Adult Prison Is No Place For A Child

This week National Public Radio reported that, following a mass trial, Egypt sentenced a 3-year-old boy to life in prison in what is now being called a case of mistaken identity.  It may surprise many of my readers to learn that sentencing children to prison for life is not only also practiced here in the United States, but that we lead the world in such sentences.  Furthermore, when it comes to sending children to adult prison, my home state of Florida prosecutes and sentences more children as adults than all other states in the nation combined.

The issue of children in prison has been one that has interested me since my days as a law student.  At that time the case of Lionel Tate, a 12-year-old black child here in Florida who was convicted of murder with a mandatory life sentence, was in the news.  My interest in Lionel Tate’s case led me to a law journal article about children in prison by FSU Law Professor Paolo Annino. During my second year of law school I actually left City University of New York School of Law for two semesters to come to Florida State as a visiting student in order to work with Professor Annino, who remains in my life as a friend and mentor to this day.  A few years ago PBS has made a documentary film called “15 to life” on Professor Annino’s work and research that was used to successfully argue before the United States Supreme Court that life-without-parole sentences for juveniles who commit crimes other than murder is unconstitutional.

My first job after graduating from law school was as a juvenile public defender.  I spent 2 years defending children accused of crimes ranging from stealing cookies from school lunch lines to sex crimes and murder. I never got to represent the children accused of murder for very long because, regardless of age or their level of involvement, they were always removed to adult court almost instantly. Transferring a child to adult Court in Florida is not a decision made by the Judge after a hearing. Instead, it’s entirely up to the prosecutor and no judicial review is available.  I often witnessed this authority being used to try to force children to plead guilty when the State’s case was weak.  The threat was, fine, go to trial, but you’ll do it in adult court and risk prison rather than a juvenile facility if you do.  

The United States Supreme Court has said that, for crimes other than murder, life without parole sentences for children are cruel and unusual and therefore unconstitutional. However, this doesn’t mean that children who have never killed anyone aren’t being sent to adult prison for life with no possibility for release.  Understand, a murder charge doesn’t mean the child actually killed someone, just that they were part of a crime in which someone was killed.  This is the felony murder rule, which has been severely limited, done away with, or ruled unconstitutional throughout much of the developed world. However, the felony murder rule remains in full force in the State of Florida and in force to varying degrees in 45 other states.  If you are a child and you accompany an adult to commit a crime such as a burglary or to buy drugs, and that adult then kills someone, the child can be found to be as legally guilty of murder as the adult who pulled the trigger.  A murder conviction in Florida carries with it a mandatory life sentence without parole. This means that children, often with no prior legal history, who have never actually killed anyone, are sent to adult prison with no possibility of ever leaving – an outcome that, according to Amnesty International, happens in no other nation in the world.

Imprisoned man, looking down, seized to a few barsMy experience working with juvenile defendants left me deeply impressed with the idea that juvenile crimes do not occur in a vacuum.  I have yet to meet a child who committed a serious crime who was not also a victim of untreated trauma, abuse, or mental illness that was either untreated or inadequately treated.  This harm is further compounded when you send a child to prison.  Adult prisons are not equipped to handle the needs of children.  Consider what happened to 13-year-old, Jessica Robinson, whose clemency petition I worked on with Professor Annino. Her story of abuse and neglect while in state custody was profiled by This American Life and is worth listening to.  I, along with other law students, drafted and argued her clemency petition before then-governor Jeb Bush who denied the petition after a year. 

It is fine and noble that we Americans condemn the human-rights violations of other nations such as the life sentence given to the Egyptian child, but we lack any real integrity or moral authority when we do.  As a nation we have refused to give even the most basic legal protections to the status of childhood. Of the United Nations member states, only the United States and Somalia have refused to sign onto the Convention onto the Rights of the Child, the most widely accepted civil rights treaty in the world.  Consider that for a moment, the legal rights of children in the State of Florida are among the lowest in the nation that brings up the rear in the developed world when it comes to providing legal protections for its children.  Until we remedy this situation it will be very difficult for Floridians or Americans to speak with any authority or integrity to try to advance the lives of children in the larger world.  It is long past time for us to get our own house in order. 

In closing, I’m left with a questions, but no answers.  America was once a place of renewal where we believed that people could evolve and change.  What happened that made us give up on our children?  When did we become the people of the developed world whose version of justice for children is only found in the parts of the world with the most questionable of human-rights practices?  Lastly, how do we redeem ourselves from this place?

 

Harper Lee and Shakespeare – Fictional Lawyers Who We Aspire to Be

“Kill all the Lawyers” was a comment in an email I received this week as part of a group discussion on a safety issue I raised as part of a community group where I donate my time.  In some ways, the timing of the comment is somewhat ironic given that Harper Lee, author of “To Kill a Mockingbird” and creator of the iconic lawyer character, Atticus Finch, died this week.

It is impossible to know how many legal careers were inspired by 8th grade English classes reading “To Kill A Mockingbird.  The book continues to resonate with readers and greatly influences how we view lawyers.  In many ways, Atticus Finch is the lawyer that we all aspire to be.  A noble advocate fighting for justice on behalf of an innocent client against the biases and prejudices of an unjust world. 

As someone who practices law in the South, and often in rural communities, it’s impossible to escape the shadow of Atticus Finch.  I remember thinking of him years ago during one of my earliest cases when I stood to address the Court in a small county courthouse and I heard the boards of the wooden floor creaking under me.  The nostalgic atmosphere of the century old building put me in mind of the story and reminded me of the nobility of defending those who live on the margins of our society. 

Confederate Solider - Gadsden County, Florida Courthouse
Confederate Solider – Gadsden County, Florida Courthouse

My world isn’t really that different from the book.  I regularly enter old courthouses set in the center of town with monuments to confederate soldiers standing guard before the main entrance.  I currently have an elderly black client who grew up in the segregated south and raised his family with money he earned by picking tobacco. Of course, the world and the law are not static and things have changed.  For instance, a Black female Judge now is the sole judge sitting on the County Court bench of the courthouse pictured to the left with the confederate soldier.

Equally impossible to escape are the comments such as the one I received in the email seeking to vilify lawyers, often misquoting the phrase, from Shakespeare’s play “Henry VI”, which goes: “First thing we do, let’s kill all the lawyers”.  This phrase is probably one of the most misconstrued phrases of all time.  As explained by Professor Stephen Gey, during an FSU Law School graduation ceremony several years ago, the phrase was uttered by the bad guy in the play.   You can view Professor Gey’s excellent and entertaining talk on You Tube here:

https://www.youtube.com/watch?v=1i0MNOwNNsM

Both Harper Lee and Shakespeare created works of art that reflect elements of truth about law and lawyering.   Despite the common misunderstanding of Shakespeare’s quote, both Harper Lee and Shakespeare speak to the nobility of the law and the legal profession.

Courthouse, Quitman, Ga.
Courthouse, Quitman, Ga.

However, it would be inaccurate to simply declare the law as perfect and lawyers as always championing the cause of justice.  One cannot forget that  slavery and segregation were once given sanction under the law.  The truth is that law often fails to protect the weak and vulnerable and it often fails to deliver justice.  Atticus Finch did not win his case in “To Kill A Mockingbird.”  This outcome parallels real life. Harper Lee’s father was a lawyer who, in 1919, defended two black men accused of murder.  The men were convicted, hanged, and their bodies mutilated. It is said that Harper Lee’s father never tried another criminal case.

When I was a law student I attended a lecture by Morris Dees, founder of the Southern Poverty Law Center.  I’ll never forget when he told our group of law students that in the law it doesn’t matter what role you have, but how you conduct yourself in that role.  Being a criminal defense attorney or a prosecutor isn’t nearly as important as the ethics you bring to the role.  You can be a corporate attorney and exist as the conscience of the organization, or you can simply be a hatchet man using the law to oppress and bully those who are weaker or have less legal resources.

The truth about laws and lawyers is complex.  I know that I work in an imperfect system where justice is sometimes sacrificed for that which is predictable and efficient.  I have long believed that law’s primary function isn’t justice at all, but to maintain the power structure of society in all but the most egregious cases.  However, I also know that, as a lawyer, I can sometimes make a difference and create justice and truth where it wouldn’t otherwise happen.   When I think about Atticus Finch, I’m reminded that as a lawyer I can bring optimism, hope, and voice to injustice. 

Scalia’s Legacy of Civility

The death of United States Supreme Court Justice Antonin Scalia is an unexpected and massive change in the American legal and political landscape.  Consider for a moment the length of Justice Scalia’s tenure on the Court.  He was appointed in 1986 by President Regan and served for nearly 30 years.  His time on the bench spanned 5 Presidents.  He joined the Court while Thurgood Marshall, the first Black Supreme Court Justice, was still a member and the first female justice, Sandra Day O’Connor, had only joined the Court a few years earlier.

It is ironic that Justice Scalia, who joined the Court during a time of modernization and diversification, has become iconic to many for being antiquated in his thinking and unreasonably rooted in the past.  For Justice Scalia, the answer always seemed to begin with the question, “What did the framers intend?”  It always seems to me that Justice Scalia rejected the idea that one generation should interpret the constitution any differently than the generations that came before it.  In legal circles he is what we call a “textualist”, that is, he looked, almost exclusively, to the text of the Constitution.  Emerging understandings of justice and human rights had no place in his analysis. When interpreting the Constitution, his approach was to always seek to understand the issue from the perspective of the framers and view the issue from the perspective of the 18th century.   His answer to injustice, as viewed from the modern world, contained within the Constitutional text, wasn’t reinterpretation based upon new understanding, but amendment.  I think it is fair to say that he did not see the Constitution as a living document, but as a static piece of writing.

I believe that the accurate perspective of Justice Scalia is to view him as a fundamentalist.  He did not seek out deeper meaning in the text, but simply viewed it at its most fundamental level, looking at little more than the simplest meaning of the text.  He was not one to look at the spirit of the language or the document.  In his opinions, especially his dissents, he writes as if problems of unjust outcomes are beyond his and the Court’s concern.  One can’t help but read is writings and wonder if he lacked compassion, or if empathy was lost at the expense of his adherence to dogma.

This is not to say that Justice Scalia never raised thought-provoking questions or persuasive arguments.  Many times I’ve read his writings in which he argued positions with which I disagree, but I came away thinking that he raised interesting arguments.  Sadly, I often can’t help but wonder if his arguments would have been more compelling absent his often denigrating statements about those justices and people who disagreed with him. 

Perhaps the most interesting thing to me about Justice Scalia is his close friendship with Justice Ruth Bader Ginsberg, a justice with whom he rarely agreed.  This is really the quality that I most admire about Justice Scalia.  Regardless of his almost unwavering loyalty to his fundamentalist legal dogma, he was able to find connection with a person who completely disagreed with the reasoning that he used to define himself. In many ways, Justice Scalia and Justice Ginsberg were a model for the civility that should exist between lawyers.  Indeed, it should exist at some level between all people.  Yes, we may disagree, we may see the world from very different perspectives, but we have to look beyond that and see the commonality and the beauty that exists in our fellow human beings.

 

 

Trolls, Cyber-Bullies, and Other Misfortunes of Social Media

I love YouTube videos and have wasted countless hours watching videos of people pranking each other and the cockpit action during take-offs and landings.  However, beyond the time wasting potential, there is a serious downside to our prolific sharing. These days just about anything we do has the possibility to end up posted online for the world to see. 

I saw the recent viral YouTube video of a young Miami neurology resident taken while she was on a drunken rampage with an Uber driver who was refusing to carry her as a passenger (I’m deliberately not linking to this video in order to preserve the young woman’s dignity).  Without a doubt, her actions were ridiculous and abusive towards the driver.  According to an ABC news story, the video has now been viewed more than 5 million times.  During an interview with ABC News she told about the vicious cyber-attacks she’s now suffered, of the death threats, the comments that she should be raped, that her family is now fearful because their address has been publically leaked and they have also been threatened.

Accusation guilty person. Sad upset woman looking down many fingers pointing at her backThis reminded me of a recent NPR This American Life Podcast that I listened to in which another woman, writer Lindy West, who writes about feminist issues, spoke about the cyber-bullying and troll attacks that are inflicted upon her anonymously through social media. In her case, one troll went so far as to impersonate her recently deceased father online and use that false persona to insult and denigrate her in online social media postings.

Now, at first glance, you might think that there is a distinct difference between the condemnation of a drunk woman acting badly and the online stalking and abuse of a woman who simply writes articles that challenge our ideas about gender, beauty, and politics, but I don’t think the difference is as great we might try to make it out to be.

Yes, the drunk woman was acting badly. She herself admits that her behavior was inexcusable and that she has made amends with the Uber driver she abused (I would note that he refused to press charges against her).  She has been suspended from her training pending an investigation and her biography and images have been removed from the websites of her medical school and residency program. She has taken down her social media profiles which were flooded with condemning comments from viewers of the video.

In her interview on ABC she asks for forgiveness from the larger public, although I’m not clear how it’s any of the public’s business at this point.  However, she continues to suffer from calls that she is forever unfit to practice medicine, and that she should be killed or raped.  People who have never encountered her as a physician have flooded the online rating systems to basically trash her online ratings.  She now has to live with the fear that this YouTube video that captured just a few brief moments of her life will come to define her as a person and haunt her for the rest of her life.   

When I view the video, I see something that is all too familiar to me.  The pressure on young physicians, especially those who are in their residency, is beyond extreme.  Residency training programs are often inhumane and cruel, working young doctors beyond exhaustion while demanding perfection and while the young physicians deal with the most complicated and emotionally difficult medical cases.  Having worked as a nurse alongside residents and being married to a physician, I have seen the mental and physical toll their residency programs take on their lives.  Young physicians are ripe for substance abuse problems, depression, and other forms of stress-induced physical and mental illnesses.  When I view the video, I don’t see an evil person or someone who is unfit for a medical career.  I see a young person who drank too much and is acting badly.  Does she have a drinking problem?  Maybe, but she will need to determine that for herself along with those who know her much better than I do.

What I do know is that the connection between the drunk physician and Lindy West, is the people who anonymously, feel that they somehow have the right to abuse another human being, based upon whatever justification they make up for themselves and the websites that profit from their activities. The anonymous trolls and internet bullies reduce their victims to a single dimension upon which they feel entitled to pass judgment.  They become judge, jury, and executioner with near impunity, and in the most vicious ways possible.  In a disproportionate number of cases their victims are women.

What is most sad, and often overlooked, is that our most vulnerable and imperfect moments can be stolen from us simply by someone with a cell phone who takes a video and uploads it to a public site where it then becomes a commercial product where others to profit from our shame and misfortune. Social media sites such as YouTube, Facebook, Twitter, newspapers that allow article comments, and the multitude of internet quasi-journalists all compete for clicks that sell advertising dollars. Too often, these clicks are derived from the selling of another’s shame story or the invitation to torment an innocent person.  

American laws have not yet caught up with the internet and social media.  In much of the world people have the right to have embarrassing content removed, especially when it is old content that no longer represents the person.  The idea is that privacy includes the right to have one’s past forgotten.  American law does not provide us such a right.  Perhaps it’s because, as a society, we Americans seem to have given up on the idea of redemption and the possibility of change.  That’s too bad really.  I think we’re all diminished without the hope that we can be a better person tomorrow than we are today.

 

The Dimensions of Rotary

Wooden pose puppet sitting on stone, outdoorsThe invoice for my spring Rotary club dues just arrived, which got me thinking about how odd it sometimes seems to me to be a Rotary member and how much I’ve come to enjoy and value my rotary membership.  In case you are unfamiliar, Rotary is an international service organization made up of business and professional leaders who work on projects ranging from worldwide eradication of polio to providing backpacks for disadvantaged schoolchildren in the local community.

I sometimes see myself as a very unlikely Rotary club member, but that’s only when I allow my own preconceived ideas about people to influence my thoughts.  Like many people, I get caught upon labels and reduce people to a single dimension.  I see myself as a Jewish lefty consumer rights lawyer who comes from a working-class background.  My earnings are often at the lowest end of the lawyer pay scale and I’m relatively unknown in the larger legal community.  By contrast, many of my fellow Rotarians are quite accomplished and well known in their respective fields.  In the legal profession, several come from leading law firms, have high level government jobs, or are sitting judges. We have a retired Air Force general and a Navy admiral.  We also have members who are prominent business people who lead major institutions such as hospitals and universities.  Some come from privileged backgrounds and were born with the proverbial silver spoon in their mouths while others, like me, come from very modest or even poor backgrounds.  Politically, my fellow Rotarians span the gambit of persuasions from hard-core conservatives to lefty activists who make me look moderate.

Postage stamp Italy 1970 Rotary EmblemHistorically, Rotary clubs were male only and often segregated (Rotary has been open to all races since its earliest days, but some clubs were segregated at the local level). However, my club is diverse in terms of both gender and ethnicity. Sure, it’s Tallahassee, and mine is the oldest club in the city, so we’ve got an abundance of the white male old guard members, but I’ve found that whatever history may have existed, the club has evolved and grown into a very tolerant and diverse group of men and women who seek to have a positive impact upon the world and find fellowship within our club.

I’ve really come to appreciate and enjoy being a part of an organization made up of so many people who really do represent “the establishment” despite the fact that I see myself as an anti-establishment sort.  It sometimes seems humorous to me that I’m a guy who sues banks and credit unions and I’m in a club with the people who run banks and credit unions. However, this is where I can see the true value of my Rotary membership.

In Rotary, I have the opportunity to see multiple dimensions of people whom I often have a tendency to view as one-dimensional.  It’s very easy for me to view people of wealth and privilege through a very narrow lens. A one-dimensional perspective of any human being isn’t accurate, and it deprives all involved of the opportunity to find connection. Through my Rotary experiences I’ve learned that no matter the differences in our backgrounds, there is always common ground that is much larger than whatever distinguishes us. Such a view is at the very foundation of Rotary.  Consider this quote from Rotary founder, Paul Harris, published in Rotary magazine nearly 80 years ago:

“Man has affinity for his fellowman, regardless of race, creed, or politics, and the greater the variety, the more the zest. All friendliness needs is a sporting chance; it will take care of itself in any company.”   — A Road I Have Travelled, THE ROTARIAN, February 1934.

It often occurs to me when I read the news, or watch the media report on some individual in the news,  that we live in a world that so often reduces human beings to one-dimensional characters.  For example, how many of us see Paris Hilton as anything more than a spoiled heiress, or Glen Beck as more than a right-wing propagandist?  Do you love or hate the President?  Either way, do you see him as having the same struggles and vulnerabilities that you and I do?  Do you see him as the father of two daughters, as a husband, as the child of a single parent? Whatever your feelings about President Obama, or Glen Beck’s politics, or Paris Hilton’s latest tabloid story, there is more to each of them than the one-dimensional characters we are shown in a 15 second news story.

Philosopher Martin Buber, many years ago, considered the way our media reduces people to one dimension and wrote:

“there is a hierarchy of deceptions. Near the bottom of the ladder is journalism: a steady stream of irresponsible distortions that most people find refreshing although on the morning after, or at least within a week, it will be stale and flat.” ― Martin Buber, I and Thou

The truth is, we know nothing about these people other than what someone has chosen to tell us.  Likewise, with most of the people whom we meet in our day to day lives, we often know very little about them, their struggles, their fears, their strengths, and weaknesses.  Accurately seeing the person before us requires that we pause and take the time to listen and to see beyond our initial perception.  Sometimes this is easy to do, but other times it requires patience and the willingness to look past the things that we judge as unfavorable.

Colorado Aspen Trees in AutumnEach of us is a complex collection of strengths, weaknesses, fears, bravery, cowardice, goodness, evil, selfishness, and generosity. We are not one-dimensional creatures.  We’re dynamic beings, constantly evolving, becoming more than we were before and less than we will be at some point in the future.  We experience the world and discover ourselves and each other in the process.  To reduce any of us to one-dimension, no matter how unique or flattering that dimension may be, diminishes us all.

I recently heard a sermon by Sharon Brous, one of my favorite Rabbis, in which she discussed the Aspen tree as a metaphor for the connection between human beings.  I didn’t know this, but aspen trees aren’t really individual trees, but part of a larger colony with a common root system.  The trees themselves might only live 150 years, but the root systems can live for thousands of years.  In fact, one root system is estimated to be approximately 80,000 years old, making it one of the oldest living organisms on the planet.  Like human beings, the single individual aspect of the aspen tree is what is first apparent, but if you look a little closer, take some time to examine the aspen tree, or the human, you’ll see that there is a much larger and longer-lasting connection just below the surface.

The Real Constitutional Threat In The Oregon Militia Takeover

Preamble to the Constitution
Preamble to the Constitution

The latest news in the oddball social and political American landscape is the occupation of a National Wildlife Refuge in Oregon by a group of militants led by the son of nutso criminal cattle rancher Cliven Bundy.  This news story rivals the Trump campaign for its absolute weirdness and its appeal to disaffected people in search of a cause.

I find very little of their cause to be the least bit appealing or convincing.  I don’t buy their claims of an over-reaching federal government stealing land or that they have some sort of divine or Constitutional right to private possession of public lands which they are free to utilize or extract resources from without restraint.  Perhaps more significantly, I completely reject the notion that they have a Constitutional right to engage in armed resistance or rebellion against the United States Government.  In numerous places the Constitution rejects the concept of sanctioning armed rebellion. For example, with regarding to Congressional powers, the Constitution says that Congress has the power:

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; U.S. Const. art. I, § 8, cl. 15

The Constitution explicitly prohibits armed rebellion and defines it as treason when it states:

“Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” U.S. Const. art. III, § 3, cl.

It is clear that our founding fathers did not contemplate armed resistance and rebellion as a protected political right.

404253
404253

However, there is an issue in this fiasco which does interest me.  That is, the sentencing of the two ranchers, a father and son, Dwight and Steven Hammond, for setting fire to public land. A statement by the prosecutor recounting the history of case and the law violations of the Hammands can be found here and is worth taking the time to read.  The trial Court judge, following their convictions after a two-week jury trial, imposed relatively short sentences of a year or less upon the two defendants.  The government appealed and the Appellate Court found the Judge lacked discretion to impose less than the minimum mandatory sentence.  It’s this issue of removing sentencing discretion from the trial Court judge that I find disturbing.  I recognize that sentencing guidelines are designed to encourage uniformity in sentencing, but the reality is that not all crimes are the same.  Especially in the federal justice system, the mandatory sentences for drug related offenses have resulted in extremely long sentences being imposed upon defendants who may have only had a minor role in the crime.  This becomes even more unfair when the low level players often have little valuable information to bargain with prosecutors for a reduced sentence whereas the kingpins often are able to work deals to plea to lesser crimes in exchange for providing information to the government.  As a result of these minimum mandatory sentences we now have the world’s largest prison population and the sentences our nation imposes are far more severe than those imposed in the rest of the developed world.

A few years ago I attended a week at the Chautauqua Institution where the theme of the week was Crime and Punishment.  One of the speakers I heard was former Federal Judge Nancy Gertner, who is now an outspoken opponent to the federal mandatory minimum sentences that judges are required to impose.  Here is what she wrote in a recent publication:

Mandatory minimum sentences distort our criminal justice system. In effect, the legislature is sentencing, when it knows little or nothing about the individual or what may work to deter him in the future. Or the prosecutor is sentencing, when he or she sees only one side — the offense — and rarely knows much about the defendant’s life. The judge is effectively a bystander. And while the judge’s decisions must be transparent, and are subject to appeal and public scrutiny, the prosecutor’s are not.

Beware of the new Super Legislature
Beware of the new Super Legislature

Our system of government contemplates three equal branches: The Executive (President); The Legislative (Congress); and the Judiciary.  I can’t help but feel that the American judiciary has not only been weakened in the past generation, but is quickly on pathway towards being irrelevant.  We now are faced with a super legislature, fueled by massive corporate donations, that is rapidly consolidating its power and intruding into and successfully limiting the function of both the Executive and Judicial branches. Our judges no longer have authority to hear the vast majority of civil contract claims due to the Federal Arbitration Act.  These claims are now decided by corporate-run arbitration where the records are private and there is no right to appeal.  Due to legislatively imposed mandatory minimum sentences we have lost the right as people to have a judge hear our case and determine a fair sentence based upon the facts presented at trial, including mitigating circumstances.  Instead, our sentence was predetermined by politicians, who never heard our story and who may be getting campaign contributions from the for-profit prison industry.

If you think I’m over-exaggerating consider this:  The leader of the group in Oregon is the son of Cliven Bundy, the man who after two trials was found to owe the United States government in excess of $1 million dollars in fees. A federal judge twice permanently prohibited Mr. Bundy from grazing his cattle on federal lands, but he continued to ignore the order with impunity. When the judge ordered seizure of Mr. Bundy’s cattle to pay the debt owed to the government, Mr. Bundy basically took up arms against the government.  Two years later, neither the Executive branch nor the Legislative branches have done anything to enforce the Judge’s order.  Be aware, Courts do not control the police or law enforcement, they must rely upon the executive branch of government to enforce the law.  In this case, due to the lack of action by the other branches of government, the judiciary is rendered absolutely impotent.  This is something that should frighten us all and is much more of a threat to American democracy than some nut jobs inhabiting a bird sanctuary.

 

 

Truth and Reconciliation

Traditional South American Indians : a ClanDoes the United States need to consider appointing a truth and reconciliation commission?  This week I caught a news story about the Canadian Truth and Reconciliation Commission, which concluded its work on December 15, 2015 to uncover the truth about Canadian mistreatment of aboriginal children and to seek reconciliation between the aboriginal community and larger Canadian society.  The occasion of the release of the report was recognized with a statement by Canadian Prime Minister, Justin Trudeau, in which he praised the work of the Commission, its search for truth, and affirmed the need for continued reconciliation.

This got me thinking about how issues of race and inequality continue to be problems in American society. From the multitude of press stories about seemingly unjustified police shootings of Black men to the recent U.S. Supreme Court argument regarding affirmative action in college admissions we see issues of race, inequality, and social injustice continuing to be a part of the American social and legal landscape. It amazes me that even in the 2016 Presidential campaign we see issues of race, prejudice, and fear continuing to be successfully exploited by candidates.

Diverse People Holding Hand Truth ConceptAbsent a national effort to seek out the truth of our history, it will be very difficult for our nation to move forward in healing the deep wounds created by a century of slavery (I’m counting from the nation’s founding; I recognize that the actual history of slavery in North America is much longer) followed by a century of Jim Crow and segregation, followed by decades of prejudicial policing and economic injustice. For most White Americans these issues are mentally relegated to the area of “Black History” with the implication that it’s of little relevance to them.  I wonder if it is in the labels that truth gets lost.  Maybe there is no such thing as “Black” history or “White” history, only a shared universal history found in whatever truth we can recover from the past. Slavery, segregation, and Jim Crow were not only Black experiences, they were an experience of all who lived during those times and are a legacy that all contemporary Americans have inherited.

Our search needs to be for something greater than a collection of facts that we call history, it should be for truth, no matter how messy or inconvenient it may be.  Truth is not about vilifying or shaming, but about seeing ourselves as honestly and accurately as possible so that we can find reconciliation and freedom from the past.  Denial is the product of a dysfunctional mind whereas truth is a pathway to healing from the dysfunction.

None of this is a novel idea.  We’ve long known that one of the most important steps for a person struggling with an addiction seeking to become sober through a 12-Step program is a fearless and searching moral inventory followed by an effort to make amends except where it would be harmful.  Religious traditions have long recognized that truth and repair are predicates to redemption. For example, this week I was attended the Friday evening service at Congregation Shomrei Torah and I read the following in the Jewish prayer book:

“You cannot find redemption until you see the flaws in your own soul and try to efface them. Nor can a people be redeemed until it sees the flaws in its soul and tries to efface them. But whether it be an individual or a people, whoever shuts out the realization of his flaws is shutting out redemption.  We can be redeemed only to the extent to which we see ourselves.”

Our national failure to seek out the truth of our history tethers us to the past. Sure, we all know the factual history that slavery and segregation once existed in the United States.  What is lacking is the visceral connection that comes through a “searching and fearless” inventory that reveals the truths behind the history. It’s more than just knowing the basic facts, it’s understanding the why, the how, and the impact. The stories of both the oppressed and the oppressor must be told and heard.

ReconciliationWhen used in this context, truth is not something that is defined by a particular group.  It’s not the property of the oppressed or the oppressor, but is owned by both.  Without truth reality becomes distorted and both the oppressor and oppressed suffer. Consider the bizarre reasoning of Supreme Court Justice Clarence Thomas, who recently wrote that slavery didn’t strip the slave of his or her dignity. Such reasoning is the intellectual denial of the truth.

Having sought out the truth, we then seek reconciliation with each other.  As a lawyer working in the American legal system, reconciliation is a somewhat foreign concept to me. The system I work in proudly declares itself as an adversarial system where we seek to determine guilt, innocence, or liability, and then impose some form of retribution either in the form of jail or money.  Repairing the relationship between the parties is not the goal and is rarely achieved. Therefore, I find it tempting to reduce reconciliation to its most simplistic concept and regard it as nothing more than apology, but that’s incorrect. In researching reconciliation, I found an interesting paper on reconciliation in Rwanda by Eugenia Zorbas in the African Journal of Legal Studies in which she writes:

“Reconciliation is a vague concept. In the wake of mass violence there is no goal past which ‘reconciliation’ has been achieved. My premise is that legal (prosecutorial) instruments, striking political compromises, publicly acknowledging the wrongs inflicted on victims, and other measures, as ‘messy’ as they may be, are all more acceptable than doing nothing.  I label ‘doing nothing’ unacceptable first because of its ‘shocking implication that the perpetrators did in fact succeed’. Indeed, silences makes us complicit bystanders to the perpetrators of yesterday. Secondly, inaction is unacceptable because it leaves grievances, fears of reprisals, and cultures of impunity to fester, encouraging cyclical outburst of violence by the perpetrators of tomorrow… ‘Reconciliation’ is the umbrella term I will use to refer to this series of messy compromises, though it may be inconceivable or offensive to some, is thus the only sustainable and genuine form of prevention in societies that have undergone mass violence.”

c399f805-cd08-4fdd-97cc-21559c10f305In other words, we can’t simply declare the injustice over and then move on with life as if nothing happened.  Unfortunately, moving on without reconciliation has been the American approach to social injustice to date.  Whether we’re discussing slavery and segregation, native American genocide, or political persecution of communists and socialists, our solution has always been to declare the injustice to be unlawful and move-on. We outlawed slavery, then 100 years later outlawed segregation. We’ve outlawed employment and housing discrimination.  We’ve even outlawed laws that outlawed interracial marriages.  Yet not once have we ever engaged in national soul searching for truth followed by overt action intended to heal the wounds. In the meantime, we see repeat performances of the old demon of racism in our society.  Perhaps it’s not too late. Maybe if we seek truth and reconciliation we can end the denial and start healing some of the wounds that are festering in American society.

 

The Hostile Holiday Greeting

Happy Everything to Everyone written on wooden with Santa HatThis week I received a telephone call from a salesperson who was trying to sell me a product that I have no interest in or need for.  It was one of those cold calls where the sales person knew my name and asked for me personally.  I was polite, but firm, in telling the sales person that I wasn’t interested and asked them to please take me off their calling list.  I said goodbye and prepared to hang-up the phone when the salesperson says:  “You have a Merry Christmas Mr. Abrams”, which on the surface is not something I find offensive, but his greeting was delivered to me with a tone of contempt and hostility that left me feeling a bit stunned.

I don’t celebrate Christmas, the holiday is not part of my religious tradition.  But I’m not one who finds a cheerful “Merry Christmas” to be offensive.  I tend to use the phrase “Happy Holidays” when delivering my own season’s greetings because it feels more genuine to me.  It feels a little off for me to use the phrase “Merry Christmas” since it’s not a holiday I celebrate.

What I don’t understand is how the various season’s greetings moved from  social kindnesses to statements of division and defiance.   I’m not talking about the negative responses by the recipients of the greeting, but hostility on the part of the person extending the greeting.

For example, in recently weeks we’ve witnessed the  “Merry Christmas” greeting utilized as a political statement of defiance adopted by some politicians.  According to CNN, during a campaign stop in October, Donald Trump pledged to his supporters that he would always say “Merry Christmas” and that “…you can leave Happy Holidays at the corner”.

Closer to home in Harris County, Georgia, and perhaps even more divisively, is the story reported by the Washington Post of the local Sheriff, Mike Jolley, who posted a sign “welcoming” visitors that says:

“WARNING: Harris County is politically incorrect,” the sign states. “We say: Merry Christmas, God Bless America and In God We Trust. We salute our troops and our flag. If this offends you … LEAVE!”

I’m dismayed when I see things like this sign.  I’m left wondering if Mr. Trump or Sheriff Jolley understand that they are really changing the nature of the Christmas holiday and greeting through their statements.  They’ve unwittingly, or not, transformed the holiday from a season of good will to something that is much less inclusive and appears much more aggressive to me.

It’s oddly ironic the way people such as Mr. Trump and Sheriff Jolley are co-opting the Christmas greeting into some sort of quasi-religious patriotic statement. What they’re offering is something very different than the freedom we Americans aspire to.  Instead, they’re demanding conformity as a predicate to inclusion.  I wonder if either has really thought much about freedom, what our troops fight to protect, or the dignity that is bestowed upon all human-beings through concepts of religious sacredness?

I am free to be MELouis Brandeis, a United States Supreme Court Justice, during the challenging first half of the 20th century considered the nature of freedom and is quoted as saying:

“The right most valued by all civilized men is the right to be left alone”

In the end that’s really all most of us really want isn’t it? It’s not about “political correctness”, whatever that really means.  It’s about simply being accepted as we are.  Surely, in the land of the free, I can chart my own path and decide how to greet people and what holidays to celebrate without being invited to leave town?

The Rewards of Friendship

A few days ago I received a letter from the President of the Florida Bar. The letter informed me that although I’d been nominated for a pro bono service award, another lawyer was selected to receive the award. When I read the name of the recipient, I smiled and felt a deep sense of pride and contentment. The lawyer selected is one of my closest friends, James Cook, a man whose influence upon me, and my development as a lawyer, can’t be overstated.

This got me thinking about friendship and its impact upon our lives. I’ve never seen myself as one of the “popular kids” and superficial conversation is often quite difficult for me. I’m quite content to be alone reading a book, playing my guitar, or working on my computer. However, I’m nowhere near a complete hermit. I love small dinner parties with close friends where we share stories and great food. I’m very fortunate to have small group of close friends who I have known for many years and with who I feel that I have deeply meaningful relationships.

We all meet many people, probably tens of thousands, in our lifetimes. Yet, most of us have only a few close friends. What distinguishes those who become acquaintances from those who enter our inner circle of friendship? Aristotle wrote that a friend is a single soul living in two bodies and I suspect there is truth to that statement. When I think about my friend, James Cook, an image of our shared passion for justice and life-long scholarship comes to mind. I know that James “gets” the things that are important to me.

However, one might argue that shared passions could just as easily result in competition and rivalry. Consider two young baseball players, both talented and passionate about the game. While it’s true that they might find connection through their shared passion and experience, it’s also likely that they could end-up as competitive rivals.

Science many offer an explanation for why some become friends, others acquaintances, and others our competitors. According to an article published by Psychology Today friendships are established by self-disclosure and reciprocity. Research also shows that once established the friendship is maintained by acceptance, unconditional support, loyalty, and trust. However, the single most important factor in determining who becomes our best friend is more surprising:

“We become best friends with people who boost our self-esteem by affirming our identities as members of certain groups…”

That is, we find validation for our identity from our best friend. This makes sense to me. When I think about my friend James Cook, I think about the kind of person he is and my admiration for both his skill as a lawyer and his dedication to justice and scholarship. These are qualities I seek to cultivate and aspire to in myself. When approached from this perspective, our best friends are those who provide us with a double reward. Like all friends, they provide us with the connection that comes from the friendship itself, but they also provide us with connection to our own identity.

In some ways, this is a little depressing. I like to think that the joy I derive from my friend receiving the award is rooted in some altruistic characteristic within myself. However, if the science is correct, then my joy might be rooted in a sense of self-validation that lawyers like James and me are worthy of award and recognition. Maybe this isn’t such a bad thing though. After all, finding within one’s self a connection to the common well being of our fellow human beings, even when it validates our own identity, is hardly a moral failing of epic proportion. Indeed, isn’t this the foundation from which all brotherhoods arise?

Regardless of the underlying psychology, I can’t help but feel fortunate to have James, and my other friends, to share this experience we call life.  Maybe it’s true that we’re all alone in the end, but having a fellow traveler around to share the journey sure makes the whole experience much more meaningful.

 

 

Vulnerability In An Age of Fear

The story of the terror attacks in Paris dominates the news here in the United States. Not only are we told of the horror of the attacks that have already occurred, but we are also warned of threats of future attacks directed against American public places. There exists a great sense of urgency to these news stories that unless we embrace the calls for fear and alarm and pay close attention to the continuing news feed we are somehow putting ourselves at risk. It’s not clear to me exactly what it is we’re supposed to do other than become alarmed and soak up every bit of detailed information we can from the news media. I know some state governors have answered the calls for action by declaring that they will not allow Syrian refugees to find a safe haven in their states. I’m not sure where the Constitutional authority for such a decision comes from, but I am confident that many tax dollars will be spent finding out. Fear is the business of terrorists and politicians.

I’m reminded of another blog post that I wrote on my law practice website almost exactly a year ago when a gunman entered Strozier library at Florida State. I’ve decided to resurrect that post to share with you now in hopes that it might provide you some peace of mind as we endure the media blitz:

This morning, like the rest of Tallahassee, I awoke to the news of the shootings at the Strozier Library on the Florida State University Campus. I thought about this, and other recent events of violence this morning as I walked along Monroe Street through the middle of downtown Tallahassee. It’s a beautiful crisp fall day in Tallahassee. The sunlight being reflected off the buildings in downtown absolutely shimmers. People are friendly with me as I pass them on the street and the cold fall air is invigorating to me as I walk along.  Observing my surroundings I was reminded that, despite all the problems, there remains great beauty in the world if we take time to notice it.

I thought about Stozier and the many other libraries where I’ve so many hours of my life. For me, libraries were so much more than just a place of knowledge; there were places of refuge. In high school the library was a place where I could find escape the hoodlums and social nonsense that are part of a public school education. In the books and periodicals I found glimpses of a future I wanted to build for myself. I still remember the book with the red cover that I found and used to teach myself to play guitar. Libraries are places of escape where I can put together my dreams.

However, it occurs to me that this week my other places of refuge have also been violated by gun violence. The synagogue attack in Jerusalem resonates in my mind as being yet another senseless act of indiscriminate violence in a place where I have often looked to find refuge from the world and direction in life.

As I was walking I thought about how does one go forward from these types of events? For me the answer is that I’m going forward with a willingness to be vulnerable. I am not going to arm myself or live in fear. I don’t think the solution is reprisal, increased security, or more guns. Besides, I don’t really have the power to control any of those things. I’m not politically powerful, so I know others will shape that public policy along their own interests. Other people decide security issues. I don’t own or intend to purchase a handgun. However, I can go out into the world and work to bring light and justice into the lives of others. I can do my best to help others find their dignity and self-worth such that they won’t feel compelled to turn to guns or violence to feel respected. I can remember that all lives matter and no human being is disposable. I can do my best, as Father Greg Boyle reminds us, to create a circle of compassion where nobody stands outside the circle and the margins that separate people are erased.