About This Blog

Judging Crimes is a blog about criminal law, violent crime and the judiciary, dedicated to making the liberal case for greater democratic control of the criminal justice system.  It's a "view from the trenches" because it's written by a practitioner, not an academic or journalist.  It examines the changing role of the judiciary in American society by looking at what judges actually do, rather than what they say.  I know what they do because I deal with the consequences every day. 

Opinions issued by judges, from Supreme Court justices on down, are justifications for the exercise of governmental power.  But it is the exercise of power itself that should command our attention, not the justifications.  Judging Crimes is concerned with the reality of judicial power rather than the verbal formulas used to defend it. 

American law professors have long liked to say they teach their students "to think like a lawyer."  Learning to think that way is a matter of internalizing certain assumptions.  The practice of judging is likewise based on a foundation of shared assumptions, among them that the United States Constitution -- a document of 8,335 words, the length of a book chapter -- provides an answer to every question.  Rather like a Ouija board.

These assumptions are so ingrained -- and their internalization is so necessary to the successful practice of law -- that most people who subscribe to them aren't even aware of having done so.  Judging Crimes will try to engage not just with the expressions of judicial power, but with the assumptions on which those expressions  rest.  

Judging Crimes won't be filled with daily entries commenting on the day's events or provide a best-of-the-web welter of links.  Many other blogs already do that, far better than I could hope to do.  (Check out these.)  Instead, Judging Crimes will contain pieces of a length that might seem long for a blog but would be short in a serious magazine.  I hope to post new pieces several times a week.

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In Our Name
Test Drive the Book!
« 408. Conventions | Main | 406. Recognition »
Saturday
14Nov2009

407. Gomorrah (Camorra optional)

Roberto Saviano's Gomorrah has been celebrated as a brave book, and an eye-opening one, and as a beautifully-written one, and even (though this will never stop seeming improbable to me) as the basis for a movie

But it's also a great book because of its universality.  It's a book about the Neapolitan Camorra, but it equally describes what happens anywhere that a "parallel power structure" comes to rival that of the government.  Wherever, that is, an alternative government by violence is instituted.  (See post 72.)

Saviano might have been writing about America, or at least those portions of America judges and lawyers teach their children, as they're learning to drive, never ever to enter. 

About living in any American inner city when a gang truce breaks down:

In a war that is not officially declared, not recognized by governments, and not recorded by reporters, the fear also goes unspoken.  It hides under your skin, making you feel bloated, as after a huge meal or a night of cheap wine.  A fear that doesn't explode in newspapers or on billboards.  There are no invasions, no skies darkened with planes.  It's a war you feel inside.  Almost like a phobia.  You don't know if you should show your fear or hide it.  You can't decide if you're exaggerating or underestimating.  There are no sirens to warn you, but the most discordant information gets through.  They say the Camorra war is fought among gangs, that they kill off each other.  But no one knows where the border is between who's them and who's not.

In Los Angeles, where the homicide rate among African-Americans was recently reported to be 176% that of medieval Germany (see post 303), how many would find something familiar in this passage about a young man killed only because he happened to come from a particular town:

Dario was killed to send a message to the town, a message of flesh sealed in an envelope of blood.  As in Bosnia, Algeria, Somalia, as in any confused internal war, when it's hard to understand which side you're on, it's enough to kill your neighbor, a dog, your friend, or your relative.  The hint of kinship or physical resemblance is all it takes to become a target.  It's enough to walk down a certain street to immediate acquire an identity of law.  What matters is to concentrate as much pain, tragedy, and terror as possible, and the only objective is to show absolute strength, uncontested control, and the impossibility of opposing the real and ruling power.  To the point that you get used to thinking the way they do, like those who might take offense at a gesture of a phrase.  To save your life, to avoid touching the high-voltage line of revenge, you have to be careful, wary, silent.

(A word of advice: if you're a young man in Los Angeles, avoid getting into conversations with other young men that begin: "Where you from?")

After the Supreme Court authorized Southern states to start using their police powers to enforce the color line--that was the meaning of Plessy v. Ferguson--it became customary for deputy sheriffs to investigate crimes against white people by rounding up the first black people they saw and torturing them until they confessed.  For a long time I puzzled about why they seemed so uninterested in identifying the actual criminal.  I would have figured it out sooner if I could have read Gomorrah sooner:

The body of Giulio Ruggiero is found on the evening of January 21, the same night in which Cosimo Di Lauro [a boss] is arrested.  A burned-out car, a cadaver in the driver's seat.  Decapitated.  The head is on the backseat.  It hadn't been cut off with a hatchet, a clean blow, but with a metal grinder...  [E]veryone in the area seemed convinced it was a message.  A symbol.  Cosimo Di Lauro could not have been arrested without a tip-off.  In everyone's mind, that headless body was a traitor.  Only someone who has sold a capo can be ripped apart like that.  The sentence is passed before the investigations even begin.  It doesn't really matter if the sentence is correct or if it's chasing an illusion.

The Southern deputies who tortured confessions out of random black men didn't want to solve a particular crime, but to terrify black people in general.  In criminological terms, it was all general deterrence, no specific deterrence.  Or, within the frame of reference of the deputies (or the Camorra, or the gangbangers killing a snitch), the fact that you became a target for retribution proves you're guilty enough.  At the very least, you have to admit, it's very suspicious.

When a group of Nobel prize winners, including the great Orhan Pamuk, wrote an open letter deploring the threats against Saviano's life, they pointed out that "this is not a mere police case. It's a problem of democracy."  That gets to the nub of it.  Describing the armories of the Camorra, Saviano writes:

Arms trafficking is the latest way to maneuver the levers of power of the Leviathan that imposes its authority through its potential for violence.  Clan armories are filled with bazookas, hand grenades, antitank mines, and machine guns, even though clans almost exclusively use Kalashnikovs, Uzis, and automatic and semiautomatic pistols.   The rest is there to construct their military power and show off their strength.  With all this fighting  potential the clans are not opposing the legitimate violence of the state but rather monopolizing it.

The references in there to Hobbes' Leviathan and Max Weber's concept of the monopoly on violence get down to the political issue presented by violence, an issue our judges are intellectually untrained to recognize, much less deal with effectively.  Our judges are trained to think only in terms of the state's exercise of power over the particular individual brought into the courtroom.  That's not a criticism, or at least not of judges--that's how the American legal system works.

One consequences is that our courts today have become unwitting allies of the alternative governments that govern so much of our cities, a class of useful idiots

The opposite of state authority is individual liberty when, like a judge, you look only at individual court cases.  But when you look at the real world, the opposite of state authority is, all too often, non-state authority.   

That's why, in Newark, the mayor sponsors citizen patrols: it's the democratic state seeking to reassert itself.  The citizens' patrols, like the gangs they seek to disrupt, are trying to fill the power vacuum.

Finally, anyone who has ever been involved in drug prosecutions will recognize this observation:

[E]very arrest and maxi-trial seems more like a way of replacing capos and breaking business cycles than an act capable of destroying a system.

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