A very thoughtful article by our own Public Defender Jeff Adachi about
the ineffectiveness of government coercion...something we Libertarians
have known for a long time. Maybe we should try to arrange a meeting
with him. He seems to be speaking our language.
June 4th, 2009 |
Category: Community Justice Center
<http://sfpublicdefender.org/media/community-justice-center/>
By Jeff Adachi
One of the ongoing debates of late surrounding the Community Justice
Court concerns the question of how to force a person to change their
behavior. The CJC might be viewed as a social experiment to determine
whether coercion is effective in changing behavior. Will an alcohol
addicted person who is hailed into court for passing out on the sidewalk
stop drinking because he or she is in court facing some type of
sanction? What about a mentally ill person? Will judicial sanctions
keep them from acting outside the law or engaging in destructive or
obsessive behavior directly related to their mental illness? What about
the crack user who continually endangers his health and drains his
pocket book in order to get that one last hit? Will that person be more
likely to stop their drug use if they are subjected to punishment? What
about a homeless person who, night after night, sleeps on the sidewalk?
I recently met a brilliant author and political historian named Arthur
Evans who wrote a book titled "Critique of Patriarchal Reason." In
Chapter Two, in a section titled "The Coerciveness of Law," Evans
writes, "whereas customs hold sway through social pressure, and personal
values motivate through individual feeling, laws coerce through
governmental or judicial machines set up to enforce them."
Most people choose to comply with the law because that is how they have
been conditioned. Laws that forbid malum in se conduct (conduct that
is "bad" in and of itself) are usually followed by those who do not wish
to violate social norms or customs that they have been taught. Other
laws are followed because of personal values. A person who purposely
throws an empty cup of coffee from his or her car while driving does not
share the personal values of a person who strongly disfavors littering.
Only if the person is "caught" and sanctioned will the person be
motivated to change their behavior.
This eventual and resulting change in behavior, of course, assumes the
litterer's rational thought process. For a person who acts out of
mental illness, or the kind of mental derangement that comes with
abusing drugs, irrational decision making is rarely influenced by fear
of sanctions. Most people who are addicted to drugs do not think, "I
should stop using or selling drugs because I might go to prison." If
that were the case, we would not have 60% of the people in prison there
for using or selling drugs.
Most of the new cases that appear at the CJC fall in the category of
loitering, illegal lodging, obstructing the sidewalk, and possession of
paraphernalia and marijuana, petty theft and "public nuisance." Those
less likely to find their way into the CJC are litterers (only 1 case
thus far), graffiti artists (3 cases), prostitutes (2 cases) and those
fighting on the street (1 case).
As Evans writes, "[a] certain arbitrariness is likewise involved in the
making of the laws . . . whatever the commanding entity decrees, is law.
Hence in both their creation and execution, laws are arbitrary and
coercive." Many people think laws against possessing a small amount of
marijuana are less about right and wrong and more about enforcing a
shrinking minority view that marijuana should be outlawed in order to
protect society from its harm. On the question of the law's moral
judgment, Evans argues, "laws need not have anything at all to do with
right and wrong," and "even when laws are passed to enforce supposedly
universal values, they often turn out to re-enforce the value system of
the principal backers of the commanding entity."
So what are the values of the commanding entity? At the CJC, it is
largely the police, who decide which cases are sent there. The police
would probably say that they are responding to the needs of the greater
community, who expect and demand that certain laws are enforced. But
the laws that are enforced are really a combination of what the
legislators have decided the laws should be, what laws the police decide
to enforce and of course, what crimes are committed in a particular
neighborhood.
Evans speaks from personal experience. As a pioneering civil rights
activist in New York, he organized colorful and effective protests
against unfair treatment and laws against gays and lesbians. His
successful protests included taking over the clerk's office and offering
only gay (not straight) marriages to surprised callers and enlisting a
troop of tuxedoed gay rights activists to greet then New York Mayor
Nelson Rockefeller at the opening night of the Opera. (He was hauled
away.) He remembers the days when gays and lesbians could be arrested
for showing public affection or violating the infamous "sodomy" laws
which outlawed same-sex consensual relationships on the ground that
these were "crimes against nature." Ironically, these laws were
justified on the grounds that they would deter homosexuality and coerce
persons not to engage in same-sex relationships.
While it may be debatable whether laws punishing people for sleeping on
the sidewalk and loitering are inherently unfair, when we begin
criminalizing status offenses and using that as leverage to try and
coerce behavior, we are enforcing the culture and demands of a
commanding entity. A homeless person who commits a crime because of
their status as a homeless person who is living on the streets becomes a
ward of the court, and is then required to modify their conduct to
adhere to certain conditions, i.e. find a job, live in a shelter, enroll
in classes or seek public benefits. Of course, this can all be said to
be in the best interest of the person.
CJC case-in-point involves a woman who is in her later years and was
charged with a theft offense. She had been ordered to participate in a
reentry program for women, but had not complied with the program
requirements. Her case was then transferred to the CJC, and she was
linked with a social worker who helped identify her needs, and
recommended engagement in services. Her treatment plan included AA
meetings, meeting with a housing counselor and attending a reentry
program. While these needs are pressing, the woman was recently evicted
from her apartment and will soon be homeless. Although she receives
social security, her monthly payments are much less than her rent. As a
result, most of her time is spent trying to cope with her impending
homelessness. CJC can offer a temporary shelter, up to 7-days, but
there are no easy fixes beyond this. Although she is good about showing
up for court, there is no cure for the poverty she is struggling
against. The CJC judge has given her speeches and tried to encourage
her to turn her life around, but when it comes to dealing with issues of
poverty, there is little the court can offer. Overwhelmed with her
housing problems, she has not complied with her treatment plan.
Unfortunately, no amount of coercion will likely change that.
Whether the law can be used effectively as a tool to change long term
behavior and coerce specific outcomes is questionable, particularly when
the person does not want to change or lacks the rational decision making
process necessary to modify their behavior. Putting substance abuse and
mental illness treatment aside, crimes involving poverty are not
immediately solvable unless substantial resources are made available.
Tangible needs cannot be satisfied by speeches and encouragement.
Housing (as opposed to shelter), treatment on demand, food and health
services do not magically appear, even at the Community Justice Center.
