Stalinism on the Installment Plan

by Corey Robin on May 20, 2014

One of the most frequent motifs in the literature on Stalinism is that of the dissenter who confesses to a crime he never committed. What made Stalinism so depraved, in the eyes of intellectuals, was not that it jailed or slaughtered men and women by the millions; it was that it was that it got those men and women, who were plainly innocent, to affirm their guilt to a waiting world.

Here in the US, we don’t need to force people to confess to crimes they didn’t commit (though we certainly do that, too). No, to truly validate our system, we conscript the defendant’s soul in a different way.

A state-by-state survey conducted by NPR found that defendants are charged for many government services that were once free, including those that are constitutionally required. For example:



  • In at least 43 states and the District of Columbia, defendants can be billed for a public defender.

  • In at least 41 states, inmates can be charged room and board for jail and prison stays.

  • In at least 44 states, offenders can get billed for their own probation and parole supervision.

  • And in all states except Hawaii, and the District of Columbia, there’s a fee for the electronic monitoring devices defendants and offenders are ordered to wear.


These fees — which can add up to hundreds or even thousands of dollars — get charged at every step of the system, from the courtroom, to jail, to probation. Defendants and offenders pay for their own arrest warrants, their court-ordered drug and alcohol-abuse treatment and to have their DNA samples collected. They are billed when courts need to modernize their computers. In Washington state, for example, they even get charged a fee for a jury trial — with a 12-person jury costing $250, twice the fee for a six-person jury.


It would be short-sighted to see these policies as mere cost-saving measures. Their function seems as ideological as it is financial. As one court administrator in Michigan put it:

The only reason that the court is in operation and doing business at that point in time is because that defendant has come in and is a user of those services. They don’t necessarily see themselves as a customer because, obviously, they’re not choosing to be there. But in reality they are.


That these policies overwhelmingly target the poor only adds to their allure: What better way to reform capitalism’s losers than to force them to pay to play?

In the same way that the Stalinist show trial was meant to model the virtuous comrade—so dutiful to the ideals of communism that he would sacrifice his very life in order to validate the cause—so does the American criminal justice system model the virtuous capitalist: so committed to the ideals of the free market that he’s willing to pay the price, in both senses of the word, of his crime.

{ 56 comments }

1

SN 05.20.14 at 6:00 am

I remember reading about this–and also reading that some of them serve longer sentences if they can’t pay. Do you know anything about this?

Among other appalling things about this practice, is this a case of assuming the defendant is guilty? In what way could we say an innocent person has chosen to be there? (Clearly–it’s stupid either way but I find it interesting that the court administrator echoes Kant’s idea that the punished have chosen their own punishment. Even if true, that only works if you’re guilty.)

Yes, this is a case of everything being monetized and of making every citizen a client and a customer. And it’s also that little bit of mean spiritedness that people save for the accused.

2

Rakesh 05.20.14 at 7:18 am

See Pashukanis’ controversial commodity equivalence theory of punishment for how the legal form could be said to shore up the cultural presuppositions of a commodity-based system–similar in some ways to the claim above:

‘Deprivation of freedom – for a definite term previously indicated in the judgement of a court – is the specific form in which modem, that is, bourgeois capitalist criminal law, realizes the basis of equivalent retribution. This method is deeply, but unconsciously connected with the concept of the abstract man and of abstract human labour time. It is not accidental that this form of punishment grew strong and eventually seemed natural and expected, in the nineteenth century, i.e. when bourgeois society was fully developed and had consolidated all its particular features. Prisons and dungeons, of course, existed even in ancient times and in the Middle Ages, alongside other means of physical coercion. But at that time prisoners were usually confined until their death or until the payment of a ransom.

A necessary condition for the appearance of the notion that payment for a crime should be by a previously determined amount of abstract freedom, was that all concrete forms of social wealth had to be reduced to the simplest and most abstract form – to human labour time. Here we undoubtedly observe yet another case affirming the mutual protection of the various aspects of culture. Industrial capitalism, the Declaration of the Rights of Man and the Citizen, Ricardo’s political economy, and the system of terms of incarceration in prison-these are phenomena of the same historical period.

Equivalence of punishment – in its crude and overtly material form as the causing of physical harm or the exacting of monetary compensation – specifically because of this crudeness preserves a simple meaning accessible to everyone. But it loses this meaning in its abstract form of the deprivation of freedom for a definite term, although we continue to speak of a measure of punishment proportional to the gravity of the act.

Therefore, it is natural for many criminal law theorists (primarily those who consider themselves the most advanced) to attempt to remove this element of equivalence because it has clearly become inconvenient, and to concentrate attention on the rational goals of punishment. The mistake of these progressive criminologists is that in criticizing so-called absolute theories of punishment, they suppose that they are confronted only by false views and confused thoughts which can be dissolved simply by theoretical criticism. In fact, the inconvenient form of equivalence does not derive from the confusion of individual criminologists, but from the material relationships of commodity production, and it is nurtured by them. The contradiction between the rational goal of the protection of society – or the re-education of the criminal – and the principle of the equivalence of punishment, exists not in books and theories but in life itself in judicial practice, in the social structure itself. Similarly, the contradiction between the fact of the bond of social labour as such, and the inconvenient form of expression of this fact in the value of commodities, exists not in theory, and not in books, but in social practice itself.

Sufficient proof of this is found in various elements. If, in social life, punishment was considered as an objective, then the keenest interest would be aroused in the implementation of punishment and, above all, by its result. However, who would deny that the centre of gravity of criminal procedure for the overwhelming majority-is the court room and the moment of pronouncing the verdict and sentence?

The interest which is shown towards enduring methods of influencing the criminal is utterly negligible in comparison with the interest which is aroused in the effective moment of pronouncing the verdict and sentence, and in the determination of the “measure of punishment”. Questions of prison reform are a live issue only for a small group of specialists; broadly, the correspondence of the sentence to the gravity of the act occupies the centre of attention. If, according to common sentiment, the equivalence is properly determined by the court, then the matter will be concluded here, and the subsequent fate of the criminal is of no interest. “A study of the execution of punishment,” complains Krohne, one of the leading specialists in this area, “is the sore point of the science of criminal law.” In other words it is relatively neglected. “And moreover”, he continues, “if you have better laws, better judges, and better sentences, and the civil servants carrying out these sentences, are worthless, then you may freely throw laws into the rubbish bin and burn your sentences.” [60] But the authority of the principle of retributive equivalence is not only discovered in the distribution of social interest. It appears no less clearly in judicial practice itself. In fact, what other bases are there for those sentences which Aschaffenburg cites in his book Crimes and the Struggle against Them? Here are just two examples of a long series: a recidivist, convicted 22 times for forgery, theft, extortion etc., was sentenced for the 23rd time to 24 days in prison for slandering an official. Another, who had in all spent 13 years in prison and the penitentiary (Zuchthaus), having been convicted 16 times for extortion, theft etc., was sentenced (the 17th time) for extortion to 4 months in prison. [61] In these instances one obviously does not discuss the protective or corrective function of punishment. Here the formal principle of equivalence triumphs: for equal guilt – an equal measure of punishment. And in fact what else could the judge do? He could not hope to correct a confirmed recidivist by 3 weeks’ detention, but he also could not isolate the prisoner for life because of the mere slander of a civil servant. Nothing is left to him but to have the criminal pay in small change (a certain number of weeks of deprivation of freedom) for a minor crime. For the rest, bourgeois jurisprudence ensures that the transaction with the criminal is in accordance with all rules of the art, i.e. that each may be convinced, and may verify that the payment is justly set (public judicial proceedings), that the criminal may bargain freely (adversary process), and that in so doing he may use the services of an experienced judicial expert (admission of the defence) etc. Briefly, the state conducts its relationship to the criminal within the framework of a bona fide commercial transaction in which there are, ostensibly, guarantees of criminal procedure.’

3

Main Street Muse 05.20.14 at 10:43 am

When did “freedom” mean moving back to Dickensian England? The new American hero is Scrooge, prior to the arrival of the three ghosts.

4

LF 05.20.14 at 11:22 am

Absurd conceptions of moral responsibility aside, heavily indebting criminals – often already absent material or human capital, hence the crime, and being marked for unemployment by conviction – hardly seems product vis-a-vis public safety. Similarly, paying for one’s own imprisonment hardly motivates reconciliation with the world.

Are they simply re-imprisoned if they fail to meet payments?

5

Jesús Couto Fandiño 05.20.14 at 12:17 pm

I find the last paragraph a bit too abstract.

The soviet example was about absolute and total control of the State over everything. There could be no refuge and no peace, not even an inner one; if the State decided you were an criminal you would have to renounce even your dignity to it. Pretending you could hold a small realm where you are considered innocent, even if it was your own words, was a higher crime.

This stuff is just another bit of class warfare. Instead of a society that works to ensure some rights for all, you are as much of a citizen as you can pay.

6

Joshua W. Burton 05.20.14 at 1:17 pm

That these policies overwhelmingly target the poor only adds to their allure: What better way to reform capitalism’s losers than to force them to pay to play?

Is this true? Certainly, criminal defendants skew toward low income, but for the same reason they skew heavily toward low net worth (and toward income that stops when they enter the system). The state can waste a stamp billing a judgment-proof defendant without financial consequence to the target.

Isn’t the point of this sort of legislation (1) to target the middle-class white collar criminal with yet another “respectability death penalty” deterrent (we will put your picture on the Internet, we will make you give your house and your college fund to defense attorneys, we will stain your HR background with a scarlet letter no employer will overlook — and, we will bleed away your savings on court fees if there is anything left), and (2) to avoid the voter resentment that comes from providing any public subsidy to the rich white collar criminal? The concern about (3) dunning a poor defendant (at the margin that may prevent what would otherwise be a successful rehabilitation to solvency and productive life) seems only rarely realistic, though I agree it is appalling and perverse.

Once we have conceded the state’s right to kidnap and torture its citizens for years, the financial arrangements seem to me a comparatively thin target for outrage. Did anyone really blame Stalin primarily for making his victims “pay for the bullet”?

7

Kalkaino 05.20.14 at 1:18 pm

Very soon Tery Gilliam’s dystopian “Brazil” will look like the lost blueprint for the USA. In it, one plank of a politician’s platform is the firm conviction that peope should be billed for the costs of their “information retrieval” — by which he means “enhanced interrogation.” Under President Cruz we will doubtless be expected to tip our torturers.

8

stevenjohnson 05.20.14 at 2:19 pm

There were many men and a few women facing a headsman’s axe who protested their loyalty to the king or queen whose headsman they faced. It wasn’t totalitarianism then. And I daresay the question was not whether it was totalitarianism later either. Barring any evidence, I am quite sure that the same old fears for family and friends or fear of torture produced the same results.

Isn’t it really the whole notion of totalitarianism that desperately needs justification as anything but propaganda?

Also, redbaiting conservatives isn’t going to work because there is a pretty nonexistent audience of people who only dislike “Stalinism” for its tyranny. Plenty of tyranny to go around. Stalinism has always been hated for its being a variant of Communism. The people who are still hating on Communism are pretty much hard core right-wingers, who are going to approve soaking the poor.

9

Ben 05.20.14 at 2:32 pm

Like #5, I don’t really know where the OP’s going with the “No, to truly validate our system, we conscript the defendant’s soul in a different way” / “so does the American criminal justice system model the virtuous capitalist” line of argument. How does having the defendant assume court costs “validate the system”, or “model the virtuous capitalist”? To and for whom is this performance intended? What function does it serve?

There’s another, clearer way in which Communist show trials and neoliberal cost shifting onto defendants serve a similar function: they’re a manifestation of the defendant’s lack of agency. Corey’s link to his history of fear post mentions Bukharin, but what it doesn’t mention is the derisive “victor’s laughter” he endured during his trial:

BUKHARIN: It’s easy for you to talk about me. What will you lose, after all? Look, if I am a saboteur, a son of a bitch, then why spare me? I make no claims to anything. I am just describing what’s on my mind, what I am going through. If this in any way entails any political damage, however minute, then, no question about it, I’ll do whatever you say. (Laughter.) Why are you laughing? There is absolutely nothing funny about any of this…

BUKHARIN: Whatever they are testifying against me is not true. (Laughter, noise in the room.) Why are you laughing? There is nothing funny in all this.”

Which is eerily predicted in The Trial:

‘Well, then,’ said the Examining Magistrate, turning over the leaves and addressing K. with an air of authority, ‘you are a house-painter?’ ‘No,’ said K., ‘I’m the junior manager of a large Bank.’ This answer evoked such a hearty outburst of laughter from the Right party that K. had to laugh too. People doubled up with their hands on their knees and shook as if in spasms of coughing.

Once designated a slot in the criminal system, there is no space for even the most formal and empty right of subjectivity; the mere idea induces fits of laughter.

Similarly, the reduction of a defendant to a “consumer / client” who is assessed a cost regardless of her guilt or innocence assigns her a role that cannot be changed; in this role the defendant is stripped of all personal characteristics, her agency revoked; she may be guilty or innocent, but irregardless [1] due solely to her imposed role she is given duties with which she must comply and which she is given no recourse to change; she is reduced to being a characterless party of a transaction she is forced into, a transaction she cannot leave or negotiate; her sole ability is to pay.

I think the arrows of cause and effect run differently in the different systems (neoliberal penalties are enacted because defendants are basically helpless to resist them, which doesn’t hold for show trials) nonetheless the stripping away of agency still looks fairly similar in each.

[1] Correct usage, aesthetically if not grammatically

10

cs 05.20.14 at 2:45 pm

They don’t necessarily see themselves as a customer because, obviously, they’re not choosing to be there. But in reality they are.

I guess “the customer is always right” doesn’t apply in this case.

11

Anderson 05.20.14 at 3:14 pm

Taking the practical point at 4 above to heart, I still think there’s a material difference between what’s charged to *defendants* (who are still presumed innocent) and what’s charged to those convicted.

I do however think that, unless the sentence imposed these costs or whatever, they should be illegal.

12

mud man 05.20.14 at 3:22 pm

@Rakesh #2: “Punishment” is never a rational goal.

13

Bloix 05.20.14 at 3:33 pm

A few years ago, I got a speeding ticket in North Carolina (at 7 a.m. on Thanksgiving morning – not a car in sight in any direction). IIFC the ticket was about $50 – but the “court fees” were about $200, whether you went to court or not.

The only way to avoid paying them was to go to court and win your case.

And almost of the money goes to the state general fund or other non-court purposes. http://www.wect.com/story/22237540/court-costs-where-your-speeding-ticket-fine-really-goes

14

Anderson 05.20.14 at 4:01 pm

13: yeah, that’s gotten crazy, particularly in places like my white-flight community where, god knows, they don’t want to raise property taxes, so let’s tax the sinners.

15

Barry 05.20.14 at 4:02 pm

Joshua Burton: ” The state can waste a stamp billing a judgment-proof defendant without financial consequence to the target.”

They can be jailed for non-payment. As I said above, it’s extortion, pure and simple.

16

TM 05.20.14 at 4:20 pm

The Nation:
The Town That Turned Poverty Into a Prison Sentence

Most states shut down their debtors’ prisons more than 100 years ago; in 2005, Harpersville, Alabama, opened one back up.
http://www.thenation.com/article/178845/town-turned-poverty-prison-sentence#

17

Andrew Burday 05.20.14 at 4:20 pm

“What made Stalinism so depraved, in the eyes of intellectuals, was not that it jailed or slaughtered men and women by the millions; it was that … it got those men and women, who were plainly innocent, to affirm their guilt…” I call false dichotomy. The killing was obviously wrong, the false confessions more subtly and interestingly so — hence e.g. Orwell’s emphasis on the latter. (Also, there’s a typo in there.)

Re the real point of the piece, interesting comparison but it at least needs qualification. The fees can be explained by their obvious function of denying the poor equal access to the criminal justice system. And the comparison to Stalinism is inexact. Had the Stalinist “confessions” been real, they would have been admissions of acts that really were culpable under Soviet communism. The same is not true of the clerk’s claim about the nature of the courts. Every (sympathetic) account of capitalism distinguishes between market freedom and the state’s monopoly on coercion. The clerk doesn’t understand capitalism. The Stalinist prosecutors understood Communism. (There’s also the gross factual inaccuracy of seeing the respondent, the defendant, in the role of customer. If anyone were a customer, it would the actor which brought the action, i.e. the state. And the clerk is assuming the defendant’s guilt.)

Still, interesting and frightening to see someone at the very heart of the criminal justice system thinking like a Stalinist! Too bad he didn’t explicitly use the term “false consciousness”. I expect to see right wing defenders of freedom of conscience leap to attack this gross corruption of our justice system.

Another terrifying example of the same kind of thinking is “suicide by cop”: if the police killed you, it was because that was what you wanted.

18

Harold 05.20.14 at 4:41 pm

I know about this. I can involve whole families and even the dead, whose estates are garnished to pay for the jail expenses of grandchildren and great grandchildren. It is a form of debt peonage — not to mention a land grab from farm families.

I find the comparison to Stalinism far fetched (but not surprising from Corey Robin). It is more of the same old same old that was routine in reconstruction Mississippi and has now spread to the entire countryside.

19

Rakesh 05.20.14 at 5:01 pm

mudman @12
Pashukanis’ puzzle is exactly what sustains punishment conceived in terms of equivalence to the crime, i.e. as a form of “fair trading” through the paying of debt that completes what had been an “involuntary concluded contract”, in the face of mounting evidence of the social irrationality of punishment.
The OP seems to argue that making criminals pay makes capitalists of them. Maybe on a very loose understanding of “a capitalist”. Pashukanis’ point is crime is dealt with in terms of the abstract logic of commodity transactions and thus reinforces it, at the expense of social irrationality.
Pashukanis of course has important critics. For one, he tries to understand the legal form in terms of categories from the circulation of commodities, not their production.

20

mud man 05.20.14 at 5:13 pm

@Rakesh: Well, knowing no more than what you say, he’s barking up the wrong tree. Punishment, like War, is not about equivalence, rather destruction. Not intrinsically limited, unless you’re having a Just War, hi ho old chaps, break for a spot of Christmas? A rational approach to the well-ordering of society would look forwards, not backwards.

#17: I was also thinking these demands have an aspect of forcing country folk into the cash economy, v. Graeber.

21

L2P 05.20.14 at 5:26 pm

I think you’re misunderstanding how court fees work.

Court fees are administratively charged to all parties, including criminal defendants. Why should the state have to pay for the rich inside trader’s thousands of court filings? Same with Public Defender costs. Often people ask for a public defender and actually can afford their own defense, so they are billed for the time. (I’ve many times seen a PD represent a wealthy person at arraignemtn simply because the PD was there and the defendant didn’t have any other attorney.)

However, the constitution doesn’t require indigent parties to pay these fees. The court is supposed to inquire as to the financial status of the defendant, and if they are indigent the court waives the fees. This happens for all cases, even civil. There’s usually a form you file to prove indigent status with the initial pleadings.

The problem isn’t with the system, it’s with how it’s administered at certain courts. Some courts never conduct the indigency inquiries until collection, some never do it at all. This is clearly unconstitutional, but it can go on for some time.

tl,dr: The problem isn’t with “America,” it’s with “That courthouse in Mississippi.” America’s justice system doesn’t work this way.

22

Shatterface 05.20.14 at 6:06 pm

In at least 41 states, inmates can be charged room and board for jail and prison stays.

I think this would be fair enough if non-payment resulted in eviction.

23

Harold 05.20.14 at 6:43 pm

In 1907 the Italian government put out a pamphlet that it distributed in railroad stations in Northern Italy, warning emigrants “Don’t Go to the Mississippi”, because of widespread debt peonage there, according to John Barry’s book, “Rising Tide.”

And James C. Cobb in “The Most Southern Place on Earth” predicted in 1992 that the entire country was now on the way to becoming like the Mississippi Delta. A prediction that has come true.

24

Anderson 05.20.14 at 6:47 pm

20 – this goes beyond “court fees,” and while I’m happy to agree that my local courthouse is part of the problem, the #s of states mentioned in the post & the NPR item indicate this isn’t some sort of Deep South aberration.

25

Harold 05.20.14 at 6:58 pm

My friend keeps in touch with her late father’s relatives in Western PA., and the entire younger generation there is now in jail because of laws like these. These were the Scots-Irish yeoman farmers that settled the country.

26

rea 05.20.14 at 9:19 pm

Constitutionally, failure to pay fines, costs or fees isn’t supposed to result in confinement unless the defendant could pay but doesn’t–either the defendant has enough money, or could have enough, if he or she would make reasonable efforts at working.

In practice, though, the burden is on the defendant to come forward and make a showing that he can’t pay, and many are too muddled to do that effectively and in timely fashion.

27

Harold 05.20.14 at 9:47 pm

If he can’t pay then perhaps his aging grandmother, who has signed security for him, will be liable and will lose her house.

And what about the practice in NYC of removing 5-year-olds from the classroom by ambulance, if they were being difficult or having a tantrum, and presenting the parents with the $2,000 ambulance bill. (This only happens to minority children, of course.)

28

bianca steele 05.21.14 at 1:55 am

I’m surprised no one’s commented on this:
In the same way that the Stalinist show trial was meant to model the virtuous comrade—so dutiful to the ideals of communism that he would sacrifice his very life in order to validate the cause
Sartre, right?

29

Barry 05.21.14 at 1:22 pm

Corey: “One of the most frequent motifs in the literature on Stalinism is that of the dissenter who confesses to a crime he never committed. What made Stalinism so depraved, in the eyes of intellectuals, was not that it jailed or slaughtered men and women by the millions; it was that it was that it got those men and women, who were plainly innocent, to affirm their guilt to a waiting world.”

I’ve seen this before, and was amazed at people who don’t seem to understand phrases like ‘torture him until he confesses’ and ‘talk and your wife and children will be spared’.

30

Barry 05.21.14 at 1:24 pm

l2p: “The problem isn’t with the system, it’s with how it’s administered at certain courts. Some courts never conduct the indigency inquiries until collection, some never do it at all. This is clearly unconstitutional, but it can go on for some time. “

In the original post, there were counts given of the number of states doing these things; the lowest count was 41. 41/50 = 82%.

The problem is indeed with the system.

31

Sisyphus 05.21.14 at 2:26 pm

“The only reason that the court is in operation and doing business at that point in time is because that defendant has come in and is a user of those services. They don’t necessarily see themselves as a customer because, obviously, they’re not choosing to be there. But in reality they are.”

No. This shows a fundamental inability to identify the purpose of a civil justice system. The defendant ISN’T the customer. We, collectively, as society are the customers of the justice system. It is a system we should pay for in order to balance the competing interests of protecting us from crime, and protecting us from the state. Therefore, it is most appropriate that we, collectively, pay for the public defenders, the courts, and everything else that goes with it. The defendant isn’t the customer. He’s a part of the product. Idiot.

32

stevenjohnson 05.21.14 at 2:40 pm

Maybe it’s already been said, but it’s well worth saying again: “I’ve seen this before, and was amazed at people who don’t seem to understand phrases like ‘torture him until he confesses’ and ‘talk and your wife and children will be spared’.” Thank you, Barry, @29.

33

Barry 05.21.14 at 2:54 pm

Thanks stevenjohnson!

““The only reason that the court is in operation and doing business at that point in time is because that defendant has come in and is a user of those services. They don’t necessarily see themselves as a customer because, obviously, they’re not choosing to be there. But in reality they are.”

Note that an organlegger could say the exact same thing, with the exact same level of truth.

34

Greg Hays 05.21.14 at 3:59 pm

L2P: “The problem isn’t with “America,” it’s with “That courthouse in Mississippi.” America’s justice system doesn’t work this way.”

Spoken like a true Scotsman.

35

Corey Robin 05.21.14 at 4:03 pm

Amazing how “Mississippi” or “the South” functions as a get out of jail free card for the true believers in America.

36

Harold 05.21.14 at 4:13 pm

I, for one, am glad we have a select vanguard of eagle-eyed intellectuals on the ramparts of the press who will do whatever it takes to protect us from the evils of Stalinism.

37

sc 05.21.14 at 6:49 pm

isn’t the entire practice of over-charging and plea bargaining in the US justice system also a way to get people to confess to crimes which they in some cases never committed?

38

Sean Matthews 05.21.14 at 9:28 pm

> What made Stalinism so depraved, in the eyes of intellectuals, was not that it jailed
> or slaughtered men and women by the millions, [...]

I was under the impression that quite a lot of intellectuals objected to the jail and slaughter of millions, thus I am left wondering why you wish to imply otherwise.

39

Corey Robin 05.21.14 at 9:41 pm

Sean: “I was under the impression that quite a lot of intellectuals objected to the jail and slaughter of millions, thus I am left wondering why you wish to imply otherwise.”

Read Darkness At Noon. The God That Failed. 1984. Even Arendt’s The Origins of Totalitarianism. All those classics of the genre make it very clear that sending people, even lots of people, to jail and/or killing them is not really the heart of the evil that is totalitarianism.

40

bianca steele 05.21.14 at 9:55 pm

Corey,

Someone somewhere said “the willingness of the Bukharins of this world to give up their lives for the sake of their ideology remains, for many, the final statement of modern self-abasement.” (I don’t doubt at least some of them did so willingly, and if anyone knew what it was like to be tempted to do so, it was probably Koestler.)

That’s an accusation against the Bukharins of the world, surely, not against those who put them on trial for crimes they didn’t commit. I find it hard to believe that people who weren’t ex-communists would feel the same. I don’t think most people use “intellectual” to mean “ex-communist.” I’m surprised to see you, in 2014, repeating sixty-year-old anti-communist talking points as if they applied right now. I’m surprised to see you implying (in the OP, not in @39) that the worst thing about Communism is that it demanded self-sacrifice.

41

stevenjohnson 05.21.14 at 10:23 pm

Of course that lot think it’s a good thing to explain how “the heart of the evil that is totalitarianism” has nothing to do with sending lots of people to jail or killing them. Otherwise someone might get confused and point at the jails and deaths of the blessed non-totalitarians. Again, the issue is why anyone should be so benighted as to take their excuses for the crusade seriously.

And not only is it preposterous to be appalled at how totalitarianism made the Communists volutarily confess (rather than the same techniques that made women confess to witchcraft.) The Stalinist show trials had other morals to their fables, such as the supposed international revolutionary Communists are really in cahoots with the Nazis (but we responsible Communists are willing to work with the Western Democracies.) Or, Stalin is the true leader, and those Trotskys and such who claim to be leaders are really traitors. Or, the problems we have are due to saboteurs.

May I suggest that the primary reason for these policies is that the courts and police and the rest of the government really do want the money?

42

Harold 05.21.14 at 10:25 pm

Although Confirmation is sometimes called the “sacrament of Christian maturity,” we must not confuse adult faith with the adult age of natural growth, nor forget that the baptismal grace is a grace of free, unmerited election and does not need “ratification” to become effective. St. Thomas Aquinas reminds us of this: Age of body does not determine age of soul. Even in childhood man can attain spiritual maturity: as the book of Wisdom says: For old age is not honored for length of time, or measured by number of years. Many children, through the strength of the Holy Spirit they have received, have bravely fought for Christ even to the shedding of their blood. (Catechism of the Catholic Church #1308)

43

Harold 05.21.14 at 11:44 pm

LF@4: “Are they simply re-imprisoned if they fail to meet payments?”

According to the NPR story, they are not technically imprisoned for debt, failure to pay is considered “a violation of parole” and they can be imprisoned for that. Or their relatives will have to put up bail.

I am glad that NPR finally got around to covering this, though I don’t think they have really given any idea of the scope of this problem and who it is affecting.

44

Corey Robin 05.21.14 at 11:44 pm

Bianca: ” I’m surprised to see you, in 2014, repeating sixty-year-old anti-communist talking points as if they applied right now. I’m surprised to see you implying (in the OP, not in @39) that the worst thing about Communism is that it demanded self-sacrifice.”

I think you’ve misread me. I don’t believe that argument about Communism at all. I’m saying other intellectuals made that argument. It is, however, true that Communist show trials forced people to confess to a guilt that was not theirs. They did it primarily, as I’ve argued in other posts on this blog and as someone repeats upthread, by threatening people’s families.

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Harold 05.22.14 at 1:03 am

They forced them to confess and *then* they killed/or imprisoned them.

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Harold 05.22.14 at 1:23 am

Corey Robin was “just kidding” when he implied that he agreed with the intellectuals who opposed Stalin.

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Pensans 05.22.14 at 12:36 pm

If you hate contingent fines, you must really really hate fines.

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Glen Tomkins 05.22.14 at 1:46 pm

We’ll be charging people for breathing air soon enough.

Free market fundamentalism sees every human need as a legitimate opportunity for someone to collect rents up to what the market will bear, and even necessary for the moral betterment of those forced to pay the rents. Bernie Sanders had to include a provision mandating co-pays for primary care in his Community Health Centers bill to get it passed. If we believe that it’s necessary to charge people for getting sick, of course we’re not going to stick at collecting what we can from people accused of committing crimes.

It’s only a matter of time before some corporation or other is allowed to start charging people for breathing. It will discourage overuse, don’t you see. Knock people out of that hammock of free air expectancy that so rots their moral fiber.

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David 05.22.14 at 2:28 pm

Are we uncritically using the term “totalitarianism” now? Gross.

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Bruce Wilder 05.22.14 at 3:00 pm

No, we’re critically examining the inverted totalitarianism rapidly emerging in the United States.

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Glen Tomkins 05.22.14 at 3:06 pm

Those Sovereign Citizens do seem to be aiming at some sort of dictatorship of the Lumpenproletariat.

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stevenjohnson 05.22.14 at 3:56 pm

Well, good to know the Darkness at Noon nonsense was irony. (Hadn’t seen those other posts.) I’ll concede I don’t understand inverted totalitarianism. I could hang a Jackson Pollock upside down and never know, so no surprise there. How the irony bites the target I don’t get either. So I’ll just take my misplaced indignation elsewhere.

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bianca steele 05.22.14 at 4:17 pm

Corey,

You’re right that I misunderstood you, and the more I think about what you’ve written in the past, the worrying of the whole totalitarianism thing makes more sense, but I really don’t see how the moral equivalency frame fits with the middle part of the post. Who are these people hating on Communism who are going to be nevertheless persuaded by the example, and what possible political action, etc., can this post push them toward? (Something beyond grandstanding, hopefully.) As irony, sure, it makes sense as a kind of “look at these people who don’t understand how they’re so similar to what they hate.”

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Corey Robin 05.22.14 at 4:34 pm

Bianca: Irony, I’m afraid, is all I got!

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ralph 05.23.14 at 11:53 pm

Yeah, I’m with Bianca here. I get what you’re trying to do here, and the effort is the right one: Whether we “legally” or “reasonably” charge people with their own impending punishment, we clearly do it in so many places that, at core, a critical core of jurisprudence — and therefore the system — does not care about the rule of law.

But the totalitarian thing here, not so much. You should just have gone straight on this one, I think. For example, debtor imprisonment is also illegal, yet several states and localities recently have been caught systematically doing it. THAT kind of lawlessness is, very truly, the decline of the ethical value of the state. If the state loses too much ethical weight…. we got problems.

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Martin Bento 05.26.14 at 3:19 am

“so does the American criminal justice system model the virtuous capitalist: so committed to the ideals of the free market that he’s willing to pay the price, in both senses of the word, of his crime. “

No, it doesn’t because the criminal justice system makes no pretense that the “capitalist” is *willing* to pay the price. He is openly compelled to pay it, and in this sense, this is no different from other punishments and is different from the show trials, where the victim was either brainwashed into agreeing or, at least, coerced into professing agreement with the justice of the charge To equate paying the cost of your incarceration with publicly endorsing it (sincerely or not) is to fall into Scalian equivalence: money equals speech. But, of course, it does not, which is why taxation does not violate the First Amendment. The perversity of the show trials is in making the system seem utterly innocent of even possible injustice by having the victim himself proclaim the system just in its punishment of him.

What this system does is impose large debts on people at the same time as making them almost impossible to pay off, because felons are virtually unemployable. It’s a great thing to hang over people’s heads for the rest of their lives. But any large fine imposed as a supplement to hard time would achieve this. The purpose of tying it to the costs of trial and incarceration is to rhetorically treat it as something other than punishment for the purpose of popular support. But the convict himself is not being enlisted in the ruse; he can complain all he wants about the injustice of it all.

The other problem of compelling people to pay for their punishment is that it drastically reduces or eliminates the cost to the public of imposing punishment. We have been far too enamored of punishment, and, at a minimum, it should cost us something to impose, so as to temper our enthusiasm. After all, it certainly costs the incarcerated a great deal regardless of whether he’s paying the direct expense, and if it is valid and important enough to us for us to do that, we should be willing to pay something for it.

But the problem here is not that America is developing a kind of Stalinism: the prisoners are not charged with subverting the state, indeed, the crimes themselves, including the drug offenses, are crimes almost anywhere in the world. This is not about ideology in any articulated sense. America is slipping back to a premodern, pre-individualist conception of justice, where the underclass as a whole is regarded as fundamentally criminal, at least its young male members, especially if they are black or Latino, and being certain whether a specific person is guilty of a specific crime, or whether the crime actually merits the punishment in this particular case, is only worthy of limited effort. If not guilty of this, they are guilty of something else, so get them off the street to directly protect the public and to encourage the others. This is not like something out of Koestler; it is like something from Dickens or Hugo.

You’re also making an argument based on a premise you say you do not accept (that the greatest evil of Stalinism was getting people to endorse the system even as it destroyed them). Is this post just a reductio, then, pointing out the absurd consequences of the view you attribute to Orwell et al? It certainly doesn’t seem so. You seem to feel there is something specially perverse about forcing people to finance their own punishments, and to think the comparison to the USSR is apt. But if you claim to be making a sound argument, you are committed to the validity of the premises. You’re trying to have it both ways, mocking the premise that the essential nature of Stalinism is self-betrayal, while still putting forth, with evidently some degree of seriousness, that the contemporary American penal system can be compared to Stalinism on that basis.

I take it we all here take a dim view of the Manson family. Why? The Tate/laBianca murders, almost solely. Sure, you may object to Squeaky’s bit of theatre with Ford or the perversion of Beatles songs, but those are pretty small beer next to the murders. However, if someone were to write a novel or essay seeking to get us to understand the nature of the Manson family, to get to the heart of it, would they dwell on the night of the murders? Quite unlikely. What do the murders tell us really? They are just brutal random murders of the sort that happen in the US from time to time. They are the effect. For the cause, we must look elsewhere. So someone writes a book about the Family, going into Manson’s personal background, the drug use and sex, the general cultural atmosphere, the specific content of their weird beliefs, Perhaps the fact that Squeaky pointed an unloaded gun at President Ford, or what Charlie meant by Helter Skelter can tell us more about how these people think than the murders can. That doesn’t mean a writer who says this is saying these things are more morally serious than the murders. If the next hippie commune over does the same drugs and talks the same gibberish, but generates no corpses, they may make an interesting comparison to Manson, they may even share some essence, but they cannot be subject to the same moral judgment. You need the corpses for that. The bases of the understanding and the moral judgment are distinct.

Likewise, Stalinism. Your moral judgment has to start with the worst crimes, and any other regimes you want to present as morally comparable have to meet that standard. If you want to understand Stalinism, however, the simple facts of mass incarceration and murder are mute. They do not explain themselves, so you must look elsewhere for an explanation, In the course of this, you may discover that the features of Stalinism that were most distinctive in its nature were not the murders. After all, there have been other massively-murderous regimes that were not Stalinist or communist, so it would be quite surprising if they were. Nonetheless, wherever you focus your gaze to try to achieve understanding, the fact of the murders, and the attendant moral judgment, lie over the horizon.

This is why Steven’s argument from murderous regimes that were not totalitarian is silly. Is anti-semitism central to an understanding of the Holocaust? Of course. But there have been other massively-murderous regimes that were not anti-semitic. Not all massively-murderous regimes are the same. But antisemitism is vital to understanding the Nazi one, communism is to understanding the Soviet one.

And Steven, if no one actually hates Stalinism for its tyranny, but only for its communism, then non-Stalinist Marxists do not actually hate Stalinist tyranny, whatever other differences they may have with Big Joe. Good to have that cleared up.

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