American Justice as “The Administration of Things”

Friday, August 3rd, 2012

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.

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22 Responses to “American Justice as “The Administration of Things””

  1. #1 |  Fred Bush | 

    You use a lot of quote marks in this article but as far as I can see there’s only one actual quote in the piece. In the future, more direct citations (links are fine), fewer scare quotes, please.

  2. #2 |  Reformed Republican | 

    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.

    If a guilty person goes free, one of two things will happen. Either they will not commit any more crimes, which is not a horrible outcome even if justice is not served, or they will continue to commit crimes, providing the opportunity for arrest and conviction in the future.

    If an innocent person is found guilty and incarcerated, there life is badly damaged, in some cases ruined, and often irrevocably. It is difficult to get a conviction overturned, regardless of what evidence might later be revealed.

    Personally, I would prefer the system that results in fewer innocents in jail.

    Also, eliminating offenses for drugs, prostitution, etc. would reduce the case load on everyone involved in the system from the police to the judges, giving them more time and resources to focus on crimes like theft, assault, and murder that actually involve a victim.

  3. #3 |  Reformed Republican | 

    there life is badly damaged

    their life . . .

    I am so ashamed.

  4. #4 |  B Mac | 

    Why do we think government can sometimes successfully regulate monopolies? Because it has an 80 year track record of doing so competently in the example of electric and water utilities.

    This doesn’t mean government is good at regulating non-monopolies like a housing market.

  5. #5 |  Reformed Republican | 

    Why do we think government can sometimes successfully regulate monopolies? Because it has an 80 year track record of doing so competently in the example of electric and water utilities.

    What is your metric for good? One could easily make the argument that artificially low water rates has encouraged growth in dry regions, resulting in inefficient use of water, and eventually rationing of water that would probably would not have occurred if the price of water was able to respond to market forces.

  6. #6 |  Fnord | 

    Is there any particular evidence that democratic government would result in less criminal justice abuse, absent a change in popular perspective? “Tough on crime” is a campaign slogan. Those non-violent drug crimes are crimes because of Congress and state legislatures. Plenty of people think elected state judges make things worse for criminal defendants, not better, and that position that has at least some support (http://faculty.haas.berkeley.edu/yuchtman/Noam_Yuchtman_files/Berdejo_Yuchtman_Sept_Complete_plus_app.pdf).

  7. #7 |  Jake | 

    I’m presently in a contested divorce. I’m appalled and disturbed by the power ceded to the psychologist/custody evaluator. There is a pretense that this “expert” provides a value-free evaluation of both parents, though he is paid by one. It undermines the adversarial legal process in which parties hire attorneys to represent their contested interest, and, like most of professional psychology it is based on non-existent science. If I had to choose a form of quackery, I’d rather just be connected to a polygraph and let it and its handler do the evaluating. Margaret Hagen’s excellent book, “Whores of the Court” is available as a downloadable pdf here:

    http://whoresofthecourt.com/

    An Indiana man was recently sentenced to five years(!) for criticizing the judge and custody evaluator in his divorce.

    http://www.fathersandfamilies.org/?p=24077

    The most destructive experts in criminal justice are “mental health” practitioners.

    http://whoresofthecourt.com/

    (In case anything thinks my post is simply sour grapes, despite some laughable nonsense, the custody evaluator basically came down on my side re the big issues.)

  8. #8 |  Jake | 

    All blog posts should permit after-the-post editing.

  9. #9 |  blank reg | 

    “A rule was broken; someone must be punished.”

    Of course that doesn’t apply to the individual bureaucrat or the bureaucracy as a whole in question.

  10. #10 |  Yizmo Gizmo | 

    “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.”

    Couldn’t have said it better….”loopholes” used to be reserved for clerical
    errors and blatant oversights in the law but is now used to refer to cases in which people get acquitted. The horror!

  11. #11 |  qwints | 

    I find your analysis completely divorced from reality. The idea that “assistant prosecutors” in both the state and federal system have “life time tenure” is ludicrous. Absolute immunity for prosecutors has led to obscene results (see Harry Connick Sr.), but that’s different than tenure. As a matter of reality, the vast majority of prosecutors move on to different fields of law at some point in their careers. Ask the guys at popehat.

    There are all kinds of systemic problems in our criminal justice system: pre-trial detention, coercive plea bargaining (especially in the federal system), overworked and/or incompetent defense attorneys and unethical prosecutors unchecked by spineless bar associations all harm our society. Police, prosecutors and prisons have subverted the regulators (judges and legislatures) that were mean to control them. But to blame this on Progressives or bureaucrats is absurd. It’s not that politicians have handed the keys to the system over to soulless administrators who ignore human dignity to advance their own interest, it’s that the American public wants “tough on crime policies.”

  12. #12 |  C. S. P. Schofield | 

    As an amateur historian, it has been my observation that all social systems involving humans tend to silt up over time. A great deal of heat is generated over the placement of blame when one system has finally completely frozen and must be replaced, but I am unconvinced by what usually amount to doctrinal diatribes. Simply, no social system, however good in the beginning, will remain good over time.

    Of course if one were feeling mean one might observe that there is no better definition of the phrase “bureaucratic expert” than the Platonic ideal of silt….

  13. #13 |  Jason | 

    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.

    That is the purpose of occupational voting in Corporatism:

    Members of Parliament would be elected on a vocational franchise rather than the present geographical basis. Thus transport workers would vote for transport worker candidates, engineers for engineering candidates and teachers for teacher candidates. In this way, a government of experts elected by experts would be created.

    From Raven Thomson’s biography and expanded upon in his book The Coming Corporate State (MS Reader).

  14. #14 |  theCL Report: Extremism normalized | 

    […] American Justice as "The Administration of Things" […]

  15. #15 |  Bergman | 

    Mr. Anderson, you really need to invest in word processing software that has a good spelling and grammar checking function. That was mildly painful to read.

  16. #16 |  Tristan | 

    “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.”

    I think you’re painting with an extremely broad, non-representative brush when you talk about indigent defense. There may be some jurisdiction, somewhere in the US, where public defenders front the costs of defense which they must then recoup…but I’ve never heard of it. Typically an indigent defendant will be represented by an attorney belonging to a public defender agency (most urban jurisdiction and federal districts) or a court appointed private attorney. In the former case, they are on salary, in the latter they will typically recieve a lump sum determined by the type of case.

    Expert, investigator, and mitigation services are also provided at public expense. Before any of these costs are undertaken, the defense attorney moves the court to authorize those services at public expense. Put simply the attorney bears no monetary “cost” to provide these services. There is of course a cost in time, and to that end most states have adopted caseload standards dictating how many cases a public defender or contract attorney can handle at once. Some have not, and others do not enforce them; in some places the standards are taken very seriously and failure to provide adequate funding for indigent defense in the jurisdiction’s budget can be cause for dismissal.

    Finally, you’re statement that these lawyers will more likely than not want to curry favor with judges and prosecutors, besides being unsupported by any data or argument, is applies only to a narrow set of jurisdictions, Montana comes to mind, where the trial judges determine which contract lawyer gets appointed. An attorney working at a public defender agency or a contract attorney paid by an independent agency has only one incentive to “curry favor,” namely helping their clients…throwing their clients under the bus to please the prosecutor or judge is illogical.

  17. #17 |  el coronado | 

    “A rule was broken; someone must be punished.”

    Actually, I’d blame the *genesis* of that idea – in the USA, anyway – on the fucking lawyers, rather than the bureaucrats. Oh, sure, the bureaucrats jumped all over it because the essence of bureaucracy is & always will be ‘Rule #1 is maintenance & expansion of our fiefdom”, & making up new rules and punishing rulebreakers is a great way to do that. But it’s the lawyers who created that initial mindset, I’m convinced. Here in Amurrica, there’s no such thing as “an accident” or a “terrible tragedy” anymore. Fender bender? Kid breaks a leg playing Little League? Someone gets killed by an asshole in a movie theater?

    First words out of everyone’s mouth – thanks to los abogados – is always “liability” or “negligence” or “punitive damages”. Hell, even on this ‘Libertarian’ website, about 15% of the comment threads degrade into legal chat. In a country where that kind of idiocy has become not only tolerated but encouraged, what’d you *think* government was gonna do?

  18. #18 |  Wade | 

    Wile the spirit of your post is correct, you are inaccurate in many of your details about the criminal justice system. As someone pointed out above, there are no lifetime assistant prosecutors in the state or federal justice systems. In fact, assistant prosecutors in the state systems have a fairly high turnover rate as they leave for more lucrative private practice jobs. Federal assistants are employees, like any others and enjoy no special status by virtue of their positions.

    In addition, you dishonor thousands of public defenders and court-appointed attorneys when you say that they are all “in cahoots” with the prosecution. In many areas, Public Defenders a some of the most knowledgeable and experienced defense attorneys to be had. In regions where Court Appointed Counsel is drawn from the private bar, an indigent defendant is as likely to get one of the best local attorneys as he is to draw a “hack” who is angling for a government job.

  19. #19 |  Andrew_M_Garland | 

    Classificationism
    === ===
    [edited] But we have a system now dominated by legislation, by statutory law. The Roman law was codified legislatively by Napoleon and others, resulting at first in elegant civil codes enacted by legislation and backed by the force of the state. This enshrined legislation as the supreme source of legal positivism. These are the continental legal systems, the so-called civil law.

    In the meantime even the relatively elegant civil codes have been swamped by a deluge of inelegant, artificial, and special interest legislation. The English common law has also been gradually submerged in a flood of state and federal statutes.

    In any particular case at common law, what is the true rule? It is the rule most in accord with justice and sound policy. The search is for that rule. The appeal is squarely made to the highest considerations of morality and justice. These are the rallying points of the struggle, which is ennobling and beneficial to the advocates, to the judges, to the parties, to the auditors, and so indirectly to the whole community. The decision then made records another step in the advance of human reason towards that perfection after which it forever aspires.

    But, when the law is conceded to be written down in a statute, the only question is what the statute means. This search is unspeakably inferior to common law. The dispute is about words. The question of what is right or wrong, just or unjust, is irrelevant and out of place. The only question is what has been written. What a wretched substitue for the manly search for the right principle!
    === ===

  20. #20 |  Ariel | 

    Mr. Anderson, thanks for taking up Balko’s challange. I’ve read your blog for quite awhile.

    As for “scare quotes”, somethings deserve them when they aren’t actually what the words seem to mean.

    “It’s not that politicians have handed the keys to the system over to soulless administrators who ignore human dignity to advance their own interest, it’s that the American public wants “tough on crime policies.”

    I’ll hold off the Red Queen while you go through the looking glass.

  21. #21 |  johnl | 

    Tristan, if a defender gets a “lump sum determined by the type of case”, what happens when he gets a client who wants to assert innocence? Financially.

  22. #22 |  Bill Wells | 

    In the criminal justice system, the grand jury no longer serves as a shield against wrongful prosecution, the public has essentially no oversight or control over prosecutors, and plea bargaining, guilty pleas, and determinate sentencing remove the public from oversight of criminal justice proceedings. I could go on but, in short, the courts have succeeded in insulating themselves from meaningful oversight and control. No one should be surprised that they no longer have anything to do with justice.

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