The wrath of we, the people: the softer, gentler development of industrial justice systems

Quintero, John Randall



The Wrath of We, the People: The Softer, Gentler Development of Industrial Justice Systems “Beloved, do not look to avenge yourselves, but leave room for the wrath of God..." Romans 12:19 Torture is an ugly word. But the popular principle of “accountability” is a two way street, a double edge sword. The hoiy regenerate legislatures must be held “accountable" just as the unwashed, degenerate and imprisoned are to be held “accountable”. Torture is such an ugly word; and that prisoners in America might make the claim that torture is part of the American industrial justice system will irritate the defender of the system to deny the assertion. This paper argues that torture is one of the main elements which makes the industrial prison complex a dangerously misleading slogan. Torture is the main element of the industrial justice systemw-prisoners are the products who are warehoused in prisons that put an end to the tortuous procedures of justice. We argue that torture is what makes the justice system in industrial nations industrial. Lest you are bothered this claim is made by prisoners, we respond: 1. To the citizen claiming Christian affiliation we remind you, don't be haughty, but associate with the lowly”. (Romans 12: 12) 2. To the secular moralist, we say, remember the words of the famous progressivist Herbert Spencer “There is a principle which is a bar against all information... that principle is contempt prior to investigation”. This essay is a plea. It presents a paleontological record of the practice of industrial justice, in the hopes in showing various manifestation of the same species. We discuss the following: . The panopticon nightmare of Jeremy Bentham. . The famous US. Supreme Court decision, Miranda v. State of Arizona. . The description of torture by Alexander Solzhenitsyn in The Gu/ag Archipelago. . An eye~witness account of theeuphemistic institution of torture in the United States, called the “early resolution policy” which is an academically redesigned cloak for judicial torture. We will then present an argument that this animal whose bones we have presented is one of the major structures of industrial totalitarianism. Let us make some prefatory remarks about the nature of this large beast of which the industrial justice system is a constituent. Industrial society is not merely another term for capitalism. Socialism is a command economy; the industrial mode of production operates under the “dictatorship” of the proletariat. In iaissez-ifaire democracies the industrial production operates on internal laws of free~markets, which is to state a claim that it is the “invisible hand"; I think this represents the Calvinist perversion of the absolute directive will of God. Those who have are the elect marked by God's sign of electionm wealth. Those who have not ought to work for election, and those in prison are burdened with the scarlet letter of perdition. C Industrialismi is a way of organizing for economic production of goods and services, characterized by three things: John Qulntero (All rights reserved) Words: 9,641 1. Extensive exploitation of the natural resources of power. 2. Increasing emphasis on capital in relation to labor. 3. Various consequent modifications of reiated institutions in the total social system. Industrial society is distinct from nomindustrial economies as they are open, and not closed or self~sustaining, arrangements. Here is another series of characteristics of industrial society, which basically”gears the entire society to meet the demands of organized production” of goods and services, such as “public safety" produced by the government systems of justice. Increasing activity in larger, national and then international markets. . Changes in the nature and composition of work force. Reduction of agriculture. Upgrading of unskilled and semi-sl<illed. New professional types and special training. . Increase of service of industry. . - Associated urbanization. . Reduction of family in size and importance. . Lengthened periods of unproductive childhood (infancy and dependency). 10. Extended family structures destroyed by mobility. 11. i\ion~parentai sources of training increased. 12. Locus of production shifts from home to factory. 13Domestic function loses economic significance and re—focuses on “socialization” and “management”. 14. Concentration on efficiency that causes over~expansion. Of course, the United States has found itself in the past year or so facing problems related to item 14 both in the ovenexpanded “financiai~services” and in the “public-safety prison” services. The characteristic lists should provide a way to test the veracity of the proposition that “justice” is now an organized production system industrial in nature. Just as a quick example, “reduction of agriculture”. It used to be that prisons and county jails, in America, and in the description of some situations in the Soviet Guiag, agriculture was a main activity of prisoners. The Santa Rita County Jail in Alameda County Caiifornia was until the early 1960's completely self~sufficient-~—a dairy, cattle ranch, poultry barn, wheat~«fields and truck gardens gave prisoners plenty to do. The Nevada State prison system still, rumor has it, runs its own prisoner produced milk into the systemmat least the extremely-low security prisoners are still involved with this production; the system rules allowed higher~security inmates ground to grow vegetable gardens until 2007»-these gardens have been now completely abolished (as of 2009) and in 2008, the last vestige of a horticultural vocation training program was destroyed with the removal of its large heated greenhouse at the Lovelock facility. This meets the criteria for “industrialization" and our plea is to consider the other criteria as well-—-we are sure the thesis will bear out. This article deals only with item one, “extensive exploitation of the natural resources of power”, which we will now commence with the consideration of Bentham’s panopticon. This idea bears witness to the totalitarian nature of industrial organization upon which Bentham imagines his nightmare which was at first refused at first refused by the British government, but then adopted in America, and perfected in the Soviet Gulag and now diffused among the various organs of the system of justice and built into the architectural structure of the “housing units” of the Early Resolution Procedure (E. R. P). H E I. E I. 53!: l. . E I _ John Quintero (All rights reserved) Words: 9,641 In her essay, “The Haunted House of Jeremy Bentham”, Gertrude Himmelfarb tells us that despite being an atheist, Bentham “believed in the qualities that apotheosizes God” (Minds, 35). His penal theory panopticon, which is Greek for “all-seeing”, is inspired by Psaim 138:3 “Thou art about my path, and about my bed, and spiest out all my ways” Thus, Bentham plagiarizes the omniscience of God pondered in King David's poetry and comes up with the penological Principle of Inspection. He steais the architectural idea of panopticon from his brothers plan for a workshop on the estate of Potemkin in Russia: that is, a circular building honey-combed with cells around a central, all-seeing hub tower. Bentham describes his Principle of Inspection: “... the more constantly the person to be inspected are under the eyes of the persons who should inspect them, the more perfect wiil the purpose of the establishment have been obtained... it is to be wished that at every instant the prisoner sees reason to believe he is being watched; and, not being able to convince himself otherwise, he should conceive himseif as being inspected”. (Works, IV, 40) Ms. Himmelfarb synopsizes: “The Panopticon was a realization of the divine ideal, spying out the way of the transgressor by means of an ingenious architectural scheme, turning night into day with artificial lights and reflectors, holding men captive by an intricate system of inspection. Its purpose was not so much to provide a maximum amount of human supervision, as to transcend the human and give the illusion of divine omnipresence... this simulation was achieved by adopting another attribute of God-~ini/isibility. “Because of the inspector's ‘invisible eye’, each inmate would conceive himself in a state of complete and constant inspection. All the architecture was designed to present the apparent omnipresence of the inspector... with the extreme facility of his real presence”. (Minds, 35) It is important to note here two attributes which wiil stay constant in later history we wili present: an oppressive air of “complete and constant inspection” will appear in the interrogator's arsenal in both the Soviet and American industrialized justice system. Aiso remaining constant wili be Bentham’s Law of Solitude, which is necessary to achieve the Principle of Inspection, which is an interiorized state, it seems, of self—incrimination. The names of these penological notions will change, as we will see. Himmelfarb shares another story about Bentham’s obsession of penal reform which supplies some foundation for hope in today's attempts at reform of the penal system and mechanisms of the Early Resolution Process we will eventually address. That is, the British mind found Bentham’s idea repugnant and the system was tried in America long before ever adopted by Engiand. As the story goes, Bentham wished to apply the Principie of Inspection as a school administrator. He notes that parents are very quick to agree that one cannot watch kids too much (the little bratsi). When Bentham suggests taking this watching to extreme degrees, the parents are taken aback and repuised. This reaction Bentham attributes to the vice of inconsistency. We attribute this British repugnance rather to the virtue of equity, or epikeia. That the American mind apparently does consider consistency a virtue is proven by the fact that they welcomed and experimented with the Panopticon and utilize its principles to this day in the Early Resolution Procedure--the art of “Inspection” has diffentiated into a variety of behaviorahshaping technique, as we wiil see. John Quintero (Ail rights reserved) 3 Words: 9,641 Not only was the “inspection house” invisible, omnipresent and all-seeing, it was eternai in his theories. The basis of his scheme is that prisons would be run as private business, and his pian included a cadena perpetua of haif-way houses, labor contracting and indentured slavery. These are precursory antecedents to our parole system today which contributes as the efficient cause for the horrendousiy high recidivism rates. How, you might be asking, does this all relate to torture? Bentham does not suggest torture anywhere? No, he doesn't———torture is violence used with the end of confessions. We will show beiow that torture can be aiso used to other just and due ends beiow. Bentham is oniy interested in warehousing prisoners and making money at it——-he is interested in the prison, not the judiciai process of getting them there, but the way to manage and keep them there with industrial efficiency»-keeping labor costs low and maximizing profits. In the American experiments with solitary confinement prisons something is discovered: the two elements of the systemmsolitude and the atmosphere of being “inspected" are forms of painmbioodless, excruciating mental anguish. The first, solitude, is iethal as it leads to insanity and suicidei“. The second, the interiorization of belief in an exterior condition of being inspected, has another usefui side—effect——~it serves to extract confessionsmthus, a new way to torture is discovered and developed. Let's intercede quickly at this point and look to the meaning and the common law of torture. As we said above, torture is pain infiicted with an intentionmwithout good reason, the infliction of pain is arbitrary, capricious and descends to mindless cruelty. We will examine the discussions of torture in the forthcoming sections. We present briefly here what common law in American says about it and its relation to its natural end--confessions of guiit of an act. The history of law notes that the ancient German leaders of the Holy Roman Empire did not use torture in their proceedings of criminal justice; “the renaissance” of Roman law in the 1100's introduces the usage by civil authority, notably on heretics (those who stand contrary to stand contrary to God's law). The use of torture on this class of sin is approved by Pope Innocent IV in 1252 (CIC c. 17434) and philosophically expiain by St. Thomas Aquinas at Summa Theologica II-«II, 69«~1. It is used heavily in a span of time of about 500 yearswfrom the 1100's untii the mid- 1700's; by this torture, we are talking here of the sanguinary and corporal type. It is well to ' remember this pagan Roman source of judicially sanctioned torture: we are talking of a society wherein the law consider slaves under the law of things that can be owned in despotic dominion and killed without answer to authority. The Corpus Juris Secundum defines torture as having three elements: pain, and an intention to the pain, such as punishment, extortion of confession or revenge. The third element is authority to inflict the pain. The kind of torture used by a state on an individual is referred to as judicial torture. This third element must be examined, as it is significant in our following discussions on natural law, and its necessity for a recovery of respect for law as an aiternative to current procedures such as the early resolution system in practice in the United States. What we are dealing with here is an issue of sovereignity and the state. The Doctrine of Governmental Immunity is the principle that in general “the state has the capacity to commit tortuous acts”. (C.J.S. 81 A § 200) This must be the case under natural law theory because without the power to do harm it would not be able to inflict punishment, or enter into war. Unless the actual people in government were not given immunity from damages, with some equitable limitations, no one would do the dirty work of pubiic service as the state, no matter if the modaiity of the regime were monarchy, or democracy. The issue arises around the equitable limitations of the immunitywwho in the John Quintero (Ail rights reserved) 4 Words: 9,641 government has immunity? For our purposes, we can ask, presuming the legitimacy of‘ judicial torture, who can exercise that power? Everyone in the government? The other issue to keep in mind is that of sovereignity. Anglo-American common law states at C.J.S. 81 A§ 20 states “ultimate authority, as far as the state is concerned, rests in its people, and as long as the government established by them exists, that sovereignity remains with them...". We consider this a positive statement of an industrial theory of government which represents a profound rupture in the western concept of law as naturai law. The rupture is visible when placed next to the theory of natural law in this statement by Pope Pius XII in 1939: “Before all else, it is certain that the radical and ultimate cause of the evils which we deplore in modern society is the denial and rejection of... the natural law itself, which has its foundation in God, Almighty Creator and Father of all, supreme and absolute Lawglver”‘V. We presume, in this paper, that this statement was directed at Hitler, and directed at Stalin, both of whom led regimes created and justified by positive man-made law in obvious violation of natural law theory. We believe he is also speaking to the United States and other western nations who have abandoned natural law as a theory, as has been done in this country. We will argue this after our discussion of the development of the tortuous production of prisoners by the “early resolution system”; we'll begin by discussing the Soviet experience. In his account of his experiences in the 1920's Soviet industrial judicial system, Aiexander Solzhenitsyn says: “My interrogator had used no methods on me other than sleeplessness, lies and threatsmall completely legal"”V. Solzhenitsyn describes the rapid development of the Gulag, and describes not so much prison conditions, but the procedure of getting into prison. The system is entirely distinct from the past, based on a totalized industrial rationale: “Now there is the power of logic for you! For a thousand years, prosecutors and accusers had never imagined that the fact of the arrest might itself be proof of guilt. If the defendants were innocent, then why have they been arrested? And so once they have been arrested, that meant they were guilty”. This outlook is ubiquitous in the industrial system in American, and this we say is made operative by the foul errors about the directive will of God, which is a cornerstone of the great rebellion of the industrial order. In economics, this principle is called the “invisible hand” (the laws of economic activity); in philosophy, Leibniz called it the monadmthe ever-present directive design or provident will of God. In industrial penal science, this “directive will” can be presented as evidence to the court by “psychometrics”, the techniques of which are designated in some governments as “state secrets”, enforced by pain of criminal sanction of its priestiy technicians who might make public the methodology. His lengthy description of the Soviet System is not one of sangulnary brutality, but of an extension of the “inspection house” into the proceedings of justice which filled the political command center's quotas without resistance by the participants at any Ievelmthe accused: l John Quintero (Ali rights reserved) Words: 9,641 “...The best evidence... is the confession of the defendant... But what confessionsi These confessions were not forced but inspired-——repentance tearing whoie monologues from the breast...” (Gu/ag, 377) The “spectre haunting Europe” seems to have come from Bentham’s idea of getting prisoners to believe they are being inspected by the invisible demigodsmin Russia that spectre infected the entire society: “On the threshold of the classless society, we were at last capable of realizing the conflictless trial (italics his)~—a refiection of the absence of inner conflict on our social structure, in which not only the judge and the prosecutor, but also the defense lawyers and the defendants themselves would strive to achieve collectively their common purpose”. (Gu/ag, 374) We see a society that had divinized the Soviet bureaucracy, and accepted it as omniscient and infallible: its sovereignity was compiete, as it appears to be complete to a prisoner exposed to an invisible inspector in a specially arranged architecture that gives the illusion of the conflation of conscience between the mind of the inspector god and the inspected degenerate. Soviet society is able to utilize the principle of inspection by enforcing the law of solitude--the very randomness and weight of knowing one could be arrested by the sheerest whisper or innuendo for violation of the vaguest of positive legislation: i ‘‘What a speedup and simplification of criminal investigation previously unknown to mankind! The organs altogether freed themselves of the burden of obtaining proof! “We are not going to sweat to prove the prisoners guilt to him. Let him prove to us that he did not have hostile intent... Trembling and pale, the rabbit who had been caught, if he could not discover such proof... provided the interrogator with approximate proof of his guiitl” % As for the defense lawyers participation in the totalitariawindustrial system (which are, as we have pointed earlier, synonymous insofar as the industriai modality is constituted by and requires cohesion by the total society): “... For a Soviet defense lawyer is first of all a Soviet citizen, and like all the workers he too is outraged at the crimes of the defendants... the defense asked shy and tentative question then instantly backed away”. (Gulag, 378) As for the interrogators themseives, they were a special bureaucratic division beyond the control of any other branch. They had as allies the medicai and psychiatric “workers”. These workers, which Solzhenitsyn caiis the “Biuecaps”, gave precedence to the so called light methods of extracting confessions--meaning light methods of torture. I list those cited by Solzhenitsyn and discussed at iength, and the readers can draw their own conclusion as to the categorical similarity to the principle of inspection and law of solitude already discussed and use as comparative reference in the following discussions of the American version of industrial justice systems. Nighbdisruption of normal sleep patterns. Rhetorical persuasion. Foul language. Psychoiogical contrast. Preliminary humiliation. . Methods of inducing confusionmincognito, covered windows. Intimidation. . Lies. . Playing on affections. 10. Sound effects. John Quintero (Ail rights reserved) Words: 9,641 11. Light effects. 12. Continua? state of being led to interrogation. 13. Use of cold. 14. Standing for extended periods. 15. Water and food deprivation. 16. Sieeplessness. 17. Isoiationmpunishment cells. 18. Beatings. 19. Strait jackets. This represents, about two~thirds of the iist of “torture” techniques used in his experience. The others are brutai. What is important to remember is the sudden shift from a Catholic Orthodox monarchy to a state ruled by the “people”. It shifted from the religious conceptions of natural law inherent in the Orthodox Catholic deposit of faith to the positivlstic theories of the state made possible by the nominalist direction of both the Enlightenment of different eras and the so~cal|ed reformation. Luther contributes to the idea of the state as the providence of God, the very hand of God, and practices his preaching by his “kill, KILL” exhortatlon to the Baron's in the infamous peasant uprising. Calvinist~non-conformist’s develop this “hand~of-God” theory to the economy. When secuiarized, when cut loose from the restraining morai norms of the institutionai church, the effect was the rapid expansion of an industrialized world view by the power and sovereignity, and even divinity (in the demonic sense) of the state. The Soviet republic had radically removed the obstacles to its catching up with the already industriaiized West, that obstacle being natural law itself, which finds the attribution of absolute sovereignity to a temporal state immoral blasphemy. That rapid expansion, of course, ied to an equally rapid impiosion. The West, we will show, developed its industriai systems more slowly, and thus has been able to destroy its naturai and Christian law origins with less drarna——and thus less visibility. Which means it's use of invisibility, and other Panopticon axioms, has effectuated the sovereignty of the industriai order more completely and perfectly. Let's now examine the famous Miranda case to illustrate the industrial~«l:otalitarian development in American criminal jurisprudence, and its God- iike sovereignity. “ rd 3... .. Everyone exposed to television will pick up an understanding of getting, or giving, the ‘‘3“* degree”. The term conjures up what we stiii see on teievision police dramas: cops interrogating in the special rooms now called “interview” rooms. Often other cops observe, aiong with the speciai agents and psychiatrists, behind one—way mirrorsman extension of the principle of invisibility of panopticon. The earlier editions of the Corpus Juris Secundumvl mentions the technique only in a footnote under Criminal Law at § 826. As we will show, the “3rd Degree” was historicaliy, and comparatively, analyzed by Chief Justice Earl Warren in the Miranda v. Arizona” Supreme Court decision as a conditionally legitimate way to extort confessions by the police interrogation process: the conditions being that the arresting police do two things that wiil later make the confession admissible as evidence in Court; 1. They must forewarn the accused of the impending process of extortion interviews (extra-judicial torture). 2. Must advise the potential extortee his right to silence and presence of attorney. John Quintero (All rights reserved) 7 Words: 9,641 We intend to show the historical pattern of alteration of the process of torture (or extortion for the less dramatic) by the diffusion of the loci of its action, along the architectural and systemic principles of Bentham, in a manner not unlike that other giant industrial super~state, the former Soviet Republic. When the particular forms of torture are diminished, the element diminished structuraily iocomotes to a less visible place in the system. What appears to be a diminishment of torture, and the apparent increase of fairness of the system, turns out to be an escalation (growth) in efficiency of extorted confessions. Before presenting the evidence contained in Miranda, which I consider to be worthy of recognition as one of the great literary essays in world literature, let's look at what the Anglo~American common iaw had to say about confessions in general prior to the Miranda decision. This can only be verified to one lucky enough to have a now ancient edition of the Corpus Juris Scundum, as later editions have deleted much of our common law and equitable maxims which are antecedent to positive law. This reflects an egregious destruction of our natural law heritage which was not entirely destroyed by the Reformation or humanist renaissance——only industrial-strength efficacy can do that. Here is a series of restatements of common law made in the volume containing the chapter on Confessions (23 C.J.S. § 826). Each “maxim” is footnoted in the Corpus, citing the case from whence derived; this citation is not provided here, only the location of the maxim in the old (and now defunct) edition accessibie at my particular library. 1. Generally, confessions induced by fear although not aroused by spoken threats, are nevertheless involuntary, as the fear which takes away the freedom may arise solely from the conditions and circumstances of the confession. (C.J.S. pg 220) . “...the degree of fear is not material” (C.J.S. pg 220) . “... threats automaticaily invalidate the confession, there is no need to measure their effect on the will of the victim”.(C.J.S. pg 220)Vli* . “A confession is not admissible in evidence if induced by force, vioience, coercion or duress, or if induced by psychological coercion or mental punishment”. (C.J.S. pg 221 (b)) . it is not necessary that the force, violence or duress be used contemporaneously with the giving of the confession..." (C.J.S. pg 223) . [such confession is inadmissible] “... uniess it is clearly established that the effect of the prior force and violence had ceased to operate on accused to bring about confession...” (C.J.S. pg 224) i .“A threat by a prosecuting attorney to prosecute accused for various crimes involving cumulative sentences renders a confession thereby obtained inadmissible”. (C.J.S. pg 221) . “A confession may be inadmissible if induced by a threat to prosecute accused for an independent offense invoiving a morals charge which will be embarrassing to accused and his family". (C.J.S. pg 221) It is crucial to note that torture, insofar as it's an extortive attempt at gaining a confession, is not outlawed as an act, in itself. It is merely that the confessions resulting from the power of the state, as an exogenous force, being exterior to the accused, is merely not admitted. The principle of judicial nomadmittance of confessions extracted by the ways implied above, acts merely as an obstacle to future actions in the court room itself. The law does not in any way prohibit torture, as such, in its strict extortive sense, in its extractive sense. ' It is because of its extractive nature that makes torture acceptabie to the industrialized mind--it is economical and efficient and therefore in a very twisted way, virtuous. It is in this way John Quintero (Ail rights reserved) 8 Words: 9,641 that the American justice system is as “industrial" as the Soviet system”. As an obstacle, then, the players in the production of confessions are permitted to “get around" the issue of prohibitive condition which can be argued by the defendantw-we use “can” in the conditional mood of might. He equaily well might not use the law to his defense in the Anglo-American adversary ruies of procedure. Thus, torture can be legally used, confessions extracted, and it is up to the accused to demand the judge throw out confession extracted by torture. But what if the accused does not know the iaw, nor have a lawyer who vigorously defends, as seen in the Soviet industrial system described by Soizhenitsyn? There is a second route to “get around” the iegal obstacies which protect individuals against the state: loopholes, which are in the restatement of common law: 1. “Fear created by consciousness of guilt and a dread of the iegal penaity which probably wili and ought to fail, is not the kind that will invaiidate an otherwise voiuntary confession” (C.J.S. pg 220, footnote 82) 2. “It is not the pressure of the circumstances surrounding the accused person, but pressure exerted by others tending to influence his action, that is to be weighed in determining whether his confession of guilt has been made voluntarily or under the compuision of external influences”><. 3. “...the fear must be that which some other person excites, and not that which originates in the accused’s own mind from the seed of his own planting". The above is canon for aggressive, poiitically ambitious public servants in the gigantic regime of the industrial justice system to increase his or her “head-counts “or “ki|l—stars” to wave in the eyes of the mythologicai “people”—~—~this same human force is what drove the Soviet regimes escalation of its Gulag. As in the Soviet system, the doctor and psychiatrist is the torture’s right hand man (Guiag, pg.208). If the accused has the good sense to battle back in the adversary system, the state can argue the fear was not exogenous, and present expert witness to that effect; and thus have the extorted confession admitted to evidence! The obvious potential for abuse became actual and the Warren Court exposed it, as we wiil now see. Justice Earl Warren does not use the word torture in his decision, but “in-custody interrogation”. The term now carries, unfortunately, the more brutal and sanguinary connotation that recalls the old resentments of the Church-State connection which brought witches and heretics to the rack and to the burning stake. We continue to use it here for its poetic brevity and its technical precision. This decision is pointed at the modern practice of torture, which is iight, and as Bentham and Solzhenitsyn have argued, even more effective. Warren clearly defines the topic: “... We stress that the modem practice of in«custody interrogation is psychologically rather than physically oriented... the [Supreme] Court has recognized that coercion can be mental as weli as physical, and that the blood of the accused is not the only hallmark of an unconstitutional inquisitionxl. In other words, American industriai justice systems have discovered the same thing the Soviets have Bentham’s light methods work! We present the foiiowing iist which compiles the proof the Warren Court presents as to the existence of a science of extracting confessions, which have clear simiiarities to the Marxist industrial iegal system: 1. Articles and books iisted in Miranda: a) Booth, “Confessions and Methods Employed in Procuring Them” in Southern Ca. Law Rvw, 1930.. b) Kauper, “Judicial Examination of the Accused-~— A Remedy for the Third Degree” in Mich. Law Rvw, 1932., John Quintero (Ail rights reserved) 9 Words: 9,641 Hall, “The Law of Arrest in Relation to Contemporary Social Problems” in Univ. of Chicago Law Rvw, 1936. Kidd, “Police Interrogation” 1940. Potts, “The Preliminary Examination and the ‘Third Degree” in Baylon Law Review 1950. Molbar “Interrogation" 1951. Dienstein, “Technics for the Crime investigator”, 1952. Inbar and Reid “Life Detection and Criminal Interrogation”, 1953. O’Hara,.“Fundamentais of Criminal Investigation”, 1956. Inbar and Reid, “Criminal Interrogation and Confessions” 1953. Sterling, “Police Interrogation and the Psychology of Confession” in Journal of Public Law, 1965. 2. The following is a compilation of maxims constructed verbatim from justice Warren's quotes from the above texts, either in the body of the decision or as footnotes, mainiy a quote at pg. 1615, FN 12: a) The subject shall be deprived of every psychologicai advantage. b) In his own home, the suspect may become confident, indignant or recalcitrant [this implies efforts are in order to create lack of confidence, impose dociiity and create compliance]. c) Suspect in home is more keenly aware of his rights and reluctant to tell of his indiscretions. cl) Suspects at home have the moral support of family and friends [and this is to be avoided]. e) The investigator in his office has all the advantages. f) [One must] create an atmosphere of invincibility of the force of the law. g) And highlight isolation h) And highlight unfamiliar surroundings. i) Display confidence in the guilt of accused. j) Maintain appearance of merely confirming details. k) Use closed questions: not did you do it, but how, where, when and why did you do it. i) Feign empathy. m) Minimize moral seriousness of alleged act; blame others. n) Keep accused in psychological state where his story is mere elaboration of what police already know. Be dismissive and discourage all contrary explanations. When these tricks fail escalate oppressive atmosphere and unrelenting persistence. Never relent or give respite from the atmosphere of domination. Use these methods only when guilt is highly probable. when all else fails, show hostility to engender fear. The examiner is to concede suspect the right to remain silent as this has an undermining effect by the show of apparent, or false, fairness. The industrial American development of torture in its lighter, but more effective forms reflects the general acceptance of confessions in law as having sufficient “probative value"><ii. The common law in general says that “the securing of voluntary confessions from guilty persons is desirable and should be allowed in the interest of public welfare and safety”><"i. The only prohibitive criteria of making a confession unadmissible as evidence to convict, is voluntarinesswwhich is to speak of a man's will, also understood right by catholic philosophy as the intellectual appetite. The common law reason for the rules of admissibility of confession are two~fold: 1. For the regulation of conduct of police officers, and 2. Insure right to fair trial and against false confessions by the individual accused and prosecuted by the power of the state. John Quintero (Ail rights reserved) 10 Words: 9,641 By the 1960's it was clear that he increasing size and compiexity of the state systems of justice had begun to place more weight on efficiency, and the escalation of torture in quaiity (in its effective soft techniques)“ and quantity had reached crisis proportions, and gotten beyond the controi of the state Courts. The Supreme Court had to step in and put a stop to it by the creation of the famous uniform rule. The Court notes that the problem had been studied by the Federai Government and had issued the pubiication of a report to Congress on poiice vioience and the third degree“. States and municipalities passed “anti-sweating” statutes, all to no avail. The Miranda decision, in its historicai overview, reveals an architectural locomotion of judiciai torturewfrom the judge's open court, to the police station, and after Miranda it takes on the principle of invisibiiity (proposed by Bentham) most perfectiy. The oid name for “interrogation” was judicial torture. We mentioned eariier the introduction of torture to northern Germanic countries and England by way of the so—called “renaissance” of pagan Roman Law. This gave the magistrate the power to order the tortured confession, usuaily inflicted by the public executioner. Justice Warren says this system was in place “until the expuision of the Stuarts in 1688... and the erection of additional barriers for the protection of the peopie against the exercise of arbitrary power”><Vi. The protest was, says Justice Warren; against the “inquisitorial and manifestly unjust methods of interrogation”. We hope it has been made clear that an interrogation becomes torture, technicaiiy, when it seeks to extract a confession, punish or wreak revenge. Otherwise, it can aiso have a more benign seeking of facts without seeking admissions of guilt to be used in court judgments and convictions. Warren is clearly using interrogation in the sense of torture, and it is clear the use of torture in principal was not protested, just the unjust methods and its “inquisitorial” nature. One must remember two things; historically when Warren says “the people” he is referring actuaily to men have at least status of iandholder~—the “people” shouid read “those who had right in the first place”. A great bulk of human persons did not have the franchise, so those complaining of violated rights at that time were probably protestant landholders trying to politically disenfranchise and overthrow the Cathoiic Stuarts. Secondly, one must see the impiication in the protest in the methods when sanguinary or excessive, but not the use of torture itself: the social movement was to alter it in some ways, but not to abolish it. But it was not necessarily altered by statute or decree of king or congress: rather, we highlight, the job of torture is re—~assigned to the judge's chambers. As an act, it locomotes away from the executioner to the prosecutor in the presence of the magistrates. In this same passage in Miranda, 3ustice Warren describes that the judicial torture in open courts of early Anglo~American jurisprudence was not a pretty sight and that the intrinsic legal principie operative in torture, that “confessions are to be desired”, could not shieid the state judges and prosecutors from “the temptation to browbeat him [the accused] if he be timid or reluctant, to push him into a corner, and to entrap him into fatai contradictions, which is so painfully evident in many of the earlier state trials, notably those of Sir Nicholas Throckmorton and Udal (the Puritan minister) made the system so odious as to give rise to demand for total abolition...” John Quintero (Ail rights reserved) 11 Words: 9,641 So, it’s implied that the physicai judicial torture of pre~1688 aiters to purely psychological judiciai torture and iocomotes to the Court room and becomes the job of attorneys. Torture diffuses to become embedded a little less visibly, but alters in formwnot in its essence of the state seeking confessions, but in its accidentswwho does it, where it is performed, changes of the exterior attributes of torture~«~, these things aiter, iocomote decrease in some ways, and increase in other attributes (as in physical to psychological)»-but it never becomes illegal, not in the substantive, essential legality of extracting confessions as a means to the achievement of the common good. Justice Warren goes on to imply the further changes in attributes of judicial torture. The prosecutoriai court-room antics became too odious for display the pubiic forum of the Courtmbut obviously the torture continued, or eise this case would not be before the Court. The judicial torture had locomoted to the backrooms of the police stations. So we see torture moving about in the system over time from the executioners chamber, to the courtroom, to the poiice station; the attributes have been already above. Miranda puts a stop to this, but oniy in its attributes, as before. There is no attack on the substantial essence of the law of torture in Miranda. It only creates another set of obstacies on behalf of those accused of a crime by the state: it is no less iegal for the state to seek its revenge, seek its punishment and seek its confessions of guilt for use as admissible evidence for judgments and convictions, by use of torture. We have shown an historical pattern of aiteration and locomotion of torture in the legal system. The question is, what has happened after the landmark Miranda decision? Has torture altered, locomoted, diminished or grown in the same general trajectories we havetraced? As we pointed out earlier, Jeremy Bentham’s plans for panopticon were meant for the “houses of correction” of the tried, judged and convicted; its designs did have not in mind any other location in the social process of crime detection, arrest, investigation and trial and sentencing. In fact, he warns that his methods would violate the rights of those held in “safe custody merely”; the inspection principle is valid insofar as it provides the necessary restraint of accused persons, says Bentham, but, “...there can be no ground for punishing them any otherwise than is so far as the restraint necessary for safe custody... there can be as little ground for subjecting them to solitude; unless where that circumstance should also appear necessary, either to safe custody or to prevent that mental infection of novices... from the masters of those [criminai] arts... communication must likewise be allowed to the prisoners with their friends and legal assistants, for the purpose of setting their affairs, and concerting their defense... as forced labor is punishment, iabor must not here be forced”><V“. Bentham is respectful of the power of the psychological punishment and pain caused by the principles of omnipresence, inspection, soiitude and omniscience; and it is clear that he thinks the imposition of them so eariy in the process of justice is damaging to that end. Let's think about this in historical context. Panopticon is published in 1787; this is about the time when judicial torture had been chased out of the public court room and was seeking a darker corner to hide in. It [judicial torture] locomated, recail, from the executioner to the state prosecutor, so our thesis is that torture (now call interrogation) moves from the Courtroom to the poiice investigator. We detect a historical pattern that wisdom demands we apply to the situation. John Quintero (All rights reserved) 12 Words: 9,641 after Miranda-—where does the ugly little judicial principle of extortion hide? We demand the reader observe the presence of the principles of punishment were adopted by the new judicial tortures; omniscience and solitude are developed to degrees listed in the brief overviews of Soviet and American industrial systems. Ail that remains to be done is list the condition of the only piaces left to look outside the police precincts: we argue that after Miranda, American judicial torture became Sovietized: insofar that all parts of the system were “geared” towards gaining the confession of the offender, torture became industrialized. Judicial torture, we say, moved precisely into the location that Bentham himself advised it not go! Into the early stages of the criminal justice system; thus becoming the Early Resolution System of contemporary justice systems. The architecturai concepts of “panopticon” has appiications, says Bentham, in ali sectors of society: factories, mad~houses, hospitals, and grammar schools. The only place he advises against its use is in the early stages of the administration of justicewyet that is precisely where judicial torture scrambled to. We present here a compilation of things which are experienced by men in the Early Resolution System; we think it advisable for the reader to think in terms of substance and accident, after the fashion of the Thomistic Aristotelian tradition. That is, the substance we are looking at is the law of confessions-~which we stated, and few would disagree with, that they are good things to be sought after. That's the law, or it would not be practiced. if that law in its application were to begin to offend moral sentiment, and the tender conscience as has happened without any doubt in the past, the law would cease to be law. But what if the techniques take on the principie of invisibility? We can only begin to see the substance in terms of the accidental attributeswqualities, action quantity, condition, place, time, motion, passivity, situation and relationmare all broad categories of being which the human intellect can grasp without any special training or knowledge. If we fail to see that judicial torture locomated, altered and shape—shifted as it has in the past, we can be accused rightly of historical obtuseness—~—with a malevolent historical revisionism. Worse yet, such a failure is due to radicai optimism that denies the sinful nature of man and, simply put, is downright fooiish. Our iist of attributes of the human experience of the Early Resolution System is divided into two parts: the first deals with what is called “conditions of confinement" and deals with the architectural scheme disseminated by Panopticon, and the second is a list of actions known in iaw as criminal legai procedure, or due process. Some of the items in one list could arguably be placed in the other list. I- 1. The atmosphere of the Washoe County jail is such that the poiice say their job is to make the experience such that the “ciient” so to speak “never wants to come back”. We argue this works in both directions: people moved on to the actual prison system do not want to go back. Prisoners who have been to prison, released and are back in County Jail on new charges or probation violation dream of being back in prison, often lovingly describe the conditions of prison almost paradisically. We assert, on a blind bet, that the science of industriai psychology has contributed to the creation of “staff development” which creates the ambiance of County Jail, and that these texts (we pray) will someday be exposed in the manner which the Warren Court did in the :l.960’s, and that Solzhenitsyn tried to do in the 1970's. John Quihtero (All rights reserved) 13 Words: 9,641 2. Use of isolation (Bentham Law of solitude) this is used in a variety of ways in the county system, both in architecture qualities, and manipulation of relations and other attributes: ' a) For all prisoners, bails are not set at a point which insures the return of the accused to court, but at the point which insures isolation of the accused from the community (this could be easily iisted under “procedures”). , b) The law of soiitude when merged with poiice extorted confessions became outlawed in and after the Miranda decision and thereafter was deveioped into an assembly line kind of solitude: the action of dramatic, intense interrogations in the backrooms of policy stations altered into a systematic “passive aggression”, to steal a psychiatric term. The job of imposing isolation is covert and diffused: i.The classification of inmates by a variety of categories serves to isoiate the accused. Architecturally, the County Jaii is designed into “units” and each unit of categorized inmates are isoiated from each other, creating an ambiance of partition, which Bentham says serves as a prophylactic of spreading the “infection of the degenerates particular class to another. ii. These isolative and segregative elements are by exogenous force internalized by use of coiored clothing identifying by code the label imposed by the classification system. iii. The isolation ambiance is imposed by highly controlled movement of prisoners: prisoners when passed by any human being outside their classification-—-whether officers or other classes of inmates, they are required to stand “nose and toes” to the wall. iv. The entire facility is lined with red which marks the pathways out of which no inmate is ailowed to walk. c) Under the color of the penological principle of “security and safety”, the County Jail operates super~maximum security units for more than just disciplinary measures of unruly drunks to “sleep" it off: i.Segregated Housing Units (Si-iU) are governed by minimum international standards of the Geneva Convention. Absolute isolation and imposed silence, 1 hour out alone every 24 hours, highly restricted phone access, no visitationmstandard procedure to hold those accused with feionies (as opposed to misdemeanors) for the first crucial weeks after arrest. ii. Protective Custody Unitmfor highly visible accused, murder or sex charges. Free time (tier time) siightiy more than SHU, double cells and inmates allowed to mingle. 3. Use of food, light and sleep deprivation: a) All food is really, really bad——monotonous, unvarying: i.Breakfast served at 3:304 am, lunch at 11 am and dinner at 3:30-4 pm making a 12 hour space between dinner and breakfast and 18 hrs if a meai skipped. ii. The meals periods are disruptive of sleep patterns, creating a low grade form of sleep deprivation. iii. Specialty foods: potato salad made of raw potatos and a meat product ‘ called “cat food”. iv. Lights never off in cells-—-only dimmed, no windows in cells. Yard time allowed in area of 25 foot walls. These conditions improve according to the classification of the unit; some dormitory style units with outside activities. v. The ambient temperature of high security units is cold, constant and unremitting. 4. Visits-non-«contact visits only for high security, talk through phone. Lawyer visits allowed inside unit interview rooms clerical contact visits outside of units. John Quintero (Ail rights reserved) 14 Words: 9,641 . Intimidation-—-regular dispiays of police powerwfuily geared SWAT team entering in double—time formations for cell extractions, fierce use of womanly passive»- aggressive tactics of dismissiveness, ignoring, mocking, red-baitlng, random acts of foui language by staff guards and medical staff. This staff behavior shifts according to security level. The higher the ‘‘risk'’ the worse the behavior. . i at Washoe County Jail, corresponding to the Guiag Soviet system described by Solzhenitsyn. It is our understanding that most County jails and state and federal prison systems do supply access to law libraries to widely varying degrees; this is due to prisoner law suits under due process principles of the US. Constitution, and is no way hinged on the generai “good will” of popularly elected legislatures. As we speak, the library access and access to typewriters has degenerated in some Nevada prisons, typewriters are gone under the “color” of security of institution, despite having permitted them for many years; law iibrary access in some high security institutions have degenerated as retribution for prisoner lawsuits for equal access. . wthe term used by “indigent" accused is “public pretender”-~— i. It is general practice to plea bargain and there is less than a 1% trial rate in Nevada for the poor represented by state paid attorneysxvili. ‘. A plea “bargain is a plea of guilty, which is in common law “an express, formal, simpie common law confession of guiit... it is a judicial confession”*“<. Generally, nothing proactive is done by public defender office: he or she is not there for the first televised hearing, at which time the talking-« head judge for “serious” matters notifies the defendant the matter wili be expedited. Generally, the habitual act of the public defender is to meet the indigent client for the first time at the “preliminary hearing". Most cases are confessed to at this point, and the only chore of the defender, (who appears to be thinking the thoughts of the 1920's Soviet public defenders, which we mention above) is to present the bargain offered by the state prosecutor; usuaily it is a unilateral, unconditional offer which if not accepted and signed, is to be withdrawn and the proceeding moves forward; usuaily the prosecutor piles on as many possible charges as he or she can as thus the initial “offer" appears to the Court, and in 99% of the cases, the defendant, quite magnanimous. 3. i. : there is no existence of the old interrogation techniquesm these are done in the field. The police will approach, but the mention of having an attorney causes an immediate termination and shutting off of the tape recorders. The police assist the district attorney in providing fiuffed up quantities of potential charges; for example a police report may have notes with say 30 possible “counts” of legal infractions, the state prosecutors will whittle this down to ten formal charges, and in the plea bargain offer one count usually one carrying a very heavy penalty, but the accumulated penalties of 30 counts, or 7, means certain death in prison, all told by simple mathematics“. ii. ~his big part is the brow—beating techniques which was finely honed as a form of judicial torture and banned 200 years ago. Now his grandstanding wili occur, and the defense can object and the Judge can slap his hand but he enjoys absolute judicial immunity and knows it. John Quintero (Ail rights reserved) 15 Words: 9,641 Most of his torture is now extra-judicial, as has been described above. But, he has access to a very powerful tool” propaganda. Leaks to newspapers, and electronic media are, for the accused a devastating tool, a psychological browwbeating cloaked under the “color of law”-~the principle of the “right-to- know” protected by Constitutional rights of “free speech”X*‘. This is industrial psychology mated with Bentham principle of invisibility, and evidence of industrial law of tantalization of all segments of the populationto the system of productionmin this case production of a 99% “kill~«rate” of extorted confessions without appearing tortuous at all. the other nodes are the Parole and Probation Departments and the Judge himself. The first has explicit part in the production of “justice” guided mostly by statute. The above mentioned “Model Rules” have incorporated equitable principles of common law tradition to counter balance the zealous acts which have over~ produced “justice" in the form of prisoners today. This document, when held up as the standard, exposes how deeply the tear has been in American jurisprudence, the epistemic break between natural law and legal positivism. This would require several if not many PhD dissertations. Our lists sketchy and brief, but hopefully will generate interest in continued investigation into the general trajectory we have traced by the merest scratching of “historical” evidence. In part two of this essay, we will look critically at several potential directions people have been moving intellectually in regards to “reform”, or addressing this issue. i“Social Aspects of Industrlalism", New Catholic Encyclopedia, volume 7:488, (1967). All quotes in this section are taken from this article. Pertinent list scholarly books of the numerous articles on industrialism which may assist future research: 1. Mayo. G.E. “The Social Problems of an Industrial Civilization” (1945) and “The Human Problems of an Industrial Civilization" (1946). 2. Moore, W. & Hoseiltz, B, eds. “Industrialization and Society” (1963). 3. Messner, 3. “Social Ethics: Natural Law in the Modern World” (1964). 4. Scott, W.D. “Human Engineering” (1905). ll Himmelfarb, Gertrude. Victorian Minds. Alfred A. Knopf, New York 1968 [1952] Her quotes of Bentham here cited taken from Works ed. John Browning, London 1843. i” Beaumont, Gustave de and Toqueville, Alexis de. On the Penitentiary System in the United States and Its Apilication in France (1833). A “participant survey” report of prisons in Pennsylvania, New York, Connecticut, Massachusetts and Maryland which has this to report of the power of solitude". “Before resorting to stripes (whipping), absolute solitude day and night without labor is tried: if we believe the officers of the prison, nothing is rarer than to see a prisoner resist this first trial... However, if he is not curbed... greater severity is added to his solitude, such as privation of light and diminution of food, sometimes his bed is taken from him...” if these procedures are not effective than the whip is used to inflict corporal punishment,. The report concludes with the observation of the paradox that escalates to this day: “While society in the United States gives the example of the most extended liberty, the prisons of the same country offer the spectacle of the most complete despotism. “These American practices are still in use in American prisons, but this essay argues they have found greater utility in the “early resolution" procedures of law as a tortuous method of “engineering humans” to become prisoners. ‘V Summy Pontificatus, “on the Unity of Human Society” October 20, 1939 paragraph 28 V Solzhenitsyn, Alexander. The Gulag Archipelago 1918-1956: An Experiment in Literary Investigation Trans. By T.P. Whitney Harper and Row 1973. This quote on page 143. V‘ CorpusJ.:ris $cundum: Atbmplele Festaternent of the Entire American Law as Developed by All mported Cases, The American Law Book Co., 1953 hereinafter C.i.S. V” 86 SS. 1602 Miranda v. Sate of Arizona, 1966. V‘“ 74 SC: 13. Most of the citations for each principle stated point usually to a decision of a local state court, making follow— up investigation impossible to all but the law student or lawyer. Some maxims will point to Supreme Court decisions, in which case we will cite, because of the greater access by the general reader by virtue of County Law Libraries run by the John Quintero (All rights reserved) 16 Words: 9,641 local courts. Since our audience is the western U.S. by virtue of our location, we will cite also those cases reported in the Pacific Feporter, eq 5P. 248, or 107 F‘. 2d 18,etcetera. There are 3 series-~P, P2d and P3d. ix Postman, Neil. Amusing Ourselves to Death: Fidblic Diwourse in the Age of Show Business Penguin Books 1985. The analogical similarity between American and communist industrial states is stated in theological terms:”[the American] devoutly believes in the inevitability of progress. And in this sense, all Americans are Marxists for we believe nothing if not that history is moving us toward some pre-ordained paradise and that technology is the force behind that movement” (pg 158). To be more precise in regard to "religious terms”, we must say those secularized forms of religious ideology as described by Weber--«those so-called reformative aberrations of the undeniably religious nominalism of Ockham, Luther's revival of pagan positivism, and Calvin’s directive will of providencewpredestined, of course, all of which transmogrified into the philosophers which justify industrial hegemony. " 128 P2d 579. ii Warren is referring to Blackburn V Alabama, 80 SGT. 274 (279).note the religious connotation dripping from the word "inquisition” which calls to mind torture of the physical kind. "" CLJS § 817 (1) ”Criminal Law: Confessions” xi“ CJS §817 (1) at footnote 25.5, 83 NE2d 763 Marshall V. Sate. "W CJS §817 (1) pg 165 at footnote 35.10. XV Wickensheim Peport to Congress by Presidential (bmmission: a report on Lawlessnessin Law Enforcement (i93i). W‘ This and following quotes from Miranda page 1611. W“ Bentham, Jeremy. Panoptioon; on The inspection House: Containing the Idea of a New Principle of Construction Applicebleto Any Sort of Establishment, 1787. will Gdeon’s Broken Promise: %port on Fight to (bunsei, by American Bar Association 2004. ’‘i’‘ 23 CJS "Criminal Law” (1 §816 (bnfessions pg. 158. . ’°‘ Solzhenitsyn asked the same question the reader may be now asking: no torture is used so how were people convinced to confess? "So then, where is the riddle? How were they worked over? Very simply: Do you want to live?” Gulag, pg. 397. ’°“ During World War I, President Wilson issued an executive order creating a Committee of Public information run by George Creel, designed to utilize the new Freudian science of industrial and motivational psychology because the Americans had a "right—to—know" what lousy Nauts Germans are. 75000 ”4—minute men” flooded American public theaters to give pseudo-spontaneous speeches. See the Persuaders: Propaganda in War and Peace by Gladys Thum, NY 1972. John Quintero (All rights reserved) Words: 9,641

Author: Quintero, John Randall

Author Location: Nevada

Date: April 29, 2013

Genre: Essay

Extent: 17 pages

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