The other diaries in this series are:
Rebuilding after the Fall of the Bushevist State 1 - Laws
Rebuilding after the Fall of the Bushevist State 2 - Separation of Powers
Rebuilding after the Fall of the Bushevist State 3 - Civil Service
Rebuilding after the Fall of the Bushevist State 4 - Cabinet Departments
Rebuilding after the Fall of the Bushevist State 5 - Freedom USA
Equal justice under law
Justice is the impartial resolution of conflicting claims and application of rewards and punishments. It determines rights in natural or statute law. Elements of justice are human rights, rights to information and privacy, civil rights, dispute resolution, investigation, prosecution, enforcement of penalties and awards.
In the US, justice also means finally resolving claims under treaties with Native American tribes.
Justice is also about processes--prosecution, litigation, arbitration, and mediation--that seek to resolve claims and disputes. The integrity of the process of resolving claims and disputes is critical to the ensuring of justice.
Human rights
There is a standard for human rights in the world. It is the UN Declaration on Human Rights. If America stands for justice, these are the human rights that are relevant.
Here is the text:
Article 1.
All human beings are born free and equal in dignity and rights.They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
Article 2.
Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.
Article 3.
Everyone has the right to life, liberty and security of person.
Article 4.
No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.
Article 5.
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
Article 6.
Everyone has the right to recognition everywhere as a person before the law.
Article 7.
All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.
Article 8.
Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.
Article 9.
No one shall be subjected to arbitrary arrest, detention or exile.
Article 10.
Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.
Article 11.
(1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.
(2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.
Article 12.
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
Article 13.
(1) Everyone has the right to freedom of movement and residence within the borders of each state.
(2) Everyone has the right to leave any country, including his own, and to return to his country.
Article 14.
(1) Everyone has the right to seek and to enjoy in other countries asylum from persecution.
(2) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.
Article 15.
(1) Everyone has the right to a nationality.
(2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.
Article 16.
(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
(2) Marriage shall be entered into only with the free and full consent of the intending spouses.
(3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
Article 17.
(1) Everyone has the right to own property alone as well as in association with others.
(2) No one shall be arbitrarily deprived of his property.
Article 18.
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
Article 19.
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Article 20.
(1) Everyone has the right to freedom of peaceful assembly and association.
(2) No one may be compelled to belong to an association.
Article 21.
(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
(2) Everyone has the right of equal access to public service in his country.
(3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.
Article 22.
Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.
Article 23.
(1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
(2) Everyone, without any discrimination, has the right to equal pay for equal work.
(3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
(4) Everyone has the right to form and to join trade unions for the protection of his interests.
Article 24.
Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.
Article 25.
(1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
(2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.
Article 26.
(1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.
(2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.
(3) Parents have a prior right to choose the kind of education that shall be given to their children.
Article 27.
(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
(2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
Article 28.
Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.
Article 29.
(1) Everyone has duties to the community in which alone the free and full development of his personality is possible.
(2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
(3) These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.
Article 30.
Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.
Information and privacy
In a democracy, individuals should be obtaining more information from the government about what the government is doing and have to deal less with a government that is obtaining information about the individual to determine what the individual is doing. There needs to be some function of government independent of political pressure that can guarantee an individual's right to obtain information about the government and to protect the individual from intrusion by the government or by government-privileged private entities. Among those government-privileged private entities are corporations, currently treated under law as persons. A lot of the abuses of the Freedom of Information Act for industrial espionage could end just by denying that "freedom" to corporations.
Civil rights
Civil rights are those rights specifically guaranteed in law as belonging to the status of citizens as a matter of the equal protection of the law. There needs to be an executive function that advocates and investigates matters of people seeking justice for violations of their civil rights.
Equal opportunity
Citizens have the right to expect removal of prejudiced discrimination in opportunities because of race, religion, nationality, ethnicity, gender, or sexual orientation. The areas of protection include public accommodations, housing, education, healthcare, employment, contracts, marriage, sports, job training, and government employment, among others.
Legislative access
Citizens have the right to equal access to their elected officials, unaffected by money, political affiliation, personal networks, fraternal affiliation, among others. Elected officials represent them and are doing their will. Citizens have the right to be accurately heard, receive notice of their information, receive a direct unambiguous candid response, receive some disposition of their questions, and receive the courtesy of being taken seriously.
Election review
Citizens have the right to vote and to have their vote count accurately. They have the right to expect all other citizens will have their votes counted accurately. They have the right to an unambiguous resolution of elections based on properly executed recounts. They have the right to expect that lists of registered voters will not be manipulated to alter the outcome of an election.
Collective bargaining
Citizens have the right to bargain collectively as employees, customers, or investors. They have the right to expect that the government processes for protecting their right to bargain collectively are equally applied.
Crime victim rights
Citizens who are victims of a crime have the right to expect that their government will not treat them as the criminal. They have the right to protection from intimidation from government employees or others. They have the right to assistance in stating the facts in the situation and to have honest pursuit of forensic evidence.
Employee rights
Citizens have all of their civil rights and human rights protected when they contract as employees of corporations or other individuals.
Domestic partners rights
Citizens have the right to select their domestic partners, to define the relationship with their domestic partner, and to have the legal benefits of marriage apply to spousal forms of domestic partnership.
Dispute resolution
Justice that must be purchased at the high price of litigation is not equal justice. The ability to resolve disputes outside of court and still obtain justice ensures more speedy justice for all in the courts.
Community relations
Groups within communities come into conflict. Local institutions have been established to deal with these conflicts on a community basis. There is a need for national research, training, demonstration, and interchange of what works in this area.
Community dispute resolution
Often communities find that conflicts can be handled only with the presence of an outsider. Training and providing such resources is a much needed function.
Collective bargaining dispute resolution
Collective bargaining disputes can best be seen as disputes between individuals and corporations. Traditionally applied to employee-management relations, they can also apply to consumer disputes and small investor disputes.
Mediation
Mediation is a more formal procedure that tries to work out agreements in situations of conflict. It is a traditional role of the federal government in labor union-corporations negotiations. It might also provide corporations an alternative to clogging the court system.
Voluntary aribitration
Voluntary arbitration is when an arbitrator makes a decision that the parties can voluntarily implement.
Binding arbitration
Binding arbitration is arbitration in which the parties either agree in advance or are compelled by law or regulation to be bound to the decision of the arbitrator. Many corporations are trying to require individuals to pursue binding arbitration instead of courts as a precondition of doing business; of course, the arbitrators that the corporations want to use are paid by them.
Prosecution
Prosecutors pursue a criminal case to final judgment of the court.
Trial prosecutors (US Attorneys)
US Attorneys located in major cities are the trial prosecutors of federal criminal cases.
Corporate crimes
Assembling the arguments for a criminal case against a corporation is a complicated process and requires a specialized team.
Organized crime
What can I say? Elliot Ness?
Nationally organized youth gangs
Local communities are finding that pursuing the criminal prosecution of nationally organized youth gangs in isolation is not an effective strategy. There needs to be interchange of information about these gangs.
Individual crimes
When good citizens go bad. Traditional federal prosecutions.
Government entity crimes
Watergate, Abu Graib, stolen elections, and on and on. These prosecutors have to be trained in independence and loyalty to the constitution. Otherwise we get a whitewash or a Kenneth Starr.
Government official crimes
The individual malfeasance aspect of Watergate, Abu Graib, stolen elections, and on and on. These prosecutors have to be trained in independence and loyalty to the constitution. Otherwise we get a whitewash or a Kenneth Starr.
Tax fraud
The folks who should have prosecuted Enron before it had a chance to fail.
Investigation
Here is where we have to have some careful thought. Rolling back the PATRIOT ACT must be accompanied with some honest approaches to how government investigations should work. We are still dealing too much with the J. Edgar Hoover culture.
Criminal investigation (FBI)
What is the balance between information and constitutionally guaranteed privacy?
Forensics laboratory
The best, the most accurate, the best turnaround for expensive lab techniques that need sharing by the states, counties, and municipalities.
Tip line (also called Crimestoppers)
A source of leads.
Intergovernmental information sharing
Among states, counties, municipalities, and other federal law enforcement agencies.
International information sharing
INTERPOL and bilateral information sharing agreements
Politically independent special investigations
Who investigates Congressment or the President or judges for violations of the law. Another area that requires extreme independence and commitment to finding the facts.
Treaty enforcement and tribal justice
Under current law, the Bureau of Indian Affairs operates a law enforcement operation in parallel with the tribal police forces.
Penalties, restoration, and rehabilitation
This is an area that is so messed up that it will require a lot of good thinking to discover what really works.
Prisons
America's growth industry. The gift that keeps on giving.
Asset forfeiture
Once a penalty is paid in an asset, how does the government conduct the sale of the asset to obtain the cash.
Convict trustees
An often overlooked reality of America's prisons. What sorts of programs work?
Victim restitution
How does this work in a way to preserve privacy?
Pardon
Do we really need a full-time commission to talk about this? Why or why not?
Parole
One of the most difficult and underappreciated jobs in government. How can it work?
Restoration to communities
Criminals return to communities after serving their time. What happens when they return often determines whether they change or get involved in crime again.
Research, training, and demonstration
There are research, training, and demonstration project institutes of various forms scattered around the government. Some are in the area of justice. What should their charters be?
Corrections Institute
Primarily training for corrections officials and employees.
Dispute Resolution, Mediation, and Arbitration Institute
A new initiative. What does it do? How does it work?
Rehabilitative Justice Institute
How do we reduce the number of criminals who get involved in crime again? There are no simple answers.
Action Items:
- Notice where the holes are in this outline. What should we consider?
- Is the UN Declaration of Human Rights something that we should incorporate informally into our understanding of human rights in the US? What are the benefits? Are there any downsides?
- What are the practical things that must be done to guarantee human rights and civil rights?
- How do drug laws fit into the notion of justice?
- What are just penalties for crime and what constitutes justice?
- If you were to overhaul our corrections system, what would you do?
