Spencer for President – Position Paper Number 10

10. Assure equal justice for all citizens

This may seem to be a non-starter for the majority of Americans, but there is a very large contingent of U.S. citizens who have experienced unequal treatment before the law. The extent of the problem can be partially gauged by the fact that the incarceration rate in the U.S.A. is much higher than in all other modern, industrialized nations. In a large number of cases, this treatment cannot be called justice at all. It is a simple matter to point up such extreme examples as men convicted of rape or murder who have been exonerated by DNA evidence after spending years in prison.

It is a lesser mistreatment, but not just nor fair, to be “profiled”, then hassled, by the police due to your appearance. Under the heading of Not a Lesser Mistreatment – in the Portland, OR area this has resulted in what should be called murder by police officers in more than one case. Basically, profiling led to unwarranted confrontation, which led to unjustified police violence. I doubt that the Portland situation is unique.

The entire justice system can be said to engage in some form of profiling. And it can be said to advance a political purpose in many cases. I personally knew a leader in the Civil Rights movement in Texas, who was sent to prison for 30 years (served 4 before the conviction was overturned) for the equivalent of one marijuana joint in 1968. One third of male African-Americans in Mississippi are ineligible to vote due to felony convictions. Do you really believe that this situation is honest or legitimate? I do not.

Related to the problem of “profiling”, but more fundamental, is the matter of “habeas corpus”: criminal behavior can only be determined after the fact. The essence of “habeas corpus” is that the police have to have a dead body to demonstrate that murder has occurred. (The concept, of course, applies to every part of the justice system. If you do not have proof of ownership of a car being driven by a stranger, you do not have a car robbery.) It may be unfortunate in most cases that only the event proves a crime, but it is the only viable approach in a relatively free society. Without such a stricture, the power of the law-enforcement segment of government is exalted over the protection of the individual in that arrest and conviction can be based on essentially nothing. The concept of “habeas corpus” – which is much older than the relevant section in our U.S. Constitution – is included to prevent such police/state power.

Our Constitution only allows suspension of “habeas corpus” in the cases of rebellion or invasion. There is no proviso for pre-emptive war, or whatever the Bushites are calling it now. The wording is quite specific. Now, we might call the current administration an ‘invasion’ of the government by neo-cons, but the implication would be that we need to grab weapons and repel them. As far as ‘rebellion’, the whole idea of this campaign is to seek change by the standard election process, as defined by the Constitution. So it is more than a stretch to suspend “habeas corpus”, as we “petition for a redress of grievances”.

Within the “Patriot” Act and within the FISA (Foreign Intelligence Surveillance Act) provisions and within the Military Commissions Act are the spearheads of a new attack on our democracy. The “unitary executive” (strongman) theory is being used to authorize, implement, and condone secret search and seizure. The “illegal combatant” theory dismisses “habeas corpus” for those who are so defined by administration deputies (with no appeal mechanism). (“Due process” also takes a severe beating under this theory.) “Profiling” – plus a higher threshold for police misbehavior – make arrest, confrontation, and violence more prevalent.

One of the most appealing characteristics of our image in the world used to be that we seemed to adhere to our Constitution’s definitions of suitable legal methods. Another part was that we helped to create, and officially tried to live by, the Geneva Conventions regarding treatment of prisoners of war. Of course, lynchings of Native Americans and Black Americans, plus the Vietnamese prisoners of war that were purposefully dropped out of airplanes and helicopters, might tend to belie that view; but such incidents could almost be overlooked in the total history of violence throughout the world over the last three hundred years. They could be overlooked – unless you were the victim, or a member of the victim’s family, or a friend of the victim, or a sympathetic observer.

Call it “bleeding heart” whatever, if you like. If you – as I do – empathize with victims, you cannot ignore their plight. But sackcloth and ashes and wailing and gnashing of teeth are not useful. In a U.S.A. that lives up to its ideals, the mechanisms are known and prescribed. All we have to do is follow the pertinent provisions of our Constitution, including the amendments. It’s all there: habeas corpus, due process, protection against illegal search and seizure, equal treatment before the law, protected actions, strictures against cruel and unusual punishment.

Our justice is not simply “an eye for an eye”. It is a system that includes laws, constitutional guarantees, judicial precedents, courts, juries, judges, lawyers, and legal scholars. Our traditions include the idea that a statement is almost always protected by the First Amendment to our Constitution – short of the cliché about yelling “Fire!” in a crowded theatre. A thought is protected by the Fifth Amendment – you or I do not have to provide testimony that might incriminate ourselves. Only in a state where the government is more important than the people – where the people have fewer rights and protections than the political institutions – only in such a state do people “allow” intrusions into their speech and thoughts. Only in such a state do the people allow inroads on the protections afforded by habeas corpus and by due process.

If we had a Civil Rights Division of the federal Department of Justice that was allowed to live up to its charter, “profiling” would be a quaint, albeit problematic, memory by now. Why? Because “profiling” is objectively in opposition to our general concept of fairness and to the spirit, if not the text, of civil rights laws. In other words the federal government would bring pressure to bear on domestic police agencies to drop this practice.

Increasingly, fellow citizens, in the name of security we are experiencing a decrease in what we would traditionally call “justice”, be it equal or not. The good news is that the 111th Congress, plus a progressive, democratically-biased administration, will be inclined to review, revise, and rescind the anti-democratic provisions of laws that have been enacted by the current administration and their lackey Congresses. The further step – to enhance justice – will depend on an administration that appoints conscientious people to the leadership and senior positions of the Department of Justice.

Paul Spencer

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