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Saturday, November 30, 2013

Commissions - Institutionalized Democratic participation versus Robin Hood

We've developed a cludgy legal system, where lawyers and judges have been trying for years to "control juries". This pits them at odds with the concept of an empowered, informed jury. The justification for every increasing jury control is that "wild juries" have been known to free locals, over-ride the legislature, and "nullify" decisions -- when given half a chance. This works to protect "Robin Hood" type high status criminals in a neighborhood against frustrated prosecutors and Sheriffs, but it also, traditionally has been a protection for ordinary citizens against corrupt prosecutors and police who treat their neighborhoods as occupied territory to loot and steal from with impunity. In my review of Racketeering, Influence and Corrupt Organizations (RICO) and their history, one thing that popped out at me was that legal concepts such as "Racketeering" shift in meaning in US Legal politics. Racketeering law (and it's predecessors) was initially applied selectively; aggressively against Unions and tradesmen, and not at all among higher status business felons (Lawyers, Wall Street, Big Business). As a result, mostly minority communities such as those where Italians, Irish or Jews lived, often resisted these laws. From the point of view of reformers and elites these people were all racketeers; tradesmen, union organizers, union members. From the point of view of folks trying to survive in cities and rural areas, these people were often heroes. From the point of view of folks living in cities and rural areas, the officials going after them were corrupt oppressors. This is where you get Robin Hood style legends applied to local real gangsters:

Classic Robin Hood stories

I've heard the same Robin Hood story told about Jessie James, and Al Capone (Heard story, no evidence). Al Capone is credited with starting a soup kitchen. The point is that when the government is corrupt and people are excluded from participating in their government; two things happen. One is that the people form their own informal governments, including elevating gangs to power (Robin Hood effect). And the other is that when the authorities have no social pressures to limit their looting and corruption and become oppressors some of the criminals become heroes. Example Story:

"A Missouri widow claimed that Jesse James and his gang boarded with her one evening. While she served them dinner, not knowing who he and his gang were, she lamented the fact that the government was going to foreclose on her house, due to unpaid taxes. James generously gave her the money she needed to pay her taxes. What a kindly soul he was."
"However, legend goes on to say that James and his gang waited for the tax collector to leave the woman’s house and then, robbed him- thereby obtaining their money again!"[From Brighthubeducation.com]

Similar Stories are found all over the world where government is often corrupt and mistreats people.

Policing the Police: Citizen Commissions

The principle here is that no one person should ever be prosecutor, judge, jury and executioner, in the same person and we need to change the manifold locations where we have that currently.

The issue is that the people either participate in government or government acts like a looting army. Juries were created to put a check on corrupt judges. "Commissions" have a more problematical history due to their tradition of being agents of established authority.

Rather than join with the outlaws activists have found that participating in government works better than forming "Robin Hood Bands" or trying to outwit corrupt taxmen and other executives. Commissions traditionally are created with high status lawyers forming their members, and the only way the government seems to think it can establish balance is to appoint partisans from both dominant party and it's nearest competitor. This often leaves out reformers, citizens, labor, etc.... A commission is often formed of "experts" who never-the-less deliver less than expert results. Commissions often are accused of (and many guilty of) being official white-wash on institutional malfeasance, and the old boy network created by appointing insiders, relatives and country club members from the same club as the prosecutors, judges and executives belong to, is so obvious that people often lose their trust in their legitimacy. They simply don't do their jobs a good portion of the job, or when they do, they do it for the "wrong" stakeholders.

The way to reform this is through citizens commissions drafted by lot from among the jury pool, and staffed with the folks who usually run commissions plus people hired by the commissioners themselves. The commission chair can be a judge or expert, but the commissioners should explicitly have explicit power within the scope of their commission. And when their commission expires a new one will be convened. This certainly would work better than the current arrangement.

Citizen commissions are vital for policing any institution where "old boy" habits develop; police, fire, legal professionals, judges, executive agencies. And they can have the further benefit of serving as juries when there are disputes within executive organizations that otherwise would be handled by the hierarchy. To get at genuine justice, the "judge" and Jury must both be impartial. And to get at that doesn't mean that people can't know the subject, they simply can't have a vested interest in the outcome one way or another or corrupt associations.

We need to empower juries not control them. A jury trial or any other commissioned citizen exercise should be a discovery walk through a body of knowledge where the Jurors play the "ingenue" and can look at issues freshly to render a verdict. We need citizen commissions to balance the institutional prejudices and vested interests inherent in appointed or elected judges and other executives. We also need to clearly separate the judging role from the executive role for all decision making except the highest level of abstraction. This is a matter of good process, good government, and executing integral principles to establish or restore, and enforce integrity.

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