The Death Scalia and the State of Criminal Justice

Hola mi Gente,

If you haven’t already, get your behind to a theater near you and watch Michael Moore’s latest, Where to Invade Next. I would do a review, but I don’t want to spoil it for you. Suffice it to say that I think you should see it and that it will remind you of why we could be a great country…

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The Death of Scalia

 In the Era of The Collapse of U.S. Criminal Justice System

Before I move on to the significance (or lack thereof) of Scalia’s demise, I would like to share an anecdote. If you bear with me a moment, I think you will be able to see the connection I am trying to make.

Years ago, I stood in front of a judge, the future of my life in the balance. What that judge most likely did not know about my appearance says a lot about our criminal justice system. First, I was incarcerated though I had not been convicted of any crime. Because I could not afford bail, I was remanded to one of the most notorious penal colonies in the world, Rikers Island.

The following is called “Bullpen Therapy,” by those like me who have had to endure it every time we appeared before a court… 

Before I appeared before a judge (usually late in the afternoon), I was awakened at four in the morning. I was served breakfast in the mess hall (I was once served oatmeal that had maggots in it) and then, after maybe 10 minutes allotment time for eating, I was taken and put into a cage, generously called a holding cell or bullpen,  meant for 25 that contained maybe 50 people. The sole toilet was overflowing with feces and there was no room to lie down.

After about four hours, around 8:00 AM, the names began to be called. Once your name was called, you were shackled and put on a bus. Once the bus was filled, you taken to the county court where your alleged crime occurred and then put in another holding cell or bullpen, this one even more crowded than the one before. There you waited hours. The stink of the place was nauseating enough, but what they fed you for lunch was worse: usually slimy pieces of bologna between slices of barely edible white bread. Greasy cups of tea or sometimes Kool-Aid in Styrofoam cups was offered. 

If you were lucky enough to see your court-appointed attorney, it was for one or two minutes at the most. Oftentimes, they spoke to you while walking from the door to the front of the court, sometimes never even bothering to look at you in the eyes. You stood before the court and your public defender, assistant district attorney, and the judge would discuss your future as if you were not there. This would last maybe two-three minutes at the most. Sometimes, you would go through this process and if your defender was absent or the assistant district attorney was not prepared, you would be sent back without even seeing a judge or getting your date adjourned.

As soon as your court appearance was over, the court officer would escort you back into the bowels of the system where you would wait for hours until a bus would come and take you back to Rikers Island. The whole process I have described here could take anywhere from 20 hours or more. The same process was repeated every time you appeared before the court. By the time you were returned to the dorm and the hard bunk you slept on, you would be so physically and psychologically exhausted that you would promise yourself not to do it again. Indeed, I know of scores of people who, rather than go through the process of a court appearance again, would plead guilty to crimes they had not committed instead. 

If you think this process was the exception rather than the rule, imagine what I have just described happening tens of thousands of times in courts across this nation every day. Our criminal justice system is a conveyor belt of human bondage and has nothing to do with any high ideals of justice of fairness. The vast majority of the people on this conveyor belt are Black and Brown people -- mostly young men from the poorest communities in our land.

During one particular arduous Bullpen Therapy session (what many call justice), my judge refused to adjourn my case. I had come twice before him and due to various reasons (absent legal defender, ill-prepared ADA, etc.) and had to be turned away. So this is what the judge did: He became judge, defender, and prosecutor. In an instance he turned to my public defender and instructed her on what she needed to say and do. The he became a judge again and addressed the ADA. When the ADA demonstrated cluelessness, the judge became the prosecutor and instructed the ADA (who was busy picking up legal papers he had dropped on the floor) on what he had to do. Then the judge became a judge again and set another date for my case. What was hanging in the balance? Possibly 15 years of my life.

This is our criminal justice system. It is a system in which the rule of law has vanished. Prosecutors stand at this assembly line and decide whom to punish and how severely. Almost no one accused of a crime will ever face a jury. Inconsistent and abusive policing, rampant plea bargaining, overcrowded courtrooms, and ever more draconian sentencing have produced a gigantic prison population, with Black and Latin@ citizens the primary defendants and victims of crime.

What is interesting is that many years later, I was describing this incident to a group of lawyers who thought the judge’s actions were an example of legal genius. And this is where Scalia comes in. It is this unflinching reverence for authority that scares me. I am sure that the same people heaping praise on the most bigoted Supreme Court justices will no doubt do the same for war criminal, Henry Kissinger. It is this slavish adoration of authority that really makes, pardon the expression, my dick itch.

I am sure Scalia had no clue about the underbelly of the system he personified or represented. I doubt very much he was aware of “Bullpen Therapy” as I experienced it. In fact, I doubt the judge that eventually sentenced me knew what was going on in the bowels of his own court. Well, I come to bury Scalia, not praise him. For me, Scalia personified the essential evil of our failed criminal justice system. I do not wish to join in the now widespread and hypocritical praise for Antonin Scalia, one of the worst Supreme Court justices in living memory.

Scalia was not merely a conservative, which was bad enough, he was a reactionary authoritarian, whose only desire was to form and advance a theory of justice that was outdated by 1860. Scalia was an imperceptive, bigoted, factually knowledgeable but dogmatic thinker who had shut the world out of his awareness long before he had come to the bench. Fortunately for the rest of us, the world is rid of him. Scalia, for all his deep knowledge of law, remained devoutly oblivious to the changing reality around him and to the whole complex history of dissent from traditional ideas that had been going on since the 18th century. His was an ideology that facilitated the kind of justice that I, and many other Blacks and Latin@s, were subjected to.

My name is Eddie and I’m in recovery from civilization… 

Interesting Times...

¡Hola! Everybody...
Many things have happened in the last few weeks, few of them good. We lost a national treasure and fierce champion, Howard Zinn. Air America, the only response to the overwhelming noise of right-wing hate radio went under, and an airhead troglodyte republican won Edward Kennedy’s senate seat.

But the worst thing that happened is something you may not have paid attention, the controversial SCOTUS Citizens United v. Federal Election Commission decision granting corporations the same rights a people...

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-=[ Slavery ]=-

Slavery is the legal fiction that a person is property. Corporate personhood is the legal fiction that property is a person.

-- David Cobb

We now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.

The Supreme Court, Citizens United Decision

I believe that as Americans, we expect to be treated equally. You know, the “one person, one vote” thingee... the “We the people... ” meme. There’s no executive coach in the NYC Mass Transit system. The well-to-do are jostled with the working poor, upper management rides in the same car as the peons. It’s very democratic.

But the SCOTUS’ Citizens United decision may do away with such egalitarian notions...

We live under the Chinese curse of “interesting times” it seems. Look at it this way: my organization could fire me if they don’t like my blogs. In fact, corporations often limit what their employees may wear, what their T-shirts say, or what political messages they may post on the walls of their cubicles/ offices. With the Citizens United decision, the corporation itself will now enjoy the full range of First Amendment benefits limited only by the size of its bankroll in setting up whatever technology can best drown out everyone else’s voice.

One of my fave legal writers (over at The Nation), Patricia J. Williams, has a great piece on the Citizens United debacle. She asks an important question:

“... the questions on many minds are why ‘freedom’ (as in speech) has become the functional equivalent of ‘expenditure’ (as in money) and why on earth corporations are considered ‘persons’ to begin with.”

Ms. Williams goes on to give a brief history of legal “persons” showing how the concept grew out of the necessity for businesses to negotiate as well as to be accountable. For example, when a company sells a defective product, you sue the company -- not the individual executives or employees. In other words, the company is a kind of legal “substitute” for a person, with that status embedded in the interests of contract and property law.

From this basis the Roberts court dismantled over a 100 years of precedent and cynically ruled that corporations are entitled to the same range of civil rights as actual, fully endowed people (You know people, as in, “We, the people... ?”). Ms. Williams brings up the core of the issue when she asks:

“... for whom is our Bill of Rights? Is a corporation really a ‘who’ or a ‘whom’? If a public ‘person’ is capacious enough to encompass a privatized ‘corporate’ plurality, then are ‘We, the people’ not thereby reduced by propertied fiefdoms huddled behind a facade of ‘free’ republicanism?

In other words, Ms. Williams is saying that granting huge multinationals with economic powers that overshadow entire nations, then the rest of us are relegated to second-class citizenry. She makes the important historical point that enfranchisement was once calculated according to such measures as the “three-fifths of a person” rule. Does not this ruling bestow corporations a magnified role of personhood? Doesn’t this ruling diminish the rest of us to three fifths?

No one seems to be asking some important questions here. For example, “Where is the corporation?” “Has anyone ever seen a corporation?” We might see transactions happening, or economic movement, just as some of us swear we’ve seen angels or witnessed miracles. But does that give us the right to confer personhood on such notions? In the past, the type of legal thinking that led to the Citizens United decision was called “magical” or “supernatural” thinking. Today it’s passed around as the best legal thinking of the land.

What’s next? Giving the Geico gecko personhood or Bugs Bunny or Daffy Duck? You laugh, but it’s not a joke. It’s a recipe for indentured servitude for the rest of us.

Love,

Eddie

Addendum: A comment by my friend Will, and several discussions with friends in the legal profession (all who gritted their teeth about this decision but accepted it), prompted me to add the following. It seems to me that many are defending this decision on the grounds that the First Amendment is absolute, but this is pure fiction:

Free speech has never been an absolute. If I yell too loudly, I can be charged with disturbing the peace. If I swear on the radio or TV, I can be fined or taken off the air. If I say I’m going to commit some terrorist act or assassinate a government official, I’ll be arrested right away. There are slander and libel laws, copyright laws, I could go on and on. Treating free speech as an absolute is completely wrong:

A corporation is an artificial entity, created by people, governed by laws and rules. This is simply the Supreme Court changing the rules to give corporations more political power. It has nothing at all to do with the First Amendment. That is just an excuse for the transfer of power from people and to the biggest corporations.

Finally (and most importantly at least for me), the reality is that spending money is not the same thing as speech, and when you treat them the same, it gives those with more money a huge advantage. They already have a huge advantage over those with less, and this decision is another way to give more power to those with more money.