Episode 159: You Have the Right to Go to Prison

[00:00:00] Very Bad Wizards is a podcast with a philosopher, my dad, and psychologist David Pizarro having

[00:00:06] an informal discussion about issues in science and ethics.

[00:00:09] Please note that the discussion contains bad words that I'm not allowed to say, and knowing

[00:00:14] my dad some very inappropriate jokes.

[00:00:17] I like that.

[00:00:18] I like wittiness.

[00:00:19] I like the fact that you think you funny, but you ain't funny as me so don't you

[00:00:22] worry about that.

[00:01:12] I'm Tamler Sommers from the University of Houston.

[00:01:16] Dave, my daughter posted a photo of my dog Omar on Instagram to promote our last episode

[00:01:23] and it got a bunch of likes.

[00:01:24] Does that make Omar an influencer?

[00:01:26] Wait, I thought that was Charlie.

[00:01:28] Yeah.

[00:01:29] That wasn't Charlie.

[00:01:30] Which one is which?

[00:01:31] What do you mean?

[00:01:33] Omar is my pit bull.

[00:01:37] I think we have radically underutilized the power of your two dogs to give us a following

[00:01:46] on Instagram.

[00:01:47] We all know that pets are just good Instagram draws and our daughters are just not cute like

[00:01:54] they used to be.

[00:01:56] Yeah.

[00:01:57] Like, you know.

[00:01:58] Definitely not.

[00:01:59] Do you ever go and see old videos of, oh God, I would love to spend just a week with her that

[00:02:07] age like three years old for, oh man.

[00:02:11] I know the passage of time is the biggest fucking curse of existence and I wish I had

[00:02:18] never been born.

[00:02:19] It almost makes you not want to have been born.

[00:02:23] Yeah.

[00:02:24] So today on this episode we are going to talk about a really interesting paper that I came

[00:02:31] across and I pitched to you called Poor People Lose Gideon and the Critique of Rights.

[00:02:41] So it's a paper that was part of a special issue of the Yale Law Journal on the case

[00:02:45] Gideon v. Wainwright and it's the case that established that the defendant has

[00:02:51] a right to an attorney and the state has to pay for the attorney if the defendant can't

[00:02:56] afford it.

[00:02:57] And this paper by Paul Butler argues that this right that was established through this

[00:03:07] Supreme Court case has done more harm than good towards addressing injustice, inequality,

[00:03:17] racial injustice.

[00:03:19] Provocative, Tamler.

[00:03:21] It is a provocative paper.

[00:03:22] It's part of a broader, it's not picking on the Gideon case, it's part of a broader critique

[00:03:26] of rights that the Gideon case serves as an example of.

[00:03:31] So it's a really interesting paper and we'll talk about that in the second segment.

[00:03:36] But first.

[00:03:39] You came across.

[00:03:40] So it's somebody sent you on Twitter because I know that both you and I have been

[00:03:46] asking ourselves.

[00:03:47] I really want to be an anti-natalist.

[00:03:51] I'm just not sure how.

[00:03:53] We've talked about anti-natalism.

[00:03:55] We have certain listeners who are urging us to talk about it more or to have David

[00:04:00] Benatar on.

[00:04:02] But anti-natalism is the view that holds that it's better not to have been born.

[00:04:10] It's a bad thing to bring new humans into the world and people should stop doing it.

[00:04:20] It's unethical to have children given that it is an overall bad to exist.

[00:04:28] And we've not been impressed by the arguments for this position in the past.

[00:04:34] Although I think if you listen to the episode, I am far more sympathetic to the position.

[00:04:40] That's true.

[00:04:42] I think that I have no sympathy for the position whatsoever.

[00:04:46] It trades on two different kinds of argument and it doesn't, it can't totally make up

[00:04:54] its mind which one it focuses on.

[00:04:58] So the first is this idea that even if you bring a being into the world that has

[00:05:05] a life of almost pure joy but suffers just a little bit then that's wrong.

[00:05:14] That's bad.

[00:05:15] You did an unethical thing because you have caused wrong to the world and that's bad

[00:05:21] but it's not good to bring a being in the, like I don't even, I forget how that works

[00:05:30] exactly but that's the view.

[00:05:32] It's definitely the view.

[00:05:35] And then the second part is that it just is life offers more suffering than happiness

[00:05:44] for everybody pretty much.

[00:05:46] Right.

[00:05:47] And there there's an appeal to some of this like logical work on the negativity bias where

[00:05:53] like the negative events outweigh so like being tortured once is not equivalent to

[00:05:58] eating a hundred pieces of chocolate cake.

[00:06:00] Like it doesn't, right?

[00:06:01] So there's like an actual subjective sense in which negativity dominates positivity which

[00:06:08] is as you say different than these just the straight up I think conceptual argument of

[00:06:13] the first claim that even a bit of bad is bad but this one's more like, no I don't

[00:06:19] care what people say like overall, like overall in a utilitarian calculus bad still dominates

[00:06:26] over good in everybody's life.

[00:06:28] And I could respect that argument if it was well, if there is a lot of evidence for it.

[00:06:37] I don't think there is.

[00:06:38] I don't respect the little logical trick that they do to say that you know even if the

[00:06:45] being you bring into the world has 95% happiness and just a little bit of suffering then you

[00:06:52] still done the wrong thing.

[00:06:54] You know, people really should listen to our episode because I think we tackle a bit this

[00:06:58] like the empirical part.

[00:07:02] And let me just say it's also I think tossed in usually with what is a reasonable claim

[00:07:10] that there are too many overpopulation is a problem and that we should be vigilant

[00:07:17] about how many people we create which I think is totally reasonable doesn't require

[00:07:23] to defeat it.

[00:07:24] Yeah, the thing that really annoys me about it and annoys me about and this is a general

[00:07:30] thing that annoys me about certain kinds of arguments that take themselves to be controversial

[00:07:35] and counterintuitive is that when people object to them they just say oh well you're

[00:07:41] like a birth giver so of course you're going to object to it.

[00:07:46] You can't which is which yeah that's right that's that's the easy that's the

[00:07:53] easy ad hominem or I mean maybe in some cases it's right given that you hinge a lot of your

[00:08:00] philosophical arguments on the existence of your daughter maybe in your case in particular

[00:08:04] it's clear that you're completely biased and motivated.

[00:08:08] In my case my motivation is might actually be that in the sense that I kind of agree

[00:08:13] that having never been born if one can make a coherent statement about a preference

[00:08:20] for not having existed which that's arguable that maybe that is better than having been born

[00:08:26] as your joke about the two Jews on the best.

[00:08:30] Who has such a luck maybe one in a thousand I love that.

[00:08:34] You know that's on my dad's gravestone we put it on really yeah my brother and I we

[00:08:40] had to put something on his grain zone and we put but who has such a luck maybe

[00:08:44] one in a thousand.

[00:08:46] That's awesome.

[00:08:48] It's amazing.

[00:08:51] So so I feel I feel mildly guilty having brought a child into the world and I know that

[00:08:58] the joy that she brings me is is part of my sloppy patchwork to make my existence

[00:09:03] feel better.

[00:09:04] Wait really.

[00:09:05] Yeah you really feel guilty about bringing Bella into the world.

[00:09:10] I mean in some sense for the sake of this particular argument there are times in

[00:09:14] which I do feel guilty about bringing a child into the to the like especially when

[00:09:22] I contemplate the existential suffering that comes about from my own for instance

[00:09:27] fear of death and suffering at the death of others to think that I might have

[00:09:32] brought this upon another creature makes me sad but I am quickly convinced

[00:09:38] by by just the sheer pleasure that she brings me.

[00:09:42] And so I know that I'm motivated.

[00:09:44] So wait I'm surprised to hear you say that.

[00:09:49] Does that mean surprise because I expressed this in the other episode.

[00:09:52] No you didn't say specifically about I didn't think you thought said that about

[00:09:57] your child but maybe you did but like let me ask you this.

[00:10:01] Yeah.

[00:10:02] Does this mean you wouldn't have another child for that reason.

[00:10:05] No no no because that would mean that I'm driven by my principles.

[00:10:09] So you're an anti-natalist essentially.

[00:10:14] Well like I say this is at times I feel this and at times I clearly don't.

[00:10:19] So this is why I feel like it is it like I don't feel as if the

[00:10:27] that I can be persuaded by the complete principle that it is unethical to

[00:10:35] have a child I can be persuaded by the all things being equal you're running

[00:10:41] the risk of bringing in more suffering than happiness into the world.

[00:10:47] And that's sad.

[00:10:48] That would be sad to me like you could it's like the lot or you could

[00:10:51] have like a depressed kid and right.

[00:10:53] So that if someone wants to make that argument which is not the

[00:10:57] anti-natalist argument like that the chances of having like a depressed

[00:11:02] child a child that suffers crippling anxiety a child that you know like

[00:11:06] that's then I could be open to that but I feel like that the anti-natalist

[00:11:13] case that says that I've heard haven't made haven't done that.

[00:11:18] But since you at least have a side of you that's sympathetic to this

[00:11:23] argument you may be curious as how you are going to live.

[00:11:28] So as an anti-natalist and but in particular I'm curious for

[00:11:35] somebody to tell me the illustration because I don't I don't feel like

[00:11:38] reading.

[00:11:40] So there's a wiki how which is a website pretty much that just tells

[00:11:45] you how to do stuff right like how to put together like like how to tie

[00:11:50] its high which I always have to look up.

[00:11:52] Yeah.

[00:11:53] And so there is a wiki how then and then listen on Twitter

[00:11:58] that I can't find anymore drew this to my attention.

[00:12:02] And this is hilarious I think the pictures so we're like we got to put a

[00:12:06] link to this in the notes and you have to I would look at it as we talk

[00:12:11] about it because I think we're not going to be able to describe the

[00:12:16] comedy of the pictures.

[00:12:18] That's right.

[00:12:18] So there is so the step one is just this doctor talking to a

[00:12:27] woman like a way.

[00:12:29] Hold on.

[00:12:30] Let me let you just say there are 11 steps with like a paragraph and an

[00:12:34] illustration.

[00:12:35] Yeah.

[00:12:35] And the illustrations are huge.

[00:12:38] And in this one it's a female doctor and a woman and it just says and

[00:12:44] this is this makes sense do not start any additional lives.

[00:12:48] If you have not yet had children do not have any if you have had

[00:12:54] children don't have any more.

[00:12:56] So Dave do not allow yourself to procreate either deliberately or

[00:13:01] quote by accident.

[00:13:04] That that one is like interesting like don't don't don't do anything

[00:13:09] by accident.

[00:13:10] I also like why did the quotes around by accident.

[00:13:15] Like what is that maybe because philosophically it'd be incoherent

[00:13:18] to ask somebody not to have an accident.

[00:13:20] So the point is by definition you cannot intend to write the

[00:13:23] point is that people who have accidents are just irresponsible.

[00:13:26] It's sort of willful irresponsibility or at least epistemically

[00:13:30] knowledgeable.

[00:13:31] Take complete responsibility for contraception remain celibate

[00:13:38] bullshit or seek an early abortion just as they say let

[00:13:42] sleeping dogs lie allow the uncreated to remain in their

[00:13:46] undifferentiated painless state.

[00:13:51] Right.

[00:13:52] Which you are we're already bordering on the incoherence of

[00:13:54] talking about the identity of an uncreated being.

[00:13:57] Right.

[00:13:58] You want to describe the second.

[00:13:59] Yeah.

[00:13:59] OK.

[00:14:00] So the second one is this a woman reading reading a book paragraph

[00:14:05] says learn about anti-natalism read the book better never to

[00:14:07] have been the harm of fleeing to existence by David Benatar.

[00:14:10] This book will explain the logic behind the philosophy and

[00:14:13] natalism and continue to read other online articles and

[00:14:17] book reviews about anti-natalism.

[00:14:19] Because listen to podcasts about it.

[00:14:21] Listen to podcasts that might challenge it if dismissively

[00:14:26] consider how your anti-natalism will express itself before

[00:14:31] warned that this is a misunderstood and unpopular

[00:14:34] philosophy calling into question as it does the very

[00:14:37] meaning of human existence be discreet and consider the

[00:14:42] potential social familial employment and religious

[00:14:46] ramifications in your life.

[00:14:48] Yeah.

[00:14:49] It's just telling you to proceed cautiously.

[00:14:52] Yeah.

[00:14:53] Which is good advice in general if you have any unpopular

[00:14:55] beliefs.

[00:14:57] Right.

[00:14:58] Like vegans and meditators.

[00:15:00] Racists.

[00:15:02] Like it's not that unpopular here again there's just like

[00:15:07] a picture of two women talking to each other.

[00:15:09] Yeah.

[00:15:10] But one of them is black.

[00:15:11] One of the yeah that's the only woman of color that is

[00:15:15] in the other one is Asia.

[00:15:17] Yeah.

[00:15:17] There is an agent.

[00:15:19] Then the second one is two women talking to each other.

[00:15:22] Discuss the philosophy with other people.

[00:15:23] Is it all women?

[00:15:24] Once you feel it's all women.

[00:15:26] Maybe yeah.

[00:15:27] Oh that's unwittingly like because they're the ones

[00:15:30] to make the decisions.

[00:15:32] That's unwittingly.

[00:15:33] Sexist.

[00:15:33] Sexist but with an attempt to be non sexist I

[00:15:36] bet.

[00:15:37] Discuss the philosophy with other people once you

[00:15:38] feel confident and conversant with the anti-natalist

[00:15:40] philosophy as a person who was born yourself.

[00:15:44] Right.

[00:15:44] As a person who was born yourself.

[00:15:47] Supposed to all those stick up for the moral right of

[00:15:49] those who would not want to be born.

[00:15:52] See this it's just the way they're talking about it

[00:15:56] right now it just doesn't make sense.

[00:15:59] Yeah I mean and maybe you know I'm sure David

[00:16:02] Benhart tries to address some of this stuff directly

[00:16:05] but I should say like I actually don't know how

[00:16:09] many like do any other philosophers actually take

[00:16:12] this position I feel like he's a lone voice in the

[00:16:14] wilderness like even the hardest core consequentialist

[00:16:17] probably doesn't take this position.

[00:16:19] No I mean I think the consequentialist takes it

[00:16:22] from the consequentialist perspective.

[00:16:24] Are you what are the odds that you're the person

[00:16:28] that's going to be born it's going to have more

[00:16:30] happiness than suffering.

[00:16:31] Right.

[00:16:32] And then make your decision based on that.

[00:16:33] That makes sense to me.

[00:16:35] So we should run through we don't have to go

[00:16:37] through all of these specifically like because

[00:16:40] the last few are all sort of like general advice I

[00:16:43] think like about how to live a good life yourself.

[00:16:48] But the last one we got to talk about the last one.

[00:16:53] Don't be a downer and they might as well just

[00:16:56] say a Debbie downer because it really is all women.

[00:16:59] Don't be a downer while the anti-natalist philosophy

[00:17:03] is often considered to be against sentient human

[00:17:06] life. Recognition of the misfortune of having been

[00:17:09] born does not relegate you to dourness suffering

[00:17:12] complaining or misery.

[00:17:14] Anti-natalists can be as happy as the next person

[00:17:18] yet still recognize that everyone's suffering

[00:17:21] could be obviated if those people had never been

[00:17:23] born in the first place.

[00:17:24] Still once a person has been born they may

[00:17:28] as well make the best of a bad situation pursue

[00:17:30] pleasure for yourself and others and avoid

[00:17:33] contributing to suffering.

[00:17:34] Like in one of the earlier pieces of advice it was like

[00:17:36] you know like people might think that you're actually

[00:17:39] like suicidal and we wouldn't want that to be the case.

[00:17:41] Like so so be like a good a good proponent of this.

[00:17:46] A cheerful person that says it sucks that all

[00:17:49] of us have been born and we can't let any we should

[00:17:52] try or pass not. Yeah I'll tell you what I am swayed by

[00:17:55] that it's not clear to me that a universe in

[00:17:58] which no sentient beings ever existed is is

[00:18:02] not better than one in which they did.

[00:18:05] Like because there again I think I'm just calculating

[00:18:08] the odds of like sort of utilitarian pain suffering.

[00:18:12] But I also think that that like once you know

[00:18:16] the eventual demise of our species if that does occur

[00:18:19] which probably will like at some point that you know

[00:18:23] that might be better.

[00:18:24] Like I have a little bit of sympathy for super villains

[00:18:27] whose goal it is to like destroy the world.

[00:18:30] You know.

[00:18:31] No any of this about you.

[00:18:34] I guess and you're not a downer for the most part.

[00:18:36] No I'm trying to be happy so that you'll be convinced.

[00:18:39] Yeah.

[00:18:40] You know I try to get good sleep and eat right.

[00:18:43] And while the anti-navulous philosophy is often

[00:18:47] considered to be against sentient human life.

[00:18:50] I mean I don't know why they don't want

[00:18:54] bring it into existence and they're constantly

[00:18:56] bemoaning the fact that they're sentient.

[00:18:59] But yeah.

[00:19:02] So I know that you hate them more.

[00:19:05] No I mean you hate the Marvel.

[00:19:07] No I was going to say the Marvel movies.

[00:19:09] Thanos which is the big the big villain.

[00:19:12] He actually has something like this philosophy

[00:19:15] he his goal is to destroy half of all

[00:19:19] beings in the universe so that it will

[00:19:22] like minimize the suffering.

[00:19:24] No spoilers but that's his main goal.

[00:19:27] He's like you know like I get it.

[00:19:30] Anyone who's ever gonna see that has already seen it right.

[00:19:36] They're not holding on.

[00:19:37] I don't know.

[00:19:38] Yeah let's just say that he was successful.

[00:19:41] OK.

[00:19:42] Here's the best thing I'll say about anti-natalism.

[00:19:45] The last book famous last book of the Iliad

[00:19:48] Achilles and Priam the father of Hector

[00:19:53] are having a meal together.

[00:19:55] Their enemies Achilles has just killed Hector.

[00:19:59] They both talk about how human life is just

[00:20:03] suffering we're the we're the playthings of the gods.

[00:20:07] The gods love to figure out

[00:20:10] you know new ways for us to suffer existentially

[00:20:13] and there's something very moving

[00:20:17] and poignant and that speaks to

[00:20:21] a kind of existential misery

[00:20:25] that only human beings can experience.

[00:20:27] A kind of anguish that yeah I mean that does

[00:20:31] a lot more to make me pessimistic

[00:20:35] about the human experience

[00:20:38] than than the anti-natalist philosophy.

[00:20:40] But right I feel the same way about the book of Job

[00:20:44] and and to some extent the book of Ecclesiastes.

[00:20:46] We have to do Ecclesiastes.

[00:20:49] I we just read that and I signed it in my intro

[00:20:53] to ethics class for the first time.

[00:20:55] It's freaking phenomenal.

[00:20:56] It's so interesting.

[00:20:58] It's amazing.

[00:20:59] And what's hilarious to me is that it's like appended

[00:21:01] at the beginning at the end with like clearly somebody

[00:21:03] who was like by the way like Solomon was totally

[00:21:06] awesome after this and he was like yeah God is awesome.

[00:21:08] Follow God's law.

[00:21:09] Forget all the like.

[00:21:11] That was his conclusion.

[00:21:12] Forget all the nihilism that was just like

[00:21:16] it's we have to talk about Ecclesiastes at some point.

[00:21:18] Oh yeah I'd love to man.

[00:21:20] It's my I think it's my favorite book of the Bible.

[00:21:23] It's really interesting.

[00:21:24] Yeah this was motivated by the way by an article also

[00:21:28] that was about a guy who's suing his parents for being born

[00:21:31] which could be another discussion.

[00:21:33] But I don't know that it's worth saying anything other than

[00:21:36] well then I guess everybody could do that.

[00:21:38] The whole system would fall apart.

[00:21:40] I I yeah I don't have the article in front of me

[00:21:43] but I like it seemed a very weird thing

[00:21:46] where the parents were sort of taking it and stride.

[00:21:49] And yeah the parents are both lawyers

[00:21:51] and they're like if you want to take us to court

[00:21:53] like go for it.

[00:21:54] It's great.

[00:21:56] Part of me thinks that there is a bit of performance

[00:21:59] art to the anti-natalism movement

[00:22:03] that they know that there's something ridiculous about it

[00:22:07] and the way they're presenting it.

[00:22:09] And this the thing that made me think that was this wiki how

[00:22:12] like yeah this isn't like is this really meant to be serious.

[00:22:18] Like we're not supposed to laugh at this.

[00:22:21] In defense of the anti-natalists.

[00:22:24] I think I'm pretty sure that wiki how's existence

[00:22:28] is entirely explained by exploiting what people search for

[00:22:32] in Google and then writing articles based on that

[00:22:36] in order to get ads that get click-throughs.

[00:22:40] So they'll actually figure out what are the questions

[00:22:44] that people are asking like how to tie a tie

[00:22:46] and then quickly write a story on wiki how in order to do it.

[00:22:50] So there must have been some substantial

[00:22:52] like number of people typing in

[00:22:55] like what is anti-natalism for them to write.

[00:22:57] So you don't think an anti-natalist wrote this?

[00:23:00] I think no because I don't know.

[00:23:04] I mean no maybe I don't know.

[00:23:06] I mean maybe or maybe somebody who knows the arguments wrote it

[00:23:09] but how surprised would you be if it turned out that this was all

[00:23:14] some kind of meta bit of performance art.

[00:23:19] Just the whole anti-natalism thing.

[00:23:21] You mean like the restorative justice movement?

[00:23:24] No stop.

[00:23:28] So we're talking about like real issues.

[00:23:30] Yeah no no I withdraw my statement your honor

[00:23:36] about restorative justice.

[00:23:37] I don't think David Benatar is a performance artist

[00:23:41] but I think this is the ultimate in the Venn diagram between emo and analytic philosophy.

[00:23:49] Like this captures it like this is the best like let me put on some fucking eyeshadow

[00:23:56] pierce myself and say that like it's better to never have been born

[00:23:59] like there you can't like it is the ultimate in marketing.

[00:24:03] Yeah no that's a perfect way of describing it.

[00:24:07] Life is suffering man.

[00:24:09] Fuck you.

[00:24:11] Asymmetry argument.

[00:24:15] Non-identity is not a problem.

[00:24:18] All right we'll be right back to talk about something that actually matters.

[00:24:25] Like I want to like have depeche mode playing in the background.

[00:24:31] Today's episode is brought to you by Eero.

[00:24:34] Life is too short for bad Wi-Fi.

[00:24:38] Here's the thing the single router model just doesn't work for our increasingly

[00:24:42] high bandwidth world.

[00:24:44] It's simple physics like light waves Wi-Fi waves don't go through walls well.

[00:24:50] Imagine asking a light bulb in your living room to light your master bedroom.

[00:24:55] Okay light bulb in the living room will you light my master bedroom?

[00:25:00] No first of all you don't even have a master bedroom it's just a room it barely has a closet.

[00:25:05] It's not a master bedroom.

[00:25:07] Second of all I'm a light bulb and I can't go through walls it's simple physics.

[00:25:11] Third of all I can't even talk so you're having this conversation with yourself

[00:25:15] which is really fucking weird.

[00:25:18] Point is you need a distributed system which is what offices have had for years.

[00:25:23] So the people over at Eero introduced the Eero home Wi-Fi system bringing the idea of

[00:25:28] multiple access points placed throughout a house to consumers for the first time.

[00:25:33] With Eero you can install an enterprise grade Wi-Fi system in your home in just a few minutes.

[00:25:40] Simply download the Eero app on your iOS or Android devices and it'll walk you through

[00:25:45] each step of the process.

[00:25:46] It's quick easy and painless.

[00:25:49] I did it I'm recording this from my garage apartment that never used to get Wi-Fi

[00:25:53] and now it does.

[00:25:54] It works fantastic it's like magic.

[00:25:57] Eero has been a boon for the summer's family.

[00:26:00] Not only can I record

[00:26:02] the podcast up here but we're now actually living in the garage apartment

[00:26:06] and thanks to Eero we can still watch Netflix shows and not engage with each other as a family.

[00:26:13] Eero also comes with Eero Plus.

[00:26:15] Eero Plus is designed to provide simple reliable security that defends all your home's devices

[00:26:20] against a growing number of threats such as malware, spyware, fishing attacks

[00:26:25] as well as unsuitable content for your miners.

[00:26:28] Eliza you hear that?

[00:26:31] No.

[00:26:32] Eero Plus includes total network protection, the ability to block malicious and unwanted content

[00:26:37] throughout your entire network, advanced security, it checks the sites you visit against a database

[00:26:43] of millions of known threats, content blocking, Eero Plus automatically tags sites that contain

[00:26:49] violent illegal or adult content so you can choose what your kids can and cannot visit

[00:26:55] right in the Eero app.

[00:26:57] Ad blocking, get rid of those annoying ads and pop ups on all your devices.

[00:27:02] Third party security apps, VPN protection, password management from one password,

[00:27:07] antivirus software from malware bites.

[00:27:10] So never think about wifi again and we have a special offer for our listeners.

[00:27:15] Get $100 off the Eero base unit and two beacons package

[00:27:19] and one year of Eero Plus.

[00:27:21] To do that visit Eero.com slash Very Bad Wizards and at checkout enter Very Bad Wizards.

[00:27:28] Once again go to Eero.com slash Very Bad Wizards and at checkout enter Very Bad Wizards

[00:27:34] for $100 off the Eero base unit and two beacons package and one year of Eero Plus.

[00:27:40] Thanks to Eero for sponsoring this episode.

[00:28:40] Welcome back to Very Bad Wizards.

[00:28:42] This is the time, the very predictable time in the episode where we like to thank everybody

[00:28:46] for their support.

[00:28:49] We have really enjoyed all of the commentary, the communication via Twitter email and everything

[00:28:56] else in the discussions.

[00:28:58] Matter of fact I just recently was asked by a couple different people like how we get ideas

[00:29:04] for the show and I was like well a lot of it nowadays comes from listeners because

[00:29:09] we're limited in our creativity sometimes.

[00:29:13] If you want to get ahold of us you can email us verybadwizards.com.

[00:29:18] We promise we read them all.

[00:29:19] It's just hard to answer to them all.

[00:29:22] We hope you understand that.

[00:29:23] You can tweet to us at Very Bad Wizards or at Tamler or at P's.

[00:29:29] You can also engage in discussion with either us or people who listen to the show on the

[00:29:38] subreddit, reddit.com.

[00:29:40] Slash very bad wizards or on Facebook which is just very bad wizards.

[00:29:44] You can follow our Instagram account and if you would like to support us you could

[00:29:50] also give us an iTunes review.

[00:29:53] You can just go to iTunes and either just give us a rating or actually write a review.

[00:29:58] We think that helps people find us when they're looking for podcasts about the

[00:30:04] kind of stuff we talk about.

[00:30:05] And we love the reviews.

[00:30:07] And we do love the reviews.

[00:30:08] And they're very funny often.

[00:30:11] If you want to support us in more tangible ways that we always very much appreciate

[00:30:16] we do this gig out of love and we did it for years out of pocket.

[00:30:22] And we are very lucky to have enough supporters who do go out of their way to

[00:30:26] support us and we're so, so appreciative.

[00:30:29] You can just easily go to our support page on VeryBadWizards.com.

[00:30:35] And there you can find the various ways in which you can support us.

[00:30:38] For one, you can simply click on our Amazon link and shop as you normally would.

[00:30:42] And we get a little piece of that which we really appreciate.

[00:30:44] You could donate to us via PayPal, which we also really appreciate.

[00:30:48] And that actually is how many of our international listeners get to support us.

[00:30:55] And I feel like I don't give them or we don't give them enough love for that.

[00:31:00] Yeah.

[00:31:00] And I almost want to write a special email to everybody who's done that.

[00:31:05] And almost.

[00:31:07] I do want it.

[00:31:09] But as I said, I'm very unmotivated by principles.

[00:31:11] And finally, you can go to our Patreon page and support us.

[00:31:15] You get a few perks.

[00:31:17] We really very, very much appreciate our Patreon supporters.

[00:31:20] So we try to do special things for them.

[00:31:22] We are, we promise.

[00:31:26] I don't mean to chuckle after promise because we are going to record

[00:31:29] very soon an extra Patreon bonus episode.

[00:31:32] It might even be on Star Trek.

[00:31:34] The inner light, right?

[00:31:36] The inner light.

[00:31:37] Yeah.

[00:31:37] Arguably one of the best episodes.

[00:31:41] Yes.

[00:31:41] Thank you very much.

[00:31:43] And so let's, so this, this segment we're going to talk about a paper called Poor People Lose

[00:31:51] Gideon and the Critique of Rights.

[00:31:53] It's by Paul Butler, a law professor at Georgetown,

[00:31:56] author of a hip hop theory of justice.

[00:31:59] A long paper that's also really interesting.

[00:32:05] So the reason I pitched this, I'm teaching a course

[00:32:09] on the philosophy of punishment now as I do, I don't know,

[00:32:13] roughly every couple years.

[00:32:14] Sounds like a sexy course.

[00:32:16] Philosophy of punishment?

[00:32:18] No.

[00:32:18] No.

[00:32:19] Not that kind of punishment.

[00:32:20] You've been a bad boy.

[00:32:24] It's, yeah, no, it's on the criminal justice, which is not sexy.

[00:32:30] But we started out doing, as one does in these courses,

[00:32:34] the standard retributivism versus utilitarianism debate

[00:32:38] it's a debate that analytic philosophers love.

[00:32:42] There's a lot of cases and appeals to intuition and general principles

[00:32:47] versus particular cases, reflective equilibrium.

[00:32:51] Original position comes in, you know, the Rawlsian original position.

[00:32:54] What kind of institution of punishment would you pick

[00:32:58] behind the veil of ignorance?

[00:33:00] And so we're doing this and I kind of confess to the class

[00:33:04] that I was feeling a little bad at the level of abstraction

[00:33:09] in the literature that we were reading,

[00:33:12] given what's actually happening in the American criminal justice system

[00:33:17] it just seemed to bear no resemblance.

[00:33:21] Even though it was on the topic of criminal punishment

[00:33:25] and what justifies it

[00:33:26] and what is the best approach to have towards punishment.

[00:33:30] And so I sort of confessed this to the class

[00:33:33] one of my students was like, well, you know, this is a philosophy course

[00:33:36] you shouldn't feel bad about assigning philosophy in a philosophy course.

[00:33:39] But you know, so but after that, and I had planned to do this anyway

[00:33:43] but I bumped it up a little bit.

[00:33:44] I had them listen to Serial Season 3, a few episodes of that.

[00:33:49] Did you listen to that?

[00:33:50] Which is about just like a year of what goes on at the Cleveland jails and courthouses

[00:33:57] and it just follows a bunch of different cases.

[00:34:00] It's not really one story.

[00:34:01] It's really good at unveiling the mechanics of how criminal justice actually works.

[00:34:09] Most galling of all, and this is not Cleveland, this is everywhere.

[00:34:12] The fact that 97% of cases are plead out.

[00:34:18] They don't result in a trial.

[00:34:19] They result in plea bargains.

[00:34:21] And often the plea bargaining is prosecutors just adding on really scary charges

[00:34:28] to get them to plead to something lesser just to not take the risk that they would go to trial

[00:34:36] and all of a sudden go to prison for six years for doing barely anything at all.

[00:34:42] So, so you know I wanted to at least keep in mind how things actually function as

[00:34:48] as we go through the philosophy.

[00:34:50] And I was also looking for articles that address this disconnect between theory and practice.

[00:35:01] And this was one that I came across.

[00:35:04] It's a paper on rights discourse in America and in particular in the criminal justice system,

[00:35:14] although it extends beyond the criminal justice system to education.

[00:35:18] And it's on this case, Gideon v. Rainwright from 1963 that ruled, it's a Supreme Court case,

[00:35:26] the rule the states had to offer defense counsel to defendants who couldn't afford them.

[00:35:34] And the thesis of the essay is that the Gideon case and the right that it established

[00:35:42] hasn't addressed an alleviated racial injustice, the unequal treatment of poor and rich people

[00:35:49] in American criminal justice. Not only has it not addressed it or improved it,

[00:35:54] on the contrary it bears some responsibility for legitimizing the way that black people

[00:36:06] and poor people are treated in the justice system and has diffused political resistance

[00:36:14] to this system.

[00:36:15] It may have even worsened their play.

[00:36:17] Yeah, and it's making the broader point that so when the progressive movement,

[00:36:23] when they focus on rights discourse, that's misguided and that it may do more harm than good

[00:36:30] in furthering progressive causes.

[00:36:33] This general point extends even to landmark rulings like Brown v. Board of Education,

[00:36:40] for example, or the Miranda ruling, Miranda v. Arizona.

[00:36:45] And a lot more of these rights that we're sort of brought up thinking are incredible signs of

[00:36:52] progress and it's saying no, it's not.

[00:36:55] It's actually doing more to legitimize the status quo than it is helping the cause of the people it

[00:37:03] is trying to help.

[00:37:04] All right, yeah. So there's a couple things I want to say about your 25 minute intro.

[00:37:13] The article doesn't explain the Gideon v. Wainwright ruling.

[00:37:18] So if you are going to read this, which we'll link to it, just quickly hop over to Wikipedia

[00:37:23] and read that ruling, because I think that because this was in a special issue about that decision,

[00:37:29] there it seemed like there was no point in doing it.

[00:37:31] But as a standalone article at first, I was like, wait, what?

[00:37:35] It's not nearly as famous as Miranda or Brown v. Board of Education.

[00:37:41] But the second thing is you're right that this is a more,

[00:37:45] it's trying to make a more general critique, but it does specifically pick on Gideon v.

[00:37:49] Wainwright and like all of the arguments that make the meat of this, well not all of them,

[00:37:54] but the bulk of them are directed specifically at the Gideon.

[00:37:59] Yeah, so you're right. It applies the critique of rights to Gideon.

[00:38:04] It would be less interesting if you just thought of this as well.

[00:38:09] This right, I don't know, for me Brown v. Board of Education,

[00:38:15] the fact that this general critique is supposed to extend to something like that,

[00:38:20] so striking counterintuitive controversial kind of claim.

[00:38:24] And I didn't know that people argued this.

[00:38:27] So he summarizes the, you know, he's talking about sort of the mass incarceration of poor

[00:38:34] and black people. And I think this is an important point to make for people who

[00:38:38] are not going to read but only listen to this.

[00:38:41] He says, look, I'm not in this paper going to try to disentangle poor and black because

[00:38:47] the truth of the matter is it's poor people, black people, poor black people.

[00:38:54] And it's hard to know whether black people are affected by the criminal justice system

[00:38:59] more because they tend to be poor or because they tend to be poor because they're black.

[00:39:04] So he says like for now, let's just talk about the problem that applies to

[00:39:09] extremely disproportionately black people and poor people.

[00:39:13] And the problem is the way crazy rates of incarceration just in general in the country,

[00:39:19] but specifically disproportionately for black people.

[00:39:23] So the geographical areas that tend to have more black people are more enforced.

[00:39:29] There are more police stops and arrests made there.

[00:39:32] Peals to explicit implicit bias and prosecution as you said,

[00:39:36] but the coercive nature of guilty pleas and this sort of twisted Pascal's wager of

[00:39:43] threatening people with extreme negative outcomes so that they'll plea out

[00:39:47] in the cycle that this causes that once you're in the system, it's very,

[00:39:52] very hard to get out of it. So relating to Gideon before the case in 1960,

[00:39:58] 43% of the prison population was poor and now it's 80%.

[00:40:06] 660 out of 100,000 black men were in prison in 1960 before Gideon and now it's over 3000.

[00:40:15] Black white incarceration, black versus white proportion is now 7 to 1

[00:40:22] where it was a little over 3 to 1 before then.

[00:40:26] This was a striking stat. More than two thirds of black males who do not have college degrees

[00:40:33] will be incarcerated at some point in their lives.

[00:40:36] So clearly granting the right to an attorney didn't solve the problem.

[00:40:43] So the problem has grown and if it were merely granting the right to an attorney that would

[00:40:49] have, that was the root of the problem then if granting all these rights is supposed

[00:40:53] to have made shit better then why is shit so much worse.

[00:40:57] So there's a weaker claim where you could just say this right and other rights like it,

[00:41:02] the Miranda right, it's a first step but it's not going to do the work all on its own.

[00:41:08] And then there's the stronger claim which I think he makes which is more controversial.

[00:41:13] It's not controversial. I don't think anybody would deny the weaker claim.

[00:41:17] The stronger claim is that it's actually done more harm than good,

[00:41:22] that it's made certain developments easier for certain people to defend.

[00:41:28] I think that he's saying that it has substituted out like in this general focus on the rights

[00:41:34] by what he says the progressive left is hyper focused on has led people to ignore problems

[00:41:42] that they otherwise might not have ignored. Which I do think is a contentious claim

[00:41:47] and I'm not convinced but why don't you go through the rights,

[00:41:53] the general critique of rights that he... Yeah.

[00:41:56] The first is that the discourse of rights is less useful in securing progressive social change

[00:42:05] than liberal theorists and politicians assume legal rights are in fact indeterminate

[00:42:12] and incoherent.

[00:42:14] Yeah, I didn't understand the incoherent part.

[00:42:16] Yeah, I don't either exactly. The use of rights discourse stunts human imagination and mystifies

[00:42:24] people about how law really works. This to me I think is the strongest claim.

[00:42:30] The fourth is at least as prevailing in American law the discourse of rights

[00:42:34] reflects and produces a kind of isolated individualism that hinders social solidarity

[00:42:41] and genuine human connection. This is when I knew you had a boner as soon as I read that.

[00:42:47] This is just like... Justice boner.

[00:42:49] Here's why Tamler wanted it. Yeah.

[00:42:53] And I wish there was more on this in the paper. There's not, there's a little bit on it

[00:42:58] but there's not enough. And finally that rights discourse can actually impede progressive

[00:43:04] movements for genuine democracy and justice and I think this is that stronger claim that we were

[00:43:10] just talking about. One thing just to put in a slightly broader context and then we'll dive into

[00:43:16] the specific argument I think this is of a piece with a kind of Marxist view of how ideology

[00:43:27] arises as a means of preserving the status quo. So a lot of these high-minded principles

[00:43:34] are put forth to protect unequal power structures but for that not to be transparent

[00:43:42] in the principles. The principles are supposedly these transcendent moral principles.

[00:43:47] The reason they actually emerge is to protect the unequal power structures that are in place.

[00:43:54] I think this is of a piece with that in the sense that a lot of these

[00:44:00] rights that are established are high-minded principles that in fact make it easier for the

[00:44:08] unequal status quo to be maintained. Right. So that makes sense. That actually helps

[00:44:14] understand what's motivating this. So the critique of rights in general

[00:44:19] that has impeded progressive movement. So here let's get into the...

[00:44:24] Maybe if I can say any like a just overall my overall view before we get into the nitty gritty.

[00:44:31] This is a paper where I found completely convincing about the disparity, completely

[00:44:38] convincing about the inability of a rights-based legislation and discourse to have reversed

[00:44:48] some of these problems. I'm not convinced that the case has been made, that there's a causal link

[00:44:59] but that and I think that's the important piece of his argument because it's sort of like I agree

[00:45:04] with almost everything that is being said except for the critical part that it is for instance.

[00:45:14] The impediment that it's actually an impediment. Yeah, I found it hard to think of like well

[00:45:20] if Gideon had never been decided that way would this have motivated people to find other solutions?

[00:45:30] My class was kind of split on this issue too. The problem with even evaluating that is we can't

[00:45:35] go back in time and imagine an alternate universe where it hadn't been decided.

[00:45:41] You could imagine maybe things would be even worse if the Gideon case... That's exactly right.

[00:45:47] That's like a very, very clear case in which like so just showing that things are worse than they

[00:45:52] used to be doesn't mean that they wouldn't be even worse without these decisions.

[00:46:00] Let's read his case because I do think there is some evidence for the view that it's been

[00:46:06] an impediment. Well the first is those basic facts, right? So that the fact that things have gotten so

[00:46:13] much worse since the case... So it's clear like that it was intended to make things more fair,

[00:46:19] right? Like there's no I don't think there's any argument that like saying everybody should

[00:46:23] ever write to an attorney was intended to improve things and so prima facie the not only lack

[00:46:32] of improvement but like the clear opposite trends. Right so what it did was it gives poor people

[00:46:39] lawyers but that wasn't the goal. That wasn't the ultimate end. The ultimate end was for them to be

[00:46:46] treated less unjustly by the system and in fact the opposite has happened so having a lawyer

[00:46:55] is small consolation and let me just give an example of an example that was sort of

[00:47:01] striking from serials. They had a case of a public defender and it was a totally trumped up

[00:47:09] charge. It was somebody who hit a cop by accident this is from the first episode

[00:47:13] and there was a lot of social pressure within the courthouse for him to accept

[00:47:21] a misdemeanor plea. Even though he thought, she thought everybody thinks when they're

[00:47:29] hearing about the case that she didn't do anything wrong at all and shouldn't have been

[00:47:33] arrested in the first place that there was pressure on him to just convince her to accept

[00:47:40] a plea so that he doesn't seem like an obstructionist and if he doesn't do that maybe he doesn't

[00:47:48] get a lot of cases thrown his way next time. So the fact that she had a lawyer here and this

[00:47:55] lawyer is sort of part of this social network of prosecutors and judges and other defense

[00:48:00] attorneys now in this case it ended up working I guess okay but in this case his interests aren't

[00:48:06] exactly aligned with her interests. I think that's actually that's a that's a compelling

[00:48:11] argument for a possible causal link or at least at best in there that having lawyers

[00:48:20] in some cases damaging some cases inert in some cases beneficial. It's like the system figures

[00:48:26] out a way to fuck the people even like and you just give them a lawyer so okay now we'll

[00:48:32] fuck you with a lawyer whereas before we were fucking you without a lawyer.

[00:48:36] Right. I don't know if this is obvious but the American you mentioned this the American

[00:48:42] criminal justice system is not a system of trials anymore. It is not at all. It's very very rare

[00:48:48] that people go to trial. I think it's between three and four percent of cases go to trial.

[00:48:56] In fact one of the alternatives that is suggested at the end of this paper is

[00:49:01] to get defendants somehow to coordinate going to trial this was proposed by Michelle Alexander who

[00:49:07] wrote the new Jim Crow and that would just crash the system. I mean I've talked to lawyers about

[00:49:12] this if 10 percent of cases went to trial the system would just collapse. This is like

[00:49:20] do you know what a DDoS attack is like a distributed denial of system attack

[00:49:24] on a website? No. Is if you want to bring down a website you just get a like a bunch of

[00:49:29] computers to visit the website in a way that is completely unpredicted by the server.

[00:49:35] Exactly. That's I mean that's the kind of alternative approach that you might consider

[00:49:42] but that has its own problems. We'll talk about that at the end because that's the last part

[00:49:46] of the paper. There are a couple things though that actually threw me off. What is the evidence

[00:49:52] that actually having an attorney actually makes a difference in your sentencing or in your

[00:49:59] conviction rates? He ends up citing more evidence that it does make a difference

[00:50:06] than that it doesn't. One thing about that data is so let me think about this but I think the

[00:50:13] idea might be that it's consistent with the view that as an individual it is better for you to have

[00:50:21] a public appointed attorney than not to have one but as a whole having this right might be

[00:50:31] on the whole harmful for poor and black communities even if it is helpful in a particular case for

[00:50:41] an individual because of other bits of collateral damage that it does. Right so you could imagine

[00:50:47] that quality of attorney has no real effect on poor and black defendants. So there's two different

[00:50:55] things. There's the quality of attorney like the right doesn't grant like that you get like Johnny

[00:51:02] Cochran it grants that you get an attorney. Yeah there is a law that says that if your

[00:51:08] attorney is incompetent then you're allowed to get it replaced but as he points out this is

[00:51:16] never happened like it's a pretty low bar. And this is part of the indeterminacy of the right so

[00:51:22] this is a broader critique of rights that they're indeterminate it's hard to know when

[00:51:26] they're observed and when they're not and there are famous cases of defense attorneys

[00:51:32] falling asleep during trials. And so well it's like but he did get an attorney it just he was

[00:51:41] just not a good attorney and then if you say if you establish well they have to be a competent

[00:51:46] attorney well what counts as a competent attorney. There is that Mississippi case where

[00:51:52] they would so the way they would get an attorney is the attorney that bid the lowest would take it

[00:51:58] for the least amount of money. It's Georgia sorry yeah and it's you know one of these cases

[00:52:05] where the system sort of self-organizes in a way that fucks people so it's where the attorney who

[00:52:11] agrees to low bid is the one who gets it. And so it's very hard to know and these things can get

[00:52:17] wrapped up in their own bureaucratic legal struggles like you establish this right to

[00:52:24] counsel but like how do we know what that when that's been fulfilled and when it's

[00:52:31] both in spirit and in letter and how do we nod and this is just a problem with rights in general.

[00:52:38] Yeah and here's where I think that there is a bit of slippage there is one an argument

[00:52:46] that the Gideon case simply isn't implemented well so there are many ways in which you could

[00:52:52] say like well the law is the law and in some cases it's just applied very very poorly.

[00:52:59] And so things are underfunded it doesn't get supported in the way that it ought to. So it's just

[00:53:06] like you know people aren't actually granting the right even though it is legally.

[00:53:14] So right that's the alternative view is that it's good that we have the right it's just

[00:53:18] that we're not implementing it properly and once we implement it properly it will make

[00:53:24] the kind of progress that people were hoping it would make. The counter argument is that there is

[00:53:31] something about rights as a rights discourse and the movement to grant people rights where this

[00:53:39] will always happen. The system will figure out a way to grant the letter of the right but still

[00:53:49] commit the same injustices that it's committing before because the same forces are in play the same

[00:53:56] economic forces the same you know whatever racial bias there's something about this way of approaching

[00:54:03] it that will always result in it being implemented poorly because it's so abstract is the idea.

[00:54:15] Right and and again Butler is fair when I think he concedes that in some cases it's very much not

[00:54:21] abstract. It's very much right so it's sometimes you know it's like well no I mean it does

[00:54:27] without the law it could very well be possible that there are tons of people without any hope

[00:54:32] of getting a lawyer and in that way it is concrete in many cases but to again to

[00:54:41] be charitable to this argument it is quite possible that this led led I think he's critiquing the

[00:54:49] progressive left this led us to rest on our laurels and that we're just not working and I

[00:54:55] don't like I don't personally think that this is a feature of rights-based discourse but rather

[00:55:03] just the potential feature of many any sort of legal solution to what might be sort of

[00:55:09] street level injustice like the poor will get fucked whether or not this was framed as a right

[00:55:16] or whether it was you know some other law like I think that this is this is often just a problem

[00:55:24] of getting getting the spirit of any law to work its way into the real sort of nitty gritty

[00:55:31] of say policing. This is where it would help to have an alternative. Yeah exactly. More of a

[00:55:37] fleshed out alternative to rights discourse so what wouldn't suffer from some of these issues?

[00:55:44] Right so actually I wanted to ask you this because Butler is saying at some point you know

[00:55:50] this is the problem with focusing on procedural justice rather than on the justice of say outcomes

[00:55:57] and I've always thought this is the case and you know I don't know

[00:56:01] anything about the legal discussion about this but I do know that there is work in the

[00:56:06] psychology of justice where people have argued now for a long time I think I'm doing a justice

[00:56:14] this work by Tom Tyler that procedural justice is what we need to focus on because that's what

[00:56:20] actually makes people right like the feeling that a fair process has occurred is what's

[00:56:25] important for people to be like to feel good about how things. Yeah and this is arguing

[00:56:33] exactly the opposite and it's arguing or it's arguing that yes I very much agree with you. Oh right

[00:56:41] yeah it's right it's just that that that it ends there everybody has the feeling that justice has

[00:56:47] occurred but nothing in fact has changed and I've always had that feeling about the work on

[00:56:53] on right so that it's procedural justice and in that literature the argument has always been

[00:56:58] like yeah this is what we need to focus on but I've always felt like it seems like a

[00:57:02] fucked up thing to focus on like yeah I feel like I got heard by a judge but if you really

[00:57:08] presented me evidence that every time I got heard by a judge they decided against me versus

[00:57:14] versus a world in which not getting heard by a judge but I didn't get like fucked

[00:57:19] like I would pick the world in which I didn't get that. That's right and that's the idea of

[00:57:23] focusing on needs rather than rights like no you're right exactly the when people feel

[00:57:30] like the process was fair they just stop asking whether you know the outcomes are fair

[00:57:38] and they feel like well justice is done this is part of that mystification I think of

[00:57:44] the what rights discourse might do and especially since a lot of rights are procedural rights

[00:57:49] that it might give the illusion of fairness where it's not actually there.

[00:57:57] It's not the fairness that I that you really actually want and it is hard to see what you

[00:58:02] could say as an individual who gets arrested say but you're read your Miranda rights. Yeah

[00:58:08] you didn't have like there was a clear clear in quotes probable cause for getting stopped

[00:58:15] right because they actually argued it successfully. You were read your Miranda rights. You were

[00:58:20] pointed a lawyer. You were told that you can choose to not plea bargain but like you're scared

[00:58:28] you get like the shit scared out of you because they're like well you could risk 25 to life. That's

[00:58:33] why I called it a twisted Pascal's wager. Yeah like you can you can risk 25 to life or you

[00:58:38] could just plea down to you know two years where you get out with probation after 18 months

[00:58:44] and all along if somebody said all right tell me like tell me where this where the system fucked

[00:58:51] you over like how is it not the case that your rights have been protected all the way through.

[00:58:56] What do you do like you can't not even I could point like what am I going to say like systemic

[00:59:01] bias right has caused me to like like there that's not a clear argument that one could make as

[00:59:07] an individual trying to defend oneself. That's right and meanwhile there's all these other

[00:59:12] things that you don't even know like the judge and the DA is putting pressure on the defense

[00:59:19] attorney to really try to persuade them to take the plea. And you and you as a good defense

[00:59:27] attorney who's really like you care about this stuff you're like dude I don't want you to risk

[00:59:31] 25 to life man like take this 18 months you'll be out in 18 months and your math might actually

[00:59:37] be right. Yeah no so there's a nice paragraph on this exact issue as discussed in part one the

[00:59:45] poor and especially the poor and black are incarcerated at exponentially greater levels

[00:59:49] now than when Gideon was decided if more poor people are represented by lawyers because of

[00:59:54] Gideon arguably their trials or plea bargains are fairer than before when they did not have

[01:00:00] lawyers thus the poor have simultaneously received a fairer process and more punishment.

[01:00:07] Gideon makes it more work and thus more difficult to make economic and racial critiques of criminal

[01:00:13] justice for the reasons you say like it's not clear what you're supposed to complain about.

[01:00:18] This is not to say people cannot and do not make those claims but rather that Gideon

[01:00:22] makes their arguments less persuasive. It creates a formal equality between the rich

[01:00:28] and the poor because now they both have lawyers. The vast over representation of

[01:00:33] the poor in America's prisons appears more like a narrative about personal responsibility

[01:00:39] than an indictment of criminal justice. Right I find myself more sympathetic to this argument after

[01:00:48] my discussion with you right now than I was before at the very least because it is

[01:00:55] not at all clear how in the case where your rights have been protected and you still get

[01:01:03] fucked over like how you could possibly right for all the reasons that we said like this

[01:01:07] asymmetry just seems like it's going to rear its head despite this and like for the very reason

[01:01:14] that Butler is saying like you have nothing to say everybody you're on you're just you

[01:01:19] you know you're in the same you're in the same legal situation as somebody who's rich or

[01:01:23] you know or non-black. Officially you're in that same situation but you're not

[01:01:29] right you really aren't. He quotes somebody else saying it makes it easier to blame the victim

[01:01:34] than it ever was because they have officially formally these rights that they didn't have

[01:01:42] before the same rights as everybody else even though the world doesn't really work that way

[01:01:47] at all but it's and can we talk about the individualist. Yeah. The claim because I think this is

[01:01:54] relevant to that so Gideon is a narrative about individual rights rather than a plea for

[01:02:00] class-based or race-based relief. This is consistent with Wendy Brown's observation that

[01:02:06] rights discourse converts social problems into matters of individualized, dehistoricized

[01:02:13] injury and entitlement. So I guess the idea and I wish this was fleshed out more but it makes it

[01:02:21] kind of like if you have a problem it's just your problem it's your problem maybe your

[01:02:26] lawyer's problem or the cop's problem that arrested you or the judge who gave you too harsh

[01:02:33] sentence or the and I don't like I feel like this there's something to this but it's just

[01:02:39] not fleshed out enough. Yeah. It doesn't it makes it harder for people to come together and to have

[01:02:47] the kind of solidarity that successful social movements need because it just pits it as an

[01:02:55] individual against the system rather than a group or class against the system. Yeah right I have

[01:03:00] highlighted as well the right after you the quote that you gave Gideon instructs us that we

[01:03:04] should respond to the problem that 80% of people charged with crimes in the US are poor

[01:03:08] by trying to get a lawyer for a poor person charged with a crime. So I'm sympathetic to this I think

[01:03:13] that like at the heart of it I am still not convinced that I want a world in which these

[01:03:19] legal rights aren't importantly given by the law but rather you know if the argument is that

[01:03:28] well it's placated us into ignoring the systemic problems then I think the solution is

[01:03:36] try really hard to focus on the other problems or maybe the problems of implementing the rights

[01:03:41] or whatever as abstract and hard to implement as some of these rights are like I think the

[01:03:48] Brown v. Board of Education decision for instance super important right like it made it illegal

[01:03:55] to engage in certain kinds of discrimination now whether people did still do it in a sneaky way

[01:04:01] like that that sucks and like whether people find other ways to do it in a legal way that also

[01:04:05] sucks but you know the analogy I was talking to my friend Nikki about this but like you know

[01:04:11] Cornell voted to outlaw professors dating undergrads we're like I could argue that

[01:04:19] that just is going to make it like all sneaky dating right like sure it's just here but

[01:04:28] but there's something in the communication of the norm and the at least at times strong

[01:04:34] enforcement of a specific right that I still think is good that that I think

[01:04:40] like Butler is talking to a particular audience about like hey look at this stop

[01:04:45] stop resting on your laurels at these legal victories and let's look at this because

[01:04:48] there's still a huge problem which I like I get a grant but I don't know that I would have

[01:04:53] liked to see a more fleshed argument so the strongest claim is that it's been an impediment

[01:04:58] right and so one argument for this would be social activism is a limited resource and if

[01:05:07] you devote energy into establishing certain kinds of rights that's energy that you could have

[01:05:13] used in a different way for some sort of protest movement or demonstrations but

[01:05:20] they're it's so vague about what the alternative is he also talks about jury nullification and

[01:05:26] which is an interesting thing on its own but it's certainly not something that could solve a

[01:05:33] problem of this scope and then the Michelle Alexander thing which is really just one of these

[01:05:40] like public goods problems where you're you as an individual defendant have to risk you know

[01:05:49] 10 or 15 extra years in prison in the hopes that other people will also be willing to take that

[01:05:55] risk right everybody let's all go to trial and then you're like the only one exactly so like

[01:06:02] all of these other alternatives have their issues too I mean you could argue Black Lives Matter

[01:06:08] has done more in raising awareness about police violence than maybe some sort of law that you know

[01:06:17] established a right not to be you know searched and seizure right or something like that or but I

[01:06:22] don't know if that's like it's hard to evaluate without like really figuring out what each of

[01:06:27] these things has accomplished and so that's a problem in terms of evaluating the strong claim

[01:06:39] is that we don't know exactly what the alternative would be the rights at best it's just made people

[01:06:46] feel at worst it's made people feel better about a really unjust situation than they otherwise would

[01:06:54] but but feeling worse about it doesn't solve the problem either no I know yeah and I think like

[01:07:00] I still think that these were really important battles to be fought and won legally just so

[01:07:07] that they're there so that that it is that it is clear that that that you can be defended it

[01:07:16] is clear that certain forms of segregation are just blatantly legal like I want those to be

[01:07:21] there but I totally buy the argument that perhaps like well no certainly I over believed

[01:07:29] that they were effective like as an analogy you might make this claim about recycling

[01:07:34] that like recycling has made people feel better about climate change like well no I recycle so

[01:07:41] I'm fine even though that's yeah just the tiniest drop in the bucket for right this is all the

[01:07:48] moral licensing yeah stuff like what he's arguing is it is societal moral licensing now we gave them

[01:07:54] the rights like we gave him the right um uh you know in Qatar which I travel to every year there is

[01:08:02] everywhere there are those bins like that's where you separated like five different categories of

[01:08:07] shit and I'm told with some degree of confidence that they as a country do not recycle at all

[01:08:14] those are just placebo bins they just it all goes to the same fucking right and I totally buy that so

[01:08:22] that's part of the idea is and and while you're being complacent about it but the question is what

[01:08:28] would we do if we weren't complacent about it the scope of the problem is so overwhelming like

[01:08:34] this was something that sort of came like we were having a very lively conversation about this in

[01:08:38] class and then you know you bring up well okay so what would be a better approach

[01:08:43] and it's very hard to even conceive of it's and that doesn't mean the argument's wrong it just means

[01:08:49] that that there is like you know this this is it's it's unclear whether or not there is anything else

[01:08:57] that could have been done I'm I have to get to class so I have at best five minutes left okay but

[01:09:02] I did want to talk a little bit about um what a reader who is not say part of the progressive

[01:09:10] left and reads this would would want to be convinced of and that is maybe it's not an error that to believe

[01:09:19] that that individuals have rights and that we've maintained like we've given and maintained these

[01:09:24] rights that it is in fact um the problem is simply just it is disproportionately true

[01:09:31] that black people and poor people are committing the crimes and that they are personally

[01:09:34] responsible for this I know that people reading the statistics might be tempted to conclude this

[01:09:40] yeah and I wanted to like actually at least focus on this because for a little bit because I think

[01:09:46] that objection could be the the objection that gets people to never even buy the rest of the

[01:09:51] argument right and it's not because it's not addressing that audience exactly no it's

[01:09:56] somebody exactly right this is the law review special issue you know these are not people

[01:10:01] who are like black people should just get their act together yeah um but that is that is

[01:10:09] you know I don't even think it should be dismissed like I think it should be addressed and

[01:10:13] part of the argument is um that like there are all these reasons why you might be led to a

[01:10:19] life of crime um in these particular communities which obviously I think people like us will buy

[01:10:26] but then there is there's other evidence that I think you can point to that look you can't

[01:10:31] I know here's one example if you're a white collar criminal in the suburbs

[01:10:37] there is no way that getting pulled over and searching your car is going to get you convicted

[01:10:42] right like it is low hanging fruit to police areas in which the crimes are holding marijuana

[01:10:51] and so like there are all sorts of reasons why um why similar rates of criminal behavior

[01:11:00] might get completely disproportionately represented in the criminal justice system

[01:11:06] now I think between that and the the inherent problems with living in fucked up communities

[01:11:13] and growing up in a poorer or like otherwise fucked up community might lead you to crime

[01:11:19] and then the inherent asymmetry in the ways in which you know policing works the war on drugs

[01:11:25] is Butler alludes to right hopefully that is convincing enough to say that this is not good

[01:11:31] you don't act that people don't actually believe that it's just inherent to poor people and

[01:11:37] really do your it is it is all fucking dominoes from the point where you get arrested for

[01:11:42] the first time and convicted for the first time because once that happens right you are

[01:11:47] screwed in ways that I don't think anybody who doesn't know someone very close to them who has

[01:11:52] had that happen to them or had it happened to themselves knows the ways in which you know

[01:11:58] a felon convicted felon is screwed for the rest of their lives in this system yeah I mean so

[01:12:05] here's one thing just to like an alternative that I can off the top of my head let's say

[01:12:10] you are committed to addressing this problem and and one way you could do it is to try to work for

[01:12:18] a law firm that either defends poor defendants or that tries to establish some sort of right against

[01:12:25] no knock raids or something like that or something that unfairly targets poor people

[01:12:32] and black people so that would be one approach and another approach might be to work with prisoners

[01:12:40] to provide job training and opportunities once they get out of prison maybe if you read this

[01:12:47] you're more convinced that you should do these kind of more offbeat approaches that that try to

[01:12:54] help people in in ways that don't establish some sort of principle or right but rather

[01:13:00] actually helps people do get something like get jobs or ban the box yeah something where it

[01:13:08] will actually have an effect directly not indirectly through this establishing a right but directly

[01:13:16] you are providing job training you're providing good halfway houses and transportation to

[01:13:22] interviews and transportation to parole officers and you know whatever the things that you have

[01:13:27] to do to try to minimize rates of recidivism they're even providing the right clothing yeah

[01:13:32] like to a poor ex-con for an interview yeah there's all sorts of ways and I think there are also

[01:13:38] like maybe you know legal solutions that need to be pursued about I mean I think you're on board with

[01:13:47] this right like just about the super fucking vindictive way in which we prevent ex-cons from

[01:13:56] getting jobs and even you know even voting and stuff like that I think there could be

[01:14:03] there could be laws that are specific enough that they would make a difference that we

[01:14:06] could fight for yeah I agree and you know certainly some rights have a great effect right away like

[01:14:14] you know right for same-sex people to marry I know a lot of people who are married that couldn't get

[01:14:19] married before like that's a very specific way yeah well I Tamler to sum up because I have to go

[01:14:27] cannot wait until I finally am awarded the right to not have been born

[01:14:31] I'm on Patreon

[01:14:33] the right to not have been born would have been would have been good

[01:14:39] 43 years ago yeah not to have been born it would have been a great right to have 43 years ago

[01:14:45] yeah well your parents fucked that up you should see them in court

[01:14:49] yeah I'd like to pursue this a little bit more hopefully at some further episode because I feel like there's more to talk about so

[01:14:59] but yeah this was great and join us next time on Very Bad Wizard