Fragility of the American Justice System


Nassim Nicholas Taleb’s Antifragile: Things that Gain by Disorder is a revelation. At last, someone has explained to me why so little has ever made any sense to me, especially about the behavior of my fellow human beings.

One of the most important things that hasn’t made any sense to me (at least since 2006 when I served on a jury) was the American justice system.

The problem with American justice is that in the past 228 years the highly Antifragile U. S. Constitution and Bill of Rights has become fragile, in other words, by treating the Constitution as “a living document” instead of as a rock-solid foundation, Americans have slowly squeezed the elasticity out of it, so that now it is on the verge of shattering.

Sidebar: If you think I exaggerate, consider the NY Times Op-Ed’s recent screed: “Let’s give up on the Constitution.” (I won’t dignify this choplogic with any other comment.)

The original Constitution and Bill of Rights anticipated unexpected, anomalous events, what Taleb calls “black swans” (one-in-million events). But human nature and modern statisticians want to believe in a nice, cozy “average,” a Bell Curve. So we try to establish a “well-ordered society” in which nothing strange or shocking can ever happen. For instance, we outlaw automatic rifles and try to pretend the bad guys won’t be able to obtain them, or we become amnesiacs and forget about airplanes carrying no automatic rifles diving into buildings.

Rights to a Fair Trial and Just Punishment when Guilty

Under the Antifragile Constitution, Americans (and everyone else who lives here) enjoy these freedoms:

Fourth Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Sidebar: In modern American English this means, people have the right to own private property and to maintain their privacy; invasion of privacy and seizure of private property are prohibited unless the government has solid grounds for doing so and only if the government agents who perform the search and seizure have first sworn an oath as to what the grounds are, exactly what places are to be searched, and exactly who they intend to arrest or what they intend to seize.

Fifth Amendment: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Sidebar: In modern American English this means, no one can be tried for murder or any other notorious, horrible crime unless a Grand Jury has heard the outline of the government’s case and issued an indictment; the one exception is during wartime when the accused is a member of the armed forces; no one may be tried twice for the same crime; no one can be forced to testify against himself; no one can be punished without a trial; no one’s property may be seized by the government without compensation in some form.

Sixth Amendment: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”

Sidebar: In modern American English this means, after arrest, criminal defendants have the right to a speedy public trial (no long drawn out investigations after arrest and no trials in secret);  it must be a jury trial and conducted in the legally defined community where the alleged crime occurred; an arrested person must be told exactly what it is he or she is believed to have done wrong and to have the witnesses against him make themselves known to him before the trial (no surprise witnesses for the prosecution); the defendant has a right to compel people to appear as witnesses in his defense, whether they like it or not; the defendant has a right to a lawyer.

Seventh Amendment: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”

Sidebar: In modern American English this means, in civil court where two people have a complaint against each other, both sides have a right to a jury trial, too; the decision of the jury is always final unless a judge has the right under common law to overrule the jury. “Common law” means specifically the long-standing practices of Anglo-American courts.

Eighth Amendment: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Sidebar: In modern American English this means, punishment in all cases cannot be cruel (imposing irreparable harm on the defendant, who may actually turn out to have been falsely accused) or unusual (designed specifically for him or her and not otherwise specified in law). (These are my personal interpretations of the words “cruel” and “unusual.” Obviously, I am not a lawyer, just a very good reader of 18th c. language. I do not, as most lawyers do, think that the word “and” was used in the 18th c. to mean nothing but “and.” It also meant “or.” I acknowledge, however, that capital punishment is not included in this definition of excessive punishment, because the Fifth Amendment clearly states that a person can be “deprived of life.”

Do We Still Want Defendants to Enjoy These Freedoms?

Of course not. The courts have slowly watered each of these rights down, because we are more afraid of 10 “guilty men” going free than we are of 1 “innocent man” being punished. We think that those 10 criminals will rampage forever unless we make sure we can throw them in jail. We know that the 1 innocent will just sit there quietly in jail for 30 years and then lie down for the fatal injection. Few people care about this injustice any more.

We’re fragile as a society and individuals, too scared to do anything but accept the necessary loss of freedom.

Smart Grid Objectors Arrested in Illinois

This week a woman homeowner was arrested in Naperville, IL, for objecting to the local electric company’s forcible installation of a “Smart Grid” meter on her house. She said she objected because the meter is designed to wirelessly transmit information about what she is doing inside her home to the electric company. This, she said, was a “violation of privacy” and could potentially permit burglars to monitor when she is and is not at home (and they will).

IMHO this is all true. But I would argue that the Smart Grid is also a violation of the Bill of Rights, which gives Americans the freedom from warrantless search and seizure and from government “takings” without just compensation.

First, I need to make sure you understand what the Smart Grid is and why it’s a government program, not a program of private industry (namely the energy companies). The Smart Grid concept was dreamed up after the massive power outages in California and the Northeast in the past decade. The government decided that a computer system ought to be devised to control the distribution of energy throughout the country according to supply and demand. (Of course, this presupposes that energy-company and government computer programmers are smart enough to design and implement a smart system—something in my vast experience as a computer-systems trainer I know they are not.)

Last year the Illinois legislature passed a law that requires all homeowners and businesses to participate in the Smart Grid (with some odd exceptions). Specifically, each township must negotiate a discounted energy price for all its constituents from one of the energy companies that runs exclusively on the Smart Grid, as opposed to Commonwealth Edison, which gives consumers the option.

Sidebar: The irony here is that IL has now created town-specific monopolies to compete against Commonwealth Edison, which historically was Illinois’ monopoly and which had to be broken up decades ago to bring in competition and more choice for consumers.

Why Does the Smart Grid Violate Your Right to be Free From Warrantless Search and Seizure?

The Smart Grid constantly monitors your energy usage. Day and night. The meter transmits this information to “Gestapo Headquarters” where a database is collected on your home or business. The data will be graphed and charted. The graphs and charts will be filed for later inspection by the government.

“Why would the government bother to do that?” you ask. Well, did you take an energy tax credit on your last tax return? The IRS could look at the Smart Grid data on you and use that to require an audit of your taxes and possibly charge you with tax fraud. In other words, the government won’t need a warrant to look at your private files, because the energy company will claim the data belongs to them and they will be happy to turn it over to the government. (BTW: Isn’t this the essence of fascism?)

Why Does the Smart Grid Violate Your Right to be Free From “Takings”?

The Smart Grid takes away from you the use and control of your energy-supply systems—and use and control is the same as ownership. Right now the wiring in your home, your fuse box, your hot-water heater are your private property. You can use and control them. The Smart Grid gives the use and control of your private property over to the people who use and control your energy meters.

The real purpose of the Smart Grid from the government’s perspective is rationing of energy in the future when it becomes increasingly scarce. To prevent the possibility of a power outage even in a single neighborhood, during shortages the government will require your power company to reduce the amount of energy they supply to your home. The reduction percentage will be across the board, not based on any home’s individual needs.

For instance, let’s say you’re caring for an invalid in your home. So your home needs twice as much energy as your neighbor’s just to keep that person alive, let alone keep your refrigerator going or your home cooled in a severe heat wave. Well, the Smart Grid meter on your house will first of all constantly harangue you to reduce your energy usage, especially in the middle of the night—constantly, as in not only during shortages. Then when the first shortage comes along, the meter will arbitrarily reduce your usage for you.

If you run a computer-based business on commercial property or in your home, the Smart Grid will treat you the same way it treats a neighboring dog-grooming business. No more electricity for you. . . . (paraphrasing the Soup Nazi).

So, beware. If you are given an “Opt-Out” of the Smart Grid, do it, even if it will cost you a little more now for your energy. In the future it could make the difference between having a right to buy the energy you need or not.

The Grand Jury in Shakespeare’s Hamlet

Okay, so we all agree that Shakespeare’s Hamlet is a ghost story and a murder mystery (like Chalk Ghost by yours truly), but did you know it’s also a courtroom drama?

To remind you: In the play, Hamlet, Prince of Denmark, kills Polonius (stabs him behind an arras), who is his girlfriend Ophelia’s father. Eventually (Act IV, scene v—in Roman numerals that no one can read anymore that means Act Four, scene 5) Ophelia’s brother Laertes storms into the castle and tries to “arrest” King Claudius, whom he mistakenly believes to be the man who murdered his father.

Recently, when rereading Hamlet for the umpteenth time, I noticed for the first time that Claudius employs a grand jury to exonerate him of the charge of killing Polonius. Toward the end of the aforesaid scene, King Claudius says to Laertes, speaking Early Modern English:

“Go but apart; make your choice of whom your wisest friends you will, and they shall hear and judge ‘twixt you and me. If by direct or collateral hand they find us [that is, the king who’s always plural] touched, we will our kingdom give, our crown, our life, and all that we call ours, to you in satisfaction; but if not, be you content to lend your patience to us, and we shall jointly labor with your soul to give it due content.”

In Modern American English this means:

Go outside and choose a jury of your friends. I will present my case for innocence to them. If the jury finds me guilty of direct murder or even of instigating your father’s murder, I will turn over the keys to the kingdom to you in payment of my debt to you. But if they don’t find me guilty you must agree to go along with my plans to punish the guilty party (that is, Hamlet).

King Claudius and Laertes leave the stage. They return in the next scene, after the grand jury has met and failed to produce an indictment of Claudius. Claudius says:

“Now must your conscience my acquittance seal. . . .”

Claudius claims he’s innocent of Polonius’ murder—and he’s right about that, although it’s the only murder in the play that he is innocent of.

Justice in Hamlet and the Bible

Reading Hamlet for the first time as a mystery writer, I’m struck by the number of legal references in the play. I won’t list them now (maybe later), but the idea of justice that Claudius relies on does strike me as particularly relevant to many of the trials that America has obsessed over recently (think Casey Anthony).

For Claudius and everyone in Shakespeare’s time, justice isn’t sought through trials on behalf of society: justice is sought on behalf of the injured party, rather as our civil court system does. Even murder in Hamlet is a crime against the victim’s family, not all of Denmark. In fact, the only murder in Hamlet that is a crime against society is Claudius’ murder of King Hamlet, a murder he committed in order to usurp the throne.

The Bible (especially the Old Testament) also treats most crimes as crimes against individuals, not society: “an eye for an eye, a tooth for a tooth.” The Ten Commandments are mostly prohibitions against injuring others—coveting a man’s wife or ass, for instance. Even in ancient Greece, a murderer was brought to trial not by society but by the victim’s family.

This makes a great deal of sense to me: the people most concerned by a murder are the victim’s family. I’m not saying I think we should do away with anti-murder laws. Clearly modern society must have a way to remove from its midst those individuals who are anti-social, or else they will continue to harm more innocents. But in Shakespeare’s day, the notion of sociopathy and psychopathy were non-existent. Madness, it was believed, could be either divine or infernal, and in both cases God, not the court system, was expected to deal with the problem. You could be executed for just about any crime, too, whether killing a rabbit on the lord of the manor’s manor-grounds or for killing your baby.

The key thing is that society as a whole didn’t become rabid about a single murder. Society went wild only when the murder affected all of society—such as the murder of the king, the equivalent of a political assassination today. An assassin takes in his own hands what ought to be the choice of the whole nation. A mother who may or may not have killed her child—whether accidentally, negligently, or intentionally—ought not to be the business of the whole nation. Yes, arrest her, try her, and punish her like Claudius suggests, but “if they don’t find her guilty, society must her acquittance seal.”

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