Sunday, November 23, 2008

Lawless Law

In Myanmar this week, the military government sentenced a comedian to 45 years in prison for giving aid and speaking his mind.

But my editorial today doesn’t concern Myanmar. We have come to expect the opposite of justice—the embrace of absurd, almost satirical brutality there. But here? In the United States?

Welcome to the era of postmodern criminality, where the state can take advantage of unstable terms when it suits them, and ambiguity always serves the interests of power rather than justice.

Let me explain: In Saint Johns, Arizona, an eight year-old boy stands accused in the shooting deaths of his father and another adult male. Because he’s an eight year-old boy, he was interrogated by police without a parental unit, or a lawyer, present at the interrogation. The police argued with him, confused him, and eventually convinced him to confess to the acts. Now, the eight year old boy is being charged with the murders, but the Arizona prosecutors are attempting to have him tried as an adult.

Now wait—you’re thinking “they can’t have it both ways. They took liberties with him in the interrogation process because he’s eight years old, but now they want to try him as an adult.”

And you’re also probably thinking—if you have a conscience and a brain, you’re thinking—on what planet, in what world, in what moral and political and legal universe, are we talking about trying an eight year old as an adult?

Like I said, welcome to the era of postmodern criminality. Picture a funhouse mirror. In front of the mirror stands an eight year old boy. In the mirror image, a burly, threatening adult. But we have always been taught that the images in the law’s mirror are accurate. Apparently not.

An eight year old is an adult if the state declares them to be an adult. Moreover, an eight year old can be declared, by the state, to be an adult only in the instance of their criminality. Their criminality will be abstracted from the rest of their being. The eight year old, of course, won’t be able to drink alcohol as an adult. Why? Because an eight year old’s brain is still developing! And, because an eight year old cannot form the requisite judgment to drink alcohol.

The eight year old can’t vote in an election. Why? Because an eight year old cannot form the requisite judgment to decide between candidates. The eight year old cannot drive a car. The eight year old cannot get married. The eight year old cannot enter into a legal contract.

Welcome to the world of the state cutting and pasting our identities onto their matrix. That might be acceptable, if we could trust that the state had the same interests as we did. But in a society where inequality and lack of access to basic necessities is considered the price of freedom, it is of utmost importance that the Law –capital L Law—be able to step outside of itself, violate its own consistencies, create its own states of exception. Hence, we’re now talking about something which would be fodder for satire if it weren’t true: declaring, for the singular, abstracted purpose of a criminal trial, that an eight year old boy is all grown up.

I will pause while you contemplate the terrifying absurdity of this situation. I will help you contemplate it by painting a clearer picture. The eight year old boy is led into the courtroom in shackles and a jail jump suit that is too big for him. He is disoriented. He is scared. He looks for his mother, who is on the other end of the court room. She waves to him, blowing him kisses. She is dying inside, but struggles to appear brave and upbeat for him. Like everyone else, she doesn’t know what happened, and doesn’t know why he’s there. Prosecutors, defense attorneys, and the judge talk in language the boy doesn’t understand. The mother’s heart is breaking, but not in the same, forgive the term, “standard” way that a mother’s heart breaks to see her offspring on trial for murder. Augment that heartbreak with a profound alienation, created by this very absurdity.

How did we get here? Contrary to popular conception, the United States, and most other countries, have never hesitated to turn children into adults for the purpose of locking them up or executing them. But while there are legitimate ethical and legal disagreements where trying a 17 or 16 year old is concerned, this case, this case of an eight year old, is the extremity that proves the absurdity. How we got here is by giving “law and order” politicians license to create lawless law. What is lawless law, you ask?

Lawless law is created and enabled by fear of criminality and deviance. Lawless law gives prosecutors and cops a green light to trample over people’s rights and interests, under the assumption that only bad people will get hurt, and we all know that can’t be us. Lawless law is what philosopher Giorgio Agamben describes as the “state of exception,” whereby the representatives and guardians of the law can step outside the boundaries of the law in order to purportedly keep us safe. Lawless law is intended to create fear: fear of the law. Fear of the law is like fear of God. Religions which teach you to fear God are intended to reduce you to your weakest denominators. Above all, lawless law is inconsistent, precisely because that is what we fear the most: If authority doesn’t have to be consistent, then that’s all the more reason for us to fear it, serve it, be subservient to it, kneel before it, hope we aren’t arbitrarily and capriciously punished by it, grateful that it passes over us, fearful that it will find us doing something we didn’t know was wrong.

All of which is not to say that an eight year old boy shooting two adults to death is somehow okay. But there is simply no world where such an action can be considered on the same legal plane as an adult’s responsible or intentional act of criminality. No world, at least, except the state of exception, where the state needn’t be consistent, where the state can interrogate a child and then declare the child an adult, deny the child the choicemaking rights of an adult and then declare the child to be a choicemaking adult.

Lawless law is based on fear. Fear trumps consistency. But consistency, ladies and gentlemen, is the cornerstone of democracy. And so if Arizona puts this child on trial as an adult, that inconsistency is as great a threat to democracy as George W. Bush lying about WMD, as voter suppression in an election, as public officials refusing to honor subpoenas, as corporations colonizing the deliberative process.

This week, the judge in St. Johns Arizona gave the prosecution two weeks to complete their request to try this child as an adult. I pray with every fiber of my being that they see the error of their ways and decline to do so. But if they do decide to try him as an adult, you haven’t heard the last of it on this show. We will fight lawless law. We will resist the drive of the state to practice its fragmented inconsistencies, its postmodern criminality, its exploitation of ambiguity, and its willingness to reduce itself to terrifying, fun-house mirror absurdity and exploitation of the politics of fear.

1 comment:

Anonymous said...

It looks like the only way an 8 year old could be tried as an adult under the Arizona Criminal Code is if he had a prior felony conviction (13-501(C)). If it's as clear as it looks from the statute, though, I'm not sure why the judge is even giving the prosecution a chance to make an argument. It could just be a political kabuki dance--the DA not wanting to look "soft" on a murderer, the judge willing to give the DA a little cover, with everyone knowing that the outcome (i.e., no trial as an adult) is preordained as a matter of law. Still, that's pretty goddamned slimy, since it puts a kid and his surviving family members through the wringer, unnecessarily delays trial, and undoubtedly racks up additional legal expenses for a family that may not be in a position to bear them.

If, for some bizarre reason, the judge allows the child to be tried as an adult, I would expect a very widespread outcry. You don't have to be a bleeding heart liberal to see that that's totally f-ed up.