On Secession Part III: Crow and Incarceration

In this third installment of On Secession (Part I, Part II), I want to start with a focus on Sheriff David Clarke. For reasons that I hope will become obvious, we would not have this series without him. On the way, we’ll touch the prison system, Ferguson, and the ideas raised in Chris Hayes’ A Colony in a Nation. I’d also like to acknowledge the reporting of David Neiwart, as his article on Clarke is highly informative and was invaluable in shaping this series.


Black Lives Matter is a hate group. They stoke up rage. They stoke up anger in people in a misguided sort of way for a phantom grievance about the character of America’s law enforcement officers… There is no police brutality in America. We ended that back in the ’60s.

David Clarke

In the previous installment, I tried to understand and tease apart the philosophical foundation of the various Oath Keeper groups. Some of my commentariat have accused me of being unfair to their positions, but I will happily stand by my interpretation of “Natural Liberty” being fundamentally incompatible with government. In this case, Clarke’s own words back this up:

To be successful, this movement’s going to have to have two things: You have to have a common enemy, and you have to have a common language. And I’m not here to tell you what to do, or this group what to do, because as I said, I’m a Johnny-come-lately. But I know about movements. And in this movement, the common enemy – and let’s not make this mistake, because I think sometimes you do – this is not about Democrats and Republicans, this is not about liberals and conservatives. Because the ruling class in Washington, D.C., sees us as nothing more than subjects. We’re not citizens anymore, in their minds.

So don’t get caught up with liberals, Democrats, Republicans, conservatives, and even people. Obama – Obama will be gone in a couple years. But guess what will still be there, and this is the common enemy: It’s government. That’s the common enemy. It’s not Nancy Pelosi, it’s not Barack Obama, it’s not the faces and the names. These people come and go. The government remains. That’s what’s becoming oppressive, that’s what’s starting to become intrusive, more and more intrusive, and that’s what’s encroaching on our liberties.

But what’s most concerning isn’t the government he hates, but the government he likes: Policing and Prisons. But simply explaining how awful the prisons are in Clarke’s home of Milwaukee County robs us of important context: it’s not only that his prisons are especially bad (though they are), it’s that the U.S. Prison system is uniquely dysfunctional.

That the prison system in the United States is bad is not a contentious concept. While possibly not as bad as pop culture would have you believe (I wouldn’t know, as I have not had direct experience with it), the hellish nature of prison is, apparently, accepted and normalized.

Other times, the concept of prison rape is a "hilarious" punchline.

As for specifically why the prison system is so awful, I posit that it is because of the fundamental disconnect between its purpose. Namely, are they meant as places of punishment, or as places of rehabilitation?

I truly wish I could present a coherent history of the American penal system, but it’s excessively long and detailed and actively resists being cast in a single narrative. Despite this, I believe there are two critical developments that inform the shape of the modern prison system: the development of police systems during reconstruction as a means of racial enforcement in the South (post-Civil War), and Nixon’s “War on Drugs” (and the resultant rise of privatized prisons).

Data and Graph from The Clemency Report

It doesn’t have to be this way. Other countries have extraordinarily successful rehabilitation-based incarceration, with the express goal of giving criminals positive reinforcement in order to help re-integrate them into society as happy, productive citizens. There’s a lot of data, especially with regards to child psychology, about effective ways to reform negative behavior but I’ll one line it for you — authoritarian punishment (and specifically corporal punishment) is one of the least effective.

But as usual, it’s instructive to look at the outcome. While some degree of malice is due to incompetence, not all is. It takes a lot of dedicated work by a lot of people to keep society plugging along. For any systemic outcome, assume it is functioning as designed. Who benefits? We’ll get to that in a second, but it’s clear that the outcome of the American prison system is not to rehabilitate people; its true purpose is far more sinister.

The end of the civil war marked the end of southern society. The power structures built around slavocracy and plantations were uprooted, their society now lacking their traditional political enforcement methods. Simultaneously they, and the north, also faced a new problem: Millions of newly freed black people. While there were efforts made to help them integrate into society, such as with the Freedmen’s Bureau, the numbers made it difficult.

Of course, this in no way excuses what came next — far from it! But the scope of the change is difficult to imagine, as slaves made up about 10% of the population. Suddenly the south lost millions of workers, and the north faced an influx of low-skill workers — and suffered immediate economic repercussions as the factory owners now lacked a ready supply of cheap cotton. If America’s later responses to immigration (they took our jobs!) are any indication, the amount of political unrest generated would have been substantial. The chaos and poverty was unimaginable, especially among the newly freed slaves. As an example, 5 years after the civil war 90% of black citizens in Savannah, Georgia owned no property (and of course were excluded from all but the lowest-paid jobs). The corresponding rise in property crimes should come as no surprise, but what else were they to do? Migrating north was no answer either; it’s hard to overcome the problems of having no economic power whatsoever, not to mention the substantial discrimination faced. As for what happened next, I’ll let Wikipedia summarize:

Patterns of "mono-racial law enforcement," as Ayers refers to it, were established in Southern states almost immediately after the American Civil War. Cities that had never had police forces moved quickly to establish them,^[269] and whites became far less critical of urban police forces in post-war politics, whereas in the antebellum period they had engendered major political debate.^[270] Savannah, Georgia's post-war police force was made up of Confederate veterans, who patrolled the city in gray uniforms, armed with rifles, revolvers, and sabers.^[270] They were led by an ex-Confederate General, Richard H. Anderson.^[270] Ayers concludes that white policemen protecting white citizens became the model for law enforcement efforts across the South after the American Civil War.^[270]

This was not a secret policy:

Whites made few attempts to disguise the injustice in their courts, according to historian Edward L. Ayers.^[275] Blacks were uniformly excluded from juries and denied any opportunity to participate in the criminal justice process aside from being defendants.^[276] Thefts by black offenders became a new focus of the Southern justice systems and began to supplant violent crimes by white offenders in court dockets. Whether they were from the city or the countryside, those accused of property crime stood the greatest chance of conviction in post-war southern courts.^[277] But black defendants were convicted in the highest numbers. During the last half of the nineteenth century, three out of every five white defendants accused of property crime in Southern courts were convicted, while four out of every five black defendants were.^[277] Conviction rates for whites, meanwhile, dropped substantially from antebellum levels throughout the last half of the nineteenth century.^[278]

A powerful tale of injustice that resonates strongly with middle school students.

By imprisoning large numbers of black people and forcing them to work for little to no money (on chain gangs and the like), they accomplished their twin goals of removing black people from society and obtaining free labor, thus establishing slavery under another name. This was, from the perspective of the pre-guilded age plutocrats in the north and southern establishment, a real win-win situation. For the black people, not so much. By completely divorcing the justice system from the notion of rehabilitation, the prison system could be transformed into a profit-seeking enterprise.

(Also, by deliberately depriving black people from quality education, they could be kept as a low-skill labor force. This push away from teaching practical skills for the poor has had dramatic effects on the educational system in our country — as per my previous essay: Everything Wrong with College. Thus does the primary purpose of public school turn into the warehousing of children.)

Nor was this system unique to the south, as many of the northern prisons operated on a “convict lease” system, using the unpaid labor of prisoners to enrich the prison operators (notably local governmental figures). And while many limitations and protections have been placed on this over the years, it is obscenely obvious that this system and similar arrangements are continuing to this day. I’m having difficulty restraining my emotions, and bile rises to my mouth at the sight of these injustices. And if you can view these depredations impassively, then I don’t know what to say to you. While it may be legal, thanks to that important loophole in the thirteenth amendment, it is not just, and it is not good. If this is the best we can do by our citizens, our scorn is well deserved.

But I’m getting off on another emotional tangent. The stressors that led the southern prison transformation also worked inevitably in the north, as the influx of freed black people led to a self-imposed segregation (more formal segregation efforts — redlining, etc. — occurred a little later, after the first world war), as well as similar patterns of arrest and transformation for the prison system. This was especially pronounced in areas with high black population, and the history (and present day occupancy patterns) of the northern metropolitan areas clearly bears this out.

This was, with a few notable changes and reforms, the state of the prison system through the middle of the 20th century. Nixon changed that.

This is John Eherlichman, top advisor to Richard Nixon, seen here in a 1972 photograph.

I’ll let Eherlichman explain:

The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people. You understand what I’m saying? We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.

The consequence of this is well known, we can just look at the graph from earlier. Beginning in the 70s with Nixon (but really kicking into gear with the minimum sentencing guidelines in the 80s), the population of prisoners swelled. Until eventually, we get this:

Sources: Bureau of Justice Statistics, International Centre for Prison Studies. Chart from The Times-Piyacune.

Now this clearly isn’t the whole story. As the following table shows, even if America only jailed murderers and rapists, we would still have an incarceration rate of over 110. Some percentage of the violent criminal behavior appears to be cultural (see part I).

The focus on the experience of the American black population has a great deal to do with the overall culture and quality of law enforcement and prison in this country. Ferguson, Missouri is in many ways typical of poor towns across America. The justice system and the police’s relation towards the citizenry is as depicted in Chris Hayes’ A Colony in a Nation: adversarial and profit-driven. It’s easy to see why terms like “Fuck the Police” become normalized, the police exist to imprison, fine, and kill members of their communities. Nor is the process localized to black cities, any poor town can fall victim to this destructive pattern.

The tragedy is that, for the most part, each individual officer, judge, and sheriff are just doing as best as they can. Very few are deliberately racist, nor do they wake up trying to put people behind bars — they're truly trying to serve and protect. Yet in perpetuating the rotten system, and being victims of their own incentive structures, you end up with a prison system that is trying its best to enforce antebellum racial and class strata. The negative treatment within the prisons ferments a criminal underclass, and the high levels of recidivism are a feature, not a bug. The rise of for-profit prisons is the ultimate expression of this, with each new criminal in the system representing one more slave for their rosters.

That’s it for now. Didn’t have time to get into the horrific situation within Clarke’s Milwaukee county jail like I intended, but we’ll get to it next week.

On Secession Part II: Henry and Violence

In part I of this series, my desire to figure out why Sheriff David Clarke and the Oath Keepers believe the things they believe was hampered by the fact that there is an enormous amount of history to account for. Thus, we began a historical accounting of American ideologies and cultures (as per David Fincher’s Albion’s Seed). Left hanging were the questions of whether or not the South was morally or legally justified in secession, and whether states or individuals should have rights that supersede the federal government.

Why do we have a Second Amendment? It's not to shoot deer. It's to shoot at the government when it becomes tyrannical!

Senator Rand Paul

David Clarke saluting the crowd at the RNC, without his trademark sheriff’s hat.

Now that we’ve covered some of the history, who the heck is this guy?

Don’t worry if you haven’t heard of him before, I hadn’t either. He’s been Sheriff of Milwaukee County in Wisconsin since 2002 and started his career in the Milwaukee Police Department in 1978. He’s got a wife, a horse named Rodger, and is a registered Democrat.

But he’s also been a speaker at the Republican National Convention and at CPAC, a guest on Alex Jones’ radio show, as well as frequently appearing on various Fox News programs, so we’re going to need to dig a little deeper.

Understanding David Clarke means understanding his ties to the Oath Keepers. On June 13^th, 2016, he received a “Leadership Award” from the New York Oath Keepers, and gave a 35-minute speech. He is not a formal member of their “militia” but, for context, here is the Oath Keepers list of “Orders We Will Not Obey”:

1. We will NOT obey orders to disarm the American people.

2. We will NOT obey orders to conduct warrantless searches of the American people.

3. We will NOT obey orders to detain American citizens as “unlawful enemy combatants” or to subject them to military tribunal.

4. We will NOT obey orders to impose martial law or a “state of emergency” on a state.

5. We will NOT obey orders to invade and subjugate any state that asserts its sovereignty.

6. We will NOT obey any order to blockade American cities, thus turning them into giant concentration camps.

7. We will NOT obey any order to force American citizens into any form of detention camps under any pretext.

8. We will NOT obey orders to assist or support the use of any foreign troops on U.S. soil against the American people to “keep the peace” or to “maintain control."

9. We will NOT obey any orders to confiscate the property of the American people, including food and other essential supplies.

10. We will NOT obey any orders which infringe on the right of the people to free speech, to peaceably assemble, and to petition their government for a redress of grievances.

With a list like this, you might think that this was an organization dedicated to ensuring lawful behavior among America’s civil servants, albeit one with a maniacal obsession with gun rights. In this, unfortunately, you would be wrong. There’s significant ideological (and membership) overlap between the Oath Keepers, the Sovereign Citizen Movement, and the Constitutional Sheriffs and Peace Officers Association (CSPOA), of which Sheriff Clarke is a member. Here is a quote from the CSPOA’s “Statement of Positions”:

America needs to make a strong turn around to get back on the freedom track laid for us by our Founders.  We believe it can’t be done from the top down, due to many factors, not the least of which is corruption and entrenched bureaucracies in high places.  We must, and we can, accomplish this turn- around starting locally at the county level, and lower.  The office of county sheriff is the last hope of making this happen, and we are witnessing great deeds of protection, service, and interposition across America by courageous sheriffs who only want to serve the people who elected them.

It’s a lot to unpack. I’m going to attempt to read through the lines, by referring back to the values of the 4 main American cultural traditions (Puritan, Quaker, Cavalier, and Borderer) and their different views on liberty that we established in part I.

To refresh, they are (in order):

• Collective Liberty: The right to collectively make laws to shape society.

• Reciprocal Liberty: The right of each person to demand all liberties they would extend to others (aka the Golden Rule).

• Hegemonic Liberty: The right to rule, and the right to not be ruled by others.

• Natural Liberty: Liberties are innate, and it is the right of people to (violently) defend them.

No, it’s not “Whoever has the Gold makes the Rules”.

But what is that “freedom track”? I'm not sure, but I think I have an example that comes close to what the CSPOA means: The doctrine espoused by Patrick Henry, as he argued the Parson’s Cause.

An 1834 painting, depicting the 1763 case. It’s not very good.

The exact words used were not recorded, but the case itself, and the arguments used, became notorious. Our most accurate rendition comes from a letter penned by one of his courtroom opponents, describing the events to another Parson. I have (heavily) edited it, mainly for brevity:

That a King, by annulling or disallowing [this law], degenerates into a Tyrant, and forfeits all right to his subjects' obedience… The only use of an Established Church and Clergy in society, is to enforce obedience to civil sanctions, and [other] duties of imperfect obligation; that, when a Clergy ceases to answer these ends, the community have no further need of their ministry…the Clergy of Virginia… [should therefore] be considered as enemies of the community; and …punished with signal severity. [The Jury must] rivet their chains of bondage… [and] dispute the validity of [any] laws, [not] authenticated by the… authority of a legal representative of a Council, and of a kind and benevolent and patriot Governor.

The details of the case are less important than the fact of Henry’s (successful) argument: an act of government that opposes the stated will of the people renders that government tyrannical and superfluous.

Later, as the colonies moved toward revolution, Henry went on to denounce strong government in any form, and vowed to fight against it (“Give me Liberty, or Give me Death!”). That the liberty he demanded was “natural liberty” is obvious, but interestingly, this appears to be the main type of liberty that the Oath Keeper groups are concerned with. The “courageous sheriffs who only want to serve the people who elected them” are dead ringers for the “kind and benevolent and patriot Governor” insisted upon by Henry.

And this is where I run out of cleanly packaged information and start asking questions. Questions like: Is the concept of Natural Liberty consistent and actionable? Is it justified? And most importantly, can it be reasonably implemented in the 21^st century?

(Note: I know I’m avoiding the Confederacy’s argument, but I think the Natural Liberty argument is both stronger and more relevant. I’m trying to answer a more general form of the question, but I’ll come back to them later — they’re not off the hook yet.)

As someone who strongly backs the Quaker concept, I’m struggling to make sense of the Borderers. Namely, I’m trying to make sense of the end game. This question can be more narrowly posed to the groups from earlier, but what does society look like if you get everything you want? I mean, I understand the Quaker end game, a quasi-socialist utopia where everyone is nice, kind, and respectful to one another, but I do not understand where Borderers are trying to go. My biggest question is: where does it end?

I’m going to try for a thought experiment. Let’s say we have this group of people, they don’t like their current government. Could be that it’s infringing on their natural liberties, or it could be that they don’t have control, whatever. They gather themselves together (with guns) and demand the ability to form their own government, the way they want. There’s a bit of violence, but they win and now there’s two governments, one in the north and one in the south.

Pop culture references are very popular.

Ok, great. But now some of the people who rebelled (the Karstarks and the Boltons??) don’t like the new government they made, and want to make their own government. And so on and so forth. I’m struggling to come up with a coherent system of Natural Liberty that allows you to demand liberty on pain of violence, that doesn’t immediately threaten to unmake any systems you’d try to put in place. If violence is political power, and assuming everyone has nearly equal abilities in that regard, doesn’t it just eventually end with every man for himself? Or with a bunch of warring clans jostling for territory or vengeance for some perceived slight? (ref: the history of family feuds in America)

I know the idea of a man who doesn’t answer to any law but his own, a sheriff trying to do good as he sees it — it’s appealing. We’ve seen characters like this in countless films and stories. But, and I fully admit this is the most boring answer possible, it just doesn’t seem practical. I mean, yes. I like rights, I like freedom. But two things seem readily apparent: 1. Some amount of government is needed to prevent tribal barbarism. And 2. Part of that government’s responsibility is to maintain a monopoly on violence.

This is a point where I imagine I will lose some of my readers. Gun control is a contentious issue, and I will make no attempt to adequately cover it. But to sidestep the issue of “self-defense”, my question is: to what degree are individuals empowered to take the law into their own hands? Again, any explanation I could give would be insufficient, but it seems to me that society is maximally stable if individuals are not able to self-adjudicate. I say this because any two random people will likely disagree on issues, but if they are enforcing their opinions with violence, they cannot mutually exist in the same society.

For an unnecessarily provocative example, say you believe in the right to defend yourself (and others) from people who would cause them harm. This is a common belief, so it shouldn’t be too hard. But say you also believe that fetuses are people from the moment of conception. In this case, killing abortion doctors (to stop abortions) would be justified. And, in the implied corollary, the doctors (and anyone nearby) would have the right to kill you too (in justified self-defense). A single intense disagreement could snowball into an actual war, or at least a violent feud.

Now, I won’t eliminate the possibility that I’m being incredibly dense, but I just don’t see a way to reconcile “having a stable society of laws” with “the right to self-determine what those laws are”. It seems that the “cost” of existing in society includes a necessary abdication of choice.

And if society is good, this is a good thing. Certainly, the Puritans/Quakers would happily cede their choices if they could trust their society to be just and good. Indeed, as with the modern-day Democrats, making sure the government as good, wise, just, and strong becomes a moral imperative, since leaving people to their own devices means inevitable strife and anarchy. A more glowing recommendation of the status quo can scarcely be imagined.

Obviously, the world is not so optimized a place, and insisting on abstention from self-defense is the most untenable argument I’ve backed in a long time. Clearly, in the balance between order and chaos, it’s difficult to not cede territory to chaos. This is a contradiction that (I assume) David Clarke would declare solved.

This stock image is very literal.

Re-reading the CSPOA’s statement in this light, they seem to be upholding the value of natural liberty, and declaring the smallest discrete amount of tolerable government: a county sheriff. Convenient then, that it’s an organization of sheriffs. It’s difficult to see this as any more than an intent on government via individual fiat. No doubt that the courage and nobility of the county sheriffs will make disagreements impossible; each sheriff keeping to the constitution, ruling over their flocks with a wise and gentle hand. You’ll have to excuse my skepticism, especially considering Clarke’s malfeasance, which will be one of the primary subjects of next week’s post. We’ll just put a pin in that for now, because we’re out of time for today.

In answering our questions, I think we’ve made a bit of progress. We’ve identified a bit of what and why Clarke and the rest of the Oath Keepers believe what they believe, and explored whether individuals should have rights that supersede the federal government. But we’ve still got a way to go before making our definitive case for or against secession, and in determining the optimal rights of states. Also, left hanging is the unstated question of what all this means to us now. Until next time.