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AnjaHavedalThirdPaper 6 - 21 Jul 2009 - Main.AnjaHavedal
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< | As of mid-July, this is a WORK IN PROGRESS. Re-reading my essay two months after I somewhat hastily wrote it in between finals, I was struck by how utterly incoherent and flat it was. I am replacing it piece by piece with something more thoughtful. | >
> | What appears below is a complete overhaul of my third paper, elaborating on the one interesting idea in my first draft and getting rid of the rest. As of mid-July, it is still something of a work in progress. | | | | |
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< | Rethinking Crime and Punishment | | | | |
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< | Why do people break the rules? | >
> | Effecting Change Through Law | | | | |
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< | I ride the tram to the office every day without paying for it. I get on through the back door, sit down, and get off if I see a man in uniform. I work in a judge’s chamber; I break the rules on my way to an office where my job is to labor over the anatomy of justice. The irony does not escape me. Why do I do it? Because I can. Because I would rather spend the money on something else. | | | | |
<
< | A decade and a half ago in Rwanda, Hutu farmers turned on their Tutsi neighbors, hacking them to death with machetes. When they were done killing, they were eager to collect the bounty. Why did they do it? Because they could. Because they wanted their victims’ land or television sets. | >
> | People Break Rules | | | | |
<
< | In the aftermath of Hurricane Katrina, one New Orleans resident appeared on CNN carrying an armload of stolen sneakers. Cheerfully, she told the camera: “Katrina gave us new shoes.” Why did she do it? Because she could. Because everybody else was doing it. | >
> | I ride the tram to the office every day without paying for it. I get on through the back door, sit down, and get off if I see a man in uniform. I work in a judge’s chamber; I break the rules on my way to an office where my job is to labor over the anatomy of justice. The irony does not escape me. Why do I do it? Because I can get away with it, and because I would rather spend my money on something else. | | | | |
<
< | We’re all Potential Criminals | >
> | Many New Orleans residents participated in the looting that emptied shelves in unguarded stores throughout the city in the aftermath of Hurricane Katrina. One woman appeared on CNN carrying an armload of sneakers; cheerfully, she told the camera that “Katrina gave us new shoes.” Why did she do it? Because she could, because it was profitable, and because everybody else was doing it. | | | | |
<
< | Most people break at least some rules under certain circumstances. The same holds true for the law. When faced with the impression that social norms do not apply, or that the benefit of illegal behavior is greater than its cost, we break the law. If we accept that human being are lazy, selfish and stingy by nature, we must also accept that Most people – I dare not say all – are capable of criminal conduct. | >
> | A decade and a half ago in Rwanda, Hutu farmers turned on their Tutsi neighbors, hacking them to death with machetes. When they were done killing, they took their victims’ land, bicycles, television sets. Why did they do it? Because they could. Because their leaders told them that the cockroaches had to be annihilated. Because everybody else was doing it. Because killing was profitable. | | | | |
<
< | We commonly assume that people who commit crimes are “bad people.” The Anglo-American criminal law has traditionally used a variety of mental-state requirements as proxies for “the guilty mind” – without further inquiry into the factors that produced that mind or triggered the criminal action. But how can we be sure that they are in any way worse than the rest of us? | >
> | The Fall of My Moral Empire | | | | |
<
< | Crime is Circumstantial | >
> | Human beings do not live by moral codes; we live by rules. The rules themselves are man-made, relative to time and space. The strength of a rule is roughly proportional to the efficiency and force with which society upholds it. If the benefit of breaking a rule outweighs the cost, we do so. If we notice other people breaking a rule, we tend to follow suit. And if we perceive that breaking a particular rule is legitimate – for example, when a person of authority tells us so – we no longer feel constrained by it. | | | | |
<
< | If we accept the premise that all or most of us are capable of a “guilty mind,” we can dispel the view of criminals as a distinct group and instead focus on the factors that trigger this latent criminal propensity. In that combination of triggering factors we might find an alternative to the current failing system of criminal punishment. | >
> | These may seem like simple, obvious truths. In fact, I fear that I admitting that they are conceptually new to me will reveal the naivete that I now realize has always shaped my view of the world. I have long struggled – emotionally and intellectually – with the “evils” of the world. Observing my surroundings through a lens that allows for no nuance between black and white, I have attempted to figure out why people do “bad” things: Why did children tell on their parents in Pol Pot’s Cambodia? Why do priests molest altar boys? Why did thousands of “regular people” work in Nazi Germany’s death camps? Why do we in the West use more than our share of the global resources? Why do people sell their children into sex slavery? Why do Columbia law students throw plastic in the bin clearly labeled “paper only”? | | | | |
<
< | The traditional approaches to criminal punishment have one thing in common: They approach crime from a band-aid perspective. But while we scratch our heads attempting to figure out how to punish, we miss the point. Perhaps we should stop obsessing about reprimanding past harm and try to learn how to reduce crime and the need for punishment in the future? | >
> | Until recently, the only answer that I could come up with – along the lines of “because they are deaf to their own sense of moral” – has been as unsatisfying as it is trite. Because what do you do with that? Telling someone who is selling drugs at a high school that his actions are immoral is useless; and preaching what is “right” and “wrong” is a futile way of preventing genocide from reoccurring. I can see this clearly now. But I came to law school thinking it would be populated by people who, like me, have spent the last decade attempting to cure the world’s ills by wielding blunt tools like “values” and “morals” and “ethics.” As long as I can remember, I have operated under the assumption that I could effect change by appealing to people’s gut moral instinct: Thus I wrote alarmist columns about climate change in my college newspaper, preached veganism from behind the counter at Burger King, and told everybody and his mother about the plight of Afghan women. All of the above with very limited success.
In law school, I thought, me and my fellow moral warriors would embark, arm-in-arm, on a mission to eradicate “bad” and “evil” in society and the world. Yeah. Hello. Earth to Anja. | | | | |
<
< | IN PROGRESS. | >
> | Law is the Answer, You Fool
It took me one year of law school to realize that the power of law is not that it is rooted in some vague concept of what is morally right and wrong. The power of law is that it can force people to behave in a certain way, that it is backed by threats of punishment, and that it can be changed and enforced to serve the purposes of those who are smart about it. In this way, law actually allows me do something about the world’s problems in a way that is much more direct than I had foreseen.
If we accept the contention that human beings live by rules, not moral codes, we should necessarily focus our efforts to effect change on the law and its enforcement. If you do not like society’s disregard for climate change, advocate for legislation that force people into carbon-friendlier behaviour. If you suffer at the thought of animal factories, how about some creative litigation? And if you want to prevent genocide or impunity for war crimes, put your weight and energy behind the emerging system of international criminal law. | | | | |
>
> | Sometimes, I believe, successfully effecting change through law calls for a pragmatic approach. We are looking to cure the ills of society not by eliminating their cause – that would be a moral-ethical quest – but by taking a realistic look at the problem and search for a way to minimize their negative effects. In this vein, the Netherlands has already rid itself of some of the nasty byproducts of drugs and prostitution by a two-pronged legalize-and-regulate policy. While legalizing prostitution may instinctively feel “wrong,” reality is that it has allowed for a crackdown on things like human trafficking, exploitation of children, gender-motivated violence, and disease. Sometimes, it seems, making rules more realistic can be a way to effect change.
So if you want me to pay my tram fare, I would suggest either making it cheaper or threatening me with time behind bars.
IN PROGRESS. | | | Eben's comments on the original draft: |
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AnjaHavedalThirdPaper 5 - 15 Jul 2009 - Main.AnjaHavedal
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< | Re-reading this essay two months after I somewhat hastily wrote it in between finals, I am struck by how utterly incoherent and flat it is. It will soon be replaced by something more thoughtful. | >
> | As of mid-July, this is a WORK IN PROGRESS. Re-reading my essay two months after I somewhat hastily wrote it in between finals, I was struck by how utterly incoherent and flat it was. I am replacing it piece by piece with something more thoughtful. | | | | |
<
< | The Nature of Crime and the Purpose of Punishment | >
> | Rethinking Crime and Punishment | | | | |
<
< | Ever since Bernie Madoff was arrested, I have been struggling with the issue of criminal punishment: If we are going to pay for him to die in prison, what do we get in return? | >
> | Why do people break the rules? | | | | |
<
< | With 2.1 million people currently incarcerated, the US has by far the largest prison population in the world. Keeping one out of every 100 Americans in prison, on parole or on probation cost the states $47 billion in 2008. These numbers not only make prison an important social institution, but beg the question: Is there a benefit that justifies the spending? | >
> | I ride the tram to the office every day without paying for it. I get on through the back door, sit down, and get off if I see a man in uniform. I work in a judge’s chamber; I break the rules on my way to an office where my job is to labor over the anatomy of justice. The irony does not escape me. Why do I do it? Because I can. Because I would rather spend the money on something else. | | | | |
<
< | Punishment with a Purpose | >
> | A decade and a half ago in Rwanda, Hutu farmers turned on their Tutsi neighbors, hacking them to death with machetes. When they were done killing, they were eager to collect the bounty. Why did they do it? Because they could. Because they wanted their victims’ land or television sets. | | | | |
<
< | Since the 1970s, when rehabilitation was abandoned as a goal of the criminal justice system, punishment has been based largely on the idea of retribution: We punish those who break the law because they deserve it. The state imposes suffering (supposedly) proportional to the amount of social harm a person has inflicted through his or her crime. Any incidental positive side effects – increased public safety or lower crime rates – are secondary to the goal of punishment itself. | >
> | In the aftermath of Hurricane Katrina, one New Orleans resident appeared on CNN carrying an armload of stolen sneakers. Cheerfully, she told the camera: “Katrina gave us new shoes.” Why did she do it? Because she could. Because everybody else was doing it. | | | | |
<
< | But is mere retribution really enough to warrant the exorbitant maintenance costs of courts, prisons and jails? And considering the values on which American society is founded – democracy, liberty, freedom – should the government really mete out justice based on a modernized version of “an eye for an eye“? By inflicting suffering purely for the sake of suffering, the government loses the moral high ground and ends up looking almost as bad as the criminals it locks up. | >
> | We’re all Potential Criminals | | | | |
<
< | From a utilitarian perspective, punishment is in itself is an evil – one that we should employ only if it serves a useful purpose. Rehabilitation as a penal ideology succumbed to data-based criticism that it simply did not work, so today’s utilitarians argue instead that the purpose of criminal punishment is to increase public safety by reducing crime. In essence, the argument holds that that sending a person to prison will (1) incapacitate him for a while, (2) discourage him from reoffending, and (3) deter others like him from committing crimes. Through incapacitation and deterrence, the utilitarian approach purports to give some return on our investment in the criminal justice system. The problem, unfortunately, is that it does not work that way. | >
> | Most people break at least some rules under certain circumstances. The same holds true for the law. When faced with the impression that social norms do not apply, or that the benefit of illegal behavior is greater than its cost, we break the law. If we accept that human being are lazy, selfish and stingy by nature, we must also accept that Most people – I dare not say all – are capable of criminal conduct. | | | | |
<
< | Does it work? | >
> | We commonly assume that people who commit crimes are “bad people.” The Anglo-American criminal law has traditionally used a variety of mental-state requirements as proxies for “the guilty mind” – without further inquiry into the factors that produced that mind or triggered the criminal action. But how can we be sure that they are in any way worse than the rest of us? | | | | |
<
< | William Furman was convicted of felony murder and sentenced to death in 1964, having killed in the process of committing a burglary. In 1972, however, the Supreme Court overturned his sentence and placed a de facto moratorium on the death penalty (Furman v. Georgia). In other words, Furman was given a second chance on life. Nonetheless, upon being paroled, he committed another burglary and was sentenced to 20 years in prison. If narrowly escaping the death penalty does not deter, what does? | >
> | Crime is Circumstantial | | | | |
<
< | The vast majority of criminals-to-be apparently do not carry out the cost-benefit analysis required for deterrence to work; similarly, the benefit of incapacitation is mitigated by a replacement effect – as long as there is a demand for drugs, for instance, someone will deal them. So, while incarceration has increased by 500 percent over the last three decades, the crime rate today is essentially the same as it was in 1970 (approx. 4,000 per 100,000). We spend an average of $29,000 a year per prisoner, and yet we do not seem to be any safer. It seems like a bad investment to me. | >
> | If we accept the premise that all or most of us are capable of a “guilty mind,” we can dispel the view of criminals as a distinct group and instead focus on the factors that trigger this latent criminal propensity. In that combination of triggering factors we might find an alternative to the current failing system of criminal punishment. | | | | |
<
< | Addressing the Cause of Crime | >
> | The traditional approaches to criminal punishment have one thing in common: They approach crime from a band-aid perspective. But while we scratch our heads attempting to figure out how to punish, we miss the point. Perhaps we should stop obsessing about reprimanding past harm and try to learn how to reduce crime and the need for punishment in the future? | | | | |
<
< | These traditional approaches to criminal punishment have one thing in common: They approach crime from a band-aid perspective. But while we scratch our heads attempting to figure out what to do with those who have already caused social harm – lock them up, kill or rehabilitate them – several new crops of criminals are sown. Perhaps we should stop obsessing about reprimanding past harm and try to learn how to reduce crime and the need for punishment in the future? | >
> | IN PROGRESS. | | | | |
<
< | To address the root of the problem we must understand what motivates crime. Why do people break the law? The Anglo-American criminal law has traditionally used a variety of mental-state requirements as proxies for “the guilty mind” – without further inquiry into the factors that produced that mind. We tend to assume that people who commit crimes are “bad people,” when in fact we cannot be sure that they are in any way worse than the rest of us. | | | | |
<
< | I would argue that, under certain circumstances, most people are capable of criminal conduct. In the aftermath of Hurricane Katrina, for example, ordinary people turned into looters and thieves not necessarily because they had to, but because they could. One resident appeared on CNN carrying an armload of stolen sneakers and cheerfully exclaiming: “Katrina gave us new shoes.” More appalling instances of this phenomenon is the willingness of ordinary people to assist in mass murder during World War II and in places like Cambodia and Rwanda.
The Way Forward
If we accept the premise that all or most of us are capable of a “guilty mind,” we can dispel the view of criminals as a distinct group and instead focus on the dynamics that trigger this latent criminal propensity in some people. In that combination of triggering factors we might find an alternative to widespread incarceration that gives us a better return on our investment. Given that a majority of prison inmates are high-school dropouts, shifting funding from prisons to schools and community programs may be a good place to start. Though long-term goals are notoriously hard to pursue, we may ultimately not have a choice. No society is a utopia, and prisons will never entirely go out of style. Nonetheless, we cannot afford – fiscally or morally – to waste resources on a costly system that has failed to serve a purpose for a long time.
All of this said, and I still do not know what to do with Madoff. | >
> | Eben's comments on the original draft: | | |
- Yes, all of this said and you haven't made any progress on your well-chosen (if not exactly recondite) topic.
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AnjaHavedalThirdPaper 4 - 14 Jul 2009 - Main.AnjaHavedal
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> | Re-reading this essay two months after I somewhat hastily wrote it in between finals, I am struck by how utterly incoherent and flat it is. It will soon be replaced by something more thoughtful. | | | The Nature of Crime and the Purpose of Punishment
Ever since Bernie Madoff was arrested, I have been struggling with the issue of criminal punishment: If we are going to pay for him to die in prison, what do we get in return? |
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AnjaHavedalThirdPaper 3 - 29 Jun 2009 - Main.EbenMoglen
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The Nature of Crime and the Purpose of Punishment | | | All of this said, and I still do not know what to do with Madoff. | |
>
> |
- Yes, all of this said and you haven't made any progress on your well-chosen (if not exactly recondite) topic.
- This is therefore the draft before the draft. You have written around your subject enough to know that you have picked a good subject, because the usual stuff said in the usual way is unsatisfying. You mash up several different points of view (you begin by saying that retribution has been our central theory of criminal punishment, only to say a graf later that it has been incapacitation and general deterrence), you assert that rehabilitation doesn't work, and that deterrence doesn't either (on the basis of a single exceptional anecdote, although much better evidence for your proposition is available), and then skip to the "social roots of crime" analysis that joins the 18th century radical, the 19th century liberal, and the 20th century progressive in a multi-generational parade of "right before their time."
- But none of it is helpful in dealing with Madoff, as you say. So now it becomes necessary to write the draft that one writes after one realizes that all the stuff everybody says all the time doesn't really explain anything. If you seriously set about doing it, and find a way to express your exploration and discoveries in 1,000 words, you will have a memorable and irreversible intellectual experience. Go for it.
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AnjaHavedalThirdPaper 2 - 30 May 2009 - Main.AnjaHavedal
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The Nature of Crime and the Purpose of Punishment | | | William Furman was convicted of felony murder and sentenced to death in 1964, having killed in the process of committing a burglary. In 1972, however, the Supreme Court overturned his sentence and placed a de facto moratorium on the death penalty (Furman v. Georgia). In other words, Furman was given a second chance on life. Nonetheless, upon being paroled, he committed another burglary and was sentenced to 20 years in prison. If narrowly escaping the death penalty does not deter, what does? | |
<
< | The vast majority of criminals-to-be apparently do not carry out the cost-benefit analysis required for deterrence to work; similarly, the benefit of incapacitation is mitigated by a replacement effect – as long as there is a demand for drugs, for instance, someone will deal them. So, while incarceration has increased by 500 percent over the last three decades, the crime rate today is essentially the same as it was in 1970 (approx. 4,000 per 100,000). We are spending paying an average of $29,000 a year per prisoner, and yet we do not seem to be any safer. It seems like a bad investment to me. | >
> | The vast majority of criminals-to-be apparently do not carry out the cost-benefit analysis required for deterrence to work; similarly, the benefit of incapacitation is mitigated by a replacement effect – as long as there is a demand for drugs, for instance, someone will deal them. So, while incarceration has increased by 500 percent over the last three decades, the crime rate today is essentially the same as it was in 1970 (approx. 4,000 per 100,000). We spend an average of $29,000 a year per prisoner, and yet we do not seem to be any safer. It seems like a bad investment to me. | | | Addressing the Cause of Crime | |
<
< | These traditional approaches to criminal punishment have one thing in common: They approach crime from a band-aid perspective. But while we scratch our heads attempting to figure out what to do with those who have already caused social harm – lock them up, kill or rehabilitate them – several new crops of criminals are sown. Perhaps we should stop obsessing about reprimanding past harm and try to learn how to reduce crime and the need for punishment in the future? | >
> | These traditional approaches to criminal punishment have one thing in common: They approach crime from a band-aid perspective. But while we scratch our heads attempting to figure out what to do with those who have already caused social harm – lock them up, kill or rehabilitate them – several new crops of criminals are sown. Perhaps we should stop obsessing about reprimanding past harm and try to learn how to reduce crime and the need for punishment in the future? | | | To address the root of the problem we must understand what motivates crime. Why do people break the law? The Anglo-American criminal law has traditionally used a variety of mental-state requirements as proxies for “the guilty mind” – without further inquiry into the factors that produced that mind. We tend to assume that people who commit crimes are “bad people,” when in fact we cannot be sure that they are in any way worse than the rest of us.
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AnjaHavedalThirdPaper 1 - 14 May 2009 - Main.AnjaHavedal
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The Nature of Crime and the Purpose of Punishment
Ever since Bernie Madoff was arrested, I have been struggling with the issue of criminal punishment: If we are going to pay for him to die in prison, what do we get in return?
With 2.1 million people currently incarcerated, the US has by far the largest prison population in the world. Keeping one out of every 100 Americans in prison, on parole or on probation cost the states $47 billion in 2008. These numbers not only make prison an important social institution, but beg the question: Is there a benefit that justifies the spending?
Punishment with a Purpose
Since the 1970s, when rehabilitation was abandoned as a goal of the criminal justice system, punishment has been based largely on the idea of retribution: We punish those who break the law because they deserve it. The state imposes suffering (supposedly) proportional to the amount of social harm a person has inflicted through his or her crime. Any incidental positive side effects – increased public safety or lower crime rates – are secondary to the goal of punishment itself.
But is mere retribution really enough to warrant the exorbitant maintenance costs of courts, prisons and jails? And considering the values on which American society is founded – democracy, liberty, freedom – should the government really mete out justice based on a modernized version of “an eye for an eye“? By inflicting suffering purely for the sake of suffering, the government loses the moral high ground and ends up looking almost as bad as the criminals it locks up.
From a utilitarian perspective, punishment is in itself is an evil – one that we should employ only if it serves a useful purpose. Rehabilitation as a penal ideology succumbed to data-based criticism that it simply did not work, so today’s utilitarians argue instead that the purpose of criminal punishment is to increase public safety by reducing crime. In essence, the argument holds that that sending a person to prison will (1) incapacitate him for a while, (2) discourage him from reoffending, and (3) deter others like him from committing crimes. Through incapacitation and deterrence, the utilitarian approach purports to give some return on our investment in the criminal justice system. The problem, unfortunately, is that it does not work that way.
Does it work?
William Furman was convicted of felony murder and sentenced to death in 1964, having killed in the process of committing a burglary. In 1972, however, the Supreme Court overturned his sentence and placed a de facto moratorium on the death penalty (Furman v. Georgia). In other words, Furman was given a second chance on life. Nonetheless, upon being paroled, he committed another burglary and was sentenced to 20 years in prison. If narrowly escaping the death penalty does not deter, what does?
The vast majority of criminals-to-be apparently do not carry out the cost-benefit analysis required for deterrence to work; similarly, the benefit of incapacitation is mitigated by a replacement effect – as long as there is a demand for drugs, for instance, someone will deal them. So, while incarceration has increased by 500 percent over the last three decades, the crime rate today is essentially the same as it was in 1970 (approx. 4,000 per 100,000). We are spending paying an average of $29,000 a year per prisoner, and yet we do not seem to be any safer. It seems like a bad investment to me.
Addressing the Cause of Crime
These traditional approaches to criminal punishment have one thing in common: They approach crime from a band-aid perspective. But while we scratch our heads attempting to figure out what to do with those who have already caused social harm – lock them up, kill or rehabilitate them – several new crops of criminals are sown. Perhaps we should stop obsessing about reprimanding past harm and try to learn how to reduce crime and the need for punishment in the future?
To address the root of the problem we must understand what motivates crime. Why do people break the law? The Anglo-American criminal law has traditionally used a variety of mental-state requirements as proxies for “the guilty mind” – without further inquiry into the factors that produced that mind. We tend to assume that people who commit crimes are “bad people,” when in fact we cannot be sure that they are in any way worse than the rest of us.
I would argue that, under certain circumstances, most people are capable of criminal conduct. In the aftermath of Hurricane Katrina, for example, ordinary people turned into looters and thieves not necessarily because they had to, but because they could. One resident appeared on CNN carrying an armload of stolen sneakers and cheerfully exclaiming: “Katrina gave us new shoes.” More appalling instances of this phenomenon is the willingness of ordinary people to assist in mass murder during World War II and in places like Cambodia and Rwanda.
The Way Forward
If we accept the premise that all or most of us are capable of a “guilty mind,” we can dispel the view of criminals as a distinct group and instead focus on the dynamics that trigger this latent criminal propensity in some people. In that combination of triggering factors we might find an alternative to widespread incarceration that gives us a better return on our investment. Given that a majority of prison inmates are high-school dropouts, shifting funding from prisons to schools and community programs may be a good place to start. Though long-term goals are notoriously hard to pursue, we may ultimately not have a choice. No society is a utopia, and prisons will never entirely go out of style. Nonetheless, we cannot afford – fiscally or morally – to waste resources on a costly system that has failed to serve a purpose for a long time.
All of this said, and I still do not know what to do with Madoff.
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| Revision 6 | r6 - 21 Jul 2009 - 22:44:13 - AnjaHavedal? |
| Revision 5 | r5 - 15 Jul 2009 - 22:38:56 - AnjaHavedal? |
| Revision 4 | r4 - 14 Jul 2009 - 20:32:03 - AnjaHavedal? |
| Revision 3 | r3 - 29 Jun 2009 - 16:13:17 - EbenMoglen |
| Revision 2 | r2 - 30 May 2009 - 21:13:14 - AnjaHavedal? |
| Revision 1 | r1 - 14 May 2009 - 08:00:17 - AnjaHavedal? |
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