From the Ridiculous to the Sublime (Or, Why Idiocy Should Spark Real Conversation)

Some statements - the eye-rolling ones, the ones that engender nervous laughter and the ones that bring uncomfortable silences - too often get spun out of control and fail to emerge as "teachable moments."  Such is it with the recent declaration that one candidate and his party wishes to place some members of society "back in chains."

Putting aside that the comment was undeniably about the concept of a wholly unregulated banking system which is a proven mistake; and, putting aside that bankers themselves have admitted that their own greed requires regulation; and, putting aside that Joseph Kennedy effectively started the Securities and Exchange Commission precisely because he understood how unscrupulously the industry behaves; and, putting aside that most Americans are struggling because Wall Street was not really paved with gold; and putting aside the Revolutionary lamentation of Patrick Henry, "is life so dear or peace so sweet, as to be purchased at the price of chains and slavery?" - the nation jumped on the comment as race-bait like lions on a gazelle in a feeding frenzy.

It is not news that the Vice President said something offensive; this is the same man who forgot more than once to turn the mike off before dropping the f-bomb (now a real word) and who calmed the nation by declaring that he was too frightened to use public transit due to fears of influenza.   Indeed, it is not news that vice presidents  and candidates for the vice presidency essentially write monologues for an entire nation of comedians with their ad libs.  It is also not news that comments, such as the recent gaffe by the current vice president, send political opponents into fits of joyful apoplexy condemning the statement and accusing the declarant of fueling negativity.

Negativity is part of American politics and has ever been.  Once Washington stepped down, the mud-slinging began.  The election of 1800 included accusations by the  Federalist camp that Jefferson was the child of a racially mixed union and the Democrat-Republicans countered with Adams' slightly effeminate persona.  Equally disgraceful were the smear campaigns between Andrew Jackson and John Quincy Adams.  The list goes on, but negative campaigns are not the point.  The (again, my apologies for this phrase) teachable moment is the point.

So, here it is: schools teach that slavery was an unfortunate and ill conceived economic system which existed well before and after the colonists broke ties with Britain and ended after the Civil War.  It was bad, we were good to end it.  With the exception of some escaped and freed slaves like Frederick Douglass and Phillis Wheatley, slavery is a nameless, faceless historical relic. Only it is not. 

Northerners like to believe that individual slave holders in Southern states were the oppressors; but this is another fairy tale.  Every colony had slaves; every colony contributed to slavery.  Indeed, Northern economic concerns helped drown out early Southern voices for abolition.  Without minimizing truly heroic and visionary individuals, most American laws and people supported the institution of slavery, tacitly or overtly - even if they hated it - because the legal and economic system of the entire country supported slavery, regardless of where the practice itself continued.

Economics also encouraged indentured servitude which, similar to slavery, was eternal, brutal, hopeless and demoralizing.  Indentured servants were personal property and could be bought and sold.   As awful as the life of a white indentured servant could be, the dehumanizing chains and shackles and naked auction blocks were reserved for black slaves.

Courageously, men and women who had been deemed less than whole by their own government found the dignity and grace not only to stay and contribute to American society after freedom was declared, but to hold up the mirror of truth for this nation to live up to its own creed.  And, yet instead of gratitude, as a nation we stood idly by as thousands of African Americans were lynched, when Jim Crow laws emerged, when chain gangs existed, when public and private institutions all over this country were segregated, when African Americans could only have a dream of equality.  Indeed, the silence of today's coded language and colorblindness echoes as loudly as overt racism of our not-too-distant past. We condemn slavery at the same time we fail miserably to welcome African Americans fully into the privileges and immunities of citizenship bestowed upon all Americans.  What else is this but a badge and incident of slavery hearkening back to the unfulfilled promise of the 13th Amendment? 

This is the teachable moment.  Reference of chains and shackles made to a largely African American audience caused a collective gasp, as those of a generation ago used to whisper the word "cancer" as if to utter it out loud would somehow let out a secret no one was supposed to know.  It is not a secret to African Americans that slavery existed in this country.  African Americans are well aware that their ancestors were shackled in chains and sold at auction.  This, too, is not a secret.  It is the nation's, not the individuals' or their descendants', shame and it should not be hushed.  Only by understanding and studying this history can we ever tackle its lasting effects.

Many of the lasting effects come out in criminal contexts: Boston believed a white Charles Stuart in 1989 when he blamed a black man for attacking him and his pregnant wife until the facts revealed that he killed his own family; in 1994, a white woman, Susan Smith blamed a black man of  carjacking her and her sons when, in fact, she had murdered her own children; in 2008, a white woman, Ashley Todd, blamed a tall, black man of carving into her face when, in fact, she had mutilated herself; in 2012, Bonnie Sweeten, a white woman, was sentenced to 8 years in prison for embezzlement, but that was only after her false original story - blaming a black man of carjacking her and her daughter and stuffing them into the trunk - unraveled.  Intensive investigation revealed the fraud in each of these cases, but query why these people would decide to blame a black man for their own crimes.

When he was a senator, Vice President Biden voted for a law to have youths as young as 14 tried as adults subject to the same penalties for "serious violent or drug related crimes." He voted for a law that increased the number of crimes subject to the death penalty and mandated life in prison for three drug crimes.  But, as scholars have explained, the "war on drugs" has disproportionately become a means of incarcerating African Americans despite the greater sale and use of drugs by whites than blacks. As with most legislators, he may not have realized the effect of these laws was, indeed, to place a disproportionate number of African Americans "back in chains".

Real chains, real shackles and real humiliation accompanies every incarceration under these laws.  This topic is uncomfortable because we desperately want to believe that if we chain and shackle people today at least they "deserve" it.  Yet, barring the rare case of uncontrollable violence, it is difficult to imagine the necessity for this badge and incident of slavery to continue save to create the illusion that those incarcerated are different from those not incarcerated.  But, even if the argument for restraints succeeds, most of the irons wrap around the legs of black men.  Frederick Douglass warned, "no man can put a chain about the ankle of his fellow man without at last finding the other end fastened about his own." Everyone suffers when we are unjust in our laws their application.  Those shackles, and the chains of our inability to discuss race in meaningful ways, weigh us all down.

Given the speaker, it is fair to say that the "y'all back in chains" statement was nothing more than an unfortunate combination of words that happened to fall out of his mouth while a microphone was on.  But, race bias is real in this country; ignoring it, glossing over it, making hay of it is not going to help change anything.  The presidential campaign will continue on its own negative trajectory with or without racial allusions.  The lesson to take away is that the reason this exploded into an issue is not the ghost of Lee Atwater as an earworm to politics, but rather because we are so still uncomfortable talking about race and the continuing badges and incidents of slavery.

No one alive today is responsible for the African Slave Trade.  We do not study history to take blame or credit.  But, if we learn the truth without painting good and evil into historical portraits, we will acknowledge this past, its imprint on the present, and aim to eliminate the residue from our hearts, our minds and our legal system (and perhaps we will spend less time punishing the poor and more time seeking to establish a functional, regulated financial market).

The teachable moment grants us permission to declare that words are not merely words; shackles and chains connote mental images.  But, also words are not merely words - this country began with a profound promise to each other, that, we, the people of the United States, would strive to enhance our union by working together to establish justice and insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity - not just words but a living, breathing affirmation.

Fools Rush In

Angels in government have a long history; Jefferson asked if men could not be trusted with self governance were kings not men but angels entrusted to govern others.  Lincoln urged us to be friends seeking the better angels of our nature.  Madison explained that because we are not angels, we require "auxiliary precautions" to guarantee fair government.

It is in celebration of democracy that the system of checks and balances emerged in which the independence of the judiciary ensures a government of laws and not men.  It is precisely because we are human, full of flaws, that we require restraint which grew here in the form of an independent and impartial judiciary. 

Judicial tenure, however, requires good behavior; actions contrary to law and decency shall not be rewarded.  And, so there are in place mechanisms by which to challenge the impartiality and independence of individual judges.  In recognition of the notion of an independent judiciary, the recent Massachusetts case protects from scrutiny a judge’s thoughts and notes about individual cases.  Here in Massachusetts, the Suffolk County (Boston) District Attorney has accused a judge of bias -   according to the prosecutor, he rules in favor of defendants too often to be impartial.

To clarify: the Executive Branch has declared that the Judicial Branch protects individual liberty too much to be fair to the interests of the Commonwealth...despite the trust the people place in all of government to protect liberty.  Prior challenges to sitting judges have occurred, but for the opposite reason.  In 1973, Judge Troy was disbarred by the Supreme Judicial Court for abusing his office by, among other things, depriving criminal defendants of their constitutional rights, hiring but not paying lawyers who appeared before him, and neglecting his actual, judicial duties.   It was after Judge Margaret Scott was awarded the Kinlock Award by the Massachusetts Juvenile Police Officers Association bestowed upon those demonstrating, “excellence in his or her field of endeavor; that endeavor must be associated with our young people... [those] endowed with understanding, compassion and patience and a willingness to do more than the next person for tomorrow’s adults" that she was sanctioned for depriving those appearing before her of their individual liberties.   Understanding, compassion and patience apparently includes making up laws to convict the innocent, charging unlawful fines, and removing terrified children from the care of their loving parents.

Past judicial challenges involved the deprivation of Constitutional rights.  The current charge against the judge who shall remain nameless  may be the first time that judicial protection of liberty faces scrutiny.  Even if we put aside the question of whether the Executive Branch even has the authority to challenge the Judiciary - which may very well be prohibited by the Massachusetts Constitution Pt. 1 Art. 30, it is important to note that the judge in question was appointed by a former federal prosecutor and a Republican governor not known to be “soft on crime”.  The Executive Branch’s current disappointment in this particular judge’s interpretation of the law is less credible than Eisenhower Republicans’ disappointment in the way Earl Warren understood the federal Constitution.   But even they did not investigate him for bias due to decisions from his Court.

American history decries the prosecutors' actions against a sitting judge.  As noted in the recent opinion, John Adams spoke highly of an independent judiciary; but, he had to be disappointed in the case that assured the concept.  Politics are a nasty business and it has ever been thus.  Mr. Adams’ Federalist party reviled Mr. Jefferson’s Democratic-Republican party.  The peaceful transition of power from one to the other in 1801 is still a remarkable feat about which the United States should be proud.

The rivalry, the animosity and the disgust, indeed led to one of the greatest legal decisions of this nation’s history ensuring the independence and the impartiality of the federal judiciary which we understand now to be a fundamental aspect of all American government.  Adams lost a bitterly contested election to his former friend come rival, Thomas Jefferson.  The Adamses could not wait to leave the swamp of the Capitol and head home to Peacefield.  As one of his last acts, President Adams appointed several justices of the peace and left their signed commissions to be delivered.  No one did so and President Jefferson famously ordered them not to be delivered.  Mr. Madison, Jefferson’s Secretary of State, obliged. 

One particular appointee, Mr. Marbury, was so enraged at being denied his commission that he sued for it directly in the United States Supreme Court under a legislative provision so permitting.  The Chief Justice of the Supreme Court of the United States was none other than Adams’ appointee John Marshall who, like Adams, was an ardent Federalist.  Indeed, his appointment to the bench was part of a Federalist Party power grab - the Midnight Judges Act.  We forget how young and vulnerable this nation really was.  And, we forget that those who founded this nation were men and not angels.

Surely, Marbury presumed, Justice Marshall would see fit to grant him his commission.  So, it was an historic and game-changing moment when the Court ruled otherwise.  On the one hand, Justice Marshall minced no words chastising the president for failing to make good on his predecessor’s appointments; the commissions were signed and ready to be delivered.  On the other hand, Congress erred in its statute granting right to sue directly in the Supreme Court as Article 3, Section 2 of the Constitution grants original jurisdiction to the Supreme Court in limited circumstances.  Marbury v. Madison’s almost quaint and petty circumstances permitted the Court to become Supreme in the truest sense; there was no fear of retribution when Marshall criticized a sitting president or corrected Congress or determined a result with which no party was happy.  Whether popular or unpopular, Justice Marshall ensured an independent judiciary with this brilliant split of the baby.

Marbury, justified in his anger and his cause, lost as the court had no jurisdiction to hear the case.  Had Marbury sought his commission in an inferior court, he likely would have won, but he hedged his bets on the Federalist court.  John Adams had to rue the rushed appointment of Justice Marshall, right?  Maybe at first, as moments in nascent nations tend to try men’s souls.   But, many years after this fateful decision, in a testament to his own character, Adams declared that John Marshall was a gift to the nation and appointing him was one of his proudest accomplishments.

Putting this history into context, the current investigation of a judge sitting in a busy, low level trial court is an attack on justice itself.  American courts are courts of the people.  They are not arms of the prosecutor or platforms for the powerful.  They are, indeed, a place where individual liberties should be celebrated. 

Today, the Executive branch, in the form of the District Attorney is fighting a petty, undignified battle about which John Adams and Thomas Jefferson and James Madison would be ashamed.  For all of their differences and for all of their human foibles, our Framers genuinely believed in the rights established in the Constitution; we in Massachusetts are fortunate that one of these men was the architect of our own government.  Losing a battle in defense of democracy is noble; the Framers understood that men could more easily be likened to fools than angels and yet trusted people to do the best they could, allowing for history to answer the question of whether men could govern themselves without a monarch.

When powerful people in any branch of government abuse authority in order to deprive individuals, especially the most vulnerable among us, of their right to be heard, to find fairness and fight for liberty, we have a duty to halt that practice.  The strength of this nation rests on a foundation balancing rights, responsibilities and freedom.  Thus, when a judge of any court protects individual liberty and seeks to find the better angels in all who appear before him or her, that judge is a gift to the nation.

Where You Come In

Olympus, where the best in the world of varied sports – some we know well, others more obscure – gather and compete for gold, for glory, for honor.  As the titans of their sport convene demonstrating speed and strength, agility and power, the rest of us watch in awe.  We do not fight, we do not brutally attack our neighbors.  Instead, we take pride in our own athletes as if we had something to do with their hard work and glorious achievements and we cheer on athletes from distant lands whose stories have touched us  or whose prowess cannot be denied. We buck up those who stumble  and rejoice with history makers.   For a few weeks, we share a common bond through sportsmanship.  

We watch with amazement and believe we will never forget how the world can get together to celebrate diversity and unity in human form.  But we do forget as we collapse into routines of mediocrity and ennui.   Our daily lives are so ordinary and average that they cannot compare to the sparkle of Olympic success. 

In the 1840’s in Boston, MA  a very average man had a very noble idea about the very opposite of our great Olympians.  John Augustus asked the Court to spare a poor drunkard time in jail; he asked to bring this bedraggled man into his home to help him heal his ways and chart a new course for his life.  He then did this again and again and again – not only with alcoholics, but with thieves and wayward children.  This cobbler’s valiant efforts helped thousands of people.  He did not fly over parallel bars or score goals or move himself through water; he made shoes.

The pressure we place on ourselves taunts us to be everything or nothing at all.  Go for gold or just forget about competing.  We have decided that it matters so much where we come in, and if it is not first, it is unimportant.  There are the OnePercenters and the NinetyninePercenters.  We no longer get an education, we use college for trade school to get “good jobs at good wages.”  Literature?  History?  Art?  Thought?  Wastes of time, we moan – we want something more mechanical and concrete that will allow us to monetize whatever mediocre abilities we have for our own advantage without worry as to consequences.  We no longer think of creative ways to help our fellow citizens, we are too busy stepping over them as we climb our imaginary hill pretending we are great and glorious.

In our quest, we have forgotten how to think, how to identify and then solve problems.  High school graduates might be able to read but they cannot comprehend.  College students focus on acing tests and never learn how to broaden their thinking.  Why should lawyers analyze facts and legal conclusions of a case when the arbiter has not bothered to read it?  Why should doctors puzzle out the reason for the pain when cure-all pills are widely available?  

Education should spark curiosity and wonder; we should not think of it as a means for spitting back things someone else already knows.  We want easy, uncomplicated, fill-in-the-circle-with-a number-2-pencil tests that do not challenge us or delight us or allow us the joy of discovery.  We want success in money, perhaps in fame, and definitely in ease.  

There is "value" in certain subject matters and not others because of the possibility that they may lead to money in our pocket rather than our highest potential.  This cretin approach we have the audacity to call success.  Winston Churchill declared that success was the ability to go from failure to failure with no loss of enthusiasm.  He may have been nodding to Jefferson or Einstein or Salk.  He could not have fathomed a world where mistakes were taboo.

This brings us back to Mr. Augustus.  There is not much known of his higher knowledge or his wealth or any achievement he may have had, really. Most of us have never heard of him.  But, think of this: by putting himself in service to others with a then innovative idea, his neighbors and his city prospered.  Each person he helped who managed to get a job or provide a service or create a useful item became a wage earner able to then share and spread that wealth rather than squander public funds in a jail cell.  He met with resistance, of course, by the jailers who earned their pay by the number of humans they warehoused.  The more things change the more they stay the same.

Today, the budget for corrections dwarfs that of indigent defense, prosecution, and basic court function combined.  True, corrections officers have good jobs at good wages, but their livelihood depends on the misguided warehousing of human beings.  Just as their predecessors, they will push back.  

Think of the incarcerated not as different from “us” but as part of the fabric of our community.  If it were our child we would seek to instill some sense of self worth with education, appropriate job training; we would encourage opportunities to think, to learn, to revel in verse and prose, to contribute to the larger community in positive, meaningful ways.  

So, what to do with the disgruntled prison workers if this leads to them with fewer jobs in their selected industry?  Same thing: education, appropriate job training, and the opportunity to think, to learn, to revel in verse and prose.  This is what we are doing, with varying success throughout the nation with all industries that have died off or been transported to other markets.  Why not do this with prison personnel as well?

In this tight economy, we can and must be creative with public dollars.  Augustus began his experiment immediately following the Panic of 1837 – times were tough then as they are now.  Jobs were scarce as they are now.  Dignity was as hard to come by as it is today.

We gain nothing from long prison terms save a false feeling of superiority over our neighbors.  We harshly punish petty crime and yet we live in a nation where first offenders are committing mass murder.  We wring our hands and are shocked, shocked when we discover that the weapons were all purchased legally.  The alcohol was purchased legally, too, when the drunk driver kills a bystander.  At the risk of offending the entire legal community, the drunk drivers should be treated like the mass murderers while the poor people trying to survive in an often hopeless neighborhood should catch a break.  Why is there a “program” for the inebriated who risk harming and killing people but the “program” for the indigent is prison?

If we stopped thinking of education as a means to an end, but rather as a starting point and we stopped looking at our less fortunate neighbors as a nuisance to lock away, we could creatively work together not only to end mass incarceration but to improve our entire society and economy. Are we better off with more prisons and prisoners costing us upwards of $45k per year per inmate or spending that same money for cleaner parks, better roads, cleaner energy, auditors to keep folks honest, more crops for local produce and small animal husbandry, better and more diverse transportation?  These are really worthwhile jobs; where are our priorities?  

Those competing in the Olympics, whether they stand on the podium or not, have made personal sacrifices to achieve their mastery.  Through perseverance they have made mistakes and have learned from them.  They are exceptional.  But then, so too was John Augustus exceptional.  In difficult economic times, he saw that imposing severe prison terms for people with potential was not helping anyone.  

As the world comes together to cheer, as we celebrate America’s and the world’s diversity through great athletic achievement, let us consider that in each ordinary individual lies some level of ability.  The vast majority of us will never be world champions.  We need not attain or even pursue gold, it is okay to keep trying and failing and trying again to form a more perfect union, establish justice and ensure domestic tranquility.  Regardless of where you end up, this is where you come in.

It's Too Long And There Are No Adorable Kittens (Or, Why Meaningful Thought Trumps Popular Appeal)

Those who favor descriptive authors and rich story lines presume that everyone loves words; if a few are good, then more are better.   Though addicted to words, I am trying to cut down.

Massachusetts is a great leader in progressive and even radical thought.  But, we fell behind the nation in draconian punishment and are just now considering “Three Strikes” legislation when so many others who led the charge find themselves rescinding their punitive laws as too costly and ineffective .  Odd that we are so late to the penalty game,  given our colorful past of stoning witches and hanging Quakers.  But, better late than never, so despite overcrowded prisons and full courtroom dockets, the Cradle of Liberty has become determined to deny the possibility of parole to our “most dangerous felons”. 

As the Legislature sees it, due to the magic of the number 3, we can lock up all of the very, very bad people and then only good guys like bankers will be out on the streets.  

Two fantastic books published by law professors, one coming from the political right and the other from the political left shed brilliant light on the subject.   WARNING: both books have more than 750 words and there are no adorable kittens.  Still, worth the read.

Few people laud criminal activity, including inmates in prison.  Most rue their transgressions and seek to improve themselves and their lives.  Of course, we do not give them the prayer of a chance.  We deny felons the right to vote, to live in public housing, to work, to care for their children: we lock them up outside.  We demand that people change their ways and then deny them the opportunity to demonstrate that change. 

By recognizing the difficult and complicated truth about crime – how we define it, how we enforce the law, how we punish offenders, how we are creating a (self-destructive) divided, rather than united, society through our criminal justice system we can start to address the underlying problems of poverty, addiction and mental illness.  Not only is this a more humane and evolved approach to the problem, it is cheaper and more effective than catchy slogans.

Although none of us is immune from making a bad decision, studies have shown that stress wears down the mind and actually leads to poor judgment.  What could be more stressful than poverty and despair?  Prison, I suppose.

Our current world subsists on quick fixes and flashes of light.  We judge rapidly, harshly, and  permanently to our own detriment.  Three strikes, we say, and you are out – out of our sight, out of our thoughts, out of our “civil” society.  Baseball metaphors really sing in headlines and talking points, but they make no sense in determining the trajectory of human lives. 

Humbly asking forgiveness of the literary gods for the transgression of bullet points, I give you our first president, George Washington:

1.     Begging for and receiving a command in the British military for which he had no experience, he caused what can only be considered a murder leading to the Seven Years War. 

2.     He owned slaves and signed the 1793 Fugitive Slave Act. 

3.     As president, he taxed spirits to pay down the federal debt; those most greatly affected were poor, rural farmers…who rebelled…so he had them rounded up…and convicted.

Oh my, forget the mythical cherry tree and leading the Continental Army to revolutionary victory, that’s three strikes.   

Without question, there are some people who are broken and cannot be fixed, but even Charles Manson gets parole hearings. As an early sinner turned saint confessed, “Victoria veritatis est caritas.”  Hating is easy but it solves nothing.  Truth requires love built on pillars of forgiveness, opportunity and hope - three strikes for justice.

The Lie Direct

Perhaps the most glorious exaltation of the First Amendment's guarantee of free speech was one that shunned silence in favor of speech, speech and more speech :

Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom.  Such, in my opinion, is the command of the Constitution. It is therefore always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it.

Whitney v. California, 274 U.S. 357, 377 (1927)(Brandeis, J., concurring)(footnote omitted).

Whether or not lying about military heroism had become a large problem in society, or anything close to an imminent evil, Congress made a law abridging, and indeed criminalizing, false speech about receiving a Congressional Medal of Honor.  And, so, picking up Justice Brandeis’ gauntlet, when Xavier Alvarez was charged with violating the Stolen Valor Act, in a brief moment of honesty, he admitted that he never received the medal he claimed to have earned but averred that this lie was protected speech under the First Amendment.  He was right.  Lies, the Court decided, are in fact within the realm of speech guaranteed by the Constitution. 

Given the propensity to fib, this must come as a great relief to many.  We hate to admit this, but we all lie.  Mostly, we prevaricate about things that cannot be easily verified – how we feel, how much we weigh, how much we spent on that coat, what kind of gas mileage the Prius really gets, whether we ate the last brownie, whether we really DO think you look fat in that dress. 

...I did dislike the cut of a certain courtier's beard: he sent me word, if I said his beard was not cut well, he was in the mind it was: this is called the Retort Courteous. If I sent him word again 'it was not well cut,' he would send me word, he cut it to please himself: this is called the Quip Modest. If again 'it was not well cut,' he disabled my judgment: this is called the Reply Churlish. If again 'it was not well cut,' he would answer, I spake not true: this is called the Reproof Valiant. If again 'it was not well cut,' he would say I lied: this is called the Counter-cheque Quarrelsome: and so to the Lie Circumstantial and the Lie Direct.

William Shakespeare, As You Like It , Act V, Scene IV

We are liars, committing lies circumstantial and lies direct.  So, why do we express such pleasure when others lie and get caught?   Athletes lie.  Politicians lie.  Bankers lie. Businessmen lie. Authors lie. Journalists lie.  Lying is such a human trait that Cain  casually deflected his own guilt about killing his brother by lying to God…who, ummm…probably knew he was lying.   

  

When the news broke about Adam Wheeler lying to get into Harvard and to get grants from Harvard and to be fawned over by Harvard faculty, some believed that this would be the great reveal about Harvard.  Harvard did not check any of the blatantly false and ridiculous claims on Wheeler’s application, claims easily found and brought to light by the media.  Harvard was no dupe; it was a willing participant in the fraud (and the absurd claims about admissions officers relying on trust is just nonsense or, if true, idiocy.)  Until a faculty member recognized plagiarism, everyone believed Wheeler to be the boy genius he pretended to be – that is, he lied to get into Harvard but once he was there they did not realize that he was not who he pretended to be.  It was not Wheeler’s lies but Harvard’s willful blindness or total acquiescence that was really criminal.  Yet, Wheeler, ashamed of his behavior, is now a convicted felon…for lying.

Why is Adam Wheeler’s lie about his academic record worthy of incarceration but Xavier Alvarez’ lie about his military record is not? The reality is, it’s not.  Like Alvarez, Wheeler constantly got away with self aggrandized lies.  He made colossal mistakes, but mistakes no greater than Milli Vanilli or Rosie Ruiz.  The prizes he received should not have been awarded because the judges should have known he was copying other people’s work.  This is not to justify the lies or to condone them in any way, but they are not crimes. 

In Alvarez, the Court inched closer to confirming that almost all speech has some value worthy of First Amendment protection.  As uncomfortable as this may make us, it is commendable.  

We do recognize some false speech offenses.  Perjury, for example, was undeniably a crime at the inception of the country and is still a crime.  The offense of perjury is not the lie - it is failing to fulfill a promise, under oath, to tell the truth.  The false oath is an insult to the tribunal and, probably, originally to the Crown.  So, the lie is not at issue, but the promise not to lie and then the blatant repeal of that promise is the offense worthy of punishment.

Similarly, in fraudulent transactions, it is not the lie, but the detrimental reliance on the lie by an innocent who is relieved of his funds or personal effects to the enrichment of the liar.   This is a form of larceny.  What is punished is the theft, not the lie.  But, even this is not a well prosecuted crime.

But, false statements generally?  How is this type of speech punishable as a crime when lying about receiving a high military honor is not?  If content is not punishable and false content is not punishable, then why is telling a lie to a college admissions office or a police officer a crime but telling an audience a lie is not?  The Alvarez case raised hackles because those who are specially recognized for their military honor and bravery are deserving of the nation’s thanks; no one should co-opt such acclaim without earning it.  The lie is repugnant and worthy of disdain, but not the threat of imprisonment.  The legacy of the Alvarez case might well be - and should be - challenges to other speech-related crimes.

The First Amendment protects all speech: true, false, popular, unpopular, political, commercial, funny, stupid, kind, cruel, uplifting and disparaging.  The answer to speech that offends is more speech, not jail time.  Maybe, just maybe, if we all keep talking the truth eventually will come through.

Presumption of Indigence: The Opt-Out Solution

In light of recent Massachusetts case law regarding indigence of criminal defendants, it might be time to change the rules: all criminal defendants should have counsel appointed, be assessed as to ability to contribute, and be provided with the option to waive appointed counsel and hire a private attorney.  As a practical matter, the opt-out process would modify little and cost the state nothing; indeed the Commonwealth might benefit from the change.  If the government guarantees and provides appointed counsel for each criminal defendant while also ensuring that those who can contribute do pay, the system will be far more honest and far more fair. 

Briefly, the Supreme Judicial Court reviewed circumstances in three cases as to which assets may be considered when defendants request appointed counsel.  In Commonwealth v. Porter, 2012 WL 2849456 (July 13, 2012), the defendant was deemed not indigent; if she could not find an attorney to accept the case for the fee the court determined was fair, the defendant could return to court to be deemed indigent but able to contribute.  In Commonwealth v. Mortimer, 2012 WL 2849450 (July 13, 2012), the defendant undeniably had assets, including a retirement account which would be attributable for defense costs minus fees and penalties for early withdrawal; however he had no access to many of the other assets due to prohibitions outlined in the Massachusetts  "slayer statute".  In Commonwealth v. Fico, 2012 WL 2849443 (July 13, 2012), the court affirmed that assets of family members including a girlfriend or parent may be reachable for criminal defense. 

The rules establish a cumbersome, expensive and ludicrous opt-in framework that ends up costing time and money for the already overburdened courts to figure out eligibility and price for a constitutionally guaranteed mandate.  It makes sense to switch the paradigm.

The Framers of the Constitution declared that criminal defendants shall enjoy the right to counsel (whether they like it or not).   The Supreme Court famously determined that this obliges the public to pay for the cost of counsel for anyone who cannot afford a lawyer.  The requirement is that counsel also be paid a reasonable fee for services rendered and that criminal defense attorneys be constitutionally effective in representing clients.  Today’s criminal defense environment encompasses the natural evolution of law, consequences of criminal convictions, the amalgamation of law and science, forensics and social science disciplines.  Criminal defense attorneys must have a wealth of knowledge and access to numerous experts in order to meet the minimum requirements of constitutional effectiveness. 

Although we rarely discuss it, the Massachusetts Constitution does not oblige criminal defendants to enjoy the right to counsel; it provides the opportunity to elect whether or not to obtain counsel. See, MA Const. Pt. 1 Art. 12 Because Massachusetts courts presume the election of counsel, the Commonwealth has already established the framework of an opt-out system. 

To the extent that opting out would affect the recent changes in the Massachusetts public counsel and private counsel divisions of the Committee for Public Counsel Services, it would illustrate the folly of seeking to place more cases into salaried public defender caseloads (which, after a tipping point already present, renders them ineffective as a matter of law opening up new litigation).  Salaried public defenders would only be able to accept cases of the truly indigent wholly unable to contribute to their own defense.  The private bar who accepts court appointed cases, however, would be eligible for the undeniably indigent matters as well as those able to contribute.  Because every defendant will be assigned counsel and assessed for ability to pay, the pool of those indigent but able to contribute may increase thereby necessitating more, not fewer, attorneys able to accept court appointed cases.

The opt-out framework would avoid the confusion, delays and litigation associated with whether or not an individual qualifies for counsel and it would cost less than the system in place.  Rather than requiring criminal defendants to bear the burden of demonstrating indigence by a preponderance of the evidence before having counsel appointed at the public’s expense, all defendants would obtain counsel subject to reimbursement costs where appropriate.

One recent case demonstrates the efficacy of immediately appointed counsel.  As the speedy trial clock ticked away, the court determined that the defendant was not indigent and could afford to pay counsel a fee determined by the court if the defendant could find a lawyer to accept the case for that amount.  The amount was roughly the same as the fee court appointed counsel would make if the case were assigned and went to trial.  If appointed, additional funds would be available for investigators and experts.  

Lawyers have a duty to make their client’s interests paramount.  In this circumstance, the client would be disadvantaged by hiring private counsel as there would be less money available for the required experts.  Therefore, an ethical lawyer would tell the court that s/he could accept the case but only if the client were deemed indigent but able to contribute – not for the lawyer’s fee - but for the ability to represent the client in today’s reality.  Whether the matter is a street crime requiring experts on ballistics or DNA or drug composition or a financial crime where the assistance of forensic accountants and financial expertise is beyond the realm of ordinary knowledge for an attorney, the lawyer would be constitutionally ineffective to accept the matter on a low fee without the ability to hire experts.

Therefore, the defendant would end up being deemed indigent but able to contribute in any event.  However, if the opt-out system existed, the defendant and her attorney would be working together on her case and the time spent on these hearings regarding whether or not counsel should be appointed would have been spent providing access to justice for another litigant.  The opt-out framework would save time and money for the overburdened courts with the net same result, a contribution by the defendant able to so provide.

Just like the system today, the vast majority of defendants would be deemed unable to contribute.  Just like today, a small number would opt out by refusing to submit financial information or by hiring private counsel who would file a notice of appearance at the earliest moment (the only difference would be an affidavit of the defendant affirmatively waiving court-appointed counsel.)  Just as today, some defendants would have an ability to contribute which would be assessed with a revisable payment plan subject to review.  What would be eliminated is the question of whether or not the individual qualifies for counsel.   

Perhaps criminal process should begin with a presumption of indigence with required financial disclosure by which defendants demonstrate their ability to contribute by a preponderance the evidence.  Any defendant who chooses to can opt out and hire private counsel.  The only thing that changes in the opt-out model is that criminal defendants will obtain counsel early on in their defense whether or not they can afford the full cost of hiring a lawyer. 

Art and Craft

“In recognizing the humanity of our fellow beings, we pay ourselves the highest tribute.”

        -      Thurgood Marshall

Law is imperfect.  Built upon habit and common practice, its normal course is to ease forward by increments.  Occasionally, kicking and screaming, stare decisis yields to truth from all corners: social science, “hard” science, technology, and even humanity.  However, our idea of justice, learned but blind, giving all who come before her fair and equal benefit of her wisdom requires some artistic license.

Law, ideally being the construct of people struggling to establish a fair society in which everyone understands what is expected of him and the consequences of violating that public trust - even if pure in its essence - is imposed by humans, and alas we are all fallible.  Often, we allow Justice to be blind, deaf, and stumbling in distress.  The craft of lawyering comes from analytical knowledge beginning in law school and developed in practice.  But, good lawyering involves humility and humanity which we learn from outside our selves.

Unlike the law which is staid, art is revolutionary.  Mozart’s music, soothing to the modern ear, was complex and confusing to his audiences.  Shakespeare’s examples of prejudice, greed and chicanery convey his timeless understanding of the human condition.  In very few words, Langston Hughes told a story of racial animus that resonates through time.  Walt Whitman celebrated himself despite society’s disdain for who he was. 

Sometimes art speaks through generations.  Woodrow Wilson Guthrie's influence on songwriters from Bob Dylan to Bruce Springsteen is legendary -  probably because he used his light to curse the darkness (on the edge of town).  In protest to Irving Berlin’s jingoistic “God Bless America” which showers accolades on mountains, prairies and foaming oceans begging for prayer, Woody Guthrie gave us one of his greatest gifts.  He reminded us that this nation, physically stunning as it is from diamond deserts to endless skyways and golden valleys, is blessed because of who lives here.  He reminded us that within this bounty of beauty are our brothers and sisters, some of whom are suffering.  By refusing to shun the poor and downtrodden, he expresses a love far greater than Berlin’s adoration when he proclaims that no one can make him turn his back on this land, this land made for you and me.  Hold those truths to be self-evident.  Revolutionary indeed.

Sometimes art reflects such truth that it inspires us to understand our world better.  Only then can we improve it – and make no mistake - the lot of lawyers is to improve society.  This may come from preserving the law and it may come from working to change it, but there is no purpose in a lawyer whose vigil is to remain stagnant.  We are champions of freedom; freedom depends on humanity.  Art opens a door, even for the stodgiest attorney, in a way that is all at once uncomfortable and accessible.

Even when art is representative, from Copley's portraits to Adams' photographs, we are forever changed by the experience of seeing through another’s eyes.  This, of course, becomes a markedly different experience when the impressionists give us their vision, one granting freedom to view the world however we choose to see it.  One need never witness war to understand it through art.  From Picasso’s tormenting Guernica to Spielberg’s Saving Private Ryan and Schindler’s List to George’s Hotel Rwanda art can make the most rugged recoil in horror.  Just as quickly, we are universally lifted by Sam Cooke's voice...and Twyla Tharpe's dance...and Charlie Chaplin's antics... and John Newton's Amazing Grace.  And so like war, we learn peace through art.

Art can be raw – exposing itself and us, drilling into our own humanity.  Kanye West’s hip-hop or Robert Mapplethorpe’s images or Natasha Trethewey’s poetry or John Coltrane’s jazz or Verdi’s operas or Michaelangelo’s sculptures all leave an imprint.  Art is supposed to make us think, to get outside of ourselves, to explore without ever leaving our own minds.  Indeed, in art we find compassion for the afflicted, the accused and convicted that betrays us in real life.  We cheer the disabled in The Elephant Man, Mask  and Forrest Gump; we root for the criminals in The Sting, The Town, Goodfellas and The Shawshank Redemption; we praise union activism in Norma Rae and North Country; we connect to characters in every John Steinbeck novel and every August Wilson play.  Art reminds us that we care.

Woody Guthrie wrote with humanity about America.  Although falling short of its own promise, Guthrie's America was strong and glorious and striving.  Guthrie's America was all at once different from and identical to today's America - a place of hope and also where hopes get dashed.  He acquitted Sacco and Vanzetti in the public eye long after their deaths through song (as an aside, future Justice Frankfurter wrote of the injustices of that trial in this 1927 Atlantic article).  In a similar but more timely way, Bob Dylan would later create a storm of interest in Reuben Carter's unfair trial which would prove instrumental in his ultimate release from prison. 

 

Art makes a personal expression of truth comprehensible to strangers; it is a vehicle for communication that transcends time and color and race and nationality and religion and social strata.  Because of that, art speaks to our core humanity.  While law involves curiosity, creativity and craft, it is not art.  It is scholarship and precedent and analysis associated more with restraint than revolution.  But, also it is and ought to be reflective of our humanity.  Only if we seek that higher notion in the practice of law can we create and celebrate a more fair and just society.  

The criminal justice system paints with big, broad, ineffective strokes  - we punish, we incarcerate, we label.  And, it is not working.  When we discount the value art has in the justice system, we dilute our own humanity.  Incredibly, art does create meaningful change in adult prisons.  It gives voice to children housed in juvenile detention facilities.  It keeps folks successful on probation.  It brings people together in our neighborhoods. 

Energy recouped from tapping in to the kindness and compassion art percolates can improve our common condition.  By accessing our own humanity, even lawyers can invite the humanity of others.  We have a duty – all of us – yes, to represent our clients and to preserve and defend the Constitution of the nation and of our state - but also to hold up the mirror of truth.  By defending the Constitution, at a minimum, we pledge to ensure both due process of law and the equal protection of the law.  We, therefore, carry an obligation to address the causes of poverty instead of punishing the poor, to address our own prejudices instead of making presumptions about members of our community.

In tribute to Woody Guthrie on the one hundredth anniversary of his birth, let us take a moment to recognize the humanity in others.

 

Such is the power of art.  Such is the craft of law.