by William Anderson
This morning I spent time with a some men aged 80+ at a small roundtable discussion, and the topic dealt with the modern application of Claude-Henri de Rouvroy Saint-Simon’s dictum that “the government of men must be replaced by the administration of things.” While the topic of discussion dealt mostly with the Obama administration’s health care law, nonetheless I could see how it fits exactly into the modern American “justice” system and how it swallows millions of people while many of us watch in horror.
Saint-Simon believed that modern society should be governed by bureaucracies guided by the principles of science, and he certainly found kindred souls within the Progressive Movement in the United States about the turn of the 20th Century. Progressives pictured a state in which wise, science-guided bureaucrats led a system that would replace the entrepreneurial, commerce-driven American society, placing administration into the hands of selfless “experts” who would “professionalize” various occupations and rid the economy and greater society of the messiness that presently engulfed it.
The system of justice did not escape the desire of Progressives for “the rule of things,” and over the years, the “experts” have “captured” the governing apparati. Professional prosecutors supposedly trained in all things pertaining to “scientific justice” rule the grand juries, trials, and then are “promoted” to the office of judge. For the most part, things are long decided any case ever goes to a jury (if it ever is heard by a jury), as juries tend to be “ignorant of scientific principles” and are anachronisms at best. While the district attorneys in the state system are elected and U.S. attorneys are appointed by the president, the nuts-and-bolts of criminal justice is in the hands of assistant prosecutors who essentially have lifetime tenure, are protected from liability from any wrongful actions that might victimize innocent people. If any group of people reflect Saint-Simon’s “the rule of things,” it is the assistant prosecutors that relentlessly grind the gears of the system and grind people into oblivion in the process.
Social scientists have various theories to explain why systems created with checks and balances ultimately degenerate into something a bureaucratic near-dictatorship that supposedly was to be prevented by those same checks and balances. As I see it, we are observing an extension of what economists call “Capture Theory,” in which the regulatory apparati are “captured” by the very entities that are supposed to be regulated. Economist Murray N. Rothbard and others from the Austrian School have added that monopolies tend to be “captured” by their employees, and government certainly qualifies as a monopoly. (I do find it interesting and disconcerting that many economists even today stubbornly believe that the monopoly called government can effectively regulate what it calls economic monopolies and force them to operate as “competitive” entities. Just step back and think about it.)
Prosecutors have had plenty of help as they have quietly and brutally “captured” the “justice” system. Anglo-American law that was here at the founding of this country, with its emphasis upon “due process of law” and “the rights of the accused,” not always is effective at nailing those who are guilty of wrongdoing. The public has dealt with the perception that “loopholes” in the law allow some guilty people to go free by making it harder all accused people to be able to fight charges against them. Politicians, who have found that being “tough on crime” also enhances their changes of be elected and re-elected, have created thousands of new “crimes,” most of them fitting in the category of the failure of an individual to carry out a “public duty” — as defined by politicians and other Progressives.
Obviously, when politicians eliminates the checks and balances and hand authority to tenured and careerist bureaucrats, the system that will come about is one that ultimately will benefit the bureaucrats, and we clearly see that in American justice today. People who are charged with crimes either must use their own resources to fight charges or depend upon court-appointed lawyers who more than not are going to want to curry favor with prosecutors and judges. The monies these lawyers are allotted generally cannot come close to covering the cost of a trial, so the only way for these attorneys to cover their own costs is to quickly plead out their clients, which is one reason that 97 percent of federal cases and 95 percent of state cases end in plea bargains.
Prosecutors, on the other hand, tend to capture the personal benefits of a conviction or guilty plea. (No, it is increasingly rare that “society” shares the benefits, unless one believes that incarcerating non-violent offenders such as drug users confers a “benefit” upon a society that now must pay to house and feed them.) High conviction rates lead to increases in salary, promotions and prestige. Often, they lead to higher political office or a slot with a prestigious (and well-paying) law firm.
As for the “experts” that were supposed to “modernize” investigations and enable prosecutors to better pinpoint proof of guilt, all too often we have seen agents of the government who supposedly were “doing science” actually engage in outright quackery. Radley’s exposure of Mississippi “forensic pathologist” Steven Hayne and “forensic dentist” Michael West as being people who would come up with unbelievable theories to support whatever prosecutors wanted is only a tiny part of the fraud that government “experts” have perpetrated. The highly-publicized problems with the FBI Crime Lab, and corruption in state and even private labs demonstrate once again that the so-called “experts” are not what Progressives want us to believe that they are.
In the end, what occurs is an outright conviction machine that swallows the guilty and the innocent. The Progressive vision was not supposed to turn into this sort of thing, nor was the “administration of things” supposed to morph into a system of institutionalized injustice. Yet, here it is.
I also would like to comment on Lenore’s earlier post on the woman’s conviction because her child drew images with chalk. A bureaucratic system based upon “the administration of things” is going to employ people in positions of authority who operate with a bureaucratic mentality in which rules become those things of highest order. A rule was broken; someone must be punished. Unfortunately, the few people who wish to take a hard look at the wreckage created by this mentality are written off as being “soft on crime.”
Throughout this month, I will highlight cases in which I have been involved that I believe have become travesties of justice. Along the way, I will explain how federal prosecutors use horrific conditions in the Mecklenberg County, North Carolina, jail and federal lockup to pry guilty pleas from people who are in near-shock after being arrested and incarcerated before trial. Yes, there are “good” people in the justice system, but, to paraphrase the great economist F.A. Hayek, in governmental systems, the worst tend to rise to the top.