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:
- A system of self-government in which all persons, including the government, are accountable under the law;
- A system based on fair, publicized, broadly understood and stable laws;
- A fair, robust, and accessible legal process in which rights and responsibilities based in law are evenly enforced; and
- 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.