words from the Preamble to the Constitution that established our national government.
words that sadly do not seem applicable today
The Preamble lists six purposes for the establishment of our system of government
in Order to form a more perfect Union,
establish Justice,
insure domestic Tranquility,
provide for the common defence,
promote the general Welfare,
and secure the Blessings of Liberty to ourselves and our Posterity
Had we any doubt, recent events should make clear that we regularly fail to meet the 2nd and 6th of these
for far too many justice is not established
for for too many who are wrongly convicted and imprisoned, perhaps even executed (consider the number of wrongly convicted who have been on death row before being exonerated) the Blessings of Liberty have not been secured for them.
I have written a lot recently reflecting upon the words of others who have responded to events in Ferguson, Staten Island, Cleveland . . .
One column about which I wrote was this Washington Post column by Ruth Marcus
In it she discusses the work and recent book of Bryan Stevenson, her law school classmate.
I am almost finished reading that back, which I highly recommend, and about which I will write in due time. If you do not want to wait, it's title is Just Mercy: A Story of Justice and Redemption
It has been in reading it in conjunction with my continued reading on recent events of police violence, non-indictments, communal reactions ("I Can't Breathe"), and backlashes, that I find in yet another area the teaching I must do about our government requires me to challenge the traditional understanding we give our students.
Let me explain.
Stevenson's book is largely a narrative about his most famous case, but combined with that are descriptions of other cases, explanation of the legal reality too many face in this country, and facts that when one reads should shock one's conscience.
Consider:
When Walter McMillian arrived on Alabama's death row - just ten years after the modern death penalty was reinstituted - an entire community of condemned men awaited him. Most of the hundred or so death row prisoners who had been sentenced to execution in Alabama since capital punishment was restored in 1975 were black, although to Walter's surprise nearly 40 percent of them were white. Everyone was poor, and everyone asked him why he was there. (p. 53)
Walter McMillian arrived on death row in 1987, Alabama's population was around 1/4 black, yet the percentage of condemned was more than twice that.
Poor people are, as was the case in Alabama, far more likely to be condemned to death.
I found Bureau of Justice statistics reporting that black men were eight times more likely to be killed by police than whites. By the end of the twentieth century the rate of police shootings would improve so that men of color were "only" four times more likely to be killed by law enforcement, but the problem would get worse as some states passed "Stand Your Ground" laws empowering armed citizens to use lethal force as well. (p.43(
In Alabama a judge can override a jury's sentence of life imprisonment and change it to a capital case, and visa versa.
Since 1976. judges in Alabama have overridden jury sentencing verdict in capital cases 111 times. In 91 percent of these cases, judges replaced life verdicts from the jurors with death sentences. (p. 70)
We have the problem of those we place in combat whose psychic wounds we do not address. One aspect of this has been the increasing suicides among both active duty and veterans. And then,
By the mid-1980s, nearly 20 percent of people in jails and prisons in the United States had served in the military. While the rate declined in the 1990s as the shadows cast by the Vietnam War began to recede, it has picked up again as a result of the military conflicts in Iraq and Afghanistan. (p. 75)
Then there is this, phrased in terms of another of his clients:
in 2014, Trina turned fifty-two. She has been in prison for thirty-eight years. She is one of nearly five hundred people in Pennsylvania who have been condemned to mandatory life imprisonment without parole f0r crimes they were accused of committing when they were between the ages of thirteen and seventeen. It is the largest population of child offenders condemned to die in prison in any single jurisdiction in the world. (p.151)
Remember that most of those will be people of color, whom too many are already inclined to see as less than fully human.
We claim that someone under 18 is not fully capable of acting for themselves. They cannot sign contracts, legally purchase cigarettes, alcohol or lottery tickets. And yet we have as a society been prepared to take such adolescents and for one action.
And then there is this, from p. 152:
By 2010, Flroida had sentenced more than a hundred children to life imprisonment without parole for non-homicide offenses, several of whom were thirteen years old at the time of the crime. All of youngest condemned children - thirteen or fourteen years of age - were black or Latino. Florida had the largest population in the world of children condemned to die in prison for non-homicides.
A person who has a mental illness may or may not be fully responsible for their actions, but they certainly need treatment, something for which poor people often have little access. Many folks who had medical insurance did not have coverage for psychological or psychiatric ailments, and those who did often ran into life-time caps. Remember that as you read these words from p. 188:
Today, over 50 percent of prison and jail inmates have a diagnosed mental illness, a rate nearly five times greater than that of the general adult population. Nearly one in five prison and jail inmates has a serious mental illness. In fact, there are more than three times the number of seriously mentally ill individuals in jail or prisons than in hospitals; in some states that number is ten times. And prison is a terrible place for someone with mental illness or a neurological disorder that prison guards are not trained to understand.
The other recent news about torture may be relevant to this. Remember how we have a tradition of using solitary confinement, and in some case locking prisoners in the hole. While so far the removal of human contact has not been declared cruel and unusual punishment under the Eighth Amendment, we have ample evidence that it exacerbates preexisting mental disorders, and may in fact provoke them among those who had not previously exhibited symptoms. Placing someone in total darkness (the hole) sometimes on a bare concrete floor with no mattress and no running water would violate the Geneva Conventions on how we are allowed to treat prisoners of war. That we will take our prisoners and treat them worse than we are allowed to treat enemy soldiers should be of concern, and some of the conditions if not outright torture are at least abusive. When we abuse those in our power and control and create conditions of helplessness, are not we removing from them whatever shred of human dignity and humanity they may have had? Is not that akin to torture?
Far too often, we have people who have been convicted and sentenced for crimes they did not do. They are pressured into confessions with threats of more severe sentences, even execution. Despite the noble intent of cases like Gideon, Escobedo, and Miranda, too many lack adequate counsel. Stevenson writes of a woman coerced into confessing killing a child she had never had, but she lacked adequate counsel. Threatened with death , she agreed to accept a sentence of twenty years.
We won her freedom afger establishing she had had a tubal ligation five years prior to her arrest, which made it biologically impossible to conceive, let alone give birth to, a child. p. 234
Most women who are incarcerated are mothers with minor children - 75-80%. The welfare reform of the Clinton Presidency means if the conviction was for drugs, those women are permanently barred from public benefits and welfare. As you read on p. 237,
These women and their children can no longer live in public housing, receive food stamps, or access basic services. In the last twenty years, we've created a new class of "untouchables" in American society, made up of our most vulnerable mothers and their children.
And then there is the case of Connick v Thompson. John Thompson had incorrectly been convicted and sentenced to death. A subsequent investigation found that the District Attorney in New Orleans, Harry Connick Sr., had illegally withheld exculpatory evidence from Thompson's defense team, which not only lead to his death sentence, but to 14 years of imprisonment before his conviction was overturned. The trial court awarded damages to Thompson of $14 million, but the five Conservative Justices overturned that - it is worth first reading the smarmy opinion of the Court by Clarence Thomas and the stinging dissent by Ruth Bader Ginsburg.
But at least in that case, had the award been allowed to stand, there was the intent to adquately compensate someone for wrongful imprisonment.
Consider one paragraph from pp. 244-45:
Most people rleased from prison after being proved innocent receive no money, no assistance, no counseling - nothing from the state that wrongfully imprisoned them. At the time of Walter's release, only ten states and the District of Columbia had laws authorizing compensation to people who have been wrongfully incarcerated. The number has since grown, but even today almost half of all states (twenty-two) offer no compensation to the wrongly imprisoned. Many of the states that do authorize some monetary aid severely limit the amount of compensation. No matter how manhy years an innocent person has been wrongly incarcerated, New Hampshire caps compensation at $20,000; Wisconsin has a $25,000 cap; Oklahoma and Illinois limit the total amount an innocent person can recover to under $200,000, even if a person has spent decades in prison. While other states have caps of more than a million dollars, and many have no cap at all, several states impose onerous eligibility requirements. In some jurisdictions, if the person lacks the support of the prosecuting attorney who wrongfully convicted him, compensation will be denied.
Read that last sentence again and realize this - you might need the support of the prosecutor who illegally withheld the evidence that would have prevented your incarceration in the first place.
When I read those words about compensation, I thought back to another shame of this nation, the incarceration of those of Japanese heritage during World War II, including those who were American citizens. There were two levels of compensation. The first was the Japanese American Evacuation Claims Act of July 2, 1948, which provided compensation to Japanese American citizens removed from the West Coast during World War II (WWII) for losses of real and personal property. Approximately 26,550 claims totaling $142,000 were filed. The program was administered by the Justice Department, which set a $100,000,000 limit on the total claims. Over $36,974,240 was awarded (information from this page at the National Archives). Then there was Civil Liberties Act of 1988, signed by Ronald Reagan, which compensated living survivors of the camps at the rate of $20,000 each, for a total of about $1.2 Billion. No compensation was giving to family members or descendants of those who had already passed away.
Remember the words from the Preamble with which I titled this: and secure the Blessings of Liberty
We have a history of denying and perverting justice.
We do not even properly compensate when we wrongly imprison or intern.
We do not hold accountable those who have perverted the administration of justice, whether by improper use of deadly force, deliberate sabotaging of indictment and conviction of law enforcement personnel for their wrong doing, withholding of evidence that would exculpate, suborning perjury, coercing confessions from innocent people in order to "clear" a case, ignoring the possibility of evidence of perpetrators other than the accused, inventing non-existent crimes, prejudice in the jury process and in the application of law enforcement and prosecution.
Justice is supposed to be blind, but only to person. The 14th Amendment has the explicit requirement of the equal protection of the law. Justice should not be blind when it is being perverted.
There can be no blessings of liberty if we allow the morass of too much of our criminal justice and legal system to continue as it is.
We have been told that justice delayed is justice denied.
What then is justice perverted?
Without true justice, how can liberty be secure?
Without the security of the Blessings of Liberty, to Ourselves and our Posterity, for too many are we not already a police state?
I have some thinking to do before i teach my three sections of Government on Monday.
We all have some thinking to about the state of justice and liberty in the United States.
It does not matter if we have not YET ourselves been DIRECTLY affected -
Here I think of the words of Hillel:
If I am not for myself who is for me? And being for my own self, what am 'I'? And if not now, when?
IF NOT NOW, WHEN?
Or is "American Exceptionalism" really about how hypocritical we as a society our about our stated principles, including that of establishing justice and securing the blessings of liberty to ourselves and our posterity?
I wonder . . .