Normal Cruelty
November 17, 2019
This issue's contents Current issue My Back Pages Search The Ethical Spectacle

Normal Cruelty

by Jonathan Wallace

Please feel free to skip this Digression and start at "Here the real essay begins"

(It would not be an essay by me if it didn't start with a Digression.)

After I launched the Spectacle in January 1995, I wrote at least one new essay every damn month (and sometimes five or six). Once (August 1995? 1996? too lazy to check), I decided to skip the lead essay, and take a vacation, and I still ended up writing new content for the issue.

In 2010 (2013? too lazy to check) I began to struggle to keep up with the twelve essay a year schedule, and some years would accomplish only eleven, or would date the January issue of the following year December, so that the whole calendar started dragging me down like a doomed sailor wrapped in a sail sinking into the Atlantic (which is what I call a "slant metaphor", inspired by Yeats' idea of a "slant rhyme") (which would be, for example, if you rhymed his name with Keats') (I would be doing this all in footnotes so you could more easily avoid it, but I don't actually know the HTML commands).

Now--decline of the Spectacle, or me (I turned 65 this year) or, as Yeats would so much more gently put it, a "gyre"--I have written six essays in 2019. This is a very low-stakes "tragedy" because there are no consequences. No one will terminate a contract, or refuse to pay me any more money, nor will I lose any readership I know of, or or or.

I have a tremendous amount of my energy invested, these days, in what I call my Mad Manuscript, a history of the idea of free speech I have been working on since 2012 or so (there is no way I am technically capable of, to check, even if I weren't lazy). The Mad Manuscript, which I am writing for myself and which will not be published in my lifetime, now takes the first and best of my writing energy; I tend to work on it at 4 am when I used to write for the The Spectacle. I frequently insert my best Spectacle essays into the MM; repurposing MM content as a Spectacle lead does not work as well, though I have tried it a few times.

Yeats sang:
Players and painted stage took all my love
And not those things that they were emblems of.

I hesitated rather unusually picking this month's topic. First, I wanted to write an essay called "Trump is a Killer". Well, of course he is; every President is; and Trump would be even if every President wasn't. I thought about this for weeks, but deflected away every time I thought I might write it, and have compromised by including it in Rags and Bones instead.

Then I dashed off a long email to some people, including brothers, who are exceptionally tolerant of me, about my misadventures with a 2008 Dodge Dakota I purchased, and had a vision I could expand that by five or so paragraphs, and it would be a Spectacle essay. I once wrote one, in the 1990's, about losing a wheel, so why not? But I decided in Trump Universe that a purely frivolous or inward topic will no longer do (and might cause hair to grow on palms).

This morning, I hit on the idea of "normal cruelty" and decided to write this before I get lazy again.

Note: (This too would be a footnote, if I knew how.) The foregoing is a writer's Rule 103 violation, "Never assume the reader cares about your personal stuff".

Yeats sang:
I sought a theme and sought for it in vain,
I sought it daily for six weeks or so.
Maybe at last being but a broken man
I must be satisfied with my heart, although
Winter and summer till old age began
My circus animals were all on show,
Those stilted boys, that burnished chariot,
Lion and woman and the Lord knows what.

Here the real essay begins

....Although still with a bit of a Digression. (Giving up? I don't blame you.) (I didn't mean that.) Charles Perrow's Normal Accidents has become one of the Iconic Books That Wrote Me. He postulates that airplane and ship crashes, and nuclear plant meltdowns, share two attributes: They occur in systems which are too complex for any one human to understand, in places where collaborating sub-systems are too tightly coupled to one another. A classic example is that a physical component overheats and a gauge intended to tell you that, fails. Either the heat problem or the gauge malfunction would be independently survivable, but coupled, they are not. Perrow, since publishing his magnificent book in the 1980's, has extended his analysis to software failures and financial market crashes. I wrote an essay I am rather proud of about climate change, called Earth's Normal Accident. I have also somewhere (in the Mad Manuscript, not the Spectacle) analyzed the 2016 election as a Perrovian Normal Accident. (Trump is the overheating element. Our common sense and free press are two gauges that didn't do their job effectively.)

I chose to use "normal" in the title of this essay with a similar intent to Perrow's. As a middle class putatively white person growing up in Brooklyn, one of the norms I inhaled was "Normal is Good". (That may be a Meta-Norm.) Later, I never felt normal myself, and appreciated a friend's adorable-annoying verbal tic, of always saying the word "normal" in a strange robotic voice.

My question for you: what does it tell you about a society when appalling acts of cruelty become normal? I am not talking about the Nazis or even analogizing to them (pace to Thingumabob's law). (Footnote: In the 1980's I knew Thingumabob personally and have vowed, when I reference the Law for which he is principally known, never to say his name.) I am talking about us.

The development that got me thinking about this this week is the Dreamer Act case being argued before the Supreme Court. Court-watchers who make predictions based on the Justices' questions and demeanor during argument are saying that there will be five votes (including my classmate John Roberts) to allow the President to deport people, some of whom have lived here for a lifetime, know no other language, and have no connection to the country to which we are sending them. This is appalling, insensate cruelty.

In order to think as I do, you would have to agree that being an American is a matter of culture and personality, and not merely the product of a dry and rather deadly legality. Looked at that way, there are any number of Dreamers who are more civically minded, more compassionate, more altruistic, more authentically patriotic than Rudy Giuliani or Newt Gingrich. Put another way (the following is my absolute favorite Thought Experiment), if I had the opportunity to sign up to form a colony on an empty Earthlike world with ten thousand people I invited, I would want those Dreamers with me, and would reject Giuliani or Gingrich's applications in a heartbeat.

If, on the other hand, you think that being American is nothing more than the product of some words on a birth certificate (and sometimes not even then), it becomes so much easier to ignore the insensate cruelty of the result.

Trump, as a result of being stupid, narcissistic, a Capitalist, probably badly raised and nurtured, and lacking any compassion, offers many examples of insensate cruelty in his administration, including the abandonment of the Kurds which my "Trump is a Killer" essay would have been about, and of course the caging and deprivation of immigrant children caught at the border (which would warrant a Thingumabob's Law style comparison to Nazism).

Trump's cruelty will vanish, or at least be ameliorated in government, if he is defeated in 2020 (I doubt he will be removed by a sycophantic, amoral Republican Senate). But I can give you examples of insensate cruelty in the daily operations of our lives which long predate Trump. They can be said, in fact, to provide the soil in which Trump grew.

There is a rule made by an appeals court in New York City under which you can lose a rent-stabilized apartment you have lived in for fifty years, if your name was not officially on the lease. (Full disclosure, I am handling a pro bono appeal of such a case right now, but my opinion would be the same if I weren't.) This is not an unusual scenario if your parents were the original tenants, and an older sibling signed the lease later. Under a subsection of the law dealing with succession rights, you can demand a lease if the leaseholder dies or leaves, and you co-habited with them, as a child, parent, sibling, spouse or partner, for at least two years before they did.

The problem arises in the very common scenario in which a panicked, uninformed individual (usually facing a greedy and bullying landlord who is desirous of getting the apartment out of rent stabilization, or at least being able to get the vacancy increase) continues to have the leaseholder, now living somewhere else, sign the lease. Since, in every one of these cases, the person had a right to the lease they did not understand how to exercise, there was absolutely nothing to be gained by the misdirection.

When I was in my twenties, when I needed most help with situations I had never faced before, I had complete confidence that my parents knew someone who could advise on any situation: taxes, a job-related problem, an issue with a landlord. I continued to draw on those resources sometimes, much later in life. When I was arrested outside Zuccotti Park on the night of the Occupy Wall Street eviction in November 2011, having difficulty contacting the harried lawyer who was representing all the protesters arrested that night, I networked to a Brooklyn criminal law attorney via a lawyer who had been a good friend of my mother's, and had a reassuring half hour conversation, for which he did not charge me. I was 57.

Poor people in America don't have these resources. They suffer from "information poverty". In many cases, the prime tenant or the relative or significant other had asked the landlord to add the other name to the lease, while they were still living together, and did not get an answer, or was told not to worry about it. Unaware that they could file a complaint with a city department, or bring a law suit (and not having, in many cases, the skills or the resources needed to pursue legal remedies anyway), these families followed what was essentially incorrect street knowledge, and had the tenant who had moved to another home or retired somewhere else keep signing the lease.

You would think, in the case of a man who is in his fifties and has lived in the same apartment most of his life, paid the rent like clockwork, worked a full time job, raised children and otherwise been a good citizen, this would be a venial and not a mortal sin. The opposite is true. Rather than considering good citizenship, the rights that the tenant actually had, longevity in the apartment, and the legislature's intent to avoid homelessness and keep New Yorkers in apartments, Manhattan housing courts regard this technical, slight and excusable fault as an excuse to divest people of apartments they have been in for a lifetime.

Housing court in Manhattan is the landlords' captive, an eviction machine serving to clear rent controlled and rent stabilized tenants away so that billionaires can make another billion or so. A semiotic indication is the language that is used in these cruel cases, which is surprisingly different than other comparable kinds of litigation.

This cruel rule is the kind of judicial activism and legislation that makes the Federalist Society crazy when aimed at billionaires. If you read the succession rights language in the statute carefully, it says that the prime tenant and the other must have lived together at least two years. It doesn't say that the prime tenant can't leave after that, without an immediate demand for a lease in the other's name. In fact, the courts in Brooklyn, Queens and Staten Island follow a different, more liberal rule. Only in Manhattan and the Bronx do the courts profess they are shocked, shocked, that a tenant who departed continued to sign a lease.

The rule, which is really pure sophistry (in the original Athenian meaning, of making the worse appear the better cause) holds that the words "prior to the tenant's departure" must be interpreted to mean "prior to the moment that the tenant asks to be taken off the lease" or "at which the landlord claims to have become aware the primary tenant is no longer in residence" . Therefore, if the prime tenant has been living in New Mexico or Mineola for even six months, still signing a renewal lease, they have not yet departed and the requirement is unsatisfied (the primary tenant and the other did not live together the two years just before the moment of disclosure or discovery). This actually creates a Schrodinger's Cat kind of situation: the tenant has "left" or we wouldn't be doing this analysis in the first place. But the tenant has not really "left" because she is still signing the lease. The cat is alive and dead at once, until you open the box. The tenant has left but not left, until the court rules.

The court rule, despite being a grammatical use of language which sounds plausible when a judge says it, breaks down under the slightest analysis. When you consider a tenant who had a right to a lease, and no longer does, you need an additional legal explanation as to the reason why someone lost that right. Given that the legislature spoke of "succession rights", it obligated the courts to explain how these rights evaporate simply because, with the best intentions in the world, your mom or your daughter signed a lease once more after leaving.

There are only two possibilities. One is "waiver" and the other is "forfeiture". Since courts follow this cruel rule without being able to explain it, the language of waiver is most often used to explain what happened. The problem with this, is that is not what "waiver" means in any other kind of case. "Waiver" means the knowing relinquishment of a right.

Nor is it the "forfeiture" of a right. A forfeiture involves a sanction or punishment. The forfeiture of a right can't happen, under the Fifth and Fourteenth Amendments to the U.S. constitution, and some similar provisions in the New York constitution, without due process, notice and opportunity to be heard. You can't lose your First Amendment rights, or your rights to a fair trial or against unreasonable searches and seizures, because you quite unknowingly said "Boo" when you should have said "Bah". But you can lose the apartment you have lived in for fifty years because you made an equally innocent mistake.

I found one case of a courageous and exasperated judge in the Bronx simply refusing, in print, to follow the cruel rule--and he got away with it. Manhattan judges tend to cover for their own inability to explain the rule with.....wait for it....extra indignation. When I spoke about the semiotics of court decisions, consider this: if a court was considering whether you had waived the right to petition for the redress of grievances, or the right to a jury in a criminal trial, it would hold a very detailed evidentiary hearing, with live testimony, to figure out what happened. In cases under the cruel rule, the court merely utters a few sentences about how the failure to notify the landlord that the prime tenant had moved prejudiced the landlord, deprived him of an opportunity to investigate, etc. Good citizens who made a very innocent mistake are presented in these cases as if they were hardened fraudsters.

Which itself is an example of courts shouting loudly when they can't state reasons for a rule. Fraud itself, in any other kind of case, involves three elements: You intentionally say something false; someone else relies on it; they are harmed. In a true fraud case, the other party (here the landlord) would have to prove all three elements by a preponderance of the evidence. In cases applying the cruel rule, courts wax indignant instead of making any of these findings. A tenant who has moved, still signing a lease is not an intentional false statement in and of itself, as it may be an innocent mistake or a misunderstanding. The court's indignation fills in for actual fact-finding. In most of these cases, there has also been no real reliance on any statement; the landlord is usually perfectly aware of the other tenant's presence, for years on end. And most importantly, there is almost never any actual prejudice to a landlord (who, often, refused to put the other individual on the lease).

Here is a punchline of sorts. There is a case in Manhattan in which a court bucked the cruel rule and refused to apply it when a tenant had failed to inform the landlord of the death of her grandmother and signed the deceased's name. I have no further information about what differentiated this case from all others, but would not be surprised to find that the tenant was an attractive, educated, middle class young white woman. If you happen to be of another demographic, even though you are not lying about the prime tenant's death, you can "smile, and smile, and be a villain".

This is what I call "normal cruelty". There are judges on the Manhattan housing bench who actually were tenants' attorneys and public defenders before being appointed. Unlike that one rebel Bronx judge, they apply the cruel rule because the appeals court over their heads told them to. They even wax a bit indignant themselves, to justify their findings. They do not resign in protest. They are following orders.

The same appeals court in Manhattan which initiated this rule, a few years ago also issued the cruelest, most absurd decision I have ever seen from a twenty-first century court in the American north (notice how carefully I qualified that). A tenant living in a building in which a lawless landlord was trying to drive everyone out, had legitimate reason to be frightened. He also had mental health issues. He became so paranoid about being harmed by the landlord that he began spending most nights on a park bench. The court--no kidding; I am overwhelmed by indignation just writing these words--ordered him evicted on the grounds that he had abandoned primary residence in the apartment.

The cruel rule about succession rights, and the park bench case, predate the Trump administration. They are (in my humble opinion) empty legalisms in the service of Late Capitalism. The landlords run New York City. Even "progressive" mayors tend to be either beholden to them, or afraid of them. The cruel rules New York City courts invent in landlord tenant cases are, in effect, in the air which Donald Trump (a landlord) inhaled growing up.