Month: July 2008

It is July 25th and I am still at liberty. I have, as promised, failed to appear for jury duty in response to a summons from the Superior Court of Santa Clara County. This means that a bench warrant may have already been issued for my arrest. In practice, I might remain at liberty for quite some time; police officers rely primarily on traffic stops to apprehend wanted persons, and as a 49-year old white male, albeit with a beard and long hair and driving an old beat up white 1976 Toyota Corona with the license plates N4RKY, I attract considerably less police attention than many.

The fact that I might remain so long at liberty even with an outstanding bench warrant is at the heart of my thoughts on the jury system today.

In my fury at being called yet again for jury duty, I cited the 13th and 14th Amendments to the US Constitution. The 13th Amendment protects against involuntary servitude; it offers no exception for jury duty. The 14th Amendment, among other things, guarantees “equal protection of the laws,” and I argue that the repeated demands for service on a jury impose a burden on me which is far greater than on those whose financial situations are far less precarious.

Against this, the 6th Amendment guarantees, among other things, to a “right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” And an editorial in the Washington Post has argued that “the legitimacy of a court system is built in part on the participation of the widest possible swath of citizenry.”

In my case, this argument is moot. Because I see the courts’ insistence on upholding law made primarily by wealthy white males even at the expense of justice as a bias that weighs against the poor and against people of color, and because I cannot in good conscience agree to this bias, no judge will ever permit me to sit on a jury. Therefore, my “participation” wastes my own time as well as that of the court; it ultimately has no bearing on the accused’s sixth amendment rights. But there is more.

Chapter 29 of the Magna Carta reads (in translation):

No freeman is to be taken or imprisoned or disseised of his free tenement or of his liberties or free customs, or outlawed or exiled or in any way ruined, nor will we go against such a man or send against him save by lawful judgement of his peers or by the law of the land. To no-one will we sell or deny of delay right or justice.

The U.S. Government recognizes as “one of the basic attributes of a free trial,” the right to “a jury of one’s peers. . . . The theory is that a panel of one’s fellow citizens — one’s peers — are best qualified to judge guilt or innocence.” This right is thus “a critical right of the people, both of those who may be accused of a crime, as well as those called upon to establish that fact.” Though the 6th Amendment does not mention peers explicitly, the 14th is often understood to require a diversity reflecting the community in which the crime has allegedly occurred.

And yet, these terms, community and peer, as applied in the rationale for the jury system as practiced, are, in a culturally and socially diverse setting, so dilute as to have a meaning quite different from the–if I may dare to use the term–noble intent, that people who live as a defendant lives, who share an experience of living with that defendant, are best qualified to judge the actions of that defendant. Merely on the basis of my residence, I, an educated 49-year old white male, am putatively competent to judge anyone, not necessarily a resident, who has allegedly committed a crime in Santa Clara County, which has an estimated population of over 1.7 million.

In this county, whites account for only 63.0% of the population (against a statewide average of 76.9%). Despite my recent purchase of land, I am not a homeowner. Homeowners make up 59.8% of the population. I have a bachelor’s degree and am well on my way to my master’s; people with bachelor’s degrees or higher make up 40.5% of the population here (well above the state average of 26.6%). But such demographics barely touch on the ways I am different, ways that exclude me from the shared experiences of living of so many others.

In fact, my residence in Santa Clara County does not automatically make me a “peer” to someone accused of a crime. I can hardly judge an abused wife who has, perhaps, killed her husband. I have never been followed down or compulsively been greeted in the aisles of a supermarket by employees suspicious that I might be shoplifting. I have never suffered racial profiling. I have never been subject to the hazards a prostitute faces daily. I have never endured the ongoing harassment of lonely men seeking the companionship of women. I spent a night in jail once, but have never seen the inside of a prison or experienced the prolonged dehumanization that no longer even pretends to make better people of inmates.

What do I know of my neighbors? I know them as people I have hardly anything in common with; though we live at a naturist resort, they are non-naturist workers who party too loud and scream at their kid. Their non-neutered tomcat harasses my spayed cat, their tobacco smoke drifts in through my windows, and their dog defecates by my front porch.

As a vegan, I am part of a minuscule portion of the population, and there are astonishingly few restaurants that will cater to me. As an anarchist, I endure abuse even from my own adviser here at the university, and as a practicing lifestyle (rather than recreational) naturist, there are very few places I can even bear to live. Choosing child-freedom from when I had a vasectomy twenty-five years ago, I have never raised a family, and have certainly never borne that responsibility in poverty. I once, a long time ago, grew marijuana in a cabinet with hydroponics and lights, but have never suffered addiction to drugs or gambling; even my fondness for marijuana is now tempered by a preference to avoid drugs, budgetary constraints and an absolute intolerance for smoke inhalation. And I have never been denied the opportunities that can be lost to a drug-related conviction.

Yet the jury commissioner considers me fit to pass judgment on others.

While I have certainly been poor and know the humiliation of not being able to pay bills, not being able to pay the rent, not being able legally to support myself, and of a consequent ostracism from my family, mine is not the picture of the average defendant. Though I don’t have the article at hand, Jeffrey Reiman has documented how at every step in the criminal justice system, from the making of laws, to which crimes are investigated, to who is suspected of crime, to who is arrested, to who is charged, to who is tried, to who is convicted, to who is sentenced for longer, to who gets the death penalty, the system is rigged against the poor and against people of color. Question arises not as to whether this occurs but why it occurs.

I exist on the edge of many communities, but my eclectic combination of views and my insistence on challenging perhaps every social convention except that of sexual preference–and even here, I am appalled by the shame that censors any discussion of sex–means I am barely a member of any of them. As a scholar, I know of these things only in the abstract. Whenever I start to think I have a clue, my own students quickly set me straight with hair-raising tales of blatant discrimination, committed by people at every level of society. And even as a scholar, my refusal to align with the post-modernist or positivist theories that some would elevate as paradigms isolates me from the cliques that might shelter my ideas from critical review. Yet these are not the communities the jury commissioner is concerned with.

Communities do not exist at the county level and it is a farce for the jury commissioner to pretend that they do. They exist in the webs of contacts we make in our daily lives, the people we work with, the people we see in our neighborhoods (on those rare occasions we say, hello), grocery store workers, restaurant workers, gas station attendants, and the people we encounter on line. They exist in the contacts of oppressed people who seek each other out, people like, in my own case, anarchists and vegans.

If you put an African-American on trial, let his or her jury be of African-Americans. If you put a Mormon on trial, let his or her jury be of Mormons. If you put an abused wife on trial, let her jury be of abused wives. If you put a drug addict on trial, let his or her jury be of drug addicts. If you put an anarchist on trial, let his (mostly) or her jury be of anarchists. If you put a vegan on trial, let her (mostly) or his jury be of vegans. If you even put an ex-convict on trial, then his or her jury must be of ex-convicts. In short, when you put someone on trial, let his or her jury be of people from his or her real community, not an imaginary one of imaginary lines drawn on maps.

The state’s refusal to do this serves not the purpose of justice or the putative purpose of law, to peacefully settle disputes, but rather unmasks another purpose, to wage war against real community. It constitutes the taking of a member of a community on conditions not agreed by that community. It affirms artificial community at the expense of real community. And under the rubric of law, it attacks an individual, but avoids confronting the unique challenges that each community must surmount.

Thus, even the jury system profoundly insults a sense of justice. Why are there so many poor African-American men on death row? Because their juries included people not from their communities. Yet we are surprised when, after nearly ten years, on average, they are so frequently exonerated. In a 2006 article, it was reported that “[the Innocence Project] has helped exonerate 184 people, proving that wrongful convictions are not rare.” Indeed, “Northwestern University School of Law’s Centre on Wrongful Convictions (CWC) documented at least 38 executions carried out in the United States in spite of compelling evidence of innocence or serious doubt about guilt since capital punishment was restored in the mid-1970s.” Some people have gone to their graves, knowing far more about racism than I ever will.

Yet the jury commissioner would put me, a 49-year old white man, on a jury trying an African-American or any other person of color. We know there is bias. But the anonymous jury commissioner doesn’t care.

The mainstream media seems finally to be catching on to the severe difficulties this economy faces. The New York Times has two stories, here and here, on how “borrowers should shoulder the consequences of signing loan documents they didn’t understand, but with punishing terms that quickly made the loans unaffordable. [While] for executives and directors of the big companies who financed these loans, who grew wealthy while the getting was good, the taxpayer is coming to the rescue.”

“I predicted last summer that this would be my 10th bear market,” [John C. Bogle, founder of the Vanguard Group,] said. “But this one is different. The others were more marketlike, reflecting problems in the market, not problems in the society and the economy as this one does. As a result, we’re in for a much more troublesome era than after the other big bear markets.”

My anger with the Democratic Party began when I examined the 2004 Kerry-Edwards platform. It was clear then that the Democratic Party had shifted so far to the right as to be indistinguishable from the Republicans. As Gore Vidal and others put it, we have a one-party state. It was even more clear when Democrats repeatedly voted to enhance executive branch power and to fund the Iraq war, even after voters handed them control of Congress with a mandate to end the war. It was clearer still when Congressional Democrats agreed on a “compromise” that gave the Bush administration everything it wanted on domestic spying, including retroactive immunity for telecommunication companies.

Barack Obama has played an increasing role in all of these capitulations. Now, “Obama says that . . . women should not be able to obtain a late-term abortion, because just ‘feeling blue’ isn’t the same as suffering “serious clinical mental health diseases.” As Marie Cocco explains, this is a straw person argument.

No one (but me) argues that women should be able to get a late-term abortion just because they’re “feeling blue.” The claim supports a right-wing stereotype of women seeking abortions as irresponsible.

It happens I don’t care if they’re “responsible” or not. A woman’s body is her own and she has the right to do with it what she pleases. Any compromise on that principle supports another discourse, the discourse of a woman’s body as a place for others, a discourse that also rationalizes rape. After all, we could understand, a man just has to have sex and that need outweighs a woman’s right to choose even whether she will have it at all, let alone whom she will have it with. The logic is just as brutal on abortion as it would be on rape.

But we don’t question whether rapists are “responsible.” All too often we point a finger at victims for the clothes they wear, the friends they keep, and the times and places they go. A woman’s sexual history is fair game; if she has been “promiscuous,” she loses credibility in any accusation she might make of rape. Even her choices can be used against her in an involuntary act; she is held responsible, not the man.

And it isn’t the man who carries a fetus. Barack Obama will never do that. His claim isn’t merely about women “feeling blue,” but about who makes the choices for women about what they may do with their bodies. As Jack Holland points out in Misogyny, men don’t even accept responsibility for their own attractions to women. Yet we are to accept that men have something to say about a woman carrying a fetus.

It can be said that I was already leaning against voting for Obama in November. Now I will say that there is no way I can vote for him.

Reuter’s has an upbeat article about financial markets today. It begins, worryingly enough, observing that “Profit warnings, breaches of key index levels, record oil prices, stressed consumers and investors seeking safety provide the background for markets this week,” but introduces what for me is a new term in this context: capitulation.

Are the markets about to “capitulate?”

There has been no classic “capitulation” — a market concept which states that heavy, sometimes panic, selling of stocks heralds the bottom and a beginning of an upturn. But there is enough gloom around to make a contrarian bullish.

“You are beginning to get into capitulation territory now,” said David Bowers, joint managing director of Absolute Strategy Research and consultant to Merrill Lynch for its monthly global fund manager sentiment survey.

Oh, so capitulation is a “good” thing. It heralds a turnaround, a return to the inevitable bull market, in which the wealthy see the increased stock values that they regard as their due. While a broader bear market, in which “investors may start selling not only poorly performing stocks such as financials but also those which have not done too badly this year,” is possible, that we have terminology for this suggests we’ve seen it all before, in a way that this is routine.

So it is routine that oil and food prices skyrocket, people around the world riot over prices, and banks have to be bailed out. Just a spot of rough weather, you see. The rich will be just fine in their massive yachts that can withstand hurricanes, while the poor are wrecked on the shoals.

I’ve had this to say about so-called “illegal immigration” for a while now:

• Everyone who bothers to look at the matter knows quite well that the border cannot be made impervious to people who would cross the border. The fence cannot work; it can only make an already dangerous journey more so. It can only kill more people.
• It is absurd to argue that those who have undertaken this journey have “not paid their dues” because they haven’t followed a “legal” procedure. These migrants have more than paid their dues; they have risked their lives to get here.
• If a policy cannot succeed and is clearly inhumane, we must consider whose interests it actually serves.

I have had employers threaten me to my face, warning that they could “hire Mexicans” or outsource jobs to India. This unmasks the value of “illegal immigrants” not only as an easily exploitable workforce that dares not complain about low wages or abysmal working conditions, but as leverage against “legal workers” whom employers can replace either with “illegal workers” or with overseas workers.

The status quo in immigration has served not “natives,” whose well-paying jobs “illegal workers” generally do not qualify for and which have continued to be exported overseas; it has clearly not served “illegal aliens,” whose greatest danger lies not in the border fence or even in immigration raids but the desert they must cross to get here. It has served employers, employers who are now making their voices heard:

“These employers are now starting to realize that nobody is in a better position than they are to make the case that they do need the workers and they do want to be on the right side of the law,” said Tamar Jacoby, president of the new federation, ImmigrationWorks USA.

They say this even as “U.S. employers cut workers for a sixth straight month in June for the longest such streak since 2002 and the country’s vast service sector unexpectedly contracted, underscoring the economy’s frailty.”

So it isn’t that “they do need the workers,” but that they prefer exploitable workers. Conservatives say that working class folks whose unskilled jobs would seem most vulnerable instead identify illegal immigrants as constituting “a threat to the identity of the country itself,” as what radio talk show host Ken Pittman compared to a “military invasion.” With this language, conservatives direct working class fear and resentment not against the employers who profit so handsomely, but against fellow workers.

What’s more, conservatives know what they’re doing. Larry Elder published a fictitious letter that he says “should have been written, but was not, by an illegal alien.” Obviously Elder couldn’t find a real “illegal alien” to say the following:

I broke the law. I did it out of desperation — desperation to leave a corrupt country whose socialist economic policies make it impossible for me to earn a decent living for my family. Most of us illegals come into your country to earn a living, with many sending money back to Mexico and other Latin American countries. In fact, the Mexican economy depends on these remittances, and would collapse without this money. I say this not to justify my illegal entry into your country, but to explain it.

Elder’s conservative readers pay little heed. Chris in Sacramento writes, “Sorry, but you gotta go home. Legalizing 40 million illegals will turn this country socialist. Good luck in Mexico.” dbak61 in Pennsylvania replies, “That’s right, Chris. He’s gotta go. It’s called the rule of law, no exceptions. I only wish the US government would start enforcing the laws they keep passing. Where’s the fence? Let’s contract the same people who built Israel’s ‘wall.’ Seems to be working for them.”

Never mind, of course, that Israel’s wall isn’t working; the Palestinians now fire missiles over the wall with potentially even more deadly effect, dig tunnels, and navigate storm drains. For conservatives to acknowledge that “illegal aliens” compete for jobs would to be to acknowledge a shortage of jobs, a shortage capitalists rely upon to force all workers to “compete” for lower wages. For conservatives to acknowledge that “free trade” has ruined Mexican farm economies, or that the North American Free Trade Agreement has displaced workers on both sides of the border, would be to attack the sacred cow of “free trade,” free trade, that is, for those who exploit human beings rather than the vast majority of human beings themselves.

Labeling people as “illegal,” comparing their presence to a “military invasion,” and blaming the government for not working more effectively to keep them out diverts attention from a lot of ruin. And now that the capitalists themselves are starting to feel a little squeezed, look who squeals.

Democrats just don’t get it. Voters handed them control of Congress in 2006 with a mandate to get us out of Iraq. They waffled, and on every vote that counted, they’ve gone along with the Bush administration. They refuse to impeach Bush, I think because to do so would be tantamount to an admission that the entire political establishment of this country, including Democratic Party collaborators, ought to be hauled up on charges for crimes against humanity. They have capitulated on telecom immunity, and Obama, though he seems to realize he screwed up, had “emphasized caveats that seemed to suggest his timetable [for a withdrawal from Iraq] might slip, saying he would ‘refine’ his policies after he consulted with U.S. generals on a trip to Iraq he plans to make this summer.”

Obama’s attempts to explain his stance could leave some Democratic voters disenchanted. Since locking up the nomination, he has moved toward the political center. He has downplayed his criticism of the North American Free Trade Agreement, opted not to stick to campaign spending caps and backed a bill that bars invasion-of-privacy lawsuits against phone companies that cooperated with President Bush’s wiretapping program.

This kind of confusion alienates those who would vote for Obama because he has–with significant reservations–“promised” to withdraw troops within sixteen months. It gives the Republicans the opportunity to say that “even” Obama–as if he were anything like a radical leftist–acknowledges the need to remain in Iraq. And it gives those who are undecided no reason to trust that Obama means what he says–as if he has ever been clear about it. Amy Goodman writes:

It may be the strategy of the Obama campaign to run to the middle, to attract the independents, the undecided. But he should look carefully at the lessons of the 2004 Kerry campaign. John Kerry made similar calculations, not wanting to appear weak on the war in Iraq. Uninspired, people stayed home. There are millions who care about the issues from which Obama is distancing himself, from FISA to gun control to gay rights to free trade to the death penalty.

Goodman argues that disillusioned voters should not stay home, but the problem runs far deeper than the cynicism of Obama or of Kerry. As Gore Vidal put it, we have a “one-party system . . . with two right wings, Democrat and Republican.”