Six: Law

The U.S. Supreme Court and Affirmative Action

Although Piscataway Board of Education v. Taxman never reached the U.S. Supreme Court, it was believed to pose a potential threat to all affirmative action programs. Given the choice of who to retain and who lay off, the Piscataway Board of Education kept the black teacher, Debra Williams, and laid off the white teacher, Sharon Taxman. Both were considered “equally qualified.” According to Reeves, “The white teacher, Sharon Taxman, hired by the same department on the same day as Williams, was laid off because of the school district’s affirmative action policy that expressed preference for retaining members of groups protected by affirmative action if all other qualifications are equal… The board decided to keep Debra Williams to promote diversity for its students—30 percent of whom are African American” (1999, p.155-56). Under these circumstances, I’d suggest that a few rounds of “eenie-meenie-miny-mo” would have been fairer than the actions taken by the Piscataway school board, or at least easier to justify, because the outcome would not have been determined by some political/social agenda. The fact remains: Taxman was let go because she was white.

Taxman sued on the basis of Title VII of the Civil Rights Act of 1964 (Title VII), prevailed in court and got her job back, continued to sue for back pay and was awarded $144,000. When that judgment was appealed to the U.S. Supreme Court, the Black Leadership Forum intervened (sensing a reversal of current affirmative action laws) and helped settle with Taxman out-of-court for $433,500. One cannot help but wonder how the Court would have ruled on Piscataway if it had got that far. This case, like all affirmative action cases, is fraught with a host of ethical, philosophical, legal, political, and practical problems. For example, is preferential hiring (and firing)—designed to right a historical wrong—simply another form of discrimination? Statutes such as Title VII seem unambiguous enough, but are they? Are there different ways of “interpreting” these laws? Do affirmative action programs mask a more subtle political agenda? In other words, are these programs ends in themselves or means to another, not so obvious, end? And how do we achieve worthwhile social objectives, such as the integration of blacks into mainstream America, without creating more division and animosity? What about those (white and black) who do not wish to be integrated?

The U.S. Supreme Court, among other institutions, has struggled to address these issues since the 1960s. To further the discussion, let’s take a look at four precedent-setting cases: University of California Regents v. Bakke (1978), United Steelworkers v. Weber (1979), Wygant v. Jackson Board of Education (1984), and Hopwood v. State of Texas (1996).


Four Affirmative Action Decisions

First, we should consider Title VII itself since it figures into several of these decisions. Title VII quite unambiguously prohibits “public or private employers… from making employee or applicant personnel decisions based on race, color, religion, gender, or national origin” (Klingner and Nalbandian, 2003, p.161). Yet, in United Steelworkers v. Weber (1979), Justice William Brennan goes to great lengths in determining “legislative intent and purpose,” citing several of the debates that preceded that enactment, to assert, essentially, that Title VII does not apply to whites: “Congress’ primary concern in enacting the prohibition against racial discrimination in Title VII of the Civil Rights Act of 1964 was with ‘the plight of the Negro in our economy.’ (Remarks of Sen. Humphrey.) Before 1964, blacks were largely relegated to ‘unskilled and semi-skilled jobs.’ (Remarks of Sens. Humphrey, Clark, [and] Kennedy.) Because of automation the number of such jobs was rapidly decreasing. (See remarks of Sens. Humphrey [and] Clark.) As a consequence ‘the relative position of the Negro worker [was] steadily worsening. In 1947 the non-white unemployment rate was only 64 percent higher than the white rate; in 1962 it was 124 percent higher.’ (Remarks of Sen. Humphrey)” [443 U.S. 193]. In other words, since the legislation was adopted primarily to combat racial discrimination against blacks, only blacks (or other minorities) have standing to seek a remedy under Title VII. White people do not. It is hard to argue with his reasoning; after all, the legislative intent is quite clear. But Brennan’s conclusion raises a perplexing dilemma: does Title VII outlaw racial discrimination itself, or only discrimination against minorities? The Supreme Court Justice believes the latter: “Respondent’s argument rests upon a literal interpretation of §§703(a) and (d) of the Act… But it overlooks the significance of the fact that [the plaintiff’s] plan is an affirmative action plan voluntarily adopted by private parties to eliminate patterns of racial segregation” (ibid). Taken literally, he seems to say, Title VII would accomplish the exact opposite of its “intent.”

This canonization of reverse discrimination, however, had already been undermined by University of California Regents v. Bakke (1978). Allen Bakke, twice rejected by the medical school of the University of California at Davis, sued under Title VI of the Act, “which provides, inter alia, that no person shall on the ground of race or color be excluded from participating in any program receiving federal financial assistance” [438 U.S. 265]. The medical school’s admissions program was divided into a “regular” category and a “special” category. The former excluded applicants whose GPAs fell below 2.5 on a scale of 4.0, then rated the remainder according to other criteria, such as overall GPA, science courses GPA, Medical College Admission Test (MCAT) scores, letters of recommendation, and so on. All this resulted in a “benchmark” score from 1 to 100. The latter consisted of applicants (mostly minorities) who considered themselves economically or educationally disadvantaged. These special candidates “did not have to meet the 2.5 grade point cutoff and were not ranked against candidates in the general admissions process” (ibid). Bakke applied to the medical school in 1973 and 1974, was considered only under the regular admissions policy, although “[i]n both years special applicants were admitted with significantly lower scores than respondent's” (ibid). Bakke then sued on the basis of Title VI and eventually gained (court-ordered) admission. The Supreme Court held that “[t]he judgment below is affirmed insofar as it orders respondent's admission to Davis and invalidates petitioner's special admissions program, but is reversed insofar as it prohibits petitioner from taking race into account as a factor in its future admissions decisions” (ibid). In other words, racial quotas in admissions (which many believe to be the heart and soul of affirmative action) were struck down, but race could be “taken into account” along with other factors. This rather fuzzy ruling demonstrates the Court’s ambivalence toward affirmative action.

A similar case, Hopwood v. State of Texas (1996), was denied certiorari by the Court, but if the decision in that case had been affirmed, the last part of Bakke (that race could be taken into account) would have been overturned. Cheryl Hopwood had been denied admission to the University of Texas Law School because affirmative action programs had reserved space for less qualified minority applicants. She sued the State of Texas and won. The Fifth Circuit, in applying the Supreme Court’s “strict scrutiny” doctrine—i.e. that racial classifications are constitutional “only if they are narrowly tailored measures that further compelling governmental interests” [78 F. 3rd 932]—found that “each applicant for admission to the law school was classified by race, and his application was treated differently according into which of those three racial classifications it fell” (ibid). Since the panel found that “no compelling governmental interests” were served, the university’s affirmative action program was ruled unconstitutional: “In summary, we hold that the University of Texas School of Law may not use race as a factor in deciding which applicants to admit in order to achieve a diverse student body, to combat the perceived effects of a hostile environment at the law school, to alleviate the law school's poor reputation in the minority community, or to eliminate any present effects of past discrimination by actors other than the law school. Because the law school has proffered these justifications for its use of race in admissions, the plaintiffs have satisfied their burden of showing that they were scrutinized under an unconstitutional admissions system” (ibid). The Supreme Court denied certiorari because the affirmative action program in question had been discontinued. Nevertheless, Hopwood came to be seen as a de facto reversal of Bakke.

Wygant v. Jackson Board of Education (1984), on the other hand, asked: Did a collective bargaining agreement provision for race-based layoffs violate the Equal Protection Clause of the Fourteenth Amendment? Thus, it was very similar to Piscataway. The collective bargaining agreement between the Jackson Board of Education and a teacher’s union specified that although greater seniority would protect teachers from layoffs, a certain percentage of minority teachers (with less seniority) would also be protected. When a number of white teachers were laid off, and black teachers with less seniority kept their jobs, Wendy Wygant—a laid off white teacher—sued. Wygant lost her case in both district and circuit court, but the Supreme Court granted certiorari. Finally, “In a 5-to-4 decision, the Court argued that Wygant's layoff stemmed from race and, therefore, violated the Equal Protection Clause” [476 U.S. 267], and that the “layoff preferences incorrectly addressed injurious prior discriminatory hiring practices since ‘denial of a future employment opportunity [was] not as intrusive as loss of an existing job.’” (ibid). The Piscataway Board of Education used strikingly similar justifications for its lay off decision—promoting diversity for students, correcting past discrimination, etc.—that found no judicial sympathy in Wygant. In short, hiring preferences for minorities may be used if they pass the Court’s “strict scrutiny” test and are “narrowly tailored” to achieve specific ends, but such methods cannot be used for lay off procedures.

Nearly fifty years since the crest of the Civil Rights Movement and the fate of affirmative action hangs in the balance, its future as a form of public policy unknown. I cannot help but wonder: is William Brennan right? Does Title VII apply specifically to minorities and no one else? His determination of “legislative intent” in unarguable, but his conclusion raises a larger, more troubling question: how can “reverse discrimination” bring the desired result—that is, (in the words of Dr. Martin Luther King Jr) a society that judges people by the content of their characters, not by the color of their skin. Common sense says that it cannot, that discrimination is harmful, no matter who the victim. Accordingly, the Supreme Court has delicately skated the boundaries of constitutional protection afforded ALL Americans and equitable solutions to social ills no one should ignore. Affirmative action gains or loses favor according to the prevailing political winds. We hear talk about a “level playing field,” but the history of racial quotas and preferential treatment suggests that the field is being made more level for some than others.


References

Hopwood v. State of Texas, 78 F. 3rd 932 (1996).

Klingner, Donald E. and John Nalbandian. Public Personnel Management: Contexts and Strategies. 5th ed. Upper Saddle River, NJ: Prentice Hall, 2003.

Reeves, T. Zane. Cases in Public Human Resource Management. Belmont, CA: Wadsworth, 1999.

United Steelworkers v. Weber, 443 U.S. 193 (1979).

University of California Regents v. Bakke, 438 U.S. 265 (1978).

Wygant v. Jackson Board of Education, 476 U.S. 267 (1984).


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Judicial Review

One of the functions of government is to “police” the general population—i.e., enforce the law—but can the government police itself? And if so, what branch is best suited to do this—Executive, Legislative, or Judicial? This question forms the core of the debate concerning such issues as judicial review and the policy-making effects of court decisions—which is to say, expansion of judicial power. From a historical perspective, an active Judiciary (which is how that Branch has developed since 1789) is the Federalist position, while the Anti-Federalists would prefer a much more limited role. Let’s refer to the former position as the Hamiltonian and the latter the Jeffersonian. In a Jeffersonian system there would be no judicial review because the Legislative Branch trumps the other two. And indeed, Article III of the U.S. Constitution (a document which Jefferson himself regarded as far too powerful) does not provide for the power of judicial review. Section 1. calls for the creation of a Supreme Court and authorizes Congress to create “inferior” federal courts; Section 2. lists the powers and jurisdictions of the Supreme Court: “…to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State…” and so on. Nowhere does it say the Court may review legislative acts.

Chief Justice John Marshall, apparently, believed the power of judicial review to be implicit in the Constitution, holding (in Marbury v. Madison), “The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written, To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative and repugnant to it; or that the legislature may alter the constitution by an ordinary act.” In other words, legislative acts must conform to the written Constitution, or the Constitution be changed. This implies that laws “repugnant” to the Constitution are null and void. Suppose, for example, Congress authorized the U.S. Department of Justice to use torture against terrorist suspects—a violation of the Eighth Amendment. Such laws, contradicting the Constitution, cannot be allowed to stand; that is the Hamiltonian view.

Robert Dahl’s article, on the other hand, agrees with the Jeffersonian position. “One influential view of the Court” he writes, “is that it stands in some special way as a protection of minorities against the tyranny by majorities" (2002, p.64), and cites the eighty-six provisions of federal law declared unconstitutional over 167 years. Then, referring to such figures as Aristotle, Locke, Rousseau, Jefferson, and Lincoln, holds that “democracy means, among other things, that the power to rule resides in popular majorities and their representatives…” and “to affirm that the Court supports minority preferences against majorities is to deny that popular sovereignty and political equity, at least in the traditional sense, exist in the United States; and to affirm that the Court ought to act in this way is to deny that popular sovereignty and political equity ought to prevail in this country" (ibid). Dahl goes on to assert that Congress has just as much right to “interpret” the Constitution as the Judiciary, and that the Chief Executive indirectly makes policy by appointing judges who (supposedly) agree with him politically. All this tends to make judicial review unnecessary and unwise.

Needless to say, the philosophical and ideological issues raised above cannot be resolved here in a (relatively) short essay. But I believe Dahl’s reasoning is flawed thusly: it is the Constitution that protects minorities against the tyranny of majorities. That is why the States insisted upon a Bill of Rights as a condition of ratification; that is also why Amendments Thirteen (banning slavery), Fifteen (mandating civil rights), Nineteen (women’s suffrage), Twenty-Four (more civil rights), and Twenty-Six (giving 18 year-olds the vote) were added. The Supreme Court, in cases of judicial review, is not defending minority rights directly, but comparing legislative acts to the Constitution. In upholding the Constitution as the Law of the Land and striking down any repugnant to it, minorities are being defended indirectly. The (unintended perhaps) consequences of judicial review, as it is practiced, is de facto policy making. For example, as a result of Brown v. the Board of Education, school desegregation was mandated. Roe v. Wade legalized abortion (and implicitly upheld women’s rights). And in the Presidential Election of 2000, the Supreme Court, in Bush v. Gore, counteracted Florida’s high court and in effect handed the presidency to George W. Bush. No one will claim that the U.S. Supreme Court ought to be choosing presidents, but it seems unavoidable that Court decisions, if they are at all binding, will have practical consequences in real life.



References


Dahl, Robert A. "Decision Making in a Democracy: The Supreme Court as a National Policy Maker." Rpt. in Courts, Judges, & Politics: An introduction to the Judicial Process, 5th ed. Walter F. Murphy, C. Herman Pritchett, and Lee Epstein. Boston: McGraw-Hill, 2002. 64-67.

Marbury v. Madison. 1 Cranch 137 (1803).


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The Bar

Like any bureaucracy, the judicial system—and those who serve it—faces an ongoing struggle between the ideal (the cause of justice) and the practical (the reality of legal practice and procedure). Inevitably, it seems, when conflict arises the ideal must be put aside for practical reasons. This is especially true in the criminal justice system where, for example, plea-bargaining has become the modus operandi of the courts. As an abstract concept, justice demands that the innocent be vindicated and the guilty punished—punished fittingly according to the crime. Yet plea-bargains routinely circumvent “justice” by rewarding the accused in exchange for not tying up the courts with lengthy, expensive public trials. This practice has been criticized, of course, and in some jurisdictions officials are threatening to ban it. According to Mirsky and Kahn, “Too many criminals get off easy, [public officials] insist; take away plea bargains, and more will get the punishments they deserve. But these officials may want to consider what happened in the Bronx when prosecutors there tried the same thing. The ban clogged the courts, made for less speedy justice, and may actually have returned more guilty defendants to the street” (1997, p.56). Constitutional questions aside (the right to a speedy trial), one has to wonder if justice is truly served when an attempt to “get tough” actually results greater rewards for criminals. Again, “To make plea bargaining work judges must offer sentences attractive enough to convince defendants to forfeit their constitutional right to a jury trial… Knowing that the system simply cannot try every pending case, defendants have learned to insist on the best deal. Consideration of the prosecution's evidence, the defendant's culpability, or the victim's interests rarely comes into play” (ibid). Thus, plea-bargaining, by its very nature, tends to be coercive.

That is also the gist of Abraham Blumberg’s piece, “The Practice of Law as a Confidence Game,” in our textbook. He writes, “the extremely high conviction rate [about 90 percent] produced without the features of an adversary trial in our courts would tend to suggest that the ‘trial’ becomes a perfunctory reiteration and validation of the pretrial interrogation and investigation” (2002, p.222). My question: are our criminal courts in danger of becoming kangaroo courts, such as exist in non-democratic nations (China, North Korea, the old Soviet Union, etc.)? In these systems, the verdict of the accused is predetermined; the “trial” merely rubber-stamps what has already been decided. But Blumberg blames the bureaucratic nature of the courts themselves: “…the variable of the court organization itself…possesses a thrust, purpose, and direction of its own. It is grounded in pragmatic values, bureaucratic priorities, and administrative instruments. These exalt maximum production and the particularistic career designs of organizational incumbents, whose occupational and career commitments tend to generate a set of priorities. These priorities exert a higher claim than the stated ideological goals of ‘due process of law,’ and are often inconsistent with them” (ibid). This implies that the ordinary citizen, who finds himself accused of a crime he may or may not have committed, and who is in danger of being deprived of life, liberty, and property, is at a terrible disadvantage.

The moral ambiguities, produced by these dilemmas, are at the heart of the dissatisfaction “a majority of the practicing bar express… with their profession” (Murphy et al, 2002, p.205). F. Lee Bailey asserts that he has defended clients he knew to be guilty, some of whom were acquitted. Is it right that the guilty escape punishment? Do the guilty even deserve legal representation in court? Several of my student colleagues (in other CJ classes) have indicated “no” to both questions. But in my view, we must make a distinction between “actual” guilt as opposed to “legal” guilt. In American jurisprudence we are presumed innocent until proven guilty in a court of law. If the prosecution is UNABLE to prove guilt—through a lack of evidence, or whatever—the accused cannot be held criminally liable regardless of how guilty he or she may be. That is the law. It exists, primarily, to prevent innocent people from being railroaded into jail, or having the criminal justice system used as a convenient way of stifling political dissent. Novelist William Gaddis said, “Justice?—You get justice in the next world, in this world you have the law” (qtd. in Gaines et al, 2001, p.58). Although the ideal is perfect justice, it seems unreachable in this imperfect world. According to the various readings at the end of Chapter 5 of our text, professionalism in the legal community is on the decline. Market based values are having an undue influence. One lawyer I met, Chip Goldstein, told our legal studies class that those planning on law school should deeply consider if that’s really what they wanted to do. He himself seemed dissatisfied and was planning on a career change. Law can be a noble calling, I believe, but its nobility is too easily tarnished in an ignoble world.



References

Gaines, Larry K., Michael Kaune, and Roger Leroy Miller. Criminal Justice in Action: The Core. Belmont, CA: Wadsworth, 2001.

Mirsky, Chester L. and Gabriel Kahn. “No bargain.” (plea bargaining) The American Prospect, May-June 1997 n32 p56(9).
Murphy, Walter F., C. Herman Pritchett, and Lee Epstein. Courts, Judges, & Politics: an Introduction to the Judicial Process 5th ed. Boston: McGraw-Hill, 2002.

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Presumption of Innocence

Although "innocent until proven guilty" appeals to our sense of fairness (and justice), there is a practical, rational, and scientific basis for the legal presumption of innocence. It has to do with the necessity of proof--i.e. it is not enough to suspect a person committed a crime, or even to somehow know they did; it must be proven. Legal guilt is altogether different from factual guilt. Furthermore, proving guilt means "proving a positive." Proving innocence, on the other hand, would require "proving a negative," and that is usually much harder to do. Suppose, for example, an acquaintance of yours is found murdered; time of death--between 12:00 AM and 3:00 AM Monday morning. An informant suggests to police that you might have had something to do with it. You have no alibi: on Monday morning between midnight and three you were home in bed asleep, alone. No one can vouch for your story. If you are accused of the murder, should you be presumed innocent until proven guilty or vice versa? If the former, proving guilt would be relatively simple: all prosecutors have to do is produce evidence beyond a reasonable doubt--a witness, a confession, photographs or videotapes, and so on. Assuming the evidence is real and not fabricated, it would be difficult to maintain innocence. On the other hand, if you really are innocent, it would be virtually impossible to produce such evidence unless it is fabricated. But what if there was an assumption of guilt--you are presumed guilty and must prove otherwise? Inability to provide an alibi would then be sufficient for a conviction--for how do you prove you didn't do it? If there was a presumption of guilt, most people would be unable to defend themselves. Suppose you're accused of "providing assistance to terrorists" and there's a presumption of guilt. How do you prove that you've never done that? So proving a negative is extremely prejudicial in the legal system.

The fact that something is prejudicial means the balance of power between the state and the individual has shifted. "Burden of proof" is supposed to be the equalizer, working in an inverse manner: where the burden is placed diminishes power on that side and enhances it on the other. If the burden is on the defendant (to prove his innocence), the state has magnified its power; if the burden is on the state (to prove guilt), the defendant is empowered. The American system, of course, prefers to empower those accused of crimes by placing the burden on the state. This preference has to do with an existing imbalance that is quite extreme--for the state is immensely more powerful than the individual. For example, the state theoretically has unlimited resources to pursue a prosecution--it can lavish money on investigations, forensic lab work, expert testimony, teams of high powered prosecutors; what does an individual have? If you're enormously wealthy you might be able to hire a "dream team" of defense attorneys, but if you're indigent you'll have to depend upon a public defender. Since the accused is already disadvantaged, the burden of proof is placed upon the state.

That's the theory, anyway. But as we know, in the gritty, grimy world of reality pure theories seldom survive. For example, there is now a shift not just in the burden but in the standard of proof--in criminal matters "beyond a reasonable doubt" for a conviction: "Through the 19th century, reasonable doubt was taken to include an element of moral certainty. This assumed that jurors brought with them personal observations, experience and an understanding of the nature of things and applied reason and thought to evaluating the evidence. Over time, that concept has changed. In instructing juries, reasonableness no longer means good judgment or 'based on reason.' Rather, it is taken to mean articulable doubt - a doubt for which a specific reason can be given. This means that a generic doubt - 'the prosecutor's case just didn't convince me' - is not acceptable; the juror must be able to point to a specific deficiency in the prosecutor's case or a specific proposition in the defense" (Ascribe, 2003). The "shift" has emerged from the way jury instructions are written. These instructions are, in practice, a way of limiting juror independence, and what that boils down to is manipulation--i.e. either the prosecution or the defense wielding undue influence upon the jury's fact-finding mission. Jury instructions, it turns out, are written by attorneys from both sides and the judge decides which he will use (Europe Intelligence Wire, 2003). Since judges deal with prosecutors more often, those instructions tend to be selected. According to University of Arkansas law professor Steve Sheppard, "The state no longer has to prove its case, the defense does. The courts have moved the jurors' goal from a vote for the state if the state can convince them of a fact to a vote for the state unless the defense can convince them of a certain type of doubt" (qtd. in Ascribe). This shifts the balance of power, replacing presumption of innocence with a presumption of guilt. Again, "A juror who votes to convict only needs to say, 'I think he is guilty,' and does not need to give a reason. But a juror who votes to acquit must articulate precisely why he doubts the state's case" (ibid). So although our textbooks may detail how things are supposed to work in the system, we should all be aware of how easily abuse can creep in and tilt the scales of justice.

References

"No Longer Presumed Innocent: Shift in 'Reasonable Doubt' Concept Jeopardizes Presumption of Innocence." Ascribe Higher Education News Service, May 15, 2003 pNA.

"Whatever happened to the presumption of innocence?" Europe Intelligence Wire, Nov 1, 2003 pNA.


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Problems with Juries


It does not seem possible ever to achieve a “perfect” system of justice—where no one is capable of deception, where all relevant facts are fully revealed, where there is no vestige of bias or prejudice, where social implications are clear, and where no error can be made. Trial by jury, therefore, appears to be the best that we can do with an “imperfect” system. These imperfections are listed in the following criticisms:

Voir dire procedures—although a jury, theoretically, should be impartial and unbiased, voir dire, as currently practiced, aims for the exact opposite. Prosecutors try to eliminate prospective jurors they think will be too sympathetic toward the defendant and empanel those more likely to convict. Defense attorneys, on the other hand, try to eliminate unsympathetic jurors and select those who might acquit. Supposedly, the adversarial nature of the proceedings balances things out and achieves a truly unbiased jury, but this assumes two things: a) that counsel are competent, even to the extent that they can successfully predict a juror’s verdict; and b) that the voir dire procedure itself is fair and balanced. According to Murphy et al, “One common complaint is that the process of selecting jurors is too time consuming, sometimes taking longer than the trial itself” (2002, p.367). The implication, of course, is that fact finding in court—or the trial itself—is less important than preparing a weapon (sympathetic jurors) to be aimed at one’s opponent. This undercuts the idea of a “fair trial.”

Creating bias—one is supposed to be tried by a “jury of one’s peers,” an idea originating from the common law of England. One’s peers were held to be members of one’s own class. In America this translates to a representative cross-section of society. The alleged bias kicks in because “most states allow numerous exemptions from jury service. Often professionals like lawyers, doctors, teachers, professors, architects, social workers, and public officials are automatically excused…” (ibid). When an elite, upper tier of the polity is excused, the biases held by middle and lower tiers are not sufficiently balanced (we cannot seriously expect, or demand, jurors with no bias whatsoever. The best we can hope for is a mix of conflicting biases that tend to cancel one another out). Again, “The all-too-frequent result is a jury composed mostly of people who are unemployed or elderly and looking for something to do, or too poor and uneducated to give answers that set off lawyer’s alarms” (ibid). One would think that persons most capable of understanding a jury’s “impartial” function, of sifting through facts and conflicting testimonies, of applying the rudimentary standards of law, would be the most sought after. But in fact, these are the very persons who are automatically excluded—i.e. lawyers, doctors, teachers, etc. Otherwise, highly intelligent and independent minded jurors, also, are apt to be excused on voir dire.

“Jury stacking”—as the current hit movie “Runaway Jury” dramatizes, jury selection in high profile cases has become big business. Indeed, there are professional consulting firms, commanding big fees, which specialize in “profiling” prospective jurors. This is one example of social science being applied to decidedly unscientific ends. Suppose the government brings an anti-trust suit against a large corporation, such as Microsoft. The corporation can afford to hire the finest lawyers available, who then hire a jury consultant to profile prospective “ideal” jurors. Results: the ideal juror will be white, Anglo-Saxon, protestant, married, 2.3 children, median income of $55,000 per annum, 35-55 years of age, bachelor’s degree, etc. This profile will be supported by vast amounts of social science data, to an accuracy of plus/minus 5%. By insisting that a jury be comprised of these types of individuals (through elimination of those who do not fit the profile), the defense is “stacking the deck” in its favor. Assuming the government’s and the defense’s cases are equally compelling, the stacked jury is more likely to find for the defense.

Peremptory challenge abuse—specifically, using the peremptory challenge (which requires no justification) during voir dire to exclude jurors on the basis of membership in a particular group. In this way, people can be removed because they are black, white, women, men, elderly, young, poor, rich, or what have you. I call this “abuse” because it is practiced on the basis of the ecological fallacy—that is, the belief that ALL members of a particular group share certain common characteristics. For example, if one thinks that Latinos are religiously superstitious, then all Latinos are religious and superstitious. Thus, a lawyer defending a person who raped a nun or killed a priest would use his peremptory challenges to dismiss any Latino juror from the pool. This ignores the fact that Latinos are just as capable of “impartiality” as anyone else. In the perennial black/white struggle, this has resulted in blacks being excused from juries trying black defendants. But the spectacle of black defendants being tried by all-white juries—especially if the crime was against a white victim—is the stuff of ignoble legend.

All of the criticisms listed above revolve around one theme: attempts to circumvent the unbiased and impartial nature of justice. This is surprisingly easy to accomplish because human nature itself is rarely unbiased and impartial. Individuals with abundances of these qualities are usually held to be “lacking guts and conviction,” to “waffle on the issues,” or be known as “moral relativists.” Even though we expect judges to be aloof and above the fray—paragons of disinterest—they are human too. It is not impossible to lure a judge into the partisan bickering. According to Judge Frankel’s piece (pp 379-82), the threat of being reversed on appeal is one method of “judge baiting”: “Nobody doubts the range of adversary implications in our description of the judge as being ‘on trial.’ Among the more explicit references to trying the judge are the usually proper things lawyers must do or say ‘for the record.’ But propriety or no, the statement may have a cutting edge.” Just as defense attorneys sometimes put the police department on trial (as in the O.J. Simpson case), baiting the judge to abandon his commitment to “impartiality” is one way to lose the battle but win the war. The jury system is designed to be a protection from governmental misconduct (using judges as agents), but no one in a court of law is more qualified to determine the facts of a case. Skillful lawyers capable to manipulating juries will most likely be impotent against a judge. In highly publicized cases—such as the current D.C. sniper case now in Virginia Beach courts—a bench trial may be the defendant’s best shot. You cannot voir dire a judge, you create bias at your own risk, and it is quite impossible to “stack the deck” in your favor.



References

Murphy, Walter F., C. Herman Pritchett, and Lee Epstein. Courts, Judges, & Politics: an Introduction to the Judicial Process 5th ed. Boston: McGraw-Hill, 2002.

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Stare Decisis

After much reading on the common law doctrine of stare decisis, it seems safe to reassert two things: a) law is more art than science; and b) law is whatever a judge says it is. True scientific principles are incontrovertible, despite the passage of time or changing of personalities. For example, the Pythagorean Theorem is as valid today as it was 2000 years ago. It cannot be distinguished, limited, ignored, overruled, or extended, as legal precedents are. And the mere fact that a judge (especially a federal judge or Supreme Court Justice) states an opinion, seems to give it the force of law. Schechter Poultry Corp. v. United States (1935) and Carter v. Carter Coal Co. (1936) both state that the federal government cannot regulate labor relations. But in National Labor Relations Board v. Jones & Laughlin Steel Corp. (1937), which contradicts Schechter and Carter, Chief Justice Hughes declares, “These cases [Schechter and Carter] are not controlling here.” It is so, simply because he said it.

Undoubtedly the mother of all precedents in American law is Marbury v. Madison. Chief Justice Marshall, stuck between a rock and a hard place, struck down part of the 1789 Judiciary Act, saying, “…the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.” This case, of course, created the power of judicial review—an item mentioned nowhere in the U.S. Constitution. In the years that followed, whenever issues of constitutionality arose, courts had only to cite Marbury as the “controlling” precedent. The linear advance of similar cases—or at least cases containing similar principles—creates a body of law, itself the legal principle of stare decisis (“let the decision stand”). That is why this particular aspect of common law is referred to as “judge-made law.” In the absence of constitutional texts or statutes, there are only records of past decisions, and the precedents they contain, to act as a guide in deciding current disputes. And if one doubts the preeminence of this legal source, consider this fact: law schools spend little time poring over constitutions and statutes; it’s almost all devoted to case studies. The decisions made in these selected cases are, presumably, “the law.”

It is not altogether clear, however, why a decision made in one particular case should become a precedent at all. Any appeal to rationality, consistency of principle, or scientific application simply falls apart when one considers how easy it is for judges to bend the precedents or break them, however it suits their purpose. Distinguishing a precedent involves putting enough “spin” on it so as to make it irrelevant; limiting a precedent says, “It applied to that case only, not to this case…”; ignoring a precedent is self explanatory; overruling a precedent is to admit the court made a mistake. All this tends to greatly increase judicial discretion, since an intelligent and determined jurist can use any number of methods to fashion the law as he sees fit. The most fascinating examples of these torturous procedures involve Hirabayashi v. United States (1943) and Korematsu v. United States (1944), in which the Justices first decry the “odious” nature of racial discrimination, then proceed to issue rulings that discriminate! In Hirabayashi Chief Justice Stone wrote, “distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” And in Korematsu Justice Black wrote, “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect.” Nevertheless, the Court upheld laws that set a curfew for Japanese-Americans (natural-born U.S. citizens) and confined them in concentration camps. Later on, Stone’s and Black’s disingenuous prose became precedent material supporting desegregation and civil rights cases. The ironies here are almost overwhelming. On the face of it, stare decisis appears to have been thrown out the window; but on further reflection, it’s obvious that the “decision” was redefined—the dicta became decisis, and vice versa.



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Statutory Interpretation

Statutory interpretation (like constitutional interpretation) is really about the inadequacy of language as a tool of communication, as Felix Frankfurter writes, “The problem derives from the very nature of words. They are symbols of meaning. But unlike mathematical symbols, the phrasing of a document, especially a complicated enactment, seldom attains more than approximate precision” (p489). Words are inadequate because most of them have multiple meanings. The specific meaning of a word is usually ascertained from context, tone of voice (when spoken), and other variables. If crystal clear meaning is what we desire, statutes should perhaps be written as mathematical formulae. For example, sin² u + cos² u = 1 has only one possible interpretation; there is no need to pile up reams of scholastic research as to its “meaning.” Nevertheless, I suspect that much of the ambiguity surrounding statutory language has more to do with POLITICS than some abstract, esoteric inquiry into the meaning of words. For instance, in our everyday (spoken) conversations, ordinary language is very adequate indeed—when your mother says, “Don’t forget to take out the trash,” you know exactly what she means. In this sense, interpreting legislation is a bit like interpreting the Bible: one tends to read it according to one’s own agenda.

Of the four contexts or approaches to interpretation—legislative intent, legislative purpose, public choice, and dynamic interpretation—I personally place more stock in the first two than the last two. First, I doubt that perceiving legislative intent is as difficult as some make it out to be. A simple reading of the statute should suffice. Unless the language is hopelessly obtuse, even a layman should be able to understand what it means. 18 U.S.C. @ 924(c)(1) says that anyone who uses a machine gun in connection with a drug offense shall receive a prison sentence of 30 years. Justice O’Connor goes to great lengths dissecting the meaning of the word “use,” but in my view that is a smokescreen hiding her animosity toward drugs and drug users. Such statutes are aimed against drug related violence, especially the hyper-destructive potential of machine guns. It is ridiculous to assume lawmakers had the barter value of weapons in mind when writing that statute. Second, legislative purpose is similar to intent, except that it refers to an end to be achieved, an objective to be accomplished. For example, Virginia law states that possession of burglary tools is in itself prima facie evidence of criminal intent. The intent of this law is to make it easier for law enforcement to apprehend and jail burglars. The purpose is to enable such evidence to be used in a court of law. There is a subtle shade of difference in meaning, but purpose and intent seem to work in tandem. Third, “public choice” and “new textualism” recognizes (rightly) that finished statutes are rarely of single authorship—that they represent a series of compromises and consensus agreements. But the idea that legislative intent and purpose cannot be understood, or may not even exist, is a bit hard to swallow. It is similar to the argument that since Congress consists of “435 members of the House of Representatives and 100 senators,” there can be no single legislative intent or purpose. Maybe there are 535 intents and purposes instead. But that is to deny the collective voice or will, as when we speak of “the U.S. government” or “the American public.” These are extant, albeit aggregate, realities. Fourth, dynamic interpretation compares statutes to works of literature, whose meanings tend to change over time. One Founding Father—Thomas Jefferson—would probably agree, since he advocated the revocation of ALL laws and constitutions after a period of 18 years! Nevertheless, using this approach while eschewing the previous three makes one wonder why laws should be written down in the first place. The comparison to literature is misleading. Literature was never written to coerce human behavior (religious scripture being an obvious exception), whereas statutes are written for precisely that reason—and only that reason. In a way it is hard not to agree with Jefferson, for statutes drafted in, say, the 17th century, can scarcely be expected to apply to today’s world. Should 21st century jurists be involved in “interpreting” laws that govern things like blasphemy, impiety, the status of slaves, or what kinds of sexual acts are permissible between husbands and wives? Interpretation, in other words, can be, and often is, tantamount to rewriting laws already written.

The two cases: in Smith v. United States [508 U.S. 223 (1993)] the Supreme Court upheld the sentencing of John Angus Smith to 30 years for “use” of a machine gun in connection with a drug offence, even though the defendant had used the MAC-10 machine gun not as a weapon but as barter—in trade for cocaine. As mentioned above, 18 U.S.C. @ 924 (c)(1) is the statute in question. Here, the Court interprets the statute literally (which is as much “interpretation” as even the most liberal reading), taking the words at face value. Thus, if the statute mandates a 30-year prison sentence for use of a machine gun in connection with a drug offence, the manner in which it is used is irrelevant. In other words, any possible definition of the word “use” is fair game. If the guy had used the machine gun to prop open a window during a drug deal, the outcome would have been the same. Conceivably, even if Smith had legally sold his MAC-10 to a gun shop, then used the proceeds to buy drugs, that could also be construed as “use.” Justice O’Connor’s arguments, then, are completely disingenuous. It is the sort of logic-chopping a second-year philosophy student would indulge in. Justice Scalia’s dissent, on the other hand, accords more with common sense: “In the search for statutory meaning, we give nontechnical words their ordinary meaning.” In United Steelworkers v. Weber [443 U.S. 193 (1979)] the Court does the exact opposite with Title VII of the Civil Rights Act of 1964. Title VII quite unambiguously prohibits “public or private employers… from making employee or applicant personnel decisions based on race, color, religion, gender, or national origin” (Klingner and Nalbandian, 2003, p.161). Yet Justice Brennan goes to great lengths in determining “legislative intent and purpose,” citing several of the debates that preceded the enactment, to assert, essentially, that Title VII DOES NOT apply to whites. In other words, since the legislation was adopted primarily to combat racial discrimination against blacks, only blacks (or other minorities) have standing to seek a remedy under Title VII. White people do not. It is hard to argue with his reasoning; after all, the legislative intent is quite clear. But his conclusion is based on a fallacy—that is, that the legislation outlaws discrimination only against minorities, not just discrimination in general. Common sense tells us that two wrongs do not make a right, and if it is against the public interest to discriminate against minorities, all forms of discrimination are harmful. But in both Smith and United Steelworkers, it is very clear that statutory “interpretation” serves the purpose of political expediency.


References

Klingner, Donald E. and John Nalbandian. Public Personnel Management: Contexts and Strategies. 5th ed. Upper Saddle River, NJ: Prentice Hall, 2003

Murphy, Walter F., C. Herman Pritchett, and Lee Epstein. Courts, Judges, & Politics: an Introduction to the Judicial Process 5th ed. Boston: McGraw-Hill, 2002.


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Constitutional Interpretation

The problems associated with constitutional interpretation are similar to those of statutory interpretation (see previous assignment)—namely, the inadequacies of language. That the U.S. Constitution should require “interpretation” reveals its nature as something more akin to poetry than to a technical treatise. Although some parts of it are technical and unambiguous—the parts that detail how the national government is to be arranged, for instance—other parts are rather vague. In some cases that vagueness is unintentional, but in others it is deliberate. An example of the former might be the First Amendment’s opening phrase, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” This is generally held to bar the government from setting up an “official” American religion, but the possibilities of interpreting that phrase are endless. An example of the latter is in Article I, Section 2, which devises a method of census taking for the sake of determining representation in the House: “Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.” The very last part—“three fifths of all other Persons”—refers to slaves.

Modes of Interpretation:

The Text—the constitutional text itself is misleading in some aspects, insufficient in others. Yet, Americans tend to treat the Constitution as though it were some holy scripture—the divinely inspired Word showing the way to perfect government. I remember a few years ago, during the Iran-Contra scandal, it was a fad among senators and congressmen to carry copies of the Constitution around in their pockets. It made them “real” Americans, I suppose. The seven Articles of the main body are straightforward enough; it is the Bill of Rights—Amendments I through X—that attract most of the controversy. If one were to insist on constitutional literalism (accepting the words at face value), a host of absurdities arise. For example, let’s again look at the First Amendment: “Congress shall make no law respecting an establishment of religion…” It does not say, however, that the Executive Branch or the Judiciary cannot establish a religion. Indeed, President Bush could establish one religion and Chief Justice Rehnquist another, and each could outlaw the other’s religion, and a civil war in Washington could result—all in accordance with the text of the Constitution!

Stare Decisis and Doctrinal Analysis—obviously, the functional parts of the Constitution are the “webs of doctrine” woven around the textual words—not unlike theological doctrine based upon the Bible. Such doctrine is contained within precedents, according to the principle of stare decisis. The doctrine actually serves as law. The best-known example is the “separate but equal” ruling from Plessy v. Ferguson (referred to on p.533), whose intent was to maintain racial segregation. Problem is, as society changes moral and ethical values change. Accepted doctrine from the 19th century offends 20th and 21st century Americans, so doctrine changes. This happens either through constitutional amendments, overturning of previous rulings, or new, groundbreaking decisions.

Original Intent or Understanding—two quotes from the book serve as guideposts: a) “Whatever the framers had in their minds…the people of the times accepted only what the framers wrote, not what they meant to write or some people understood them to write” (p.535); and b) “…if one is seeking for original intent or understanding, it is difficult to imagine the relevance of state practices in the twentieth and twenty-first centuries to what was in the minds of people in the eighteenth century” (p.541). About the former—in many cases the language that appears in the text was carefully drafted to reflect the many compromises that were made during the 1787 convention. This nullifies the idea of a single “intent.” That’s where some of the vagueness comes from. About the latter—it is ludicrous to think that the framers were prescient enough to anticipate social and legal problems hundreds of years in the future. The U.S. Constitution was designed for 18th century America, not today’s nation. Original intent or understanding may be a helpful guide (as all historical analysis is), but its use as a legal doctrine is highly questionable.

Structural Analysis—one cannot understand the parts without understanding the whole, and vise-versa. It’s a bit like a musical symphony, say, Beethoven’s Fifth. The whole work is broken into movements, the movements into passages, the passages into bars and measures. Furthermore, the “written score” is divided into sixty or seventy separate scores—one for each instrument. Analyzing a single clause or section of the Constitution, without reference to the whole document, would be a bit like analyzing the first three minutes of Beethoven’s Fifth and forgetting the rest, or limiting one’s scope to the cello parts only. What really matters is the symphony as a whole. Interpretive coherence, however, requires that some parts be emphasized and others de-emphasized (or ignored). This is a highly subjective affair, meaning (as I stated in a previous assignment): the law is what a judge says it is.

Purposive Analysis—“teleological jurisprudence” assumes the overall purpose or intent of the document, then addresses the particulars of the case at hand. The common sense approach, which this mode of interpretation seems to be, is very appealing because it cuts through the tendency to dissect the text and squeeze every drop of twisted logic from it. Most of us have an instinctive understanding of what “cruel and unusual punishment” means, or “unreasonable searches and seizures,” or “due process of law.” Those who insist on defining and re-defining words like “cruel,” “unreasonable,” “unusual,” or “due process” are failing to see the forest because of the trees. For example, Justice Cardozo in Palko v. Connecticut (1937) makes a distinction between “rights” and “fundamental rights,” even though no such distinction is made in the constitutional text. Presumably, fundamental rights trump rights whenever there’s a conflict. It might, therefore, be helpful to know that the framers in 1787 deliberately chose NOT to include a Bill of Rights. They thought it unnecessary, or even dangerous (that’s the subject of another essay). The Bill of Rights was added later as a compromise in exchange for ratification by the states. But who shall decide which rights are fundamental? What if such decisions mask a hidden political agenda? Those are the potential problems of this method.

Other methods—“Polls of other jurisdictions” is almost like a consensus-building model. It may be more influential than many think. For example, many countries nowadays have banned capital punishment. Our own Supreme Court has been ambivalent about it, first ruling it unconstitutional, then re-instating it. But I foresee a ban on capital punishment altogether in the not too distant future, simply because the U.S. Judiciary will not want to be seen as a pariah in the world’s legal community. “Balancing of interests,” like all other methods, tends to be subjective. For example, much of what’s in the USA Patriot Act of 2001 is probably unconstitutional. At the very least, this bit of legislation deserves a long hard look from the Judiciary. If it does come under review, the Court will have to decide whether national security outweighs the plethora of First, Fourth, Fifth, Sixth, Seventh, and Eighth Amendment violations implicit in the Act. “Cost-benefit analyses” seek to apply market values to the judicial process (“what is the bottom line?”). In a way, it makes sense to consider the practical consequences of upholding an abstract ideal—which is what the exclusionary rule is based on—instead of doing what is best for all concerned. It’s hard to appreciate the value of a constitution that turns murderers loose and creates chaos in society. But if one follows that line of reasoning too far, the end result will be a totalitarian state that may as well have no constitution at all.

United States v. Leon (1984) deals with the exclusionary rule—that is, the doctrine that evidence seized in violation of the Fourth Amendment cannot be used in court. It doesn’t matter how guilty the accused may be, illegally obtained evidence cannot be used to convict. The proper procedure for (legal) searches and seizures is spelled out in the Amendment: “…no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” In Leon the search and seizure was apparently proper, the police acting “in good faith.” The controversy centered on the affidavit—later deemed “insufficient”—which was the probable cause generating the warrant. The text doesn’t specify in what way the affidavit was flawed, but for the sake of argument, let’s say the flaw was substantial—as in, a witness was lying. If the affidavit was false, there was no probable cause; therefore the warrant was illegal. It violates the clear language of the Fourth Amendment. Justice White, in reversing the Ninth Circuit (who upheld strict application of the exclusionary rule), uses several modes of constitutional interpretation, but the most significant seems to be “balancing of interests.” Balancing the rights of the accused against the interests of society in general, and the criminal justice system in particular, White favors the latter: “The substantial social costs exacted by the exclusionary rule for the vindication of Fourth Amendment rights have long been a source of concern.” If a different mode had been used, the outcome may have been otherwise. Purposive analysis, for instance, would have sought the underlying purpose of the Amendment. It is INTENDED to be a pediment to law enforcement: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…” Unreasonable means “arbitrary.” Just because a warrant is misdated or the suspect’s name is misspelled doesn’t make it “unreasonable”—it’s just sloppy work. But the provisions of the Amendment are quite clear: probable cause has to be established, then a legal (and specific) warrant can be issued. By no stretch is the Fourth Amendment designed to protect the criminal justice system (as White seems to think necessary); it is designed to protect individual citizens. The underlying purpose of the Amendment mandates the exclusionary rule, and contradicts the Court’s decision in Leon.



References

Murphy, Walter F., C. Herman Pritchett, and Lee Epstein. Courts, Judges, & Politics: an Introduction to the Judicial Process 5th ed. Boston: McGraw-Hill, 2002.


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Judicial Effectiveness and Miranda

Arizona v. Miranda (1966) established the famous “Miranda Rules” that police routinely read to suspects being placed under arrest. Although advising persons of their constitutional rights prior to any sort of interrogation is admirable and praiseworthy, it does raise certain questions. For example, it is said that ignorance of the law is no excuse for illegal behavior. If we accept that maxim, then it could also be argued that ignorance of one’s rights is no excuse for allowing them to be violated. Nevertheless, in Miranda the Supreme Court raised the bar for law enforcement, taking that extra step to ensure, in agreement with the Fifth Amendment, that any confession or other incriminating remarks are admissible in court. The potential for governmental abuse of power is so great and the plight of an accused (whether guilty or not) so disadvantaged, it is small wonder the Court held that mere detainment by the police is “inherently coercive.” Before we discuss how Supreme Court decisions are implemented, let’s take a closer look at the Miranda case.

Ernesto A. Miranda, based on a written confession, had been convicted of the rape-kidnapping of a young woman. The conviction was overturned because “[t]he Court decided that a confession would be presumed involuntary unless the person in custody had been fully and clearly informed of his or her right to be silent, to have an attorney present during any questioning, and to have an attorney provided free of charge if he or she could not afford one” (Wilson, 2000, p.330); and since Miranda had not knowingly waived these rights, his confession was ruled inadmissible. Miranda was retried on the basis of his girlfriend’s testimony (to whom he had admitted his guilt), and re-convicted. He served nine years in prison and was released; four years later he was killed in a barroom brawl. Ironically, when the police arrested a man for the killing, he was read his rights from a “Miranda card” (ibid).

This is one Court decision, obviously, that has been successfully and almost universally implemented. It has even become part of popular culture—there is no cops-n-robbers TV show nowadays in which the Miranda rules do not get recited; probably nine out of ten television watchers know them by heart. After almost forty years Miranda has simply become a regular part of police procedure. The warning serves a dual purpose: to safeguard the rights of an accused, and to protect the legality of the government’s case. The four populations affected by the Court’s ruling in this case include the Interpreting Population, Implementing Population, Consumer Population, and Secondary Population.

First, the Interpreting Population for Miranda would be all lower courts, and possibly the senior supervisors of various law enforcement agencies. Just because the High Court overturned Miranda’s conviction and gave the reasons why, exactly how this problem was to be avoided in the future remained unanswered. When, and under what circumstances, should a suspect be advised of his constitutional rights—and how, and by whom? All these things had to be determined. Would Miranda work in reverse, overturning the convictions of countless people already in jail? The Constitution’s ban on ex post facto applies here (I think); at any rate, there was no mass exodus from prison after the ruling. Afterward, however, whenever an appeal came before a tribunal, or whenever a judge ruled on the admissibility of evidence in criminal trial, Miranda had to be considered. Second, the Implementing Population would include law enforcement officers, their supervisors, and possibly prosecutors and defense counsel. As the story of Ernesto Miranda demonstrated, it is up to either the arresting officer or the interrogating officer(s) to be sure the suspect knows his rights and willingly waives them before talking. The Fifth Amendment guarantees the right not to self-incriminate—which ensures, among other things, that torture cannot be (legally) used to obtain confessions. The Sixth Amendment guarantees the right to legal counsel. Out of these, Miranda was extrapolated. Police officers may complain that such restrictions hamper their efforts, and occasionally they may not be able to convict someone they KNOW is guilty.

Nevertheless, the system is geared toward protecting the innocent from arbitrary prosecution, and the only way to do that is to protect everyone—even the guilty. Third, the Consumer Population (if you want to call it that) would include anyone arrested or charged with a crime. Again, I’m not entirely convinced that ignorance of one’s constitutional rights is an excuse for allowing them to be violated. After all, that was one of the reasons for establishing a free public educational system—it was primarily for education of the responsibilities of citizenship. Law enforcement routinely uses a person’s ignorance against him and may even say that if he has done no wrong, then there’s no need for an attorney. The implication is, of course, that asking for legal counsel is an indirect admission of guilt. But from all my study of the criminal justice system, I have to say I would advise anyone that once it becomes clear he or she is a suspect, to remain silent and request an attorney—especially if innocent. In other words, it is no one’s responsibility to prove innocence. Fourth, the Secondary Population includes all other citizens not directly involved in police matters. But anyone can conceivably find himself or herself accused of a crime. In that case, it should be a comfort to know that legal precedents such as Miranda are in place to ensure police compliance with the law.


References

Murphy, Walter F., C. Herman Pritchett, and Lee Epstein. Courts, Judges, & Politics: an Introduction to the Judicial Process 5th ed. Boston: McGraw-Hill, 2002.

Wilson, James Q. American Government 5th ed. Boston: Houghton Mifflin, 2000.


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The Basis of Law

Upon what shall we base our laws--reason or {religion, morals, tradition, custom, something else}? Or perhaps an integrated form of reason-{etc}? For the sake of argument let's consider reason alone as the basis of law. On that score, I would then have to agree with philosopher Freidrich Nietzsche, who argued for what he called "Hero Morality"--i.e. might makes right. Laws should be made by those who are strong enough to take power, strong enough to subjugate lesser men, and should thus reflect their values. According to Durant (1961, p.420):
"Here then [are] two contradictory valuations of human behavior, two ethical standpoints and criteria: a Herren-Moral and a Herden-Moral--a morality of masters and a morality of the herd. The former was the accepted standard in classical antiquity, especially among the Romans; even for the ordinary Roman, virtue was virtus--manhood, courage, enterprise, bravery. But from Asia, and especially from the Jews in the days of their political subjection, came the other standard; subjection breeds humility, helplessness breeds altruism--which is an appeal for help. Under this herd-morality love of danger and power gave way to love of security and peace; strength was replaced by cunning, open by secret revenge, sternness by pity, initiative by imitation, the pride of honor by the whip of conscience. Honor is pagan, Roman, feudal, aristocratic; conscience is Jewish, Christian, bourgeois, democratic."

All this harkens back to the various "state of nature" theories--also popular during the Enlightenment (see Locke, Hobbes, Rousseau, etc.). Why should not human society be governed precisely as animal societies are--by the so-called law of the jungle? In a pack of dogs, for instance, the largest, meanest, strongest dog becomes pack leader. He maintains his authority through a combination of fear, fighting skills, and slashing teeth. When he finally grows too old to govern, a younger dog challenges him. The old defeated dog is banished from the pack, where he will most likely die of starvation. That is the natural state of dogs (wolves actually) in the wild, and as brutal as it seems there is a certain logic to it. Isn't the strongest and most virile animal the one best suited to ensure survival for the pack? Although the old, the sick, and the weak may have to be weeded out, they are, after all, dead weight. They are a danger to the pack. Prehistoric human tribes were organized pretty much along these lines; even one city-state in ancient Greece--Sparta--was built upon these principles. Sparta, at some point in its history, abandoned traditional Greek culture (music, art, poetry, philosophy, etc) and devoted itself exclusively to building a warrior society. The State was all powerful and despotic. When a child was born among the ruling class, state inspectors examined the infant to determine if it was fit to live. If the infant was too small, too weak, sickly, or malformed in any way, it was taken from its parents and left to die of exposure. Only the healthiest and most hale of children grew up in Spartan society. At a young age (five or six I think), boys were taken from home and raised in state schools, where they were trained to be warriors. Every aspect of life was controlled by the Spartan state, and the Spartan army was the most feared in Greece. European society in general developed hand in hand with various warrior cultures; the natural result was aristocracy--a tiny minority controlling virtually all the wealth, land, government, and military force. The vast majority of mankind--peasants, slaves, servants--had to eke out an existence the best way they could, upon the charity and good will of their masters, or through crime. Reason states that he who holds the shotgun makes the rules; if one man is strong enough to beat down and subjugate another through force, then the former is master, king, and senator; the latter is servant, subject, and citizen. What of the opposite view? Again:
"It was the eloquence of the prophets, from Amos to Jesus, that made the view of a subject class an almost universal ethic; the 'world' and the 'flesh' became synonyms of evil, and poverty a proof of virtue. This valuation was brought to a peak by Jesus; with him every man was of equal worth, and had equal rights; out of his doctrine came democracy, utilitarianism, socialism; progress was now defined in terms of these plebian philosophies, in terms of progressive equalization and vulgarization, in terms of decadence and descending life. The final stage in this decay is the exaltation of pity and self-sacrifice, the sentimental comforting of criminals, the 'inability of society to excrete.' Sympathy is legitimate if it is active; but pity is a paralyzing mental luxury, a waste of feeling for the irremediably botched, the incompetent, the defective, the vicious, the culpably diseased and the irrevocably criminal" (ibid).

Even though Nietzsche made these arguments (summarized by Dr. Durant) as a criticism of 19th century Europe, they sound vaguely familiar, do they not? Are these not the very same charges American conservatives make against liberals and progressives? Liberals are supposed to be "bleeding hearts" who want the government to step in and protect minorities, women, homosexuals, drug addicts, criminals, the environment, and all other unworthies, at the expense of big business, white males, evangelical Christians, and true patriots. The Republican Party is God's party and George W. Bush God's hand picked President; the Democratic Party, I suppose, is acting on behalf of Satan and leading the United States to ruin. That's why we had to go to war in Iraq! Seriously, though, European civilization (and by extension, American civilization) contains these two essential ideologies--the classical, pre-Christian (pagan) heritage, and the Judeo-Christian heritage. These are Cain and Abel ideologies, constantly struggling for dominance. The "cultural war" in America that you're always hearing about is being fought about these two poles, and lawmakers, more and more, are coming from one or the other camp. But what's interesting is this: according to Nietzsche, Jesus Christ was probably the worst thing ever to happen in history, for he ushered in the herd-morality. Nietzsche's champion would have been someone like Adolf Hitler (a student of Nietzschean philosophy) and National Socialism a cause celebre. Nevertheless, the modern day "religious right" parrots the hero-morality in all but name.

Obviously, reason alone cannot be the basis of law. What else might we consider? What about religion--what if America was, as some on the religious right insist, a "Christian" nation; not just culturally but legally? What if some form of Christianity (you pick the form--Catholic, Baptist, Seventh Day Adventist, etc.) was the "official" American religion and the Bible a sourcebook for constitutional law? Would that work? I remind my colleagues that we have not always had separation of church and state in America. In fact, in colonial times there were numerous experiments with theocracy. The most notable was probably the Massachusetts colony, which came to be dominated by Puritans. According to Nevins and Commager (1981, pp.20-21):

"The fundamental reason for the Puritan migration to Massachusetts was to establish a church-state and not to find religious freedom...There were four steps in the erection of this church-state in Massachusetts. The first was a basic provision that unless a man was a member of the Puritan Church in good standing, he could not vote or hold office. The second made attendance at church compulsory for everyone, thus guarding the Church and colony against unbelievers. The third required that the Church and state both approve the incorporation of any new church. No nest of dissenters or unbelievers could set up shop for themselves in any part of Massachusetts; those who wanted a church which did not strictly conform to the Puritan type must emigrate to some other part of America. Finally, a provision for state support made it possible for the state to act with the Church heads in punishing any rebellion or infraction of discipline."

Even though the U.S. Supreme Court is set this week to hear the "Pledge of Allegiance" case, in which the litigant believes the phrase "under God" makes it unconstitutional, this bit of fluff is nothing compared to real established religion, such as described above. A theocracy is directly supported by state taxes, and you have to pay them or face criminal charges. Moreover, citizenship rights, such as voting or holding public office, are dependent upon one's religious activity. Failing to attend church services regularly is a crime, as is practicing an "unapproved" faith. Thus, Catholics, Jews, Mormons, or whomever, have no place in society. And the final provision hands judicial and executive powers to ecclesiastical authorities. If you are guilty of something like "heresy," you can be arrested, taken before a judge, tried, convicted, and sentenced. Punishment might include public humiliation, loss of property, imprisonment, or death (being burned at the stake was the preferred method). Let me use myself as an example. I'm a fairly religious guy: I believe in God, Jesus Christ, the Golden Rule, and all that. But I do not believe in the Trinity--Father, Son, and Holy Ghost. This notion of a tripartite God is a lot of nonsense so far as I'm concerned. So for this "crime," I'm tried by a judge (who is also a clergyman), convicted (after I refuse to confess belief in the Trinity), and the last time you see me I'm being burned alive at the stake. Such is the reality of established, state sponsored religion. Fundamental point: what is the dividing line between religion and politics (manifested as church and state)? When are your actions no longer purely religious, but political? The dividing line is the use of force. You can preach, holler, condemn, and rail to your heart's content--and that is within the bounds of religious freedom. But when it becomes coercive--when it involves fists, guns, bombs, chains and shackles, and yes, legislation--the realm of religion has been left behind. Just as the Puritans had no interest in religious freedom, so also modern day crusaders who wish to transform their religious agendas into laws and statutes are not interested either. Although law may indeed have a moral basis--in fact, it has to have some moral basis to be just--that does not mean sectarian religion is the way to go about it. I've often wondered what would happen if Jerry Falwell and Pat Robertson got their deepest wish--if the U.S. Congress, Supreme Court, and Chief Executive--followed, without fail, the agenda of the Moral Majority and Christian Coalition? Would the Bill of Rights survive? The first casualty, no doubt, would be the First Amendment. A "Christian" America would not tolerate non-believers or adherents of other faiths. Muslims, Jews, Buddhists, and any number of "unrecognized" sects would find themselves in prison--or worse. Religious freedom is, by definition, separation of church and state, because matters of religious conscience must be sundered from the coercion of law. Therefore, religion--like pure reason--is totally unacceptable as the basis of law.

References:

Durant, Will. The Story of Philosophy. New York, Washington Square, 1961.

Nevins, Allan and Henry Steele Commager. A Pocket History of the United States. New York: Washington Square, 1981.

***


Supreme Court Decisions and Prisoner’s Rights

All American citizens are governed by the U.S. Constitution, and thus are afforded equal protection under the law—and this includes those who have been accused, tried, convicted, and sanctioned by the criminal justice system. In spite of what some may believe (or desire), no jail, trial court, police department, government agency, or correctional facility, can be isolated from the reach of the Constitution. No matter what a person’s legal status, the Bill of Rights applies. Our purpose here is not to debate whether criminals or prisoners deserve these rights (this is not a paper on legal philosophy), but to examine what the nation’s highest court has to say on the matter. According to Cornell University Law School, “Federal and state laws govern the establishment and administration of prisons as well as the rights of the inmates. Although prisoners do not have full Constitutional rights they are protected by the Constitution’s prohibition of cruel and unusual punishment (see Amendment VIII). This protection requires that prisoners be afforded a minimum standard of living. Prisoners retain some other Constitutional rights, including due process in their right to administrative appeals and a right of access to the parole process” (5). Prisoners also have limited rights to speech and religion. Because of their incarcerated status, of course, some rights are abridged or modified.


The Bill of Rights

According to Garrett, “The rights most important to inmates emanate from the First, Fourth, Fifth, Sixth, and Eighth Amendments to the Constitution…” The Fourteenth Amendment, in addition, guarantees these rights to state inmates—in other words, the various States cannot enforce laws in violation of federal law. Let us consider these, briefly.

The First Amendment prohibits Congress from establishing religion or interfering with the free exercise thereof; said prohibition also extends to free speech, the press, peaceful assembly, and redress of the government for grievances. Note that the Amendments do not GRANT rights—the rights are already assumed. The Fourth Amendment appertains to unreasonable search and seizure; thus, the evidence gathered to prosecute and convict must be obtained legally. The Fifth Amendment bars double jeopardy—being tried twice for the same offense—and compulsory self-incrimination; it also says persons cannot be “deprived of life, liberty, or property, without due process of law…” The Sixth Amendment guarantees the right to a speedy trial, impartial jury, habeas corpus, confrontation of witnesses, and “Assistance of Counsel.” The Eighth Amendment says, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The latter, especially, protects the incarcerated from governmental abuses of power. Finally, the Fourteenth Amendment provides “blanket” protection to all Americans, saying, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…” Rights emanate from other sources, as well: federal statutes, “including the Civil Rights Act of 1964” (Garrett), and some state statutes. In short, any failure of the government to adhere to the law in depriving citizens of “life, liberty, or property,” opens the doors of litigation. When such litigation reaches the U.S. Supreme Court, precedents are established in the matter of prisoner’s rights.


Three Supreme Court Decisions

Johnson v. Avery, 393 U.S. 483 (1969)—In this case the petitioner, a Tennessee prisoner serving a life sentence, was disciplined—i.e. transferred to a maximum-security building of the prison—for violating this prison regulation: “No inmate will advise, assist or otherwise contract to aid another, either with or without a fee, to prepare Writs or other legal matters. It is not intended that an innocent man be punished. When a man believes he is unlawfully held or illegally convicted, he should prepare a brief or state his complaint in letter form and address it to his lawyer or a judge. A formal Writ is not necessary to receive a hearing. False charges or untrue complaints may be punished. Inmates are forbidden to set themselves up as practitioners for the purpose of promoting a business of writing Writs” (1). The petitioner sued in District Court, which ruled in the prisoner’s favor. It held that the regulation was void “because it had the effect of barring illiterate prisoners from access to federal habeas corpus…” (ibid). The Sixth Circuit Court of Appeals reversed the decision, however [382 F. 2d. 353], holding that “the State's interest in preserving prison discipline and limiting the practice of law to attorneys justified any burden the regulation might place on access to federal habeas corpus” (ibid). This decision was appealed to the Supreme Court, which reversed and remanded.

This case is essentially about the right to habeas corpus, which the Court refers to as the “Great Writ.” In Bowen v. Johnston, 306 U.S. 19, 26 (1939), it declared, “there is no higher duty than to maintain it unimpaired” (ibid). And since its basic purpose is to enable those unlawfully detained to regain their freedom, “it is fundamental that access of prisoners to the courts for the purpose of presenting their complaints may not be denied or obstructed” (ibid). The Court even ruled [365 U.S. 708 (1961)] that filing fees could not be charged indigent prisoners. Access to the courts must be “more than a formality” (ibid). The State is required, for example, to provide transcripts of previous proceedings, and any other assistance inmates may require. The State of Tennessee argued that the disputed regulation was needed for disciplinary purposes. While the Supreme Court recognized the legitimate concern for discipline in prison administration, it held that when such regulations violate inmate’s Constitutional rights, the regulations could be invalidated.

Although the State could not legally enforce a rule that forbade illiterate or poorly educated prisoners to file habeas corpus petitions, the disputed regulation did just that. The District Court, which had ruled in favor of the prisoners, said, “[f]or all practical purposes, if such prisoners cannot have the assistance of a `jail-house lawyer,' their possibly valid constitutional claims will never be heard in any court” (ibid) 252 F. Supp., at 784. The Supreme Court agreed with the District Court and reversed the Appellate Court, saying, “In the absence of some provision by the State of Tennessee for a reasonable alternative to assist illiterate or poorly educated inmates in preparing petitions for post-conviction relief, the State may not validly enforce a regulation which absolutely bars inmates from furnishing such assistance to other prisoners” (ibid).


Procunier v. Martinez, 416 U.S. 396 (1974)—concerns two issues: a) the right of prisoners to send and receive mail, and b) the use of law students and legal assistants to conduct attorney-client interviews with inmates. In the first matter the Director of the California Department of Corrections’ rules restricting personal correspondence of prison inmates was considered. Rule 2401 stated that correspondence by prisoners is “a privilege, not a right…” (2). Rule 1201 barred prisoners from writing letters in which they “unduly complain[ed]” or “magnified grievances.” Rule 1205 defined “contraband” writings: “…[writings] expressing inflammatory political, racial, religious or other views or beliefs…” (ibid). Rule 2402 stated that inmates “may not send or receive letters that pertain to criminal activity; are lewd, obscene, or defamatory; contain foreign matter, or are otherwise inappropriate” (ibid). Thus, prisoner’s correspondence could be screened according to the criteria listed above, and the “privilege” to send and receive mail could be curtailed or removed altogether. In the second matter the constitutionality of Administrative Rule MV-IV-02 was considered. That rule stated, “Investigators for an attorney-of-record will be confined to not more than two. Such investigators must be licensed by the State or must be members of the State Bar. Designation must be made in writing by the Attorney” (ibid). This rule had the effect of an absolute ban on the use of law students and legal paraprofessionals to interview inmate clients. And in fact, “attorneys could not even delegate to such persons the task of obtaining prisoner’s signatures on legal documents” (ibid). As a result, an attorney would either have to conduct interviews in person, get official approval for another attorney or other “licensed” professional, or leave the prisoner to fend for himself with little or no recourse.

The prisoners brought class action lawsuits in these matters and won. The District Court [354 F. Supp. 1092] ruled the mail regulations “unconstitutional under the First Amendment, void for vagueness, and violative of the Fourteenth Amendment’s guarantee of procedural due process…” (ibid). It also held that Administrative Rule MV-IV-02 “abridged the right of access to the courts…” (ibid). The California Department of Corrections appealed to the Supreme Court, but the Court upheld and affirmed 354 F. Supp. 1092. The Court did not invalidate all censorship of prisoner mail per se, but insisted that “incidental restrictions on the right of free speech” meet certain criteria: “(1) it must further one or more of the important and substantial governmental interests of security, order, and the rehabilitation of inmates, and (2) it must be no greater than is necessary to further the legitimate governmental interest involved” (ibid). The California Department of Corrections rules in that regard were deemed unconstitutional.

In the Opinion, delivered by Justice Powell, the Court traced its historic “hands-off” policy regarding administration of correctional institutions, citing the “Herculean obstacles” faced by corrections officials in the discharge of their duties, but declared nonetheless that “a policy of judicial restraint cannot encompass any failure to take cognizance of valid constitutional claims whether arising in a federal or state institution. When a prison regulation or practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to protect constitutional rights” (ibid). In the matter of MV-IV-02 the Court held: “The constitutional guarantee of due process of law has as a corollary the requirement that prisoners be afforded access to the courts in order to challenge unlawful convictions and to seek redress for violations of their constitutional rights. This means that inmates must have a reasonable opportunity to seek and receive the assistance of attorneys. Regulations and practices that unjustifiably obstruct the availability of professional representation or other aspects of the right of access to the courts are invalid” (ibid). Although there were certain categories of law students that were not affected by the ban, the Court ruled the administrative rules “arbitrary”—splitting hairs, as it were—and prejudicial to prisoner’s legitimate interests. The lower court reasoned that the rules would “deter some lawyers from representing prisoners who could not afford to pay for their traveling time or that of licensed private investigators” and that lawyers could better spend their time working on inmate’s cases (ibid). It also said, “Allowing law students and paraprofessionals to interview inmates might well reduce the cost of legal representation for prisoners” (ibid). Citing Johnson v. Avery as a precedent, the Supreme Court affirmed the lower court’s ruling.

Estelle v. Gamble, 429 U.S. 97 (1976)—involves a test of the Eighth Amendment ban on “cruel and unusual” punishments. J.W. Gamble, an inmate in a Texas prison was injured while working at his prison job. He instituted a civil rights suit under 42 U.S.C. 1983, alleging inadequate medical treatment for the injury. The suit was dismissed by the District Court for “failure to state a claim upon which relief could be granted” (3). The Court of Appeals reversed and remanded, instructing the lower court to reinstate the claim. Petitioners, W.J. Estelle Jr. et al. appealed to the Supreme Court, which granted certiorari.

The first thing the Court looked at was the documented medical treatment given the inmate, which included 17 visits to prison doctors over a three-month period. Gamble, diagnosed with “lower back strain,” was released from work, prescribed painkillers and a variety of muscle relaxers, and ordered to be moved from an upper bunk to a lower. Prison officials refused to comply with the latter. A month after Gamble’s injury the prison doctor certified him fit for light work, despite claims that he was still in pain. After refusing to return to work he was brought before a disciplinary committee and sent back to the doctor. Although the doctors held Gamble to be in “first class” medical condition, he continued to refuse work and was eventually placed in solitary confinement. Even in solitary, the medical complaints continued, and on February 11, 1974, he swore out his complaint.
Gamble’s complaint, of course, alleged “cruel and unusual,” in violation of the Eighth Amendment. The Court noted, “the primary concern of the drafters was to proscribe ‘torture[s]’ and other ‘barbar[ous]’ methods of punishment,” and that the Amendment embodied “broad and idealistic concepts of dignity, civilized standards, humanity, and decency… Thus, we have held repugnant to the Eighth Amendment punishments which are incompatible with ‘the evolving standards of decency that mark the progress of a maturing society’” (ibid). For this reason, the government is obligated to provide adequate medical care to those it chooses to incarcerate. Failing to do so would result in “unnecessary” pain and suffering (even death), serving no penological interest. According to the Court, “The infliction of such unnecessary suffering is inconsistent with contemporary standards of decency as manifested in modern legislation codifying the common-law view that ‘it is but just that the public be required to care for the prisoner, who cannot by reason of the deprivation of his liberty, care for himself’” (ibid). In other words, outright refusal to grant medical care could be considered cruel and unusual, and thus unconstitutional. The Court continues, “We therefore conclude that deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain,’ Gregg v. Georgia, supra, at 173 (joint opinion), proscribed by the Eighth Amendment. This is true whether the indifference is manifested by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed. Regardless of how evidenced, deliberate indifference to a prisoner's serious illness or injury states a cause of action under 1983” (ibid).

So the question becomes, Did Gamble’s treatment at the hands of prison medical staff rise to the level of “deliberate indifference”? The Supreme Court said “No.” According to the opinion, “Gamble's claims against [prison doctor] Gray, both in his capacity as treating physician and as medical director of the Corrections Department, are not cognizable under 1983. Gamble was seen by medical personnel on 17 occasions spanning a three-month period: by Dr. Astone five times; by Dr. Gray twice; by Dr. Heaton three times; by an unidentified doctor and inmate nurse on the day of the injury; and by medical assistant Blunt six times. They treated his back injury, high blood pressure, and heart problems. Gamble has disclaimed any objection to the treatment provided for his high blood pressure and his heart problem; his complaint is ‘based solely on the lack of diagnosis and inadequate treatment of his back injury.’ The doctors diagnosed his injury as a lower back strain and treated it with bed rest, muscle relaxants, and pain relievers. Respondent contends that more should have been done by way of diagnosis and treatment, and suggests a number of options that were not pursued” (ibid). However, in no way could either the prison administration or medical staff be guilty of “deliberate indifference.” Thus, the Court affirmed the District Court’s ruling, reversed the Appellate decision and remanded.

By abandoning the traditional “hands-off” approach in dealing with prisoner’s complaints, the U.S. Supreme Court reinforced the rule of constitutional law even within correctional institutions. American citizens do not lose all rights and citizenship privileges because of their incarceration; rights and privileges, however, can be curtailed and abridged in the legitimate interests of penology. These decisions bolster the reputation of the United States as among the most truly civilized nations on earth.

References

(1) Johnson v. Avery, 393 U.S. 483 (1969). http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&linkurl=http%3A%2F%2Fwww.cnu.edu%2Fclubs%2Flegal%2Fwww%2Fresearch.htm&graphurl=http%3A%2F%2Fwww.cnu.edu%2Fclubs%2Flegal%2Fwww%2Fcnuls-link.jpg&vol=393&invol=483

(2) Procunier v. Martinez, 416 U.S. 396 (1974). http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&linkurl=http%3A%2F%2Fwww.cnu.edu%2Fclubs%2Flegal%2Fwww%2Fresearch.htm&graphurl=http%3A%2F%2Fwww.cnu.edu%2Fclubs%2Flegal%2Fwww%2Fcnuls-link.jpg&vol=416&invol=396

(3) Estelle v. Gamble, 429 U.S. 97 (1976). http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&linkurl=http%3A%2F%2Fwww.cnu.edu%2Fclubs%2Flegal%2Fwww%2Fresearch.htm&graphurl=http%3A%2F%2Fwww.cnu.edu%2Fclubs%2Flegal%2Fwww%2Fcnuls-link.jpg&vol=429&invol=97

(4) Garrett, Judith Simon. “Compliance with the Constitution.” Prison and Jail Administration: Practice and Theory. Eds. Peter M. Carlson and Judith Simon Garrett. Gaithersburg, MD: Aspen, 1999.

(5) http://www.law.cornell.edu/topics/prisoners_rights.html