United States Supreme Court – A Court Diminished

David Abrams in front of the US Supreme Court
David Abrams in front of the US Supreme Court

The United States Supreme Court, once the most prestigious court in the world, has been reduced to a politically gerrymandered court by the Republican Senators’ refusal to even review President Obama’s nominee and Donald Trump’s pledge to pack the Court with political ideologues, guaranteeing rulings he sees as politically beneficial. Trump will have little difficulty keeping his promise given the Republican majority in the Senate.  I do not expect the Court will recover from this harm within the remainder of my legal career or lifetime.

The framers of the Constitution envisioned a Court that would be as insulted as possible from the political process. The first and most famous case ever decided by the Court, Marbury vs. Madison, was rooted in the idea that the Court is immune from political restructuring. The Court rejected an expansion of its jurisdiction by Congress through the political process and held that jurisdiction of the United States Supreme Court is established by the Constitution.  The Court’s authority, like the Court itself, is beyond the political process.  Judges do not serve at the pleasure of the President or Congress; they have lifetime appointments.  This principle of law has been incredibly important in American jurisprudence.  Neither Congress nor the President can remove or expand the Court’s jurisdiction in response to the political winds of the time, nor can they retaliate against a Judge or the Court for rendering a politically unfavorable decision.

The role of the Court in protecting the freedoms of and ensuring justice for the American people cannot understated.  Removing bigotry, prejudice, and injustice from American law has rarely been achievable through the ballot.  Desegregation, repeal of miscegenation laws, removal of literacy tests for voting, privacy rights, the right of counsel for people accused of crimes, the right to be free from unlawful search and seizure, the right of married couples to use birth control, and the right for same sex marriage were all achieved at the Supreme Court and would have all failed if put to a vote.  Strict textualists, such as former Justice Scalia and those whom I expect Trump will nominate, insist that rights which are not explicitly stated in the Constitution do not exist.  They disagree with the perspective of Justice Douglas who wrote that the “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance” Griswold v. Connecticut, 381 U.S. 479, 484 (June 7, 1965). In simpler language, there are rights that are not explicitly stated, but are implied in the text, such as the right for a parent to raise and educate a child, including sending a child to a religious school rather than a public secular school.

American flag, US constitution and a judge's gavel symbolizing the American justice system or the Judicial Branch of government ( Judiciary )That the Constitution and the Supreme Court allow rights to develop in response to our collective experience rather than through the nearly impossible political process of Constitutional amendment is one of the great strengths in our legal system and has allowed our nation to remain a leader in human rights. As Alan Dershowitz postulates in his book “Rights from Wrongs: A Secular Theory of the Origins of Rights”, human rights do not come from G-d, or nature, or even from logic.  Instead, they come “from human experience, particularly experience with injustice.  We learn from the mistakes of history that a rights-based system and certain fundamental rights…are essential to avoid repetition of the grievous injustices of the past.”  In other words, rights come from wrongs and are recognition of those wrongs. A great example of this is found in the Constitution itself where the framers included a right contained in the Third Amendment prohibiting the government from forcing people to quarter troops in their homes during peacetime.  This is not a right most of us would consider putting into the Constitution if we were writing it today.  Indeed, there has never been a Third Amendment case brought to the Supreme Court.  This Amendment exists as a relic of the experience of the framers and their fears based upon that experience.

Sadly, I greatly fear that the era of the Court standing between the people and the government as a neutral arbiter of the rights secured by the Constitution is over.  For the first time in our history we may see the United States Supreme Court moving in reverse where, rather than finding emerging rights, the Court will remove existing rights from the people.  More importantly perhaps, I fear that, due to the political games that have been played by the Republicans in the appointment process, the United States Supreme Court has lost the moral authority and diversity of thought it once possessed.  The Constitutional vision has been undermined and unfortunately the Court, and likely the American people, will suffer.

Is Segregation Returning to Campus?

Atlantic Monthly reports that the University of Connecticut has opened a dorm specifically for black men. At a community college outside Chicago courses are being offered that are limited to only black students.  In California, at Pitzer College, conflict has erupted over the issue of black students advertising for roommates stating that only people of color were welcome to apply.  Are these efforts evidence of colleges and universities doing what is necessary to meet the needs of black students, or are they a new form of segregation?  The answer depends upon who you ask.  Supporters of the separate courses and living accommodations say that they’re necessary to create a safe environment and supportive environment for black students.  Critics say that, regardless of the motives, separate classes and accommodations are a step backwards and a revival of the segregation that it took our nation so long to outlaw.

Legally, these programs raise what I see to be interesting and challenging questions.  Courts view classification based upon race as suspect and subject to strict scrutiny review. Generally, you have to have a compelling interest and a narrowly tailored intervention when making any kind of a race based classification where any form of state action or commerce is involved.  I suspect that a single race dorm may not pass constitutional muster with the Courts regardless of the justification.  However, specialized programs designed to promote academic success for students from disadvantaged backgrounds may be an easier sell.

Is the idea of a non-white dorm for the purpose of creating a safe space for students of color completely ridiculous?  As a white male it is very tempting for me to say “absolutely”. Honestly, I find the idea that someone might want a safe space away from me to be somewhat offensive. Additionally, I am certain that an attempt to create a white’s only dorm would be universally condemned, a condemnation that I would fully support.  But when you think about it, maybe it’s not so ridiculous. Certainly, we have a long tradition of single gender dorms.  Sober dorms are becoming popular on campuses as more young people find themselves struggling with substance abuse problems.  Some campuses have kosher dorms or kosher dining halls.  We have entire institutions that cater to a single gender, or students from a specific religious background.

One issue that comes up for me as I think about these issues is the difference between programs that are directed towards the needs of students coming from diverse backgrounds, and those that exclude or limit participation in those programs based upon definitions of race or ethnicity.  For instance, a university can have a kosher dining hall that is open to all.  A school can offer classes in Latino history or issues that are open to all. A school can have a program to promote success of students from disadvantaged backgrounds, which can include white students from economically deprived communities.  A dormitory for a specific race, while I understand that desire for a “safe space”, seems to me to be a step backward and leaves me questioning whether or not the needs of students of color can be met in a way that doesn’t take us back to the era of segregation.

Our nation had a century-long unsuccessful experience with separate but equal.  Time and time again our Courts and other branches of our government tried to make segregation work based upon the premise that somehow you can make separate equal if you just tweak right.  It was only after failing time and time again that our Courts gave up and declared that separate could never be equal.  Of course, there is another possibility that may exist.  While it may be true that separate can never be equal, if proponents of segregated housing and classes are correct, then integration may not be equal either.

Lastly, one has to recall that one of the fundamental purposes and values of a college education is exposure to the larger world and a challenging of one’s beliefs and perspectives on the world.  Is this purpose and value lost when we deliberately create an environment that allows students to avoid people and ideas that make them uncomfortable? Perhaps, more importantly, do safe spaces become places where students reinforce each other’s prejudices.  Consider the report in the Washington Post where a Jewish student of color attended one campus conference that purported to be a “safe space” and found herself confronted with holocaust denial and anti-Semitism that sent her running from the event in tears.

Frankly, I can’t see how creating segregated spaces promotes tolerance and acceptance among students. Instead, I can see it working reinforce the divisions that separate individuals and groups.  If this is the case, I have serious doubt that the students will emerge from these schools with the skills needed to survive in the increasingly pluralistic world they will soon graduate into.

 

 

 

 

 

 

 

A Dog’s Love – The Price of Admission

Nine years is a long time, unless you’re looking back in hope of recapturing lost moments, then it can seem like only an instant.  Yesterday, nine years after I first met him sitting contentedly in a cage belonging to a dog rescue organization, my dog, Matzah. died.  I’m left in a house that suddenly seems too quiet, missing my best friend as I look at the empty spot on the floor where he would sit happily while I spent hours writing blog posts and legal briefs.  I keep asking myself where the time went and how did all those years pass so quickly?

Rescue dog Mazel and my dog Princess 1998
Rescue dog Mazel and my dog Princess 1998

I’m no novice when it comes to dogs.  I got my first dog, a German Shepard with one ear that flopped down and one that stood up straight, named Queenie, for my twelfth birthday.  Queenie saw me through my adolescence, my first job, and into my first marriage.  She stayed with my mother when I left home, but she will always be my first canine love.  My next dog, Princess, a yellow Labrador retriever who swam like a fish, came to me as a very young puppy. She and I were together through a divorce that left us living together in a rented bedroom. Together we survived nursing school, a nursing career, a short-lived tech career, and the start of law school. Then came Hershey, a chocolate lab with bad hips, skin allergies, and a tendency to lock himself in the bathroom and start howling in the middle of the night.  He survived because of an affectionate personality that made all his other defects and short-comings forgivable.

For the past nine years there was Matzah, a Rottweiler mix, with an extra toe on each foot, and the most laid back disposition of any dog I’ve ever known.  Matzah was up for just about anything: a walk in the woods, a car ride, a trip to visit relatives, a day spent hanging out at the house. His only limit seemed to be riding in a kayak (we tried, and he demonstrated his displeasure by jumping overboard, swimming to shore, and seating himself next to the car while he waited for us to paddle back).

There have been others along the way. Rescue dogs who found their way into our home and into our hearts. Our house, like our hearts, has the scars of many dogs.  There are dark spots on the floor where a dog once peed, scratches on door frames, smudge marks on windows, and never ending dog fur flowing across the floor no matter how diligently we sweep.  For years, dogs have outnumbered the people in our house.  Each has been special, giving us far more than the food, shelter, and occasional belly scratch they receive from us.  They forgive us our grumpy moods, late feedings, and bringing cats into the house.  When we go away for days and weeks at a time they celebrate our returns as if we were heroes returning from a lunar landing.

Yesterday, I held my precious Matzah as the veterinarian gave him the injections that would end his suffering and wondered how many times I can sign up for the heartbreak that is almost inevitable when you give your heart to a dog?  After all, I’ve been at this long enough to know how it’s most likely going to end.  Yet, I know that when the time is right, there will be another, and possibly another after that, depending upon my own mortality.  I know that while heartbreak is the price of admission to a dog’s life, the experience of receiving a dog’s love and trust is one of life’s greatest gifts.  The time will pass quickly, much more quickly than we like, but that is simply the way of things.  Sharing your life with a dog is making the best of that time no matter how fleeting. It is well worth the cost of admission.

A special note of thanks to Matzah’s vertinarian, Dr. Pridgeon, at Westwood Animal Hospital.  Dr. Pridgeon provided excellent care for Matzah since the day we adopted him.  

Leaving Utopia

Awaking to our final day of our two week stay at the utopian community of the Chautauqua Institution, I am confronted by the now familiar news of seemingly unnecessary killing of black men by law enforcement officers, of protests, and now of the killing of police officers in protest to those killings.  As much as I love the peace and tranquility of Chautauqua, I am eager to get back to the non-utopian world of my life in the larger outside world, despite the conflict and dangers that  lurk there.

As I think about the conflict that is erupting on our streets, I can’t help but feel that the legal system I work in has contributed to this problem by failing time and time again to deliver justice to the most vulnerable in our society.  Too many times our courts have turned away empty handed those who have been harmed at the hands of law enforcement, while making excuses and carving out legal exceptions to the law.  Too many times our elected lawmakers have weakened our justice system by choosing to build prisons rather than invest in struggling communities ,and have responded to problems such as addiction by mandating some of the world’s longest prison terms rather than offering treatment.  Too many times those in power, or those seeking office, have cultivated the seeds of hatred and bigotry by invoking images of fear and prejudice in order to distract attention away from failed public policy and their own lack of vision or direction.

Our leaders need to deliver something greater than sanctimonious speeches and calls for civility while they continue to turn away empty handed the vulnerable who have been harmed.  Within the legal system, our prosecutors and judges need to recognize that justice has to mean more than retribution, and that real harm can occur in the absence of monetary loss.

I don’t have all the answers, nor do I know all the questions that need to be asked.  What I do know is that there remains much good in our country and that we have the potential to be better tomorrow than we are today.  Our concept of justice can become richer than it is today, but for that to happen we need to let go of our fear of each other, stop vilifying those who live on the margins, and seek kinship with our neighbors wherever and whenever possible.

Stanford – Part Two: FSU Pike case and What the Victims Tell Us About Justice

When I wrote the post on the Stanford rape case last week I finished the posting with a feeling of incompleteness.  For some reason I feel compelled to write more about this topic, to finish the thought, story, or whatever it is that I’m actually writing.

I first came to live in Tallahassee in January 1988.  Shortly after I arrived, the local newspapers exploded with the case of young woman, who while intoxicated, was sexually assaulted by 3 members of the Pi Kappa Alpha fraternity.  There are many parallels to the Stanford case.  The participants were all students, all intoxicated, and the defendants all claimed that the victim consented.  I see the FSU case as more egregious because it involved multiple assailants and the fact that when the sexual activity was finished the defendants dumped the unconscious young woman in the hall of another fraternity house and then called the police in an attempt to frame the other rival fraternity. Also, it appears that the other fraternity brothers helped cover up the evidence and came to court in mass to support the accused.  The case was in the headlines for the next several years and the Pi Kappa Alpha fraternity was kicked-off the campus for many years.

In the FSU case, known as the Pike case, the defendants all entered into negotiated plea agreements that spared them criminal convictions and prison time. One defendant was ultimately convicted and sent to prison following his violation of probation by failing to check-in with his probation officer. In the decades that have followed, it does not appear that any of the young men involved ever committed another sexual assault or were involved other criminal activity despite what we would now consider a very lenient sentence.

In researching the FSU case I came across an article about the victim in that case, and I was really touched by the young woman’s words because they echoed what the victim in the Stanford case said in her letter to the court. The young woman from the FSU case has really struggled in the years since the night of her attack.  According to the article there have been PTSD issues and trips to alcohol rehab. How much of this is from her rape experience isn’t clear, but what is clear is that her experience with our legal system did little to help her with healing. Indeed, what she describes in the article about the judicial process came across to me as a second victimization.  The most private areas of her life were invaded and exposed to the public, her integrity and honesty were questioned, and she was forced to relive an experience that she had great difficulty recalling and was traumatic for her.  Sadly, she never got the one thing that she feels would have helped her the most – an apology from the young men.  My reading of the article left me with the impression that the apology and the attendant reaffirmation of her dignity is much more important to her than the degree of retribution imposed by the courts.

When I read the letter by the Stanford victim I saw this sentiment echoed.  She felt victimized by the process, angry at the defense attorney, and disappointed at the lack of apology from the young man.

I have been the attorney representing the accused in sexual battery cases and I have been that lawyer who has had to cross examine the alleged victim of a sexual assault. I get how they feel. It’s one of the reasons I didn’t pursue a career in criminal defense law.  I know that my cross examinations can be brutal, especially in a case where the only evidence is a dispute of consent. Many of the alleged victims whom I have had to cross examine were children whose testimony is easily influenced and whose memories are often very unreliable.  I also know that my cross examinations have revealed false claims and saved innocent young men from the stigma of a conviction.

Most sexual assault cases do not involve strangers, but people who are relatives or friends.  Many involve egregious violations of trust that destroy relationships and families.  It often seemed to me that what our legal system treats as criminal activity is really something beyond that for the parties involved.  Whether I won or lost my clients’ cases, I never felt that our system did much other than leave the people involved even more hurt and angry.  I know that those cases, more than any others I’ve worked on in my career, took a toll on me and left me feeling very conflicted about my participation.

In a criminal prosecution the accused and the accuser have almost no opportunity for reconciliation.  One of the first orders issued by a judge when considering bail for a defendant is to order no contact with the victim.  If a conviction occurs, a court will almost always order that a defendant have no contact with the victim.  There is no opportunity, even if desired by the accuser, for the parties to ever have a conversation about what a happened and to find reconciliation. Courts impose these restrictions in an effort to protect the accuser.  Granted, these days a victim can address the court during sentencing, but as evidenced by the Stanford victim’s statement, that doesn’t provide the conversation that she needs to happen.

I want to suggest that, perhaps, we need to consider whether or not victims will be better served in these cases if we were to offer some sort of a non-judicial option for resolving these cases.  What if we offer the accuser a choice in how their cases would be handled and a greater voice in the goals of the case?  What if we offer resources to the victims that will help them over the long-term to rebuild and improve their lives? In both the Stanford and FSU cases, both women spoke of their desire that their cases create change in their assailants.  What if, instead of retribution, the goal of these cases wasn’t simply to determine guilt and punishment, but to make a meaningful positive change in the lives of both the accused and the accuser?

In closing, I want to say that I have tried my best to write with sensitivity and compassion about this subject while also offering a different perspective.  I have also tried to stay true to the legal scholar’s obligation to question and examine how our system works and how it can be improved. Our current approach has failed for too long and isn’t creating the sense of peace and resolution needed by those involved.

 

Stanford, Compassion, Retribution, and Justice…Are they Compatible?

I began my legal career as an assistant public defender.  It was my job to represent those accused of criminal violations of the law and to advocate for the best possible outcome to their cases. My job required that I look beyond the simple facts of a defendant’s case and see the whole human-being who I was representing. I enjoyed this job and it’s my nature to want to stand with the accused, with the outcast, to make their case, and plead their cause.

It’s from this perspective that I’ve observed the media coverage and seemingly endless parade of Facebook postings regarding the 20-year-old Stanford student and the 6-month sentence he received following his conviction for sexual assault against an intoxicated young woman.  I’ve watched as a virtual vigilante mob has expressed its upset at what many feel is a ridiculously inadequate sentence.  I’ve read media reports of the virtual vigilantes have going after the judge, the young man’s father, and even a musician who is a childhood friend who wrote a letter of support of the young man to the court.  I’m left wondering how much is enough and where does this blood lust come from?

prison - guard towerThe United States currently has the largest prison population in the world.  Our Courts hand down some of the most severe sentences in the world.  We routinely impose sentences that would be unlawful in much of the world.  Despite this, we have both citizens and politicians calling for more severe sentences for law breakers.  I think we’ve lived with the idea that retribution is justice for so long that we don’t even question it any more.

Unfortunately, our approach to justice and fighting crime is remarkably unsuccessful and comes at a great human and financial cost. Sending people to prison for long periods of time fails much more often than it succeeds.  In the State of Florida where I live, 65% of inmates released will return to prison within 5 years. Compare this with Norway’s recidivism rate of 20% and where the national incarceration rate is only 1/10th of the United States and its prisons are luxury resorts compared to ours.

I’ve tried to research the specific facts of the Stanford Rape case online, but I haven’t been able to get obtain many details about what exactly happened here.  I suspect that many of the journalists writing op-ed pieces and folks posting online don’t know any more than I do.  I know, from my experience with media reports on cases I’ve been involved in, that what the press reports and what actually happened are often two different stories and media reports often leave out very important details for the sake of sensationalizing a story.

The information I have been able to obtain is almost formulaic to anyone who has ever represented clients in a sexual assault cases in a college town.  Two young people, both are heavily intoxicated, sexual activity happens, memories are impaired after the fact, one party claims it wasn’t consensual.  The physical evidence supports that everyone involved was voluntarily intoxicated and that sexual activity of some sort occurred. The sole issue of dispute is consent.  It is a scenario that repeats itself time and time again on our college campuses and in the lives of young people whose minds and bodies are impaired by hormones and alcohol.

Unlike many I am not disturbed by the six-month sentence imposed by the Judge in this case.  Compassion and justice are not disparate and incompatible concepts.  Our criminal justice system desperately needs more compassion and to stop defining people solely by their greatest mistakes.  I recall the words of Father Greg Boyle, founder of Homeboy Industries, the largest and most successful gang intervention program in the world: “You are so much more than the worst thing you’ve ever done.”

There is good support for a lesser sentence in this case beyond simply the fact that Brock Turner comes from a privileged background and is a white male defendant.  He has no prior history of law violations or aggression, he is very young, he has paid dearly in many other areas of his life, he will carry the stigma of a criminal conviction for the rest of his life, and he has expressed remorse.  I also think that his statement regarding the impact of college party culture is an important message that we should be not be ignoring. Even if I concede the point that many raise that had this been a less privileged defendant that the sentence imposed might have been much more severe, that’s not a justification to me because our Courts routinely impose unnecessarily long and severe sentences.  The solution isn’t to make sure everyone is sentenced unfairly, but create fair, just, and compassionate sentencing for all.  As a society we have to expand our concept of justice beyond retribution and we have to be willing to take the time to understand why these things are happening.  Justice is not served by declaring a remorseful 20-year old with no prior legal history to be the face of evil.

Drunken after partyI see many people online making statements to what they refer to as “rape culture”.  I’m a bit of a curmudgeon when it comes to adopting new buzz words for social problems, but I do think we have a severe problem on our college campuses.  Consider that we’re sending our young people to college, often without any real sex education due to the obstructionism of religious fundamentalists who have hijacked many local school boards.  I suspect that many young men, and probably quite a few young women, on our college campuses these days obtain their sexual education from the internet and the many pornographic websites. We’re also sending them into an environment where alcohol often flows like water, especially at schools with strong athletic programs which often receive large sponsorships from alcohol producers.  It’s a recipe for a disaster that keeps happening over and over again.

If we want to create a safe and healthy environment on our college campuses and in the larger world, long prison sentences are not the solution.  Education and candid conversations geared towards understanding and prevention are.  Our conversations with our young people have to be more than simply saying “Just say no” when it comes to sex, drugs, and alcohol.  Our colleges and universities need to quit co-opting and promoting the party culture associated with college sports in order to make money.  What message does it send about adulthood when our underage college students see large crowds of intoxicated 40 and 50 year olds during the Tallahassee Downtown Get-Down street party they hold before all Florida State home football games?

Justice has to be more than retribution.  Good people sometimes make terrible mistakes and do great harm to others.  Retribution doesn’t help them make better choices and often leaves them angry and broken.  Having compassion for a defendant doesn’t mean that one condones the wrong-doing or disrespect the victim. Looking at the larger forces and the context in which people make bad choices allows us to effectively prevent future tragedies, which in the end is really where justice exists.

Tallahassee Bus Boycott and Other Tales of the Road

The struggle for equal rights and desegregation in Tallahassee is seldom discussed.  David discusses the history behind the C.K. Steele  Plaza and the Tallahassee Bus Boycott.  He also discusses how things may not have really changed so much and how the city has recently harassed young Black men for riding the bus.

Riding and Ranting – Children In Adult Prison

Is putting a child in adult prison for life without parole ever justice?  How should we respond when a child commits a serious crime?  Why does the United States refuse to sign onto International Treaty regarding the rights of children?  Why are children in the State of Florida more likely to end-up in Adult prison than anywhere else in the developed world? In this episode Abrams considers these and other issues as he rides back to his office from lunch on a beautiful Tallahassee Spring day.