Law, Order, and Socialism in Our Time
A political movement calling for the abolition of ICE obviously wants to radically change law enforcement. But how would we enforce the laws?
The best job I have ever had was in law enforcement. Okay let me be specific: civil law enforcement. I had a summer clerkship at the Consumer Financial Protection Bureau (CFPB), a federal independent regulatory agency with jurisdiction over practically all financial products offered to consumers (credit cards, mortgages, payday loans, etc.). I applied to work for the CFPB mainly because I wanted to understand how the government worked from within. But once I actually started working there, I knew this work was what I wanted to do. My mom always says I had an overriding sense of justice ever since I could talk, so in that context it is not very surprising. But given that my political beliefs stem from thinkers like Marx, Lenin, Rosa Luxemburg, and Maurice Bishop, it is a bit odd that I suddenly became so enthusiastic about being in what Marxists sometimes call the “bourgeois state.”
Law enforcement as a political question is not as easy as its partisans will argue. Actually, the question for anarchists is easy: the end of law enforcement as a per se consequence of the end of law. I have written on anarchism’s inadequacies elsewhere so will not bother rehashing that here. The question is more difficult for the rest of us and especially difficult for democratic socialists. We frequently argue that democracy and socialism are complimentary: workplace democracy, democratic control of natural resources, etc. But law enforcement puts democracy and socialism at opposing ends in a number of contexts. This piece will focus on three: antisocial behavior, personal injury, and regulation. While all three are complicated, there are ways to tease out the contradictions and implement systems of enforcing the law that are both democratic and socialist.
The Sociopath Myth And Social Defense
Most of the contentions among people in DSA about law enforcement revolves around criminal enforcement (at least on the surface). On one hand is the overriding disgust with modern racist criminal law enforcement as class war and its horrific historical roots in slave patrols and other cruelties. On the other hand is the seeming impossibility of police and prison abolition: that the existence of inherently antisocial and violent people requires some degree of subjugation of individuals for the good of the broader society.
As I have written previously, I find a lot of arguments for police and prison abolition to be deficient for the lack of a realistic path towards realization. But I do agree with both. My somewhat comprehensive argument can be read here, but I will give a quick summary of the main points.
First, the idea of inherently antisocial violent people is about as useful for crafting policy as it is for capitalism to assume people are selfish and uncooperative. “Sociopathy” is an archaic term for personality disorders, a broad range of mental conditions that can and have been treated in a number of ways. Ideas of even a core minority population that will inherently commit violence when released are easily rebutted by the wide gulf between recidivism rates of a country like the U.S. (about 76%) and a country like Norway (about 20%). In other words, recidivism does not measure inherent violence tendencies, it measures how effectively violent individuals are deterred from committing further violence. In that way, it is clear at 76% that the American practices of incarceration and policing have been an abject failure. And the idea that prison abolitionists would oppose detaining a mass shooter and other such extreme situations is rather silly. Most of the prison abolitionists I know are also the strongest supporters of self-defense by any means necessary. They are not opposed to stopping violence — they are opposed to punishing violent individuals through incarceration because it is archaic, ineffective, inhumane, and racist.
Second, the abolition of police and prisons (hence the New Abolitionism) will only be achieved by the implementation of social defense. The New Abolitionism has great policy and praxis when it comes to what must be gotten rid of, such as calling for the abolition of I.C.E., campaigning against prosecutors, and opposing the construction of new prisons. The movement has been more deficient when it comes to the radical alternatives to deal with antisocial violence that are not incarceration and policing. The problem is not a lack of ideas: community mediation and other harm reduction approaches are oft-cited and respected, as well as having promising results where they have been implemented. It really is pretty intuitive to treat violence as a public health problem (and unsurprisingly that makes Republicans completely against it).
The main issue is that whereas the New Abolitionists confront the problems with the government on its level by stopping legislation, preventing elections, and so on, the New Abolitionists have generally implemented the alternatives on a micro level, either confined to a city, a neighborhood, or a nonprofit. This lack of scaling is partly the result of how the New Abolitionism remains a relatively fringe idea despite the enormous successes of Black Lives Matter. But it also comes from the movement’s ties to anarchism and other Left libertarianism that opposes the use of the government and demands that alternatives exist automonously from it. Certainly fears of co-opting are well-founded, demonstrated most egregiously by a Black Lives Matter organizer being charged with a lynching law. But such turns do not suggest the need to resign control of the government to our enemies; to the contrary, it only shows the great need for the New Abolitionists and others to be more involved with criminal policy at every level.
Rather than either simply calling to abolish everything or trying to appropriate the “law and order” rhetoric of Republicans, democratic socialists can chart a new way by instead focusing on affirmative non-incarceration and non-policing policy and enforcement. What if we put forward national legislation to create community mediation centers, possibly through existing federal infrastructure like the post office (#SafeNeighborhoods4All)? What if we fought to resurrect the civil remedy from the Violence Against Women Act? What if we made major showings for the few examples of this already happening like civil gun seizures? The possibilities are endless once we overcome the arbitrary limitation of only working outside the government.
The Law Enforcement Leviathan
The largest and most powerful institution of law enforcement in the United States is neither the police nor the prisons. It is the courts.
Of course most are familiar with the ways in which courts are law enforcement through policing and prisons. Judges sign off on arrest warrants. Juries convict and judges prescribe prison sentences. But what may be less familiar is the civil ways that the courts and related institutions enforce the laws. The execution for repossession of your car or garnishment of your wages is going to come through the courts. Courts validate service of process and rule on evictions. On the more consumer-friendly side, courts prevent creditors from going after you when you’re in bankruptcy proceedings. The courts enforce child custody and support arrangements, marriages and divorces, and even paternity. Most importantly, and the main focus of this section, courts are the means by which individuals seek damages for torts.
A tort is quite simply some kind of wrong that is not a crime but has caused a harm which the victim is not mostly responsible for. That is why the general purpose of tort law is to make the individual suing “whole,” usually through money equal to the harm (calculated through things like hospital bills, estimates of pain and suffering, etc.).
Torts have a bad reputation from media portrayals of personal injury lawsuits as frivolous, such as the infamous McDonald’s coffee lawsuit which became the focus of a documentary challenging this misrepresentation:
This aspect of law enforcement unfortunately receives little to no attention on the Left aside from the occasional high profile case. Even then, the civil rights cases tend to garner most of the attention despite that tort lawsuits are some of the only means that people in the United States can hold corporations somewhat accountable (and which the far right has focused on restricting for the past few decades). Sure, tort law is far from socialist in a bubble, but until we are able to enact the full range of economic and human rights we believe in, it will be the only remedy for many people and thus is worth protecting.
Democratic socialists should fight against the use of arbitration clauses and other means of restricting access to the courts. We should also politicize the current tort battles as the far right has done so successfully. As the right has portrayed plaintiffs as greedy, we should be portraying corporations as predatory. We should seize on as many stories as we can of these battles between ordinary people and billion dollar corporations. As stated in the aforementioned documentary Hot Coffee, people who take the time to go to courts seeking justice from these rich powerful companies deserve to be held up as heroes of the working class.
While Leftists are scornful of criminal law enforcement and negligent with access to civil courts, the realm of law enforcement most disrespected by the Left is actually the one which the far right accuses it of abusing the most: regulation. The Left probably writes just as many if not more attacks on regulation than the far right, from soda taxes to gun control to even the New Deal, which the Communist Party USA called “fascist.” As earlier analyzed with criminal law, the Left is usually justified in criticizing these regulations. The problem is that they generally have little to offer in the alternative, or when it is offered it is almost an afterthought.
This is part of the reason why the Democratic Socialists of America is so exciting. Unlike most of the U.S. socialists that resign themselves to criticize any and every policy and prescribing at most union organizing while waiting for the revolution to happen, DSA has led its agitating with policy proposals like Medicare For All, as well as also calling for the elimination of bad policies and engaging in traditional unionization struggles.
But even DSA is not quite at the level it should be. It is intuitive that a political movement so ambitious as to call for the upheaval of the entire global economy should probably have an at least basically comprehensive set of regulatory policies, both short term (e.g. Medicare For All) and long term (completely socialized healthcare and medicine). While Alexandria Ocasio-Cortez getting behind a federal jobs guarantee was a much needed boost in publicity, DSA has yet to really commit to it in the way it has committed to Medicare For All or Abolishing ICE. With some exceptions, DSA and its candidates have neglected or only given vague statements of support for current regulatory bodies like the Consumer Financial Protection Bureau. While the CFPB is hardly socialist, it is one of the few agencies that working class people have directly seen the material benefits of. While understandably the other cases on the Muslim ban and gay discrimination drew more attention, the Supreme Court paving the way for Donald Trump to reconfigure how regulations are enforced in this country was met with disturbing silence.
Certainly not everyone needs to get into the weeds of regulation or the even-more confusing regulatory enforcement. But those who state this claim as the reason why the Left has not done enough are not being honest with themselves. Because the Left has had no qualms, as previously stated, about getting into the intricacies of say why we would join the likes of union-busting corporations to oppose the soda tax. The Left has had no qualms about teasing out why the Affordable Care Act was bad despite it being a small improvement overall in healthcare access.
I will never forget the time I sent a friend a piece I had written on the TPP and a proposal for Left-alternatives to trade policy. Her response was not just dismissive but condescending, chastising me for thinking I could participate in a discussion about what these policies should be. I was incredulous given that only weeks before this same friend had spoken casually about overthrowing white supremacy. How the modern U.S. Left can simultaneously believe it will overthrow entire systems like capitalism and white supremacy while timidly avoiding our own proposals is mind-boggling and, in my anecdotal experience, a big reason why the working class has not taken the U.S. Left very seriously. Even worse is those who act like having such proposals is itself not radical (a subject I recently wrote about here): as if Touissant Louverture did not speak about agricultural policy, as if Lenin did not implement the NEP, as if even the anarchist-darlings of the CNT-FAI did not participate in trade policy. Refusal by Leftists to engage in questions of governance, of how we would enforce the laws, is not radical: it is simply the internalizing of the neoliberal doctrine that government should manage people to benefit the market rather than people managing the government to control the market.
But this is not merely a call for us to write white papers or blog posts (Law and Political Economy, the Levy Institute, Modern Money Network, and People Policy Project have all made serious progress on that front). We need to begin to prepare for when we will take power. There are three major steps towards that which we should be constantly advocating for:
- Getting jobs in government, especially regulatory agencies, since they will be the ultimate decision makers as to how something like Medicare For All would be implemented and enforced once it has become law. And as C.M. Lewis pointed out recently, the broader goal is to create a government that the people themselves run. This can be achieved by an “inside/outside” strategy that leverages not only elected officials but also government offices and workers more broadly.
- Adopt affirmative politics. It is fine to say what we are against, but do not forget that the Hillary Clinton 2016 campaign was based on being against Trump rather than for anything and it was a major factor in the loss. And make it exciting! For example, even union members are not going to get very excited by the phrase “card check,” but what about a Workers’ Bill of Rights? This is where creative energy is needed, turning the aforementioned policy proposals into succinct accessible political language.
- Stay focused. This is by far the most difficult. With resurging fascists and an increasingly ghoulish U.S. empire, it can be tempting to focus our efforts on simply fighting back. We of course cannot be silent and must organize to defend our communities. But if that is our primary focus, we will quite simply lose. That is not an ideological statement, it is a mathematical one. Even leaving out how outgunned the Left is by the military and police, we are not (at least as a united front) willing to go as far as the fascists will. Fascists across the country have murdered people and the most “violence” the Left has committed is disrupting speakers. And it is an incredible disservice to the rest of the working class of the world. Something like a federal job guarantee could create what Alexandria Ocasio-Cortez called a “peace economy.” Reorienting the U.S. economy away from the constant expansion of the military and weapons manufacturing will do far more to end U.S. imperialist oppression of the world than a thousand tweets condemning “AmeriKKKa” in the most vociferous terms.
The night that Obama was elected, I was incredibly disheartened. It was hard not to feel joy at the jubilation all around me, of those who fought for the Voting Rights Act celebrating what seemed like their efforts coming to fruition, of young people who had mostly lived under the repressive post-9/11 state. But I knew from my volunteering with Mike Gravel’s campaign and other anti-war and union activism just how meek and vapid Obama’s platform was. We certainly needed hope and change, but whether we got that depended on what he did with the office, not what he said. I feel practically the opposite today seeing the energy and intellectual curiosity behind specific policies like Medicare For All. We need to build on this momentum to fully flesh out how we will enforce the laws, both in the short and long term, of the socialist world we want to create.
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