MonthFebruary 2015

Jim Crow: Yesterday and Today

In two separate blog posts, on January 19th and February 17th, I discussed the issue of race and its cancerous affect on American Society. Most of us are aware of the laws, both written and unwritten, that arose after the end of the Civil War with the purpose of ensuring that the newly freed slaves remained the lowest class in our society. However, most likely very few of our citizens are aware that under the guise of The War On Drugs, a new Jim Crow arose out of the ashes of the old.

With the discussion on how to fix our broken Criminal Justice System growing daily, I want to strongly recommend an outstanding book, The New Jim Crow by Michelle Alexander. A highly acclaimed civil rights lawyer, advocate, and legal scholar, Ms. Alexander not only possesses top-flight credentials to write about racial issues, but also the ability to write, and in this dramatic exposé of the War On Drugs and the magnitude of the crisis faced by communities of color by mass incarceration she makes an invaluable contribution to recognizing the need for reform.

In a crisp clear style, Alexander first provides the reader with the historical background of racial discrimination. Then, with passion, she sets forth the painful reality of what has occurred since Brown versus the Board of Education outlawed segregation, and the Civil Rights Acts of 1964 and 1965 were enacted during the Civil Rights Movement of the 1960s. Yes, after 250 years of slavery, followed by 150 years of Jim Crow laws enacted and enforced to keep people of color in the lowest class of American Society, progress had been made. However, those elements of the White Power Structure that made Jim Crow possible in the first place did not give up. No, with great cunning they devised a strategy for a New Jim Crow.

Fully aware that a glaring weakness in communities of color is the fragility of the family structure, a product of slavery and the old Jim Crow, the opponents of social justice and equality devised a plan for magnifying that weakness, cleverly giving it a positive name: The War On Drugs. And then under the guise of protecting our society from drugs, the proponents of this so-called war turned loose the massive use of state power to incarcerate hundreds of thousands of young black males, which in turn increased unemployment and poverty within communities of color. Brilliantly and dramatically detailing how this plan was formulated and executed, Alexander’s book is a must read for anyone seeking a full understanding of the problems facing communities of color, problems which further fuel the rage following the recent events from Ferguson to New York City to Cleveland to Los Angeles and threaten the fabric of the Rule of Law which founds American Society.

Not All Lawyers Have Lost Their Inner Atticus Finch

During the past several weeks, the media has heavily publicized the upcoming release of a sequel to the novel, To Kill A Mockingbird, by Harper Lee, fifty-five years after it originally appeared, garnered a Pulitzer Prize, and became a classic work. Subsequently made into a film starring Gregory Peck, who portrayed the novel’s protagonist, a courageous lawyer battling for moral truth and racial justice while representing a black man falsely accused of raping a white woman during the height of the Jim Crow era, this character, Atticus Finch, came to symbolize the righteous attorney: idealistic, virtuous, and brave.

This stalwart image in the public’s mind, contrasts however with numerous recent studies that report widespread cynicism with the legal profession by Americans today, and combined with the steady drop in law school applications, has caused serious concern to rise amongst the legal community. In fact, in a February 9 article on Slate.com, Thane Rosenbaum, the director of the Forum on Law, Culture, & Society hosted by NYU Law School, worried that, “Apparently, upon graduation, most law students lose their inner Atticus Finch. The inspiration that once hailed personal honor and the public good as fundamental values of the bar disappears in a haze of student debt and the allure of financial reward.”

Professor Rosenbaum’s reference to “a haze of student debt” is certainly a sad reality for large numbers of law school graduates today, and well illustrated in a recently released novel, Supreme Ambitions, by David Lat, reviewed in detail in my blog post of February 1st. Student debt in general is a serious problem within our society, and likely a reason behind the drop in law school applications, especially with the greater difficulty experienced by graduates in finding jobs after the Great Recession of 2008.

As for how Americans view the legal profession, I suspect that the reported cynicism is a facet of a general malaise of cynicism affecting our country today, and it’s not hard to see why. Hyper partisanship between Democrats and Republicans has led to virtual gridlock in Congress and numerous state legislatures, with incessant power struggles insuring that little or no attention is being paid to solving the serious problems in our society. Reports of corruption in both the public and private sector surface regularly in the media, from major banks being criminally charged and fined to government officials being investigated, and convicted, for failing to comply with election fundraising rules, taking kickbacks, and abusing the power of their office, three recent examples being Governor Perry’s upcoming trial in Texas, Sheldon Silver being forced to step down as Speaker of New York’s House of Representatives, and Governor Kitzhaber of Oregon being forced to resign. And thanks to the U.S. Supreme Court’s decision in Citizens United, unlimited rivers of money from special interests are pouring in to dangerously pollute our political and electoral processes.

However, despite this troubling environment, it is hopeful to realize that thousands of young male and female law graduates from all sections of the country still see the public good as a fundamental value, and are staffing Legal Aid Organizations that serve the poor, Non-Profit Organizations such as Earth Justice that work to preserve the Earth’s ecology, and the Prosecutorial and Public Defender Offices within our Criminal Justice System.

Professor Rosenbaum is absolutely correct in his evaluation that the idealism, integrity, courage, and commitment to the public good symbolized by Atticus Finch is needed today more than ever. My novel, Gideon’s Children, which will be released on March 3rd, was written to contribute to the growing discussion of how to summon those virtuous traits to the cause of solving the problems facing our Criminal Justice System. Most hopefully that growing discussion will soon result in the desperately needed improvements to that system which is responsible for maintaining the Rule of Law, and further inspire law graduates, and those from various other fields, to never relinquish their inner Atticus Finch, and put it to work for the public good in which each and every one of us has a vital stake.

The Problem Of Race In American Society: Part II

King Memorial, Hopes and Dreams

On Martin Luther King Jr. Day, I wrote a blog post in which I referred to a New York Times OP-ED by Nicholas Kristof last August 27th in which he posed the portentous question: Is Everyone a Little Bit Racist? And in my subsequent discussion, I confessed that after honest examination I had to admit that I fit within the class of individuals revealed by recent research “who intellectually believe in equality, who deplore discrimination, yet who also harbor unconscious attitudes that result in discriminatory policies and behavior,” and suggested that if most of my fellow Americans were scrupulously honest with themselves, they would come to the same unhappy conclusion.

On February 12th, James Comey, the Director of the FBI, delivered an unusually candid speech at Georgetown University about the difficult relationship between the police and African-Americans in which he confirmed this unhappy conclusion. As reported by The New York Times, “He started by acknowledging that law enforcement had a troubled legacy when it came to race. ‘All of us in law enforcement must be honest enough to acknowledge that much of our history is not pretty,’ he said. ‘At many points in American history, law enforcement enforced the status quo, a status quo that was often brutally unfair to disfavored groups,’” a sad situation graphically depicted in my novel, Gideon’s Children, set in the tumultuous and transformative 1960s, and scheduled for release on March 3rd.

Further, Mr. Comey stated that “there was significant research showing that all people have unconscious racial biases. Most cannot help their instinctive reactions,” he said, but law enforcement officers need “to design systems to overcome that very human part of us all.” (italics added) The Times article then articulated how Comey proceeded to “lay out several measures that he said could ease the tension, including more interaction between the police and those they are charged to protect. ‘It’s hard to hate up close,’ he said. He then concluded by quoting Dr. King, who said, ‘We must learn to live together as brothers or we will perish together as fools.’ And Comey concluded his remarks with: ‘We all have work to do—hard word to do, challenging work—and it will take time. We all need to listen, not just about easy things, but about hard things, too. Relationships are hard. Relationships require work. So let’s begin. It is time to start seeing one another for who and what we really are.’”

Unlike Mayor Bill de Blasio of New York and Attorney General Holder, who were roundly faulted by  police groups for their critical remarks about law enforcement, I am highly pleased to report that Mr. Comey’s thoughtful and nuanced remarks were praised by a number of high-ranking officials from various police organizations.

I, too, want to commend Mr. Comey for his honesty and courage in urging all of us, police and citizenry, to face the human part of ourselves and work to overcome our biases so that we can learn to live as brothers.

Supreme Ambitions: A Novel Look Inside The World Of Appellate Courts

On Martin Luther King Jr.’s birthday, I deviated from my examination of the Criminal Justice System to pay tribute to the great Civil Rights leader in a timely fashion. Intending to return to this subject in my next blog-post, and explore the subject of prosecutors, I have decided that a further deviation is necessary due to the recent release of an important book, Supreme Ambitions, a novel by David Lat, the creator of the well-respected and heavily visited website, Above The Law.

I identify this novel as important, because while most Americans have some knowledge of criminal trials from books, movies, and television, very few have any idea of how the appeals process works, and little insight into the role of appellate judges, their clerks, and the lawyers who constitute the working blocks of this facet of our Judicial System. And by illustrating this more esoteric arena via a novel that entertains while it educates, Lat makes a highly valuable contribution to our understanding of this critical component of the Judicial System, and I highly recommend it as a must read.

Supreme Ambitions’ angle of entry inside this world is to provide the reader with a fascinating glimpse into the day-to-day lives and motivations of the young, super-competitive law clerks who win highly coveted positions with federal appeals judges, by focusing, in a fast-paced and contemporary style, on one young Harvard undergrad/Yale Law School grad as she comes to terms with the “little monstrous,” “tough, strident, and manipulative” behavior required to be successful.

From the beginning, it is clear that most of these clerks (who play a vital role in providing appellate judges with mountains of research and recommendations on important legal issues) are there as a stepping-stone to a U.S. Supreme Court clerkship, which in turn is a ticket to a $300,000 signing bonus (goodbye student loans!) at a prestigious New York law firm. Artfully, Lat provides the reader with an insight into the long hours, the minutiae, and the complete lack of credit that are part and parcel of the clerks’ job, and allows the reader to repeatedly face the ethical questions that haunt the novel’s young protagonist Audrey.

In the end, while being entertained, the reader is presented with a clear view of the personal and career consequences both of going along to get along, as well as the contentious issue of (relative) whistle-blowing, and comes away perhaps more cynical about the human workings of the Judicial System, but with at least a trace of idealism extant.

Congratulations to David Lat for authoring such a valuable and must-read book!