Punishment vs. Justice - an Anarchist Perspective

If You're a Sado-Masochist, This Will Likely Annoy You (i.e., a MUST READ!) ;)

Anarchists in general have not always been consistent on this issue of "crime" and "punishment." I, however, am. The snapshot of "anarchist justice" that I am about to provide was innovated and refined originally in the late '60's by various individuals involved in the "agorist," anarcho-capitalist, or libertarian movements, most especially Linda and Morris Tannehill, in their classic "The Market for Liberty," and Jarret Wollstein in his series in the "Rational Individualist" entitled "Public Services Under Laissez Faire" (Included in later editions of "The Market for Liberty").

One notable addition that is my own innovation - although variations on similar themes have appeared elsewhere occasionally - is the idea of an explicit social contract. Prior art can be seen in the "Basic Contract" employed (without any real success or consistency) in the early '70's at the anarcho-capitalist New Banner Institute. As a former member of this rather cultish group, I likely picked up the seed idea there originally. My understanding is that Andrew Galambos (deceased), founder of the highly successful Free Enterprise Institute of the '60's thru the late '80's, also promulgated some kind of social contract as a fundamental mechanism of a free society, but I have no details on this.

My own evolution of this idea came out of a several year analysis in the late '70's of how community networking might function to produce a community of high trust and low risk, meaning greatly lowered transaction costs among the membership. The key element in that mix of concepts was the idea of a net contract, which would spell out how disputes were to be resolved among members. As my thinking matured in parallel with the advance of personal computers, it became clear to me by around 1980 that the future would almost certainly include a world-wide personally customizable information network, and it was only a short jump from that realization to seeing that a general contract within that hypothetical network would also greatly facilitate its evolution and general value.

I'm going to begin this discussion with reference to what we call "justice" in today's U.S.A. culture. "Justice," by popular acclaim as well as legal jurisprudence is when someone "gets what they deserve." The idea of putting someone in a filthy cell, surrounded by bad people who may beat, starve, rape or murder them - and I don't mean just the guards - because we think that they "deserve" it, is a direct offshoot of small-town rural frontiers, or perhaps the gang mentality of crowded slums, or perhaps the Word of God, Who, after all, sets the ultimate precedent - infinite torture for an infinite duration, for failing to believe in His goodness and love...

Sado-masochistic jerks (or perhaps, "jokes"), such as God and members of the Prison Guards Union, aside, what content does the popular concept of "justice" contain? (If any.) And are there other contenders with a better claim to real correspondence to something socially useful?

The popular concept has at least the one flaw that it is functionally indistinguishable from "revenge." If you do something I don't like, then I will do something to you that you don't like. Some people argue that there is a factor of deterrence involved. If I fear your revenge, then I will forego whatever it is that you don't like me to do or say. In practice, this doesn't work very well even among lower animals.

I well recall a friend who had cats, and their natural concomitants, kittens. Every time the kittens came near to any of the fine glassware located on the obvious kitten pathways, the narrow shelves on every wall, she religiously "SCATed" them. And they scatted. But one morning, I stopped by while my friend was in the shower, and sat in the living room waiting, and watched as the kittens, who had not generalized the concept of where they should go or not at all, at all, carefully marched around and around from shelf to shelf, going precisely to every place from which they had been scatted.

Of course, if every human that observed them reacted properly, then the kittens would likely generalize the behavior to all humans, and only do it when no one at all was present, and, barring video recording, we would all conclude that the punishment had worked - at least until the glass was broken.

Humans are a bit smarter than kittens, one hopes, although with clear occasional exceptions concentrated mostly in centers of religious or political power. One hopes that the people who think that revenge - or its prospect - will actually deter in the long run are not generalizing from their own behavior, as that would imply that there are a whole lot of truly stupid people out there. What people do, as witness the very high rate of recidivism, is simply plan around the issue of revenge. In merry old England, at one point, they were hanging people for stealing sheep! The implication is, of course, that people kept stealing sheep in spite of the most severe threats of revenge. Even hanging could not deter.

Or, there is the variant who say that "justice" is about society. Society is this amorphous "thing," that somehow hypostaticaly lives separate from the actual individual people. We imprison or otherwise punish people because their behavior or thoughts are "anti-social." But "society" is fickle. It changes its mind frequently, and different societies in much the same circumstances may have completely contradictory views on just about any issue one might examine.

And, as it turns out, even within a "society" there are spectrums and contradictions in the views of those irrelevant individuals. Sometimes one view prevails, sometimes another. Sometimes parts of one weltanschauung dominate in one area, while parts of a completely different constituency dominate simultaneously in a different one. That's democracy, which always devolves to coalitions of expediency. I beat up on Paul, Paul beats up on Peter, and Peter beats up on me. It's all fair that way, so maybe it's just. Or not.

Since punishment in practice accomplishes little except to antagonize the recipients, and typically lead to a round of counter revenge, one has to conclude that this is simply a collective acting out of personal feelings of frustration. An eye for an eye leaves us both blind. Yet, there is a general feeling, if poorly conceptualized among the masses, that we ought to support something that makes life fair. People should get what they deserve, or, perhaps to incite more clarity, rephrased as "what they have earned.". Revenge can be emotionally satisfying, yes, but not having a reason to want revenge might be preferable.

Consider for a moment the individual who has been harmed by some other person's actions. Ignore for that moment the motives and character of the perpetrator. Maybe it was an accident. Maybe he or she thought the victim was someone else, or had done something to "deserve" it. Who cares? There are and will be plenty of evil people. One in thirty people is a sociopath, according to the psychologists. But suppose that every time the "bad guy" did something destructive, it was quickly put back to where it was, all the damage eliminated. Hold that thought.

So, the bad guys are out there, and they do bad things that cause problems for other people. But, every time such a bad thing happens, it is undone shortly thereafter. In that case, how interested will the victim be in taking revenge? As compared to having to just "take it," over and over, from all the sociopathic jerks, until finally one of them is caught, and then, oh boy, now it's our turn... Right?

But suppose we really could organize things so that the bad guys could hardly ever do any lasting harm? And, better yet, suppose we really did it up right, and the bad guys had to pay to set everything right again. Wouldn't that be a lot better than stewing in our rage, waiting for the change to get back on some unlucky jerk, who is likely, after all, to be one of the amateurs or the stupid ones, leaving the smart professional predators with less competition?

And, if you did lose, say, a thousand bucks, to some thief, or, to a bad product you purchased, or to an fender bender on the freeway. If you get the thousand back in short order, with interest and coverage for your time and trouble, so that you really don't much care if you have another such incident, then what is the State doing? How is it that they have a right to pile on their own sociopathic "punishment," given that it doesn't even deter, and probably encourages future misbehavior? You're taken care of. What business is it of anyone else's?

If you believe that you have a right to live your own life, so long as you pay your own way and don't steal pieces of other people's lives for your own benefit, then what is the role of punishment, except yet another crime, assuming that things have already been set back to right? Is it your business what someone else's motivations are, and do you have the right to force them to abide by your values - or else? If so, then why can't they argue the same thing? And if that is so, then what is justice but a contest of who is the nastier and more powerful?

But if we arrive at an agreement on this idea that real justice is when things are set back to the condition that you get what you have earned, then the whole concept of "criminal justice" must be some kind of sick fantasy working out of frustration, adding to the amount of injustice, rather that promoting justice.

If so, then perhaps the only legitimate time to imprison someone, if that is the most practical option, is when not doing so poses a clear danger. Similarly for killing another human being. This is a last resort based on the necessity to protect life and property, not a social mechanism to promote some abstract value of a hypostatized "society."

If we go purely on the concept of preserving what we have created and earned, rather than eeking our revenge on people we don't like, then "Justice" as a process is not about imprisonment or punishment; it is about restoring what was damaged, in-so-far-as practical or possible, and preventing loss to begin with. Of course, that is a far cry from what we have today, with an endless reciprocity of revenge, fueled by our aptly named "criminal justice" system. But maybe we can change that.

Justice, as I and most people of the agorist anarchist stripe would argue, prevails when you have what you have earned and so do I, and there is a system that keeps things that way - or enough so that we can live normal lives - without having to take extraordinary measures to defend what is rightfully ours. A just "society" - meaning a collection of individuals living in consonant with a more or less uniform set of basic rules and procedures - has social/legal/technological mechanisms to maintain a low level of injustice and to constantly correct its course to maintain that optimum.

Perfect justice, like zero risk, is impossible, and just like oil, the closer you get to that last barrel, the more expensive it becomes. With justice, however, there is an optimum, where the marginal return for putting another dollar into finding more justice is the same as that of any other average investment. That's how an economist would put it, anyway. If you're better off buying food or drugs or a car or whatever, than expending limited funds to better protect yourself from predators, then go for it.

It's useful to realize that putting zero effort into justice means that we will get zero justice and end up with nothing, not even our lives, but putting everything we own into vengefully pursuing our just deserts will mean that we have nothing to defend anyway, and we will die from the failure to do the other things that life requires. There is a happy medium, regarding which we can look at trends and local conditions and decide individually and collectively how close we are.

If we have hoards of criminals threatening our safety at every moment, then we clearly are not putting enough effort into justice. If we can leave our baby in the stroller on the sidewalk while we shop inside, without a second's thought, then we probably have plenty.

The important issue is not what we do with the occasional criminal, but rather how we prosper ourselves. The media, or course, make money convincing us that a serial killer lurks in every shadow, but, actually, crime is way down from even twenty years ago, although it appears that we are now experiencing an uptick, due to the secondary boomer kids coming of age.

This begs the question, of course, of just how it is that we are going to run a society in which justice is relatively affordable, and, once we have identified such a structure for society, how to get from here to there.

Instead of prisons, as places to warehouse, isolate and concentrate criminals, I prefer the Mall or hotel model - the proprietary community. See Spencer MacCallum's "The Art of Community."

The gated yuppie communities of Irvine have a very low crime rate for good reason. They have physical barriers, ID systems, and guards, and there are people who make a profit on keeping crime at an acceptable level. If they don't do their job, they can be fired and replaced, and a smart community will pay bonuses for fewer complaints - including complaints about over-eager or obnoxious guards, just like companies often pay bonuses for fewer accidents in the workplace.

Similarly, hotels and malls, which can be viewed as miniature communities, providing public and private areas and services, such as transport (hallways, elevators, escalators), security in the form of cameras and guards, etc., as MacCallum shows, generally maintain a quite reasonably low level of crime, meaning a higher level of justice. Those that don't find that customers flee for better sites, and also likely find themselves embroiled in all sorts of costly lawsuits for their failure.

In your typical political entity, on the other hand, such as a city or incorporated township, the cops get a bigger budget - and often more power and freedom from oversight - if crime goes UP - and, surprise, surprise, it often does.

Imagine a society in which most people, including the low-income minorities (and recall the Black Panthers efforts in this respect) lived in communities that were self-monitored, sometimes voluntarily, but often also by people hired to make sure that anyone who was there was not likely to have criminal intent. On entering the community, you would have agreed, implicitly or explicitly, to the terms of presence there, such as providing verifiable ID to the local guards on request.

Good encrypted, biometric ID cards are getting very cheap. Just as a hotel can screen entrants, so a community should be able to, at minimum, check on who goes there. In such a society, a person without a criminal record would be able to go almost anywhere simply by flashing his or her card - or, more likely, having it automatically and invisibly scanned at the entrance and other key checkpoints, technology available today.

In general, a person with a criminal record would still be able to get such a card, but they would have to do the equivalent of posting a bond - directly or via insurance brokers. Of course, the insurance companies are in competition and so the rate would be mostly determined by the likelihood of having to pay out for damages. Insurance companies make money and succeed long term by doing a better job than their competition at assessing actual risks.

If a former criminal wanted to lower his rates, then he might want to find a way to prove to the insurance agent that he had no intent to commit any further crimes. Someone who had committed a string of serious robberies, for example, or who had also committed assaults, might want to hire an expert psychologist or life counselor - one who the insurance companies relied upon - to analyze and/or help him correct his real intent via lie detectors and counseling sessions aimed at bringing him to a more positive view of his life and potential.

The psychologists final evaluation would be worth to the former criminal what the psychologist's track record indicated. If his clients reverted to crime on a regular basis, then the insurance agents would look at that rating in assessing the risk to their company. If his clients rarely transgressed after his therapy, then his stamp of approval would mean lower rates for the former criminal, just like the lower rates for poor drivers who agree to take a professional driving course. As time went on, just like with car insurance, no further crime would mean the rates would drop ever closer to that of a person with no record at all.

Meanwhile, those people who had been convicted of a crime and were delinquent in providing restitution to their victims would pay some of the highest rates, due to the actuarial expectation of the insurance or bonding company.

And, those people whose attitude and history meant that they couldn't afford the bond or insurance to get a card at all would find themselves on the outside, looking in. Of course, there would also be communities that catered to such people on a pay as you go basis. These would likely be in the main somewhat less pleasant places to live, but so long as these people were at least marginally capable of doing useful work, they would be able to find a cheap place to sleep and eat.

There would also be people and likely organizations who would had a talent at recovering people, not for God, but for profit. They would offer the job-training, counseling, psychotherapy, etc., to those people who they assessed as good risks, in the hopes of collecting a fee or perhaps a percentage of earnings. Naturally, the higher the productivity they induced in a former criminal, the more they would stand to profit.

Whether or not a person has committed a crime is hardly the only measure of anyone's worth. In general, the worth - to the rest of us, i.e., "society" - of any individual is the summed value of that individual to each of the rest of the rest of us. Some will argue that the worth of an individual cannot be given a figure in dollars or some hypothetical non-criminal unit of exchange, but, in fact, they and the rest of us behave as if they do have such a worth.

Each of us likely feels that he is the center of the universe, that our unique person is worth an infinite amount, yet we take risks to our lives every moment of every day based on a rational or not assessment of cost benefits. Similarly, we assess the probabilities when we take risks for others, based on their value to us, or on the disvalue of how we would feel, rational or not, if we let them die.

There are cases in which we are willing to expend much more resources for the sake of a given individual than they are likely worth to anyone or even all of us put together. Often, those are cases in which we want to make a point - that we ARE going to rescue someone in those circumstances, such as being a kidnap for ransom victim, as we want to drastically descourage kidnapping for ransom. And there are other cases with other perfectly rationales for going the extra mile.

There are also cases, such as many medical emergencies, when one has to ask, "Is it worth it?" If a million dollars will save some person's life who is dying of alcohol abuse, then do we ignore the fact that we know that for that same million dollars we could prevent 10,000 kids from dying of preventable diseases in Africa? We don't like to make such comparisons, but we have to, as the reality is that we have limited resources, and giving them to one victim may mean ignoring another or others.

So, how do we place a value on a person? To get a clue, why not look at other things that we value and then ask if we can use that procedure like a programming "object" and modify it to fit our need? For example, we already know something about how to set the value of a share-holding business. For simplicities sake, we multiply the current share value, which usually represents the judgements of large number of investors or potential investors, and we multiply that by the number of outstanding shares.

Proceding down that path, a common practice nowadays is the so-called "nanocorp," defined as (from IFS Consulting): " What's a nanocorp? Nanocorps are 'ruthlessly small' businesses run as diversified corporate conglomerates... only way smaller and more dynamic than our Industrial Era counterparts. By 'ruthlessly small' we mean a nanocorp's founding owners are forever its only employees."

While I consider the corporation, as such, to be a basically criminal business model (see my article: Risk by the Numbers - They Play, You Pay for details), it is not the only share-based business model out there. The "trust" model, for example, that largely preceded the rise of the corporate model, it has none of the inherently criminal limited liability by state fiat. Individuals could and do today, in fact, create trusts in their own name to serve as ways to get investment via share sales and share equity.

For a person with such a trust, if this became a common model for individuals, the share prices would naturally be impacted by bad behavior by that individual. A lower share price, in turn, would mean fewer options of getting loans or credit in general. Good, productive behavior, on the other hand, with a concommitent rise in share value, would open many doors. Assuming that the trust shares represent the market value of the physical assets and productive capacity of the person, then an approximation that will be on average at least ball-park accurate, will be the share price times the outstanding shares, just like a business.

Clearly, there will, one hopes, be values not directly reflected in the shares, such as the value to ones spouse or lover(s), for example. So the nanotrust model only gives us a starting point, but at least we have that. I'm sure this brief overview sounds incredibly mercenary to most readers, so, in response to this anticipated reaction, consider the situation that we have now, in which the prison guards union is the largest political lobby in the California, spending more money than any other group and constantly pushing for more prisons, harsher punishments, etc. This is how they make their money: MAKING THINGS WORSE.

Or, the semi-privatized prisons, which still follow the rules of the criminal "justice" system, and mostly consist of semi-monopolies of privileged industries or corporations, getting essentially slave labor at a discount, with little incentive to do anything to reduce that slave labor force.

In contrast, I propose a system that simply excludes people who are a clear danger from the communities, charges those who pose a risk to others accordingly, and provides built-in incentives for both reform and for those who encourage or facilitate it.

And, of course, as an anarchist utopia, there can be many alternative solutions running simultaneously. What some people might consider dangerous or objectionable - using drugs, for example - other communities might find perfectly compatible. Hippie communities that encourage communal property arrangements and free love are just as possible as Mormon enclaves.

Naturally, there would be communities in such an anarchist society that some people would find very objectionable - communities of racial or religious bigots come immediately to mind. However, that holds today in our statist society, as well.

One difference is that the anarchist proprietary community could only show you the door, unless you actually started attacking people or property, in which case they could use what force was necessary to defend themselves. Being annoyed is a lot better than being executed, tortured or imprisoned because you belong to the wrong ethnic, religious, racial, or life-style minority, which happens by the tens of thousands per day in various states in today's world.

But why would communities in general carefully refrain from violating the rights of visitors, or their own members? Why wouldn't predatory communities of criminals evolve to live off and enslave their non-violent neighbors?

This could happen. Nobody guaranteed that just being blameless is enough. The pacifist meek inherit the earth, to be sure - six feet of it. But I didn't just somehow forget that whole dimension to the problem, BTW.

The Tannehill's addressed this problem in terms of interlocking social mechanisms. Predators would find themselves sued by their victims and when they failed to abide the judgment of a legitimate court - one that people would trust, meaning likely with the stamp of approval of an insurance company willing to cover the risks of bad decisions, they would find their property titles and bank accounts had been transferred to their victims, probably not directly, but via the victim's own insurance company, which had already compensated the original victims for losses and now was bringing billions of bucks worth of power to bear on the criminal to collect on the damages it had to cover.

And, of course, people still have the right of self-defense, and many people would have the protection of interlocking proprietary communities, residential and commercial, which would simply lock the bad guys out, unless they posted a rather hefty bond or bought some pricey insurance, as I discussed above.

There is a lot more to this picture of natural market checks and balances against crime, and I strongly recommend that the interested reader read the Tannehills' classic "The Market for Liberty," for more details. However, just because the Tannehills' system might very well work on its own is no reason not to look for facilitating mechanisms and technologies. And after all, one of the major weaknesses of that phase of anarcho-capitalist theory's evolution was and is how to get from here to there.

This is further exemplified within the libertarian anarchist movement itself. While hailing the wonders of a society based on contract instead of military/police power, and extolling the virtues of using arbitration or common law courts to settle disputes, just where within this movement has this stuff actually been tried, anyhow? Well, there are a few rather trivial examples in which people did try to set up an alternate court system, and those always failed, generally for lack of any means to reliably collect damages.

At the same time, however, within the non-anarchist general community, there have been a plethora of very successful alternatives to the state courts that have evolved and matured because they work. Unlike the overburdened state courts, with high fees, unbelievably expensive but necessary attorneys, arcane procedures and precedents and the constant reference to positive (state) law, rather than what is simply reasonable, private systems of mediation and arbitration have long provided largely fair and inexpensive resolution of disputes. In California, it is pretty much the rule now that the judge in a state court will order litigants into arbitration before he will even hear the civil case.

If the litigants then refuse the decision of the arbitrars, which is their legal right, as everyone does have a legal right to a state court trial, then the judge will have to hear the case. However, if the award is less than that already determined via arbitration, then the litigant who refused to go along with that judgment gets to pay the court costs, which is only fair, as they wasted everyone's time.

There are abuses within arbitration as we know it, largely stemming from its continuing ties to the state courts, and the common use of retired state court judges as arbitrators or mediators. Any such abuses should be corrected, of course, but if we compare the occasional abuse to the overwhelming problems in the state courts, then it's clear that in these systems of arbitration and mediation we have a known, successful social technology. Arbitration is legal, and it is binding if all the parties agreed in advance. The state courts will generally refuse to touch the outcome of a binding arbitration, so long as it follows their broad outlines as to procedure. Of courts, the arbitrators can still be sued for fraud or conflict of interest, etc., but the litigants are generally immune.

The state courts are part and parcel of the political process, in which various groups jockey to use the state's big gun to get their way. This is inherent in the monopoly state, itself. So, you can try to imagine some Pie in the Sky reform of the state court systems, with all their faults - especially the fact that they enforce whatever often bizarre laws come down the legislative pike (or executive order, nowadays) at the behest of whatever pressure group - or you can spend a few minutes thinking about a working alternative.

Imagine for a moment that instead of signing an arbitration agreement with your surgeon, your dentist, your car dealership, your real estate agent, etc., etc., etc., that instead you have signed a single agreement that binds you and all other signatories to a method of resolving disputes of any kind among the lot of you... If this agreement worked legally, economically, socially, and if it did indeed serve to reduce risk and thus transaction costs for its signatories, then the consequences would be that virtually everyone would want to get on board.

As companies began offering (or requiring!) the general contract from their customers, likely with discounts or other incentives, then, just like PayPal (which could in fact potentially evolve into this itself), people would find that they could deal across continents and over political boundaries with other signatories with a much higher confidence in the outcome. Insurance to cover losses and non-performance of a contract would be much cheaper for transactions between signatories, reflecting the reality behind that confidence.

Imagine a world order based around this simple social contract. If you're looking for a place to put your retirement funds, then why not invest in small businesses around the globe? Why not invest in people? Why not pay for the education of a bunch of kids in Somalia, in return for shares in their personal trusts? .

Well? Oh, there's that little factor called "risk." "Risk" is why Russia, with six times the natural resources of the U.S. after the breakup of the Soviet Union, and twice as many engineers and scientists, languished, unable to attract capital. In fact, capital from all the dirty deals and gangsterism was fleeing Russia. .

Only a few large Western companies were able to internalize and cope with the risk factors to hire entire institutes for various projects. At the same time, if individuals here in the U.S. had had the opportunity to invest in small businesses in Russia, they might have been FAR better off today, as they seem to slide back into an authoritarian swamp, and the investors would likely have reaped enormous profits for doing a good deed.

So, some of the Somali kids might die. Some of them might fail. Some of them might renege on their trust. But if you have a mutual fund out there recruiting parents to help finance their kids and looking for the best prospects, and there's a world market for the trust shares, then a high share value is that kid's ticket to further investment in him for education, to start a career or business, etc. If he abuses the trust or reneges on it, then who will want to give him a loan in the future? Thus, assuming that we don't crash and burn as a world culture, or another dinosaur killer asteroid doesn't take us out, the majority of kids you invested in will likely be successful and prosperous and you will have profited by ensuring their success.

Or, you can buy into the real dinosaurs, the various doomed U.S. corporations who are nervously watching China eat their lunch, hamstrung by both the relatively restrictive business climate - minimun wages being just one factor - and their own culture of slash and burn economics, which our largely defunct corporate law system has implicitly encouraged. China has learned from their success and is applying the lesson in spades. E.g., Enrons all over, like those Martians in the recent "War of the Worlds movie," suddenly bursting forth at our feckless feet..

On the other hand, the Somali kids are just one example to illustrate what could happen if the economic risk factors were drastically reduced. Applied to our earlier scenario of multiple proprietary communities, the binding social glue of a general contract would make it very costly and thus very unlikely for renegade communities to survive, much less prosper. And without a state to enforce limited liability, the corporation as such would vanish, and whatever financial vehicles replaced it would have to take full responsibility for their impact on the rest of us.

More later.... including the problem of externalities - how do anarchists deal with unforeseen or hidden consequences, such as global warming?

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Dear Phil,

That was a good article on justice -- I'll have to print it out.

FYI, the Atheists United meeting has started up again, this time led by Norman. We now meet at the IHOP across from John Wayne airport, on the second Sunday of the month at 10:30 am. The Hof's Hut is now closed (I think the whole chain closed).

Also, we miss you at the Pure Fiction League. Are your Thursdays busy now?

Take care,

Jennie (jbrwn65@adelphia.net)

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Listening to the number one item on blogdex on Phil Dick:
bbc.co.uk/radio/aod/radio4_aod.shtml?radio4/crapartist
Hope you are well
Bob

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