October 30, 2009

"Repent, Bradlequin!" Said the Liz-Laz Man

Hatched by Dafydd

Our friend and worthy conspirator Brad Linaweaver publishes an annual magazine titled Mondo Cult; you've probably seen it around -- if you hang around the sorts of places where you'd see such a publication. The magazine now has a website and a forum, which is kind of like a blog only completely different.

In the forum, Brad has posted his thoughts on Roman Polanski. He wants us to link his article, and of course we're happy to do so.

He also wants a response -- and we're overjoyed to do that as well. (Surprise, surprise on the Jungle Cruise tonight.) He is well aware that our opinions differ, so this isn't a hit piece or ambuscade; we simply differ on a number of key points. First, however, I urge you to read Brad's entire piece. I'll wait...

You're back. To summarize, Brad postulates the following postulates:

  • From a practical perspective, it's absurd to go after an old man for a sexual transgression decades ago; there are far more pressing matters to be attended, including an economic collapse, the nationalization of banks and other industries, creeping socialism, and two wars in foreign countries... whether they're justified preemptive self-defense or imperialist overseas intervention, either way, these issues are of far more moment than what Roman Polanski did in 1977.
  • From a libertarian perspective, this is just another example of the tentacles of the State reaching out into the personal lives of individuals. In this case, the victim of Polanski's crime (her name is public, but there's no point in my bringing it up again) doesn't want him prosecuted.

    Since the victim is the girl herself, not "society," then society should not have a say in whether Polanski is prosecuted: He paid her off; she's satisfied with the reparations; the State should butt out.

  • From a justice perspective, it's absurd that this crime is prosecuted today, thirty years after the fact; even though the statute of limitations doesn't legally apply, the principle still stands: A man should not have to spend the rest of his life in fear that he will be prosecuted for a crime so many years in his past. It's not a murder, for goodness' sake! Both felon and victim have moved beyond the rape. Why reopen that can of monkeys?

At least, that is what I take as the essence of Brad's argument; if he wishes to correct any aspect of this, I will revise my response accordingly.

Rather than take the issues point by point, I want to respond philosophically -- with especial attention paid to analyzing the case under a (small-L) libertarian perspective, as that is both Brad's and my fundamental ideology. It should be easy to pick out the threads of individual response from the general argumentum.

In the process, I think we may get at something deeper than the fate of one creepy Polish-French film director.

One initial point I'd like to make in praise of Brad's article: I don't believe he ever makes the argument that Roman Polanski should not be prosecuted because (a) he was a victim of the Holocaust, (b) he made some great movies, or (c) he is a Hollywood aristo and therefore is owed a certain "droit du seigneur" -- the "right" of the lord to any woman he wants -- or "jus primae noctis," the "right" of a night with any young girl the lord fancies.

I am tremendously thankful that Brad avoided these paralogical traps, but I'm not particularly surprised: Brad is sharper than a serpent's tooth and deeper than a well, unlike 99% of the commentators on this case; and he knows very well that each of these ersatz arguments is pernicious nonsense that makes hash of the principles of Americanism.

What is Polanski's crime anyway?

The first task is not to fall into the error of most putative "libertarians" (though not Brad) who superficially "analyze" the Polanski case: Roman Polanski is not currently being prosecuted for having sex; nor is he being prosecuted today for the bogus charge (from a libertarian perspective) of having consensual sex with someone who happens to be below the legal age of consent, but who is mentally and emotionally capable of giving consent.

Nor is his current crime the oral, vaginal, and anal rape by use of force and controlled substances he was originally charged with; that accusation was (wrongly, in my opinion) plea-bargained down to simple unlawful sex with a minor (statutory rape)... probably because (a) he was a celebrity, and (b) his lawyer threatened to destroy his victim's life by essentially accusing her of being a thirteen year old whore. Frightened by the reaction after her grand-jury testimony, she evidently refused to testify at the trial; so Polanski pled to the lesser charge and was sentenced to 90 days psychiatric evaluation -- though there was always the option of the judge to give him prison time, as much as 50 years, as I recall (an option the judge did not exercise).

So what is Polanski's crime? After serving 42 days of his sentence, he was released by the psych ward with a probation-officer report recommending the rest of the sentence be canceled. But the judge rejected that evaluation and ordered Polanski back to prison for the remaining 48 days, to be followed by a voluntary deportation. Rather than face such a soul-searing, unjust sentence -- 48 more days, merely for multiply raping an adolescent! -- he fled the country.

So his current crime is actually breaking jail, just as if he'd climbed the wall at San Quentin, or wherever the heck he was being evaluated -- in layman's terms; I don't know if refusing to return to prison is a distinct legal charge.

Why does it matter? Why are the victim's wishes not being honored?

It matters very much what his crime was for two reasons. First, the victim of the current crime, escaping from prison, was not the victim of the rape; he was already "tried" for that crime (he pled guilty to the lesser charge, so there was no real trial) and sentenced. That ends the matter as far as the girl is concerned.

But when a convict escapes from prison, there is only one victim; or rather, there are hundreds of millions of victims: The entity which suffered from Polanski's cowardice or narcissism is society in general.

To deny that society can be a victim is to turn the entire concept of rule by law on its ear; it's like saying that if Barack H. Obama were to crown himself king and rule as a dictator, it would not be a crime, because you cannot point to one specific person and say "He is the victim!" We are all victims if we lose our freedom... just as we are all victims if the law is no longer applied equally to us all.

Let's assume we live in a libertarian world. Libertarianism is (or should be) based upon the fundamental axiom of maximal individual liberty -- though in the real world, too many self-defined libertarians are in fact merely libertines who care nothing about other people's liberty and even less about the common-law and legislative environment required to maintain a society based upon maximal individual liberty.

But "liberty" is not the only axiom on which libertarianism rests; there is an even more fundamental one, often forgotten in all the excitement about license and freedom: The most fundamental axiom of free government is in fact the rule of law.

This is the queer notion that there is not one lenient law for the hidalgo -- from "hijo dalgo," literally "son of something" -- and another, harsher law for the peon. This was a critical breakthough in modernity which I believe was gifted to the world by the Jews: What is wrong for the pauper is equally wrong for the prince.

It's quite a radical idea; libertarians should love it. At its base, it means that all men and women are treated equally under the law. It's enshrined in our Organic Law, both the Declaration of Independence ("that all men are created equal") and the Constitution ("No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.")

Here "due process" and "equal protection" mean equal treatment in all cases; no one is above the law. We don't always live up to it -- particularly given the cult of celebrity; but failure to perfectly realize a principle is not license to be indifferent to it.

Not Capitalism nor democracy nor individual liberty can endure when some animals are more equal than others. And without this holy trinity of rights and duties, "libertarianism" is utterly impossible.

Therefore, any libertarian should immediately recoil in disgust from an argument that says that Roman Polanski should be allowed to mock justice by fleeing the country, living in luxury while thumbing his nose at the responsibility he incurred by raping his victim -- then return to America and suffer no consequences for his perfidy. At its essence, it's no different from arguing that the cabinet of Dr. Obama should be allowed to skate on income-tax evasion, bribery, and other crimes merely because they're such important people nowadays.

Why prosecute today, after so many years?

The question almost answers itself: Because not to prosecute is to set up separate, parallel, but non-intersecting systems of putative "justice." Could we have gotten our mitts on Polanski earlier, we would have prosecuted him earlier. That we didn't capture him until last month was his own doing: He avoided countries that might extradite him.

We prosecute now, even 32 years after his escape, because we cannot allow people to use wealth and celebrity to urinate on justice. Whenever someone commits a serious crime then avoids punishment that the rest of us would have to endure, it hammers another nail in the coffin of freedom and liberty.

There are any number of despots and decadents, theorists and theocrats who argue that a "free society" is a contradiction; that there is no right to one's own conscience, no free choice, no individualism... that the individual matters nothing, and only the hive collective is important. When we fail to live up to our ideals, we give such monsters of tyranny ammunition to use in the ideological and propaganda war against liberty.

If we profess our creed that individualism, not the commune, is the fundamental unit of humanity, then we must accept the reverse of that same coin: The individual is also the fundamental unit of accountability.

That is why all decent individualists, Capitalists, and libertarians ban collective punishment: The only people who should be punished under law are those who actually commit the crime; and by corollary, all those who commit the crime should be punished under law.

Even if that requires punishment after thirty years time gone by, if there was good reason not to punish them earlier (such as flight and evasion). That doesn't mean we cannot act mercifully to those who have actually repented their crimes; but by the same token, it means we must be harsher on those who sat within a magic circle and smirked at justice.

So what should be done with Roman Polanski?

I honestly believe Polanski should suffer more punishment than simply having to serve the remaining 48 days of his original sentence; if not, wouldn't every convicted felon routinely flee?

Polanski's flight was far worse than and supercedes his original crime: The multiple rapes may have horribly damaged and distorted a young girl's life; but his escape and the decades he spent laughing at the American judicial system (and at his victim) helped destroy the very concept of a just and free society in many people's minds.

At the very least, in addition to the 48 days, Polanski should be prosecuted for escape and sentenced to more prison time than he originally faced. If he isn't, then what is the judicial incentive for any convict to fulfill his sentence? One of two things will apply:

  • Either we must allow, for consistency, all escapees we recapture to suffer no worse a fate than their original sentences -- an invitation to every convicted felon to take it on the lam instead of serving their time;
  • Else we must necessarily say that some criminals will be treated more harshly for escaping, while other, privileged criminals will be treated with royal consideration.

"Privilege," by the way, literally means "private law;" is that consistent with libertarian philosophy, that a handful of people get special protection under private law unavailable to anyone else?

Roman Polanski owes us, all of us, 48 more days in el calabozo. But beyond that debt, he owes additional penance, preferably prison time, for sloughing off his lawful and legitimate (perhaps even too lenient) punishment.

Polanski may think that's overly harsh; but that's because he thinks he's of an upper class that is "beyond good and evil," and which never has to say it's sorry. Or suffer any consequences. But bluntly, I don't give a tinker's ass what Roman Polanski thinks.

Note, 6 November 2009: Brad has responded to my reponse to his original Mondo Cult article... see here now!

Hatched by Dafydd on this day, October 30, 2009, at the time of 2:41 AM

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The following hissed in response by: BigLeeH

There are times when arguing with Brad is a bit like a scene from a "B" western where a wagon train is attacked by indians. Brad comes circling in, whooping and firing arrows from all directions, reveling in the freedom of motion he gets from being on the outside, and making his opponents feel dizzy and somewhat trapped in their well-defended inner circle, frustrated in mounting a defense because they no sooner wheel to face him than he is firing at them from the other side.

I take your point that Brad has failed to appreciate that Polanski's most serious crime, and the crime for which no statute of limitations applies, or ought to apply, is his flight from justice. But Brad's target is not Polanski, but the silly things said (on both sides) about Polanski by the chattering class. Since the distinction you make seems to elude the glitterati, it is not altogether incumbent on Brad to bring it up in his rebuttal. It is an important distinction, to be sure, but a fine one nonetheless, and unlikely to seem important to Brad when he is intoxicated by the pounding hooves and the sound of the wind in the eagle feathers by his ears.

The above hissed in response by: BigLeeH [TypeKey Profile Page] at October 30, 2009 8:14 AM

The following hissed in response by: Dafydd ab Hugh


Yeah, but I was largely responding to Neil's analysis, which Brad quoted and endorsed. Here is the Neil Schulman segment from the Mondo Cult piece, though I have redacted the victim's name -- if even Neil thinks she has suffered enough, why should we continue dragging her name through the papers?

What is going on here?

In a vain attempt to make sense of it all we turn to someone who spends every day in the outer regions of Cyberspace: J. Neil Schulman.

1.) "Polanski’s victim, *******, wants the charges dismissed and Polanski freed. She does not want to testify. She wants the government to leave her alone. She wants the government to leave Roman Polanski alone. I just don’t see how an all-powerful State saying to a powerless victim ‘you’re our client whether you want to be or not’ is more equitable than the victim being allowed to decide for herself that civil damages were sufficient to make her whole. ******* is satisfied that she was made whole by the half a million dollars paid her in reparations."

2.) "If you believe that the victim -- ******* -- should not have a say about the disposition of the crime that was committed against her and only her -- then please tell all the law-and-order types to shut their pieholes about how they care about victims’ rights. It just rings hollow."

The sophisticated intellectuals with whom Schulman normally engages did not appreciate his common sense observations. Tom Paine might consider this common sense but try telling it to Glenn Beck! One of these geniuses summed up his view on Polanski with two simple words: Fry him!

Brad clearly sets Neil up to be the wise, Will-Rogers-esque, Mister-Smith-goes-to-Washington "Everyman" who speaks truth to power, flummoxing the pointy-headed intellectuals, reducing them to a Jackie Gleason-like "hamina hamina hamina."

So what actually rings a little hollow is the defense that Brad himself doesn't really think Polanski is being treated unfairly; of course he does! He just lets J. Neil Schulman carry the actual water for him.

The assumption that Roman Polanski is being persecuted, not prosecuted (by the sexually repressed social conservatives and angry neocons, Brad's current pair of bugbears), is a central argument of the article; knock that away, and the fulminations of the Glenn Becks of the world (I've never seen or heard him) come into a little better focus: They're angry at Polanski, and they have every right to be; while Brad is not angry at Polanski and can't understand why anybody else is.


The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at October 30, 2009 12:54 PM

The following hissed in response by: BigLeeH

So, I've read through Brad's piece again -- twice, in fact -- and I just don't see the same things that you see in it. Brad is talking about everything and everybody except Polanski.

I do see him taking potshots at social conservatives and neocons -- because he is Brad and that's what he does these days -- but I don't see the Schulman quote in the same light as you do. The bit of Neil's prose that Brad quoted isn't particularly lovely -- it's ok, mind you, but Brad could have said it at least as well himself -- and Neil is an unlikely source to quote if Brad was looking to dazzle us with a celebrity source. I think the reason Brad quoted Neil is to establish a further-out position against which Brad could make himself appear moderate. Brad quoted Schulman to get the position out there while giving himself deniability. J Niel is often useful that way and Brad's respectful setup for the quote is there because J Niel is his friend and Brad wanted to use him without making him feel used in the process.

Schulman may feel sympathy for Polanski but Brad doesn't. He is quite sincere in describing Polanski as "creepy" and, despite the fact that Brad's proposed punishment -- a fine -- is selected to needle Polanski's more hyperbolic critics, Brad doesn't deny that Polanski is a criminal and will deserve whatever he is likely to get.

The above hissed in response by: BigLeeH [TypeKey Profile Page] at October 30, 2009 3:00 PM

The following hissed in response by: Steven Den Beste

According to Patterico, Polanski was never sentenced. It was during the interval between his guilty plea and when sentencing was supposed to take place that he fled the country.

At the time, it was expected that his sentence would be a light one, but there was no guarantee of that. Some have claimed that there was a plea bargain, but there was not. Sentencing was entirely up to the judge.

If he's returned to LA, the process will pick up again with a sentencing hearing. But under the circumstances, it's extremely unlikely that the sentence will be 48 days or anything remotely resembling that. Almost certainly his sentence will be measured in decades, which considering his age pretty much means he'll spend the rest of his life behind bars.

And, of course, he can be prosecuted for his flight, but if the sentence is as long as I suspect it will be, the LA DA may decide not to bother.

The above hissed in response by: Steven Den Beste [TypeKey Profile Page] at October 31, 2009 11:04 AM

The following hissed in response by: Steven Den Beste

Relevant Patterico post:


The above hissed in response by: Steven Den Beste [TypeKey Profile Page] at October 31, 2009 11:12 AM

The following hissed in response by: AD

The LA DA might not have any discretion on Polanski's flight charge.
Interstate/International flight to avoid prosecution is a Federal Offense!
The question is whether or not the USA will "man up"?

The above hissed in response by: AD [TypeKey Profile Page] at October 31, 2009 11:44 AM

The following hissed in response by: Dafydd ab Hugh

Steven Den Beste:

Some have claimed that there was a plea bargain, but there was not. Sentencing was entirely up to the judge.

Of course there was a plea bargain: Polanski agreed to plead guilty to statutory rape, in exchange for which the D.A. dropped the more serious charges. Whether or not sentencing for the guilty plea was part of the deal, this is by definition a plea bargain.

Note that Patterico himself states there was a "plea transcript," which means there was a plea bargain; it just didn't include any promise of a specific sentence. (I had already read that Patterico post when I wrote this one.)


The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at October 31, 2009 12:51 PM

The following hissed in response by: Steven Den Beste

What I meant was that the length of his sentence wasn't part of any agreement.

The above hissed in response by: Steven Den Beste [TypeKey Profile Page] at October 31, 2009 3:44 PM

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