Sunday, December 15, 2013

The Problem With Pacifism

The Illusion of Pacifism

The problem with pacifism is not that it's mistaken or impractical (although it is), nor that it's an illusion indulged in by people whose own safety is protected by non-pacifists (although it is), nor that non-violence has probably caused more loss of life and suffering than it has prevented (although it has) nor even that the record of pacifists in supporting brutal, corrupt and repressive regimes is at least as bad as that of the CIA (although it is). The problem with pacifism is simply that it does not exist.

What is Non-Violence?

  • Obviously, committing violence yourself is not non-violence!
  • Hiring or encouraging others to commit violence for you also obviously cannot be termed non-violence. This includes relying on the legal system, which ultimately rests on the use of force as a last resort.
  • Goading your opposition beyond endurance to the point where they respond violently is non-violence only in the most hypocritical, specious sense.
  • So is obstructing the activities of others so much that they must resort to force to end the obstruction. The sit-ins of the 1960's were not non-violent in any meaningful sense.
  • Putting people in the position where they either have to yield to your demands or resort to violence to stop you is emphatically not non-violence. 
  • Nor is provoking a violent response in the hope of getting an over-reaction that will discredit the opposition and gain sympathy for your side.
The last four items on the list are calculated, manipulative, and deceptive practices. Neither Gandhi, nor Martin Luther King, nor the anti-war protestors of the 1960's were non-violent. They were skilled orchestrators of violence by others. The fact that their opponents were usually stupid enough to oblige them doesn't make the tactics any less manipulative or deceptive; in fact, often the response to an initially restrained opposition was an escalation of confrontation in order to cross the threshold into violence.

  • Can you really claim to be non-violent if you engage in activities that you can reliably predict will end in violence?
  • Can you really claim to be non-violent if you threaten someone else's position to the point where they feel they must resort to violence to protect their interests? Civil disobedience is a form of violence.
  • There is no such thing as non-violent crime. 
Certainly nobody who uses drugs can claim to be non-violent. Yes, I know all about the theory that our war on drugs is really responsible for the violence, and that if we simply legalized drugs the problem would go bye-bye. But in the world as it is, drugs are banned and traffickers are violent, and if you do business with them you are supporting their violence. Could there be anything more absurd than a vegetarian who won't eat meat because she opposes harming animals, while at the same time using drugs and pretending that she's not contributing to violence?

Forms of Pseudo-pacifism

The only truly non-violent tactic, in the sense that it neither commits nor provokes violence, is complete non-resistance and submission to the demands of the power elite. Even something as benign as education or public health, if it threatened someone else to the point of violent action, would be forbidden. Women would have to submit meekly to rape rather than struggle to resist. And no "pacifist" I have ever heard of advocates that. Generally, what passes for "non-violence" or "pacifism" is one of the following:
  • Relying on the law. This is not non-violence because if all other measures fail, the legal system will use force to achieve its ends. That's why we speak of enforcing the law.
  • Maintaining a facade of pacifism while provoking the opposition to violence, or creating an intolerable obstruction that can only be removed by force, or threatening their position to the point where they feel they have to resort to violence to protect their interests. This position, as already noted, is hypocritical, manipulative, and deceptive.
  • Selective pacifism: condemning U.S. military action but not violent actions against the U.S. If you take the position that someone has a cause for waging just war against the U.S., fine. Just don't pretend it's pacifism. There's no difference between a cop clubbing an anti-war protestor in 1965 and clubbing an anti-abortion protestor in 2000. Argue that one was not justified and the other is, if you will, but don't pretend that one instance is violence and the other isn't. Even weirder are the pacifists who condemn the international community for not intervening in places like Rwanda. And do what? Hold anger management sessions for the Hutu mobs? No, intervention would surely have meant military violence.
  • Compensatory pacifism: you oppressed us for a while, now we get to oppress you. A perfect example is the statement by Mari Matsuda when the University of Hawaii was trying to formulate a policy against hate speech: "Hateful verbal attacks upon dominant group members by victims is permissible." While Idi Amin was slaughtering thousands in Uganda in the early 1970's, some activists in America argued that it was "racist" to condemn him, because Africans had been oppressed by colonialism and now we had no right to criticize.
I don't have any problem with the use of violence in self-defense, or for taking down an oppressive regime, or for subduing criminals or protecting the weak. And the fact that somebody is so insecure that they resort to violence when confronted by mere demonstrations is often (not always) a pretty good idea who ranks where on the moral scale. But then again, I never pretended to be a pacifist. What I have a problem with is advocating, instigating, or indirectly causing violence while pretending to be non-violent.

What Would Jesus Do?

"The search for the historical Jesus" is generally a search for ways to make Jesus say the things we think he ought to have said if he'd possessed our wisdom. The historical reality is that Jesus lived in a society under military occupation by a foreign empire, and one swarming with insurgent groups at that. If Jesus had ever meant to condemn imperialism or endorse "liberation theology" or "wars of national liberation," he had one of the most perfect settings in all history to do so. Not only did he not do so, but Roman soldiers are just about the only group in the New Testament who are given complimentary treatment. When a group of soldiers came to John the Baptist asking what they needed to do to be saved, he told them not to abuse their power. He didn't even remotely suggest they should quit the army.

It gets worse. Jesus was put to death on trumped up charges. What a perfect opportunity to condemn capital punishment. Yet, while he and two criminals were dying, one of the criminals chided the other one, saying that they were only getting what they deserved. What a perfect place to say that nobody deserves to die at the hands of the state, that the criminals are really victims of unequal wealth, lack of empowerment, and poor self esteem. Jesus, apparently failing completely to understand what was at stake, said nothing. And his followers, while they condemned the execution of Jesus and some of his followers, always did so on the sophistic grounds that they were innocent and morally in the right. Not once did they challenge the right of the state to take the life of genuine criminals.

Attempts to equate Christianity and pacifism simply don't stand scrutiny. Christianity does not teach that life is sacred. Jesus and his followers ate animal products. Christianity doesn't even teach that human life is sacred. Christ told his followers not to fear those who merely destroyed the body, and said that he who loved his life would lose it.

Thou Shalt not Murder

But what about "Thou shalt not kill?" Notice that it's "Thou shalt not kill," but David slew Goliath? Why two different words?

Because the original meaning of kill was more nearly that of murder, whereas slay meant homicide in general. Although there's some overlap in usage in the Bible, generally actions like killing in battle are translated with slay. The distinction was clear in the 1600's when the King James Bible was published. It's only when we became intellectually sloppy that we blurred the distinction between the two words.

This is a pons asinorum (bridge of asses) - an initial first step that has to be made before any productive discussion can begin. People who trot out "thou shalt not kill" as a basis for pacifism are revealing only their illiteracy.

The Cycle of Violence

Before we go any further, take your mouse and put the cursor on the bold lettering above.
Now, notice what you did. In order to move the mouse, you had to exert force, and very precise and gentle force at that. You didn't rip the mouse cord out of the computer, or crush the mouse in your grip, or push so hard on it that you mashed the trackball flat. The notion that force inexorably spirals out of control is precisely that trivially easy to refute.

Now it's probably true that resorting to unnecessary violence may very well lead to retaliation. So restraint in dealing with confrontations is usually a good idea. But all the talk about "ending the cycle of violence" fails to address the key question what do we do about people who have already turned to violence as their tactic of choice? As a problem-solving tool, "violence first" has a couple of things going for it:

  • It's simple
  • It gets results, especially after word gets around that you don't hesitate to use violence
  • It's gratifying. You get to vent pent-up rage, feel dominance over others, maybe even a sexual turn-on
Most pacifists react to this issue by simply pretending that it doesn't exist, that people either never deliberately choose violence, that violence always stems from earlier violence, poverty, or injustice, or that if people do deliberately choose violence, it's in rare cases that are not really of great importance. But history abounds with examples of people who have deliberately chosen violence. The ease with which people from non-violent backgrounds have been induced to commit atrocities in wartime shows how easy it can be for the violent to recruit assistants, and for the gratification factor to take hold. Thus, a single individual who opts for violence because he enjoys domination may succeed in recruiting many others less bold than he is. How do we respond to people who have opted for violence? Appeasement merely reinforces the conviction that violence gets results. Moreover, it provides gratification by reinforcing the feeling of dominance. When confronting people who have already opted for violence, non-violence has a very good chance of perpetuating the cycle of violence. Retaliatory force, on the other hand, makes the results of violence a lot less simple, a lot less effective in getting results, and a lot less gratifying.

Furthermore, violence is only the far end of the spectrum of force. Every screaming brat who throws a temper tantrum in public is testimony to the fact that children do not need to be taught the use of force. And regardless how loving, benevolent and diligent a parent is in meeting and supplying the child's needs, every child sooner or later runs into the fact that other people, much less the physical universe, will not. Sooner or later every human being has to face the fact that some desires will not be gratified.

Throwing the First Punch

Pacifists are vociferous in denouncing "aggression." I can think of a number of cases where "aggression" either shortened a war or ended genocide. None involve the United States, by the way.

  • In 1971, civil war broke out in Pakistan, which was then made up of two ethnically and geographically separate areas. A million people died and ten million fled into India. Faced with an overwhelming refugee crisis, India invaded East Pakistan, which became independent as Bangladesh.
  • Madman Idi Amin brutalized Uganda for eight years, killing perhaps 300,000 people, before Tanzanian troops and Ugandan rebels invaded and expelled him in 1979. It should have happened much sooner.
  • The Khmer Rouge regime of Cambodia killed at least a million people before being driven from power by a Vietnamese invasion in 1979. Most of the American pacifists who opposed the Vietnam War so loudly remained strangely silent while the Khmer Rouge atrocities were being committed (Joan Baez being the one honorable exception). But the U.S. government, still smarting from its loss in Vietnam, shamefully condemned the Vietnamese.
  • While Idi Amin was grabbing headlines in Africa, Jean-Bedel Bokassa held power in the Central African Republic, which he renamed the Central African Empire. He killed perhaps 100,000 people. In 1979, France engineered a coup that overthrew Bokassa. Very slick and oh so French. They took advantage of Bokassa traveling abroad to fly in a new president and a few battalions of Foreign Legionnaires, and that was that. Napoleon, if you're looking down, you should be proud.
Not only is it morally permissible to commit aggression, sometimes it's morally obligatory.

So What's Your Plan?

When the Persian Gulf War broke out, critics of the war complained that we had not given diplomacy enough time to do the job. Years later, after a decade of economic sanctions had reduced Iraq to utter misery, many of the same people were complaining that sanctions should be ended because they have failed and because they are causing great suffering.

So what, exactly, was diplomacy supposed to accomplish in 1991? The only actions we can take against a country from outside are to blockade it. If blockade has not been effective after ten years, and if a blockade is considered morally objectionable if it causes human suffering, then exactly what measures were we supposed to take against Iraq?

I suggest that pacifists have a moral and intellectual obligation to answer the following questions:

  • What specific measures will lead to a peaceful solution?
  • What evidence do you have that these measures will work?
  • What criteria will we use to decide if the pacifist approach has failed?
For example, saying "The United States should have relied more on diplomacy to capture Osama bin Laden" doesn't cut it. What specific diplomatic approaches should we have tried? What evidence is there that they would have worked? How long should we persist before concluding that they don't work? Are there other criteria (credible evidence of bin Laden acquiring nuclear weapons, for example) that would justify immediate action?

Why Did I Even Get Out of Bed?

Sometimes you find something written by a more illustrious writer that says it first and so perfectly, anything else is almost superfluous. Here is an excerpt from George Orwell's Notes on Nationalism (May 1945). Note: Orwell uses the term "nationalism" as a synonym for any fervently held ideology, whether attached to a nation or not. This is simply a brilliant piece of work, not just on pacifism but all forms of extreme belief.
The majority of pacifists either belong to obscure religious sects or are simply humanitarians who object to the taking of life and prefer not to follow their thoughts beyond that point. But there is a minority of intellectual pacifists whose real though unadmitted motive appears to be hatred of western democracy and admiration of totalitarianism. Pacifist propaganda usually boils down to saying that one side is as bad as the other, but if one looks closely at the writings of younger intellectual pacifists, one finds that they do not by any means express impartial disapproval but are directed almost entirely against Britain and the United States. Moreover they do not as a rule condemn violence as such, but only violence used in defense of western countries. The Russians, unlike the British, are not blamed for defending themselves by warlike means, and indeed all pacifist propaganda of this type avoids mention of Russia or China. It is not claimed, again, that the Indians should abjure violence in their struggle against the British. ...
All in all it is difficult not to feel that pacifism, as it appears among a section of the intelligentsia, is secretly inspired by an admiration for power and successful cruelty....
If one harbours anywhere in one's mind a nationalistic loyalty or hatred, certain facts, although in a sense known to be true, are inadmissible. Here are just a few examples. I list below five types of nationalist, and against each I append a fact which it is impossible for that type of nationalist to accept, even in his secret thoughts...
PACIFIST. Those who "abjure" violence can only do so because others are committing violence on their behalf. ......

Too Dumb to Run a Lemonade Stand

According to National Review Online, The Corner, April 29, 2010, this e-mail is made the rounds on Wall Street in the early days of the Great Recession.
We are Wall Street. It's our job to make money. Whether it's a commodity, stock, bond, or some hypothetical piece of fake paper, it doesn't matter. We would trade baseball cards if it were profitable. I didn't hear America complaining when the market was roaring to 14,000 and everyone's 401k doubled every 3 years. Just like gambling, its not a problem until you lose. I've never heard of anyone going to Gamblers Anonymous because they won too much in Vegas.
Well now the market crapped out, & even though it has come back somewhat, the government and the average Joes are still looking for a scapegoat. God knows there has to be one for everything. Well, here we are.
Go ahead and continue to take us down, but you're only going to hurt yourselves. What's going to happen when we can't find jobs on the Street anymore? Guess what: We're going to take yours. We get up at 5am & work till 10pm or later. We're used to not getting up to pee when we have a position. We don't take an hour or more for a lunch break. We don't demand a union. We don't retire at 50 with a pension. We eat what we kill, and when the only thing left to eat is on your dinner plates, we'll eat that.
For years teachers and other unionized labor have had us fooled. We were too busy working to notice. Do you really think that we are incapable of teaching 3rd graders and doing landscaping? We're going to take your cushy jobs with tenure and 4 months off a year and whine just like you that we are so-o-o-o underpaid for building the youth of America. Say goodbye to your overtime and double time and a half. I'll be hitting grounders to the high school baseball team for $5k extra a summer, thank you very much.
So now that we're going to be making $85k a year without upside, Joe Mainstreet is going to have his revenge, right? Wrong! Guess what: we're going to stop buying the new 80k car, we aren't going to leave the 35 percent tip at our business dinners anymore. No more free rides on our backs. We're going to landscape our own back yards, wash our cars with a garden hose in our driveways. Our money was your money. You spent it. When our money dries up, so does yours.
The difference is, you lived off of it, we rejoiced in it. The Obama administration and the Democratic National Committee might get their way and knock us off the top of the pyramid, but it's really going to hurt like hell for them when our fat a**es land directly on the middle class of America and knock them to the bottom.
We aren't dinosaurs. We are smarter and more vicious than that, and we are going to survive. The question is, now that Obama & his administration are making Joe Mainstreet our food supply…will he? and will they?
Guess what, dude, you are not going to take anybody's job, because you don't have any useful skills. You push paper, and one particular kind of paper at that. I sided my house, designed and built a bay window, and converted a bathroom into a laundry room, doing all the plumbing and wiring myself. Can you even drive a nail without hurting yourself? Can you use a circular saw and come away with ten fingers? Can you change oil or spark plugs or a muffler? Can you use a soldering iron? Can you even write your own Excel spreadsheets? I can even code HTML, a frequent necessity because of the inept way Blogger writes it.

What kinds of stuff do you trade? Biotech? Great, tell me what a retrovirus is, and what a porphyrin is. You're international? Wunderbar. How many foreign languages do you speak? Aerospace? Tell me how they get a geosynchronous satellite into orbit. Information technology? What's the difference between RAM and ROM? A virus and a worm? What are VGA, EGA and RGB? Oil? Draw me a sketch of a saturated hydrocarbon. Draw a cross-section of a salt dome. What are migrated and unmigrated seismic sections? Defense? Pleased to meet you. What branch did you serve in? What's the difference between an Army first lieutenant and one in the Navy?

Here's a plan: you don't get to enroll in an MBA program - anywhere - until you have a professional degree or equivalent certification (say, master machinist) in a real profession, and five years' on the job experience. And to the business people who did it this way, it hardly needs explaining. (As of this writing, BP is taking hard hits over the Deepwater Horizon disaster, but at least the CEO, Tony Hayward, started off as a geologist and worked his way up through exploration and production. He's not one of those airheads who studied "management" in a vacuum, as if managing a drug company was the same as managing an automobile plant.)

You're not dinosaurs, all right. Dinosaurs knew how to survive in the wild. You're more like the dodo: flightless, sluggish, and perfectly adapted to its isolated and safe little island - until the people, cats, dogs, pigs and rats came ashore. Free rides on your backs? No, you got free rides on our backs. Your lavish income was precisely analogous to a church usher grabbing a pocket full of donations as payment for passing the collection plate, or maybe a refinery worker siphoning off a tanker full of gas to sell on the side simply because he has access to the valves. Just being in the money stream doesn't entitle you to any of it.

You're "more vicious" than dinosaurs? Oooh, can I feel your muscles, you big strong man, you? Maybe in your new found free time you can read Tom Wolfe's "The Right Stuff," where he contrasts the hollow business conceit of "dog eat dog" with the 25 per cent career fatality rate among military jet pilots. That's not combat. That's just flying. Fighter pilots take risks. Soldiers, cops, and firemen take risks. In a typical year about 1200 construction workers, 500 truckers, 300 farm workers and 150 police die on the job. How often does someone on Wall Street die on the job?

$85K with no upside is harsh? Do you have any idea how insulated from reality you are? Surf the want ads and see how many jobs there are at $85K a year. Especially entry level and no experience, which will be you if you try to make a radical career shift. Sure, when the market was performing well, everyone was happy. You got big bonuses, Joe Shlabotnik on the assembly line got a small raise and a hike in his IRA. Then the market tanks. Joe Shlabotnik loses his job, his house, his retirement and you, in return, are willing to settle for what - a slightly smaller bonus this year? Instead, you are shocked to get no bonus and a salary cap. You're taking a hit only remotely comparable to his; after all, you still have a job, a home, and savings, and let's not forget a health plan, and it's all so - (racking sobs) - unfair. After all that blather about the risks of the marketplace, you actually experience the real results of risk, and you're shocked. You experience the tiniest, softest touch of karma and you claim a martyr's crown. 

"Do you really think that we are incapable of teaching 3rd graders and doing landscaping?" Absolutely. You are incapable of teaching 3rd graders and doing landscaping. First of all, you don't have any practical skills. I hope you're not one of the people I have actually met who think you can teach third graders the way you teach adults. Second, you're not going to leave Wall Street because you like being where the action is. You'll still get a thrill out of steering millions of dollars around even if your skim is a lot less. You will still enjoy the view from your top floor office window. You will still enjoy having flunkies cower before you and having affairs with the secretaries. And this is why John Galt will never, in a million years, move to Galt's Gulch. You'll trade all that to landscape in Altoona or teach school in North Platte? And be at the bottom of the totem pole? With only your actual skills and attractiveness to rely on? In the words of the inimitable Nelson Muntz: "HAH-ha!"

And don't forger Mrs. Vicious. Do you recall the story of the businessman in London a couple of years back who asked his trophy wife at a party whether she'd still love him without his money? She said "####, no!" and everyone had a good laugh. Turns out she wasn't kidding. The economy went south and so did she. Maybe your marriage is true love. But before you go John Galt, better make sure your Significant Other can (will) make the transition from society in New York to Rotary luncheons in Boise.

And there's another reason. John Galt has a hundred people waiting to take over his job, and so do you. And every one of them can do it just as well as you can. You want to talk about unions? You're as tightly unionized as anybody. You restrict access to your career every bit as much as any other union, and you are no more in short supply than they would be if the artificial barriers were removed. Nobody can walk in off the street and challenge you for your job any more than you will be able to walk in off the street and challenge someone else for their job. Where you are now, it's who you know as much as what you know. Out here, it's what you know. And you don't know jack.

Cold Case: Lessons from a Long-Ago Murder

A Fairy Tale?

Once upon a time there was an Olympic athlete with a gold medal, who had gone on to become an eminent professional and respected family man. Unfortunately, he had a secret life. He had a mistress, and one night he killed her. The police soon arrested him, and he was put on trial for murder. His Olympic medal, professional degrees, and community stature counted for nothing. He was found guilty and put to death.

Whoa, many people would say, I'm glad you began that story with "Once upon a time," because it's a fairy tale. Someone of that stature could find a phalanx of lawyers to defeat the charges or bargain them down to something lesser. Even if he were by some wild chance found guilty and sentenced to death, the appeals would drag on interminably. The press and his supporters would wage a relentless battle to raise doubt about his guilt. Eventually some judge would be persuaded, or the governor would cave in to popular sentiment, and he would have the sentence commuted. In a few years, when the hubbub had died down, he would go free. Because prominent people just aren't put to death.


Except the incident really happened, exactly as described, in 1929. The Olympian was James Howard Snook, who won a gold medal for pistol marksmanship in the 1920 Games in Antwerp, Belgium. Admittedly the Olympics in 1920 didn't command the celebrity they do now, and pistol marksmanship is not on the same plane as the high jump or decathlon. Nevertheless, Snook was an acclaimed Olympian. By 1929, he had a wife and child, and was head of the Department of Veterinary Medicine at Ohio State University. He had also been carrying on an affair with a young medical student, Theora Hix, for three years. On June 13, 1929, during an argument, Snook bludgeoned her and cut her throat. Her body was found the next day. Snook was soon identified as the prime suspect, put on trial in July and found guilty on August 14. After exhausting his appeals all the way to the U.S. Supreme Court, he was executed in the electric chair on February 28, 1930. (Snook is the only Olympic medalist ever executed for a crime.)

Despite Snook's intelligence, education and professional experience, this was a singularly inept crime, worthy of inclusion in any "dumbest criminals" compilation. Snook killed his lover and left her body in a place he was known to visit (a firing range where he practiced his marksmanship). He managed to get Hix' blood on his clothes and in his car, and he kept the murder weapons. And although he had medical training, plus access to a laboratory and a wide array of chemicals, he was unable to clean the weapons, a knife and ball peen hammer, well enough to eliminate all traces of blood, even by the standards of 1929 forensics.

The trial was sensational, complete with drugs and kinky sex (by 1929 standards). Snook supplied the drugs, to which he had ready access, and which were much less regulated than they are now, and Hix supplied the kinky. (One can just picture Snook's poor wife hearing the details in court and wishing she could get the electric chair right then and there.) During the trial, Snook claimed that Hix had threatened to harm his family. Prosecutors argued premeditation, pointing to the unlikely opportune availability of a ball peen hammer in Snook's car. The jury, judge, and apellate courts agreed.

I first learned of this case in 1994, after the arrest of O. J. Simpson, when it appeared in a background story on other sports figures who had been charged with crimes. (I regretted not saving the article at the time, although when I finally decided to write this piece, I located the details on line in seconds. Such is the growth of electronic technology.) As the O. J. drama unfolded (complete with jugglers and dancing bears in the streets, as one Doonesbury strip put it) my mind kept returning to that long ago murder. How was it that in 1930, in a time many would consider a judicial Dark Age, an Olympic gold medal and a prominent professional position were unable to save a murderer from the electric chair? On the other hand, in 1994, after decades of legislation and court decisions aimed at reducing inequality in the judicial system, wealth, prominence, and the money to hire a team of lawyers were instrumental in getting a murderer acquitted.

Two conclusions immediately leap out in comparing the Snook and O. J. cases:

  1. All the procedural complexities added to the legal system since 1930 have made the system less fair and equal, not more. The inequality is not so much due to unfairness directed at less wealthy defendants, as it is the creation of innumerable loopholes that wealthy defendants can exploit.
  2. The increased injustice came about not in spite of the court reforms of recent decades, but precisely because of them. The most nearly infallible recipe for injustice is complexity. The more complex the appeals process becomes, the more costly it becomes to exploit judicial safeguards. Wealthy defendants can afford the lawyers. Public defenders and attorneys working pro bono for less affluent clients are more heavily burdened. And of course, if you are too affluent to qualify for public assistance and too poor to hire attorneys out of petty cash, you will escape punishment only in the sense of not going to prison. Financially you will be as bad off as anyone behind bars.

Most commentators on this case point out that the case would be handled differently now, as indeed it would. Snook was interrogated for nineteen hours straight, without a lawyer, and was slapped a couple of times by the interrogating detective. And the appeals process was very abbreviated by today’s standards. On the other hand, what substantive issues would a lengthier appeals process have addressed? Snook was clearly not of diminished capacity and his guilt was beyond doubt. The only issue of substance was whether the killing was premeditated. Snook claimed that Hix had become increasingly jealous of his family obligations and had threatened him and his family. Nevertheless, by his own account, Snook was not in imminent danger at the time he struck Hix, and the fact that he had a weapon close at hand tipped the balance against him.

If the police had merely been intent on closing the books quickly, they had a much easier target to go after. Hix had another lover while she was having her affair with Snook, and he was the first suspect picked up. He was able to convince the police that he and Hix had ended their relationship a year earlier and that he was engaged to someone else. So the police passed up the chance to wrap up the case easily, released a suspect of low socioeconomic class, presumably someone without the means to mount a vigorous defense, and arrested the respected professional Snook instead. The commonplace wisdom that socioeconomic status determines a defendant’s fate is turned completely on its head in this case.

From Hix’ murder to Snook’s execution was 260 days. Three years later, Giuseppe Zangara would shoot Mayor Anton Cermak of Chicago in a botched attempt to assassinate Franklin D. Roosevelt. Zangara defiantly boasted of the shooting in court and was sentenced to 80 years in prison. However, when Cermak later died, Zangara was charged with murder. Again he defiantly pled guilty. Only 33 days elapsed between the shooting and Zangara’s execution and only 14 days since the murder conviction. Leon Czolgosz, who assassinated President William McKinley in 1901, was executed 53 days after the shooting. In 1921, psychologist Lloyd Vernon Briggs examined the case and concluded that Czolgosz had been mentally ill and possibly not legally responsible. Charles J. Guiteau, assassin of President James Garfield in 1881, was executed just 363 days after the shooting. This trial was one of the first high profile trials where the insanity defense was invoked. Garfield did not die for eleven weeks after the shooting, a victim of medical malpractice as much as the bullet, and Guiteau was convicted on January 25, 1882, 156 days before being executed.

There is a good chance that all three political assassins would have been found insane if tried today. Guiteau in particular was delusional about his popularity after the assassination, and believed the public regarded him as a hero. Certainly all would have had appeals filed on their behalf. But even counting the issue of insanity, all of the three assassination cases were straightforward enough to be resolved in a single round of appeals, lasting at most a year. Certainly none were complex enough to require millions of dollars to decide.

In contrast, it took 12 years to decide the case of Charles Rodman Campbell. In 1974, Campbell raped a woman and served six years for the crime. In 1982, while on work release, he killed the woman, her daughter, and a neighbor in retaliation for testifying against him. He was finally executed in 1994, only after the State of Washington had appealed to the Supreme Court in an effort to get a final decision on the constitutionality of the case. It took twelve years to resolve a case where there was never the slightest doubt of the defendant's guilt.

How did we get from the simplicity of 1929 to the complexity of today? The 1931-1937 Scottsboro case was a contributing factor. Nine black youths were accused of rape on flimsy grounds and sentenced to death after cursory assembly-line trials with only the most meager representation. Two separate hearings by the Supreme Court laid down important due process safeguards, yet it seems likely that justice would have been far better served if the Court had simply overturned the verdicts on the grounds of insufficient, flimsy, and contradictory evidence, not to mention blatant judicial prejudice. Yet the Federal courts played procedural patty-cake with Alabama's courts, effectively declaring themselves impotent against Jim Crow sham trials.

Another significant episode was Caryl Chessman's unsuccessful twelve year (1948-1960) battle to avoid execution for rape and kidnapping in California. This case became a rallying point for opponents of capital punishment, who were further swayed by Chessman's articulate writings. It laid down the precedent later observed in the cases of Eldridge Cleaver, Edgar Smith and Jack Henry Abbott that articulate writing somehow atones for heinous crimes. It also created a precedent for defense attorneys filing interminable piecemeal appeals in an effort to wear down the opposition or slip an overturned verdict through the cracks.

Due process is result, not procedure. A trial that results in punishment of an innocent person is not a fair trial, despite Justice Scalia's scandalous (and impeachable) recent opinion that innocence is not a Constitutional bar to imprisonment. However, a trial that results in the release of a guilty person is likewise not a fair trial. If the Scottsboro Trials were a miscarriage of justice, so were the acquittal of O.J. Simpson and the overturn of the convictions of the Chicago Seven.

Courts are understandably reluctant to second guess lower courts' readings of the facts. There are myriad important things in court that never make it into the transcript, such as the fact that a defendant has an arrogant smirk or a prosecution witness stammers and sweats when cross examined. And yet innocent defendants remain jailed while courts bat procedural matters around instead of declaring that a prosecutor's case is simply worthless on its face, or declaring that an appeal is pointless because the appellant is patently guilty. The waste of resources is huge. It typically costs millions of dollars to deal with a capital case, even if the defendant is palpably guilty. These are resources of money and docket time that could be spent on reviewing the cases of genuinely innocent victims of miscarriages of justice.

It seems to me that we need at least three Constitutional amendments:

  • No person shall be punished for a crime except on conclusive evidence of guilt.
  • Appeals (criminal and civil) may only be based on a reasonable showing of factual error in the original verdict.
  • No procedural issue shall ever take precedence over issues of fact.

What about all the procedural safeguards created by the courts? There is still plenty of room for those; indeed, these changes will strengthen them. A prosecutor who faces having his conviction dismissed rather than merely being overturned will be a lot more careful about observing procedural safeguards that really count. If his case is dismissed with prejudice because he withheld exculpatory evidence, that will hurt a lot more than the slap on the wrist of having a verdict returned for retrial. Even better would simply be tossing the prosecutor in jail for contempt of court for wasting judicial resources. If Southern courts had routinely had guilty verdicts against black defendants thrown out as worthless because they were unsupported by the facts, or because the judge was blatantly prejudiced, we might not have had to wait so long for civil rights progress.