Categoryaccountability

The Rule Of Law: Without Trust It Fails

In my blog post of May 27th, entitled The Rule Of Law: Fair Or Foul, I focused on two of the World Justice Project’s four elements that form a working definition of the Rule Of Law, namely: Accountability and Even Enforcement. In that post, as well as several prior ones, I have stressed that the Rule of Law founds our society, and that in turn, trust founds the Rule, and Accountability and Even Enforcement found trust.

Yesterday, in The New York Times I read that two weeks ago four members of the British Parliament (two from the Labour Party and two from the Conservative Party) had traveled to Washington D.C. to argue for the immediate release of Shaker Aamer, a detainee at Guantanamo Bay Prison.

Mr. Aamer has been in American custody since he was apprehended in Afghanistan in 2001 where he was doing charity work. And after a stay in Bagram Prison, where he was tortured, he was transferred to Guantanamo in February, 2002, where he has remained for thirteen years without ever having been charged with any crime.

In our Criminal Justice System, the law requires that when a person is arrested, that he appear before a judge in court within a specified time period, usually 48 hours, and learn the charges against him. Under the Patriot Act, an enemy combatant has no such rights, and while I understand that in order to combat terrorism, those charged with the responsibility of doing so must be given some extra leeway, that flexibility to gather evidence and formulate a case should still be consistent with the concept of due process. Not being a terrorism expert, I’m not sure of what the time period for filing charges should be. However, I am sure that the Rule of Law requires the application of the principle of reasonableness, and that indefinite unequivocally fails to meet this test. Our federal government has never explained why, to keep us safe from terrorists, that if they suspect a person of being connected to terrorism, they cannot gather enough evidence to charge that person with a crime within a reasonable period of time.

So: Accountability score: Zero, as in none.

And to make matters worse, in 2007, during the Bush Administration, Mr. Aamer was cleared for release, but remained incarcerated. And in 2010, under President Obama he was again cleared for release after six agencies, including the CIA, FBI, and the Departments of State and Defense unanimously concurred, but remained in prison. And even after England’s Prime Minister, David Cameron, while visiting President Obama earlier this year, asked for his release and President Obama promised to pursue the matter, Mr. Aamer still remains in Guantanamo.

Why? There may be some security issues, is what the four members of Parliament were told. After 13 years, without a single charge being made against Mr. Aamer? When he’s been cleared for release twice? Utterly unconscionable! is the only term that comes to mind to describe the actions of all three branches of our federal government.

And a serious blow to the essential element of trust, to boot. For if government officials at the highest levels are blatantly unaccountable, why should we trust the Rule of Law?

But it’s only one case, runs the counter-argument. Well, stop and consider that the same Patriot Act that has resulted in Mr. Aamer’s tragic situation also applies to you and me, so just pray that some official in our security apparatus doesn’t designate one of us as an enemy combatant.

For an encore, this morning’s New York Times reported that Kalief Browder, a young man who was held at the Rikers Island Jail in New York City for three years without ever being charged with a crime, committed suicide three years after his release. It appears that Kalief was unable to recover from repeated beatings by correction officers and fellow inmates, and the two years he spent in solitary confinement after refusing several offers from prosecutors to take a plea deal. His mother reported that while Kalief did obtain his GED and started community college after his release, he was never able to recover from the years he spent locked alone in his cell for 23 hours a day and suffered a steady deterioration of his mental health.

Where was Kalief’s Public Defender, and why was he not arraigned in accordance with New York state law within 48 to 72 hours? And how can that misfeasance swell to 3 years? And who is responsible for this tragic miscarriage of justice? No answers to any of these questions exist in the article, and I was unable to discover any by researching the issue on the internet. New York’s mayor, DeBlasio, has called for a major reform of Rikers, and in a statement, said: “Kalief’s story helped inspire our efforts.”

Accountability score: Zero, as in none. And another serious blow to the element of trust, so essential to the Rule of Law.

And to demonstrate how trust is being replaced by distrust in the minds and hearts of many of our fellow citizens, this morning’s New York Times also reported that in Cleveland, “Community leaders, distrustful of the Criminal Justice System, said Monday that they would not wait for prosecutors to decide whether to file charges against the police officers involved in the fatal shooting of 12-year-old Tamir Rice last year.” Ohio is one of a few states that have a statute that allow residents to request an arrest without approval of the police or prosecutors. And not trusting the prosecutors in Cleveland, who work closely with the police, and who will proceed by the secret grand jury process, community leaders have instead chosen to directly petition a judge, so as to obtain an open hearing with evidence provided by all sides involved.

Who can blame them, after so many unarmed African-Americans have been killed by police, and with rare exception were the incidents fairly and openly investigated?

For a significant portion of our fellow citizens, and in particular people of color and the poor, events, from Ferguson, to Cleveland, to Detroit, to North Charleston have seriously eroded the trust that is essential for the Rule of Law to continue governing our society. As my novel, Gideon’s Children, illustrated, the growing conversation about the crucial need to fix the serious problems in all phases of our Criminal Justice System needs to grow larger and louder now! Please let your municipal, state, and federal representatives know that reform should be at the top of their list of priorities. Nothing is more important than ensuring that the Rule of Law continues to found our society and all of the citizens who comprise it!

The Rule Of Law: Accountability Requires Recognition Of Everyone’s Humanity

In my blog post of May 27th, entitled The Rule Of Law: Fair Or Foul, I noted that four principles formed the World Justice Project’s working definition of The Rule Of Law, and thereafter focused on accountability as one of the two most crucial factors in building the essential element of trust that underpins this Rule on which our society is based.

In an article by Gary Younge, the brilliant New York correspondent for The Guardian newspaper, which I received via a blog post on Goodreads (Younge post), Gary pointed out that all lives matter, and the failure of U.S. governmental authorities “to keep track of how many people its police kill” detracts from their humanity. In agreement with this opinion, and the loss of accountability that it entails, I responded to Gary’s post on Goodreads as follows:

Gary,

Your point is well taken. In the era of high-tech, where computers have made record keeping easy+, one could validly argue that the failure by governmental authorities to record the names, ages, race, and other vital statistics of every person killed by police is deliberate, and intended to dehumanize these individuals.

As my novel, Gideon’s Children, illustrates, Public Defenders must constantly remind judges, juries, and other court personnel, that their clients are human beings. Cases begin with the Judge stating: The People versus Joe or Mary, and prosecutors constantly cloak themselves in the aura of The People, i.e., The People will prove, the People contend, the People object etc. As my characters do in Gideon’s Children, when I was a Public Defender, when the jury was being selected, I would ask potential jurors if they realized that the term, defendant, was just that, a term, and that my client was a person. Thereafter, I used to object in open court to these constant People references, so that I could remind the judge and the jury that my client was a person, a real live human being, and one of the many individuals who comprise the People of the State.

This effort to dehumanize by the white power structure, which was begun in the era of slavery, then furthered fostered during the Jim Crow Era, was poignantly illustrated by Ralph Ellison in his classic novel, The Invisible Man. And while American Society has made progress on the issue of race, it remains a serious issue as recent events in Ferguson, Staten Island, Cleveland, North Charleston, and Baltimore serve to illustrate.

Under The Rule of Law which founds our society, everyone must be accountable, and that includes the individuals who comprise our government.

In conclusion, I would emphasize that the essential element of trust underlying The Rule of Law cannot be maintained if those responsible for enforcing the law are not subject to the critical principle of accountability!

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.