Cory Doctorow Learns The Meaning of Why

It’s never quite the same when the person sitting in the chair reserved for a defendant is someone you know.  Suddenly, it’s all real and very personal.  Where before it was merely bad, it’s now a disgrace.  That’s how it always happens.

Peter Watts is a Canadian science fiction writer, who traveled across the border to help out a friend.  On his way back, he had the misfortune of being targeted for a random search by one of the United State’s well-trained, disciplined and helpful border guards.  Watts assumed, as do so many others, that this would be a relatively normal human interaction, where a person could ask a question when given confusing directions.  Normal people speak to one another.  Normal people ask questions. Normal people anticipate a reasonably respectful interaction. 

But this wasn’t to be normal. This was a border crossing. This was an interaction with law enforcement officer backed by the might of the United States of America.  When such an official says jump, there is but one question permitted: “How high?”  Canadians may not be aware of the proper way to respond.  Peter Watts apparently wasn’t.

His friend, Cory Doctorow, expresses the pain he felt when his pal was convicted of obstruction.  He had the epiphany that comes from knowing the defendant.

That’s apparently the statute: if you don’t comply fast enough with a customs officer, he can beat you, gas you, jail you and then imprison you for two years. This isn’t about safety, it isn’t about security, it isn’t about the rule of law.

It’s about obedience.

Authoritarianism is a disease of the mind. It criminalizes the act of asking “why?” It is the obedience-sickness that turns good people into perpetrators and victims of atrocities great and small.

It’s all about obedience.  The law puts the power to command into many thousands of hands of people wearing badges, who can by their mere order turn a normal person into a criminal.  There are, of course, rights mentioned with some regularity in court decisions, but these are best saved for the quiet of the courtroom to assert, as the border guards generally lack the specific interest necessary to have a discussion with a recalcitrant crosser to engage in debate.  And they’ve got guns and shields to let people know that they must do as they are told.

The testimony at trial shows the problem quite clearly.

When officers started searching through the vehicle’s trunk and bags in the back seat, Watts said he wanted to know what was going on and got out of the vehicle. He said he was irritated and under the impression officers were required to talk to him about what was happening.

“This is weirdness upon weirdness,” he testified.

Watts said an officer twice ordered him to get back into the vehicle, but he didn’t immediately comply. He said at least one officer grabbed his arm, and he pulled away in a “flinch response.”
Peter Watts did what a person would do when dealing with a normal person; he asked “why?”  He thought he was entitled to an answer.  He thought the guard was “required” to respond.  He learned otherwise.

Beaudry said Watts grabbed the collar of either his uniform or jacket, and it felt as though he was being choked. The officer said he broke free after hitting Watts twice with his elbow and once with his knee. Eventually, both got out of the vehicle and Watts was ordered to the ground, Beaudry said.

At that point, Watts took an “assaultive” stance, Beaudry said. When Watts didn’t comply with orders, Beaudry said he used his pepper spray and the author eventually sat down on the ground.

The testimony reflects the different views from each seat in the house.  Movements become “furtive movements.”  Standing becomes “assaultive stance.”  The reflex of pulling away from an unwanted touching becomes resisting arrest.  Asking why becomes belligerence.  Normal people expect an answer to a fair question, to normal body movement, to being left physically unmolested.  Border guards expect people to do exactly what they say immediately and offer no resistance in the process.  Anything less is characterized as nefarious, threatening, even evil, by the mere addition of an adjective in front of it.

Had the border guard been civil, cooperative, polite, normal, this would never have escalated into a dispute.  That’s the normal perspective.  From the guard’s perspective, had Peter Watts just done what he was told to do without challenging the guard’s authority to do his job, this wouldn’t have escalated into a dispute.  The law sides with the guard, since the guard does the dirty work of the law and the law tries to make his job easier in return by providing him with authority far beyond the limits of good judgment.  Order is paramount, and would be put at risk if our boys on the front line don’t have our blind support.

Doctorow’s post about his friend demonstrates that he doesn’t have a great deal of knowledge about the mechanics of the legal system.  That’s fine.  He’s not American, and there’s no reason why he should.  But he wants his friend to continue the fight.

I don’t know if he will. He may decide to take his chances for a suspended sentence and forswear ever visiting America again, opting to be a writer instead of a professional litigant. I’d understand. But tonight, I’m understanding that dark place that so many of Peter’s books seem to come from. I think of myself, fundamentally, as a optimist and a believer that justice can and will prevail. But in the face of that jury’s decision, in face of the dishonesty of the officials, in the face of the absurdity of the statute, I feel like justice is a joke and hoping for it is a waste of time.

I’m sorry that the system failed you, Peter.

So sad, and so naive.  The system didn’t fail Peter. The system worked perfectly.  It’s the expectation that the system exists to satisfy some existential concept of justice that causes the dissonance.  Putting aside the axiom that justice is in the eye of the beholder, the system doesn’t exists to serve justice.  The system exists to maintain order.  Did you think otherwise?

The person who tipped me on Cory Doctorow’s post, Cathy Gellis, was appalled by the conviction.  She wrote, “Thought point was to arrest the bad guys, not the good ones.”  The vast majority of criminal laws in the United States are malum prohibitum, merely a choice between various behaviors where the government decides to make one choice, otherwise a perfectly fine choice, a crime.  There’s no necessary moral taint connected to the behavior.  Under other circumstances, the person who engages in such behavior wouldn’t be “bad”, except for the fact that it’s criminal to do so because a law says it is.  And that’s all it takes.

Like Cory Doctorow, I agree completely that Peter Watts’ conviction is absurd and horrible.  He was convicted for acting like a normal person under abnormal circumstances.  He was convicted for lacking the understanding that when interacting with officials with guns and shields, one bows deeply like a supplicant, just to avoid irritating small minds. 

Of course, there are many in the United States who would see his conduct as an affront the power and might of the border guard, who believe that any lack of total obedience to the command of a law enforcement officer is, indeed, evil.  They adore order.  Until it’s them or someone they care about in the defendant’s seat.  And that, Cory Doctorow, is why.

20 thoughts on “Cory Doctorow Learns The Meaning of Why

  1. Deborah

    So educate the public in the Power of the Jury. We do not have to accept bad laws but the Prosecutors say we do and the defense attorneys say nothing.

  2. SHG

    I assume what you’re referring to is jury nullification, a subject that’s been discussed here and elsewhere many times.  The problem is that you’re missing a critical element: The vast majority of jurors have no interest or desire to nullify law. They love order. They want order. They want it imposed on everyone but themselves.

  3. Rick Horowitz

    The day will come when enough people will be fed up with this that we will — like our forebears — no longer “stand” for this. More of us WILL take “assaultive stances” and start shooting.

    In Fresno, shootings between officers and civilians are already on the increase. But it is still mostly (real) criminals shooting. But as more officers take this “total control” approach as routine, I think that will change.

    We get the world we create. We are creating a world, both in politics and everyday life, where explaining, or giving reasons, is “only for the weak.” To be asked to explain is to have one’s integrity or authority challenged, rather than making oneself understood.

    For now, only certain people ask questions and make challenges. As the screw tightens, more will react. But this will cause the screw to tighten even more and we will be forced to choose between buckling to unreasoning capricious authority always and without question, or actually fighting back.

    The middle ground is shrinking.

  4. Brian Gurwitz

    “They adore order. Until it’s them or someone they care about in the defendant’s seat.”

    That is precisely the reason why justice would be served better in so many cases if there was a way prosecutors could not simply have experience as defense attorneys (you’ve undoubtedly heard that suggestion before), but actually know the defendant on the opposite side of counsel table.

    I don’t know how it could be done. But I do know from personal experience that it is far too easy for a prosecutor to caricature a defendant when all the prosecutor know about him is what was read in a police report, and on a rap sheet.

  5. SHG

    My position is that every new prosecutor should spend a few days in jail, just to savor the experience.  Before they should blithely put another person away, they should know what they’re doing.  A little context goes a long way.

  6. Nick42

    A little while ago I was doing some research on the exact meaning of “lawful order” ( as the crime of disobeying a lawful order from a LEO ) in the state of GA.

    I wasn’t able to find that definition, but I did find that most of those kinds of cases seem to be charged as obstruction of an officer. Even more surprisingly, it seems that there is still valid case law saying that it is lawful to physically resist an unlawful arrest.

    I have severe doubts about the actual effectiveness of such a defense, but I’m curious if any other jurisdictions have similar defenses and if / when they were last successfully used.

  7. R. Raymond

    As opposed to a few seasoned prosecutors who should spend some years in jail? I do agree that empathy would be a plus, and a firm understanding of how abusive DOs and jail can be would be a plus.

  8. Cathy

    Should that sentence read, “Under other circumstances, the person who engages in such behavior wouldN’T be “bad”…?

    If so, I know… One of my favorite courses from my undergrad years was “Sociology of Law,” where we studied how societies tended to decide which behaviors to deem bad or not. (An interesting example: someone had done a survey of vagrancy laws in old England. Vagrancy was much more harshly punished in times of labor shortages, because, gosh darnit, those horrible people weren’t working!)

    Nonetheless, my tweet was premised on the idea that society had already decided where to draw the line between good and bad behaviors — and therefore who gets to be labeled as good or bad people — but it hadn’t actually included Watts in the Bad Person distinction. His eventual “badness” stemmed entirely from his general goodness accidentally being caught in the Bad People’s net. Given how much we like to scoop up the bad people to sequester them from society, shouldn’t we make sure that there’s plenty of room in that net without it being clogged-up with good people?

    In other words, even the most animalistic instincts towards the applicability of criminal law in this country are hardly advanced by this sort of thing.

    (BTW, thanks for blogging this.)

  9. SHG

    Thanks for picking up that mistake. You are correct that it should read “woulN’T”. 

    As for the good and bad, never forget that it usually depends on where you sit.  The border guard’s wife is thrilled that her husband was safe by subduing the potentially disobendient, potentially violent, potentially criminal fellow who refused to obey his orders.  She’s thrilled because he came home to her and the kids safe that night.  It’s all according to where you sit.

  10. Stephen

    That was particularly clear to me in this case. Statements from the jury afterwards were along the lines of “yeah, it seems pretty messed up but that’s what the law says to do.”

  11. Rumpole

    The border guard and his wife should also watch what they say in front of the hired help or they may end up like Lorraine Henderson. See todays

    “A former Department of Homeland Security official once in charge of keeping some of New England’s key ports secure from illegal immigration was found guilty yesterday of deliberately encouraging her Brazilian housekeeper to illegally stay in the country.”

  12. Sojourner

    This is reminding me of the KKK south, where not saying yes sir could mean a beating and jail. And in Texas, this south is still hiding just below the surface.

    I agree that all new prosecutors should spend a few (I actually think at least two weeks) in jail. The toughest jail in their jurisdiction.

  13. Sojourner

    Perhaps a week in jail every three years should be a job requirement. No special treatment either. The only other thing I think might help is having vista volunteers be ‘border guards’ and police officer. We are slouching into fascism and the people choosing these fields are often those with character defects that make them unfit for the job — and the situation snowballs.

  14. Lee

    As a lawyer who has worked both sides of the criminal bar, I thought I’d weigh in on the idea of prosecutors serving time in order to have the experience of jail before urging it upon anyone else.

    I sympathize with the impulse, but I don’t think it would work. In fact, I believe it would be counterproductive because it would lead them to believe they know what they are asking for when they ask for a conviction, or for jail, when in fact they still don’t.

    First, spending a few days in jail doesn’t compare with the weeks, months, or years that convicted persons are routinely sentenced to.

    Second, I simply don’t believe that prosecutors would be exposed to the risks to their safety that most prisoners are — neither they, not their employers, nor the public would ever put up with it, so they would be exempt from the danger and constant worry for one’s physical safety that is an integral part of the experience of jail.

    Third, they would not be weighted down with the criminal record that convicted persons get, which interferes with their private relations, their employment, and their ability to travel for the rest of their lives.

    There’s more, but you get the idea.

    My point is that confining prosecutors briefly in a pretend jail situation (it’s pretend even if it’s in a real jail) will have one profound effect if it has any at all: it will persuade prosecutors that they know what a conviction means and what jail is like when in fact they have no idea. They will still be ignorant of the reality they push for when they press for a conviction; the difference is that they will be convinced that they are *not* ignorant.

    This is not a screed against prosecutors — I just mean to point out that I think the logic of this proposal is flawed.

  15. Uplinktruck

    Interesting take on things. I’m sorry you couldn’t make the trial.

    However, I did. The testimony on the first day and the morning of the second day paints a far different picture then the bloggers (who weren’t there) paint.

    It is interesting to note this is not Mr. Watts’ first go round with the police. There is a previous obstruction charge from 1991. (It’s mentioned in the court events.)

    However, even with all these facts it is hard to say Mr. Watts earned a felony charge. But it was clear he did not go along with the program. The jury had no choice.

    In a perfect world, this would be offsetting penalties, repeat first down. But this is not a perfect world. And where do we draw the line while still preserving officer safety?

    Perhaps this will lead to a repair job on a broadly worded statute.

  16. SHG

    Unfortunately, we often are left to work with reports of testimony, which means that it’s filtered through someone else. That’s life, and that’s part of the understanding when reading commentary removed from personal experience.  Also unfortunately, it’s almost assuredly not going to lead to any change in the statute.  Catch-alls are there for a reason, and the reason is to broadly cover whatever the government wants it to cover.

  17. Fergus O'Rourke

    But, but … is not the U.S. an entity where there is government by the People ? So, “government wants” means not only “Congress wants” but “The People want” ?

  18. SHG

    That’s more a general concept. Even if it weren’t, the people want these catch-all laws, except then they or their friends or loved ones are in the defendant’s seat.  It’s only then that laws have concrete meaning.

  19. Curt Sampson

    So, Peter Watts is “free”.  Well, a suspended sentence plus time served, anyway. So did he pay?

    The beating he received can’t count: that he needed it was why he was being punished. And he did spend a few days in jail. As well, he had to pay close to two thousand dollars in fines and costs. (Friends and fans came up with a lot more to pay his lawyer, Doug Mullkoff, and all involved said he was well worth the money.)

    The agony of dealing with all of this? Clearly he’s a criminal and deserved that. That he’s now a felon and can never enter the U.S. again? Well, how is being unable to attend half the world’s major conventions going to hurt an science fiction author?

    Sorry, I’m succumbing to uncontrollable bitterness. I know about this stuff intellectually, and I worry about it (because, as Madeline Ashby says, “[It] could happen to any of us”), but as Scott points out, when you see it happen to someone you know, it comes too close for comfort.

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