Tuesday, August 18, 2009

A conservative critique of 'socialism' in the justice system

Thanks to Murray for turning me on to Houston criminal defense attorney Troy McKinney's new blog, Law-4-Lunch, which is presently topped off with this exceptional post titled "The Socialism of Personal Accountability." Here's a notable excerpt:
We are becoming a socialist state when it comes to personal accountability.

In the wake of this year's legislative session are a variety of new laws and as always a variety of new crimes. Perpetuating the myth that making something a crime comes with no cost to the government, the fiscal notes attached to most legislation making acts criminal continue to state that there is no "direct cost" to the government or that the cost is too vague to be quantifiable. Aside from the blatant falsity of such statements is the even greater cost that accrues from the socialization of responsibility that accompanies most new crimes.

The vast majority of Americans are adamantly opposed (and rightfully so in my view) to any form of government that even remotely resembles socialism, much less communism. Against this backdrop, our country has gone through McCarthyism, the anti-communist sentiment accompanying the cold war, movements attacking proposed solutions to social problems as moving us closer to socialism, and most recently excessive government control of the auto industry and too much of the banking system. The current debate about whether health care reform will result in "socialized" medicine, and the hysteria that such a label invokes, leaves little to no doubt that there remains substantial negative sentiment about the socialization of any aspect of American life.

Despite that widely held core belief, Americans stand still and even embrace the idea that those who harm someone should be accountable to the government rather than to those they harm. The government has taken control of individual responsibility. This transformation of accountability -- from private to public -- has been fueled by every legislative session in Texas in the last 30 years. Each session, the legislature makes it harder and harder, if not impossible, for those who have been harmed to seek and obtain private redress for their harm. Instead, and in just as significant a movement in the opposite direction, those who do something that harms someone else become almost solely accountable to society through laws that make the conduct criminal. Rather than providing a forum and mechanism for one-on-one grievances to be dealt with between those involved, we have inserted government either as the sole mechanism for redress or as the only effective intermediary. We have largely socialized personal responsibility for actions that affect or harm others.
Now that, my friends, is a true, ideological conservative - a distinctly American, almost Goldwateresque critique of the criminal justice system which stands in stark contrast to the faux, "tuff" neoconservatism we hear on talk radio or Fox News.

Regrettably, most self-styled "small government" conservatives these days don't have the cojones to apply their ideology to criminal justice. But historically, intellectual conservatism has been much more fearless and its principles support a powerful critique of the justice system for those, like McKinney, who aren't scared to follow their principles wherever they lead.


ckikerintulia said...

Most so-called "small government" and self proclaimed anti-socialist folks also do not recognize that we are semi-socialist already. We have government owned and operated roads, streets, and bridges. Governor Perry has tried to move us toward a private enterprise, really a corporate enterprise system with his Trans-Texas Tollway. I think if that thing were put to a referendum in Texas it would fail miserably. Re: health care, conservative Wm. F. Buckley Jr. many years ago, when discussing the plight of the poor, said, "The poor can't afford diamonds, either." Thereby putting health care into a pseudo-free enterprise system. I'm not at all disturbed that the poor cannot afford diamonds. I am disturbed that the poor cannot afford health care. I am not disturbed by socialism in health care. I pay taxes to the Swisher Hospital district, and I gladly participate in Medicare.

But this is an interesting post. Might be well to back off a bit from socialism in Criminal Justice. Though I doubt that many would want to go back to the Old Testament system of private retribution, cities of refuge, etc.

Picnic said...

Who cares? The police and armed forces are socialist programs.

Anonymous said...

those who harm someone should be accountable to the government rather than to those they harm

I love this quote. I always am ecstatic when burglars get shot by a homeowner so the state doesn't have to get involved. I wish we could open the door for some kinds of vigilanti activities.

DrunksAgainstMadMothers said...

Hey 4:12pm you might like to read this story of vigilante justice.

Anonymous said...


Thanks for the link. This is exactly the type of behavior I hope to see more of.

Anonymous said...

I understood the reference to "a forum and mechanism for one-on-one grievances to be dealt with between those involved" as talking about civil courts, not vigilantism.

Anonymous said...

Thanks for the reasoned read Grits. And Bravo! Troy McKinney.

From your pen to the people.

Let reason and common sense reign in this country of ours again.


David C said...

"Regrettably, most self-styled 'small government' conservatives these days don't have the cojones to apply their ideology to criminal justice."

This is simply not true. There are plenty of real conservatives who are willing to speak out against what the Republican party has become. Bruce Bartlett, David Frum, Penn & Teller, and Ron Paul come immediately to mind. They're simply branded as Libertarians and ignored by the party's core. Conservatives vastly outnumber liberals in this country, but Democrats vastly outnumber Republicans, and it's because the Republican Party has ignored the large number of people like Troy McKinney.

Anonymous said...

What Troy McKinney is talking about without know it (perhaps he does but was reluctant to say) is "Restorative and Community Justice". These are new lens with which to view policy and response to crime, problem behaviors and problem conduct (by companies or government). See Howard Zehr's book "Changing Lenses" or Van Ness and Strong's book "Restorative Justice". Some of the basic principles are:

- Crimes are more than violations of law -- they are harms to real people and justice requires healing;
- Justice is not owned by the government but belongs to those harmed and those who caused harm;
- Healing of harms requires dialog between those affected (victims, community, government, and offender) in which victims obtain answers to their questions and offenders accept responsibility and agree to take steps to make amends;
- Justice requires direct accountability between people and active involvement by those involved.

Research with 16 randomized studies with thousands of offenders and victims have been shown to be far more effective (i.e., lower recidivism, greater satisfaction by victims and offenders - as well as their families, lower cost). Simply stated there is more evidence that restorative justice principles and practices work than there is that traditionally punitive justice policies work (in fact the overwhelming evidence is that traditional justice does not work).

It really is time to rethink what justice is and how it is attained.

St. James Lodge #2, PHA said...

It's my concern that folks crying "no socialism" are the same folks screaming "give me back my country". I'm in agreement with another reader in that we already have socialism. I say, so what! The very moment we make rigid our constitution, we fail to realize the very flexibility found necessary by our founding fathers. Government is involved because of the very same reasons listed by Hamilton in the Federalist Papers; because man is corrupt. We (American's) won't admit that we (whether individuals or constituents) don't always play fair. Moreover, don't be surprised that many who claim they are anti-socialist are actually racists and sexists. These folks would starve rather than follow the rules of a government that conceeds to issues of race and sex.

To all of those anti-socialist, I say, "there is no growth in stagnation and no truth with shut eyes".

Anonymous said...

06:14:00 you're quite right. I guess that's what makes Troy a conservative and me an Anarcho-Capitalist!

sunray's wench said...

Having witnessed the ridiculous scare-mongering by some Republicans over the past few weeks, trying to use blatant lies about the British NHS in order to prevent the President from restructuring health care in the US, I can only say that most Americans don't know the different between Socialism and Communism. The UK is not a socialist state, we are a democratic state.

Personal responsibility is important, but so is public accountability, and THAT is what is seriously lacking in TX criminal justice system at the moment.

Anonymous said...

public accountability

This is a socialist nonsense phrase. As Maggie Thatcher once said, there is no society just families.

Anonymous said...

There IS public accountability of sorts, you sir are wrong. Every person on this planet is accountable to every other person.

You get public accountability mixed up with social mandate. Everyone has the public accountability to treat their fellow man in some sort of kind way. That is the nature of co-habitation. What mine is mine, may be, be we all own this planet, and therefore should have a sense of accountability to others we share it with.

People always equate socialism with bad. That isn;t the case. When you allow corrupt rulers to take socialism and twist it, then it becomes bad. This is the same for Fascism, when you allow corrupt rulers (like the ones we have here in this state) twist democratic republics like we have done, we get fascism. Today, we live in a fascist environment where the good of the nation comes over the good of the citizens.

Anonymous said...

That is the nature of co-habitation. What mine is mine, may be, be we all own this planet, and therefore should have a sense of accountability to others we share it with.

Here is how social programs work: A democratic majority gangs up on a minority. This minority wishes to live in a society without social programs. The majority then steals, er taxes, that minority(along with taxing the ignorant majority who believe in the social programs). They then distributes that money to the nation in the form of social programs.

This is theft! The fact that so many people support this extortion doesn't give it legitimacy.

Anonymous said...

Anon 3:29 pm -- You are talking the Libertarian talk. The logic you espouse leads to absences of an public service and total rejection of concepts of the public interest or public good. There would be no safety net for anyone for any thing -- no fire department to put out your house fire, no public sanitation or public utilities, no public health clinics or school, no unemployment insurance, no standards for product safety or food safety.... Is that the world you want?

The role of government in a civil society is about defining the public interest and doing things that make life for everyone better. Not many want to live the hermit life - most want a longer life span created by government concern for the public good.

Anonymous said...

Is that the world you want?

Yes it is! I think all of those services could be provided better by the private sector.

And don't worry, we libertarians are a social bunch who come out of our hermit shells quite often. We just don't force anyone to join us, obey any rules or pay any taxes to us.

You can in your socialist utopia, just don't take our property to get there.

Anonymous said...

In the past year we have decided to adopt socialism but we don't want to admit it. I guess we don't want to admit that we have taken this drastic step.