Thursday, March 17, 2011

Shhh, don't tell anyone it's history

It’s always interesting when thought streams from different parts of life intersect. 

At the moment, I’m teaching the General Education/Core Curriculum/whatever-your-school-calls-those-classes-everyone-needs-to-take-some-of course on the history of the whole world from the mists of time to 1500.  The primary sources I’ve chosen for that course include documents on medieval European laws and court cases, which led me to wonder when and how things changed, when did the basic principles I recognize as the American legal system start to be practiced?  This led me a barrister by the name of William Garrow, who was a transformative figure (or so my sources tell me, I’m hardly an expert) in the English legal system in the 1880s and 90s (after which he was first promoted to King’s Council and then demoted to a mere Member of Parliament before eventually wasting his final decades in such worthless occupations as judge, Solicitor General and Privy Councilor).  Before Garrow, the courts relied on the testimony of witnesses to a crime.  The prosecutor found the witnesses, the judge asked the questions, the jury evaluated the evidence, and the defense attorney … well, there usually wasn’t one and the defendant wasn’t generally allowed to speak on his or her own behalf.  It all came down to the witnesses, who were not cross-examined!  Garrow changed all that.  By appearing in court for the defendants and asking the witnesses questions, he is credited (by my sources) with playing a key role in the innovations of the adversarial system, rules of evidence, and the invalidation of hearsay evidence, in addition to personally introducing both the concept and the phrase, “innocent until proven guilty”.

Garrow’s biographers, John Hostettler and Richard Braby, in Sir William Garrow: His Life, Times and Fight for Justice, picked a particular cross-examination from the Old Bailey records to demonstrate how it was done.  In this case, Garrow had already gotten the witness, a Mr. Fleming, to admit to being the receiver of the goods that the defendant was accused of stealing.  He had further gotten Fleming to admit that he was likely to be hanged for possession of stolen goods unless he could fix possession on another person.  Garrow then went in for the kill:

Garrow: Did you not do this to save your own neck; did you not make the disclosure to save your own life?

Fleming: I suppose I must answer, Mr. Garrow, in the affirmative, for I know no better: I certainly made this disclosure to save myself.

Garrow: Then you are now swearing, in order to fix this danger on somebody else to save yourself.

Fleming: I apprehend, Mr. Garrow, I am still in the same danger if I do not fix on the right person.

Notice that, in his last answer, Fleming argued that it would go badly for him if he made a false accusation.  The jury didn’t care.  They were horrified at the idea that they were expected to accept the testimony of someone who had such a direct interest in a conviction, and on that basis alone, acquitted the defendant.  It became, over time, an accepted tenet of the English legal system that interested witnesses were not reliable.

I mulled that over for a few days, trying to figure out why it felt somehow off.  Oversimplified.  Naïve, even.  Too likely to excuse real criminals who posed serious dangers to society.  Was it the jury’s refusal to consider the witnesses final statement? 

Meanwhile, another stream of my life, starting in a completely different place, was heading right for that very point.  I recently got back in contact with a woman I’ve known since I was born, as far as I can tell.  Our parents were friends and the families got together several times a year, but as we grew up, as so often happens, we drifted off in different directions.  Reconnecting with her got me thinking about all the other people I’d known that way, and wondering where they are today.  The great gift of Google came through, and I found one.  She’s now called Alexandra Natapoff, but I’m pretty darned sure she’s the kid I used to know as Sasha.  She was a few years younger than me, and I don’t remember her all that well, but I remember her mother, and this Alexandra looks, sounds, and moves exactly the way her mother did back when we were kids.  How do I know that?  Because I found this video.  Which, in an astonishing coincidence, addressed my question about Garrow and the testimony of Mr. Fleming:

We think of our legal system as inherited from the English system, based on the same principles and precedents of common law.  And yet, somewhere in the late 1700s, they diverged.  Given that we were fighting a war of independence from England at the time, it’s understandable that our legal experts might not have been studying their latest innovations.  And yet, we did pick up the notions of the adversarial system, presumption of innocence, etc.  But we somehow didn’t adopt the inherent distrust of the snitch.* 

Natapoff makes the point, rather effectively I think, that our reliance on snitches in the legal system has in recent years expanded to reliance on snitches in the wider, American society.  We are socializing ourselves, myself obviously included (hence the mulling), to accept snitching as part of the normal practice of citizenship.  This can be a very good thing.  The anonymous bar employee who paid attention to a semi-drunk man’s ravings, got his license plate number off his car and called the police saved the lives of hundreds of innocent people.  Less risky, perhaps, but just as important and valuable a protection of lives as the airplane passengers who jumped on the man trying to light his shoe on fire.  I applaud anonymous bar employee’s snitchy ways.  Hell, snitching is not only a civic duty, in this age of terrorism, both homegrown and imported, snitching is an act of patriotism!

Which is all well and good from a law enforcement perspective, but as national identities go, “We are the Snitches” isn’t exactly “Give me liberty or give me death.”  It doesn’t have the same ring, the same nobility, the same élan.  More importantly, snitching by its nature divides us, turns us against each other.  It makes us, not a nation united in common cause (freedom, the common welfare, life, liberty and the pursuit of happiness), but individuals perpetually suspicious of our neighbors and distrusting of difference instead of celebrating the melting pot.  As national values go, it is fundamentally destructive.  Is this the America we want to be?  And what, if any, role does this valorization of snitching play in the atmosphere of distrust and anger in America today.

* I’m only addressing snitching, which is the act of informing on an individual, not whistleblowing, which is exposing wrongdoing by an organization.


  1. Once upon a time, as we historians say, society was regulated more by long-term personal ties than by laws, and people generally knew most of the other people around them, and they talked about each other to the other people around them.... snitching, the way we do it, is a replacement for the gossip that used to make people behave.

    Aren't all historical sources snitches?

  2. No one is arguing that prevalence of and reliance on snitching in any way "make people behave." They're not about prevention, if they were, then leaving the pusher on the street corner wouldn't make sense. They're only about catching criminals after the fact.

    So, I disagree that snitching replaces neighborhood gossip. To the extent that it does relate to notions of community, I would argue instead that it's more like the goningumi than the gossip network. Obviously it doesn't operate the same way, but they share the aspect of involving the punitive arm of the state, which neighborhood gossip doesn't.

    Besides which, I've never been all that convinced that the loss of the all-seeing eye of the neighborhood has caused an increase in criminality and breakdown in social values. First, because that argument tends to depend on an idealized past when everyone behaved due to social pressure, but there was no shortage of criminal behavior in the past. And second, because I've never seen a study on the supposed impact of urbanization (and therefore the loss of the gossipy community) on levels of criminality that both provides hard evidence and accounts for other variables, like the economic uncertainty of wage work, the relocation of male work out of the home (and accompanying change in family dynamic), and prejudice (whether racial, religious, ethnic, or class based).

    It's a nice theory that people behaved better when they knew their neighbors and that society is heading rapidly to the flaming underworld in wicker ware because we've lost the blessing of gossipy busybodies. It makes a pretty story and makes us feel all nostalgic. But, keep in mind that Garrow came along at the beginning of the end of the era of the gossipy busybodies, when the industrial revolution was taking off and mass urbanization was beginning. At the time, wife beating and child abuse were legal, rape was considered the woman's fault, stealing a loaf of bread could send you to the gallows, the local magistrate determined who did and didn't get sent on to court, and trials were determined by hearsay. How could we even begin to make accurate comparisons between then and now that would measure whether there has been a real breakdown of society? There is, of course, anecdotal evidence, like the old-timer who said, "The children now love luxury; they have bad manners and contempt for authority; they show disrespect for elders and love chatter in place of exercise." So there has been, at the least, a very real perceived breakdown in social values. According to Socrates.

  3. I'm not being nostalgic: I'm a rootless cosmopolitan, remember?

    I'm arguing that 'snitching' in a mobile society plays a similar role as the gossip networks of less mobile communities, not that there's more or less crime, or that it's better or worse than it used to be. Just that social systems work differently now.

    However, I think you may be drawing too sharp a distinction between state and social control.

  4. Which begs the question, can there be rooted cosmopolitans? Or are they in the category of god-fearing communists?

    I realize you weren't making the imagined past based argument, you just got near it, and I find it sufficiently annoying that I got off on a rant. I still don't see the parallel you are drawing, though. How exactly do you see the mechanisms and/or outcomes as similar?

  5. I don't think there's anything contradictory about either, but the fact that we think there is reflects our deeply scarred cultural psyche.

    The mechanisms are different, but the outcomes are certainly similar: control of transgression (or at least the impression of transgression) as a result of information being spread by more-or-less equals.

  6. "Control of transgression" being polite-speak for deterrence, what's your evidence? As I said above, I've never seen anyone argue that the snitching culture has a deterrent effect. You may be able to find someone who's said it, but it's neither the motive nor the accepted interpretation.

    More than that, I don't think you can effectively make such an argument. To the extent that gossip works as a deterrent (if it does), it does so because of its blanket nature. In a small community, anything interesting is guaranteed to be discussed repeatedly and in detail, along with (in theory, anyway) societal condemnation. There is a surety to the response. Snitching is neither guaranteed nor reinforced. By its nature, it's random. Some people will snitch, others won't. More importantly, the public focus on anecdotal accounts of false accusations creates the impression that the innocent are as likely to be snitched on as the guilty (despite the lack of corroborating statistical evidence).

    It's the Skinner box from hell. You feed the pigeons pellets at random times and they develop random behaviors, except in this case, some of those pellets make the pigeons violently ill. The result, irrational pigeons. With criminals being subjected to equally random prosecutions, you don't get any real deterrence from threats of punishment. Worse, any fear of snitching is best countered, not by lawful behavior (because of all those imagined false accusations) but by protection - belonging to a gang means anyone who snitches on you will suffer serious consequences.

    And prison these days doesn't equate to societal condemnation. In the subcultures the police worry about, prison isn't punishment, it's cred.

    Given all that, how exactly do you see snitching as a deterrent? It may drive petty criminals into gangs, it certainly leads to execution-style murders, and it builds a fundamental distrust for authorities who let criminals loose in return for snitching, but I don't see how it deters crime.

    So no, I don't see the logic in the argument of similar outcomes, at least on its face. If you want to make that case, you're going to have to make a much stronger argument.

  7. I'm not talking about deterrence: I'm talking about punishment, including loss of social status as well as official punishments. Which, as you note, may or may not actually result in deterrence but which is certainly intended to result in deterrence.

  8. Here are some of your words:
    "snitching, the way we do it, is a replacement for the gossip that used to make people behave."

    "the outcomes [of gossip and snitching] are certainly similar: control of transgression"

    Making people behave is the definition of deterrence. Throw in the 'similarity of outcome' and you've got a basic formal logic sequence: If A->B and C=A then C->B. Gossip causes deterrence, snitching has the same outcomes as gossip, ergo snitching causes deterrence. We all, sometimes, misspeak, and I get that you may not have meant that, but it is what you said. :-D

  9. You're reading "deterrence" and "behave" as though they necessarily meant "total control" and "punishment" as though I meant "perfect system of criminal detection and administration of justice." So there's no discussion to be had.

  10. Seriously, Jon? That's what you see? Because I've just read back through the entire thread, and I don't see it. You're a good scholar, you know that vague, hand-waving type accusations aren't convincing. You want to change the subject from your logic to mine, you need to cite specific evidence. Unless you just want to end the discussion, in which case unsubstantiated, and rather strong, accusations are not the graceful way to go.