In 1965, I was an idealistic graduate student. It was an
exciting time with Michael Harrington's culture of poverty, the beginning of
the Welfare Rights Movement, the civil Rights Movement and the dark cloud of
Viet Nam as a back drop. The rights of the individual were magnified by these
MOVEMENTS AND CHILDREN OF THE 60S looked to the Federal Government to define,
bestow and preserve the same. An activist court was cheered and legislation to
regulate human behavior was warmly welcomed. Bobby Kennedy's pursuit of the
scoundrels of organized crime would remove a cancer from our country. Rico,
conspiracy and mandatory minimums were on their way.
Forty years later I still strive to understand the individual's relationship to
the state and how there can be a relationship that maintains freedom through
the "Rule of Law". Waves of nausea now overcome me when I hear the
phrase.
We now have one in every 30 citizens interfacing with the criminal justice
complex. Rural communities hope there will be a need for more prisons and vie
for them to be built in their community. Prisons are considered economic
development. Many federal, State and Local Government jobs are dependent on the
growth of our prison population. As more and more men and women are interfacing
with the court system, the rule of law is a labyrinth of conflict and
contradiction.
This contract between the governed and the state becomes unfathomable. Just as
unfathomable is some consensus about what individual rights are. Case law piles
on in volumes, and contradictory and minutely parsed decisions leave defendants
without a clear understanding of process. Additionally they are required to use
the services of an army of attorneys and advocates of various abilities and
ethics. The financial resources of their families are sucked into the black
hole of our criminal justice system.
If forfeitable assets are part of the bounty of the state, defense attorneys
must defend their clients by walking on eggs, fearful that they may also be
prosecuted. This further compromises the rights of the defendant. Many
defendants must make plea agreements to things they knew little or nothing
about because they have no resources. Even those with ample resources plea to
avoid the almost certain conviction, and harsher sentence. Grand Juries are now
used to investigate, rather than to decide if there is probable cause to
indict.
Split decisions with carefully parsed nuances send hopes and money into this
abys.
It must
be noted that each individual caught in this web has children, parents,
brothers and sisters who love them and are also disillusioned, confounded, and
perhaps bitter about resources expended on a system that is so confounding yet
has the power to take away the future of so many families.
How did
we become so fearful of freedom that we have insisted on laws that criminalize
so much human behavior and even thought? We now routinely convict people of
crimes that never took place, in places the defendant has never been, with
people they do not know and incidentally, the criminal act was instigated by
law enforcement. The rest of the world disdains us and developing countries
reject our rule of law. We investigate people who have not broken the law to
prevent lawlessness. Our law enforcement is becoming lawless. Our rule of law
is too voluminous and therefore arbitrary. Even the language, War on Crime,
belies the rule of law. Our justice system uses the metaphors of war, and the
object is the citizens whose part of the covenant is to give consent.
Brilliant trial and appellate attorneys arguing cases and judges deciding them
are thrilling to read and even more so to watch. Their memory and critical
thought is as sharp and shining as a mirror shattering. To me it is also as
frightening as it would be to walk bare foot across the broken glass.
As I watch Justice Bryer and Justice Scalia have conversations about decisions
and interpretations, I long for something more absolute. Something more
absolute would-be language that is clear, simple and true. How can a man's life
and liberty depend on nuances culled from thousands and thousands of pages of
case law with the reasonable possibility of a single sentence or concept on one
of those pages becoming determinative. Too much law turns "Rule of
Law" into rule of men.
What would Aristotle think of our rule of law? What would our founding fathers
see? We have constant imposition and enforcement of arbitrary and restrictive
values imposed on us by an over active legislative branch. These are
interpreted and judged by a judiciary system that seems to be will aware of the
fact that the governed can no longer know the rules of the covenant they are
part of. I just fear for our freedoms.
I know
there is logic and order in the process, but the sheer magnitude and complexity
of the possibilities invites subjectivity.
Beth Cutis
