San Francisco Public Defender Jeff Adachi.
Photo by Luke Thomas
By Jeff Adachi
June 5, 2009
One of the ongoing debates of late surrounding the Community Justice Center (CJC) court concerns the question of how to force a person to change their behavior. The CJC might be viewed as a social experiment to determine whether coercion is effective in changing behavior. Will an alcohol addicted person who is hailed into court for passing out on the sidewalk stop drinking because he or she is in court facing some type of sanction?
What about a mentally ill person? Will judicial sanctions keep them from acting outside the law or engaging in destructive or obsessive behavior directly related to their mental illness? What about the crack user who continually endangers his health and drains his pocket book in order to get that one last hit? Will that person be more likely to stop their drug use if they are subjected to punishment? What about a homeless person who, night after night, sleeps on the sidewalk?
I recently met a brilliant author and political historian named Arthur Evans who wrote a book titled “Critique of Patriarchal Reason.” In Chapter Two, in a section titled “The Coerciveness of Law,” Evans writes, “whereas customs hold sway through social pressure, and personal values motivate through individual feeling, laws coerce through governmental or judicial machines set up to enforce them.”
Most people choose to comply with the law because that is how they have been conditioned. Laws that forbid malum in se conduct (conduct that is “bad” in and of itself) are usually followed by those who do not wish to violate social norms or customs that they have been taught. Other laws are followed because of personal values. A person who purposely throws an empty cup of coffee from his or her car while driving does not share the personal values of a person who strongly disfavors littering. Only if the person is “caught” and sanctioned will the person be motivated to change their behavior.
This eventual and resulting change in behavior, of course, assumes the litterer’s rational thought process. For a person who acts out of mental illness, or the kind of mental derangement that comes with abusing drugs, irrational decision-making is rarely influenced by fear of sanctions. Most people who are addicted to drugs do not think, “I should stop using or selling drugs because I might go to prison.” If that were the case, we would not have 60% of the people in prison there for using or selling drugs.
Most of the new cases that appear at the CJC fall in the category of loitering, illegal lodging, obstructing the sidewalk, and possession of paraphernalia and marijuana, petty theft and “public nuisance.” Those less likely to find their way into the CJC are litterers (only 1 case thus far), graffiti artists (3 cases), prostitutes (2 cases) and those fighting on the street (1 case).
As Evans writes, “[a] certain arbitrariness is likewise involved in the making of the laws . . . whatever the commanding entity decrees, is law. Hence in both their creation and execution, laws are arbitrary and coercive.” Many people think laws against possessing a small amount of marijuana are less about right and wrong and more about enforcing a shrinking minority view that marijuana should be outlawed in order to protect society from its harm. On the question of the law’s moral judgment, Evans argues, “laws need not have anything at all to do with right and wrong,” and “even when laws are passed to enforce supposedly universal values, they often turn out to re-enforce the value system of the principal backers of the commanding entity.”
So what are the values of the commanding entity? At the CJC, it is largely the police, who decide which cases are sent there. The police would probably say that they are responding to the needs of the greater community, who expect and demand that certain laws are enforced. But the laws that are enforced are really a combination of what the legislators have decided the laws should be, what laws the police decide to enforce and of course, what crimes are committed in a particular neighborhood.
Evans speaks from personal experience. As a pioneering civil rights activist in New York, he organized colorful and effective protests against unfair treatment and laws against gays and lesbians. His successful protests included taking over the clerk’s office and offering only gay (not straight) marriages to surprised callers and enlisting a troop of tuxedoed gay rights activists to greet then New York Governor Nelson Rockefeller at the opening night of the Opera. (He was hauled away.) He remembers the days when gays and lesbians could be arrested for showing public affection or violating the infamous “sodomy” laws that outlawed same-sex consensual relationships on the ground that these were “crimes against nature.” Ironically, these laws were justified on the grounds that they would deter homosexuality and coerce persons not to engage in same-sex relationships.
While it may be debatable whether laws punishing people for sleeping on the sidewalk and loitering are inherently unfair, when we begin criminalizing status offenses and using that as leverage to try and coerce behavior, we are enforcing the culture and demands of a commanding entity. A homeless person who commits a crime because of their status as a homeless person who is living on the streets becomes a ward of the court, and is then required to modify their conduct to adhere to certain conditions, i.e. find a job, live in a shelter, enroll in classes or seek public benefits. Of course, this can all be said to be in the best interest of the person.
CJC case-in-point involves a woman who is in her later years and was charged with a theft offense. She had been ordered to participate in a reentry program for women, but had not complied with the program requirements. Her case was then transferred to the CJC, and she was linked with a social worker who helped identify her needs, and recommended engagement in services. Her treatment plan included AA meetings, meeting with a housing counselor and attending a reentry program. While these needs are pressing, the woman was recently evicted from her apartment and will soon be homeless. Although she receives social security, her monthly payments are much less than her rent. As a result, most of her time is spent trying to cope with her impending homelessness. CJC can offer a temporary shelter, up to 7-days, but there are no easy fixes beyond this. Although she is good about showing up for court, there is no cure for the poverty she is struggling against. The CJC judge has given her speeches and tried to encourage her to turn her life around, but when it comes to dealing with issues of poverty, there is little the court can offer. Overwhelmed with her housing problems, she has not complied with her treatment plan. Unfortunately, no amount of coercion will likely change that.
Whether the law can be used effectively as a tool to change long term behavior and coerce specific outcomes is questionable, particularly when the person does not want to change or lacks the rational decision making process necessary to modify their behavior. Putting substance abuse and mental illness treatment aside, crimes involving poverty are not immediately solvable unless substantial resources are made available. Tangible needs cannot be satisfied by speeches and encouragement. Housing (as opposed to shelter), treatment on demand, food and health services do not magically appear, even at the Community Justice Center.