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The Access To Justice Journal

Charlotte School of Law

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The Access to Justice Journal is a student-run organization whose mission is to publish scholarly practice-oriented works covering myriad legal issues focused on serving the underserved. The Access to Justice Journal strives to serve as a forum to the legal community for discussing issues impeding access to justice, and as a

tool for law students to further refine their skill in legal writing, editing, and researching.

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Table of Contents

Understanding Crime Under Capitalism: A Critique of American Criminal Justice and Introduction to Marxist Jurisprudence By Steven E. Gilmore – St. Mary’s School of Law . . . . . . . . . . . . . . . . . . . . . . . . . page 4 Involuntary Commitment: How Living with a Mental Illness Can Lead to a Massive Curtailment of Liberty By LaQunya L. Baker – Charlotte School of Law . . . . . . . . . . . . . . . . . . . . . . . . . page 57

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UNDERSTANDING CRIME UNDER CAPITALISM: A CRITIQUE OF AMERICAN CRIMINAL JUSTICE AND INTRODUCTION TO MARXIST JURISPRUDENCE

STEVEN E. GILMORE

“Your Honor, years ago I recognized my kinship with all living beings, and I made up my mind that I was not one bit better than the meanest on earth. I said then, and I say now, that while there is a lower class, I am in it, and

while there is a criminal element I am of it, and while there is a soul in prison, I am not free.”1 — Eugene Victor Debs

INTRODUCTION

Americans have a pronounced tendency to boast that our system of justice is superior in

form and in fairness to virtually all other international legal structures.2 Prudent observers have

noticed the casuistry with which media outlets discuss the relative inequities of those juridical

models foreign to the American method.3 As a result of this and other related causes, we

Americans have come to understand crime, why crime occurs, and our sense of justice in

narrowly, if not exclusively, American terms.4 These assertions are not unique, and they appear

with regularity in scholarship on the subjects of ethnocentrism and American exceptionalism.5 1 Marshall Van Winkle, Radical Labor: United States vs. Debs et al., 7 Sixty Famous Cases 221, 2 Nancy K. Humphreys, Is Our Legal System the Best in the World?, Huffington Post (Sept. 16,

2013, 9:12 AM), http://www.huffingtonpost.com/nancy-k-humphreys/is-our-legal-system-the-

b_b_3612565.html.

3 See generally Nora V. Demleitner, Combating Legal Ethnocentrism: Comparative Law Sets

Boundaries, 31 Ariz. St. L.J. 737, 738-44 (1999) (detailing the concept of ethnocentrism to

explain how Americans have been culturally conditioned to believe in our justice system’s

superiority).

4 Demleitner, supra, 738-44.

5 E.g., William R. Catton, Jr., The Functions And Dysfunctions Of Ethnocentrism: A Theory, 8

Soc. Probs. 201 (1960-1961); Nora V. Demleitner, Combating Legal Ethnocentrism:

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Traditional criminologists generally understand crime and why it occurs based on either

behavioral theories or definitional theories of crime.6 Behavioral theories of crime tend to focus

on crime as a product of learned characteristics developed as a result of upbringing, interpersonal

relationships, or even inherited traits that make a given person more or less likely to commit

crime.7 By contrast, definitional theorists consider the social and political processes that go into

deciding whether and why one act or another is to be labeled criminal.8 In the context of the

American and capitalist models, the more broadly accepted of the two theories is the behavioral

theory.9 In many ways this is to be expected when one considers the American emphasis on

individualism.10 As a result, the American justice system has developed in response to this

understanding of crime.11 The American law enforcement arm polices based on the behavior of

Comparative Law Sets Boundaries, 31 Ariz St. L.J. 737 (1999); Rosemary Foot, Exceptionalism

Again: The Bush Administration, the "Global War on Terror" and Human Rights, 26 Law &

Hist. Rev. 707 (2008); Carol S. Steiker, Capital Punishment and American Exceptionalism, 81

Or. L. Rev. 97 (2002).

6 Michael J. Lynch et al., The New Primer in Radical Criminology: Critical Perspectives on

Crime, Power & Identity, 1–3 (3d ed. 2000).

7 Id. at 3.

8 Id. at 1-3.

9 Id. at 23.

10 See id. at 29-31 (analyzing the American concept of individualism as a mechanism for

understanding behavior; therefore crime as well).

11 See generally id. at 104-06, 192–96 (3d ed. 2000) (describing in detail the manner in which the

justice system has developed alongside and as a byproduct of capitalism).

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individuals as they have been observed, the courts and prosecuting apparatuses of the state seek

to convict people whose behavior violates the law as it is written, and the prisons warehouse

offenders whose behaviors deviate from our legally and culturally accepted edicts.12

For Marxists, crime is conceptualized altogether differently. All crime can be understood

as the expression of a set of power relations, either occurring in affirmance or in attempt to

subvert that relationship.13 Every deviant act from petty thievery to sexual assault can be

explained in this manner.14 This is not to say that crime is an inevitable byproduct of capitalism,

though it may be, but crime is necessary inasmuch and to the degree that wage and influence

disparities are represented within the sphere of those power relations.15 Marxists also utilize the

12 See generally Crime and Capitalism: Readings in Marxist Criminology 190–205 (David F.

Greenberg ed., 1st ed. 1981) (discussing the role of the three branches of the criminal justice

system as they have evolved in conjunction with American capitalism).

13 Id. at 8-9. “[I]ncarceration is political since it is the end-product of decisions to treat some

social harms as deserving of penal sanctions and others as not—with little regard to the actual

extent of social damage.” See generally Michael J. Lynch et al., The New Primer in Radical

Criminology: Critical Perspectives on Crime, Power & Identity 25, 8–11 (3d ed. 2000)

(discussing the emergence of Marxist criminology).

14 See Whose Law? What Order? A Conflict Approach to Criminology 215–53 (William J.

Chambliss & Milton Mankoff eds., 1976) (introducing a three-part discussion of crime analyzed

as the product of class conflict).

15 See Mark Cowling, Can Marxism Make Sense of Crime?, 2 Global Discourse: An Interdisc. J.

of Current Aff. & Applied Contemp. Thought 59, 64–66 (2011) (illustrating that incarceration,

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definitional analysis to critique the manner in which acts come to be labeled criminal, along with

the degree to which those acts are punished based on the “distribution of political and economic

power.”16

This discussion has become increasingly relevant as we struggle to articulate more

equitable measures of criminal justice in the face of mounting civil unrest. Following the highly

publicized deaths of Eric Garner and Michael Brown at the hands of white local law enforcement

officers, along with the subsequent failure of the justice system to address this repugnant state of

affairs,17 it has become essential for left-legal activists and advocates of social justice to begin

crafting a model of criminal justice that is capable of withstanding the bias of perceived class,

gender, and racial supremacy. Further, it seems necessary to express these ideas in a manner that

is amenable to implementation, rather than conveyed in the abstract terms of bourgeois

ideology.18 Such a design of legal structures and procedures can be deduced from the concepts

provided by Karl Marx and the various leftist practitioners and theoreticians that have followed

while necessary under capitalism, is actually less prevalent in countries with an adequate welfare

state functioning to lessen the degree of wage and income disparity).

16 Michael J. Lynch et al., The New Primer in Radical Criminology: Critical Perspectives on

Crime, Power & Identity 25, 4 (3d ed. 2000).

17 Sally Kohn, First Mike Brown, Then Eric Garner: Prosecutors Can’t Be Trusted to Try Cops,

The Daily Beast (Dec. 3, 2014), http://www.thedailybeast.com/articles/2014/12/03/the-eric-

garner-case-should-have-gone-to-trial.html?via=mobile&source=twitter.

18 Bertell Ollman, Introduction to Essays in Critical Theory: Toward a Marxist Criticism of

Liberal Ideology, NYU.edu (Mar. 16, 2005),

http://www.nyu.edu/projects/ollman/docs/critique_ideology_content.php.

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in Marx’s footsteps.19 Nevertheless, it is beyond our ability to fully or accurately construct a

Marxist model of criminal law in abstract, just as it would have been impossible for slaves in

pharaonic Egypt or feudal serfs to outline a model of modern capitalist criminal law.20 Socialism

represents the transcendence of humanity from the barbarism of capitalism to a new and more

equitable society; therefore, the construction of society and its institutions lie in the execution of

that new society, as opposed to the development of any ideological concepts.21 With this

statement, we arrive at the crux of Marxism, distinguished from mere philosophy, in that

Marxism represents the marriage of theory and practice understood more broadly as “praxis”.22

Praxis is embodied in Marx’s statement that philosophers have merely interpreted the world up

to now, but the point should be to change it.23 This is, in part, the component of Marxism that

19 China Miéville, Between Equal Rights: A Marxist Theory of International Law 77 (Haymarket

Books ed. 2006).

20 See Seth Ackerman, The Red and the Black, Jacobin (Dec. 31, 2012),

https://www.jacobinmag.com/2012/12/the-red-and-the-black/ (discussing the inherent difficulties

in attempting to predict or construct an abstract model of socialist society).

21 Peter Frase, Four Futures, Jacobin (Sept. 10, 2012),

https://www.jacobinmag.com/2011/12/four-futures/. See also Crime and Capitalism: Readings in

Marxist Criminology 8–9 (David F. Greenberg ed., 1st ed. 1981) (explaining that resolving

capitalism’s inherent contradictions necessitates arriving at a new social form).

22 Todd Chretien, Praxis Makes Perfect, SocialistWorker.org (Mar. 26, 2013),

http://socialistworker.org/2013/03/26/praxis-makes-perfect.

23 Id.

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stresses human agency above all else.24 As concepts emphasizing human agency, such as praxis

and the necessity of self-determination and self-emancipation, are so core to the Marxist

framework,25 it follows that these elements are to be considered inexorable components of the

Marxist model of criminal justice.

In order to fully understand what envisioning a Marxist model would entail, it is

necessary to lay the foundation of the Marxist legal tradition in its historical context, and then in

explicitly Marxist terminology as such terms may relate to crime and criminal justice. Some of

this information may seem overly introductory for those who have studied Marx in any detail.

Nonetheless, it is intended for this piece to be digestible for a wide array of readers, many of

whom are less likely to have delved into the depths of Marx’s work—let alone the niche subject

of legal critiques and applications of Marx to law and criminal justice. We will journey first

through a brief history of Marxism as it relates to law and the legal systems purported to have

existed in the name of Marx, particularly the Soviet legal system. Following this historical

analysis, we will consider the specific tenets of Marxism and how those concepts may guide us

in constructing an authentic Marxist model of criminal justice. Next we will implement these

tenets in laying out a critique of each of the three phases of the American criminal justice

system: 1) the police, 2) the courts, and 3) the prisons. Finally, we will conclude with an attempt

at providing brief recommendations for constructing a Marxist criminal justice system. What

24 Id.

25 See Paul D’Amato, The Real Marxist Tradition, SocialistWorker.org (Dec. 12, 2013),

http://socialistworker.org/2003-2/479/479_10_MarxTradition.shtml (explaining the essentiality

of these and other components to the production of authentic Marxism, while using the presence

of such elements to distinguish it from inauthentic Marxism, such as Stalinism or Maoism).

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follows is intended to be an introductory overview of these concepts and systems. As a result,

the complexity of insight devoted to each section may appear somewhat limited. I encourage the

reader to follow the works cited herein and wade out further into the depths of the ideas and

methodologies of the Marxist tradition.

THE MARXIST LEGAL TRADITION

“Your very ideas are but the outgrowth of the conditions of your bourgeois production and bourgeois property, just as your jurisprudence is but the will of your class made into a law for all, a will whose essential character and direction are determined by the

economical conditions of existence of your class.”26 — Karl Marx

Karl Marx and Friedrich Engels were nineteenth century writers and political activists

who put forth the general theory of revolutionary communism and its transition period, more

commonly referred to as socialism.27 The understanding of these ideas and practices is nestled

more broadly under the banner of Marxism.28 A rudimentary explanation of the basic

methodology of Marxism could be expressed as follows: Capitalist society is divided into two

distinct classes—the working class and ruling class—whose attributes are defined by their

relation to the means of production.29 The means of production are the tools utilized to produce

the goods upon which society depends.30 The ruling class dominates ownership of the means of

production, while the working class is made to compete against one another at the individual

level, in effort to sell the greatest amount of their individual labor possible to the ruling class in

26 Karl Marx & Friedrich Engels, The Communist Manifesto, a Road Map to History’s Most

Important Political Document, 64 (Phil Gasper ed., Haymarket Books ed. 2005).

27 Id. at 9-14.

28 Id.

29 Id.

30 Id.

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exchange for a wage that represents the least possible amount of cost to the ruling class.31 This

struggle in labor represents an irresolvable conflict or contradiction in capitalism, as the value of

an individual laborer, a commodity to be exchanged for a wage, is alienated from the laborer’s

value as a human being.32 In order to effectuate meaningful and lasting change, the workers

must develop a sense of their own class-consciousness, organize collectively against the ruling

class to seize the means of production, and control the means of production democratically so

that the workers may enjoy the full fruit of their own labor.33

Marx and Engels were prodigious in their intellectual output, writing on virtually every

aspect of politics and economics—from critiques of governing authorities and the tedium of

inessential bureaucracy, to the labor and economic impetuses for determining how societies are

organized and the ineradicable conflicts that arise as a result of that organization.34 So it is with

no end of confusion and consternation that leftist jurists have been forced to bear with the

relative dearth of material from Marx and Engels on the subject of law and jurisprudence.35

Much of the information provided by Marx and Engels actually touching on the subject tends to

apply only tertiarily to the topic of law as it related at the time to private property, labor, finance

31 Id.

32 Id.

33 Id.

34 Id.

35 See R.W. Makepeace, Marxist Ideology and Soviet Criminal Law 11–12 (1st ed. 1980) (stating

that the task of writing on the subject of Marxist jurisprudence is made more complicated due to

the lack of material provided by Marx and Engels); see also Hugh Collins, Marxism and Law v

(1984) (articulating the author’s surprise at the lack of study dedicated to the subject).

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or economic crimes against the proletariat—most often mentioned only with regard to some

other aspect of the political economy and class oppression.36 This created some sense of doubt

among legal theorists and academics as to whether a substantive Marxist theory of law is even

discernable based on such scant source material.37 In fact, the subject of law and Marxism is so

36 See Bob Fine, Democracy and the Rule of Law: Liberal Ideas and Marxist Critiques 5 (2d ed.

1986) (noting that Marx’s attention to the analysis of jurisprudence was vastly outweighed by his

critique of political economy); see also R.W. Makepeace, Marxist Ideology and Soviet Criminal

Law 12–14 (1st ed. 1980) (providing that Marx and Engels wrote very little explicitly about law,

and much of the analysis must necessarily be deduced from their theories on the economic

structures of the state); Crime and Capitalism: Readings in Marxist Criminology 11 (David F.

Greenberg ed., 1st ed. 1981) (explaining that Marx and Engels did not provide a systematic

analysis of law and criminal justice); Csaba Varga, Marxian Legal Theory xiv–xv (Csaba Varga

ed., 1993) (detailing Marx and Engels’ lack of interest in the law, despite their educational

background in legal studies).

37 See, e.g., HUGH COLLINS, MARXISM AND LAW 9 (1984) (suggesting that a decidedly Marxist

legal theory may not even exist); Raymond A. Belliotti, Marxist Jurisprudence: Historical

Necessity and Radical Contingency, 4 CAN. J. L. & Jurisprudence 145 (1991) (positing that there

is not much of Marxist theory of law); Janet Campbell, An Analysis of Law in the Marxist

Tradition 3–4 (Studies in Political Science ed. 2003) (quoting Boaventura de Sousa Santos to

note that it is commonly stated that there is no Marxist theory of law); Hans Kelsen, The

Communist Theory of Law 12–13 (1955) (pointing out that Marx was largely dismissive of law

as bourgeois ideology); China Miéville, Between Equal Rights: A Marxist Theory of

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rarely touched upon in academia that some scholars have investigated the field of Marxist

jurisprudence while laboring under the belief that they were quite alone in the undertaking.38

In spite of Marx’s enduring relevance and applicability in the fields of sociology,

economics, and politics, the state of Marxist jurisprudence appears upon cursory inspection to be

a case of arrested underdevelopment.39 This condition is rendered all the more intimidating and

incomprehensible when one considers the efforts made by Soviet era jurists who tried to square

the circle in establishing a legal system that sought to make quasi-Marxist analyses conform to

the restrictions of a debased, debauched, gerontocratic, and dictatorial form of Soviet-style

communism.40 A few Soviet jurists protrude from this ideological wreckage, Evgeny Pashukanis

International Law 79 (Haymarket Books ed. 2006) (noting that the absence of an articulable

Marxist theory law is a barrier to establishing a systematic legal structure based on Marxism).

38 Marxism and Law 2 (Piers Beirne & Richard Quinney eds., 1982) (stating the editors’ belief

that their assemblage of writings was the only contemporary collection on the subject Marxist

jurisprudence).

39 See generally China Miéville, Between Equal Rights: A Marxist Theory of International Law

62 (Haymarket Books ed. 2006) (discussing the resurging Marxist critique in the wake of

expanding global capitalism and previous scarcity of Marxist legal scholarship).

40 See Hugh Collins, Marxism and Law 2, 144 (1984) (noting the general failure by Communist

states to offer any meaningful contributions to Marxist jurisprudence, and of the inherent

contradictions between Marxism and the nature of Soviet-style communism); see also R.W.

Makepeace, Marxist Ideology and Soviet Criminal Law 12–14 (1st ed. 1980) (decrying the

theoretical perversions and discordant attempts by Soviets theorists who sought to force isolated

fragments of Marxism into their distorted system of communism). See generally Christopher

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and Petr Ivanovich Stuchka among them, but the vast majority of their writings and research

dealt with aspects of jurisprudence that were largely unrelated to criminal law, nor were their

efforts directed significantly toward the actual establishment of a structurally sound justice

system in the new society.41 Pashukanis was a Russian attorney in the early decades of the

twentieth century following the Bolshevik Revolution.42 His primary contribution to Marxist

jurisprudence is represented in the development of his voluminous work, The General Theory of

Law and Marxism.43 Pashukanis’ theory attempted to draw from already existing legal forms

while incorporating explicitly Marxist principles to create a kind of socialist law of the transition

period, which was to be further developed and implemented during the time in which Soviet

society progressed toward full communism.44 Stuchka, who was a colleague and critic of

Hitchens, Hitch-22: A Memoir 98 (1st ed. 2010) (remarking on the gerontocratic, and therefore

patently un-Marxist, state of the Soviet Union).

41 See generally China Miéville, Between Equal Rights: A Marxist Theory of International Law

60–64, 77, 82–83 (Haymarket Books ed. 2006) (discussing the valuable contributions and, by

implication, the relative worth of Soviet jurists like Pashukanis and Stuchka compared with the

shameful and devastatingly suppressive legal enactments perpetrated by Andrey Vyshinsky);

HUGH COLLINS, MARXISM AND LAW 10, 13 (1984) (noting that Pashukanis’ contributions were

toward establishing a generalized theory of law and Marxism).

42 China Miéville, Between Equal Rights: A Marxist Theory of International Law 60–75–77

(Haymarket Books ed. 2006).

43 Hans Kelsen, The Communist Theory of Law 89 (1955).

44 China Miéville, Between Equal Rights: A Marxist Theory of International Law 79

(Haymarket Books ed. 2006); see also Michael Head, The Passionate Legal Debates of the Early

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Pashukanis,45 believed the law was solely a function of state oppression, and the law, in its

existing bourgeois form, did not provide a model from which the Soviet form could be

constructed.46 Stuchka also rejected the need for any distinction between a law of the transition

period and the regulatory functions required for society under full communism.47 The

complexity of Pashukanis’ and Stuchka’s arguments exceed our purpose here, but it is useful to

recognize there was an authentic attempt at constructing a viable Marxist theory of law in the

early years of the Soviet Union. It is possible that Pashukanis might have eventually constructed

a working theoretical model justice system that conformed or expanded logically from Marxist

methodology, but Josef Stalin saw an end to his work and life in 1937, during the great purges,

and branded Pashukanis an “enemy of the people” in the process.48 Stuchka was spared this fate

by having the fortune and good timing to pass away from natural causes before the purges

Years of the Russian Revolution, 14 CAN. J.L. & JURISPRUDENCE 3, 26 (2001) (describing

Pashukanis’ theory as the law of the transition period).

45 China Miéville, Between Equal Rights: A Marxist Theory of International Law 75 n.4

(Haymarket Books ed. 2006).

46 China Miéville, Between Equal Rights: A Marxist Theory of International Law 83 (Haymarket

Books ed. 2006).

47 Michael Head, The Passionate Legal Debates of the Early Years of the Russian Revolution, 14

CAN. J.L. & Jurisprudence 3, 26 (2001).

48 Piers Beirne & Robert Sharlet, Introduction to Evgeny Pashukanis, Selected Writings on

Marxism and Law, Marxists.org 273–301 (1980) available at

https://www.marxists.org/archive/pashukanis/biog/biogintro.

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began.49 Such was the state of affairs under Stalin,50 and that alone should serve reason enough

to merit dismissing the criminal justice model under Stalin and his successors, from

consideration here.

It is important to note that the veritable famine of work committed to the subject of

Marxist jurisprudence is, in many ways, a byproduct of design.51 Law, particularly criminal law,

was considered an intrinsic component of state sanctioned tyranny—a tool created by the ruling

49 See Michael Head, The Passionate Legal Debates of the Early Years of the Russian

Revolution, 14 CAN. J.L. & Jurisprudence 3, 26 (2001) (believing it all but certain that Stuchka

would have been executed along with Pashukanis had he lived that long); see also P.I. STUCHKA,

Selected Writings on Soviet Law and Marxism vii, xx (Piers Beirne et al. eds., 1988) (noting the

year of death as 1932, then implying that Stuchka might not have survived the Stalinst purges

had he lived any longer).

50 See generally Michael Head, The Passionate Legal Debates of the Early Years of the Russian

Revolution, 14 Can. J.L. & Jurisprudence 3, 25–26 (2001) (discussing instances in which Stalin

pressured, threatened, even executed the leftist jurists who failed to fall in line with Stalin’s

capricious concept of the Party and its renunciation of the universally Marxist concept that the

state should wither away).

51 See Janet Campbell, An Analysis of Law in the Marxist Tradition 1–7 (Studies in Political

Science ed. 2003) (pointing out that the concept of law was not necessarily intended to be an

element of Marxism, due to its theoretically limited shelf life upon the establishment of the

proletarian dictatorship).

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class and wielded by the state for the purpose of further disenfranchising the proletariat.52 As per

Marx, the entirety of the state and its legal apparatuses were eventually to wither away upon the

successful self-emancipation of the working class, more or less phasing itself out, as the

outmoded artifice of a reliquary construction.53 Contributing to the evident aversion of Marxists

to legal analysis is the fear of giving way to legal fetishism.54 Legal fetishism refers to any

conviction that the rule of law is necessary, autonomous, or even desirable in any fashion.55 For

52 Hugh Collins, Marxism and Law 27 (1984). See also Michael Head, The Passionate Legal

Debates of the Early Years of the Russian Revolution, 14 CAN. J.L. & JURISPRUDENCE 3, 21

(2001) (paraphrasing a Soviet jurist, Podvolotskii, in stating that law functions as a coercive

enforcement of the normative values established by the ruling class).

53 Hugh Collins, Marxism and Law 15 (1984). The concept of the withering away of law is

potentially Marx’s most notorious pronouncement. Id. See also Michael Head, The Passionate

Legal Debates of the Early Years of the Russian Revolution, 14 Can. J.L. & Jurisprudence 3, 26

(2001) (stating that the Soviets initially attempted to create the conditions by which the state

could begin to wither away until Stalin came into power and forcibly reversed Soviet consensus

on the necessity of this basic tenet of Marxism).

54 See Hugh Collins, Marxism and Law 10–14 (1984) (explaining the concept of legal fetishism

and general disdain among Marxists toward the natural “Rule of Law” and those who regard law

as a necessary institutional framework). See generally Andrew Vincent, Marx and Law, 20 J.L.

& SOC'Y 371, 380, 385 (1993) (highlighting in brief the general concern of being accused of

legal fetishism).

55 Raymond A. Belliotti, Marxist Jurisprudence: Historical Necessity and Radical Contingency,

4 Can. J. L. & Jurisprudence 145, 152 (1991).

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Marxists, the general purpose of law is to sanction the existing material relations between the

working class and the state, where law is considered the codified will of the bourgeoisie.56 This

very accusation was stated in no uncertain terms by Marx in the Communist Manifesto.57 A

belief in the necessity of law, to maintain social order and harmony, presupposes a rather nasty

and unscientific conception of the nature of man.58 Nevertheless, the notion that law may simply

cease, as if it were the victim of a massive coronary, seems plainly utopian on its face.59 It

follows that it would be likewise utopian, to believe the political economy could change

immediately upon the breach in some revolutionary watershed.60 The obvious truth of the matter

is in the concept’s nomenclature—the state does not vanish but merely withers as if from

atrophy, redundancy, or both.61 This, of course, was one of the great failings of the early Soviet

56 R.W. MAKEPEACE, MARXIST IDEOLOGY AND SOVIET CRIMINAL LAW 18 (1st ed. 1980)

(paraphrasing Engels in the Contribution to the Critique of Political Economy).

57 Karl Marx & Friedrich Engels, The Communist Manifesto, a Road Map to History’s Most

Important Political Document 9–14 (Phil Gasper ed., Haymarket Books ed. 2005).

58 See Hugh Collins, Marxism and Law 120 (1984) (writing that such a belief relies on the

supposition that man is naturally inclined to greed and selfishness).

59 Hugh Collins, Marxism and Law 15–16 (1984).

60 See R.W. Makepeace, Marxist Ideology and Soviet Criminal Law 25 (1st ed. 1980) (stating

that common sense gives the lie to this impossibility).

61 See id. (paraphrasing Engels in Anti-Duhring to explain that the state is not simply abolished,

but gradually erodes as post-revolutionary society moves towards an eventual state of

classlessness); see also Michael Head, The Passionate Legal Debates of the Early Years of the

Russian Revolution, 14 Can. J.L. & Jurisprudence 3, 9 (2001) (quoting Lenin from The State and

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Union, wherein the Bolsheviks attempted to hasten the necessary structural and industrial

preconditions, in order to sooner arrive at the final stateless, and classless destination.62 Given

the general hellishness of Russia in the years succeeding the Revolutions, it seems the

Bolsheviks were yoked to the chain of unrelenting circumstance and terminally bad luck.63 Had

conditions allowed for the organic growth of communism in Russia, and had the Bolshevik

revolution been emulated internationally, as they believed it would, the Soviet Union might have

gone through the protracted period of transition from capitalism to full communism, known in

Marxist parlance as socialism or vulgar communism.64 The laws and legal forms that developed

in response to these unique circumstances represented new contributions to Marxism, as

Revolution to show that the state is an impossible and unnecessary institution in a society that

lacks the usual class antagonisms).

62 See Id. at 7-9 (discussing the manner in which the Bolsheviks modified Marxism in order to

adapt the methodology to their circumstances, and later the perversions spearheaded by Stalin’s

doctrine of socialism in one state).

63 See generally Paul D’Amato, What happened to the Russian Revolution?, SocialistWorker.org

(Feb. 10, 2012), http://socialistworker.org/2012/02/10/what-happened-to-the-russian-revolution

(laying out the various external and internal calamities during in the early years of the Soviet

Union).

64 See generally Michael Head, The Passionate Legal Debates of the Early Years of the Russian

Revolution, 14 Can. J.L. & Jurisprudence 3, 7–9 (2001) (explaining that Lenin and Trotsky had

not intended for an immediate transition to full communism, but that they had fully expected

international revolution and a protracted temporary proletarian state).

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revolutionaries sought to incorporate Marxism into their legal analysis.65 To fully understand

these contributions, it is necessary to first examine some of the more classically Marxist concepts

and the manner in which those ideas naturally bear relation to law.

Historical Materialism & the Dialectic

Marx’s critique of capitalist society, from economics to its jurisprudence, revolves

around the concept of historical materialism.66 Materialism is the element of Marxism that sets it

apart from crude philosophy in its rejection of any measure of idealism.67 In terms of a legal

analysis, the materialist jurist should concern oneself with the social and economic imperatives

that drive and “direct the course of legal development,” as opposed to the letter of the law, which

is a socially produced construct in the idealist sense.68 The law as it is written is only a matter of

words, but to study the machinations that gave rise to the law, the manner in which the law is

carried out, and how that law affects our objective reality, is to examine law as a materialist.69

65 CHINA MIÉVILLE, BETWEEN EQUAL RIGHTS: A MARXIST THEORY OF INTERNATIONAL LAW 60

(Haymarket Books ed. 2006).

66 HUGH COLLINS, MARXISM AND LAW 17 (1984); MICHAEL J. LYNCH ET AL., THE NEW PRIMER IN

RADICAL CRIMINOLOGY: CRITICAL PERSPECTIVES ON CRIME, POWER & IDENTITY 25 (3d ed.

2000).

67 See HUGH COLLINS, MARXISM AND LAW 17 (1984) (explaining the distinction between

materialism and idealism).

68 See ANTHONY CHASE, LAW AND HISTORY 20, 28 (New Press ed. 1997) (discussing the

meaning of materialism as it relates to jurisprudence).

69 See generally, OLUFEMI TAIWO, LEGAL NATURALISM: A MARXIST THEORY OF LAW 30–32 (1st

ed. 1996) (providing an account of historical materialism); CHINA MIÉVILLE, BETWEEN EQUAL

21

This emphasis on historical materialism has given rise to assertions that Marx was a historical

determinist.70 The truth of that matter is that Marx, while acknowledging history, has in some

part, actually emphasized human agency above all else.71 This is the heart of materialism, the

production and reproduction of the events by human self-action.72 The particular form of human

action Marx analyzed is that of the interaction between the bourgeois and the proletariat—the

ruling and working classes, respectively—and relationship of the proletariat, to the means of

production.73 Instead of analyzing these groups as sociological abstractions, Marx held that the

relation of these classes, to the means of production must be considered in light of the present

RIGHTS: A MARXIST THEORY OF INTERNATIONAL LAW 4–8 (Haymarket Books ed. 2006)

(discussing historical materialism and its relation to law and legal structures); ANTHONY CHASE,

LAW AND HISTORY 20, 28 (New Press ed. 1997) (examining the meaning of materialism as it

pertains to jurisprudence).

70 MIÉVILLE, Supra, at 4–8 (Haymarket Books ed. 2006); But see CHRISTOPHER HITCHENS,

HITCH–22: A MEMOIR 111 (1st ed. 2010) (refuting the charge of determinism). Contra Eric

Engle, Human Rights According to Marxism, 65 GUILD PRAC. 249 (2008) (claiming that

Marxism is deterministic due to its overreliance on economic forces of production that serve as

the guiding historical motivator).

71 CHRISTOPHER HITCHENS, HITCH-22: A MEMOIR 111 (1st ed. 2010).

72 See CHINA MIÉVILLE, BETWEEN EQUAL RIGHTS: A MARXIST THEORY OF INTERNATIONAL LAW

5 (Haymarket Books ed. 2006) (paraphrasing John Rees in The Algebra of Revolution).

73 MICHAEL J. LYNCH ET AL., THE NEW PRIMER IN RADICAL CRIMINOLOGY: CRITICAL

PERSPECTIVES ON CRIME, POWER & IDENTITY 20–23 (3d ed. 2000).

22

mode of production—capitalism.74 The implications of this argument extend beyond the

common tools of industry and factory labor, and into the realm of jurisprudence.75 Legislators

and the judiciary, comprised of the bourgeoisie, use the law as an instrument to maintain class

antagonism, by preserving the economic order and relations of the people to the means of

production.76 Crime control and law enforcement, often capricious and arbitrary, are methods

used to preserve class divisions and regularly emphasize the protection of private property at the

expense of the welfare of the people.77 Further, crime can be expressed in material terms as a

function of supply and demand.78 Society has a demand for crime, to which supply corresponds,

and gaps in society are filled by new criminals, new inmates, and new executees.79

The next aspect of Marx’s materialism is the dialectic. If historical materialism is the

foundation of Marxism, then the dialectic is the means by which we can come to understand the

way social change occurs.80 The bulk of Marx’s work centers on the dialectic, so it is

74 Id.

75 See Id. at 21 (discussing the law as a means of maintaining class divisions).

76 See Id. at 20-23 (explaining the relationship of Marx’s class analysis to law).

77 See generally KRISTIAN WILLIAMS, OUR ENEMIES IN BLUE: POLICE POWER IN AMERICA (South

End Press ed. 2007) (expounding upon the role of law enforcement as anathema to the working

class).

78 R.W. MAKEPEACE, MARXIST IDEOLOGY AND SOVIET CRIMINAL LAW 30 (1st ed. 1980).

79 Id.

80 See V.G. AFANASYEV, DIALECTICAL MATERIALISM 13 (1987) (quoting Marx to explain

dialectical materialism as a method for changing, rather than merely interpreting the world).

23

exceedingly difficult to give full justice to the concept in such short space.81 Nevertheless, a

simple, if overly simple, definition of the dialectic is as follows: the dialectic is the

understanding of “contradictions and their resolution through a transcendence or overcoming.”82

The dialectic, then, is the organizing principle for Marxists.83 When internal contradictions

cannot be resolved from within the confines of the existing social order, we consider that

circumstance to be dialectical.84 This is an intrinsic contradiction because the conflict is specific

to the present societal configuration; therefore, the only way to resolve these contradictions is

through the creation of a new social form.85 For Marxists, the new form represents the

revolutionary shift from capitalism to communism.86 This, it seems, supports the Marxist

aversion to law because the dialectic analysis posits that law, in its present bourgeois form,

cannot facilitate the ushering in of a new social form, since the purpose of law is to preserve the

81 Raymond A. Belliotti, Marxist Jurisprudence: Historical Necessity and Radical Contingency,

4 CAN. J. L. & JURISPRUDENCE 145, 151–52 (1991).

82 CRIME AND CAPITALISM: READINGS IN MARXIST CRIMINOLOGY 498 (David F. Greenberg ed.,

1st ed. 1981).

83 V.G. AFANASYEV, DIALECTICAL MATERIALISM 13 (1987).

84 CRIME AND CAPITALISM: READINGS IN MARXIST CRIMINOLOGY 317 (David F. Greenberg ed.,

1st ed. 1981).

85 Id.

86 See Richard Wolff, A Socialism for the 21st Century, RDWOLFF.COM (June 11, 2013),

http://rdwolff.com/content/socialism-21st-century (discussing this issue in the subsection entitled

“What to Do Now”).

24

current configuration.87 We can begin to grasp the dialectical method as an understanding of the

history of conflicts between opposing views and classes, as well as the struggle to synthesize

these views into an ascertainable truth.88 This understanding is called dialectical materialism.89

To gain full comprehension, it may be necessary to illustrate this method in strictly legal

terms. Let us consider the offense of prostitution. Prostitution is a form of labor in the Marxist

sense, more broadly known as “sex work” in the parlance of modern Marxist-feminism.90

Prostitution is also outlawed in the United States.91 This is an example of criminalizing labor,

simply because it does not fit within the culturally accepted strata, but the Marxist analysis

doesn’t end by merely pointing out this contradiction.92 The Marxist critique considers the

conflict between women laboring in sex work, marginalized, and disenfranchised, as a result of

87 CRIME AND CAPITALISM: READINGS IN MARXIST CRIMINOLOGY 317 (David F. Greenberg ed.,

1st ed. 1981).

88 Raymond A. Belliotti, Marxist Jurisprudence: Historical Necessity and Radical Contingency,

4 CAN. J. L. & JURISPRUDENCE 145, 151–52 (1991).

89 V.G. AFANASYEV, DIALECTICAL MATERIALISM 14 (1987).

90 See Melissa Gira Grant, Let’s Call Sex Work What It Is: Work, THE NATION (Mar. 5, 2014),

http://www.thenation.com/article/178683/lets-call-sex-work-what-it-work (providing an analysis

of sex work at the intersection of Marxist labor politics and feminism).

91 18 U.S.C. § 2421 (2014).

92 See Cara Beusman, Demonizing Sex Work Harms Sex Workers, JEZEBEL.COM (Mar. 6, 2014),

http://jezebel.com/demonizing-sex-work-harms-sex-workers-1537828241 (emphasizing further

the need to recognize sex work in all its forms as a legitimate form of labor).

25

the laws prohibiting the conduct, against the ruling class that legislates against their interests.93

Further, laws implemented with the professed intent of protecting women in the sex industry,

such as broad laws against human trafficking, actually have the effect of further alienating

women and their lived experiences in the sex industry.94 To consider this issue dialectically is to

consider the intent of the legislators, expressed or otherwise, the law as it is written, and the

effects the law and its implementation have on the people.95 Where the law creates

contradictions, or where law creates conflict between class interests, that conflict is said to be

dialectical because such conflicts cannot be remedied by creating new laws or lessening the

restrictions of preexisting laws—it requires fundamental change in the law and all laws.96

Alienation, Exploitation, & False Consciousness

A predominant explanation for the occurrence of crime is believed to come from the

school of thought stemming from Emile Durkheim known as anomie theory, which may be more

93 Charlotte Shane, Invisible Sex Workers, JACOBIN (May 14, 2014),

https://www.jacobinmag.com/2014/05/invisible-sex-workers/.

94 Alana Massey, Keeping Sex Workers Quiet, JACOBIN (Nov. 2, 2014),

https://www.jacobinmag.com/2014/11/keeping-workers-quiet/.

95 See generally ANTHONY CHASE, LAW AND HISTORY 20, 28 (New Press ed. 1997) (offering an

explanation of dialectic contradictions inherent within the law and legal structures).

96 CRIME AND CAPITALISM: READINGS IN MARXIST CRIMINOLOGY 8–9 (David F. Greenberg ed.,

1st ed. 1981). (“A process is dialectical when it is based on an inner contradiction that cannot be

reconciled within an existing set of relationships. Because the contradiction is inherent . . . it can

only be resolved by creating a new social form.”).

26

clearly understood as the theory of alienation, articulated by Marx.97 The concept of alienation,

as stated earlier, concerns the working class’ alienation from the product of its labor.98 Workers

produce products for consumption, but those workers have no connection to the product once it’s

produced, or to the value for which it is sold.99 As a result, the worker is unable to identify his

labor from any other indistinct portion of the physical machinery itself—owned by the capitalists

and employed to serve their ends.100 Marx believed that humans are naturally inclined toward

socialization and creativity, but the alienation of labor, under capitalism, separates the workers

from their natural state and orients them instead around their economic life, which becomes the

dominant focus.101 The worker does not experience anything relatively close to the full financial

benefit his product, which results in profit for the capitalist, and this profit is the representation

of exploited labor.102 Exploitation is what the worker experiences when his labor has been sold

97 See Id. at 8–9; see also CHRISTOPHER HITCHENS, HITCH-22: A MEMOIR 98 (1st ed. 2010)

(remarking on the origin of anomie in Durkheim, then briefly comparing the concept to the

Marxist understanding of alienation and class relations).

98 KARL MARX & FRIEDRICH ENGELS, THE COMMUNIST MANIFESTO, A ROAD MAP TO HISTORY’S

MOST IMPORTANT POLITICAL DOCUMENT 9–14 (Phil Gasper ed., Haymarket Books 2005) (1848).

99 PETER OSBORNE, HOW TO READ MARX 51–52 (First American ed. 2006).

100 PAUL D’AMATO, THE MEANING OF MARXISM 70 (2006).

101 Mark Cowling, Can Marxism Make Sense of Crime? 2 GLOBAL DISCOURSE: AN INTERDISC. J.

OF CURRENT AFF. & APPLIED CONTEMP. THOUGHT 59, 62 (2011).

102 Raymond A. Belliotti, Marxist Jurisprudence: Historical Necessity and Radical Contingency,

4 CAN. J. L. & JURISPRUDENCE 145–46 (1991).

27

for less than the use value of his labor.103 As workers lack the ability to bargain for their wages,

on equal ground with their employers, the workers are essentially forced to do labor for the

offered wage, with minimal room for adjustment.104 If the worker is unable to meet his

subsistence requirements, based on that wage or sum total income from multiple lawful forms of

labor, the worker seems left with only unlawful remedies, in order to supplement his lawful

income.105 But there are those workers who, rather than appearing alienated or attempting to

push back against the system that exploits their labor, affirmatively endorse the interests of the

ruling class.106 This condition can be understood as a form of “false consciousness,” wherein

workers embrace ethics that are counter to their class interests—from the more common labor

competition and individualism, to the more extreme forms of racism and sexism.107 These

sentiments are contradictory to the class interests of the laborers, because they serve to fragment

and decollectivize the workforce, which, but for these conflicts, might organize against the

103 See Id. at 146. (“[E]xploitation’ occurs when someone uses another person as merely an

object for her own benefit without regard for the humanity of that person.”).

104 Id. at 147.

105 Id. But see Mark Cowling, Can Marxism Make Sense of Crime?, 2 GLOBAL DISCOURSE: AN

INTERDISC. J. OF CURRENT AFF. & APPLIED CONTEMP. THOUGHT 59, 62 (2011) (noting that the

explanation of alienation and exploitation as a source of crime was not put forward by Marx

himself, but is an extrapolation of Marx by others who have adapted Marxism to the problem of

crime, and perhaps an inaccurate extrapolation at that).

106 Id. at 150.

107 Id. at 147.

28

bosses.108 For Marxists, these concepts may provide an explanation for why the poor commit

crime.109 Two causes of criminality have been identified in relation to alienation and

exploitation: (1) the working class is exploited and deprived access to much of society’s surplus

goods and services; and (2) competitive capitalism encourages and reinforces normative values

of greed and selfishness, which drives commodity fetishism and other covetous sentiments.110 In

essence, the working class cannot attain the things they’re culturally instructed to value, or

achieve the legitimate stations that would allow them to acquire those goods or services, so a

natural outcome of this conflict may be theft, for instance, or other offenses to varying degrees of

severity.111 The criminal is alienated, in a sense, because the egoism and greed of the ruling class

is essentially legalized or normative, while the exact or similar behavior performed by the

working class is prohibited and punished harshly.112

The Lumpenproletariat

The lumpenproletariat is a contentious subject, in the realm of Marxist legal scholarship,

but it remains one of the few concepts Marx addressed that spoke directly to issue of crime and

criminals.113 Therefore, aspects of the lumpen category, whether one even recognizes it as a

108 Id. at 147-148.

109 Jeffrie G. Murphy, Marxism and Retribution, 2 PHIL. & PUB. AFF. 217, 231–43 (Spring 1973),

http://www.jstor.org/stable/2264911.

110 Id. at 234–35.

111 Id. at 231–43.

112 Id. at 236.

113 Mark Cowling, Marx’s Lumpenproletariat and Murray’s Underclass: Concepts Best

Abandoned? 9, originally in MARX’S EIGHTEENTH BRUMAIRE: (POST)MODERN INTERPRETATIONS

29

distinct category, present requisite matters for discussion.114 In 1972, socialist Hal Draper

authored the premier account of the lumpenproletariat, as various misleading and mistranslated

renditions of the phrase began occurring amidst revolutionary discussions and publications.115

Draper wrote, speaking for Marx, that the lumpenproletariat was an ill-defined constituent of

parasitic elements—social scum, counterrevolutionaries, and vagabonds “capable of the basest

banditry and foulest corruption.”116 This sedimentary class excrement, according to Marx, was

not to be recruited by leftists into the ranks of the revolutionary working class.117 In an instance,

where they had been mistakenly brought on as part of the revolutionary contingent, the

lumpenproletarians resorted to looting the jewelry shops and committing acts of senseless

property damage.118 Draper offers that the lumpenproletariat, is the product of developed

capitalism and the existing social order, as opposed to a prerequisite for its construction.119

Further, Draper recognizes in Marx’s writing that the lumpenproletariat character is not bound

(Mark Cowling & James Martin eds., 2002)

http://icspt.uchicago.edu/papers/2002/cowling02.pdf.

114Id. at 9; see Hal Draper, The Concept of the “Lumpenproletariat” in Marx and Engels, 6

ECONOMIES ET SOCIÉTÉS 2285 (1972) (noting that the lumpenproletariat may not refer to any

particular class of workers at all).

115 Id.

116 Id. at 2294–95.

117 Id. at 2298–301.

118 Id. at 2301.

119 Id. at 2303–04.

30

solely to the confines of the working class, but also found in the ranks of the bourgeoisie.120

Marx considered these lumpen-bourgeois to be likewise parasitic and socially functionless, but

found in the finance aristocracy of beneficiaries, inheritors, and “hangers on of the rich and

powerful.”121 This is a significant analysis, because it seems to identify the criminal class

responsible for the various Wall Street and banking catastrophes that have befallen the United

States, over the last century. In addition, the phrase “hangers on of the rich and powerful,” seems

to implicate the low-to-mid-level bureaucrats, and other agents of the state, who do not

personally belong to the ranks of the ruling elite.122 Later, we will consider the position of the

police in relation to the lumpenproletariat, and determine whether such a classification may be

more apt, when describing the manner in which officers are employed to act against their class

interests.

Base & Superstructure

Briefly, it may be somewhat necessary to explain Marx’s concept of base and

superstructure, and identify where the legal structures reside within those two categories.123 The

base and superstructure analysis has been criticized, perhaps rightly, as being too vague and

underdeveloped to be an empirical contribution to the Marxist critique of capitalism.124 The base

120 Id. at 2305.

121 Id. at 2306–07.

122 Id. at 2306–07.

123 See HUGH COLLINS, MARXISM AND LAW 78–81 (1984) (covering an in-depth analysis of

Marx’s concept of base and superstructure).

124 Lee Goldstein, High Theory And Low Practice: A Dream And Five Theses On Being A Left

Lawyer And Legal Worker, 8 UNBOUND: HARV. J. LEGAL LEFT 133, 146-50 (2012-2013).

31

and superstructure configuration, is used to signify the relationship between the mode of

production. and political and ideological function of the state in a capitalist society.125 In

essence, Marx believed that the mode of production, capitalism, represents the economic base,

while politics and ideology represents the superstructure.126 The superstructure is molded by the

economic base, which then provides context to our thoughts and experiences.127 The question

for Marxists is where the law is situated in this analysis.128 The face-value answer suggests that

law is necessarily part of the superstructure, as it is a part of political schema, acting in

preservation of the capitalism.129 Marx even wrote that society’s economic structure is what

drives the legal and political superstructure.130 Notwithstanding, scholars and proponents of

natural law have suggested that law is actually part of the economic base, as the mode of

production itself adheres to certain laws of ownership.131 The debate itself is somewhat

unremarkable, as it relates to criminal law, but readers would be well served to be aware of the

concept and its origin in Marxism. For our purposes, let us assume that the realm of criminal law

125 Raymond A. Belliotti, Marxist Jurisprudence: Historical Necessity and Radical Contingency,

4 CAN. J. L. & JURISPRUDENCE 145, 147–48 (1991).

126 Id.

127 Id.

128 Mark Cowling, Can Marxism Make Sense of Crime? 2 GLOBAL DISCOURSE: AN INTERDISC. J.

OF CURRENT AFF. & APPLIED CONTEMP. THOUGHT 59, 66 (2011).

129 Id.

130 Id.

131 See G. A. Cohen, Base and Superstructure: A Reply to Hugh Collins, 9 OXFORD J. LEGAL

STUD. 95 (1989) (providing a broader discussion of this issue).

32

is set in the superstructure, and the economic base informs the shape of the superstructural legal

system in America.132 This may be more helpful for the sake of clarity, because it allows us to

observe the manner in which criminal law is used as a tool that has been shaped in the

superstructure, and wielded for the preservation and advancement of the capitalist mode of

production.133

MARXISM AND THE THREE STAGES OF CRIMINAL JUSTICE

The Marxist critique of criminal justice under capitalism offers a sharp analysis of each

stage in the tripartite justice system: 1) policing; 2) the courts; and 3) the penal system.134 It is

important, in constructing the appraisal of capitalist justice that Marxists remain critical of the

132 Julius Stone, L'etat, C'est Moi L'etat Est Mort! A Retrospect On Soviet Marxist Theorizing On

State And Law, 10 UCLA L. REV. 754 (1962-1963). “[L]aw is merely part of the cultural, ethical,

political and legal superstructure, wholly determined by the economic arrangements of a class-

dominated society.” Id.

133 See generally LYNCH, supra note 6, at 20–23 (explaining the relationship of Marx’s class

analysis to law).

134 See Id. at 8–17. (offering a brief summary of the Marxist critique from the perspective of

radical criminology).

33

legal systems that have operated, however fraudulently, under the banner of Marxism.135 To that

end, each section will be accompanied by a brief assessment and comparison to the Soviet

model. By no means could it be suggested that the Soviet model is at all viable or preferable, but

it is worthwhile to draw comparisons, if only, to distinguish the system employed in the Soviet

Union, from any of the ideas and methodology actually attributable to Marx.136 It is important to

note, much of the information regarding the legal structures, in early years, following the

October revolution is fragmented, due to the lack of statistics gathered on the topic of crime, and

general disinterest with the law and court system.137 As a result, the analysis of the Soviet model

may seem limited, or even perfunctory in some sections.

The Police

“I have no particular love for the idealized ‘worker’ as he appears in the bourgeois Communist’s mind, but when I see an actual flesh-and-blood worker in conflict with his natural enemy, the policeman, I do not have to ask myself which side I am on.”138 — George Orwell

It is commonly asserted that the police, particularly an armed police force, are necessary,

and even desirable, in a civilized society.139 According to Gallup polls, performed yearly since

135 CHINA MIÉVILLE, BETWEEN EQUAL RIGHTS: A MARXIST THEORY OF INTERNATIONAL LAW 60–

64 (Haymarket Books ed. 2006).

136 See generally Id. (providing a summary dismissal of the Soviet legal system, while pointing

out the wholesale disconnect between that system and Marxism).

137 MAKEPEACE, supra note 35, at 49–55, 79.

138 GEORGE ORWELL, HOMAGE TO CATALONIA 124 (Harcourt ed. 1980).

34

139 LYNCH, supra note 6, at 145; see also Michael Medved, Slow down, police are the good guys,

USA TODAY (Aug. 21, 2014, 6:03 AM),

http://www.usatoday.com/story/opinion/2014/08/21/police-militarization-ferguson-crime-

violence-justice-bureau-column/14307505/ (arguing that police are a force for good in the U.S.,

and necessary agents in the continued survival of “African-Americans”). See generally Steve

Adubato, By Any Means Necessary: Do We Need Police In Schools?, N.J. MONTHLY (Feb. 11,

2013), http://njmonthly.com/articles/towns_and_schools/steve-adubato-only-in-nj/by-any-

means-necessary.html (intimating that an armed police presence in schools may be necessary to

preserve the safety of the children); Heather MacDonald, New York’s Indispensable Institution,

CITY JOURNAL (July 11, 2009) http://www.city-journal.org/2009/nytom_nypd.html (describing

the correlation between economics and law enforcement in New York City, and concluding that

the police are an indispensable element for continued economic growth); Timothy Roufa, Does

Society Still Need Law Enforcement? If So, What Is It Worth?,

CRIMINOLOGYCAREERS.ABOUT.COM (Nov. 18, 2012)

http://criminologycareers.about.com/b/2012/07/12/does-society-need-law-enforcement-if-so-

what-is-it-worth.htm (discussing the historical necessity of the police in relation to their salary);

Jazz Shaw, The “militarization” of police was not only inevitable, but necessary, HOTAIR.COM

(Aug. 16, 2014) http://hotair.com/archives/2014/08/16/the-militarization-of-police-was-not-only-

inevitable-but-necessary/ (concluding that the militarization of the police is necessary to combat

the armed criminals who outnumber them).

35

1993, a majority of Americans polled have expressed confidence in the police every year.140

Even during periods of turmoil and conflict between the police and the citizenry, such as the year

following the Los Angeles riots of 1992,141 or the years featuring clashes between police and

Occupy Wall Street protestors,142 Americans have routinely polled positively in favor of the

police.143 Critiques of law enforcement have become commonplace, following the events of

police violence in Ferguson, MO and elsewhere,144 and perhaps 2015 might finally be year to

when this unbroken chain of police confidence finally begins to show its rust.145 Nevertheless,

staunch confidence in law enforcement is to be understood, as Americans are more or less

140 Confidence in Institutions, GALLUP (June 5–8, 2014),

http://www.gallup.com/poll/1597/confidence-institutions.aspx.

141 Scott Martelle, Rodney King and the L.A. riots: When 20 years can seem like yesterday, L.A.

TIMES (Apr. 21, 2012, 2:54 PM), http://latimesblogs.latimes.com/jacketcopy/2012/04/rodney-

king-and-the-la-riots-when-20-years-can-seem-like-yesterday.html.

142 Rebecca Solint, The truth about violence at Occupy, SALON (Feb. 21, 2012, 4:04 PM),

http://www.salon.com/2012/02/21/the_truth_about_violence_at_occupy/.

143 See Confidence in Institutions, GALLUP (June 5–8, 2014), (directing the reader’s attention

particularly to the polls performed on March 22–24, 1993, and June 1–4, 2013).

144 E.g., Harold Meyerson, Ferguson’s lawlessness is not a big surprise, WASH. POST (Nov. 26,

2014), http://www.washingtonpost.com/opinions/harold-meyerson-in-ferguson-lawlessness-

bred-lawlessness/2014/11/26/2d1f0c0c-7595-11e4-a755-

e32227229e7b_story.html?postshare=1881417091657708.

145 See Id.

36

conditioned to view police violence as a something that happens in isolation,146 while other

police supporters tend to chalk criticism of law enforcement up to an overemphasis on just a few

bad apples on the force.147 In light of mounting civil unrest, some commentators have felt

obliged to speak out in favor of reforms and other remedies aimed at issues, including concerns

of racism.148 There remains a possibility that issues are at last coming to a head, and even

President Obama has been compelled to speak and act on the racial biases, so prevalent amongst

police officers.149 President Obama found it necessary to intervene when, on December 18,

2014, an Executive Order was issued establishing the “President's Task Force on 21st Century

146 WILLIAMS, supra note 77, at 8–9.

147 Joel Hughes, There are no "bad apple" police officers, THE DENVER POST (Feb. 14, 2015,

5:00 PM), http://www.denverpost.com/voices/ci_27521364/there-are-no-bad-apple-police-

officers. (“Yet, nearly every time someone criticizes the police, someone else counters with the

argument that we are unjustifiably fixing our attention on ‘a few bad apples.’”). Id.

148 Timothy Lynch, 2015 can be the year of criminal justice reform, WASH. EXAMINER (Feb. 9,

2015, 5:00 AM), http://www.washingtonexaminer.com/2015-can-be-the-year-of-criminal-

justice-reform/article/2559732; see, e.g., José Martín, Policing is a Dirty Job, But Nobody's

Gotta Do It: 6 Ideas for a Cop-Free World, ROLLING STONE (Dec. 16, 2014),

http://www.rollingstone.com/politics/news/policing-is-a-dirty-job-but-nobodys-gotta-do-it-6-

ideas-for-a-cop-free-world-20141216 (presenting ideas aimed at reforming).

149 Dave Boyer, Obama says police training needed to reduce their racial ‘bias’, THE WASH.

TIMES (Jan. 22, 2015) http://www.washingtontimes.com/news/2015/jan/22/obama-says-police-

training-needed-reduce-their-rac/.

37

Policing.”150 Nevertheless, the task force’s interim findings, and reform recommendations, fail

to address the functional and substantive deficiencies of the American model of policing.151

Despite the reforms recommended by the task force, up to now, the recommendations would still

leave the role of community mediator largely, if not exclusively, in the hands of the police.152

But it is not enough to state simply that law enforcement officers have exhibited a

marked tendency toward practices that are racist,153 sexist,154 homophobic, transphobic,155 and

150 Interim Report of the President’s Task Force on 21st Century Policing, PRESIDENT’S TASK

FORCE ON 21ST CENTURY POLICING 83 (Mar. 2015),

http://www.cops.usdoj.gov/pdf/taskforce/Interim_TF_Report.pdf.

151 Alex S. Vitale, Obama’s Police Reforms Ignore the Most Important Cause of Police

Misconduct, THE NATION (Mar. 6, 2015), http://www.thenation.com/article/200409/obamas-

police-reforms-ignore-most-important-cause-police-misconduct.

152 Id..

153 Reddit Hudson, Being a cop showed me just how racist and violent the police are. There’s

only one fix., THE WASH. POST (Dec. 6, 2014)

http://www.washingtonpost.com/posteverything/wp/2014/12/06/i-was-a-st-louis-cop-my-peers-

were-racist-and-violent-and-theres-only-one-fix/; see also Charlene Carruthers, Black Future

Month: End the Anti-Black Police State, HUFFINGTON POST (Feb. 3, 2015, 11:27 AM),

http://www.huffingtonpost.com/charlene-carruthers/end-the-antiblack-police-

_b_6604488.html?ncid=fcbklnkushpmg00000047 (pointing out the persistent and pervasive

mistreatment of blacks by law enforcement).

38

Islamophobic,156 all while developing a growing penchant for thuggish violence.157The Marxist

critique must analyze law enforcement in its totality, as an institution, and its relation to the

capitalist mode of production.158 A Marxist must ask how the police contribute to the

154 Joy Diaz, Sexist Comment by Austin Police Officer: Isolated Incident or Part of Broader

Culture?, KUT.ORG (Dec. 18, 2014, 2:21 PM), http://kut.org/post/sexist-comment-austin-police-

officer-isolated-incident-or-part-broader-culture.

155 Walter Armstrong, Brutality in Blue, AMNESTY INTERNATIONAL (Mar. 27, 2007),

http://www.amnestyusa.org/node/87367; see also Amnesty International, STONEWALLED:

POLICE ABUSE AND MISCONDUCT AGAINST LESBIAN, GAY, BISEXUAL AND

TRANSGENDER PEOPLE IN THE U.S. 2–4 (2005), http://www.streetwiseandsafe.org/wp-

content/uploads/2011/01/StonewalledAI.pdf (analyzing the extent of police violence and

misconduct directed toward LGBTQ people); accord George Gillett, We need to talk about

homophobia in the police, THE INDEPENDENT (July 23, 2014),

http://www.independent.co.uk/voices/comment/we-need-to-talk-about-homophobia-in-the-

police-9614725.html (examining the same issue as it relates to the United Kingdom and drawing

similar conclusions).

156 Tom McKay, Meet the Women Suing a Michigan Police Department and Standing Up

Against Islamophobia, POLICYMIC (Jan. 25, 2015), http://mic.com/articles/109116/meet-the-

women-suing-a-michigan-police-department-and-standing-up-against-islamophobia.

157 Noah Berlatsky, When Chicago Tortured, THE ATLANTIC (Dec. 17, 2014, 11:59 AM),

http://www.theatlantic.com/national/archive/2014/12/chicago-police-torture-jon-burge/383839/.

158 David Whitehouse, Law and the Rise of Capitalism, WORKS IN THEORY (July 16, 2014),

http://worxintheory.wordpress.com/2014/07/16/law-and-the-rise-of-capitalism/.

39

preservation of the existing capitalist mode of production.159 In essence, the question to be posed

is, whether law enforcement is inherently classist, and not merely anti-poor, as a matter of

unintended consequence.160 Law enforcement and policing has long functioned as a method

employed to control the working class.161 The police have been implemented as a tool of state-

sanctioned violence, used to protect the interests of the ruling class and the preservation of

capitalism.162 While many Americans believe the police to be the standing guard between the

public and criminals, the reality is that the purpose of the police is to serve as the gatekeepers of

social peace for capitalists.163 In fact, the modern police developed largely in response to

capitalism, as industrialization and the shifting mode of production rendered obsolete the prior

methods of social control.164 The police emerged as a centralized unit post-1829, as officers

became divorced from their previous working class consciousness, and began to identify their

duty with the interests of private property and preserving order.165 The police became part of the

evolving capitalist infrastructure, and their social and financial interests grew ever entwined with

159 Id.

160 See generally Kristian Williams, The Demand for Order and the Birth of Modern Policing,

MONTHLYREVIEW.ORG (Dec. 2003), http://monthlyreview.org/2003/12/01/the-demand-for-order-

and-the-birth-of-modern-policing/ (providing an analysis of the caustic relationship between the

poor and the police).

161 WILLIAMS, supra note 77, at 105.

162 LYNCH, supra note 6, 145.

163 Id.

164 Id.

165 Id. at 145–46

40

ensuring that the system of capitalism would not fail.166 When workers tried to rebel against

their bosses, the police proved virulently anti-labor, aligned themselves with the interests of the

bosses, and engaged in countless acts of strike-breaking and arrests of labor demonstrators for

spurious “public-order offenses.”167 As organized labor and strikes have become virtually

nonexistent, police began to favor policies that are anti-black, and consequently anti-poor.168 On

March 1, 2015, police in Los Angeles shot and killed a homeless man, Charley Robinet, for

reasons that remain in dispute.169 Officers claim Robinet was going for a gun, but eyewitnesses

and video evidence plainly suggest otherwise.170 The reality is that Robinet is merely the most

recent, in a long line of police attacks upon the poor and homeless throughout the country, all in

effort to protect the interests of private property in Los Angeles and other cities where the poor

and homeless have been forced to congregate in greater numbers.171 And that is ultimately

where the Marxist critique establishes itself apart from other analyses of law enforcement. The

clearest illustration of law enforcement serving the interests of class lies in its utter inability, or

166 WILLIAMS, supra note 77, at 25.

167 Id. at 147–48.

168 See Jason Farbman, Breaking Broken Windows, SOCIALISTWORKER.ORG (Jan. 7, 2015),

http://socialistworker.org/2015/01/07/breaking-broken-windows (addressing the “broken

windows” theory and its effect on modern policing and black communities).

169Michael Brown, Enemies in Blue, JACOBIN (Mar 4, 2015),

https://www.jacobinmag.com/2015/03/police-killing-homeless-los-angeles-capitalism/.

170Id.

171Id.

41

disinterest, in policing the behavior of anyone save the poor and socially immobile.172

Corporations are expected to police themselves, despite overwhelming evidence of the horrors

and atrocities attributable to unregulated corporate misconduct—from wide scale instances of

toxic pollution and contaminations, withholding the information related to the lethal effects and

byproducts of such pollutants and contaminants, to coordinating attacks on union members and

striking workers, and orchestrating the establishment of sweatshops and the displacement of

indigenous populations.173 The police simply do not hold the finance class to account, either

because they do not want to, or because they are directed away from these larger issues by the

people whose class interests are likewise antithetical to those of the working poor.174 The police

are also willfully obfuscatory and incapable of policing themselves, or turning over honest data

and statistics for review.175 Whatever the rationale, it is plain that the needs of the poor are

secondary, at best, to the needs of the ruling class.176

Just prior to the October revolution in Russia, the provisional government established the

Special Committee for Fighting Pogroms in September 1917, which was essentially the first

form of law enforcement in post-Tsarist Russia.177 They were short lived, as the “Extraordinary

172 LYNCH, supra note 6, at 159.

173 Id. at 155–59.

174 Id.

175 Tom McCarthy, Police killed more than twice as many people as reported by US government,

THE GUARDIAN (Mar. 4, 2015, 11:28 AM), http://www.theguardian.com/us-

news/2015/mar/04/police-killed-people-fbi-data-justifiable-homicides?CMP=share_btn_fb.

176 WILLIAMS, supra note 77, at 116–19.

177 MAKEPEACE supra note 35, at 67.

42

Commission for the Struggle with Counterrevolution, Sabotage and Speculation,” known as the

Cheka, succeeded this agency in December 1917.178 The early duties of the Cheka was to

confront counterrevolutionary subterfuge; however, the Cheka was criticized severely for the

frequency and degree of its actions in response to counterrevolutionary infractions.179 The Cheka

was formally abolished in February, 1922, in an effort to curtail the adjudicative power granted

to law enforcement, which was then replaced by the State Political Police—the GPU—who were

tasked with the investigatory functions previously vested in the Cheka.180 In practice, very little

had changed, as the GPU had largely preserved the old attitudes and methodology that had so

marred the Cheka.181 There is little instructive to say on the subject of Soviet policing as it relates

to Marxism, save to emphasize that there was never any significant period of time following the

October revolution when policing did not exist in Russia, the police were armed and comprised

of members of the working class, and all of the incarnations of post-Tsarist police often proved

to be a violent and repressive force.182 It may be possible to rationalize much of this, as Lenin

and Trotsky attempted,183 but such a discussion is beyond our scope.

178 Id. at 10, 74.

179 Id. at 74.

180 Id. at 75.

181 Id.

182 Id.at 74–81, 88.

183 Id. at 75.

43

In analyzing the police from a Marxist perspective, it may be useful to consider Draper’s

analysis of the lumpenproletariat, discussed supra.184 Draper drew comparisons between the

lumpenproletariat and the Naples lazzaroni—groups that sold themselves to the bourgeoisie for

the purpose of combatting and destabilizing the working class.185 This sounds exceedingly

similar to the role of police in modern society. The police are a group of hired actors from

predominantly working class backgrounds with little formal education.186 They are employed by

the state to protect the interests of property, above the interests of the working people, and to

preserve the codified bounds normative behavior established by governing bodies, comprised of

members of the finance class.187 Marx provided little on the subject of policing as an exclusive

area of consideration; instead, all of Marx’s critiques of the state necessarily implicated the

police as a tool of state action.188 This supports the possibility that the police could serve a

184 See generally Draper, supra note 116, at 2285 (noting that the lumpenproletariat may not

refer to any particular class of workers at all).

185 Id. at 2285, 2292–94.

186 Willa Frej, U.S. Police: Education levels and the use of force, MSNBC (Dec. 19, 2014, 9:45

AM), http://www.msnbc.com/ronan-farrow-daily/us-police-education-levels-and-the-use-force.

187 LYNCH, supra note 77, at 145.

188 KARL MARX, THE CIVIL WAR IN FRANCE 50 (Progress Publishers ed. 1979). (“The centralized

state power, with its ubiquitous organs of standing army, police, bureaucracy, clergy, and

judicature – organs wrought after the plan of a systematic and hierarchic division of labor –

originates from the days of absolute monarchy, serving nascent middle class society as a mighty

weapon in its struggle against feudalism.”)

44

legitimate purpose once divorced from its “political attributes” in the hierarchical structure of the

state, and then made accountable to and revocable by the working class.189

The Courts

“I had seen enough of the miseries of war, to wish it might never more have existence in the world, and that some other mode might be found out to settle the differences that should occasionally arise in the neighbourhood of nations. This certainly might be done if Courts were disposed to set honestly about it, or if countries were enlightened enough not to be made the dupes of Courts.”190 — Thomas Paine

The judicial system is a legitimizing agent that reaffirms existing social inequalities and

perpetuates class contradictions by applying laws that are purported to be neutral, but are

actually quite unequal and biased in their origin and application.191 The American criminal courts

routinely (and disproportionately) punish the wrongdoing of the society’s most disenfranchised

people, all while mildly punishable administrative laws, or often no laws at all, are applied to the

crimes committed by the wealthy elite.192 In essence, the judicial system seeks to ensure that

prosecution and adjudication for some is maximized exponentially, while prosecution for a select

few is drastically minimized.193 The playing field is unequal with respect to the poor, as the

quality of legal representation for the poor is markedly deficient compared to those who are able 189 Id. at 53–4, 64. (“Instead of continuing to be the agent of the Central Government, the police

was at once stripped of its political attributes, and turned into the responsible, and at all times

revocable, agent of the Commune . . . . [I]n fact, for the first time since the days of February

1848, the streets of Paris were safe, and that without any police of any kind.”)

190 PAUL PHILIPS, MARX AND ENGELS ON LAW AND LAWS 165 (C.M. Campbell & Paul Wiles,

eds., 1980).

191 LYNCH, supra note 77, at 170.

192Id. at 165.

193Id.

45

to afford private defense counsel.194 The system’s interest is not in justice, but in ensuring that

the poor are dealt with in a manner that is fundamentally contrary to the way in which the courts

handle the rich.195 Consider in the abstract the disparity in punishment, prosecution, and quality

of representation between a common drug dealer charged with possession with intent to

distribute and a rich pharmaceutical executive charged with illegally prescribing medication to

people without the requisite medical infirmity.196 We could also observe distinctions in the

substantive law applied in either situation, as well as the inequitable ramifications for the related

offense in either scenario.197 This point illustrates the flaw in the American judicial system, in

that procedural adherence to the laws proscribing these offenses would result in an equitable

apportion of justice, but that is simply not the case.198 Radical criminologists have termed this

the procedural model of justice.199 The procedural model focuses on the individual offender as a

rational actor, and crime as a matter of decision-making undertaken by the individual, which

creates the impression that harsh sentencing would result in less crime, either by way of specific

or general deterrence, or incapacitation.200 If this were the case, then crime in U.S. should be

amongst one of the lowest rated comparatively, as opposed to one of the highest in the world.201

194 Id. at 168.

195 Id.

196 Id. at 169.

197 Id.

198 Id.

199 Id. at 170.

200 Id.

201 Id. at 171.

46

The critique of criminal courts from a radical Marxist perspective is incomplete without

examining the class bias in civil courts as well, where the members of the working class are

exceedingly less likely to appear.202 There is an element of design to this that is beyond our

scope to analyze, but it suffices to say that the civil courts, where punishment is expressed almost

exclusively in currency, tend to be reserved for the finance class, while the criminal courts exist

functionally for the purpose of punishing the poor.203

The Bolsheviks sought to radically reconfigure the judicial system in post-Tsarist

Russia.204 The most common crimes discussed in the annals of Marxist jurisprudence are crimes

against the revolution, or counterrevolutionary crimes.205 Such offenses bear a natural and

obvious significance to Marxists, though official response to counterrevolution has often been

deplorable.206 Lenin believed the judicial function of the courts would soon dissipate after the

October revolution, becoming largely administrative, and that formal judges would come to be

replaced by members of the working class.207 Though Lenin had little personal interest in laws or

the judiciary, he was keen to see that bribery and other offenses, typically associated with the

means of the bourgeoisie—something akin to white-collar crimes—would be outlawed and

punishable.208 Nevertheless, infractions that had been considered criminal conduct prior to the

202 Id. at 174-75, 184-85.

203 Id.

204 R.W. Makepeace, Marxist Ideology and Soviet Criminal Law 66–75 (1st ed. 1980).

205 Id. at 12.

206 Id. at 13.

207 Id. at 58.

208 Id. at 50.

47

revolution would be reconsidered in light of the new social order.209 It was intended that criminal

matters be stripped of their class bases and for rules and regulations to replace previous laws to

allow for the managerial organization of society.210 Public participation in the gradual withering

of the state in the period of transition would guide the new society in redefining the rule of law,

or the rule of regulation as it were.211 On November 24, 1917, all preexisting courts were

abolished and replaced by revolutionary tribunals comprised of working class citizens, for the

purpose of addressing offenses committed during the period of transition.212 This proved more

complicated in practice, as the party leaders did not codify any new laws or regulations

governing criminal or civil conduct, so the tribunals lacked any semblance of uniformity or

guidance beyond community where the tribunal was situated.213 The revolutionary tribunals were

to have jurisdiction over cases involving organized uprisings against the revolution, disturbances

of social institutions, and misuse of position or employment in the administration of

government—crimes generally committed by the bourgeoisie.214 Special revolutionary tribunals

were established whose jurisdiction was solely over infractions committed by the press.215 Later,

local courts were established to hear cases of “pogroms, bribery, forgery, illegal use of Soviet

209 Id. at 29.

210 Id.

211 Id. at 45, 58.

212 Harold J. Berman, Principles of Soviet Criminal Law, 56 Yale L.J. 803, 804–06 (1946–47).

213 Id.

214 R.W. Makepeace, supra note 204, at 68–69.

215 Id. at 69.

48

documents, hooliganism and espionage.”216 Tribunals could consider “fines, deprivation of

liberty, exile, public censure, being declared a public enemy, total or partial deprivation or

political rights or property, and compulsory public work.”217 The position of investigator and

prosecutor, known as the procuracy, had also been abolished, so the duty of investigation was

assigned to the judiciary, and any working class citizen of good character could be appointed

prosecutor or defense counsel.218 The courts and tribunals were forbidden from employing

prerevolutionary law, and were instructed to fill in the gaps in revolutionary legislative

authorities with the dictates of one’s “socialist legal consciousness.”219 As one might expect, this

fractured arrangement was not at all successful given the material conditions of Soviet life at that

time.220 It wasn’t until after Lenin’s death that the business of codifying procedural and

substantive Soviet law was finally undertaken.221

Corrections

“[P]unishment is nothing but a means of society to defend itself against the infraction of its vital conditions, whatever may be their character. Now, what state of society is that, which knows of no better instrument for its own defense than the hangman, and which proclaims through the ‘leading journal of the world’ its own brutality as eternal law?”222 — Karl Marx

216 Id. at 70.

217 Id. at 69.

218 Id. at 68.

219 Id. at 71.

220 Id. at 68.

221 See Harold J. Berman, supra note 212, at 804–06 (noting that uniformity of law was not

provided by the party until the 1936 constitution).

222 Karl Marx, Dispatches for the New York Tribune Selected Journalism of Karl Marx 121–22

(Penguin ed. 2007).

49

America bears the distinction of housing more prisoners per citizen than virtually any

other nation in the world.223 It should come as no surprise, then, that housing prisoners is part of

a monstrously extensive for-profit industry, known pejoratively among critics as the prison-

industrial complex.224 The corrections industry reaps the financial benefit of the rigorous

policing and draconian sentencing policies discussed above. One private prison operator,

Corrections Corporation of America (CCA), actually sought to purchase forty-eight prisons from

state governments.225 Governors were induced to sell by CCA’s promise of 90% guaranteed

occupancy, irrespective of fluctuations in the crime rate.226 This appears to be an all too common

practice in the industry.227 Further, those private prison corporations have actually helped write

laws designed to ensure a consistent stream of inmates are available to help meet those

occupancy requirements.228 In states that accepted contracts with occupancy requirements, the 223 Nick Wing, Here Are All Of The Nations That Incarcerate More Of Their Population Than

The U.S., Huffington Post (Aug. 13, 2013, 8:21 AM),

http://www.huffingtonpost.com/2013/08/13/incarceration-rate-per-capita_n_3745291.html.

224 Michael Shammas, End the Prison-Industrial Complex, Huffington Post (Mar. 12, 2014, 5:59

AM), http://www.huffingtonpost.com/mike-shammas/end-the-prison-industrial-

complex_b_4561459.html.

225 Andy Kroll, This is How Private Prison Companies Make Millions Even When Crime Rate

Fall, Mother Jones (Sept. 19, 2013), http://www.motherjones.com/mojo/2013/09/private-prisons-

occupancy-quota-cca-crime.

226 Id.

227 Id,

228 Id..

50

taxpayers are obligated to pay the cost of empty beds when occupancy dips below the

requirement.229 This taxpayer indemnification practice has become known as a “low-crime

tax.”230 In Colorado, for instance, taxpayers were forced to make up the difference of $2 million

in empty prison beds when the state’s crime rate declined significantly.231 The conclusion to be

drawn from this is that it is in the taxpayer’s best interest for crime rates to be high, for prisons to

be full, and for prison operators to be rich. Moreover, private prisons have become notorious for

forcing prisoners to live in environments that are exceedingly unsafe and dangerously

unsanitary.232 This is the case, in spite of the incredibly immense profits corporations derive from

this industry.233 This is to say nothing of the tremendous taxpayer expense in covering the

appellate measures undertaken by inmates, the per inmate cost of incarceration, and the massive

229 April M. Short, 6 Shocking Revelations About How Private Prisons Make Money, Salon (Sept.

23, 2013, 7:22 AM),

http://www.salon.com/2013/09/23/6_shocking_revelations_about_how_private_prisons_make_

money_partner/.

230 Id.

231 Id.

232 Margaret Winter & Gabriel Eber, Private Prisons Are the Problem, Not the Solution, ACLU

(Apr 30, 2012, 4:38 PM), https://www.aclu.org/blog/prisoners-rights-criminal-law-

reform/private-prisons-are-problem-not-solution.

233 Liliana Segura, With 2.3 Million People Incarcerated in the US, Prisons Are Big Business,

The Nation (Oct. 1, 2013), http://www.thenation.com/prison-profiteers.

51

expense of administering executions in states that allow the death penalty.234 Death penalty cases

alone cost taxpayers somewhere between $470,000–$1,000,000 more per case, when compared

cases where the death penalty is not considered.235 And that figure fails to take into account the

sum of suffering and dehumanization involved in carrying out this manner of punishment,

assuming even then that administering the execution itself goes according to plan.236 Nor can it

be quantified the fact that, in administering the execution, the state has made a presumably

innocent paid employee a complicit participant in a homicide. Studies report that at least 4% of

those set to be executed, around 120 inmates, are going to be executed based on wrongful

convictions.237 Given the profitability of housing inmates, one can see how ensuring the veracity

of a given conviction, might be less important to the correctional industry than the profit to be

gained, as a result of continued incarceration. In fact, as demonstrated above, releasing inmates is

positively contrary to their interests.

The profit critique of the private prison industry is low hanging fruit for Marxists, as the

narrative of wild profits and willful disregard of human decency, fits neatly within our class

234 Ken Armstrong, Another Death Penalty Moratorium, The Marshall Project (Feb. 13, 2015,

5:51 PM), https://www.themarshallproject.org/2015/02/13/another-death-penalty-moratorium.

235 Kelly Philips Erb, Considering The Death Penalty: Your Tax Dollars At Work, Forbes (May

1,2014, 12:12 AM), http://www.forbes.com/sites/kellyphillipserb/2014/05/01/considering-the-

death-penalty-your-tax-dollars-at-work/.

236 Id.

237 David Von Drehle, More Innocent People on Death Row Than Estimated: Study, Time (Apr.

28, 2014), http://time.com/79572/more-innocent-people-on-death-row-than-estimated-study/.

52

based analysis.238 Nevertheless, this appraisal of the prison-industrial complex must go beyond

simply shaming the prison industry for being profitable, however rightful shaming may be, and

cut further to the greater issue of assessing the function of punishment as a fundamental aspect of

modern society.239 The Marxist analysis views imprisonment and punishment as a reflection and

reproduction of the ruling class’ will—a class that has been able to construct punishments that

are most amenable to their own interests.240 Marxist criminologist Dr. Michael J. Lynch, cited

herein and throughout, posits that the rate of imprisonment is directly correlative to the rate of

surplus value.241 Surplus value is expressed as “an empirical measure of labor’s exploitation and

alienation.”242 This concept of surplus value is derived from Marx.243 Lynch studied the

statistical relationship between rates of incarceration and the rate of surplus value, and

determined that people became more marginalized economically as the rate of surplus value

increased.244 As people become more marginalized, the state recognizes a need for greater social

238 See generally Scott McLemee, Our Incarceration Nation, SocialistWorker.org (July 14,

2014), http://socialistworker.org/2014/07/14/our-incarceration-nation (providing a lyrically

leftist critique of the for-profit prison industry).

239 See generally Michael J. Lynch et al., supra note 191, at 187–209 (critiquing the modern

prison industry as a necessary and desirable component of capitalism).

240 Id. at 194.

241 Id.

242Id. at 206.

243 David Schweickart, After Capitalism 39–40 (2d ed. 2011).

244 Michael J. Lynch et al., supra note 191, at 206.

53

control.245 These new admissions into in the prisons represent the surplus population, or surplus

labor.246 Capitalism cannot function at full employment, as some unemployment is necessary and

desirable in order for capitalism to remain a profitable system.247 In essence, capitalism requires

a reserve army of the unemployed poor who functioned, at least initially, as a looming threat of

replacement to discourage workers from striking.248 These unemployed workers represent the

sum of surplus labor, increasingly deprived and marginalized, and have become increasingly

imprisoned as a result.249

The early years of post-Tsarist Russia saw the Soviets attempt to rectify the inequalities

of punishment experienced under the Tsar.250 The Soviets sought to consider offenses committed

in proportion to the offender’s prior class identity.251 If the offender was a member of the

propertied class, the revolutionary tribunals were to consider whether such an offender could be

adopted into the developing classless society, or whether to isolate the offender for the purpose

of ensuring social defense.252 The concept of retributive justice was abandoned in abstract, but

seizure of land and claims to property was a common outcome of criminal infractions.253

245 Id.

246 Id.

247 David Schweickart, supra, at 97–104.

248 Id.

249 Michael J. Lynch et al., supra note 191, at 206.

250 Harold J. Berman, supra note 212, at 803, 822–25.

251 R.W. Makepeace, supra note 204, at 65.

252 Id.

253 Id..

54

Whether that punishment was retributive in actuality, however rightfully under the

circumstances, appears to be of little consequence.254 Chief among the penalties for deviant

behavior was the concept and practice of labor re-education.255 This form of punishment was

designed to reintegrate the offender into productive society, and to help the offender to realize

the societal effects of the infraction—to awaken his consciousness to his own suffering and the

suffering of others.256 This practice, honest in its foundation, nevertheless devolved into the

creation of harrowing forced labor camps and eventually the return of capital punishment.257

CONCLUSION

For all intents and purposes, this has been an introductory overview of Marxism and

criminal justice. The essay is limited in depth, owing to the wide breadth of subject matter

covered, in order to introduce the concepts and critiques to an audience that may yet be

unfamiliar with Marxism, let alone the very narrow area of study within Marxism that is

dedicated to legal study and criminology. In conceiving ideas and remedies moving forward, it

will be immensely useful for Marxists and other leftists to keep these concepts alive in the mind.

Also, it is important to identify the ideological and practical deficiencies of the early Soviet

model, while acknowledging their honest efforts and ultimate failure to develop a more just and

equitable system.

254 See generally R.W. Makepeace, supra note 204, at 65–66 (noting the general degradation of

retributive approaches to punishment, but commenting that such principles appear to have been

at odds with the material reality of their application).

255 Harold J. Berman, supra note 212, at 822–25.

256 Id.

257 R.W. Makepeace, supra note 204, at 79.

55

Marx identified human agency and the collective action of the working class, as the

driving force required in achieving the new socialist society. Therefore, a Marxist criminal

justice model must incorporate collective human activity, rather than relegate citizens to the role

of passive observer in the criminal justice process, included only for the purpose of securing

indictments and providing verdicts. This is instructive in the present, and ought to be a guiding

precept for leftists, and may help direct us toward establishing meaningful programs that may

lessen the suffering of the working class on the road to a more achieving equitable society.

Applying this concept, to a policing one can envision how a tribunal, distinct and apart from the

existing legal apparatuses, made of ordinary citizens with actual adjudicative authority,

established for the purpose of reviewing officer conduct, could help curb the onslaught of police

brutality and other transgressions. If the police serve the people, then they should be likewise

answerable to and revocable by the people. The political component of the courts should also be

divorced from judicial procedures—ending private campaign finance, and eliminating racial and

class biases in the adjudicative process. The prisons should not be able to profit from

confinement, and the history of contracting private organizations to build inmate warehouses to

the detriment of the prisoners and society in general must end. Police violence and misconduct

will continue to be disregarded, so long as their actions preserve the stability of the capitalist

infrastructure. The courts will continue to adjudicate along class lines, so long as their social and

financial interests are inexorably dependent on the existing system. The prison-industrial

complex will balloon and possibly burst, perhaps morphing into something even more sinister, so

long as it is profitable to continue warehousing the poor. Such issues can be ameliorated to some

degree, but cannot be satisfactorily eradicated by merely enacting institutional reforms.

Collective action and movement building toward a fundamental change in the present social

56

order must confront these issues. That change can be identified in the works and methodology of

Marx. The organizing principles of Marxism are apparent: workers must become cognizant of

the full value of their life and labor when confronted with those agents seeking to exploit their

labor and alienate them from their sense of humanity, for change awaits the awakening

consciousness of the working class. It is up to the workers—from the factories and the kitchens,

to the classrooms and the courtrooms—for they remain the ones enchained.

57

“Except for sickness, litigation is one of the worst things that can befall a person.” – Justice

Learned Hand

I. Introduction

Personal autonomy. It is a phrase that lives in the shadows of our Constitution. It is a

theme that drives the articles and clauses that our framers constructed to outline the morals of our

societies. The idea of self governance gives birth to many inalienable rights such as the right to

privacy, the right to marry, the right to raise children, and the right to accept or reject

recommended medical care. In an open letter to the President of the United States, the National

Council on Disability published a report that explored the curtailment of the rights of a highly

marginalized group of people living in the U.S. with psychiatric disabilities.

People with psychiatric disabilities are the only Americans who can have their freedom

swept from under them by being institutionalized without a conviction.258 Once committed,

individuals do not enjoy the right to accept or reject medical care at their own will.259 When

individuals who are subject to involuntary commitment die in institutions, their deaths are rarely

investigated.260 While vast strides have been made throughout the twenty-first century in making

the treatment of Americans with mental disabilities more in line with the ideals of the

Constitution, these individuals are still discriminated against within the court system. This

judicial discrimination is no less than a reflection of the societal woes faced by Americans with

psychiatric disabilities.

258National Council on Disability, From Privileges to Rights: People Labeled with Psychiatric Disabilities Speak for Themselves (January 20, 2000), available at http://www.ncd.gov/publications/2000/Jan202000. 259 Id. 260 Id.

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II. Limited Protection for All

The Fourteenth Amendment of the United States Constitution says that no state shall

“deprive any person of life, liberty, or property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of the laws.”261 This section of the amendment

is known as the Due Process Clause and the Equal Protection Clause, which throughout history,

has been a rallying point for the underrepresented and has been the foundation for numerous civil

rights battles. This amendment was created to ensure that all citizens enjoy access to justice;

however, since its culmination, society has managed to poke holes in the blanket protection that

should be provided by these two clauses. Individuals coping with mental disabilities are one of

the groups slipping through those holes.

III. A Lackluster Standard of Proof

From the Due Process Clause stems the concept of the standard of proof.262 The standard

of proof instructs the factfinder concerning the “degree of confidence society thinks she should

have in the accurate depiction of factual conclusions.”263 The applicable standard helps establish

the level of importance attached to the decision in each case.264 In criminal cases, defendants

have traditionally been protected by high standards of review designed to alleviate the possibility

of erroneous judgment.265 Under the Due Process Clause, the state must prove guilt in a criminal

proceeding using the beyond a reasonable doubt standard.266

261 U.S. Const. amend. XIV. 262 Winship, 397 U.S. 358, 370 (1970). 263 Id. 264 Addington v. Texas, 441 U.S. 418, 431 (1979). 265 Id. 266 Id. at 421.

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The Court has discussed that the beyond a reasonable doubt standard is reserved for

criminal proceedings only. Using a lower standard of proof in involuntary commitment

proceedings, such as a “preponderance of the evidence,” would lead to an increased number of

individuals erroneously committed against their will.267 The landmark case, Addington v. Texas,

which seemingly established the standard of proof to determine the need to involuntarily commit

a defendant in a civil case, did little more than reaffirm that are no constitutionally protected

safeguards to ensure that the mentally ill are afforded there due process and equal protection

rights.268

In Addington, the plaintiff was committed indefinitely against his will by a family

member269 The Court applied a “clear and convincing evidence” analysis, the median level

standard of proof, to support the involuntary commitment, despite the plaintiff’s argument that

“the evidence against him should have been required to reach the highest standard of proof,

beyond a reasonable doubt.”270 The Court reasoned an individual’s liberty interest in a civil

commitment proceeding is of greater weight compared to the State’s interest in protecting

citizens faced with mental illness. The Court still came to the conclusion that the Due Process

Clause does not require the same beyond a reasonable doubt standard in civil proceedings that

are afforded in criminal prosecutions that similarly result in a deprivation of liberty.271 The

justices stated, “because psychiatry was a field dealing with the inexact science of predicting

future risk, the standard of beyond a reasonable doubt was so burdensome that it would serve as

267 267 Addington v. Texas, 441 U.S. at 425. 268 Id. at 418-33. 269 Id. at 418. 270 Id. at 433. 271 Id. at 418.

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a barrier to the hospitalization of many patients who were in clear need of care.”272 In

considering the spirit of our Constitution and the value society should place on personal

autonomy, a barrier erected before the hospitalization of an individual would be proper.

Anything less would curtail individual freedoms.

V. A Massive Curtailment of Liberty

A state may try to justify the curtailment of an individual’s liberty interest under two

legal concepts: (1) a state’s inherent police powers; and (2) the doctrine of parens patriae.273 The

term parens patriae is Latin for parent of the country and refers to the common law doctrine that

assigns to the government the responsibility to intervene on behalf of citizens who seemingly

cannot make healthy life decisions for themselves.274 The other controlling legal principal, a

state’s police power, requires the state to protect the interest and welfare of not only the citizen

suffering from mental illness, but also all citizens within its borders.275 When the state has the

duty to protect society as a whole, it often does so at the expense of an individual’s liberties.

When it comes to people living with mental disabilities, the class as a whole is marginalized and

stifled to promote the societal goal of security.

It is this idea of protecting society and keeping potentially “harmful” mentally ill

individuals off the streets that leads to prolonged stents in psychiatric facilities. Individuals who

receive acquittals through the justice system supported by the rational, “not guilty by reason of

272National Council on Disability, From Privileges to Rights: People Labeled with Psychiatric Disabilities Speak for Themselves (January 20, 2000), available at http://www.ncd.gov/publications/2000/Jan202000. This holding contradicts the rational that “in cases involving individual rights, whether criminal or civil, the standard of proof [at a minimum] reflects the value society places on individual liberty.” Addington, at 1805. 273 Megan Testa, MD & Sara G. West, MD, Civil Commitment in the United States, (October 2010) available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3392176/. 274 Id. 275 Id.

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insanity” (NGRI), are subsequently civilly committed.276 These individuals are hospitalized until

they can show that they no longer pose a threat to society.277 Often, the process to regain

freedom from hospitalization is so complicated and lengthy, individuals spend more time in

psychiatric facilities than they would have been incarcerated for the crime originally

committed.278

In Jones v. United States, the plaintiff was arrested for attempted petty larceny (a

misdemeanor) and entered an insanity plea.279 The plaintiff was found NGRI and was

subsequently civilly committed.280 After being hospitalized for more than 12 months, exceeding

the maximum time of incarceration for misdemeanors, the plaintiff asked to be released.281 The

plaintiff argued that he should not be involuntarily committed for a period of time longer than he

would have spent incarcerated for the crime in question.282 Rejecting the plaintiff’s argument, the

Court ruled that, “persons committed after findings of NGRI could be hospitalized against their

will for an indefinite period of time, regardless of the maximum length of time that could be

served if they were convicted.”283 This ruling shows that the value of individual freedom and

personal autonomy held by individuals living with mental disabilities is held in less regard in

society, even less than those who are convicted of the same crimes that the mentally ill are

acquitted of.

276 Id. at 35. 277 Id. 278 Testa, supra at 35. 279 Id. 280 Id. 281 Id. 282 Id. 283 Id. “The justices ruled that, because a finding of NGRI was technically an acquittal, the length of the ’hypothetical criminal sentence’” was irrelevant to the determination of the length of involuntary hospitalization.”

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IV. What Exactly Are We Proving?

During the Civil Rights Movement, minor restrictions were put in place to reduce the

number of individuals erroneously committed against their will. The courts established that a

state cannot constitutionally confine an individual unless the state can prove that the individual in

question actually has a (1) mental illness and (2) that he or she poses an imminent threat to his or

her safety or the safety of others.284 The idea behind this standard is that the individual is not

capable of surviving safely, on his own, in society.285 This standard was articulated in the

landmark case, O’Connor v. Donaldson. In O’Conner, the plaintiff, who was diagnosed with

paranoid schizophrenia, was held in a psychiatric hospital against his will for fifteen years.286

The plaintiff showed no signs of attempted suicide or an ability to harm others; however, his

request to be released was denied repeatedly.287 It took an audience with the Supreme Court to

finally restore the plaintiff’s freedom. The Justices stated that the individual in question must

present a “known risk of harm to him- or herself or others, be in such a state that he or she would

be ‘hopeless to avoid the hazards of freedom,’ or in need of psychiatric treatment.”288 While this

standard has made waves in a pool of injustice, there has been push back from members of the

medical community who see this ruling as hindering the access to medical treatment needed by

the mentally ill.289

284 Testa, supra at 35. 285 O’Conner v. Donaldson, 422 U.S. 563, 576, 95 S. Ct. 2486, 2494, 45 L. Ed. 2d 396 (1975). 286 Testa, supra, at 33. 287 Id. 288 Id. 289 Id.

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VI. Alternative Measures

Despite push back for the review of involuntary commitment, a modern trend for

alternative measures is slowly gaining momentum in the justice system. Several courts in the U.S.

now hold, a court must show that involuntary commitment is the least restrictive means imposed

on an individual and that alternative treatments would not be adequate.290 With findings such as

this, alternative measures to involuntary commitment are on the rise. Outpatient civil

commitments, an alternative to separating individuals from society, allow the mentally disabled

to remain in their own communities.291 In order to qualify for outpatient civil commitment: (1)

the individual must be diagnosed with a mental disorder; (2) the individual needs to clearly be in

need of treatment and have a history of poor insight regarding his need for care leading to

periods of treatment non-adherence; and (3) there must be evidence indicating that the individual

is likely to become dangerous to himself or others if treatment non-adherence were to occur.292

Outpatient commitment can be easier for the families responsible for mentally ill relatives. This

alternative has resulted in fewer arrests of people with mental illness, has increased the

participation of psychiatric treatment by the mentally ill, and has decreased the rates of

hospitalization.293

VII. Conclusion

Courts have addressed the concerns of involuntary commitment by implementing

measures such as limiting the time a patient can be held before being afforded a lawyer and

implementing alternatives such as outpatient civil commitment. However, there are still many

controversies surrounding involuntary commitment in civil proceedings that have yet to be

290 In re D.P., 2001 ND 203, 636 N.W.2d 921 (N.D. 2001). 291 Testa, supra, at 38. 292 Id. 293 Id.

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resolved. More than one-third of the states in this country still do not have involuntary outpatient

commitment (IOC) statutes and are still relying on involuntary inpatient commitment.294 Of the

two-thirds of the states who have enacted IOC laws, residents with psychiatric disabilities are

forced to take medications and endure painful treatments, and are coerced into commitment and

medical treatments.295 Because these inconsistent and discriminatory procedures are still in place,

individuals with mental disabilities continue to suffer at the hands of discriminatory laws.296

Throughout our nation’s history, various groups have been the target of marginalization

and discrimination. The root of the issue can often be remedied through the treatment of these

individuals in the justice system. How individuals are treated in everyday society is a reflection

of how they are treated within the court system. The rights of the mentally ill are currently not

viewed equally, in the eyes of the law, compared to the fallacy portrayed in our Constitution as

the Equal Protection Clause and the Due Process Clause. Involuntary commitment and forced

medical treatment are being used as a means of social control, and greater steps need to be taken

to strike a balance between access to psychiatric care and the access to adequate justice.

294 Id. 295 Id. 296 In a case currently being heard in the Eastern District of New York where a man was held for ten days against his will, attorney William Brooks stated that there is a “deprivation of liberty that people with mental illness suffer when private hospitals invoke the power of the state to involuntary commit them, and that people with mental illness should be protected by the Fourteenth Amendment even though the amendment applies generally to government officials only.” Mark Hamblett, Suit Over Involuntary Mental Health Commitment Proceeds, New York Law Journal (March 27, 2015), available at http://www.newyorklawjournal.com/id=1202721775743/Suit-Over-Involuntary-Mental-Health-Commitment-Proceeds#ixzz3VbznBP00.