(I promised, on reading New York criminal defense attorney Scott Greenfield’s Independence Day post, 231 Years and Still Trying, to write about the nature of freedom, the power of fear, and the abandonment of American ideals. This is the third post in the series; it covers the second topic. I discussed the nature of freedom and the abandonment of American ideals.)
Walking the halls of the Harris County Criminal Courthouse, I smell fear. The accused are often afraid, as you might expect, as are their loved ones, but theirs is not the fear I smell.
The fear I smell oozes out from under doors leading to the judges’ chambers, locked to keep the outside world away, and from the robes of the judges, concealing the firearms they carry (literally) to protect themselves against some imagined danger. It wafts from the prosecutors, likewise armed and armored with fear.
It also comes from the lives of the jurors who have been convinced that they can’t safely walk the streets of their neighborhoods, that there is a sexual predator lurking around every corner, and that crime is out of control.
Where does all of this fear come from, and why?
The fear comes from the American institutions — the governments and the corporations and others that seek more power at our expense. Think about what the government and the news media are telling you. Consider Judge Chertoff’s “gut feeling” that this will be a dangerous summer. Ponder the administration’s report that al Qaeda has significantly rebuilt itself. Every heinous crime is played up in the media so that it appears to be something other than the aberration that it is.
Why? Fear is one of the five great motivators (the other four: Exclusivity, Guilt, Greed and Ego Gratification).
Corporations are heartless artificial creatures whose existential imperative is an increase in wealth (economic power). The news media aren’t in the business of telling the whole truth, but of selling advertising. From the corporations’ point of view, fear sells stuff. It gets people watching the news and buying duct tape and insurance and deodorant.
Governments are heartless artificial creatures whose existential imperative is an increase in power. That is, regardless of who serves the government, the government’s natural inclination will be to seek more power. Governments can get more power at the expense of other governments (as, for example, when Germany invades France) or they can get more power at the expense of their own citizens (as, for example, in the “War on Drugs”)1.
The “power” of the people in their relationship with the government is freedom. The more free the people are, the less powerful the government is. The less free the people are, the more powerful the government is.
What are governments selling us? They’re selling us protection. Protection from “terrorists” or “drugs” or “crime” or people who don’t look, think, and act like us. Exclusivity, guilt, greed, and ego gratification don’t sell protection (the mob doesn’t walk into your business and offer to compliment your appearance for a fee). Fear does.
When we allow the government to take away human freedom, we’re the victims of a protection racket. We’re buying the promise of protection, and we’re paying with freedom. Sometimes it’s obvious to us when we’re paying, because we can no longer do something that we could have done (whether we wanted to or not) before.
Because government uses power to get more power, even when it seems that the only other people’s (“foreigners’” or “criminals’” or “poor people’s”, for example) freedom is being curtailed, we become less free.
What does that have to do with the art and science of criminal defense trial lawyering? Everything, on every level, from legislation down to trial. When we, as voters, permit the legislature to broaden police powers we give up our own freedom. Every criminal law ever passed is a restriction on human freedom.
Every time the executive branch (through its prosecutors, elected or appointed) successfully argues for an expansion of police power to arrest people, or to interrogate them coercively, or to seize their property, or to search their homes, we become less free. We wouldn’t allow it if we weren’t free.
In the criminal courthouse, prosecutors are selling retribution. Exclusivity, ego gratification and greed don’t sell retribution. Neither, for the most part, does guilt (though the “plea for law enforcement” argument prosecutors make could be viewed as an appeal to guilt). Prosecutors who come to court afraid of the people can be heard every day using that fear to persuade juries to convict. Every time this gambit works — every time fear drives a jury to convict rather than acquit — we all become less free.
1 If you combine these two concepts, you can see how governments can benefit from other countries’ citizens being more free, because if another country’s citizens are more free, that country’s government is less powerful. If the United States exports democracy overseas, then foreign governments are less powerful than they would be as autocracies, both in relation to their citizens and in relation to the United States.