embodied in the Constitution. In other words, something wrong is clearly being done but how, exactly, it violates the Constitution is not entirely clear in the context of one of the more clearly defined protections in the Constitution.* Due Process is an excellent catch-all provision, then. The definition of “liberty” and “property” is fairly expansive. And with these clauses the government cannot take away your life, liberty, or property without due process. What that due process entails is a question that relates to whatever is being taken away but frequently it means a court hearing (or series of court hearings) of some varying complexity.
Quite clearly a deprivation of liberty can be said to include the act of imprisonment. Accordingly, we do not put people in jail without a fair trial, or at least the facade thereof. To do so would violate due process (and several other amendments). We don’t condemn houses for eminent domain cases without due process. All state violence must be backed up by providing the person upon whom that violence is visited due process. Without it, according to the United States Constitution, that violence was illegitimate. Whether or not the victim of illegitimate state violence is remunerated is, of course, another story entirely, but provisions exist.
In actual effect the level of due process that is afforded to those upon whom the state uses violence is dependent largely on how much money that person has. For those among us with oodles of cash: oodles of due process. For the less fortunate? Exactly as much due process as they can afford. Public defenders frequently find themselves utterly swamped and humanly incapable of providing the caliber of coverage that defendants require and are Constitutionally afforded. Private attorneys, of course, do not have this problem. But most defendants cannot afford a private attorney. In San Diego County 90% of all criminal cases are handled by the Public Defender. San Diego is a fairly wealthy county, too. The same concept applies, naturally, to citizens facing eminent domain actions. No one would dare try to force Bill Gates off his land because the ensuing legal battle would be so catastrophically cost prohibitive as to make attempted seizure of the land pure idiocy, even if it did succeed (which it undoubtedly wouldn’t).
The practical effect is that most people are provided with merely the illusion of, or a pittance of, due process. But the illusion is enough for most people in America because clearly we have not revolted (en masse) against the use of state violence. It is, for now at least, visited regularly on a small enough group of people—and a marginalized enough group of people—that popular sentiment has not risen wholly against it.
There are, however, safeguards. There are people through whom the decision to enact violence must pass. There are the police who make the arrest. There are the district attorneys who must decide whether or not to charge the arrested citizen based on the evidence provided. There are defense attorneys who make their arguments for innocence or a lighter punishment, whatever the case may be. There are judges who oversee everything and can dismiss frivolous cases or reduce exorbitant punishments. There are appellate courts of multiple levels and, thanks to the only true Radical who ever sat on the Supreme Court—William O. Douglas—your first appeal is on the house! The decision to punish, and the subsequent punishment of, a citizen is a frequently lengthy process. Anywhere from a few months to many years. Many cases that are not worthy of punishment do end up in a court of law. It is imperfect at best. But there is a guard against arbitrary violence.
Prison Violence and Due Process
Prison violence, of course, has not even the illusion of due process. The best any group of inmates could hope to muster before dispensing with a beating is a kangaroo court.
The actual practice of prison violence is frequently utterly random. It is based, often times, on completely incorrect information. Prisoners are beaten to death on the false belief they have been charged with or convicted of a crime that is beyond the pale to their fellow prisoners. While working for the San Diego Public Defender I heard at least once of doctoring up a document that stated a defendant awaiting trial on, I believe, child molestation charges was actually facing some other non-offensive crime. The purpose being to keep him from being beaten to death in prison.
The decision to beat an inmate awaiting trial offends another notion that Americans purport to hold profoundly dear: innocent until proven guilty. And, as he has not yet had his trial on the charges Dylann Roof is, as of right now, innocent. America does not punish the presumed innocent because it is illegitimate violence.
If we begin to support the out-and-out use of violence with no due process by those not imbued it by popular will or the Constitution, we set a bad precedent. We legitimize the use of illegitimate violence (not to go all debate-nerd on you, but I understand that this is a slippery slope I tread upon). You might argue that Dylann Roof is a particularly bad person and clearly guilty. That, you might argue (thank you for arguing with me), justifies his beating. If we begin to make allowances for the bad cases, where does it end?
I would be lying if I stated that hearing that Dylann Roof got the shit kicked out of him made me weep with pity for the poor little man. I will freely admit to getting a quick jolt of lizard-brain satisfaction. However, we must not allow ourselves to become slaves to that same satisfaction. It is an unthinking devotion to that same impulse that drives the basest elements of our politics and condemns us to a life with less liberty than we imagine.
We have restricted the use of legitimate violence to a certain number of actors for a reason. To do so makes us safe. If we cannot depend on only actors with that privilege to dispense violence and do so with the proper amount of due process beforehand, it destroys faith in the system of government. This is abundantly clear in the Black community in the United States. Illegitimate violence is visited against them all the time and, accordingly, they are rightfully wary of state actors proclaiming their authority, that is, the legitimacy of their use of violence.
The American government, as it stands, is frighteningly close to illegitimacy. It does not act for the entirety of the people whom it governs. It doesn’t even act for a majority of those people. It dispenses violence without due process frequently. The last thing this country needs is more illegitimate violence. So, for me at least (because I just can’t take this shit much longer), resist your basest desire and please, please, please do not give money to the guy who beat up Dylann Roof.
You shitheads can come abuse me on twitter if you want: @EvilRoySlade69. We can talk about whether or not the Oxford comma is proper. Just kidding. We can’t. The Oxford comma is a criminal act and if you try to argue for it I will call the federal police on you.
*The example I would use is executing someone without an appeal. It’s not a 1st Amendment issue, clearly. It’s not an illegal search and seizure under the 4th Amendment. It could be a denial of counsel under the 6th Amendment but that’s a stretch. It could be an 8th Amendment issue but that pertains more exactly to the literal method of execution (not that any method of execution has ever been deemed cruel and unusual). So you have a situation (execution without appeal) that’s clearly wrong, but it doesn’t quite fit into the other protections. It does, however, fit into Due Process.