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Clarence Seward Darrow (1857 – 1938) was an American lawyer and leading member of the American Civil Liberties Union. He wrote books on crime and punishment, as well as on the morality and origins of the system which are classics of the libertarian movement, and a cry for attention about all that is wrong in the legal system. Resist no Evil can be FOUND HERE and HERE.
Foreword by Douglas French
I love the fact that Douglas French starts with a truth I've recognized for a long time. I think it foreshadows how the book won't necessarily conform to common allowable opinion.
We’re drawn to books that reinforce what we already believe. It makes us feel smarter that an author shares our opinion and provides words we can use to make our case on the off chance that’s required.
Specifically he discusses the party politics that are prevalent in the world today.
At the time I remember being on the fence, with a slight lean toward supporting capital punishment. The deterrence arguments resonated with me. ... In the end, to not support capital punishment put a person with the bleeding heart liberals, company I didn’t want to be in. But this is the way with so many issues. Instead of analyzing the problem for ourselves, we let the group we identify with make the decision for us as to what we believe. A lazy way to live, requiring no thought, no study, no consideration, no introspection. Clarence Darrow does not allow for that. He does not allow you to sit in the jury box of public opinion and let the other jurors make up your mind.
Although written in 1902, Darrow anticipates the prison nation that America is today. The state is set up not to administer justice, but to punish. No victims are compensated, but the state gets its pound of flesh.
This reminded me of a Jason Stapleton Program show I was listening to recently. It discussed a Virginia man who was convicted of multiple counts of Grand Larceny (Theft greater than $200). The guy was stealing wheels off of cars and got sentenced to 132 years in prison. Jason Stapleton discussed why our system is apt to just throw people into prison and not have them work to repay the victims. Instead the victims got their tires stolen and THEN had to get taxed to support the criminal in prison for the rest of his life! Why not make the guy work with proceeds in reparations to the victims?
Darrow's Introduction sums up well what we all know if wrong with our criminal justice system.
CHAPTER I: THE NATURE OF THE STATE
"The doctrine of non-resistance" that Darrow refers is generally defined as "the practice or principle of not resisting authority, even when it is unjustly exercised". So if it's the law, you follow it, regardless of morality. Looking historically, Slavery in the 1800s and locking Japanese Americans up during WWII come to mind. Looking at the present times, the examples of throwing people in jail for collecting rain water comes to mind. These Facebook stories usually have an abundance of "Well, don't break the law and you won't go to jail" comments.
Darrow suggests that, philosophically, it is man's highest ideal to live a fulfilled life in peace, not coerced by government force.
Endless volumes have been written, and countless lives been sacrificed in an effort to prove that one form of government is better than another; but few seem seriously to have considered the proposition that all government rests on violence and force, is sustained by soldiers, policemen and courts, and is contrary to the ideal peace and order which make for the happiness and progress of the human race.
Great analogy comparing the rulers of ancient times- Basically the biggest man got a large club and enforced his rule as chieftain through force over his tribe. He used his power primarily to maintain power not for the betterment of those he ruled over. As one man cannot maintain power for long, he cronied his buddies as lieutenants to maintain power "and they were given a goodly portion of the fruits of power for the loyalty and help they lent their chief." The parallels to today are evident.
From the early kings who, with blood-red hands, forbade their subjects to kill their fellow men, to the modern legislator, who, with the bribe money in his pocket, still makes bribery a crime, these rulers have ever made laws not to govern themselves but to enforce obedience on their serfs.
CHAPTER 2: ARMIES AND NAVIES
How is the authority of the state maintained? Darrow believes it to be maintained by force or the general threat of force. More generally, the power of armed men with all the 'modern implements of death". Specifically, 1) military personnel and 2) courts of justice, police and jails.
I don't believe Darrow is being realistic (in his time, or ours) that all countries should not have a standing armies. Sure, idealistically, if there were no wars, these men and women could lead more productive lives and build skills and participate in tradecraft, but ever since Napoleonic times, we are required to have a standing army as long as our neighbor does. I don't see the world's militaries self-disintegrating any time soon.
I also found his 'endless wars' rhetoric to be quite interesting considering he wrote it Pre World War I, World War II, Korean War, Sino-Russo War, Vietnam War, Lebanon, Granada, Tanker War, Persian Gulf War, Bosnia, Kosovo, Afghanistan, War on Terrorism, etc. The world hadn't seen nothin' yet!
The nation that would today disarm its soldiers and turn its people to the paths of peace would accomplish more to its building up than by all the war taxes wrung from its hostile and unwilling serfs.
Overall, I agree with the travesties of war, but don't agree with it's pragmatic to think everyone will demilitarize.
CHAPTER 3: THE PURPOSE OF ARMIES
But in reality the prime reason for all the armies of the world is that soldiers and militia may turn their guns upon their unfortunate countrymen when the owners of the earth shall speak the word. That this is the real purpose of standing armies and warlike equipment is plain to all who have eyes to see.
We can see how military equipment has been appropriated to our police forces (Thanks War on Drugs!) but I think the premise Darrow is extolling is something different. But thinking one caused the other is a fallacy of 'Post hoc ergo propter hoc'. Because the rooster crows as dawn, and then the sun rises at dawn, does not mean the rooster causes the sun to rise.
That the military is to be called on to directly suppress the free people isn't something that we've seen consistently. I mean, the National Guard is called sometimes for riot control, but Darrow's fears haven't been consistently witnessed throughout the passing of time.
CHAPTER 4: CIVIL GOVERNMENT
As society reaches the industrial stage, it is easier and costs less waste of energy for the ruling class to maintain its supremacy through the intricate forms and mazes of civil government, than through the direct means of soldiers and guns. Civil governments, like military governments, are instituted and controlled by the ruling class. Their purpose is to keep the earth and its resources in the hands of those who directly and indirectly have taken it for themselves.
Darrow begins to build the case of morality here. Just because the courts are decreeing something, it must be obeyed at the threat of impounding property, kidnapping and imprisonment of men or, in some cases, killing the offender.
... the will of the sovereign is law, and the law is made for the benefit of the ruler, not the ruled.
Darrow says that even a newly established government receives the historical laws and decrees 'based upon the old notions of properties and rights that were made to serve the rulers' previous. But I find that lazy (mostly because I'm a pro-property rights). Sometimes those are inherited because they are superior based on merit.
I love his description of Lobbyists.
The man who possesses one sort of power, as, for instance, political privilege, is very friendly to the class who possess another sort, as, for instance, wealth, and this community of interest naturally and invariably arrays all the privileged classes against the weak.
I wish that Darrow, instead of just criticizing the natural tendency for some men to desire to rule over others, he could provide some solutions other than 'We should just all live without government and its evils!'.
Order is more important than liberty, and at all costs order must be enforced upon the many.
"All punishment and violence is largely mixed with the feeling of revenge, - from the brutal father who strikes his helpless child, to the hangman who obeys the orders of the judge; with every man who lays violent unkind hands upon his fellow the prime feeling is that of hatred and revenge"
^^ and this is what I have against retributive justice.
"In some inconceivable manner it is believed that when this punishment follows, justice has been done. But by no method of reasoning can it be shown that the injustice of killing one man is retrieved by the execution of another, or that the forcible taking of property is made right by confining some human being in a pen"
"To punish a human being simply because he has committed a wrongful act, without any thought of good to follow, is vengeance pure and simple, and more detestable and harmful than any casual isolated crime".
“Such acts as these would almost never be repeated. Genuine repentance follows most really vicious acts, but repentance, however genuine, gives no waiver of punishment.”
Do you all feel that it is entirely the act of imprisonment itself and nothing in any violent criminal, whether by nature or nurture, that leads to recidivism?
I don't know how it was in 1903, but I recently watched a few minutes of OJ Simpson's bail hearing. His repentance definitely did not waive his sentence, but i think it had a lot to do with his early release.
“The safety aimed at through punishment is not meant the safety for the individual, but it is contended that the fact that one person is punished for an act deters others from the commission of similar unlawful acts; it is obvious that there is a large class who are not deterred by these examples, for the inmates of prisons never grow less . . . "
I am not for locking in people in cages (nor for the death penalty) but I never thought of imprisonment as a deterrent. If there were any point to it at all, I think it would be to prevent that particular individual from being able to violate others' rights (except perhaps other inmates). If so, then imprisonment is not motivated solely by cruelty and hate as Darrow claims.
I did not realize his claim that public executions actually caused people to commit copycat crimes. I believe it but I wish he had actually documented this claim instead of just positing it.
"The last refuge of the apologist is that punishment is inflicted to prevent crime"
"The theory that punishment is a preventive to unlawful acts does not seriously mean that it is administered to prevent the individual from committing a second or a third unlawful act."
He goes one to talk about how if the punishment is to be a deterrent, then we should logically use only the cruelest methods of punishment, but we don't, so therefore how can we claim that the punishment is a deterrent?
His point at the end of chapter VI that the state is constantly trying to "improve" prisons brings to my mind the prohibition in the Bill of Rights against cruel and unusual punishment. I find that a pretty problematic phrase, for who is to say that imprisonment itself is not cruel? I guess the fact that it is so common makes it not unusual.
Darrow discusses, as the chapter title states, the cause of crime, and says that we should ponder on that. I have long felt that this is an important thing to consider, and this is why I am so interested in restorative justice. I feel that we should seek out WHY this crime happened and work to fix that through psychological means if possible.
I think he is making the case for nurture as the cause of criminal behavior rather than nature. As such he points to the fact that inmates tend to be poorer than non-inmates. However he throws "mentally deficient" in there as well which is more nature than nurture. He seems to be making a class warfare argument, but I think he overlooks the possibility that more poor convicts than wealthy convicts does not necessarily mean there are more poor criminals that wealthy. That could be a result of disparities in the criminal justice system itself that allow more wealthy people to get away with the crimes they commit.
What do you think of his closing in that chapter? To wit:
"The jail and the penitentiary are not the first institutions planted by colonists in a new country, or by pioneers in a new state. These pioneers go to work to till the soil, to cut down the forests, to dig the ore; it is only when the owning class has been established and the exploiting class grows up, that the jail and the penitentiary become fixed institutions, to be used for holding people in their place.”
**Another class warfare argument**. But you could just as easily flip that. Perhaps it is not until the owning class is sufficiently established in a new settlement that there is enough stuff making it worth the while of the working class to try and steal, thus motivating the owning class to get around to building jails.
"Reason and Judgement as well as an almost endless array of facts have proven that crime is not without its cause. In showing its cause, its cure has been made plain. If the minds and energies of men were directed toward curing crime instead of brutally assaulting the victims of society, some progress might be made"
"Nearly every crime would be wiped away in one generation by giving the criminal a chance. The life of a burglar, of a thief, of a prostitute, is not a bed of roses. Men and women are only driven to these lives after other means have failed."
For a trial lawyer, Darrow sure has plenty of criticism for trial by jury. I am looking forward to the part where we get to his alternative.
"He cannot understand how a so-called thief should have forcibly taken a paltry sum. He cannot conceive that he, himself, could under any circumstances have done the like.”
Not sure if that is universally true. Don't judges frequently consider mitigating circumstances in sentencing? In the film "Inherit The Wind" the jury found Cates guilty, but the judge fined him only one hundred dollars causing Brady to drop dead.
I think in the Afterword Riggenbach gives Darrow entirely too much credit when he writes:
“This illustrates the extent to which the Clarence Darrow of 1902 was on pretty much the same wavelength as the Murray Rothbard of 80 years later.”
On the contrary, I submit that Darrow was the anti-Rothbard and that Riggenbach credits Darrow for things Rothbard wrote but that Darrow did not.
Here he comes blatant what was hinted at in the previous chapters-
“Most of the laws governing the taking and obtaining of property, which constitute the great burden of our penal code, are arbitrary acts, whose sole purpose is to keep the great mass of property in the hands of the rulers and exploiters and to send to jail those who help themselves and who have no other means within their power."
What he is advocating here is closer to anarcho-communism than anarcho-capitalism and would prevent me from ever recommending this book, despite some of the good points he makes about the state and criminal justice earlier.
“These crimes are burglary, larceny, obtaining property by false pretenses, extortion, and the like. The jails and penitentiaries of every nation in the world are filled to overflowing with men and women who have been charged with committing crimes against property.”
I don't know about 1903, but I would have no complaint if that were actually true today. But actually they are filled with victims of the drug war and people who have committed only various "crimes" against the state.
The way he concludes chapter 13 and chapters 14 and 15 are completely at odds with Rothbard's analysis of property rights in *New Liberty*.
Chapter 16 was a big letdown
Here Darrow claims to offer his alternative to what he spent the last dozen chapters insisting does not work. His alternative amounts to ending punishment and adopting kindness instead. But he offers no concrete examples of how that operate in practice.
Say you are a parent and someone pre meditatively rapes and murders your children. What would Darrow say should be done with the offender. Certainly not put them on trial because no one is qualified to sit in judgement nor understand the perpetrator's woes. Apparently the victims' parents are just supposed to show the perpetrator love and kindness.
“I won’t leave you with the impression that Clarence Darrow was an early, unsung Rothbardian, because he wasn’t.”
**Talk about an understatement!**
There are some quotes in the book I like, especially in the first four chapters when he is trashing the state. But I have previously outlined my criticisms:
1. It is more a polemic than expository. He posits a lot of things without making an argument for them, citing examples to prove his case etc.
2. He spends chapters critiquing the criminal justice system, generating anticipation for his alternative, yet when he gets to that point, there really is not much substance at all. He COULD have advocated restorative justice, sure, but he really did not.
3. In the final two chapters he advocates class warfare - the forced redistribution of the property of the wealthy.
Initially I had hoped that this might at least be a book I could recommend to the left to help shake their confidence in the state, but ultimately it is not a book I would comfortable recommending to anyone.
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