January 7, 2018

In my 60+ years of wandering this planet, I have noticed, everywhere, that children have a very well defined, if not always reality based, sense of justice.

Why did HE get a bigger piece of cake?

How come SHE gets to stay up later?

Why do I have to do more housework/yard work/chores than anyone in the history of the known AND unknown universe has ever had to do?

EVER!!!!!!!

How many times as parents do we say finally, in exasperation,

BECAUSE I SAID SO.

How many times does that pronouncement incite the short-statured domestic Greek Chorus to shout

Not Fair. Not FAIR. NOT FAIR!!!!!

I grew up in a strict Catholic, Germanic household where everything was fine unless one questioned authority of any kind on any level. Not so fine after that. Nor were explanations forthcoming. The powers that were in our house were VERY big on BECAUSE I SAID SO.

Among ourselves, in the neighborhood with our friends, we were absolutely obsessed with fairness.

If you cut the cake, you got the smallest piece. Period. No questions asked

And if you were the oldest, you cut the cake. So there was that as well.

Sometimes we spent more time arguing about the “Rules” and who had transgressed and what the penalty would be than ACTUALLY PLAYING the game. Of course, we were making it up as we went along . . . So no worries about consistency and hobgoblins invading small minds . . .

It just had to BE FAIR . . . Whatever that meant that day . . . And our penalties for unfairness were sometimes pretty harsh.

I don’t know if we were looking for deterrence or simple vengeance or that particularly Quixotic quest for balance and justice that children are wont to undertaken. In any event, I believe we were more often kind than cruel, most days anyway.

We knew that we lived under tyranny, at the mercy of parents and nuns and priests and community, and we believed that we could do better, but we had no tools and little experience from which to construct a fair system that served all needs and interests.

So we often failed in that quest. JUST LIKE THE GROWN-UPS!

So. The question for us today is: what makes for a just system of justice? What needs to be defined and implemented for a system to be “fair”? What are the components that need to be in place?

At the very least, we should have to

Define who’s included, and who gets a ”pass” for what, and who might be held to a higher standard under what circumstances

Define the expectations that people can reasonably have for their justice system

Should there always be the same outcomes for similarly situated people?

If not, when are extra considerations OR burdens justified?

(You’re older, you should know better!)

That inquiry brings us to the next item for consideration, which is what are the consequences in any group or society if the system is not defined and maintained in a just manner?

There are so many examples from history:

U.S. policies towards First Nation peoples (pick an era, any era)

U.S. Slavery

Jim Crow

South African Apartheid

Just about any Empire in history

Belgian Rule laying the groundwork for the Hutu/Tutsi debacle

The consequences differed in the details; sometimes those chickens came home to roost early and sometimes they took centuries to come knocking on the door. The only thing we cannot doubt is that the aggrieved will return, sometimes in the form of their progeny, who may be more outraged than the original victims by a LOT.

Some of the elements that theses unjust justice systems have in common are:

The elevation of the pursuit of personal gain for the few over the welfare of the whole

“Power over” used to take, take, take, giving only the merest portion back to those actually doing the work

Internal inconsistencies with terribly flawed justifications abound, all of which can appear terribly and embarrassingly obvious in hindsight. And I find it breathtaking to observe the rationalizations that have been used over and over again to support systems of inequality and terrible cruelty towards the many in order to maintain pretty much completely undeserved privilege for the few. But that’s a topic for another day. Or month. Or year.

So . . .

Let’s look at the kind of system of justice that develops in the face of systemic internal inequality. That could be used to describe the system of public prosecutions in many places in our country before the U.S. Supreme Court issued its decision in U.S. v. Berger in 1935.

In those heady days before Berger, prosecutors were too often not about doing justice. They were about collecting scalps, and enhancing their resumes and building their fortunes.

To be fair, it was what was expected of them. Part of the job was (still is?) to make the common folk feel safe in their beds and assure them that the RIGHT folks are being arrested and put away. But in order to even raise the issue of safety, one has to invoke the lack of it, and get folks scared. Even terrified.

What happens to that perception of keeping folks safe if we arrest folks who are then found to be innocent? Once you’ve convinced folks that there is a reason to be scared, it does not help anyone if you look like you don’t know what you’re doing, who to arrest and prosecute, who the actually threats are.

And once you’ve arrested someone, does anyone actually believe that they MIGHT BE innocent, with all the talk of folks getting off on a technicality and beating the rap? I’ve heard of a faraway land where innocence until guilt is proven is an actual thing. It may involve scaling a rainbow or something . . . But I digress.

In the Berger decision, the Supreme court stated that:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

What Berger established as the law of the land is that a prosecutor has a duty to DO JUSTICE, NOT just fill prisons, and that duty to do JUSTICE is owed to the victim of a crime, the general public AND the defendant. And that means in every case.

When prosecutors heed the instructions in Berger, we come so much closer to having a just system of justice. We have many such prosecutors in Vermont and it is our duty as citizens to ensure that our prosecutors toe this line. Not everyone is as lucky in this and other countries.

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Some people are talking about criminal case resolutions in terms of identifying the proper distribution of the pain caused by a criminal act. There has arisen of late some recognition that the whole bundle doesn’t often belong ENTIRELY to the criminal defendant.

For instance, when the defendant is a juvenile, or suffers from disabilities that may impair their ability to understand the concept of right or wrong, more folks might be able to understand and accept the concept of mitigation of responsibility.

However, sometimes a case may make us want to ignore those nuances and just punish someone who has caused pain, suffering, loss to others. I would submit that the responsibility allocation analysis is relevant in every case, as we need to ensure that the consequences of each criminal act are correctly assessed and responsibility for those consequences correctly allocated between all of the involved parties.

In 2000, Jim and I went with some friends to the International Association of Democratic Lawyers annual meeting which that year was held in Havana. At that time, our government had decided that it was legal to attend the annual meeting of a professional organization to which

one belonged if it happened to be held in Cuba. I became a member about 20 minutes before we left for Havana . . .

Another friend went as well, someone who had grown up in Central and South America, fluent in Spanish and so at home in Havana. While sitting in an outside café in the Old City, she was approached by a pregnant woman asking for food or money. The request was declined and the woman left. At some point not long after that departure, my friend realized that her purse was missing.

When she reported this theft to the waitperson at the café, the entire staff became upset, declaring that Cuba itself had been shame by the action of the thief.

As the suspect was known to everyone in the area, she was soon rounded up and taken to the police station along with my increasingly uneasy friend.

While at the station, one of the police officers asked my friend why she had not taken greater care with her belongings

Can you not see the need here?

Shouldn’t YOU have been more careful?

As a public defender who worked with poor people on a daily basis, she had to wonder why indeed? Returning to her usual persona of caring about the downtrodden, she asked the officer if the woman would be going to jail.

At the mere suggestion, the officer appeared insulted and upset, telling her that of course she would not go to jail, she would instead go to a home where she and the baby would be cared for, where she could consider her life and learn how to make a better one for herself and for her child. The officer did not appear to understand how my friend could have thought there would be any other outcome. Essentially, what did we think of the Cuban people if we thought they would jail a person under such circumstances?

For me, this story gives rise to many questions, such as:

Who is responsible for the fact that the theft occurred?

Who is responsible for why it was arguably necessary?

Who is responsible for creating the opportunity for any crime to be committed?

I would submit that that you cannot construct a viable system without engaging those issues deeply. I fear that we in this country have not done so and that we ignore these questions at our peril.

I cannot help but wonder what would our justice system look like if THAT were the framework in which prosecution decisions were made. What, except for our fear, is stopping us from moving in that direction in this country?

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 In a healthy, caring society, the questions raised in this discussion are not ever finally decided. If we are to have a strong, functional justice system, we have to be willing to review its components and underlying assumptions on a periodic basis and ensure that our ideals are still serving us. A question that arises often at the Statehouse is how often do we need to conduct those reviews those assumptions to ensure that we are taking ALL relevant considerations into account.

This suggestion is often met by a chorus of WE JUST DID THAT and barely disguised eye-rolling. When pointed out that the last review was 5 or 7 or 10 years ago, the groans become more resigned, and perhaps a grudging acknowledgement may be heard that, yeah maybe we should look again.

At the same time, members of the general public will often complain about ANOTHER STUDY COMMITTEE?? because you just did that, Montpelier, why can’t you just pass laws and get on with it????

And so it goes.

And life changes and that means that we have to review the underlying assumptions AND apparatus of each of the several parts of that system.

And if it takes five years to do a proper analysis of those changes, that might mean that the changes will be ten years made after the last overhaul, at which time the assumptions will have changed . . .

So.

We have to review the underlying assumptions AND apparatus of each of the several parts of that system again.

My head is starting hurt.

Suffice to say that justice is not just a mighty stream that washes clean and departs. And we need that healing bath over and over and over again.