Deprivation of rights under color of law is a well-recognized, if not frequently prosecuted crime. Indeed, the Federal Bureau of Investigation has a comprehensive explanation and some interesting statistical data, including a list of the most common categories in which these crimes occur:
• excessive force;
• sexual assaults;
• false arrest and fabrication of evidence;
• deprivation of property; and
• failure to keep from harm.
However, that's not the topic I want to address today. I want to focus on what I call "deprivation of rights under cover of law." But, first it seems important to consider what "deprivation" means.
Obviously, "deprivation" refers to what a person who's deprived of something (right or property) experiences. Similar formulations are found, for example, in "starved" and "starvation" and "strangle" and "strangulation"--each sharing the common characteristic that there's an implied victim, while the perpetrator is unidentified. Although "strangler" is a word in common usage, the general impression left by this verbal formulation is that whatever happens, happens sort of out of the blue. Nobody is connected to these horrible acts.
When was the last time you used the word "depriver" or heard it used in common speech? Indeed, the dictionary that comes with software program in use on KOS, doesn't recognize depriver as a word. But then, it doesn't recognize KOS either.
Regardless, if you were to look for "deprivate," akin to "formulate" for "formulation"--i.e. the action word--you wouldn't find that either. Perhaps that's because it's a sensitive area; one that most of us don't want to think about. What does it mean to "de-private," except to take away our most intimate and integral essence--our privacy?
Exactly, our right to privacy is stripped whenever a deprivation of rights occurs. But, because it's not enumerated, some would no doubt argue, the right to privacy doesn't exist--at least not so anyone would give it much notice. The right to be left alone doesn't have much currency.
I should point out that there is pretty much universal agreement that it is good and proper for an individual who's deprived another of either property or life deserves to be punished with similar deprivation in turn. And, in a sense, deprivation under color of law is a more serious crime because it violates the very purpose the law is to serve--i.e. to secure life, liberty and the pursuit of happiness.
But what about when the use of the law as a cover for deprivation is institutionalized? What should our response be then?
Let me provide a few examples to demonstrate the basis for the question.
A) Charging higher interest rates for the use of currency (our money) by poor people than by the rich is perfectly legal. Is that a deprivation of the right to equal service under cover of law?
B) Military recruits volunteer for service. However, when, as a result of poor planning and management, more bodies are needed, their voluntary service can be legally transformed into involuntary servitude. Is that a deprivation of the right to liberty under cover of law?
C) The United Nations, an international organization which nations voluntarily join, has been persuaded to deprive some nations of the right to engage in trade and exchange as punishment for deciding that the benefits of the association don't compensate for the restrictions to which they unknowingly agreed. In the case of Iraq, a recalcitrant response to deprivators' sanctions was used to justify an invasion--i.e. a total violation of the right to privacy. Was the invasion of Iraq not an example of deprivation under cover of law? Attorney General Goldsmith even issued an opinion declaring it lawful.
D) The scrubbing of the names of convicted felons, or names with similar spellings, from the lists of Florida voters in 1999 was entirely legal because the scrubbers were just doing what they were told and, while "ignorance of the law is no excuse," sloppiness often is. Only when there's an effort to double-down and cover up for the cover does it become a crime.
E) Prosecutors, it has been argued most recently in the Supreme Court in Pottawattamie v. McGhee, enjoy absolute immunity on the job, because it's presumed that there's no opportunity for personal benefit or gratification--i.e. no crime of deprivation under color of law. Moreover, so the argument by the Justice Department attorney went, individuals, who were convicted on the basis of the prosecutor's fraud, weren't deprived of their liberty until they were sentenced to prison and that deprivation was carried out by a judge who'd followed the law. Besides, the integrity of the judicial process is more important than any person who's been deprived of liberty.
Justice Sotomayor, she of the suspect subjective perspectives, didn't buy that cover story. So, the case was settled before the SCOTUS could rule and perhaps overturn the tradition of the prosecutorial immunity to deprivate with impunity.
F) Just because it has such a long tradition, the use of the civil law to deprive unsuspecting individuals of their real assets should be mentioned. Although some light was recently thrown on the practice of filing claims and liens that are based on fraud, as a result of some judges refusing to foreclose on mortgages because the claimant mortgagors did not, in fact, have possession of the promissory notes, both minority populations and farmers in developmentally advantageous areas have long been the targets of deprivators who, often with a little help from local record keepers or even the mailman, managed to acquire both land and buildings sold at auction for taxes, neither owed or forgot. All that's required is for a little paperwork to be misplaced. That the electronic mortgage transfer system can now be blamed for the tables being turned is a bitter-sweet irony. It does nothing for the millions who've been deprived of their life savings quite legally.
You see, the transfer of public resources and assets into the pockets of the upper one percent wasn't a happenstance. And it's not an artifact of nature, although an artifact of man, the artificial person, aka corporation, helped. The accumulation of wealth is not a sign of virtue, though it's all probably quite legal. Indeed, deprivation under cover of law in North America goes right back to the sovereigns of England, France and Spain authorizing trading companies and issuing land grants to restless courtiers and explorers. One can argue that the natives "sold" the land for a handful of trinkets and that they should not have signed treaties relinquishing all their rights, if they couldn't read the language in which they were written. But, the fact remains that legal documents were the instruments of their deprivation and the deprivators came off as heroes.
Perhaps the tide is turning. At least the Iraqis managed to see through the effort, under the guise of the rule of law and a new Constitution, to deprive them of their natural resources (land, water, oil, minerals) in addition to the cultural assets that had already been destroyed. And, yes, we will probably be able to look back and appreciate that it was the alien detainees, Hamdan and Boumediene, who got us back on track to recognize that the rights of the natural person trump the artificial person, whether it be private or public corporation, commercial enterprise or state.
So, there is hope.