A brief deconstruction of America’s leviathan

A Brief Deconstruction of America’s Leviathan INTRODUCTION Recently, I had cause to consider the following two—part question: The goals of criminal punishment include retribution (giving people what they deserve), deterrence (discouraging future crimes), and rehabilitation (improving behavior). What purpose, if any, has your time in prison served? Should any of these purposes be emphasized more? At first, its sophomoric quality invited a dismissive chuckle but a second reading encouraged a more serious look because I saw underpinning the question a tragic mindset of tolerance for social and political injustices wholly at odds with the ideals that the United States purports to defend. These ideals were first stated in the Declaration of Independence as “unalienable rights,” among which were “Life, Liberty and the pursuit of Happiness.” The contradictions between life in America and its often—touted ideals stand out well enough for anyone to notice; one need only look. The tragic mindset, however, out of conditioned indifference refuses to acknowledge them and accepts the sophistry used to justify the disparities as tolerable per the over—hyped demands of such doctrines asmorality, practicality or exigent circumstance. To me, this disposition is intolerable. Thus, on the question’s third reading, I felt compelled to deconstruct it. Many ways to attack the question exist, but before getting to the discussion a few observations and matters to ponder are in order. The further removed we are from the signing of the Declaration of Independence, the farther we stray from its ideals. Yet it might come as a surprise to learn that the nation started to stray immediately upon ratification of a constitution which began with “We, the People,” and went on to render alienable through a concept called ‘due process’ the once unalienable rights supposedly endowed by a “Creator.” Page 1 of 19 A Brief Deconstruction of America’s Leviathan The issue of rights raises a multitude of questions, to which there are even more answers. The complexities of this issue may very well have made straying inevitable. So just what is a right, then? Is it a divine endowment or simply a legal entitlement that attaches at birth like, for instance, citizenship? Theology aside, what defines a right, empowers it, judges it worth inclusion in a set of entitlements or Bill of Rights? Can we even bind the scope of ideals like life, liberty and the pursuit of happiness by charter? And can a right be denied? If so, should we really call it an entitlement, then? Perhaps a better name would be ‘contingent entitlement,’ which really would not be much of an entitlement at all, but would more closely resemble the truth. Too many Americans take for granted what they believe to be their rights, never questioning the boundaries of their liberty, never realizing as well that they, too, were bound at birth under the right of citizenship with duties and restrictions they had no say in having imposed upon them. “We, the People,” is a catchy phrase. It implies unity, participation, common ends — inspirational ideas for a healthy society. In actuality, the phrase really means “we, the people the American electorate chooses.” Into their hands voting Americans relinquish authority to ordain what rights the entire population has, or does not have, as it were. This overlooked, unfortunate truth of America is but part of the tragic mindset, yet fundamental enough to shape my response to an otherwise sophomoric question. 1. WHAT PURPOSE, IF ANY, HAS MY TIME IN PRISON SERVED? “You’re not a good person,” my attorney told me the day after he failed to convince a capital jury not to condemn me to death — twice. His bloodshot eyes and red, puffy cheeks told me he might have spent the night anguishing over the failure. He should have. The disregard for human life encouraged by the justice system should sadden anyone who values an individual’s intrinsic worth. Page 2 of 19 A Brief Deconstruction of America’s Leviathan Seventeen years later the justice system continues to process my dues. Ihave now spent thirty- one of my life’s forty—eight years in a cell, with the remainder condemned to more of the same. Yet, Sartre tells me I am condemned to be free. Jesus says I am free to choose, but if I do not choose him I am condemned. Hegel says I am free only when acting in accord with my reason. Buddha tells me “I” does not exist. If “I” does not exist, who, then, is not a good person? Or condemned, free to choose, or reason? Yogi Berra once said, “You can see a lot just by looking.” What purpose has my time in prison served? It has enabled me to see that I am condemned to reason over nonexistent choice. 2. SHOULD ANY OF THE GOALS OF CRIMINAL PUNISHMENT BE EMPASHIZED MORE? I cannot responsibly suggest whether one of the stated goals of criminal punishment should receive more emphasis without first addressing the implicit conclusion that most behavior deemed criminal does, indeed, warrant such judgment. This discussion forms the bulk of my answer because acceptance of that conclusion justifies the phenomenon asserting the need for criminal punishment in the first place. The phenomenon I refer to is America’s overcriminalization craze — a punitive rampage so antithetical to the ideal of “liberty and justice for all” in “the land of the free” that it almost appears surreal. It has created criminals out of honest people and continues to disrupt families and communities as enforcement of unrestrained, knee—j erk retributive and utilitarian legislation tears through disadvantaged classes, leaving in its wake mass incarceration and a burgeoning mass of disenfranchised citizens — i.e. , ex—felons stripped of voting rights and other so—called constitutional guarantees. The Blackstone ratio has been innumerably reversed. Now it matters not how many innocent people suffer, so long as not one guilty person goes free. And just what “guilty” means now, long ago severed from mens rea,1 facilitates the rampage. Page 3 of 19 A Brief Deconstruction of America’s Leviathan Despite these troubling consequences, much of the public’s apparent indifference or, worse still, support allows the ethical validity and efficacy of retribution, deterrence and rehabilitation to escape scrutiny. If only one duty attaches to American citizenship, it must be “question authority.” That this does not happen to any meaningful degree alone demands question. My answer breaks down as follows: Part I shows why I take issue with the definition of criminal behavior. Part II gives examples of the forces that compel Americans to accept those definitions. Part III offers a theory that explains the origin of these forces. And part IV uses that theory to explain why none of the stated goals of criminal punishment should receive more emphasis. What constitutes the bulk of criminal law has grown largely out of one group’s view. That group does not comprise the people of the United States. It is the subgroup whose ideas dominate governing bodies. Therefore, most current definitions of criminal law must be considered wrong. Wrong on two counts: one, majority rule is tyranny. For any champion of liberty, this is a given. Two, the U.S. was not conceived as a “majority rules” republic. Maj orities and minorities were to have equal say, guaranteed by the distribution of limited power among the states, the federal government and the people. Alexander Hamilton explained the reason for this during the Constitutional Convention in 1787: “Give all power to the many, they will oppress the few. Give all power to the few, they will oppress the many. Both, therefore, ought to have the power, that each may defend itself against the other.” 1. Guilty mind. The idea behind the legal theory that those without sufficient mental capacity cannot be deemed guilty of a crime. Page 4 of 19 A Brief Deconstruction of America’s Leviathan Can the “few” really defend themselves against the “many” now, or does all power rest anywhere but within one group? No. Therefore, today’s America betrays the power distribution promise of its founding principles. Federalist No. 10,2 “The Utility of the Union as a Safeguard Against Domestic Faction and Insurrection . . . ,” states these principles well. According to the author, James Madison, the Union would shield people from factional oppression. Despite acknowledging the power of faction and the wont of men to oppress, Madison placed too much faith in the system he helped design. Nevertheless, his intent was clear: a just government would protect the interests of all of society’s members from each other, and be shackled to protect them from itself. How this is not happening, if ever it did, lies squarely with the massive body of mala pr0hibita3 laws. These laws reflect the will of two powers: the government and majority factions. In the case of the former, the government has unshackled itself and now passes whatever laws it deems necessary to effect its will. A 2004 A.B.A. attempt to tally the number of federal crimes defined in the 50 Titles of the United States Code puts the estimate in excess of 4,000, but Columbia law professor John Coffee has estimated that the government can use criminal procedures to enforce about 300,000 federal regulations. Regarding laws that reflect the will of majority factions, what we have is the legislation of morality. Specifically, the morality of the majority; not necessarily a majority political party, but certainly a majority faction. Such factions often cross party lines. The “majority” can also refer to the group that wins an election. Victory allows it to impose its ideas, through legislation, on the losing group. The ongoing civil struggle over same—sex marriage is a perfect example. In its 5 to 4 decision striking down the federal Defense of Marriage Act, the Supreme 2. The Federalist Papers. See, The Federalist (1961), J .E. Cooke, ed. 3. Prohibited wrongs by decree of law, not necessarily bad in themselves. Page 5 of 19 A Brief Deconstruction of America’s Leviathan Court neglected to declare whether or not the Constitution recognizes marriage as a civil liberty untethered to gender. This allows the anti—same—sex-marriage majorities currently winning elections or ballot initiatives to continue prohibiting same-sex marriage. But even if the opponents of same—sex marriage were to lose, it would again be a majority-minority split and the losers still would have to endure the will of the majority by force — or right — of majority alone. Vice laws also illustrate my point about the definition of crime. First, vice has a stronger claim to being legitimate than illegitimate behavior. It is how people choose to experience their existence and enjoy themselves — consensually. It is a natural pursuit. Of course, not wearing clothing is also natural; being natural does not automatically confer propriety. On the other hand, disparaging vice as immoral behavior is a value judgment based on a particular View of morality. Second, viewpoints opposed to consensual adult behavior often cajole support for legislation through manufacturing controversy and skillful use of rhetorical fallacies. These specious appeals may claim, for instance, that immoral behaviors harm the individuals who engage in them so such behaviors necessarily harm society; therefore, they must be banned to protect the individuals and society lest both fall into ruin. This is fear—mongering 101. Artful and effective, but fear—mongering nonetheless. Fear—mongering is the first sign of a weak argument. Such lawmaking flouts the spirit of America’s constitutional principles. A century and a half after Madison’s explanation of these principles, Supreme Court Justice Robert H. Jackson reiterated those sentiments in W. Virginia State Board of Education v. Barnette4: 4. 319 U.S. 624, 638 (1943) Page 6 of 19 A Brief Deconstruction of America’s Leviathan The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections. If the principles expressed in this passage guided lawmaking in America, there would not be two and one-half million Americans in prisons and jails, and several million more under some type of state or federal supervision5. These numbers do not reflect a wave of mala in se6 crimes. They reflect one group having its version of criminal behavior imposed upon everybody else. Mala prohibita laws, which include “victimless crimes,” come from majoritarian morality and unrestrained government. The breadth of state and federal laws is such that every American probably commits some crime every day. Thus do I challenge the implicit conclusion that most criminal behavior as currently defined warrants the judgment of “criminal.” II Addressing the implicit belief in the validity of the definitions of criminal behavior also invites questioning why Americans accept them. The repercussions of such acceptance — e. g., mass incarceration, black market violence, paramilitarized police departments7 — might even tempt blame or criticism of the Americans whose acceptance permits the continued enforcement of the definitions, but so many forces encourage acceptance that it is unreasonable to expect people to overcome them. Here are just three. 5. According to the U.S. Bureau of Justice Statistics, as of 2009 the total number was 7,225,800. 6. Wrongs in themselves, without regard to a system of laws. 7. See, Overkill — The Rise of Paramilitary Police Raids in America by Radley Balko. Page 7 of 19 A Brief Deconstruction of America’s Leviathan First, Americans are told that their freedoms are protected by a Bill of Rights. Early in their lives, Americans learn that they live in a country where freedom and justice extends to everyone regardless of race, creed or class. They sing that their country is the “sweet land of liberty”; pledge allegiance to a republic where there is “liberty and justice for all.” This inculcation in the promise of America — constantly reinforced with media refrains like “America is the leader of the free world,” or politicians’ incessant invocation of the mantras of “liberty” and “justice” — has a strong influence on the minds of the majority of people subjected to it. Ask the average American if liberty and justice exist in America and you are not likely to be taken seriously. Second is the general perception of stability, both in the nation and in the federal and state governments. Strong features of America bolster this, such as the peaceful transfer of power following free elections, a massive military under civilian control, public service agencies and utilities that work very well, and a criminal justice system (“CJ S”) with divisions that claim to protect and serve —— features expected in a free, stable society; features that instill a sense of security. People who feel secure and have confidence in the legitimacy of that feeling are disinclined to question that security without good reason. This, then, raises the bar of what constitutes “good reason” to a level where the definition of criminal behavior fails to register as a compelling concern. To be sure, stability is a desirable feature. Americans can justifiably believe their institutions accord stability, but dark consequences get overlooked because of this belief. Before this section concludes with one such consequence, consider the third force8 that inspires acceptance: cognitive dissonance. This is an uncomfortable state of mind. It can cause 8. These three examples assume that a majority of Americans know of the mass incarceration craze because crime and punishment themes dominate the news cycle, saturate prime time 1ine—ups on major broadcast networks in fictional and nonfictional formats, and comprise a large share of cable TV programming. For an excellent discussion of this, see Craig Haney’s Media Criminology and the Death Penalty, 58 DePaul L. Rev. 689 (2009). Page 8 of 19 A Brief Deconstruction of America’s Leviathan confusion, depression, or begin as frustration, lead to anger and explode in rage. These costly emotional states can challenge one’s sense of self and disrupt internal order. The brain evolved to minimize its use of limited energy resources while maximizing its ability. This is one reason the mind seeks to avoid cognitive dissonance. Avoiding it is as simple as ignoring or explaining away contradictions. Two glaring contradictions in America: it is the land of the free but millions of people are in prison, and consensual adult behavior is criminalized. Some darker consequences of acceptance include undermining constitutional protections and resultant mass incarceration, but perhaps the darkest comes from the doctrine of due process. This doctrine, a principle workhorse of American justice, doubles as one that discourages critical thought. Its continued use as a measure of fairness by the courts has led to the belief that as long as a criminal defendant receives it, justice prevails. This amounts to placing process over substance, a major flaw of the CJ S. Few, if any, apply this better than Supreme Court Justice Antonin Scalia. In a 2009 dissenting opinion he showed the magnitude of the problem: “This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.”9 How does a “full and fair trial” convict and condemn an innocent defendant? The public does not understand the manner in which the CJ S functions. Psychologically, it suffices to believe it does. Again, I cannot fault this. Many forces conspire to undermine the public’s capacity for critical thought. The few I highlighted show that patriotic ideas inspire love of country; love 9. In re Davis, 557 U.S. 952 (2009 Lexis 5037). Page 9 of 19 A Brief Deconstruction of America’s Leviathan of country gets reinforced by stable institutions; stable institutions give a sense of security; a sense of security can explain away incongruous spillover costs. HI The late William J. Stuntz once wrote that “American criminal law’s historical development has borne no relation to any plausible normative theory — unless ‘more’ counts as a normative theory.”1°Although 99 6‘ he did not seriously posit “more, more” does count. This essay offers a normative theory that explains why “more” is the norm. This draws on two interrelated theories of consciousness: namely, ego and memes.” What Professor Stuntz showed in his analysis of the CJ S were characteristics of a memeplex as expressed under the impetus of ego. Not the ego of boast, or Freud’s ego per se, rather the self—interested psychological entity that emerges from an individual’s core survival instincts. This Ego” is an amalgam of Freud’s ideas, but somewhat more. (The personality disorders of the DSM-V show Ego’s pathological manifestations.) Another legal scholar, Erik Luna, critiqued some of the same symptoms four years later,” suggesting that the overall problem, “the key unifying theme” of all the examples he cited, “is the govemment’s ready misuse of crime and punishment as concepts and the criminal justice system as an institution.” Therein lies the answer. Treating the CJ S as an institution, it has apparent interests, interests expressed through its functionaries — legislators, prosecutors, judges, police — some of whom represent institutions themselves. These members, their roles, then, are extensions of Ego —— each with its own 10. The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505, 508 (2001). 11. See, The Meme Machine, by Dr. Susan Blackmore. 12. My ideas also draw from Eckhart Tolle’s A New Earth: Awakening to Your Life is Purpose. 13. The Overcriminalization Phenomenon, 54 Am. U.L. Rev. 703, 712 (2005). Page 10 of 19 A Brief Deconstruction of America’s Leviathan interests, but all are incorporated in the body of concepts that forms the CJS’s memeplex. One theme unifies the vast number of characters operating within the C] S: control. Because all human behavior revolves around efforts to control, I contend that this is Ego’s most pressing desire. Whether of oneself, others, the environment — all we do, we do in the service of control at the behest of Ego. Nietzsche’s “will to power” describes this. The desire for control comes from Ego’s response to existential fears in the primitive recesses of our psyches. Ego, partly as a reflection of these fears, is frightened and insecure. Couple these motivating factors with selective pressures and it is not hard to imagine that nature would have favored the evolution of an entity capable of exerting control over its environment. One mode of control for Ego occurs through expansion; that is, joining with others. By expanding, it gains sway over its environment, lessening the fear of living alone in an uncaring, seemingly chaotic world. The tools Ego uses toward this end: memes. Essentially, memes are building blocks of thought; they are to mind what genes are to body. If it is in the mind, it is a meme. All systems of thought arise from Ego, but they are built with memes. One definition calls them units of culture — ideas, beliefs, morals, fads — that spread from mind to mind through imitation. Memes replicate like viruses. Effective memes excel at replicating. Thus, by using effective means does Ego expand. During our formative years, we observe, we imitate. Our experiences and our interpretations of them form complex cognitive structures called schemas, which are nothing more than aggregates of related memes, or memeplexes. Through these interpretive constructs not only do we perceive the world, but just what details of the world we are apt to perceive: i. e., what memes we will accept or reject. These memes then contribute to our course of development. Page 11 of 19 A Brief Deconstruction of America’s Leviathan Generally, adaptive memes will appeal to the forming Ego: those that help it express itself, manipulate its environment, have its needs met. Consider a boy in his high chair who throws his spoon. His mother picks it up, cleans it off, and gives it back. He seems happy and throws it again. She again returns it . . . . This is Ego learning control, but also learning the fundamental principle of cause and effect; a meme of physics. The child’s happiness comes from the success of the experiment, which induced a pleasurable sensation. Herein lies the power of memes and Ego: they directly implicate neurological pathways responsible for emotions. Security, for instance, represents a measure of control, which ameliorates the stress of fear, which can lead to contentment — a strong feeling. Moreover, when feeling content or secure, energy is not wasted on worries and can be expended elsewhere, like on the ultimate biological purpose of spreading one’s genes. Later in life, memes that have familiarity with one’s meme catalog will have the greater appeal. It is easier to accept similar memes, those that do not challenge the existing set, than it is to accept memes that require introspection or an analysis of one’s beliefs. Some memes of the CJ S are equal justice for all, law and order, crime and punishment, due process, practical reasoner, personal responsibility. The Egos of people drawn to this institution find appeal in these memes as they offer security and control. The CJ S memeplex then recruits the intellectual faculties of these people for the purpose of advancing its agenda, spreading its memes, creating “more.” Memes carmot develop on their own. The mind of someone who serves the CJ S, though, crafts new, related memes, or mutates extant memes as needed to maintain appeal. Effective memes spread. They also resist change. When a meme is accepted as valid, the mind will reject contrary memes, combat them even. Sectarian Violence, culture wars, political dissension — conflicting memes. Remember Palin’s “death panels”? Effective meme. “Hope and change,” another Page 12 of 19 A Brief Deconstruction of America’s Leviathan one. Memes need not be true to be effective. Consider “marijuana is a gateway drug.” Look at the power this has had. It has vilified marijuana and directs obscene amounts of resources toward combating the “problem,” yet plenty of evidence proves the meme a lie. The CJ S has subsumed all branches of government. Legislatures pass laws that courts condone and executive officers enforce. Assisting expansion are such memes as “ignorance of the law is no excuse,” or strict and vicarious liability. Legislators want their laws enforced, want their memes to spread and control; by separating intent from action, the C] S accomplishes this. Where once the Bill of Rights proscribed cruel and unusual punishment, double jeopardy, excessive bail and unreasonable searches and seizures, and mandated trial by jury, impartial juries and speedy trials, Supreme Court rulings undermined these protections and gave the CJ S free rein to expand.” Rules of evidence. Criminal jury instructions. '5 Hearsay exclusions.” “Harmless” error.” Uninformed juries.” Death qualification. 19 These procedures promote conviction, not acquittal or equality. Especially not truth! Specifically, however, they exert control. Plea bargaining. Victimless 14. See, In the name of Justice, Leading Experts Reexamine the Classic Article “The Aims of the Criminal Law, ” edited by Timothy Lynch. 15. These are the rules given to juries to guide their deliberations. 16. Statements a jury is not allowed to hear if they bolster a defendant’s theory of the case. For instance, if the defendant claimed to be innocent, a witness to this claim would not be allowed to testify about it before the jury, but if a witness claims a defendant confessed, the witness can testify about the alleged confession. 17. This doctrine allows judges to ignore clear violations of a defendant’s constitutional rights. The errors are recognized as violations of the constitution but because a defendant is only entitled to a fair trial (as determined so by the CJS) and not a perfect one, they are declared harmless. See, Bruton v. United States, 391 US. 123, 135 (1968). 18. Juries are intentionally not informed of the consequences of a guilty verdict in non—capita1 cases. So, a conviction for petty theft could be the third strike that lands a defendant in prison “for life.” 19. This is the process that selects a jury to try a capital murder — i.e., a death penalty — case. This process seats juries that are prone to convict and condemn capital murder defendants. See, generally, the works of The Capital Jury Project. Page 13 of 19 A Brief Deconstruction of America’s Leviathan crimes. Mandatory sentences. Prosecutorial discretion and unaccountability. The CI S has become Hobbes’s Leviathan. The over—criminalization and mass incarceration craze is merely the Leviathan’s Ego asserting control through memes. IV The goals of criminal punishment seem less like goals in light of the previous analysis and more like allies to the madness. To be sure, they are just that, but now the ethical need for scrutiny should be obvious: once in possession of explanatory doctrine, a duty attaches. If you know the well is poisoned, you cannot just stand by and watch as people drink from it. “Historically, our substantive criminal law is based upon a theory of punishing the vicious will. It postulates a free agent confronted with a choice between doing right and doing wrong and choosing freely to do wrong.”2° The philosophical problems with this misinformed, uninspired approach have guided the unforgiving hand of American criminal justice for too long. Indeed, one can even blame them for its excesses. That these sentiments lie at the heart of the C] S is but the lesser part of the issue, though. The origin of the sentiments is the greater part. Postulating a “free agent” assumes a free will. This ancient, self—serving assumption might be Ego’s greatest triumph. Recall that fear motivates Ego to seek control. It does so in order to enhance one’s prospects of survival. Toward this end, Ego, as a psychological entity, has access to and uses one’s memories, thoughts, perceptions and cognitive processes. To function well — that is, to survive — Ego would have to be proficient at threat detection. (It is.) In turn, having skill at threat detection would imply skill at threat assessment; after all, it would be an injudicious use of energy to run away 20. Morissette v. U.S., 342 U.S. 246, 250, n.4 (1952). Page 14 of 19 A Brief Deconstruction of America’s Leviathan from any and all threats. Now, because Ego can employ one’s abstract reasoning skills, it can perceive threats beyond those of an immediate nature. The greatest abstract threat to Ego is two—fold: failing to acquire control and being controlled. In short, the belief in free will is really just Ego’s own defense mechanism for overcoming the maladaptive feeling of helplessness in its futile battles with control. By convincing us that we have free will, Ego steers us from contemplating what it would rather we not: knowledge of its greatest fear, that we really have no control. Where we get lost in the free-will—versus—deter1ninism argument is in the apparent complexity of mind. To decrease this complexity somewhat, we need only see mind as Ego and memes. Then, if we take stock of all knowable antecedents to behavior, the complexity diminishes significantly. These antecedents need not comprise all that is metaphysically knowable, merely all we can ascertain of an actor’s physiological, psychological and social history. This would show us that actions accord with people’s memes: they defend them, promote them, take pride in them, believe they are the memes their Egos favor. This is Egoic identification, a behavioral motivator as compelling as — occasionally more so — one’s fight—or—flight instincts. Hence, the immediate implication of Ego and memes is that they control people’s behavior and there is no “free agent.” The connection between the foregoing and the substantive criminal law resides in CJ S functionaries operating under the illusion of free will. This trick birthed many more that foster continued expansion in Ego’s quest for control. They are “tricks” because they support Ego, not justice. Behavior that Ego cannot control, it seeks to punish. Its problem though, is that many people have morals which require justification for punishment. Tricks help Ego circumvent these pesky morals and enable the C] S to punish without incurring any moral guilt. Ultimately, though, they equivocate punishment with justice. Two tricks stand out in the Morissette quote: free choice and free agent. Page 15 of 19 A Brief Deconstruction of America’s Leviathan Consider two lost, thirsty hikers. Each happens upon a pool of brackish water. One does not drink from it, knowing that it would give her dysentery, exacerbate dehydration, and significantly impair chances of survival. The other has no such knowledge and does not question slaking her thirst. Did either woman exercise free choice? Choice depends upon the perception of options. Knowledge and thirst framed their options. The greater one’s knowledge, the greater the options, and the better the understanding of those options. Still, these factors constrain choice. Subscribing to free choice prevents recognition of the limited options facing many “criminals” whose formative years lacked instruction in mainstream mores, but instead taught that violence effectively solves problems, that trafficking narcotics yields money and prestige, and that police do not protect and serve them — people who, by no choice of their own, were born into situations that offered few options. Minds that devise choice—contingent metrics of accountability cannot transcend their appreciation for logic or sensible behavior. Guided by how they, practical reasoners, would weigh the options, they extrapolate normative doctrine which satisfies their memeplexes’ sense of accountability, thereby green—lighting their own vicious wills to punish. The “free agent” postulate supports the belief that a healthy adult brain has a “practical reasoner,” a brain area responsible for behavior. Personal responsibility is considered a product of this healthy brain. Such is one of the law’s attempts to scientifically validate its “free agent” premise. According to eminent neuroscientist Michael Gazzaniga, however, responsibility is neither located in any brain region nor neural network.” Therefore, personal responsibility comes from the mind; where, 21. Who’s In Charge? Free Will and the Science of the Brain, 191- 193 (Harper Collins 2011). Page 16 of 19 A Brief Deconstruction of America’s Leviathan of course, it exists as a meme — one the CJ S would have to assume all healthy adult brains possess. This faulty assumption is fundamental to the CJS’s claim that it must punish the vicious will and that it has the moral justification to do so. People are not free agents. They are slaves to Ego and the memes their Egos fancy. Thus, not one of the stated goals of criminal punishment should receive more emphasis. Furthermore, seen this way, are the current punishment schemes even ethically valid? Presuming for the moment an ethical system in place that values humans as ends in themselves, entitled to dignity and respect, the answer is “no.” Emphasizing any of the stated goals would serve only the interests of Ego at the expense of more lives. The goals are fear—mongering tricks that cast them as valid, necessary solutions to behavior that, more often than not, merely offends those minds entrenched in the controlling moralistic memeplexes codified as law. Minds that View these laws as essential to maintaining security will not brook any violation. Retribution, then, avenges violations of the control memeplex. The overlooked truth: Retribution is only revenge cloaked in the robes of official process, a punitive reaction born of base passions. The desire to inflict upon someone the psychological torment of lengthy or interminable incarceration, or death, cannot come from a good, free—thinking mind. “Giving people what they deserve” deliberately harms in response to harm defined as bad. Deterrence preys on fear and the desire for security. “Discouraging future crimes” speaks to behavior that would threaten the control memeplex. Yet, the very “crime” it promises to deter still occurs. Due to the power of meme entrenchment this failure actually reinforces the need for “more.” Page 17 of 19 A Brief Deconstruction of America’s Leviathan Rehabilitation is just a euphemism for re-education. If this aimed at holistically improving people it would be worth emphasizing, but “improving behavior” aims only to “fix” people who have strayed from the control memeplex. CONCLUSION Ego is fearful. From fear comes the urge to control. Ego crafts memes that both appeal to that urge and respond to fear. The CJ S is about control and responding to fear, thus it is an outgrowth of Ego. The two theories under which the CJ S doles out punishment — retributivism and utilitarianism — derive from Ego’s punitive and controlling nature. Whenever Ego is involved in this capacity, we neglect our best qualities such as virtue, reason, and compassion, and display our worst, such as anger, judgment and hatred. Hegel says we are free when reason guides us. Reason does not guide us when Ego is the reasoner. Reason guides us when we think critically, overcome emotion, consider all sides. With Ego in control, we react without thinking. The result: the CJ S and its normative theory of “more.” The CJ S must respond to actual criminal behavior, but to do so justly, as America’s ideals promise, it must mature. Look at Norway’s punishment scheme. Anders Breivikzz received his country’s maximum sentence of 21 years. Future dangerousness assessments could impose additional five—year terms if deemed necessary. This response to acts of terror and death unknown in Norway since World War II shows an ethical, mature, compassionate CJ S and society, the likes of which America has yet to realize. Instead, America has moved in the opposite direction, especially over the last four decades. 22. Note: He is not “insane.” His mind has been hijacked by a pernicious combination of two powerful sets of identity memes: race and nationality. Page 18 of 19 A Brief Deconstruction of America’s Leviathan An ethical, mature direction entails acknowledging the determined nature of behavior, overcoming rash punitive urges and, above all, erring on the side of life and respect for the individual. We get only one life. A system that takes it, or a large part of it, for failing to meet standards established by majoritarian morality is truly criminal. The objectionable malum prohibitum legislation that proscribes and criminalizes minority lifestyles, the forces that compel unquestioned acceptance of that criminalization, the dark consequences of that acceptance, CJ S expansion through Supreme Court complicity, and the faulty belief in free agency, all originate from Ego and its efforts to control — precisely why no one is blameworthy for this conduct. It is Ego that must be blamed — and confronted. (Even for mala in se crimes.) Confronting it begins by noting the disturbing parallel between our society with CJ S functionaries blithely going about their work and a willfully ignorant 1930s society with Eichmann indifferently processing lives reduced to so much paperwork. >l< >l< >l< >l< >l< In a child dwells an innocent being, ever curious, looking upon the world with wonder. Then Ego slowly takes control and memes cage the child. Yet, this child still lives within us, each of us, still looking upon the world with wonder, without judgment. To see this child in each of us is to begin to understand the human. With intuitive understanding of the human condition, hatred dissolves and compassion becomes possible. Maturity brings wisdom. How long before the American criminal justice system matures? When does America start a new, humane approach to defining and answering criminal behavior? Page 19 of 19