From the Absence of Justice to the Absence of Freedom – and Back?

(We Want to Be Too Rich to Go to Jail)

(by conjuncture magazine)

Judge said du Pont heir ‘will not fare well’ in prison – the case of Robert H. Richards IV du Pont irritated the media and the general public during the last days. Why is he not in jail? What is wrong in Delaware? How would such a case be treated under “normal conditions?”

Thinking about the society I am living in, I would say, the judge reacted perfectly normal. He did exactly what he was supposed to do. The case represents exactly how our legal-system and I would even say our society works.

An example that comes to my mind when I try to explain my position is the fictive country Oceania in Orwell’s story 1984. He describes a system in which total observation interacts with the absence of justice. In Orwell’s Oceania it is unpredictable at which point one breaks the rules, because the function of the rules is to keep repression high instead of protecting each person from harm.

Orwell’s story is the anti-utopia, the overdrawn nightmare of state-repression. Over the boundaries of political camps, the described scenario is seen as the total absence of freedom.

Although there seems to be no question that freedom is necessary, there are few answers to the question of how our freedom should look like.

My Freedom Is Better Than Yours?

The problem of how freedom for a society or a community actually might be defined hit me when I first came to the US. It was one of these years in which the debate regarding firearm regulation came to a fever pitch. Coming from a country where firearms are under more strict regulations, I thought: “Silly Americans, of course you need stronger gun control! Can’t you see the bad consequences of deregulation?”

The core argument of those that do not want stronger regulations is that every American deserves the right to buy a gun, and every American is free to buy a gun. My argument is that I’d rather have the freedom to not get shot. I’ve had this internal debate around other “freedoms”: A sixteen year old driving a car? No beer in a park to watch the sun go down? And you call this the land of the free?

Why is my judgement relevant in this context? It shows a conflict between different “freedoms.” The freedom to buy a gun vs. the freedom to not get shot. The freedom to protect my health vs. the freedom to do with my body what I want. These conflicts show that freedom has to be negotiated in society.

The only problem is that under current conditions there are few debates about the rules we want to live with (firearm regulation is one of the few) and there is almost no public debate about the question of how we want to control these rules. Who should be responsible for law enforcement? We see that the current way seems to provoke some problems… like a rich person, raping his daughter and being treated somehow “specially.”

Why Should Repression Lead to Freedom?

A society that is built on racism, classism, and sexism will develop a justice system based exactly on these norms. Therefore our society creates freedom for the oppressors and not for the oppressed. Neither the police, the courts, nor the attorney general protect the weakest parts of society.

In the US, we can see the results of this system in the brutal structure of the prison complex. The vast majority of the inmates are people of color with a (financially) poor background. On the other side of the scale, we have heard about cases were rich kids cannot go to jail because they are too rich be able to learn social behaviour. Or the mentioned father who raped his daughter but stays free.

These cases show that the question of if we go to jail or not, does not depend on the harm we do. It is how society classifies our behaviour and attitude. Sociologists speak about our habitus – a collection of strategies to express ourselves. The catalogue to evaluate the habitus is unwritten and the evaluations do not happen completely consciously – hence, the results of such a classification is not really predictable. (This is were a parallel to Orwells Oceania becomes visible – the legal system is not a frame known of rules, we live with, but a system of repression that punishes people who do not fit into dominant imaginations of reality)

Do not walk on the ground Zimmermann defines as his own – at least not when you are black.” “Do I wait or do I loiter?” Your skin color, the neighbourhood you grew up in, the money your family has, your habitus — in short, factors you cannot control make the difference. Thinking about Orwell’s distopia– how far are we away from the point where the legal system does not offer us lives free of harm but is only used to legitimize repression?

If we begin to see that our legal system does not provide justice but repression, should we come to the conclusion that we need to give up all regulations? Even if the idea that I can do whatever I want without legal restriction sounds appealing from time to time, if we look around there seems to be a huge problem: humans do harm to other humans. And the survivors of harm deserve to be seen, to be protected in the future, and to get justice.

So, How to Handle Mean People?

The example of sexual violence is intensively debated and at the same time distressingly common. From a distance pretty much all of us will say that sexual violence is bad and that it should be punished in some way. However evil people lurking the park at night to attack women are not the majority of sexual assailants. Statistically, a significant number of us will do harm in the form of sexual violence during our lifetime, and it most likely will happen in a close relationship. (“One in four” says that between 62% and 84% of survivors knew their attacker.)

If cases of sexual violence make it into mass media we frequently hear the call for justice in the meaning of hard punishment for the perpetrator. Best seen after the 2013 media attention for the “rape culture” in India. In the comments on articles about the gang rape of a student in New Delhi you will find demands for castration, torture, and of course death penalty – all of this in the name of justice.

But who will carry out justice in such a situation? The police, the judges, imprisonment, some might think. But a large part of society will see these institutions differently. Can I call the police and hope for help in the case of conflict in my family? Can I expect justice if a close relative is arrested by a state that is far from being fair or just? Will I be arrested while interacting with the police?

But still, thinking about these cases leads to the conclusion that freedom cannot be the total absence of regulation. No one should be free to do harm to another person. “Do to others as you would like done to yourself is the expression some might have learned in kindergarten. This aspect of freedom is as simple as a thought as it is complex in the everyday life in our communities. It means that we have to find a balance between different individual needs and wishes and that we have to find norms that balance these needs. In a second step, we need to find a way, to control or rather a strategy to “live” these norms.

Regulation without Repression?

If police and prisons facilitate or perpetrate violence against us rather than increase our safety, how do we create strategies to address violence within our communities, including domestic violence, sexual violence, and child abuse, that don’t rely on police or prisons?“ is the question INCITE is asking.

If you are poor, of color, or not close enough to the norm, calling the police might lead to an unpredictable punishment to an unknown number of people around the conflict. Built out of this experience, groups like GenerationFive, INCITE, or Philly Stands Up (to name just some of them) work on an alternative system that allows a balance between the different individual needs of freedom. Instead of revenge executed by outsiders in form of police or the state in general, these groups try to understand the harm that happened.

Doing so, they see harm as a result of the structures we are living in. Their answer is to take the power to punish from the state that protects the structures that promote harm, instead of depending on it. Philly Stands Up says that we need to shift the power towards collective liberation. In this access to justice collective accountability replaces isolation which is so dominant in the state’s system.

That does not mean we must give some flowers to everybody and say “poor sex offender, it’s not your fault, it’s the system’s”. No, it means the community takes responsibility for itself, for justice, for its freedom.

At a workshop on transformative justice I went to last month, a participant expressed his understanding of collective accountability: “the perpetrator doesn’t have to agree on the community’s ideas about finding a solution. I think it is OK to force him or her to accept it.”

Isn’t that repression, too? For that question, GenerationFive points out an important element of transformative justice: “Individual justice and collective liberation are equally important, mutually supportive, and fundamentally intertwined – the achievement of one is impossible without the achievement of the other.” That means everyone has the right to receive justice, and that includes the perpetrator who lives under the same damaging structures like the rest of the community. But reviving justice has to mean that a perpetrator is still accountable community member – denying the process of healing cannot be an option.

The idea is that overcoming and healing has to be central to the process of justice instead of revenge. What must the perpetrator and bystanders do to give justice to the survivor? How can the survivor heal? How can the community as a whole heal and avoid future harm for its members and for the community?

More important than the evaluation of a proper punishment is the understanding that these groups do not work towards creating a parallel justice system. They work on a system that deserves the word justice in its name instead of suffering from repression and injustice in the form of the police and the prison economy. While we see all the demands for harder punishments or up to torture, people barley ask, if that brings healing, overcoming or justice to the survivor.

More regulations on firearms from the state? If I try to logically think this scenario through, I have to say no. No smoking in a bar… if the community I am living in comes to the conclusion that it is better, I guess I can agree on that. No more beer in a park while watching the sun go down? Well, we’ll see.. but to make this short, my legal system is not better than yours, as long as it depends on police, on prison-economy, and on a repressive, isolating social structure. Debating the catalog of norms and regulations without debating the structures to prove that the norms are accepted is meaningless at the very end.

The important point is to understand that the current legal system provided by the state produces injustice – this alone means we live in an unfree society, no matter if we suffer directly from police violence or if we just know that we might suffer from it one day. Developing an understanding of justice that is capable of leaving ideas of revenge behind seems to be an undeniable foundation for collective liberation. The question of how the community around a conflict will be and will act better in the future is the basis for fundamental structural changes to a working legal system.

The problem about the du Pont case is not that he doesn’t have to go to prison, the problem is the reason why he stays out. The problem is that a survivor might get punished if he or she does not fit the norm. Hence, the problem is the legal system that made the decision, not the decision itself.

Freedom is the freedom to say, that two times two is four”, said one of Orwell characters in 1984. With the idea in mind that freedom is a process of constant interactions and relations rather than a condition we are living in, we might come to the conclusion, that freedom is not just the possibility to say something but the ability of a community to take responsibility for it.

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