Yes, really. My italics:
“On the second question, I think the proper level of punishment in this case would be based primarily on the principle of what lawyers call “special deterrence.” In plain English, here’s the key question: What punishment was the minimum necessary to deter Swartz from continuing to try to use unlawful means to achieve his reform goals? I don’t think I know the answer to that question, but that’s the question I would answer to determine the proper level of punishment.” He argues that Aaron’s announced ideals would lead him to violate the law again and that therefore the prosecutor would be right to ask for a sentence sufficient to stop that hypothetical continued criminal conduct.
Now maybe this is right. But I think it is a lot more revolutionary than Orin gives it credit for and a lot more contentious than his post suggests. I return to the Martin Luther King or Rosa Parks examples. (Or if you prefer, the anti-abortion activist who trespasses on Planned Parenthood in order to spray paint his slogan.)
Legislatures had enacted segregation laws. If Dr. King trespasses and violates state rules mandating segregation, and announces that he considers these laws wrong and that he will encourage others to do the same in the future, do we really believe that the prosecutor should ramp up the penalty until it would amount to special deterrence? What would that take? Death? Life imprisonment? Is that then “not disproportionate”? I would have thought that one of the reasons we treat the protester who acts out of conviction (even conviction we disagree with) more leniently, is that we recognize that this is not mere profit seeking, not mere personal interest, and that in the past, such protesters have eventually changed our minds about the rightness of the actions the law prohibits. There are limits to leniency, surely. But there seem few limits on Orin’s special deterrence.
There are, of course, no limits on absolute sovereignty.
I’m quite confident that Professor Boyle doesn’t really believe Christians have the right to vandalize abortion clinics. As he makes quite clear by his use of Movement dog-whistles such as “reform” and “change,” what he really means is: the Party has the right to change the law, by displaying its own power to protect, even glorify, those who break it. The kulaks? Neighbor, don’t be ridiculous. The kulak exists to be beaten. This is why “kulak” means “fist.”
“Special deterrence” is just one of the many 20th-century euphemisms which we use to cover the fact that we know perfectly well that might makes right. That is: Christians do not in fact have the right to vandalize abortion clinics (and get away with it, as Professor Boyle and I agree in wishing Aaron Swartz had gotten away with his JSTOR hack.)
Why don’t Christians have the right to vandalize abortion clinics? Because they do not have the might to do so (and get away with it). If they did, Christians would be on top and progressives would be on the bottom. We would live in a different country—one in which, as in most legal codes in human history around the globe, abortion was considered a serious crime. And there would be, of course, no such thing as an “abortion clinic.”
My advice to every sort of activist is: whatever the law is, wherever you are, follow it at all times. Don’t even ask whether you have the power to break it and get away with it. If you have to ask—you don’t. If you don’t have to ask, why are you asking me?
As a power structure the American political system is a real work of art. For instance, one of the most basic ways to show power over someone is to take away something he has and wants to keep. It doesn’t have to be anything valuable, either to you or to him. Though it can be. Ideally, though, it’s of no real value to you, but considerable value (perhaps only sentimental or irrational value) to him. That way, it’s clear to everyone what the exercise is about: as Lenin put it, who beats whom.
I actually think it’s really wonderful that President Obama, even before the second term of his historic presidency, has jumped out so hard on the good old reliable beat-the-kulaks campaign trail. It’s always fun to be an overdog. But never forget to actually play the part. If you stop beating people, they might forget that you’re in charge.
Moreover, that creates a situation of great potential entertainment for our most important branch of the entertainment industry. It has two sides: those who want A to beat B, and those who want B not to be beaten. These are extreme positions, of course. The moderate center believes that B should certainly be beaten, but not too badly—a sane position that almost always prevails. It is actually rumored that a long time ago, in a galaxy far far away, it was actually B who beat and A who was beaten. But no one can actually believe it.
As for the poor kulak? Well, it used to be well-known that the poor need poverty. (Then it was forgotten—and had to be proven.) Similarly, chumbolones need to be beaten. For what other stimulus could possibly rescue them from their eternal chumpitude? And if nothing can so rescue them, don’t they deserve to be beaten, beaten and beaten again? I salute the President for his bold stand on gun control and other controversial “social” issues. Go for the throat, Mr. President!