MonthMay 2015

The Rule Of Law: Fair Or Foul

Two of the hottest topics receiving media coverage today are Income Inequality and The Rule of Law, the latter founding both the civil and criminal aspects of the American Judicial System. Recently, I read a concise yet well-documented treatment of these interrelated subjects, The Golden Rule: How Income Inequality Will Ruin America, by Renwei Chung, the brilliant young columnist for the highly regarded website Above The Law. In this post, I want to focus on Rule of Law as it applies to our Criminal Justice System, leaving the civil aspect for a separate post.

In his book, Renwei cites the World Justice Project’s four basic principles for a working definition of The Rule of Law, which are as follows:

  1. A system of self-government in which all persons, including the government, are accountable under the law;
  2. A system based on fair, publicized, broadly understood and stable laws;
  3. A fair, robust, and accessible legal process in which rights and responsibilities based in law are evenly enforced; and
  4. Diverse, competent, and independent lawyers and judges.

Now while all four principles are important, I want to focus in this discussion on numbers one and three, accountability and even enforcement. For above all, these two factors are crucial in building the essential element of trust which underpins the Rule of Law. Our society is based on law and the attendant order it brings. And the great majority of citizens follow the Rule, because they trust that its workings will result in a just society.

Let’s take a look at accountability. The principle dictates that all persons, including the government, must be accountable under the law. In the past few months, numerous incidents have occurred involving the deaths of unarmed individuals at the hands of various police agencies. Most police departments prefer to handle such incidents by having their Internal Affairs Departments investigate the officer’s conduct, or have a Grand Jury do likewise. Both of these methods do not offer the transparency necessary to produce accountability. The Internal Affairs Departments conduct their investigations in secrecy, without the public being privy to the testimony of witnesses, or other forms of evidence. And Grand Jury proceedings are likewise conducted in secrecy, with same being led by a prosecutor, who works with the police on an on-going basis, and without any other attorney or attorneys present to cross-examine witnesses or challenge the validity of the other forms of evidence presented.

All too frequently, the finding is that the officer or officers involved in a given incident acted properly. But the lack of transparency leads the general public, which is presented only with the investigation’s conclusion, and which might be perfectly proper, to sense a failure of accountability, and hence the Rule of Law. In the recent Baltimore incident, the District Attorney charged the officers involved in a method that will result in a trial that is open to the public and the media, thereby providing a forum where the officers start with a presumption of innocence, evidence can be provided by all parties concerned, and a judgment can be arrived at that honors transparency and accountability.

I am not suggesting that every incident of this type requires a full-blown trial. However, where the conduct of those individuals charged with the responsibility of enforcing our laws is called into question, I am suggesting that the investigation of that conduct must follow a process that is totally transparent in order to ensure that the principle of accountability is being followed, and faith in the Rule of Law is justified.

Of equal importance in maintaining trust in the Rule governing our society is the even enforcement of the laws we are all commanded to obey. And in this area, recent events give cause for serious concern.

As depicted in my novel, Gideon’s Children, our prisons are overcrowded with individuals who have been convicted of crimes involving drugs, the overwhelming majority for being in possession of relatively minor amounts of a proscribed substance. They broke the law, and they must pay the penalty, argue the adherents of the War on Drugs.

However, a totally different picture is painted if one enters the rarified atmosphere of white-collar crime, particularly if large corporations or elite Wall Street investment banks are involved.

Last week, five of the world’s biggest banks plead guilty to an array of felony criminal anti-trust and fraud violations for rigging the price of foreign currencies. All five paid enormous fines of billions of dollars, but no one is being sent to prison. This, of course, follows the pattern born in 2008, when the largest Wall Street investment banks packaged sub-prime mortgages into investment securities that virtually no one understood, and then added credit-swaps to engineer a economic crash that without intervention by the Federal government would have produced a depression that would’ve made the Great Depression look like a Sunday-school picnic, with no major person going to jail.

In 2014, an internal investigation of General Motors by General Motors condemned a decade-long failure to fix a deadly safety defect with respect to a faulty ignition switch installed in hundreds of thousands of its cars, and which resulted in a huge number of accidents and at least 13 deaths. Fifteen employees, including one vice president and a senior lawyer responsible for product liability cases, were dismissed.

Dismissed? Okay, that’s an obvious first step. But why was not one single person held criminally responsible for his or her totally reprehensible conduct? The report indicates that complaints had come in steadily over a ten-year period, including reports of deaths, and that despite internal discussion of same with engineers and amongst senior executives, nothing was done to correct the matter, nor did anyone blow the whistle. When negligence reaches a level of grossness such as occurred here over a ten-year period, with deaths occurring, criminal charges are clearly called for. Yet not a single person was charged.

Undoubtedly, this seriously sad fact was factored into the game plan of Takata, one of the largest suppliers of airbags in automobiles, in denying for more than a decade that its airbags were defective even as motorists were killed and maimed by exploding airbags. Apparently it’s more financially beneficial via a cost-benefit analysis to settle the relatively few lawsuits that occurred over a ten-year period than to initially admit the problem and issue a major recall. Finally, on May 20th, Takata admitted that its airbags were defective and agreed to double the number of vehicles recalled in the U.S. to nearly 34 million. Fines? Oh, yeah, they are sure to accrue. But how about something stiffer, like prison time for those who tried to cover this up and hope that the problem would go away? How about letting executives at major corporations know that if similar incidents occur, there will be major consequences, that you can’t just pay large fines, then compute them into the cost of doing business?

Moreover, this disparity has a cancerous effect on the trust element underlying the Rule of Law. If some of our fellow Americans can draw prison sentences for being in possession of heroin or cocaine, but executives who conspire to rig currency prices, or consciously decide to ignore product defects that kill or maim their trusting customers, only have their corporations pay a fine, what does that do to faith in the Rule of Law? What lesson is our Criminal Justice System teaching us, and our children? And what other areas of our society are likely  to be infected?

All of us need to let our governmental representatives know that we condemn this unequal enforcement of our criminal laws, and that executives who conduct themselves like those at GM and the banks and investment banks referred to herein above need to be punished in accord with the crimes they commit.

The Force Behind Gideon’s Children

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Recently I have received emails referring to my novel, Gideon’s Children, inquiring as to why I wrote it, and why I believe it is so very relevant to today’s happenings in our Criminal Justice System. The best answer to those questions, as well as several others that naturally flow from them, were set forth in a telephone interview I participated in with Renwei Chung, the brilliant young columnist for the highly popular and well regarded website, Above The Law.

Renwei and I connected through exchanges on Twitter, and after he read G.C., we agreed to a chat, which afterward was reduced to written form to insure accuracy. That format is what appears below, and most hopefully provides in-depth answers to the subject queries.

  1. What motivated you to write the book?

The current decade, 2010 to 2020, is the 50th anniversary of the 1960s and the Civil Rights Movement’s struggle for freedom and social justice. I wanted to highlight the role of the newly created Public Defenders Offices in fighting to protect individual constitutional rights in pursuit of justice, in particular for persons who are poor and of color, as part of that revolution, and because those very rights are under attack today due to the War on Terrorism which has spawned The Patriot Act, The No-Fly Rule, and virtually unrestricted spying on Americans by the FBI, CIA, and NSA.

  1. Tell me about your career, what motivated you to become a public defender?

Gideon v. Wainwright, which expanded the right to counsel when charged with a crime to persons unable to pay for same, was handed down by the U.S. Supreme Court in 1963, my first year in law school. And as I watched the Civil Rights Movement expand during 1964 and 1965, I realized that while the opportunity to participate in Freedom Rides and marches like Selma had passed, I could still join the struggle by becoming a Public Defender and fighting for justice in the courtroom through protecting individual constitutional rights and insuring that poor people and people of color were treated equally and fairly.

  1. How has the profession changed since you started?

When I began as a Public Defender in 1968, the U.S. Supreme Court under the leadership of Chief Justice Warren was focused on expanding the meaning and enforcement of constitutional rights, in particular, the 4th, 5th, and 6th Amendments. Today, the Court has a conservative bent under Chief Justice Roberts, and has grown more restrictive in interpreting those Amendments, making defense counsel’s job more difficult.

  1. What would you do differently if you could go back to any point in your career?

My years as a Public Defender during the late 1960s and early 1970s were the most rewarding years of my 30-year legal career, so I wouldn’t do anything differently with respect to that period. Looking back at the years spent in private practice afterward, the one change that I would make is to have become much more involved in my local bar association, as well as the state bar association, so as to advocate that both groups work harder in designing and executing programs that foster social justice in the private sector, and use their influence to lobby local and state governments to prioritize programs to alleviate poverty and inequality.

  1. What advice do you have for aspiring public-service attorneys?

If you are going to be a Public Defender, nourish your passion for justice, and remind yourself daily that the work you are doing is both noble and valuable. Representing a fellow human being who is charged with a crime, is lonely in the sense that you stand against the awesome power and resources of the State, and because the hostility focused against crime and your client spills over onto you, you will not be popular with the police authority, the prosecutor, court personnel, and often your own client. Therefore, it is essential that you maintain a strong sense of how noble and valuable your contribution is to our system of criminal justice is, so that you can fully appreciate the difficulty and the rewards of your work.

  1. What is the greatest injustice or discriminatory policy you believe we are fighting today? What are the biggest injustices we have overcome?

American society has a long history with the problem of race. It began with the importation of slavery at the time of Jamestown and the Pilgrims, and was further augmented with the extermination and subjugation of Native Americans. After 250 years of slavery and 150 more of Jim Crow, even though we achieved some progress during the Civil Rights Movement with the Civil Rights Act of 1964 and the Voting Rights Act of 1965, this problem of race, of color, still bedevils our society, economically, politically, and in our Criminal Justice System. A few months ago, Nicholas Kristof in an Op-Ed raised and explored the question of: Isn’t Everyone a Little Bit Prejudiced? Inspired by his discussion, I explored the question in a Blog-Post on my author’s website on January 19th, and just yesterday in a speech, James B. Comey, director of the FBI stated: “Maybe it’s a fact we should also face: Everyone makes judgments based on race.”

We are all human beings: average citizens, political leaders, police officers, teachers, CEOs of international corporations, and so on. And as human beings, consciously or unconsciously, we all make judgments based on race, as well as many other factors such as good looks, gender, status symbols etc., but racial differences are at the top of the list for factors clouding our judgment. There is no easy solution to this problem, but what is necessary is for us to admit that this problem does exist, and for each of us to summon Lincoln’s better angels of our nature and remind ourselves daily to do better, to try harder to treat others as we ourselves would like to be treated.

  1. What made you successful in your career?

Two Ps: Passion and Perseverance. I believed wholeheartedly in protecting my clients’ constitutional rights and in doing everything I could to insure that they received fair and just treatment at all stages of the Criminal Justice System. And in pursuing justice for my clients, I prepared as assiduously as time permitted, spent much of my off-time reading and studying case and canon law, and in the courtroom followed a firm resolution to never, ever, give up, no matter how dark the outcome appeared.

  1. If you started today, what causes would you fight for?

As recent events from Ferguson to Cleveland to Los Angeles illustrate, the struggle for freedom and social justice that was highlighted during the tumultuous and transformative 1960s is still very much with us today, fueled by the historical legacy of racial bias. So if I started as a Public Defender today, I would still fight to protect my clients constitutional rights and make every effort to ensure that they received fair and just treatment at all stages of the Criminal Justice System.

In addition, as a member of the state bar association, I would work to move that association to exert its power to educate the public to the terrible danger to our democracy presented by the abrogation of our constitutional rights presented by The Patriot Act, the No-Fly Rule, and the virtually unrestricted spying on Americans by the FBI, the CIA, and the NSA,

  1. What is currently keeping you busy?

As part and parcel of publicizing Gideon’s Children., I am blogging on my author’s website (www.howardgfranklin.com) on the Criminal Justice System, its component parts, the problems it faces, along with possible solutions, in an effort to contribute to the growing conversation in this area.

10.  What specifically can lawyers do to change the system? What can ordinary citizens do?

Lawyers can work through their state bar associations to advocate that the associations use their power and influence to press mayors, governors, and state legislatures to place improving the Criminal Justice System at the top of their list of priorities and provide the necessary funding for example to hire more Public Defenders so that their caseloads can be reduced to a level that allows time for full and proper representation. Recently, Governor Cuomo of New York requested their state legislature to provide substantial funds for this purpose, and state bar associations across the country need to lobby government officials for like funding. Likewise, additional funds must be provided to the various police authorities who provide extremely valuable services, and do so under dangerous conditions, so that they can: (1) Improve the training of officers, particularly in the area of dealing with mentally ill persons; and (2) Enlarge their efforts to meet with and better understand the communities they police, leading to a better understanding of the extremely difficult job officers perform, and hence more cooperation, thus building essential trust on both sides.

Average citizens can contribute to this effort by emailing and telephoning their governmental representatives to support the programs outlined above. And the value of thousands and thousands of emails pouring in to express support for such necessary funding of these programs should not be underestimated.

11.  Anything else we should know about your book?

I wholeheartedly hope that my novel, Gideon’s Children, will make a positive contribution by educating its readers about the workings of our Criminal Justice System and the critical need to improve those workings, as well as the equal importance of protecting our individual constitutional rights in the face of their abrogation by The Patriot Act, the No-Fly Rule, and the virtually unrestricted spying on Americans by the FBI, the CIA, and the NSA.

Pluses And Minuses I: Race And The Police

In past posts, I have opined that race remains a major problem in American society. True, on the plus side, after 250 years of slavery and 90 years of  Jim Crow, we have made some progress, most notably the desegregation of schools, the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the election of African Americans to local, state, and national governmental offices, culminating in Barack Obama rising to the Presidency. On the minus side, however, racial prejudice, both explicit and implicit, nevertheless remains, and most visibly in the relationship between minorities and the police.

The incidents in Ferguson, New York City, Cleveland, North Charleston, Baltimore, Tulsa, and Los Angeles have been well covered by the print, television, and social media platforms, so I will not reiterate the tragic details in this post. Instead, I want to suggest what is necessary to alter the sad state of affairs that exists today and thus prevent further abuses.

To begin, let me make it perfectly clear that our police perform an extremely valuable service to our society, and place themselves in harm’s way to do so, as evidenced by officers being killed in New York City and Hattiesburg, Mississippi, to name just two tragic incidents. Further, when I was a Public Defender, I had the experience of riding with officers of the Compton Police Department during night patrol, and I most definitely learned that their job is both difficult and dangerous. That said, however, the events from Ferguson to Los Angeles still scream out for police reform.

By reform, I mean a serious renewal of allegiance by police departments to community policing, i.e., maintaining public safety by engaging with communities. This requires increased foot patrols that bring officers into direct contact with residents, as well as working groups that foster dialogue between police and the community. If thoughtfully applied, this approach builds the essential element of trust and naturally encourages citizen cooperation that aids the police in performing their duties.

Further, to boost the building of trust, the police must demonstrate the same accountability that we require of ordinary citizens under the Rule of Law. Numerous officials, including police chiefs, have recognized this critical element and have implemented change to achieve transparency and accountability. However, many heads of police unions, like Thomas Lynch in New York, are married to the status quo and seek to protect their members even in cases where police officers acted wrongly. This problem must be addressed.

I would like to suggest that our police departments be further improved as follows:

First, in the hiring process, candidates must be thoroughly screened, with added emphasis placed on psychological and sociological attributes. Right from the start, let’s explore a candidate’s psychology re power and how it’s applied, and his or her viewpoints on community policing and minorities; and

Secondly, training periods must be lengthened so as to train future officers in how to separate the necessary use of force from the aggressive form, how to handle the mentally disturbed, and how best to build trust with and gain the cooperation of the community they are policing.

All of us have a huge interest in seeing that our police officers are selected from the highest quality applicants possible, then are exceedingly well trained, and like us are held to be accountable for their actions if they act improperly. And I urge everyone to communicate this message, and to keep communicating it to his or her elected officials at the local, state, and national level until change occurs and this goal is achieved.