To create fairness, our legal system and the federal government have grown increasingly complex. My question is whether the complexity has grown beyond too many people’s capacity to tolerate it.
Q: Can democracy survive in America?
A: (Spoiler) I don’t know. Can people tolerate this much complexity?
I begin with history and facts about our current system because if we don’t agree on the basic facts, we will never understand each other’s answers. We see that in the right-wing bubble: Consumers of right-wing news sources start from a different set of facts, which shortcircuits any meaningful discussion. I’ve observed that with consumers of mainstream news as well. Often we are working from different underlying facts. If I have my history and my facts wrong, my answers to questions will also be wrong.
So please bear with the preliminary discussion and make sure we’re on the same page with background (verifiable) facts.
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This book⤵️, which I’m reading on the recommendation of Karen Stenner, one of my favorite political psychologists, got me thinking about a new way to answer questions I get on social media.
Timeline from the book:
- 6 million years ago, humans diverged from chimpanzees.
- 11,000 years ago, hunter-gatherers shifted to agriculture.
People lived like villagers in family units and clans. They knew everyone around them, if not by name then by clan or family, and thus had a way to understand their relationship. It was rare to encounter a complete stranger.
- About 3,400 years ago, conditions in some areas allowed for surplus food production. This gave rise to population growth, which in turn necessitated state governments. Most people, though, still lived in small units and rarely traveled.
- Until recently, there remained large areas in the world beyond state control. Some traditional societies like that of the New Guinea Highlanders continued until a generation ago.
- Today, in some place places, people still live in traditional societies structured around a village or clan, but most of us live in a large complex society with millions of strangers.
In evolutionary terms, we were villagers until yesterday and our psyches and bodies remain adapted to village life.
Dispute Resolution and Criminal Punishment in Traditional v. Modern Societies
Because, in traditional societies, disputes arose between people who knew each other or knew something about each other, resolutions meant finding a way for people to continue living in close proximity. Establishing guilt or negligence was not the main goal. The goal was to re-establish relationships. Disputes were often resolved by all parties sitting down, perhaps with a mediator. Sometimes a resolution was done through payment. For example, if someone caused an accident that killed a child, the families might agree on compensation to achieve emotional reconciliation. This could happen quickly, even within a few days.
Occasionally reestablishing balance was done through revenge killings. If a person killed a member of a different clan, even if the killing was accidental, the injured clan would, in retaliation, kill a member of the killer’s clan. Unfortunately, retaliatory killings occasionally escalated into full wars.
(Today’s gang warfare and vigilante justice resemble traditional revenge killings.)
What worked in traditional societies does not scale to a society of millions. As governments grew more complex, bureaucrats and agencies were needed to administer rules and laws. In the United States today, if you bring a dispute to a court, your case will be decided by people who do not know you personally and will probably never see you again. The goal is not to restore relationships or achieve an outcome satisfying to the parties. The goal is to determine who is at fault and administer justice impartially.
The result is that, with modern litigation, both parties often feel like they lost. Rarely do both litigants walk away feeling satisfied with the resolution.
The United States until Yesterday
The colonies which later became the United States started out as a collection of small communities. At one point during the debates about what kind of country the United States should become, Thomas Jefferson suggested that the federal government should consist of a committee. His idea (and the idea of many others) was that a centralized government would infringe on individual liberty. For Jefferson, the way to maximize personal liberty was to keep the government small and localized. He envisioned self-governance as a localized community with a few wise statesmen writing the rules and resolving disputes.
The contradiction in Jefferson’s position was that self-governance was allowed only for white men. The laws they created permitted them to enslave others and maintain their own power. In fact, one reason Jefferson and other enslavers were opposed to a strong central government was they knew that a centralized federal government would try to outlaw slavery.
One way to view our history is as a struggle for outgroups to be included in “we the people.” Almost always the inclusions happened because the centralized government forced the local communities to include those groups. For example, as a result of the Civil War, a strengthened federal government outlawed slavery. The New Deal, which regulated business and commerce to make it harder for the rich and powerful to cheat, created regulatory agencies and further expanded the size, power, and complexity of the federal government. The Civil Rights movement brought more federal legislation: Laws against racial segregation, laws against voter suppression, and laws offering equal protection to women and minority communities, thereby again enlarging the size and increasing the complexity of the federal government.
Our current system is complicated by the fact that we have 51 separate jurisdictions (50 states and the federal government), each with its own laws. This fact alone confuses people who see discrepancies between, say, a punishment meted out in Texas and a punishment meted out somewhere else and think that the system is a failure. In fact, each jurisdiction has a different penal code, and states like Texas or Mississippi treat certain crimes differently than, say, California.
Until about 50 years ago—basically yesterday—all of our institutions (governor’s mansions, Congress, universities, industry) were, with rare exceptions, controlled by white men.
This is the newly elected US House of Representatives in 1939:
Here are 89 of the Democrats elected to the 119th House of Representatives:
On the left, you see the Republican intern class in 2016. On the right, you see the Democrats:
American Criminal Justice Until Yesterday
In 18th-century America (as elsewhere) criminal punishments were often cruel, including things like hanging, branding, and whipping. From Alexander Hamilton: The laws “partake of necessary severity . . .without exceptions.” Because there were no exceptions, justice could be meted out swiftly.
New England villages used stocks and pillories.
From the American Police Hall of Fame & Museum (edited and condensed):
Stocks and pillories were commonly set up in the town square. A major part of punishment in stocks and pillories was to publically humiliate people who committed crimes. As the offender sat in the stocks, the townspeople would often pelt them with rotten food, dead animals or stones while jeering, mocking, and ridiculing them.
The discomfort level in pillories was more severe than the leg stocks and oftentimes was used in conjunction with other punishments such as branding, whipping, or having an ear cut off.
Our modern criminal justice system took form after the Civil War when white supremacists found a way around the 13th Amendment. The 13th Amendment prohibited forced labor except in the case of punishment for crimes after conviction. Their solution: Convict lots of Black men, put them in prison, and then put them in chain gangs. It was super easy to put Black men in prison because states and local governments could pass whatever laws and criminal procedures they wanted. There were no limits on what police could do, so they often beat confessions out of innocent Black men.
Defendants were not given lawyers. If you couldn’t afford a lawyer, too bad. If the police wanted to stop and search you, they could. Juries were all white. Women were considered incompetent to testify in court—unless a white woman accused a Black man of a crime. Then, of course, she was taken at her word.
Criminal justice resembled a conveyor belt. A person could go swiftly from being accused of a crime to hanging from a tree.
Then along came Charles Hamilton Houston, his protégé Thurgood Marshall, Pauli Murray, and others who took it as their task to reform criminal procedures to create more fairness.
They understood that the law fell more heavily on Black men. Their idea was not to even things up by making it easier to inflict punishment on white people. Their idea was to make it harder to inflict punishment on anyone. They embraced jurist William Blackstone’s idea that it was better to let ten guilty people escape than to let one innocent person suffer.
Their goal was to turn a conveyor belt into an obstacle course. The idea was that more procedures, regulations, and checkpoints meant less chance an innocent person would be punished.
As a result of literally decades of work, reformers succeeded in getting the Supreme Court to declare it unconstitutional to do things like beat confessions out of people, stop and search people without probable cause, and arrest people on a whim. Jurors can no longer be excluded on the basis of race, people without money are appointed lawyers, etc. (I know a bit about this because I wrote a biography of Thurgood Marshall):
Is there still a lot of injustice? Yes, of course. Does the law still fall more heavily on members of minority communities? Yes. But things that were once legal and commonplace are now illegal and rarer. Will there ever be perfect fairness? No. Our institutions are run by human beings all of whom are fallible and some of whom are not good people. All we can do is keep trying to push the needle toward more fairness.
As a result of turning a conveyor belt into an obstacle course, criminal procedure and criminal law have grown more complex. Criminal procedure is a full-semester law school course. The rules of evidence is another full-semester law school course.
The problem is obvious: Democracy requires a thoughtful, well-educated electorate, but even well-educated people are not equipped to understand the workings of the American legal system.
The Authoritarian Personality
Political psychologists, in an attempt to understand the rise of fascism in the 1930s, defined what they call the authoritarian personality, also called the anti-democratic personality.
Among other things, those with an authoritarian disposition are averse to complexity. In the words of political psychologist Karen Stenner, they prefer sameness and uniformity and have cognitive limitations. They are, to use her phrase, “simpleminded avoiders of complexity.”
Diversity is a form of complexity, which is why right-wing authoritarians reject it.
According to political psychologists, about a third of the population across cultures has this personality. Those with authoritarian personalities exist on both sides of the political spectrum. For more on the authoritarian personality, see this post.
Some of the Comments I received this week on Social Media
As a preliminary matter, I assume you are all familiar with my FAQ page. If you have not read it, please do so otherwise you will not understand my reaction to some of these comments. It’s here.
Some of the comments I received this week:
- “Brazilian law enforcement rounded up and arrested hundreds of protestors immediately after the insurrection. Two years later, the DOJ is still rounding up protestors. Brazil does it better.”
- “Merrick Garland wasted 2 years and allowed these criminals [by which he meant members of Congress] to run for re-election and continue their lies and crimes. They should have been arrested on April 21, 2021 the month after Garland was sworn in.”
- “What is taking the DOJ so long? Our system is hopelessly broken.”
These commenters believe that the faster people are arrested and prosecuted, the better. Essentially they want to return to a conveyor belt thereby unraveling the work of Charles Hamilton Houston, Thurgood Marshall, Pauli Murray, and others.
This one gets the history backward:
- “The Merrick Garland DOJ is mired in passivity and process that protects the powerful.”
In fact, the processes and procedures that slow everything down were put in place to protect vulnerable communities. A perhaps annoying consequence is that powerful white men also benefit from the same procedures.
This one also gets our history backward:
“Real democracy in the USA failed years ago.”
In fact, it was only in the past 70 years that the United States began moving, for the first time, toward a true multi-racial representative democracy. There are some influential accounts who see American history in this way: “All was well until about 50 years ago when the Republican Party went off the rails and the Democrats failed to do anything about it, and here we are.” In fact, what happened was that about 70 years ago, the people who now make up the Democratic coalition managed to push the nation toward a true democracy and they’ve encountered backlash and pushback ever since.
Here’s another:
- “The fact that Trump still hasn’t been arrested shows that Republicans can get away with everything, and the Republicans are laughing at us.”
That comment ignores the number of people in Trump’s orbit who have been prosecuted over the past 6 years and ignores the fact that almost 1,000 insurrectionists, including many of those who planned and carried out the attack, have been arrested and prosecuted. Very few people are following these trials. The problem, I fear, is that the process takes so long that people lose interest, stop paying attention, and therefore, as far as they are concerned, nothing is happening.
One event from this week was that the Trump Org, which was convicted of multiple counts of criminal fraud, was sentenced and fined $1.6 million dollars. Allen Weisselberg, the Trump Organization’s chief financial officer, was sentenced to Rikers Island for 5 months.
The $1.6 million was the maximum allowable sentence under the New York penal code, and the 5 months was the result of a plea deal Weisselberg made with the prosecution. We don’t know whether the 5 months prison sentence was a good deal for the prosecution because we don’t know what Weisselberg gave up and we may never know: DA Bragg told us that the investigation into Trump himself is “ongoing.”
I received this comment after the sentence was announced:
- “The punishment was a slap on the wrist.”
Calling a $1.6 million fine and 5 months in a harsh prison a “slap on the wrist” is an exaggeration, but it illustrates that our current legal system, which is not intended to be satisfying, will never actually satisfy. This is why I keep warning the “there are never any consequences” people that the reason they feel like there are never any consequences is that consequences in our current system will likely not be harsh enough or swift enough to satisfy them.
The goal of our current legal system is not to leave people satisfied (as was often the goal in traditional societies), the goal is impartial administration of justice, which means the judge had to go by the maximum allowable sentence and, under our current rules, the prosecution is free to enter plea deals with defendants.
How about this one:
- “The one & only thing that’ll impress career criminal Trump, will be an orange jumpsuit worn in solitary confinement, cut off from any opportunity to incite gullible followers.”
There are rules governing when a person can be put into solitary confinement, and prisoners still retain their First Amendment rights. Prisoners are allowed visitors and therefore cannot be “cut off from any opportunity to incite gullible followers.” Inmates have written famous books and letters. Some political leaders have achieved more influence after being imprisoned.
I suggested that people furious over the sentence would really like to see Trump put into stocks and jeered in a public square. One person responded by saying:
- Honestly, that type of public humiliation might be completely appropriate for someone like Donald Trump.
I think he was joking, but I get it. There was something satisfying about seeing the wrongdoer immediately put into stocks so that you could jeer and throw rotten fruit at him. It’s crude and primitive, and allows us to purge our anger. One reader on Mastodon joked that we should at least try stocks with Trump “for the sake of the children.”
Some people seem to envision the criminal justice system as a hand that swoops down, gathers up every guilty person, and punishes them in a manner that is satisfying to those enraged by the crime. This would be impossible to achieve in a society scaled to millions. Even if we lived in a literal police state in which everything a person did was observed by a law enforcement officer, such a result would be impossible to achieve.
Here are two more:
- “This sentence demonstrates that our laws are written purely to protect the wealthy.”
- “The sentence was so light because the laws are written only from a perspective of privilege.”
These comments are illogical: If the laws were written purely to protect the wealthy, why are there laws against corporate fraud that allow for $1.6 million penalties and imprisonment? (Such laws did not exist before the New Deal. In the 19th century, it would have been literally impossible to prosecute the Trump Organization for this behavior.)
How about this one:
- The laws are unfair because Democratic Party is corrupt and in the pay of oligarchs.
That is a simple conspiracy theory that has much in common with the “deep state” and other conspiracy theories.
I responded to the person who told me this:
- Merrick Garland wasted 2 years and allowed these criminals to run for re-election and continue their lies and crimes. They should have been arrested on April 21, 2021 the month after Garland was sworn in.”
I asked him to read my FAQ page. He absolutely refused. In a response that included a few “LOLs,” he told me he doesn’t have to read anything I write because he knows for a fact I am wrong because he has a friend who is a federal prosecutor who told him so.
I worry most about the future of American democracy when I wonder if our current legal and political system has become so complex that has grown beyond many people’s capacity to tolerate it, including the people who want more fairness.
Question: Can Democracy survive in America?
Answer: I don’t know. Can enough people tolerate this much complexity?
The burden is on those of us who can tolerate complexity to find a way to communicate with those who can’t. I am not suggesting that we “reach out” to people in the right-wing bubble. I believe all we can do is organize and outvote them. For what I mean, see my To Do list. I suggest that the people who want democracy and fairness and are opposed to fascism must learn to accept and adapt to an increasingly complex world.