The Sacrifices We Make For Art

There are some names that should never be uttered again, as they only serve to dredge up hard and divisive feelings that produce nothing useful.  So I won’t mention the name, and I ask you not to do so either.  But this guy can’t seem to get off the radar.  His next stupid pet trick was to offer his “art” on eBay (to the extent this link will work for a while to bring you to the original eBay auction, here ya go.)

It strikes me as unlikely that he’s going to see that $100,000 he thinks he made from the auction.  I may be wrong, but it strikes me as a goof (which happens when silly or absurd things are offered for sale), as it seems inconceivable that anybody loves him enough to waste that amount of money on his crappy art.  But then, it was a big enough number to draw otherwise smart people back into the mix of blind rage.

Is there a story that better illustrates the arbitrary and capricious nature of our criminal justice systems today than the story of [he who should not be named]’s just-ended online art auction?  Some men kill and go to prison– sentenced to life or death. Some men go to prison even if they haven’t killed— for life and sometimes for death. And then some men kill, don’t go to prison, and then somehow become celebrities who sell their paintings for over $100,000.

Indeed, the randomness in this case is most telling because it exists on the macro and not on the micro scale. [He who should not be named] was acquitted in July of murdering young Trayvon Martin not because of some error in the application of the law but by virtue of the jury’s faithful application of it. [He who should not be named] simply benefited from Florida’s dubious judgment that some of its residents ought to be allowed more freedom to kill some of its other residents.

Some of you, like Andrew Cohen, will find it impossible to resist the urge to fight this battle again. If so, I will delete your comments without a moment’s hesitation, as this battle has been fought too many times already, and will not be revisited here and now.  It’s done.

But Cohen begins with a question, whether “there [is] a story that better illustrates the arbitrary and capricious nature of our criminal justice systems today,” and that’s the question under scrutiny here.  There is.  There are a million stories that do so far, far better.  And Cohen has told many of them, and told them well.

Clark at Popehat wrote a post that offers a slightly negative tilt to the problem, with the captivating title Burn the Fucking System to the Ground. Buried in there is the answer to Cohen’s question:

The older I get, the more I see, the more I read, the more clear it becomes to me that the entire game is rigged.  The leftists and the rightists each see half of the fraud.  The lefties correctly note that a poor kid caught with cocaine goes to jail, while a Bush can write it off as a youthful mistake (they somehow overlook the fact that their man Barrack hasn’t granted clemency to any one of the people doing federal time for the same felonies he committed).  The righties note that government subsidized windmills kill protected eagles with impunity while Joe Sixpack would be deep in the crap if he even picked up a dead eagle from the side of the road.

The lefties note that no one was prosecuted over the financial meltdown.  The righties note that the Obama administration rewrote bankruptcy law on the fly to loot value from GM stockholders and hand it to the unions.  The lefties note that Republicans tweak export rules to give big corporations subsidies.

Every now and then both sides join together to note that, hey! the government is spying on every one of us…or that, hey! the government stole a bunch of people’s houses and gave them to Pfizer, because a privately owned for-profit corporation is apparently what the Constitution means by “public use”.

A constant struggle, if not a total impossibility, is trying to remove politics from law.  So many of us, lawyers and non-lawyers alike, are so caught up in our politics that we become flagrant hypocrites.  The case about which Cohen writes is no example of “the arbitrary and capricious nature of our criminal justice systems,” but a grand example of how politics blinds us from seeing the systems’ flaws without being blinded by our political bias.

Remarkably intelligent, thoughtful and well-intended people have lost all perspective because there is a sacred cow, a tenet of faith, at stake in a specific case.  Principle is abandoned, replaced by the mindlessness of passion. They no longer think, and instead believe and feel.

Clark sees little no hope in fixing the systems.  Instead, he points out:

The system is not fixable because it is not broken.  It is working, 24 hours a day, 365 days a year, to give the insiders their royal prerogatives, and to shove the regulations, the laws, and the debt up the asses of everyone else.

Burn it to the ground.

I can’t share this pessimistic view, even though his points are well made, for two reasons. First, because I fear that left to our own devices, the system that will replace what we have now will be worse.  Second, because I believe that the hierarchies of which Clark speaks, the royal prerogatives that we have established and maintained, are fixable.

What prevents us from doing so is politics over principle, the blind and myopic zeal of political beliefs that cause some to refuse to accept the acquittal of a jury when they hate the defendant.  Then again, if someone as smart and well-intended as Andrew Cohen refuses to grasp that he is blinded by his faith, maybe there is no hope and Clark is right.

6 thoughts on “The Sacrifices We Make For Art

  1. David Sugerman

    Thanks for digging in on a hard subject. Excellent work, especially your articulation of where Clark @popehat wanders off course.

    That said, I wonder if you and Clark are missing the mark a bit by describing what lies beneath as “politics.” I would kill–okay, maybe not–for a cognitive scientist’s description of these deep, reactive normative judgments that support that which you and Clark label as politics. I imagine the blindness process you both describe is almost species-level cognition, similar to tribe and differentiation of “the other.”

    That’s at odds with the idea of a rational world, which is the basis of our profession. But I imagine it gets at much more than our default rational-human model.

    1. SHG Post author

      There should be a better word or descriptor, and if I had it, I would use it. Is it religion? Is it politics? Is it something else? The ability to articulate it is critical, and I agree that I’ve fallen short. I wish I could have done better.

    2. Pete

      I’m a pretty big Jayhawk fan. I want them to win even if they play a better team, because they are my team. When they win my day is a bit better, and when they lose it is worse. My shameless homerism and objectively ridiculous sense of pride and loyalty that are part of being involved in my fan base seems pretty similar to the feelings partisans have for their party and ideologues for their ideology. They also want to win with whatever team they’ve picked or were born into.

      “Fan base” seems like a decent descriptor for the behavior, to me. I’d be curious to know why some people are more subject to it than others.

  2. Jeff Gamso


    The economic powers that are too big to fail. The political power that the most passionate voters on this or that issue muster in nominating proceedings and ultimate elections. The police and prosecutorial power. And the military power. The power of the educational system and the American mythos. Etc.

    Can they be overcome? Theoretically. But there’s a ton of false consciousness to overcome.

    1. SHG Post author

      We all play the same false power game, though some are better at it and some have better tools to win it. No matter who we are or how good our tools, there will still be someone or others who are better. Will there come a day when we finally have a national epiphany that nobody wins the power game and we could all do better to let go of our petty personal victories? I dunno, but do we have a choice but to try?

      As I wrote this, I thought about how everyone agrees that the healthcare system is a disaster. Whoever is in office wants to reform it. Everybody hates it. Everybody suffers. So what if all the energy that went into fighting ACA because it came on Obama’s watch went into improving it so that it served us well? But then, Obama would get credit that the other team would lose the game.

  3. Pingback: Justice Potter Stewart and the Chamber of Secrets | RHDefense: The Law Office of Rick Horowitz

Comments are closed.