If I Had A Hammer
In the long and complicated construction project that is winning socialism in our time, a lot of parts are and will be needed. A socialist majority for the foundation. A labor strategy seeking to empower both organized and unorganized workers for load-bearing walls. And so on and so forth. But we will also need tools. Some tools we will only need while we are doing the construction, like the Democratic Party ballot line. Some we will keep around but only to make little repairs here and there, like the hammer you keep in your kitchen’s junk drawer. I believe that district attorneys can be hammers for the socialist movement. Maybe one day we will no longer need them, or only need them occasionally. But right now, a lot of hammering needs to be done.
Which is not to say that a lot of hammering is not currently being done. At the risk of stretching this metaphor into the ridiculous, that hammering is akin to smashing holes in the load-bearing walls and breaking the windows rather than building the socialist movement. District Attorneys and Attorney Generals currently focus prosecution almost entirely on working class people. The de jure racism of criminal laws like vagrancy during Jim Crow apartheid have been modified into the law being applied in racist ways, such as Black people being four times more likely to be prosecuted for marijuana use despite equivalent use of marijuana by white people. DAs and AGs. perpetuate a significant amount of the oppression in the modern U.S. and are the captains of the suppression of dissent. The First Amendment is rarely a deterrent for DAs when it comes to prosecuting socialists for direct actions and protests.
With all these horrors, it can be tempting to say “This hammer is doing so much damage to our goal of building socialism! Let’s destroy it, or at least soften it.” The issue with this approach is that there is a lot of hammering that needs to be done. Let’s look at, for example, the current and prospective main campaigns of DSA: Medicare For All and a Green New Deal. Both of these require extensive enforcement of law. Medicare For All, for example, requires the prohibition of private insurance. The Green New Deal, for example, requires decarbonization. There are different ways to enforce these laws — administrative, civil prosecution, criminal prosecution, and private rights of action.
Each of these forms of enforcing the law is appropriate in a certain context. For example, Resolution 36 argues to end the criminalization of welfare — no one should be subjected to state violence over a mistake on an application or even taking vouchers that the person is not “entitled” to under the ridiculous means testing regimes currently in place. Welfare laws should be enforced administratively with a private right of action to welfare recipients if they are denied the public assistance they need.
Civil prosecution is also appropriate in certain contexts. For example, if a small family-run business like a bodega has been scamming working class people with a credit card processing machine that charges them a hidden fee, it should be held accountable without shutting it down and thus endangering the livelihoods of the family that owns it. However, civil prosecution by both Attorneys General and government agencies like the Consumer Financial Protection Bureau has become an inappropriate replacement for criminal prosecution of corporations. Private rights of action have also been used as a neoliberal-friendly alternative to criminal prosecution, privatizing enforcement of the law and thus ensuring that the wealthiest corporations can write off their violations of the law as merely a cost of doing business.
Returning to the examples of Medicare For All and the Green New Deal, we can see when criminal prosecution can become necessary even if incarceration itself has been taken off the table (as is the goal of prison abolition of course). If a Walmart-style private health insurer sets up shop to under Medicare For All, do we want it to be fined? Do we want it to be sued by 1% of the people it exploits who have the ability to go to and hire a lawyer? Hell no! We want to shut that fucker down. And you will not shut it down without criminal prosecution.
One could argue of course that this just means we should put a provision in Medicare For All that gives an agency like the Centers for Medicare & Medicaid Services (CMS) the power to shut down corporations by force. Good luck. The reservation of remedies like corporate dissolution to the realm of criminal prosecution is interwoven in the law for all sorts of complicated reasons that I do not want to get into and I doubt you want to hear. Even if you can manage to beat all the legal challenges, it will take years if not decades, and during that time people will wonder why we promised to end their healthcare nightmares with Medicare For All but only replaced it with black market health insurance companies. Just like we should not wait for a socialist majority in Congress before passing Medicare For All, we have to use the tools at our disposal to enforce things like Medicare For All and the Green New Deal.
Just as if not more important is the enforcement of current laws against the worst corporate predators of the working class. There are ways to criminally prosecute some of the most violent banks, landlords, mining conglomerates, pharmaceutical companies, and the like. While there has never been a time of rigorous prosecution of corporations, there are examples from not so long ago that are hard to dismiss. While the case has become infamous in liberal circles, the criminal conviction of Enron’s accounting firm Arthur Andersen LLP forced the firm to give up its CPA license and thus destroyed it. That is a level of power against a corporation that is rarely seen outside of the strongest unions and social movements.
That is not to suggest that we should elect DAs and have them immediately destroy every corporation they can (as appealing as that may sound). Even when the goal is not to destroy a corporation (arguably Arthur Andersen should not have been, at least not without helping the 85,000 people who consequently lost their jobs), the ability to do so is the real leverage needed to compel obedience with the law.
For example, in the wonderful world where we passed a Green New Deal that includes the prohibition of fossil fuels, let’s imagine there is a shipping company (we’ll call it Naval Supremacy Inc. or NSI) illegally using oil for their vehicles. It is far cheaper than the alternative — if NSI is fined for its use of oil, it could still be profitable to use it, and corporations will of course always gravitate towards what is profitable. But luckily for us, the Green New Deal included a criminal penalty for conspiracy to subvert the fossil fuel prohibition. However, the company isn’t called Naval Supremacy Inc. for no reason — NSI does 30% of shipping by boat in the U.S. If it were to be quickly shutdown, it could cause major problems for the economy that would hurt working people as much as it hurt the greedy NSI executives. So the Department of Justice brings an indictment against NSI, sits their executives down, and tells them that they have to clean up their act or else they will be shut down. NSI enters into a plea deal that is structured so that if it continues to illegally use oil, it will be shutdown, but now with enough of a window of time to mitigate the economic consequences.
This example is very ideal. In practice, criminal prosecution against corporations will be difficult. There will be legal challenges — Enron’s accounting firm, Arthur Andersen, LLP, had its conviction overturned by the Supreme Court. There will be resistance by police officers because, simply put, most of them signed up to go after youth of color for jumping turnstiles and smoking weed, not to serve the public. There will also be betrayals — after a case like Arthur Andersen, LLP where thousands of jobs are destroyed, a DA will be under immense pressure to cease corporate prosecutions and may do so even if the grassroots movements support them. But the choice we are faced with is not whether we want to have socialist DAs or not have socialist DAs. The choice is whether we want to have socialist DAs or have the DAs we currently have that are waging constant mass violence against working class people and people of color.
We are living in a time of unprecedented capitalist power. Multinational corporations violate human rights with impunity. They are destroying the natural world as we know it and pushing the climate of the planet to a point of being uninhabitable for human life. They have gamed the system of private litigation, writing off lawsuits as business expenses or forcing them into arbitration. They own most of the wealth and most of the resources, and will deploy it against anything that stands in their way. The only entity with comparable power, though it is quickly becoming eclipsed, is the government of the United States. When we are faced by a threat this existential and powerful, we need to find every way possible to fight, every tool that will help us build a socialist movement to stand against. Socialist DAs can be a tool for fighting corporate power. It is time to pick up the hammer and get to work.