Law

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.

Let My People Pee…aka the American Public Restroom Wars

A friend on Facebook recently asked me for my thoughts on the issue of transgendered people in public restrooms and laws forcing them to use the bathroom of their birth gender.  My personal feelings are that this is much ado about nothing, and that bigots are using the same sort of fear-mongering we saw in past equality struggles by other oppressed groups.

Toilet WallThe premise for these bathroom laws is that transgendered people may really be just men who are faking it in order to gain access to public women’s restrooms where they can molest children.  Thus, in order to protect the children from child molesters, we must force people to use the restroom associated with their birth gender. This is a stupid argument that fails on many levels and is harmful to all involved, including children.

First and foremost, this is a xenophobic argument.  It equates transgendered people, and men in general, with child molesters.  It harkens back to the days when people justified discrimination against homosexuals being employed as teachers on the basis that it would expose school children to sexual abuse with the implication that gay men are all secretly pedophiles.  When all else fails, the last refuge of bigots and hatemongers is always the cry of “What about the children?”

Of course, like all laws arising from bigotry, these laws are rooted ignorance. Politicians such as Ted Cruz and supporters of bathroom gender laws sometimes claim that their fear is that crossdressing men would use the women’s room in order to gain access to children.  However, this is not an issue of crossdressers.  The distinction between crossdressing and transgender is important in this debate.  Crossdressers are people who wear the clothing of the opposite gender, but do not see themselves as being that gender.   Transgendered people prefer to wear the clothing of the gender with which they identify.  There are also people who are born intersexed, that is, with anatomy that is neither male or female (all fetuses start out as female, but development can go awry).  Gender and sexual orientation are also distinct characteristics, but we tend to try to lump them together, which is a mistake that I suspect is probably rooted in the fact that the majority of the population is heterosexual and assumes that boys like girls and vice versa.

We currently have very strong laws in place that can be used to prosecute child molesters in all areas of our society, not just bathrooms. Short of implementing an army of bathroom police to check the birth-gender of people entering bathrooms, the bathroom gender laws currently being discussed are pretty useless to stop people who would seek to disguise their genders in order to access children in public restrooms.  From a public policy perspective, these laws are just plain foolish.

Cuny_BathroomThe gender bathroom laws are rooted in a hatred and mistrust of male sexuality that we seem all too tolerant of in our society.  Ted Cruz says it plainly when he states “I can tell you it doesn’t make any sense to allow adult grown men strangers to be alone in a bathroom with little girls”. Yes, some men abuse others sexually and act as predators.  We tend to assume that such behavior is limited to men, but women make up 12% of those who are convicted of molesting children under the age of 6.  More importantly, such abusers are not the overwhelming majority of men or women.  Yet consider that many airlines have adopted policies that forbid seating unaccompanied minors next to men on airplanes. Male homosexuality remains much less socially accepted than lesbianism.  There is a stereotype that male bisexuals are unsuitable as partners because they incapable of committing.  We justify the laws that ban women from going topless on beaches by the claim that men who are exposed to a female breast will instantly lose control of themselves and become rapists. In other words, inside every man is a sexual predator just waiting to be released.  Utter nonsense maybe, but the messages are clear and repetitive. What is communicated by these stereotypes, laws, and policies to our male children about themselves and about the adults they are growing into?

However foolish I see them, bathroom laws may or may not be unconstitutional. Laws that make gender-based distinctions are not automatically unconstitutional under current American law.  Such laws when reviewed by the Courts are subject to what is known as “intermediate scrutiny”.  To pass constitutional review under the intermediate scrutiny test, a law must show that it furthers a legitimate governmental interest in a way that is substantially related to that interest.  I suspect that there will be little debate over whether or not the protection of children from sexual abuse is a legitimate government interest.  The focus of review for these laws is going to be whether or not restricting bathroom use to birth gender is substantially related to the protection of children.  If this winds up before the Supreme Court, I think the outcome is going to be greatly influenced by whether or not the government can show that there has been a pattern of people using bathrooms designed for the gender that’s other than their birth gender who have also been found to molest and abuse children. ABC News just published a story in which it reported that more than 200 organizations that work with sexual assault and domestic violence survivors have come out in opposition to laws restricting bathroom use to birth gender, calling the claim of the transgendered predator a “myth”.

In closing, I want to say that my thoughts on this matter actually go back to the text of the Torah and the most repeated commandment in the Hebrew Bible; “You shall welcome and not oppress the stranger in your midst.” From my perspective, these laws are nothing more than an attempt to make life more difficult for people who already are facing difficulties that I can only imagine.  If we want to protect our children from molestation in public bathrooms we can easily do so in a variety of ways that don’t involve creating hardships for other people.  We don’t need to further oppress a group of people who have already known more rejection and abuse than one should ever have to experience in this life.

A Ride Through Waverly Hills and “What does it mean to own Property?

A beautiful Spring day is a perfect time for a scooter ride and Tallahassee’s Waverly Hills is a wonderful neighborhood to ride through.  Join David as he takes you on a journey underneath canopy oaks and discusses some of the interesting questions arising from, and misconceptions regarding, real property law.