Due Process

noun.  An established course for judicial proceedings or other governmental activities designed to safeguard the legal rights of the individual.

In these days of instant communication, we now have instant judgment, but at what cost?

We see in the oft times ill-informed statements of individuals a willingness to ruin someone’s life at the first blush of a wrong-doing.  I wonder, would they be so quick to accept the condemnation of society if they themselves were the accused?

The legal system in the United States is a flawed system, it is not always just, it is not always right, and it most certainly is not always equal.  The problem with the system comes not from its design, but from the human beings who are the essential part of it.  We human beings are flawed, and because of those flaws, any system we create and run must account for those flaws.  But, for better or worse, it is our system and it has worked reasonably well for the last 228 years or so and appears to be as good or better than most of the other justice systems of the world.

So here we are in the world of 2017, where the political parties have divided us into two color groups and every news event now carries some sort of political implication.  The shrill public voices on the left and right define everything as good or evil depending not on a stable morality, but on the political gain or loss.

Almost 30 years ago the news outlets started to report public surveys as if they are factual news and we have a generation now who thinks if 60% of the people agree on a poll then it must be true.  If it must be true then we must convict the guilty and send them to wherever the guilty must go.  Of course, we do this without the accused having a right to defend themselves in anything other than edited 15-second soundbites.

To me, it seems like we are willingly surrendering our belief in the design of our legal system and seeking a return to mob-rule or the Roman Circus where all we needed was a good thumb.  

Justice is Just a Word

We are bombarded by concerns about justice, social and otherwise, but what is justice?  Apparently, it is a lot like beauty.  One man’s justice is another man’s injustice.  For a moment consider what it takes to claim to be a just and fair nation operating under the rule of law.  Then consider how far we can stray as one segment or another of society and the legal system move from a common ideal to their preferred approach.

“I’ve got a pen, and I’ve got a phone.” A declaration by President Obama he did not intend to allow the Congress to slow down his administration as he did those things he thought would strengthen his position, the position of his party, the position of his supporters, and perhaps the United States.  At the time, I remember thinking, “Boy, that is a bad idea, because he is setting a standard for his successor.”  As we enter this new era where President-elect Trump will enter the oval office we can expect a huge outcry from the left as he carries on and perhaps expands the tradition of rule by executive order.

The past eight years have seen the administration use the full scope of its executive branch to attack its political opponents.  Remember the time the IRS set out to restrict tax exempt status for conservative organizations?  How about the time the DOJ has injected itself into state investigations to make sure the President’s agenda was pushed, or the time they sold assault weapons to the cartels?  Most recently we hear a report of a “rogue” employee for Homeland Security attempting to hack into the state of Georgia’s election system.  Sorry, but that rogue employee ruse was used by the IRS so there is little credibility remaining with this administration.  All these things, once created, will remain.  We’ve already seen the President-elect’s staff ask for the names of bureaucrats and scientists who have been at the leading edge of pushing the climate change data President Obama labeled as his top agenda item.

The funny thing is there are those on the right who are comfortable with this. The same people who were uncomfortable when the Obama administration began the process are now on-board.  Just as interesting is the outrage of the left, who were completely on-board with the previous administration.  In both cases, we are moving further and further from where the rule of law holds our society together.

Let’s talk about laws for a moment.  I imagine most pre-millennials will remember the Schoolhouse Rock, series that explained in simple terms how an idea progressed into a law.  But that is only 1/3 of the equation.  For a law to be effective it must be administered fairly and judged impartially.  I am afraid we are seeing a breakdown in both the exercise of enforcement, and the impartiality of the judicial system that is charged with the administration of the law.  There are a number of possible examples, but for this purpose I will look at gun control, since it provides the most heated approach on both sides of the center.

One the one hand there are those who would want absolutely no control over the ownership and use of any kind of fire arm, on the opposite extreme there are those who would like to see all guns removed from American civil society.  I think even this extreme still sees the need for guns in the military and perhaps the police, but for everyone else gun ownership should be illegal.  Both extremes are very small percentages, but at the end of the day they seem to be the loudest heard.  Holding aside the debate regarding our right to own guns, let’s only look at would a new law make the possibility of gun violence less?

Those who favor more gun control will obviously say yes, those who oppose, no.  The problem is a law is only words on a paper.  It falls to the humans who are involved in enforcement, the politicians who control and fund them, and the judges and juries who make a determination on application for a law to have any effect.  We never hear about the complexity of making a law work all we ever hear about is “we need a new law,” or “no, we don’t need a new law.”

Over the past eight years we have seen the DOJ selectively break or enforce the laws on gun control, and then stonewall the Congress as they investigated their actions.  Individual acts aside, there has got to be an overall negative affect on the general population over the impartiality of the DOJ on this issue.  Then at the state and local levels we have seen the enforcement of the existing laws expand or contract depending on the politicians and their political affiliations.  If enforcement of the law is not uniform it can’t be effective, when this is the case no law on earth is worth the paper it is written on.

Finally, there is a judicial system that provides a non-uniform application of the law to the defendants brought before the bench.  We’ve seen much in the news about the bias of southern courts where a white defendant will receive a lesser sentence then a black, but the same holds true for northern courts as well, it is just not as well published.  Another variable is personal judicial bias.  It a judge puts their desire for social justice above the fair application of the law they are creating an uneven playing field, to the same degree as a judge who puts race ahead of the facts.

Without a fair and evenly applied enforcement arm, and trusted judicial system, justice is just a word.  As we have seen, it appears to be less important to more people each day.

  

Respect for the Law

glasspatternsource.com

“Equal Justice Under Law”[i] is etched into the main entrance of the United States Supreme court.  It is also the foundation of the Republic, the ideal this nation was founded and built upon.  It is the unobtainable we, at one point, strove for and its erosion is now the reason we see so many cracks in the institution we call the United States of America.

Just as a river erodes the land, we see the abuse of the ideal of equality under the law eroding the average citizens’ belief in the legitimacy of our government. One can argue, as many have, we have never met this ideal.  That is most certainly true.  We have only to look at our history to know this. From our declaration in 1776, past our first experiment in self-government, through the creation of our current constitution and its several amendments we have treated some with deference and others with disdain, but the ideal was there and enough Americans believed our government would strive to see that ideal become a reality that the transgressions were, for the most part, overlooked.

Today I am not so sure that remains true.  In years past the most egregious of discrimination could be quietly masked from the general population.  Today they are not, and because of the various agendas they are all put on display before us on a daily basis.  The hypocrisies of the politicians are evidenced there as well. In combination they are raising a question I never thought I would hear, is our government still, as Abraham Lincoln said, [a] “government of the people, by the people, for the people”[ii] or has the preferential justice given to the rich or politically connected become so blatant as to create a doubt in the majority of the nation?

Those who wonder how Mr. Trump could become a viable candidate, and quite possibly the next President, do not seem to understand how or why he is so attractive to so many.  I submit it is precisely because the majority of our nation has begun to lose confidence we can expect equal justice under the law and our respect for this principle is significantly declining that leads to the popularity of such a candidate.  I offer the following as food for thought.

African-Americans have historically received unequal justice.  It really doesn’t matter what part of the country we are talking about, and although the south is always held out as an example, the truth is the northern, mid-western and western states have also discriminated in their sentencing.  The civil rights movement of the 1960s became the high point of their fight for equality, but in parallel there were much more militant elements seeking to overthrow the system.  They were held down by the weight of the government, but they’ve never gone away.  I believe you can better trace the evolution of the black lives matter movement not to Reverend King, but to Huey P. Newton and Bobby Seale.[iii]

Respect for Life.  As a society we have historically had to balance the rights of one against the rights of the many.  In that balancing we have always had the recourse to appeal a popular political or legal decision up to the highest court to seek the protection for the one.  In its landmark decision of 1973 in Roe v Wade, the court chose to not protect the needs of the one, instead they deferred the decision on life to the medical community, and therein created a life taking industry and a political conflict that rages to this day.  You can argue when life begins, but medical science advances almost daily to the point a fetus is viable almost at conception.  This conflict is only exasperated as the language of the two positions becomes more strident and the political parties fight for political gain.

The abuse of political power for personal and political gain.  As the average American watches the news he or she is inundated with scandal after alleged scandal with corporation presidents being charged by the government for corruption or wrong doing and at the end of the day having their shareholders pay the fine while they collect huge bonus.  Or we see how the executive branch departments have been politicized to target political opposition or absolve favored politicians from criminal wrong-doing.  Each event may have only a mild effect, but I am reminded that the Grand Canyon began with a trickle of the Colorado river.  The same is true for the erosion of our confidence in the expectation of equal justice under the law, and our respect for the law creators, enforcers, and administrators.

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[i] https://www.supremecourt.gov/about/constitutional.aspx

[ii] http://www.abrahamlincolnonline.org/lincoln/speeches/gettysburg.htm

[iii] https://en.wikipedia.org/wiki/Black_Panther_Party

A Few Thoughts on Justice

Justice, like beauty, seems to lie in the eyes of the beholder, or recipient.  This weekend the news was abuzz with reports of a 20-year old Stanford University swim team member who received a six-month sentence for sexual assault of an unconscious woman.  His father’s statement to the court noted his son’s life was “forever altered” and that alone was a steep price to pay for 20 minutes of poor conduct in 20 plus years of life.  Apparently the judge agreed, and gave the offender a slap on the wrist sentence. 

The media has picked up the story and the obvious wrong done to the victim.  In their reporting they bring up a couple of valid points that highlight the erosion of our legal system, and why social unrest grows.  We are supposed to be equal under the law.  That has probably never been 100% true, but it seems the inequality grows each day. 

If the assailant had been black would he have received a six-month sentence?  We can speculate, but I am guessing he would not have, and it would not have been in a county jail.

If the assailant had been a woman would there have even been a trial?

How about if the victim had been a man?  Would the state seek a six-year of term in prison?

In simpler times the punishments were equally problematic. Do we brand him, stone him, dunk him, put him in the stockade, or banish him?  Unfortunately, in most civilizations the woman was usually held responsible.  We seem to be moving beyond that, although many still seek to justify their vicious behavior with that defense. 

It would be really great if Justice was, as she is depicted, blind.  Seeking to balance the rights of all concerned.

For those who call for a harsher sentence, what is the right answer?  While I completely agree the father’s pleading that the young man can educate his peers is pure BS – I don’t know how to balance the punishment with the crime.  The woman will be emotionally damaged (scarred) for a long time, if not for life.  The assailant will now be a convicted sex-offender, who I assume will have to register with police whenever he moves, for the rest of his life.  Neither party will ever put this behind, and this is just one of hundreds of like events that occur each day.

On the Death Penalty

I read a Blog Post the other day, and have been following the comments, on the issue of a State’s right to execute individuals?  The timing for the question comes after listening to a John Grisham book The Confession, whose premise is an innocent black man is executed before the hero and antagonist can arrive and overcome the bias of the Texas courts and Governor. 

Capital punishment, like other moral debates, stirs strong emotions and entrenched positions both for and against.  The purpose of judicial punishment is justice, not revenge, so unlike the Old Testament’s proclamation of “an eye for an eye” the court should not be metering out the sentence based on the emotions of those who’ve been victimized.  Those in favor of execution seem to cite two reasons for the continuation of the death penalty as a viable option.  The first is to ensure the safety of the population, and the second is to deter others from committing similar crimes.  Those opposed, point to the potential for error in the sentencing and the inhumanity of the sentence. 

The Supreme Court, as the court of last appeal, has ruled on a significant number of cases.  Often the plaintiff (the convicted), petitions the court for relief under the provisions of the 5^th, 6^th or 8^th Amendments.  Sometimes convictions and the penalty are upheld, other times they are overturned.  Proponents will often cite this as validation the judicial system works and the risk of error is so small as to be acceptable.  I find no evidence the SCOTUS rules on the accuracy of the conviction; rather its focus is on the State’s compliance with the Constitutional safeguards.

As I consider the arguments for capital punishment I am not convinced that it actually serves to accomplish either of its two stated goals.  Murder is a violent act, and so often it is carried out by those who’ve given little thought to the consequence of their action, either to themselves or those who are affected by the death.  Within our separate state systems the timeframe from event to penalty is so long that I don’t know how anyone can think the potential for a death penalty presents a true deterrent? With the decision on seeking a death penalty resting in the hands of the prosecutor there are so many political considerations that come into play with the choice I am hard pressed to believe protection of the population is a central consideration at all.  All too often, the Prosecutors seem most interested in how quickly they can move from arrest to conviction with the least amount of effort.

On the other hand, I am unconvinced that life imprisonment is a more humane option to a death sentence.  While it would be nice to think of prison as a rehabilitative institution, reshaping the lives of the convicts to return them to useful members of society there is no evidence that our various systems even come close to fulfilling this role.  While it seems morally reprehensible to kill an innocent human being, a large percentage of our population advocates for that everyday, so apparently it is not that bad.  It is somewhat funny that on the one hand the same person can argue for the rights of a convicted killer while making other choices that run counter to that position.

So what is the right answer?  I don’t think there is one.  If we are to be a nation of laws we must work with our legislators to insure those laws are clear, unambiguous, and constitutional, and we must then hold our Judges, Prosecutors, and Defense Council’s to an expectation that those laws are fairly, and equally applied to all who come before the court. 

Since we are dealing with human institutions there will be mistakes and abuse, the founding fathers recognized this and put into place the checks and balances we have today.  The real question is are those checks and balances still working or should we consider some other safeguards?  For example, as science has unlocked DNA, should positive DNA connections be required for conviction, or would the compulsion for DNA sampling be against the accused rights?

At the end of the day, I guess I believe the State, and by this I mean the government of the State, has a right to set whatever level of punishment the general population agrees to, and is Constitutionally valid.  In some States that may mean the most severe penalty is life imprisonment without possibility of parole, and in others it may mean execution.  While this may, on the surface, appear unjust it is within the rights we have assigned ourselves as a nation.  I can live with that.